Saturday, 11 December 2010

The 1987 Trial and its Aftermath

On 18th August 1986, at 8.00 am in the morning, there was a simultaneous dawn raid on the houses of three Jersey policemen. They had been suspended since 1st October 1985, pending an enquiry concerning the conviction of a burglar for theft from local book maker B.J. O'Connor, and were probably imagining that the investigation into their alleged misconduct, in fabricating evidence in their pocketbooks, would proceed upon more formal lines. Instead, they faced a rude awakening, as their properties were searched, and confidential papers seized.
By the start of August 1987, a sixth month trial was nearing its end. In the dock were the three accused - Detective Chief Inspector Charles Quinn, Detective Sergeant Barry Follain, and Police Inspector Barry Blenkinsop.. The charge was conspiring to pervert the course of justice. As the Jersey Evening Post reported, the Attorney General, Philip Bailhache, in his summing up the case for the prosecution, "had accepted the burden of proving every material in the particular beyond all reasonable doubt." . He was convinced that he had done so.
At the time, as a young and confident 41 year old Attorney-General, this was one of the highest profile cases that Philip Bailhache had ever prosecuted. Appointed to the role in 1986, he had been working hard preparing this case, even working long hours over weekends. The Jersey Evening Post reported that a report collating all the matters and documents relating to the investigation ran to over 6,000 pages.
There had been serious problems - Detective Chief Inspector Martyn Le Brocq (head of the CID) had been caught out for tampering with pages in his own notebook, but the expectation was of a successful conviction. One of the documents seized in the raid had also highlighted a rift between Charles Quinn and the Chief of Police David Parkinson, and an accusation was made that part of the motivation behind the case was vindictiveness on his part. But these matters aside, the case seemed to be proceeding smoothly. After all, in early August, the defense had suddenly withdrawn 6 witnesses, without any apparent explanation.
But on the 6th August 1987, matters went seriously wrong. After over eight hours of deliberation, the jury returned an unexpected verdict of not guilty. There was an audible gasp throughout the Court. It was not a unanimous verdict, and perhaps in an attempt to put them more on the spot, each juror was required to individually give his or her verdict. But the result was clear - the case had collapsed, and Charles Quinn was exonerated. The same result was repeated with Barry Follain, while Barry Blenkinsop was cleared unanimously.
The defense applied for costs, and the Royal Court awarded taxed costs (described as "substantial") to all three police officers who had been acquitted by the Assize jury.
The case had been so demanding, and taken so long - over six months - that the jury were given an exemption from jury service for ten years by the Bailiff, Sir Peter Crill.
In an unprecedented statement, the States of Jersey Police Associated pledged full support for their Chief Officer, Mr David Parkinson, and divorced themselves from any comments made about his integrity during the trial.
Inspector Blenkinsop returned to duty, but Charles Quinn and Barry Follain remained suspended on other matters.
Senator Ralph Vibert was concerned that this seemed an unusual action to take, as he had serious doubts as "to the motivation to which the timing of these charges must give rise.". In the States, on the 18th August 1987, he asked:
"Noting that the charges now made number 37 against Chief Inspector Quinn and 12 against Detective Sergeant Follain, that most of them relate to matters not concerned with the recent Assize case and that some of the charges relate to events which took place as long ago as 1981, can the President explain why charges were not brought at the relevant times, but are now brought after the conclusion of the unsuccessful prosecution?"
John Ellis replied that "no charges, Criminal or Disciplinary, have yet been made against the two officers concerned. They have merely been informed of the allegations made against them."
He also added that: "My Committee has had little idea of the progress of the investigations and, at one stage, because I was being asked by many Members of the States and the public what was going on, due to the long delay in the investigation, I met the Attorney General and expressed my disquiet over the delays. The outcome was that the Attorney General kindly wrote in strong terms to the Chief Constable of Avon and Somerset and things moved from then on."
Senator Ellis also told members that "The total costs of outside officers incurred by officers from the Avon and Somerset Constabulary for the period 29th August, 1985, up to and including 31st March, 1987, amounted to £55,225.91 (in the region of £150,000 today)."
But by 25 August 1987, Senator Ellis had decided that his position was untenable, due to the trial revealing had passed documents to one of the accused officers, Charles Quinn, whom he had known for 25 years, and he evidently felt conflicted in the matter. He resigned. Proposed by Ralph Vibert, Senator Dick Shenton took over as President of Defense.

