Monday, 4 February 2013

Cat among the Pigeons

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.


Anonymous said...

With everything that has been highlighted from the tribunal lets see if the bloggers accept any responsibility whilst the Jersey legal system (the crown) acts unlawfully along with a bumbling minister. Remarkable, truly remarkable.

Anonymous said...

The constant attention and demonizing of Curtis Warren only is not very helpful. There were lesser villains caught up and incarcarted on the basis of the same police activity. At least one of these - John Welsh - has published a strong letter from La Maye in the JEP letters column.
WE really should look too at the justification of the police and now Crown Officers' conduct in their cases. Shall this example now serve as justification to catch ANY suspected criminal by using bugs etc? Mike Dun writes

Bob Hill said...

Tony well done with your Blog but to assist those readers who have not been following my Blogs on the Curtis Warren case the following comments will allay some of the concerns you have expressed.

Re the publication of the Report, it is customary for authors to insert a caveat about publication; it is to cover their back. One may ask what the point of writing a Judgement if no one is to read it.

You can be sure that Curtis Warren’s legal team will already have the Judgement and the Hants Report as well so it would wrong to apportion any blame on a Blog should Warren succeed in his appeal.

In my Blog dated 17th October 2012 I published the Royal Court and the Privy Council’s Judgements which are officially in the public domain. The Advocate’s advice which appears in the Chief Constable’s Judgement can be found in the Courts’ Judgement. If readers go to paragraphs 48 to 50 of the Privy Council’s Judgement they will see the five factors that led the Commissioners to accept the officer’s actions. What is bizarre is that the Commissioners having accepted the officer’s actions then condemn them.

The legal argument is whether the evidence obtained is valid; again if one reads the Judgements one will see that the Commissioners agree that the Officers did not mislead the Courts. A great deal of public money has been spent on getting the Warren team behind bars. Also a great deal of money has been spent on the discipline case which has thrown up a serious concern about people in senior positions, what the Blogs are attempting to do is to establish the truth and uncover who is responsible and be made accountable.

TonyTheProf said...

Thank you Bob. I take it then that you think that Curtis Warren and his team should be behind bars.

Anonymous said...

"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"

Minty was suspended!!

TonyTheProf said...

I think that following the disciplinary case, no police officer would regard this as a precedent for bugging cars.

However, I am not demonising Curtis Warren or his fellow criminals. They are, as you say, villains. It is important to remember that, and that the evidence, though obtained without consent of two countries, proved that.

I'm just making that clear; he is not an innocent man, and has shown no contrition; his aim would have ruined a good many lives. Do you think he should be released on a technicality?

TonyTheProf said...

Thanks for the correction about Mr Minty being suspended.

I am making the point that whether or not he was suspended, there is a case for saying that the treatment of him and Graham Power was not the same, and it should have been.

The only difference was that one was suspended and supported by Home Affairs, one was suspended and a case brought against him by Home Affairs.

It was inequitable, and there needs to be written guidelines not Ministerial whim to decide this.

Anonymous said...

When the criminal case was in court I blogged comparing the careers of Curtis Warren and Horatio Nelson. The one is viewed as a serious national criminal. The other as an exceptional national hero. Yet their careers started at about the same age in childhood. Curtis from a difficult origin running with street gangs and Nelson the son of a vicar bashing out the brains of a polar bear with a musket when he joined the navy.
It was some years before Warren graduated to apparently kicking to death a fellow prisoner in Holland and Nelson fought his way to fame and gory glory around the world in the service of his country.

Different times and circumstances of course but I suppose that if Warren had joined the SAS he might also be viewed in a different light today.

Unfortunately history does not have a rewind facility and the precendent for bugging is now established alongside Nelson's status as a role model.

I have asked Scrutiny to undertake a review of all surveillance practices in Jersey (public and private) but am promised only a minimal peek at official fixed police CTV installations.

Bearing in mind genies and bottles I don't anticipate any more balanced assessments of Warren, Nelson, past and present Jersey police or Crown officers but I do hope that some things might yet be reformed and improved.
I suspect that long term prison terms do not help any of us in that pursuit but I have long since determined that many of those wearing the uniforms of respectability in society are likely to be as harmful as those actually convicted of crimes. Mike Dun writes