After discovering yesterday to my amazement that there are States Members that don’t even know our Home Affairs Minister Senator Ian (P9-26) Le Marquand had suspended our most Senior ranking Police Officer, CPO Graham Power, for the so called “Operation Blast” I thought I’d best help inform the uninformed.
Below is the transcript of that particular Suspension Hearing. What members and readers might want to consider is was this suspension an “insurance policy” to keep CPO Power suspended as it was conducted only days before the original suspension was to be reviewed by the Royal Court, or indeed after reading the transcript you might consider it a right and proper decision.
You will also notice that Bridget Shaw is not the only person who can rule themselves “not conflicted” Senator Ian (P9-26) Le Marquand can do it as well! It might also be helpful for readers to know, “the files” were brought to the attention of the Home Affairs Minister by Acting Chief Officer David Warcup, he really is a busy little Bee isn’t he?
There is as far as I am aware, and stand to be corrected, an ongoing investigation conducted by Wiltshire Police code named “Operation Haven 2” which was commenced in June 2009. It is believed that this inquiry might just find that “Operation Blast” never existed and there is nothing unusual about files being kept on high profile members of Parliament or indeed members of the public.
It should also be noted, that it is believed that Chief Officer Graham Power had never heard of “Operation Blast” until it was mentioned by Home Affairs Minister Senator (P9-26) Le Marquand.
STATES OF JERSEY
SUSPENSION HEARING
FRIDAY, 31st JULY 2009
Present:
Senator B.I. Le Marquand (The Minister for Home Affairs)
Mr. G. Power (Chief Officer, States of Jersey Police)
Dr. T. Brain (Chairman, Chief Police Officers’ Staff Association)
Mr. M. Pinel (Head of Employee Relations, States of Jersey)
Senator B.I. Le Marquand (The Minister for Home Affairs):
Good morning, gentlemen. I think if we just speak to identify voices for any transcription purposes. I am Ian Le Marquand, as I always say, still Home Affairs Minister. Mick Pinel is to my left, he is assisting me. If you could identify yourselves, please, by ...
Mr. G. Power (Chief Officer, States of Jersey Police):
Graham Power, Chief Officer, States of Jersey Police.
Dr. T. Brain (Chairman, Chief Police Officers’ Staff Association):
Timothy Brain, Chairman of the Chief Police Officers’ Staff Association.
Senator B.I. Le Marquand:
Yes, thank you very much, gentlemen. Perhaps if I can ... just to assist you both, I understand there may be some preliminary points that you may want to make, but before you get to those can I just plan out how I see this morning’s meeting? What I propose to do is simply to consider this morning whether there would be sufficient grounds, where it would be appropriate, to suspend Mr. Power from his post as Chief Officer of Police upon the basis of the, as I will call it, Operation Blast investigation and complaints. I am going to look at that alone. I think that is the fairest thing from Mr. Power’s point of view because I am well aware that we are all awaiting the results of the judicial review hearing. Although I could look at both together by tangling up the first with the second it seems to me it makes thing complicated. The downside of that, I suppose, from Mr. Power’s point of view is, of course, that depending on the outcome of the judicial review hearings I could subsequently then conduct a hearing in which I consider both together, if I thought that appropriate. But I propose just to deal with the one matter today unless you object to that. If you do, I will deal with both matters together.
Dr. T. Brain:
Thank you, Minister. I am expecting you to talk about the implications of Operation Blast this morning, I am not expecting to deal with the wider implications of the outcome of a matter that has not yet been decided.
Senator B.I. Le Marquand:
No, that is fine. We are in agreement. Can I also just perhaps, just to slightly simplify matters, make my position clear in relation to the third area, which is the tape recordings area. If Mr. Power were able to give me an undertaking that he would not make such tape
recordings in future without the knowledge or consent of individuals then I would not view that as being a matter which would warrant consideration of suspension, if I can put it that way. We can effectively dispose of that for the purposes ...
Mr. G. Power:
We will need to discuss that. We would want to ...
Dr. T. Brain:
I think we need to discuss that.
Senator B.I. Le Marquand:
Yes, do you want to discuss that? Okay, I am just trying to shorten the process.
Dr. T. Brain:
Thank you. I understand. I think just before we go, I think ... Mr. Power is, of course, a private citizen as well as a Chief Officer of Police. He is currently suspended and therefore not undertaking duties as Chief Officer of Police so I am just trying to understand the circumstances in which you would view him not being able to make a tape recording. Presumably it is not in his capacity as a private citizen.
Senator B.I. Le Marquand:
No, I am talking about in his capacity as Chief Officer of Police.
Dr. T. Brain:
Quite so. I will invite Mr. Power to give me some instructions.
Senator B.I. Le Marquand:
Okay, thank you.
(Adjournment)
Dr. T. Brain:
Thank you, Minister. We understand you are trying to be helpful in this matter and therefore we reciprocate in the same vein. What we must make quite clear is by considering the point that you have just made, no acceptance is made from our part that any wrongdoing was undertaken in the original tape recordings.
Senator B.I. Le Marquand:
No, that is fine. That is correct.
Dr. T. Brain:
What we are saying here is that in order to further business today and make sure that there is no unnecessary suspension, that should Mr. Power be restored to his duties as Chief Officer he undertakes not to make tape recordings of conversations until a review of the practice has been completed.
