Friday, 4 April 2014

Independent Jersey Care Inquiry: A Note on the Preliminary Hearing

The Committee of Inquiry website is at:

Other blogs online commenting on it are:

Rico Sorda

Former Deputy, Bob Hill:

Neil Macmurray

Laying the Foundations

I shall be reviewing the inquiry as it unfolds, but at present what has been laid out is a lot of groundwork – the foundations, upon which the inquiry evidence and assessment can be built upon. It is a good start. Once we begin to see transcripts and material appearing, we'll have a much better idea as to how detailed it will be, and how solid those foundations are. But they look very good.

And certainly the terms of reference are very wide ranging, as are the powers of the inquiry to call people before them, and obtain evidence.

First Stage: Victim's Testimony

The first stage of the inquiry is quite rightly collecting witness statements, and these are the stories which need to be told, if the victims of abuse are ever to obtain some degree of closure. Of course, like grief, closure is never complete, but knowing that your personal history of abuse is not being ignored but listened to is an important part of the healing process.

In that connection, it is important that there is adequate provision for counselling if required, as giving evidence can be an extremely traumatic experience. In the Northern Ireland inquiry, there has been criticism of "the lack of face-to-face counselling provided for those who have come forward to tell their stories," and the BBC reported that "some witnesses have been suicidal after giving testimony"

It is a shame that there does not appear, as yet, to be any links or information regarding counselling and its availability available on the Jersey inquiry website. Perhaps that can be addressed as the inquiry develops.

Phase 2: Looking at the History and Aftermath of Operation Rectangle

Looking ahead to Phase 2 of the Inquiry, I noticed this in the opening address by Frances Oldham, QC:

"We will be asking ourselves whether the policies and procedures of those organisations were fit for purpose at the time. We will also consider whether appropriate decisions were taken in deciding whether to prosecute individuals and whether there was political or other interference in those decisions."

One thing of note is "at the time". The law had not been changed in 2008 to enable the judge to abolish the rules governing evidence:

"The Bailiff or a Commissioner in the Royal Court, in a case where evidence has been given by any of the above, must always, when summing up to a jury, warn them that it is dangerous to convict if that evidence has not been corroborated in some way."

The law had been changed in the UK to allow the judge discretion over giving this warning. But in Jersey, it remained mandatory.

According to reports in the JEP, it was a conflict within the Council of Ministers over this which caused Senator Wendy Kinnard to resign as Home Affairs Minister because she wanted Jersey to move to the UK discretionary rule. Under Frank Walker's tenure as Chief Minister, the Council of Ministers actually refused to discuss this change.

That was certainly a grave error of judgement, and it almost certainly would have meant that the judgement on whether or not to prosecute was unfairly biased against a presumption to prosecute - when there was only one witness, and the rules applied.

That was changed by Senator Ian Le Marquand when he introduced the Criminal Justice (Miscellaneous Provisions) (No.3) (Jersey) Law as Home Affairs Minister, which came in March 2012, long after the cases of historical abuse had gone to court, or been judged unlikely to succeed. As Senator Le Marquand told the States:

"I am not sure that I can give Deputy Le Hérissier any specific information about the number of cases which have led to convictions in other jurisdictions as a result of the changes in the corroboration rules, but logic would suggest that the absence of the requirement for corroboration has made it easier to bring guilty men to justice and I cannot, I am afraid, say more than that."

Clearly the policy regarding this rule was lagging extremely far behind the UK, and even behind the Isle of Man – introduced 2001 – and Guernsey – introduced 2002. Why it had remained unchanged is unknown – a lack of urgency could have led to its being given low priority -  but it is almost certain that it was the increased likelihood of cases in 2008 to which it would apply was the reason why Senator Wendy Kinnard sought to have it rescinded.

We know from Senator Kinnard's resignation statement that she was attempting to bring this change in the law, and that it was thwarted. No attempt was made after her resignation to bring forward the change, under Deputy Andrew Lewis as Minister for Home Affairs. Inaction is less noticeable than action, but it can cause injustices to remain fixed in judicial systems.

Why the Council of Ministers, and in particular, the Chief Minister, were opposed to this change can only be a matter of speculation, and it is certainly a matter upon which they could be summoned and questioned. I am not going to put words in their mouths, rather they should be called upon to account for their deliberate policy of inaction, and explain themselves.

As John Stuart Mill said: "A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury."

As things stand in the historical record, what can be said is this - this deliberate inaction did amount to political interference in the judicial process. It was not a direct interference, but it was significant second order interference.

By delaying any change in the rules, it meant that it was a higher bar to decide whether to prosecute. Ian Le Marquand himself noted that "logic would suggest that the absence of the requirement for corroboration has made it easier to bring guilty men to justice." Conversely, the requirement would have made it harder to bring guilty men to justice.

Frances Oldham said in her presentation:

"The second part, to be heard in Phase 2 of the Inquiry, asks us to 'review the actions' of government departments, the justice system and elected representatives following the start of the investigation into allegations of abuse at Haut de La Garenne in 2007. We want to hear from the Ministers for Home Affairs and for Health and Social Services at the relevant time and from the Attorney General's office. Their evidence will assist us particularly in relation to the assessment that we must make of the lessons to be learnt."

It seem to me, just from the historical record, that there are certainly questions to be asked, and actions – or rather deliberate lack of action – to be reviewed.

In this context, the words Winston Churchill are appropriate on the lack of action on changing the rules until too late in the day: "Want of foresight, unwillingness to act when action would be simple and effective, lack of clear thinking, confusion of counsel until the emergency comes, until self-preservation strikes its jarring gong - these are the features which constitute the endless repetition of history."

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