The publication online of the hitherto restricted disciplinary hearing concerning the bugging of the car in the case of Curtis Warren. The text and various comments is available online, and I would make the following comments, in some of which I concur with those made, and some additional ones.
1. Equality of Arms
One of the main criticism in the handling of the disciplinary matter against the officers is that they were given financial support for their legal aid from the States of Jersey, whereas Graham Power, who was suspended as Chief Officer, was not. The JEP noted that "the officers' defence was partly funded by the taxpayer. Home Affairs Minister Ian Le Marquand has confirmed that he agreed to pay £10,000 towards the officers' legal expenses after their bills went over the limit that the Police Association's insurance would cover."
Graham Power, when suspended as Chief of the States of Jersey Police asked for "equality of arms by means of funded legal representation".
This is not quite equality of arms as the situations are technically different - whereas these officers were not suspended pending a disciplinary inquiry, but Graham Power was suspended. But it still suggests different practices followed when officers face disciplinary charges, and are supported by the Home Affairs Department, and when an officer is suspended, and faces potential charges against him brought by the Department. Technical differences should not excuse that.
In short, it needs to be clarified for future occasions precisely when the Home Affairs Minister has the discretion to pay towards legal expenses, and when he has the discretion to withhold it. At present, there seems to be very much an ad hoc arrangement, with decisions made at whim, and without the need to refer to any written guidelines on the matter which both parties can refer to.
This is a state of affairs which is manifestly unsatisfactory, and it does not depend on what people think of Graham Power's suspension; it is simply a matter of making the system more just.
2. Legal Advice
If the Crown Advocate did say "If it was me I would go ahead and do it but don't quote me on that" as the report (as it is online) states, then that raises serious questions about his conduct.
"The Presenting Officer makes it clear that in his view, this was not 'legal advice' and should not have been relied upon. Whilst I accept that this was not legal advice as such, I nevertheless think that
it was a comment made by a senior Crown Advocate having conduct of the
prosecution of the case which could only serve to encourage the officers in deploying
the audio monitoring device in the vehicle and obtaining the product to see later whether it would be admissible in Court or not."
It looks very much as if the Crown Advocate was giving "advice" off the cuff, and trying to absolve himself from responsibility for the advice give; I think this is reprehensible, and I think it is very much in the public interest to know if any action, such as a caution, was taken in this instance against him, and whether there are any other cases in which similar advice may have been given, of which we are unaware. Legal advice from the Crown should not involve off the cuff, and "unquotable" advice which could be misinterpreted.
3. The Outcome
Let us not forget that the evidence obtained was not ruled out on the appeal case brought by Curtis Warren, and for good reason. He would like to use any legal technicality that is available to him to evade his prison sentence, and this is not an innocent man trying to get out of jail. As the taped evidence, and other corroborating evidence showed, this man is a hardened criminal who thinks nothing of bringing in drugs of any kind to make money. He doesn't care about how many lives he ruins. He has shown in all this not one shred of contrition.
In these circumstances, let us hope that the material made available online is not now used by his defense lawyers to mount another attack on his sentence. It would be terrible indeed if the publication of this material allowed him a loophole, a "get out of jail free" card. If that was the case, while part of the responsibility would lie with the officers and Crown Advocate involved because of the way in which the taped evidence was obtained, part of the responsibility would also lie with those publishing the material online.
Part of the problem, of course, lies with precedent. Hitherto private and confidential material - the Wiltshire report into Graham Power - was placed by the Home Affairs Minister in the public domain, riding roughshod over all the caveats against doing this in the material itself. When it was compiled, the authors understood that it was not to be made public except for disciplinary proceedings, which never occurred. Again there need to be proper guidelines on what material can be placed in the public domain, however redacted, and again this was an ad hoc decision made by the Minister after disciplinary proceedings had been dropped due to lack of time.
There is an inconsistency here which needs to be addressed, where the words " I do not authorise the publication of this written judgment other than for the purposes of this hearing" are followed in the recent disciplinary hearing, they were not followed for embargoed documents in the case of the Wiltshire inquiry which as can be seen include an "obligation to confidentiality"!
So I'm not saying this new leak into the public domain was wrong, as there is an apparent precedent set by the Home Affairs Minister, but I think it may have been unwise. I would now like to see them address whether they would accept any responsibility should this enable Curtis Warren to walk free. I certainly would not sleep easily at night if I had done that. You can easily put the cat among the pigeons, but it may turn out to be a tiger on the rampage.
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