Senator B.I. Le Marquand:
That is fine. That is understood without any indication that he accepts fault in relation to that matter. That is fine. Thank you, that does slightly simplify ... I will note this is without any admission of fault. Okay, thank you very much. I understand from Mr. Pinel that you may want to make some preliminary comments in relation to whether or not I should be conducting this hearing today, is that right?
Dr. T. Brain:
We will make observations about that. I would like to clarify first a very clear understanding of what Mr. Power is accused. I understand that there are investigations proceeding and that the terms of reference of the Wiltshire Inquiry have been extended to include the so-called Operation Blast circumstances. That is not what I am seeking clarification on. I know what is alleged but I need clarification of what is Mr. Power accused. In other words, what would constitute some kind of disciplinary charge or criminal charge so that we can understand how we should conduct our defence today.
Senator B.I. Le Marquand:
Yes, the situation at the moment is that I have requested a preliminary report under the terms of the disciplinary code. That has been dealt with by Mr. Richardson who is the deputy ... I think that is the right term.
Mr. M. Pinel:
Deputy Chief Executive.
Senator B.I. Le Marquand:
Deputy Chief Executive to the Council of Ministers, who has his terms of reference - and I was consulted on those terms of reference - in terms of widening of the disciplinary issues. So, at the moment, we are in an investigatory stage. All I could indicate to you, I think, would be what might be a possible direction that things might go. If that helps you.
Dr. T. Brain:
That would be most helpful.
Senator B.I. Le Marquand:
But obviously until I get reports back I cannot do that. I think that the directions would relate to obviously issues as to Mr. Power’s knowledge or involvement in these matters but, in a sense, as I view this, this is an issue where it is an allegation ... a 2-fold allegation I suppose, firstly an allegation of secret files having been kept by the police force in relation to individual States Members, and this without reference to any actual investigations against them or in relation to them. That is the nature of the information I have been given. Secondly, as part of that issue, the obtaining of full criminal record checks on each person who was then a current States Member, without any apparent reason or justification for that. That is it very simply. I do not want to speculate as to where else that might take us but is that sufficient to clarify?
Dr. T. Brain:
What I may be struggling with, and maybe you could indulge my ignorance of Jersey procedures here, is what does that constitute in terms of a potential discipline or misconduct offence or a criminal offence. It is not that these ... we are not querying the substance of the investigation, what I need to understand is what does that amount to specifically in relation to Graham Power?
Senator B.I. Le Marquand:
Well, it could ... and I can only speculate because I have not seen the report, I am not dealing with criminal matters here but my understanding is that there could be data protection offences in relation to this and that is a matter which will be considered alongside the investigation. Those are not matters for me, and indeed the investigation of those matters would be operational matters for the acting police leadership at the moment to make decisions on. Clearly, that is my understanding that there are areas in that direction. I suppose that we would be looking at gross misconduct here, depending on what Mr. Power knew or did not know. I suppose gross misconduct would be a fair phrase for that. Potentially there could be an issue of the police force setting itself up, almost a MI5 type operation, and adopting a role inconsistent ... I am speculating but trying to be helpful. I know you were somewhat taken aback during the last proceedings when I spelt out in my final remarks the potentiality in relation to the initial things so it probably helps to realise the sort of potential we are looking at here.
Dr. T. Brain:
It does. It does indeed. My first observation therefore is that this hearing is premature, that when you have a better idea of whether there are specific matters that merit further investigation in a detailed sense against Graham Power, in other words after the completion of the preliminary investigation which you have initiated, then it would be an appropriate time to consider further suspension. It would be helpful, I think, Minister, for you if we do not consider these points in isolation each time. I think we can log the fact that I have made that observation and we will proceed with other matters as we go through this morning and then you can consider if it is helpful to you all the points I make at the end rather than say ... what I am not saying here is stop the proceedings until you have considered that point, but my observation is ...
Senator B.I. Le Marquand:
You want me to consider all points.
Dr. T. Brain:
... this is a premature hearing and that while in the event of the preliminary investigation suggesting that there is a matter that is more serious, that relates personally to Graham Power, it may then become relevant for you to consider this. There are other observations, however, I think I would make about the relevancy of further suspension procedures and you may find it helpful to consider them altogether.
Senator B.I. Le Marquand:
Yes, okay. Thank you. Okay, were there any preliminary points you wanted to make in relation to whether I could properly conduct these proceedings?
Dr. T. Brain:
Yes, there is, thank you. Yes, I will make those ...
Senator B.I. Le Marquand:
Do you want to start with those?
Dr. T. Brain:
I will make that point. I wanted to make that initial point around the premature nature of the matters but there is a question of whether you personally can preside, not in your capacity as Minister but in your personal capacity because Graham Power has made a complaint against you in which he alleges that you have breached the disciplinary code by making public statements.
Senator B.I. Le Marquand:
Could I be clear, is this in the same terms as the document which I have got addressed to the Chief Minister dated 24th June?
