Wednesday, 17 March 2010

The Warcup Letter

From my reading of the minutes of the second review meeting (thanks to Voice for Children Blog), the suspension of Graham Power seems to be specifically based on allegations made by David Warcup, who is at present Acting Chief Officer, and who is now Chief Officer designate. Senator Ian Le Marquand makes this plain when he says:

The decision which I am making today is based upon Mr. David Warcup's letter of 10th November 2008, Briefing Notes of 12th November 2008, and the accompanying images and the submissions made to me today by Dr. Timothy Brain on behalf of Mr. Graham Power.

Dr Brain, the recently retired Chief Constable of Gloucester, commented on the significance of this letter:

I think we do have to enter into consideration of some of the facts that might have emerged from the investigation because it seems to me that a great deal of significance was played on the David Warcup letter of 10th November. That certainly does not have the status of a preliminary investigation. It amounts to a list of allegations. Now, it is clear from the David Warcup letter of 10th November that he had spoken to the Chief Executive in September about his concerns. If I understand the situation correctly he had not been in post for many weeks at that point. It seems also from the David Warcup letter that there was a further conversation with the Attorney General, and I quote: "Confidential matters as well as my concerns [that is the concerns of David Warcup] regarding the conduct of the inquiry."

What did the letter allege? And was this well-founded? Dr Brain commented on each of these points in turn, and refuted them - "I will try and simplify some of the issues raised by David Warcup."

These are available on Voice's site, but I've bullet pointed them for greater clarity, and singled them out from the mass of reportage on those minutes. It will be seen that Dr Brain, who has this year retired as Chief Constable of Gloucestershire, has a firmly argued rebuttal of each point made. So why did David Warcup think they were justified? And should the next Chief of Police be someone whose judgement of the situation is seriously called into question by the comments made by Dr Brain? And how could he have the judgement that there had been no "serious corruption and malpractice" in the police before Mr Power's tenure when the facts (and Dr Brain) blatantly contradict that?

I'd also like to briefly summarize Dr Brain's qualifications for speaking on these matters. This is a brief précis of some of his achievements. I don't think, on reading them, that one can take his judgement of these matters lightly; he is a vastly experienced police officer who also has achieved high standards in the world of academia - in short, a very clever man:

Dr Brain has received a number of accolades, including the Queen's Police Medal (QPM) in the 2002 Birthday Honours. He was elected a Fellow of the Royal Society of Arts, Manufactures and Commerce (FRSA) in 2004. He was elected a Companion of the Chartered Management Institute (CCMI) in 2007. And in the Birthday Honours of June 2008, Dr Brain became an Officer of the Order of the British Empire (OBE) for his services to the police and community. He also played a major role in shaping police strategy through the 90s and 2000s - a time which saw a watershed in the police service with the introduction of PACE - the police and criminal evidence act - and the creation of the Crown Prosecution Service (CPS). More recently, Dr Brain received an Honorary Doctorate of Laws at Gloucester Cathedral in recognition of his service in Law Enforcement, and in particular to the county of Gloucestershire.

Here are the allegations made by the Warcup Letter, and Dr Brain's comments. Dr Brain was a leading member of ACPO, so he is speaking from firm knowledge of his case. His comments on "financial mismanagement" are also worth noting, as this was raised as an issue by Ian Le Marquand only this morning.

I would point out that Dr Brain is acting on behalf of Graham Power, and is not, insofar as that is the case, completely independent. He has to accept Mr Power's statements at face value where those are not corroborated by other reports, and where there are differences in recall between Mr Power and others, he is likely to privilege the accuracy of Mr Power's point of view. Nevertheless, as he is also a historian as well as a policeman, I would suggest that his handling of sources will, for the most part, be impartial rather than partisan, and where there are ambiguities or matters of opinion, it will be seen that he does state these as a good historian should be expected to do.

1) Poor Command Structure

The first one was that a Gold - Silver - Bronze command and control structure was not put in place. That is an important point raised by David Warcup. In fact, it is his first point and a cardinal point for much of what follows. I have to tell you that the institution of a Gold - Silver - Bronze command and control structure in the context of murder and major investigations is entirely a matter of judgment. It would not seem to me to be necessary in the circumstances of the Island of Jersey. It certainly does not represent a breach of discipline, or amount to gross misconduct. The inference is that a Gold - Silver - Bronze command and control structure would have been put in place in England and Wales under A.C.P.O. and N.P.I.A. (National Police Improvement Agency) major murder and associated crime investigation guidelines. In fact, the A.C.P.O. murder investigation manual 2006 only requires that a Gold group be created, not a Gold - Silver - Bronze command structure, if an investigation is also declared a critical incident.