In fact, the documents had nothing to do with the case in question. It related to complaints about the Chief Officer allegedly made by the Connétable of St. John (John Le Sueur) to Inspector Marks over the States police and the honorary police. The Chief Officer had sent a letter and a report by Inspector Marks to Senator Ellis; he had sent this to the Connétable, and obtained a reply, and then forwarded a copy of the correspondence and report to Inspector Quinn, including  "a note saying words to the effect that this sort of thing was not in the best interests of good co-operation."
But what were the long term effects of the case on prosecutions by the Attorney-General, or indeed future Attorney-Generals, such as Philip's brother William, who must have watched with dismay as the case for the prosecution collapsed? While there may have been no deliberate and conscious decision taken regarding the degree of evidence needed for a successful prosecution, the fact remains that William would have seen his brother Philip present a case that he would have deemed to be "beyond reasonable doubt", but after six months had failed abysmally, despite what seemed to be cast-iron evidence. Other Jersey lawyers would also have taken note of the case. So what would count now (in the minds of those witnessing this) as a realistic prospect of conviction? Of course, this is a matter of conjecture, but it could be seen that the threshold had been too low. This was, in all likelihood, not a matter of conscious policy, but an unconscious effect, like a mental shock to the system.
If we now look at June the 3rd 2009 the then Attorney General, William Bailhache released a Press Statement after deciding not to prosecute some alleged Child Abusers. In this, he noted:
"A prosecution most prove its case beyond all reasonable doubt, and if there is any doubt, an accused person is entitled to be found not guilty. Before bringing a criminal prosecution, there must be sufficient evidence such that there is a realistic prospect of conviction. A decision not to bring criminal proceedings does not necessarily mean that those who have made complaints are not believed, nor does it necessarily mean that any account given by a suspect has been believed. A decision not to prosecute means only that the Attorney General, having fully considered all of the available evidence and other information, has decided that an acquittal is more likely than a conviction."
But what is the threshold at which a decision is made that an acquittal is more likely than a conviction? The evidential test means that "It means that a jury or a bench of magistrates, properly directed in accordance with the law, will be more likely than not to convict the defendant of the charge alleged." It looks at weaknesses in the evidence, and contradictions which the defense could exploit.
"To compromise the test to allow evidentially weak cases to proceed is not an exercise of the objective approach which is demanded of prosecutors by the Code on the Decision to Prosecute. It is not fair to anyone - the complainants, the accused, the witnesses or the public - to do otherwise than apply the evidential test professionally and objectively."
This standard permits a prosecution to be commenced or continued only if the Crown prosecutor has sufficient evidence to believe that a reasonable jury, properly instructed, is more likely than not to convict the accused of the charge(s) alleged.
But despite this being described as "objective", the standard contains both a subjective and objective element, because the nature of the "evidence" may well be testimony. In this context, the term "objectivity" has a special legal meaning; it is not scientific objectivity, which can be testable and repeatable. It requires the lawyer to be "dispassionate", but a scientist's feelings are irrelevant with regard to scientific experimentation. The "evidential rule" is certainly better than "gut instinct", as it does require the prosecutor to review the evidence, but it is not objective in a scientific sense.  So what does "objective" mean - as a legal term?
The Crown has to look at contradictions in the evidence, weaknesses, see if there is sufficient corroborating evidence, and - as happened in the child abuse case - several other local lawyers were involved to see if they agreed on the Prosecution's decision. In Jersey, of course, unlike the UK, the threshold in making any decision would also be higher because the UK abolished the mandatory corroboration warning, and Jersey refused to do so in 2008 (during the police investigation into child abuse), thus weakening the testimony of any witnesses. Remember the test includes considering how a jury would react "properly directed in accordance with the law", which would obviously include the warning in Jersey.
But at the end of the day, there must also be a subjective element - a matter of belief. The Crown prosecutor must believe that a conviction is likely and that belief must be reasonable in the circumstances.
Despite looking clearly at the case the defense might bring, and highlighting weaknesses in the prosecution, the final judgement must be a subjective one as to whether a prosecution would succeed, whether the evidence is good enough. That must be based in part on past experience and consideration of other cases, otherwise there is no basis for a judgment. Is it not at least probable that the 1987 case, would have raised the threshold at which local lawyers and the Attorney General would rule thereafter that there could be a case "beyond reasonable doubt"?

Note: All names mentioned herewith are in the public records, reported in the JEP and in online States Minutes.


Anonymous said...

This post is spot on. The Crown has to decide whether the evidential test will be met. This is a subjective exercise. It was well known amongst the legal profession even before HDLG that the then AG William Bailhache was generally reluctant to prosecute. I believe that a different Attorney-General with the same files in front of him would have decided to prosecute more cases.

Anonymous said...

Perhaps the case was not presented in a sufficient manner to convince the jury. Perhaps another prosecutor would have presented the case in a different manner (ie: done a better job than William Bailhache) and perhaps William Bailhache was not the best person for the AG job!!!