Dr. T. Brain:
Yes, I believe it is. Graham will no doubt tell me if we are incorrect about that. But I was about to say that on taking the advice that Graham Power took, he lodged his complaint with the Council of Ministers through a letter to the Chief Minister dated 24th June. In that letter it was alleged that you had breached paragraph 1.2 of the disciplinary code which requires all parties to maintain confidentiality while proceedings are being progressed. You made a public statement to the States and spoke to the media after you had given Graham Power written notice that you were invoking the disciplinary code. So that is the first observation that we have to make. There is a complaint in being, it is a substantive issue, that you breached ... allegedly breached paragraph 1.2 of the disciplinary code by making public statements. That is a live complaint. At the current time that complaint has been acknowledged but Graham Power has received no further notification about how that matter is being progressed. Consequently, I put it to you that there is now a conflict of interest. While I am convinced you would do your best to deal with these matters in an impartial way, there nevertheless is this underlying conflict of interest, one cannot rule out the possibility of subliminal bias no matter how much one works to avoid that, and consequently it is inappropriate that you chair these proceedings and make the decision. That is our first submission.
Senator B.I. Le Marquand:
Is that solely based on the 1.2, because there were 2 other complaints in relation to accuracy of information? I have to say that on first reading I thought there was an inconsistency between complaint one and 2 and 3 because if 2 and 3 had been complied with in the terms suggested that would have led to a greater possible ground under one.
Dr. T. Brain:
I think it is fair to say, Minister, we are not here to in any way try and deal with the complaint against you. We merely make the observation that the complaint is a substantive one, it is in being. It may have been a different matter if we had had some indication from the Chief Minister about how this matter was being dealt with. As I said a moment ago, we have merely the acknowledgment that the matter has been received. Consequently, this matter is undetermined both in terms of its scope and in terms of the way it will be dealt with. Consequently, the complaint is live, it is in being, it is substantive and there is a conflict of interests. We register that conflict of interest and that conflict of interest exists no matter how you determine the outcome of our observations. However, we are not here to address the substantive nature of the complaint. The complaint has been made, it is in being, it is in relation to you and your personal conduct and we register a conflict of interest.
Senator B.I. Le Marquand:
Yes, okay. I was puzzled by the terms of the complaint. There was a reference there to a reference being made during questions in the House to the Chief Office of Police. If you want to amplify on that because I am puzzled by that. I take it Mr. Power is aware of the existence of Hansard?
Dr. T. Brain:
I am sorry, what do you mean by that, Minister? Can you help me with that? Graham may be aware of it but I am not so please make your point.
Senator B.I. Le Marquand:
We have a Hansard publication in Jersey. He was saying: “I heard something said referring to the Chief Officer of Police.” I am trying to be helpful to point out that the text of what was said is reported. Indeed, if it assists you, I in fact have a copy of it here but if it assists you it is readily available on the internet. If you go into the States website and click the buttons for Hansard and 16th June, you will find it is section 6 of that. It is clearly stated there. I am merely pointing out where the stuff can be found in case Mr. Power is unaware of that.
Dr. T. Brain:
Thank you. I am not sure that makes any difference to our submission. I will just find out ...
Mr. G. Power:
I am aware of Hansard. I do not think it is appropriate to get talking about the substance of the complaint.
Senator B.I. Le Marquand:
It is just that I have the text of the words I used in the context of the Chief Officer.
Dr. T. Brain:
As we said, Minister, thank you very much for that. It may be very helpful for us to read that afterwards. For me personally, let me put it like this, it helps me and I am grateful for that observation but I will make the continued observation that until the Chief Minister has progressed the complaint against you, the complaint is in existence and it will remain in existence until it has been dealt with by the Chief Minister. Therefore the complaint is substantive and we register the conflict of interests.
Senator B.I. Le Marquand:
What is the status of the complaint? Because on the face of it this is a political matter, is it not?
Dr. T. Brain:
I am not in a position to discuss whether it is a political matter or not. What I would observe is that a complaint is in existence, it is against you, it is under paragraph 1.2 of the disciplinary code and until the Chief Minister has progressed the matter there is a conflict of interests. Notwithstanding, I am sure, your intention to deal with this matter impartially it cannot but be said that this is a matter that should not be before you at this current time.
Senator B.I. Le Marquand:
Forgive me, but I cannot see what the Chief Minister can do with this complaint. What remedy does the Chief Minister have in relation to such a matter? I am really struggling with this because our relationship is a political relationship. He is not a Prime Minister.
Dr. T. Brain:
Well, maybe you could help me, Minister, in understanding what the implication of paragraph 1.2 of the Ministerial Code is?
Senator B.I. Le Marquand:
I think they are pretty clear, are they not?
Mr. M. Pinel:
If I can be helpful ...
Senator B.I. Le Marquand:
I am not sure where you think the complaint is going to take us.
Dr. T. Brain:
I am sorry, Minister, I really am not going to engage in a debate about the substantive nature of the complaint against you. It is, in a sense ...
Senator B.I. Le Marquand:
But it is the existence of the complaint?
Dr. T. Brain:
It is the existence of the complaint and that the matter has not been resolved and that it has been acknowledged by the Chief Minister’s office - I do no think there is any issue about that - so the complaint is live, it is in being and I think ... if I can try to suggest this as helpfully as I can, I think it is of assistance to you to consider whether you should be hearing these matters today. There is a conflict of interest, we register its existence and that is a preliminary observation which you invited us to make. We are not here to discuss the merits or demerits of the complaint, that will be done elsewhere.
Senator B.I. Le Marquand:
You are submitting in some way this ousts the statutory powers given to the Minister under Article 9(2) of the law? “The Chief Officer may be suspended from office by the Minister which will refer the matter to the States at the next sitting and may be dismissed from office by the States.” You are saying this in some way overrides statutory powers?