What the A.C.P.O. murder investigation manual does require is that a senior investigating officer is appointed and this Graham did; first in the form of a detective inspector, who ran the investigation for the first 18 months and then as the matter gathered seriousness, he properly reflected the seriousness and status of the forthcoming investigation by putting his own deputy in as S.I.O. (Senior Investigating Officer). I think this clearly emphasizes the seriousness with which Graham approached the whole question of the historic child abuse inquiries and the Haut de la Garenne investigations in particular.

Now, National Police Improvement Agency professional practice, and I emphasize professional practice, advice is that for the management of critical incidents the guidelines, the professional practice guidelines, provide assistance for policing, and I emphasize these words "in the United Kingdom." It is contained on the inside page of the practice advice. This practice advice contains information to assist policing in the United Kingdom. So, there is no automatic transference from the practice advice of the N.P.I.A. in the United Kingdom to the States of Jersey. The introduction to that practice advice also states that it should be used by chief officers to shape police officers to ensure that the general public experience consistent levels of service. It goes on: "The implementation of all practice advice will require operational choices to be made at a local level in order to achieve the appropriate police response." It will therefore be noted that the practice advice on critical incident management applies strictly to the U.K.

However, even if it were to apply strictly to the States of Jersey it still requires adjustment and choices to be made at a local level. It does not remove the judgment of a chief officer or any other senior rank involved in the incident. Now, the N.P.I.A. practice advice was created in order to ensure that incidents which might become critical received an appropriately high level of response at their instigation. It can in no way be suggested or inferred that the States of Jersey Police underestimated, or understated, their initial or subsequent response to the emerging historic child abuse inquiry and the specific investigation at Haut de la Garenne.

A critical incident is defined by A.C.P.O. as, and I quote: "Any incident where the effectiveness of the police response is likely to have a significant impact on the confidence of the victim, their family, and/or the community. It will be noted that the order of priority is the victim, the family, and the community." Both the historic child abuse inquiry and the Haut de la Garenne investigation conspicuously put the needs of the victims and their families first, but they still had regard to the impact on the wider community, given the need to ensure that the chain of alleged abuse was finally halted and that the victims and their families were protected from threat and intimidation. The N.P.I.A. guidance goes on specifically to say that each incident must be assessed on its own merits. Those are the words used: "Each incident must be assessed on its own merits." It adds, and I quote: "There is an obligation on chief officers to ensure that critical incidents are not only declared, when it is necessary and appropriate to do so, but also that the response is proportionate to the scale of the incident." The response is proportionate to the scale of the incident.

Respecting the command structure, the practice advice simply states that there should be: "Unambiguous command and control." The N.P.I.A. advice does indeed allow for a tiered response at 3 levels; local, cross-border, and force. Crucially these are only suggested. That is the word used "suggested." So, the tiered response is not a mandate, even within a manual
that amounts only to practice advice and in which flexibility of decision-making is not merely permitted but encouraged and which explicitly applies only to the United Kingdom.

The practice advice furthermore relates to the structures and circumstances of forces in England and Wales and would be manifestly inappropriate in circumstances which are as compact as those on the Island of Jersey. It should be noted that in the last H.M.I.C (Her Majesty's Inspectorate of Constabulary Inspection) for the Island the matter of the arrangements for major investigations or critical incidents was not raised. Explicitly, it did not recommend the adoption or even the adaptation of any A.C.P.O. N.P.I.A. guidance or practice advice on major investigations or critical incident management.

Therefore, the institution of Gold - Silver - Bronze and the command structure, in the circumstances of the historic child abuse inquiry and the Haut de la Garenne investigation is at most a matter of professional judgment, even argument, and certainly not a matter per se of gross misconduct which merits the imposition of an initial suspension or its continuance now.

2) Key Partners not included

The second issue raised in the David Warcup letter is that key partners were not included at a strategic or operational level. There were sound operational reasons for not including key partners in the investigation, as suspicion had fallen on a number of senior individuals in both the departments of education and social services. The involvement of the N.S.P.C.C. (National Society for the Prevention of Cruelty to Children) which Graham instigated, was a perfectly valid alternative.

3) Independent Advisory Group

The use of an independent advisory group was not effectively managed. It is a matter of record that the Attorney General viewed the involvement of an independent advisory group as dialogue with potential jurors and that he wanted the group disbanded on the basis that it was a U.K. structure with no proper place in a small jurisdiction and that its activities could be seen as prejudicial to a fair trial. I in no way invite a critique of the Attorney General's decision, but I do ask you to observe that it can hardly be levelled as a reason for suspending or investigating Graham.

