The Attorney-General and the Law

Economies with the Truth

In a Black Widowers detective story by Isaac Asimov, an individual is the chief suspect for stealing from a safe some cash and some bonds. He declares "I did not steal the cash or the bonds". And we are told he is pathologically honest - he never tells a lie. So how did he do it? The answer, as supplied by the clever Henry, is is discovered when Henry asks him: "Did you steal the cash AND the bonds?" and that is a question he cannot answer without admitting his guilt. That came to mind when reading recent reports about the Attorney-General, when he appears not to have any involvement with the police raid, but later admits that he did. Is he lying? Like the thief in the Asimov story, if you follow the wording closely, you will see that he is not.

The JEP reported the story as follows:

ATTORNEY General William Bailhache has denied that he instigated the arrest of Senator Stuart Syvret on suspicion of breaching data protection laws. The Senator was arrested outside his Grouville home on Monday morning and held at police headquarters for some seven hours, much of the time in a cell. But Mr Bailhache  says that the arrest has nothing to do with repeated criticism that the Senator has heaped upon him.

When reading this, the main impression one gets is that "it was nothing to do with me". But with a typical lawyer's acumen, the words are precise, and it is what they do not state that is as important as what they do. What he does not say here, and never said, was (a) whether he was aware of the raid; (b) whether he advised the police on the legal aspects of the raid in advance. Because people reading the news report came away with the superficial impression that he had not any involvement in the raid, they now think that he lied. But he clearly did not; it was rather that he did not reveal - at the time - the whole truth. But we now know the answer to (a) - that he was aware of the raid.

Now the recent news on the subject appears at first sight to contradict this impression. Again, from the BBC News and the JEP:

The attorney general has said a search of a senator's home, which was carried out without a warrant, was legal. William Bailhache told the States he was confident police followed the law when they searched Stuart Syvret's home after his arrest earlier this month...The attorney general, who said he knew about the search in advance, was responding to a question by Deputy Trevor Pitman.

During questions from Deputy Trevor Pitman, he also said that he had been aware in advance that the Senator was suspected of committing offences under the Data Protection Law and of the decision to search his home.

Are we then to believe that the police - as well as informing the Attorney-General of their intentions, did not ask for advice or were not given advice on what they could and could not do - including the search of premises without a search warrant - item (b) above? Again, nothing has in fact been said one way or the other by the Attorney-General on this matter, and should it emerge that there was considerable involvement in giving advice beforehand, this will not mean that he has lied, but simply been "economical with the truth".

Meanwhile, no apology seems to have been issued to Deputy Labey, who has suffered with her children, what appears to amount to a kind of legalised burglary, when the police raid included searching through her private possessions and those of her children.

Quis custodiet ipsos custodes?

DEPUTY Carolyn Labey has attacked the States police for raiding her home during the arrest of Senator Stuart Syvret. She says that it was unlawful and unnecessary. In a strongly worded statement, the Deputy said that she felt violated by the search and added that her elderly mother had found the raid more hostile than the Blitz.... Deputy Labey, who was on holiday abroad with her children at the time of the raid, condemned the police action as over the top. She said: 'I struggle to find words for the shock, upset and sense of violation felt by my family and myself at what has happened.'

Now under the law, a police officer may only exercise powers of entry and search if he has reasonable grounds for believing that the person sought is on the premises and he can only search them to the extent that is reasonably required for that purpose.

I would not have thought this was "reasonable exercise" of powers of search. I can see the need in cases of terrorism, but here, in these circumstances, it seems beyond belief that the police can just descend and - in effect - ransack a property - without the owners' knowledge or consent or a search warrant. The last time this kind of thing happened in Jersey occurred during the period 1940-1945, which is undoubtedly why Freddie Cohen voted for a debate on the subject, and against its postponement. The public needs to know that there are safeguards against the police acting like "Gene Hunt" in "Ashes to Ashes", and their human rights are not violated.

A Game of Top Trumps by the Attorney-General

The law on these matters is also inconsistent. Article 29 allows the police to search without a warrant, but the Data Protection Law specifies that investigations require a search warrant to be issued. It seems that when the laws contradict one another, the Attorney-General is free to pick and choose which one can "trump" the other one, and there is no consistent legal framework for saying when one law abrogates another.

In order to determine which law has priority in any particular case, judgment must be exercised, hence the need for judges. But the main principle, laid down in International Law, is

lex posterior derogat priori - more recent law prevails over (abrogrates, overrules, trumps) an inconsistent earlier law. One test that is applied in circumstances when (1) both customary and treaty sources of law exist and (2) these two sources cannot be construed consistently.

Aharon Barak, in his "Purposive Interpretation in Law" (2005), explains how this works. He writes:

What happens when two norms of equal normative status, embedded in different texts, contradict each other. The typical example is a contradiction between provisions in two statutes or two regulations, but it can also happen with two contracts between the same parties, or two wills of a single testator. Of course, judges should first exhaust every interpretative possibility of showing the contradiction to be "imaginary." But what happens if the contradiction is real. The generally accepted rule is that the later norm trumps the earlier norm: lex posterior derogat priori: a later statute trumps an earlier statute, a later contract trumps an earlier contract; a later will tramps an earlier will. This rule reflects the autonomy of the a creator of the norm. Just as he or she is authorized to create a norm, so is he or she authorized to create a contradictory norm that (implicitly or explicitly) nullifies the original norm.

Now the two laws in question are:

    Police Procedures and Criminal Evidence (Jersey) Law 2003
    Data Protection (Jersey) Law 2005

So clearly the Data Protection Law, with its requirement for violations to be investigated with a search warrant, should take priority? Under International Law, this would appear to be the case. Has the Attorney-General been using "Lex posterior derogat priori" as a guiding rule for his judgment? Or if not, what other grounds has he for prioritising an earlier law over a later? Is it his private game of Top Trumps, or can anyone join in?

Links:
http://people.virginia.edu/~rjb3v/latin.html
http://www.thisisjersey.com/2009/04/08/syvret-it-wasnt-me-says-ag/
http://news.bbc.co.uk/2/hi/europe/jersey/8023514.stm
http://www.thisisjersey.com/2009/04/29/syvret-search-was-legal-confirms-ag/
http://www.thisisjersey.com/2009/04/22/syvret-raid-i-felt-violated/