Dr. T. Brain:
I am advising you to consider whether it does. Clearly we would have to consider, if you decide to maintain hearing this matter, how that would be proceeded with. We register our concern that there is a conflict of interest by virtue of the fact that a proper complaint has been made within the procedures. We are not here to debate the merits of that complaint, that will be done elsewhere. The complaint exists, it is against you personally, it is not in respect simply of your office as an office holder and that creates a conflict of interest. Minister, you are hearing these matters. You are hearing these matters. It is for you to determine how you deal with them. We are registering our concern at this point.
Senator B.I. Le Marquand:
Yes, okay, that is fine.
Mr. G. Power:
I can offer some clarification on that very quickly if you would like me to or do you want to consult? I can help the Minister with clarification, I think, in 2 points. One is paragraph 15 of the Ministerial Code of Conduct requires that any complaint be referred to the Council of Ministers. That is what the code says. The complaint was referred to the Chief Minister on the advice of the Greffier of the States, whose advice was initially sought. The second point, I do not think it is part of our case that the conflict of interest overrides the statute. What I would draw your attention to you, and Mick might be able to help with this, is that I understand that the States of Jersey Law allows the Chief Minister to designate any Minister to undertake the duties of another Minister. So the powers for the Minister for Home Affairs, under the law and under the discipline code, can continue to be exercised to the full by somebody who is designated for that purpose by the Chief Minister. That is my understanding of the States law.
Senator B.I. Le Marquand:
That is right. I think I have the power on a temporary basis to designate a Minister to cover for me because that often happens on holiday or, indeed, the Assistant Minister. I do not think that the Chief Minister has that power. That would effectively be to remove that Minister from office.
Dr. T. Brain:
Certainly you have that power, Minister, but I was not aware that the Chief Minister had that power.
Mr. G. Power:
Could I give you a little bit of history? That is when the Attorney General advised Wendy Kinnard to declare a conflict of interest you may recall that Andrew Lewis was designated to be Minister for Home Affairs in respect of all matters relating to Operation Rectangle.
Senator B.I. Le Marquand:
That is the Minister’s power of delegation.
Mr. G. Power:
I do not think we need to get into the small print of it, I was told then that the power rested with the Chief Minister or at least quite clearly that the powers under Article 9 could be exercised by somebody other than yourself. We are not saying the complaint sets those power aside, we are saying somebody else could exercise those powers.
Senator B.I. Le Marquand:
Okay.
Dr. T. Brain:
I think it is fair to say we invite you to consider that. I appreciate, Minister, that you have been most helpful to us, whenever it has been necessary, by inviting us to withdraw and consult. If you felt that was necessary now, we would obviously ... from your perspective to consider the observations - if you like the 2 observations that I have made - we would understand that.
Senator B.I. Le Marquand:
Well, I have already, of course, had time to consider this because Mr. Pinel gave me notice, and I am going hold it is perfectly proper for me to continue and, indeed, the statutory powers are not undercut. But I will give fuller reasons later on.
Dr. T. Brain:
Well, then we record our concerns and that we obviously are not in a position to physically remove you from these proceedings and we will continue with the proceedings but we register our concern that there is a clear conflict of interest here.
Senator B.I. Le Marquand:
Yes, I will give you fuller reasons.
Dr. T. Brain:
Thank you.
Senator B.I. Le Marquand:
Okay, thank you. Now, I think at this point it might be helpful again to try to simplify matters. If I asked you whether you were happy that I apply to this hearing the criteria which I did on 5th March, which I have got a copy of. I am not aware ... I have a number of copies, I am not aware that the judicial review ...
Dr. T. Brain:
One each will be ...
Senator B.I. Le Marquand:
I am not aware that the judicial review proceedings challenged the criteria, which, if you remember, arose out of submissions which were made by yourself, Dr. Brain. There is a paragraph missing. In a sense I have not included in ... I have jumped ... the one numbered 5 was 6 in my notes and I have not included all that because this was comment on the U.K. (United Kingdom) stuff but 5 gave the point I came to as a result of those considerations. I am just explaining it to you, I am not trying to hide anything from you.
Dr. T. Brain:
Not at all. That is very helpful, we do not interpret that.
Senator B.I. Le Marquand:
This cuts to the chase, as it were.
Dr. T. Brain:
I think this is most helpful, particularly if it is your intention to use similar criteria in making your assessment today.
Senator B.I. Le Marquand:
I am inviting you to make submissions - I am sorry, I am going into legalese here - on these if you disagree with them. It may be you are happy with them or it may be ...
Dr. T. Brain:
I think we can certainly address them.
Senator B.I. Le Marquand:
Yes, okay, that is fine. Again, it does help you, I think, to know what we are talking about. Right, well now it is over to you, I think, to make submissions then in relation to the matter.