(4) Bad Media Strategy

Although a media strategy was developed, it is clear that its application led to an unprecedented level of media interest and public concern. Having dealt with the Gloucester floods of July and August 2007, Minister, I can assure you that Chief Officers of Police are not in control of unprecedented levels of media interest or public concern. So, it is not really clear how this amounts to criticism of the Chief Officer. It certainly was his job to ensure that there was a media strategy in place and this he did. He can in no way be held responsible for the media circus that followed.

(5) Improper disclosures to media and breaches of Data Protection

That there had been improper disclosures to the media and breaches of data protection. There is no suggestion that any of this is attributable to the Chief Officer, even if they have occurred, and it is the position of Graham that he knows nothing of any improper disclosures. He certainly did not sanction any.

(6) No Attempt to Correct Inaccurate Reporting

Where inaccurate and misleading reporting did occur there was no evidence of any attempt to issue corrections. That is not the case and examples of correction can be given, although I would suggest that that is probably more appropriate for the investigation and any possible tribunal.

(7) The adversarial and combative stance of Lenny Harper

The adversarial and combative stance adopted by the S.I.O. was allowed to continue unchecked. This is entirely a matter of opinion and it certainly is not a disciplinary matter for the Chief Officer. It certainly does not merit something that would amount to suspension, but in that context I would invite you to consider some of the statements that were made by Mr. Harper on 31st July in this statement that was recorded by the BBC then.

He said: "For the moment it is unlikely that a murder inquiry will be opened. It has so far been impossible to date the remains precisely. We are pinning our hopes very much on the process of carbon dating. The latest information we are getting is that for the period we are looking at it is not going to be possible to give us an exact time of death. The small number of bones that we have carbon dated up to now have given us different readings. On one bone we were told there was a probability that they died in 1650, but also a smaller probability that they had died in 1960. So, while that possibility does exist then you have to ask your question ." I could go on. This hardly sounds to me like a combative media statement.

(8) Allegations of corruption within the States of Jersey Police

Allegations in the media of corruption within the States of Jersey Police by the former S.I.O. have not been evidenced. The Chief Officer will plainly state that there is an abundance of evidence of serious corruption and malpractice in previous years. The reports of Her Majesty's Inspectorate of Constabulary prior to his appointment described a failing force with significant problems of standards and performance. There is now a well-documented record of robust actions taken by the Chief Officer since his appointment to address and turn around this culture.

(9) Financial mismanagement

An absence of financial controls. This simply is not the case. The Chief Officer will assert that he was not the accounting officer in the States of Jersey Police. This is a matter of legal status, and that he did formally table financial issues to the appropriate accounting officers at fortnightly meetings.

(10) No grounds for a search at Haut de La Garenne

Media reports have suggested that children have been murdered and buried at Haut de la Garenne. An assessment of the evidence casts significant doubt on this hypothesis. The evidence on which the searches were commenced was not strong and does not appear that there were grounds to commence a search of the home at Haut de la Garenne. I will refer you once again to that media statement of 31st July. But it is simply inconceivable that once information was received that a thorough search and excavation of the home at Haut de la Garenne was not carried out. To do otherwise would have risked justifiable accusations of a cover-up.

(11) Misidentification of Artifacts

I paraphrase here. The skull that was supposed to be found was not a skull. The shackles were not shackles and the cellars were in fact voids under the floor. Some facts. It was a scientist that originally investigated the trench and it was that scientist who identified an item of remains as a skull.

Initially, the Oxford laboratory that inspected that remain stated that it had extracted collagen which can only come from bone. Only later did they express doubts. The Chief Officer can in no way be held responsible for this chain of events and the eventual outcome.

As regards shackles, it was builders interviewed by the media who stated there were shackles.

As for the teeth that were found, a local orthodontist specified that the teeth were from children and that they could not have come from children that were alive. It was only later that U.K. experts offered an opposing view and indeed that opinion remains divided.

I will go back to the Lenny Harper statement of 31st July. This is the BBC here: "Police have been investigating allegations of abuse at the home from the late 1940s onwards. Many witnesses have given evidence of sexual and physical abuse in the 1960s and 1970s but Haut de la Garenne was built as an industrial school in the late 19th century and Lenny Harper said it was possible the remains could date from that time, though the police have other evidence indicating that the remains were burned and efforts made to conceal them in the late 1960s or early 1970s." This is a quote from Lenny: "So, while that possibility does exist then you have to ask, why should people go to all the trouble of moving the bones, of burning them at some stage, and of hiding them in a different place and then covering them up? We do not have answers to that and that is part of the problem" he said.