Dr. T. Brain:
Well, as I say, just to reiterate, that we do therefore consider that these matters are premature. Looking very briefly at some of the issues that you have raised in your suspension criteria, I would invite you to consider paragraph 2: “Is there sufficient credible material before me disclosing matters of sufficient seriousness to merit a disciplinary investigation?” You have, quite properly, initiated a preliminary investigation. When that preliminary investigation is completed you may well be in a position to determine whether there is sufficient credible material before you to disclose matters of sufficient seriousness to merit a disciplinary investigation as, self-evidently, until that process is complete I suggest to you you are not in that position. I think there are some observations that it is necessary to make in a general sense because we are not rehearsing any kind of contribution that Graham Power might make to any future investigation today but he has been as open and helpful as he can be in the current circumstances in trying to clarify matters relating to the so-called Operation Blast and any contextual information that surrounds it. I think the first observation there is that there has never been an operation targeting States Members. There may be something that is considered about the administration of a filing system but there is not a proactive operation in relation to States Members. I think that it is really important to make an observation at this point. There obviously has been a need to handle information relating to States Members from time to time and there may well be a need to set up a filing system that is appropriate to that but that does not necessarily deliver matters of sufficient seriousness to merit a disciplinary investigation. I think there are some other observations to make very clearly at this point, which is that Mr. Power has been co-operating not only with the new matters relating to so-called Blast but with the previous Wiltshire investigation. You may or may not be aware - and I only say it in the context of helping you consider how co-operative Mr. Power is being - that he has submitted a very lengthy statement in respect of the original Wiltshire matters that constitutes really probably the fullest account that has been given by anybody to date of the investigations under the code name Haven and the subsequent searches and excavations at Haut de la Garenne. So he is co-operating fully with any aspect of the inquiry, of course within his own statutory disciplinary rights. With respect to the tape recording of any telephone calls, I would draw to your attention this extract from the Jersey telephone directory, under P where police is stated as an entry, there are various numbers there and I will just read it out for you. I am quite happy, of course, for you to have this copy although I am sure you can obtain a copy of the relevant page for yourself. “Police, States of Jersey Police Headquarters, P.O. (Post Office) Box 789, SHJE 48ZD. Please note: calls may be recorded or monitored.” Now, the recording or monitoring of telephone calls is a public statement contained in the Jersey telephone directory. If we are looking at the seriousness of the nature of any matters currently disclosed by Operation Blast then I would ask you to consider them fully in the context of that very, very public statement that is made in the Jersey telephone directory. There are some other observations that I wish to make which do relate to the points that you have helpfully reminded us of here. I received a copy of a letter a few days ago that made it very clear that you had reconsidered the matter of the original suspension for the Wiltshire investigation and that you considered that no matters had changed and therefore your original decision, and the original suspension, remained valid and in place. Consequently it is self-evident that Graham Power today is still suspended from his role as Chief Officer of Police of the States of Jersey. I have made lengthy observations on 2 previous occasions about why that should not be the case but you have clearly disagreed with those observations and he remains suspended. To put it simply it is absolutely not necessary therefore to suspend him further. I am struggling with the concept of a double suspension but, nevertheless, it is unnecessary and you have indicated that that is unnecessary in your previous correspondence. I would suggest to you that when you have the benefit of your preliminary investigation and in the event that you decide that the circumstances relating to Graham’s original suspension have changed so that you might consider reinstating him, that would be the point to consider a further suspension in respect of allegations arising from so-called Operation Blast, which does relate to my original point that today’s proceedings are premature. But I would make a broader point at this point that a further suspension is unnecessary. If I refer you to your own criteria at paragraph 5(e), all of these considerations come under the necessary and proportionate test. If I can just address the proportionality of this issue now. Proportionality comes in partly through the necessity principle. I suggest to you that if it is not necessary it is therefore disproportionate to inflict so weighty an outcome as a suspension on any individual, much less a Chief Officer of Police, who is fully co-operating with the investigations and who has, at no point, interfered with or sought to interfere with the investigations. While I am quite sure that it is not your intention to give an indication of the outcome of the investigations in any subsequent misconduct hearing I suggest that you are inadvertently doing so. I have observed on previous occasions that it is very, very difficult for a Chief Office of Police to return to duty after suspension even if fully exonerated. This is for a variety of reasons but not least of which is around perception. Inevitably if there is a suspension of a chief officer it carries with it pejorative and wholly negative connotations. It makes less likely a fair and proportionate outcome simply by virtue of the fact people will have assumed that with a chief officer, somebody of that status, being suspended for such a long time there must be something substantive relating to the original matters. There is the whole question then of confidence that has been raised. This, by a double suspension, a further suspension, makes a fair and unprejudiced outcome even less likely. That, I must make clear, takes place in the context yet again of observations that I have made elsewhere that there is no equality of arms here. We are seeing the fact that there is the full panoply of the States with all its sophistication and capabilities raged against an individual who is, as yet, unrepresented in legal terms. The best he has to offer, I am afraid, is myself. So this is yet another example of disproportionality being displayed against Mr. Power.
Senator B.I. Le Marquand:
Is Mr. Power saying that he is unable to afford to obtain legal advice, because the concept of equality of arms takes into account normally the person’s ability to obtain legal advice?
Dr. T. Brain:
I am afraid you must be aware of the cost, even I am aware of the cost, of engaging fully qualified advocates in the Island of Jersey. There may well come a point where Mr. Power will be necessitated to engage a fully qualified advocate but that is something that will have to be judged on our own proportionality test. What I am saying is that there has been no aid given to Mr. Power when he had every reasonable expectation as Chief Officer of Police to have received such aid under his previous understanding to what he was entitled. But let us keep focused on the other issue, which is the necessity principle, now. I will reiterate that it is unnecessary to suspend him (a) because he is already suspended and you have indicated recently that you have no intention of lifting that suspension and (b) that the ground for requiring a suspension in terms of his potential - and I do emphasise potential - interference with the investigation are in any case without substance because he would not do that as an individual, as a man of integrity, but he is not in a position to because he is already suspended. A further suspension, in other words, is totally superfluous and you are acting, if you did suspend him, unnecessarily and therefore, by continuance, disproportionately. However, I am confident, Minister, that you will consider the proportionality and necessity of these issues as you have indicated with your criteria marked one to 5 and that you will therefore find a further suspension unnecessary. I would invite you to let that matter lie on the table until, and if, the circumstances of the original suspension change. Thank you.
Senator B.I. Le Marquand:
Okay, I will just think if I have got any questions or points I want to give you an opportunity to address me on before I start to consider a decision. I think the issue of what matters I have before me, in a sense presumably I should be considering the initial letter of Mr. Warcup dated 2nd June and Mr. Power’s document prepared in response to the request. Presumably you want me to consider that as well the former.
Dr. T. Brain:
The principal value of that this morning is not to invite you to consider them in respect of the merits or demerits of any investigation concerning Operation Blast, save to note that there are reasonable explanations given in there. But it does serve to illustrate that Graham Power is co-operating with any new process. I think that is the crucial point to make. There is no sense of spoiling tactics or anything like that. He is fully co-operating in an open and helpful manner. I think that is the most important point to make about ...
Senator B.I. Le Marquand:
But you are not asking me to consider any matters outside of those 2 because I know one of the issues in the Wiltshire review of course was the issue of the A.C.P.O. (Association of Chief Police Officers) report. There is no other matters you are asking me consider?
Dr. T. Brain:
Sorry, which A.C.P.O. report.
Senator B.I. Le Marquand:
Sorry, did I use the wrong term?
Dr. T. Brain:
I do not know, just clarify for me.
Senator B.I. Le Marquand:
Because you have ...
Dr. T. Brain:
You must understand, Minister ...
Senator B.I. Le Marquand:
... actively involved with those.
Dr. T. Brain:
... I am not representing Mr. Power in respect of the judicial review so you are probably better ... if I ask what you might call a dumb question, please indulge me for this morning.
Senator B.I. Le Marquand:
I just want to check that you are not asking me to consider any other matters other than those 2 which I have delineated or set out.
Dr. T. Brain:
I am addressing the necessity and proportionality principle of whether a further suspension is necessary. I am not addressing the question of whether ... there are more substantive issues around Blast. You have obviously information around Blast and you are most welcome to take that into account.
Senator B.I. Le Marquand:
Okay, as long as it is not anything else.
Dr. T. Brain:
Anything else you want to say?
Mr. G. Power:
No.
Senator B.I. Le Marquand:
That is all right. Okay, well thank you very much then for your submissions. I am now going to take some time to consider ... we have finished quite early with the submissions. I always underestimate the length of time it takes me to decide things. I think I may be in a position to give a decision by 12.30 p.m. If I am still thinking or writing notes or whatever and you are back then I will get Mick to come out and inform you. I do not think I am going to be much before 12.30 p.m.
Dr. T. Brain:
I just wonder whether it would be helpful if I gave you my telephone number then?
Senator B.I. Le Marquand:
Yes.
Dr. T. Brain:
Rather than, if you will excuse us, the corridor is not the most harmonious place to sit for ... Bear with me a moment and I will give this to you.
Senator B.I. Le Marquand:
Both the P.S.(?) and the other establishment has some nice external seating arrangements.
Mr. M. Pinel:
This is your mobile?
Dr. T. Brain:
Telephone number removed by VFC.
I will switch it on because it is obviously off at the moment.
Mr. M. Pinel:
Okay. Thank you.
Senator B.I. Le Marquand:
Excuse me not rising too precipitously, I strained a calf muscle playing cricket last night.
Dr. T. Brain:
I am very sorry to hear that. We note your observations.
Senator B.I. Le Marquand:
I attempted to rise but it hurt me then.
Mr. M. Pinel:
I will turn off now, Minister.