(12) Lenny Harper was not effectively supervised

S.I.O. Harper was not effectively supervised. This is simply wrong. There is no issue that S.I.O. Harper was properly supervised by Graham Power and that he did so to the best of his ability, under the guidance of an A.C.P.O. advisory group which formed the function of a Gold support group in a critical incident in the United Kingdom. His evidence of supervision is
recorded in notebooks, to which regrettably he does not now have access.


Now, much has been made of the review of the 2 Metropolitan officers and that was the report, Minister, which you kindly offered to make available in a redacted form but for reasons that we have discussed is not now available to us. What I will say in respect of that though is that unless there are specific allegations of misconduct, indeed gross misconduct, contained in
that report there is no reason why Graham should not have been shown a copy prior to his suspension on 12th November.

Furthermore, the Metropolitan Police report is only one point of view. You are fully aware now that there are other reports by a very senior and experienced U.K. investigating officer which offers a different perspective. I repeat that these should have been considered before any action was taken to suspend Graham in November. That that opinion exists should certainly be
taken into account now, for to do otherwise is simply to decide the case without the full consideration of all the evidence that is available to us even now and that cannot be right in terms of Graham's human rights or the principles of natural justice.



voiceforchildren said...


A well put together piece of what could seem to some as a very complex issue.

Put even more simply, I think Dr. Brain summed it all up in his last few words.

"That that opinion exists should certainly be
taken into account now, for to do otherwise is simply to decide the case without the full consideration of all the evidence that is available to us even now and that cannot be right in terms of Graham's human rights or the principles of natural justice."

What is, in my opinion, "blatant" is that David Warcup has only offered "opinion" or "allegation". He has brought nothing to the table that could warrant the suspension of a Chief Police Officer.

Is it any wonder that Ian (P9-26) Le Marquand was on the radio this morning "desperately" trying to convince people there was a problem with the auditing?

"human rights or the principles of natural justice"?????????????

Not in Jersey mate.......not in Jersey!

Rob Kent said...

Thanks for providing this synopsis and analysis. Excellent.

Anonymous said...

Thank you for posting a concise and well written summary of this very important matter.

TonyTheProf said...

I have received a comment from "Sparty", whom I suspect is Jon Haworth. I do not post comments with bad language. I'm afraid I'm old fashioned like that. If "Sparty" would care to rephrase his/her post WITHOUT the bad language, I will post it.

Rob Kent said...

In any large operation involving a large number of variables there is an infinite permutation of possibilities and ways of doing it. This infinite range of possibilities is constrained by tradition, best practice, knowledge, rules and procedures, and the local context.

Any venture that is more complicated than making a cup of tea - particularly one involving large amounts of people, facts, systems, and rules - could be done in many ways. Another person looking at it could always suggest alternatives and make criticisms.

In fact, somebody involved in it is continually asking themselves, 'Am I doing this right?' and having doubts about whether they are. Which is why people seek guidance from others with relevant experience or the authority to guide them (ACPO for example) and they have to continually modify the operation to suit the changing conditions, new facts, and opinions received.

Hindsight gives them even more traction - they look back and think, 'did I make the right decision there, should I have done it differently?'

It is, therefore, an inherent characteristic of complex operations that because there are many ways to carry them out, they can always be criticized. This doesn't necessarily mean that they were done wrong or unprofessionally. For the criticism to be anything more than a difference of opinion - 'I wouldn't have done it that way' - there has to be a robust examination of the facts, plus a chance for the actors involved to defend themselves.

This didn't happen with Graham Power and Lenny Harper. They were accused, condemned, and executed without a chance to speak. Lenny Harper has since spoken and defended every one of his decisions. The ACPO reports appear to support him. Dr Brain has spoken for Graham Power and succinctly destroyed the allegations and smears.

The fact that Senator le Marquand and others persist in smearing Harper and Power in defiance of the evidence just compounds the damage. Senator Perchard complained on TalkBack last Sunday that people like Neil are 'constantly criticizing' but why can't he see that that is because there is so much to criticize?

Instead of developing a 'persecution complex' and blaming 'conspiracy theorists' behind every bush, they should look around at other similar jurisdictions - Guernsey and the Isle of Man, for example - and ask themselves why those jurisdictions are not full of carping bloggers and dissatisfied voters. Perhaps it is because their politicians and civil servants have not behaved so ineptly and then tried to cover up their own ineptitude by blaming others.