(Adjournment)
Senator B.I. Le Marquand:
I am going to give a decision now in relation to the matter which I dealt with ... heard this morning. I am not considering the issue of the tape recording of telephone calls because I do not view that as a sufficient ground to warrant suspension and particularly in the light of the undertaking given by Mr. Power this morning, which undertaking was given without admission of fault. I am considering solely the issue as to whether it is appropriate for me to exercise the power given to me by statute under Article 9(2) of the Police Force (Jersey) Law 1974 to suspend Mr. Power from office as the Chief Officer of Police. That power is also referred to in paragraph 2.3.3 of the Disciplinary Code for the Chief Officer of Police. I am doing so on this occasion solely in relation to the matter of the investigation concerning Operation Blast and the possible disciplinary matters which may arise therefrom. I am not looking at that in parallel with the existing disciplinary matters in relation to which Mr. Power is currently already suspended but I have given notice that I may at a later date look at the 2 in conjunction with one and other as I would indeed be entitled so to do. The reason I am not doing that is to try to be absolutely fair to Mr. Power and because of the fact that that earlier decision is currently subject to judicial review proceedings with a decision having been reserved by the Royal Court in relation thereto. I am going to begin with the preliminary point in relation to which I gave my decision without giving any reasons. I said I would come back to that and give reasons. Dr. Brain brought to my attention the complaint made by Mr. Power to the - I am sorry I have written Chief Officer of Police, that does not make sense - Chief Minister in relation to an allegation of breach by myself of paragraph 1.2 of the disciplinary code, in particular the words: “All parties involved in the operation of the code will maintain confidentiality while proceedings are being progressed.” The allegation is that by making a public statement in the States and answering questions thereon in relation to Operation Blast I have breached that code, and as there is an outstanding complaint against me I have a conflict of interest in this matter. The suggestion is that I exercise my power to delegate, either to another Minister or to my Assistant Minister, my powers in relation to disciplinary matters concerning Article 9(2) in the disciplinary code as far as suspension is concerned. Maybe the submission was wider than suspension but for the purposes of today it seems to me as far as suspension is concerned. I find no merit in this argument for the following reasons. Firstly, because the Police Force (Jersey) Law 1974 Article 9(2) gives the power of suspension to the Minister. Originally that power was vested in the committee who could not have delegated it, now it is vested in the Minister. In my view the clear intention of the statute, which is repeated in paragraph 2.3.3 of the disciplinary code, is that the Home Affairs Minister should deal with such matters unless there were a very good reason not so to do. The question is does the making of this complaint provide such a very good reason. It was only the 1.2 of the code point of the letter which was put before me but in fact the letter of 24th June 2009 contained 2 other points, which are not put before me, which suggests that I should have provided more information to the States in a way which would apparently have constituted a more serious breach of the code. It is hard for me to take seriously complaints which are so self-evidently contradictory. However, today I have been asked to look only at 1.2 and to disqualify myself based only on the fact that the complaint is pending. Frankly, any reasonable person looking at Hansard will see that I, as Minister, was endeavouring to comply with 1.2 while also fulfilling my duty to the States to inform them of a matter of great public importance. Furthermore, even if there were a breach of 1.2 then what would be the effect of that? The effect could be to give rise to a claim for damages for Mr. Power against the Minister for breach of contract. I cannot see that such a possible claim could ever constitute a very good reason for the Minister for Home Affairs to stand down from dealing with the current disciplinary matters where the statute clearly envisaged that that is what he would do. One might as well say that because Mr. Power and the Minister are currently engaged in disputed judicial review proceedings that that disabled the Minister from further considering matters or that because the Minister has initiated an investigation he should be debarred, or because he has previous considered the suspension of Mr. Power he should be so debarred. None of those matters would have any merit and, in my view, neither does this submission. I am not sitting here as a judge but as a Minister considering the exercise of a ministerial power granted by statute. I come now to the suspension point itself. I handed out a copy of the suspension criteria which were based upon the notes which I made on the meeting of 5th March 2009. I, in fact, had typed out paragraphs 1, 2, 3, 4 and 6 of those notes. I have repeated 5 of those references ... to (5) of those notes in paragraph 5 of these notes because there was no final decision, just discussion contained therein. I will not read them out now because I am going to read them out paragraph by paragraph later on. I have before me as materials to consider, Mr. Warcup’s letter of 2nd June 2009 and Mr. Power’s document of 16th June 2009. I am not being asked to consider anything else. The main points put before me were: (1) that it is premature, prior to the investigation, for me to proceed at this point to a suspension decision; and (2) that such further suspension is unnecessary as Mr. Power is already suspended. There are subsidiary points in relation to this such as equality of arms, which I will also deal with later on. I am going to take my notes slightly out of order here because I think this would be more helpful. Dealing first of all with the premature aspect. I have sufficient information before me to make a proper suspension decision. Indeed, by the very nature of such matters the person making the decision will always only have limited materials before them prior to a full investigation of the matter. I do not find any grounds ... any merit in the submission this is premature. Dealing with the further suspension argument, there is of course an issue here which in fact has really arisen by virtue of Mr. Power’s own actions and that is this. What if the Royal Court were to overturn the previous decision on some technical reason but it was appropriate for suspension to stand in its own right on this matter? That is a possibility and that possibility is created, indeed, by Mr. Power’s own actions in challenging the earlier decision. This is not an overkill situation, this is purely me looking to see if that possibility were to occur would it be appropriate for there to be a suspension on this other matter in its own right, and that is what I am doing. In relation to the equality of arms point, there is no issue of equality of arms, no valid issue here. Firstly, because Mr. Power, who is still being paid for his role as Chief Officer of Police, is well able to afford legal advice. Secondly, because the relevant equality of arms principles almost certainly do not apply to a suspension hearing. Taking on board all the other submissions which I have received, I am now going to proceed to analyse the criteria and the case in relation to the criteria set out in the suspension criteria document which I will attach to these notes. Firstly are the allegations/circumstances sufficiently serious to allow the suspension power under Article 9(2) of the Police Force (Jersey) Law 1974, as dealt with under the disciplinary code of the Chief Office of Police and particularly under section 2.3.3, to come into play prior to a hearing. At the request of Dr. Brain I tried to give some idea of the potential seriousness of disciplinary charges - if that is the right word - which might eventually ensue from the current investigation. Of course I spoke about the issue of files or sections of files having been created on each States Member, apparently without there being any operational reason for that in terms of an investigation concerning them or a matter concerning them. I spoke about the potential issue of States of Jersey Police Force having, as it were, taken on an MI5 type role in relation to monitoring activities of States Members and I talked about the issue of the obtaining of criminal records on people who are not suspected of any criminal matter. All of those matters ... of course the involvement of Mr. Power in this, his responsibility for this, his knowledge of this are all matters which are subject to investigation and which I will have to consider in due course. My answer to one is, yes, the allegations/circumstances are sufficiently serious for this purpose. The second section: “Is there sufficient credible material before me disclosing matters of sufficient seriousness to merit a disciplinary investigation?” My answer to that also is, yes, clearly there are in Mr. Warcup’s letter of 2nd June. Three: “Is it necessary and proportionate to suspend Mr. Power?” I leave that over because that comes back in under 5(e) and I will deal with that as a final issue before me. So I now move on to paragraph 5 and taking them one at a time. Paragraph 5(a): “Factors to be looked at together, the likelihood or unlikelihood of eventual dismissal.” As I said on the previous occasion, based on limited materials, this is always a difficult test and I am not in any way seeking to prejudge the outcome of any investigation but my view at this moment in time is that there is a very serious possibility of dismissal in relation to these matters if Mr. Power were shown to be responsible for the compilation or had knowledge of the compilation of these files. Paragraph 5(b): “The seriousness of the matters investigated.” I have already commented that these are, in my view, very serious. Paragraph 5(c): “The risk posed to the Wiltshire investigation by virtue of Mr. Power returning as Chief Officer while the investigation continues.” The difficulty here is again similar to the difficulty I had on the earlier occasion. In this particular case the involvement of other serving police officers, who would be junior officers of course to Mr. Power, in the investigation is vital to its success in finding out who set this up, why it was set up, et cetera, et cetera. The question arises, how can this properly be assured while the Chief Office of Police would remain in post? My answer to that is it cannot and therefore there is a substantial risk. Paragraph 5(d): “The issue of public confidence in the Jersey Police Force.” There is a major issue of public confidence. I think it is fair to say that the response of the Members of the States of all political persuasions to this revelation demonstrated that this was a matter of serious public confidence. Paragraph 5(e), I come finally to the necessary and proportionate test. I have already dealt with the gloss on the necessary test put by Dr. Brain in the context of an overkill. Well, my view - and it is inevitably a view that is going to flow from the decisions I have already made - is that it is both necessary and proportionate for me to suspend Mr. Power in relation to the Operation Blast matters. That is the decision which I now make. I wanted to say that it is not my intention to refer the matter of this further ground for suspension to the States of Jersey under Article 9(2) because of the overkill situation. I do not intend to make a statement in the House concerning that. I intend to view this as a continuation of the existing suspension although I decided it separately in this way. Now, gentlemen, there are one or 2 matters I wanted to just mention to you in closing this morning. The first one is I need to bring to your attention the fact that I am fairly shortly anticipating receiving a report from a firm of accountants who have been investigating financial issues, use of money in relation to this investigation. I have not viewed that as being part of the Wiltshire matter, although I understand that they have been working together to a degree. But I just mention that because that is going to, I think, come out fairly soon and may well be made public, either by my actions or else elsewhere. So there is that issue. Obviously if I find that relevant to disciplinary matters I will forward on a copy of that report.
Dr. T. Brain:
Sorry, can I just seek clarification? Which investigation are you talking about?
Senator B.I. Le Marquand:
There is an issue raised as to the proper use of monies in relation to Operation Haven.
Dr. T. Brain:
Thank you.
Senator B.I. Le Marquand:
That is what I am talking about. That is an issue which, of course, has been looked at in parallel by the P.A.C. (Public Accounts Committee), the Public Accounts Committee have raised issues and matters have been going on in relation to that in parallel. I instituted, earlier in the year, a report in relation to accounting practices of what happened in relation to that. So I mention that to you because Mr. Power may not have been aware that matter is happening.
Dr. T. Brain:
I certainly was not aware of it.
Senator B.I. Le Marquand:
No, I have to say I had forgotten about. It was so long ago that I had temporarily lost track of it. I had forgotten I had done that but that is happening. I would have mentioned it earlier otherwise but that is what I am trying catch up on because that has come to my attention recently. The other thing I wanted to mention is that the direction things will go now, obviously I will continue to conduct monthly reviews without a hearing, unless a hearing is ... sorry, this is not a hearing, this is a meeting. Unless a meeting is specifically requested. Unfortunately, there continue to be further delays in the completion of the Wiltshire investigation. I understand that they are going to complete the Operation Haven investigation first and then go on to the other matter so that matters will become available to me ... obviously as and when reports do I will start reading them and start considering them and starting a movement towards making decisions as to whether this should move to a formal disciplinary hearing or not. I am just trying to track what is happening for the benefit of Mr. Power and yourself, Dr. Brain. If we move eventually on to a formal disciplinary hearing then what I would anticipate is that there would be a preliminary step in that in which there would be a meeting to discuss procedure and matters of that nature first. I think that must occur because various issues will arise in relation to that. I am merely showing my thinking in relation to this, should we end up down this road. But thank you, gentlemen, for your attendance today. I thank you, Dr. Brain, for coming over and I hope you have a very pleasant flight back. The weather has indeed been quite kind to you today.
Dr. T. Brain:
Thank you, Minister.
Mr. M. Pinel:
I will turn the tape off now.
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