AN UNLAWFUL ‘COUP’ AGAINST POLICE CHIEF

The Decision to Suspend Graham Power

On the face of it, this article is primarily concerned with the decision by the then Home Affairs Minister, Deputy Andrew Lewis, to suspend Police Chief Graham Power. However, those events are more usefully viewed as a lens – through which we can gain a clear picture of the sub-text – the real issues – the real decisions – that lay underneath that hapless and unlawful political adventure.

By considering how startlingly and overtly defective were the actions of Lewis, we see the true nature of the supposed “full legal and HR advice from highly competent professionals” that he was steered by.

We also see the true nature of the “system” those “professionals” represent – and we are confronted with the question, “what now?”

What we are considering is the very rule of law – or rather, the absence of the rule of law in Jersey.

In recent days I have had the opportunity to read the letter written by the Deputy Police Chief David Warcup, dated 10th November 2008, and addressed to Chief Executive Bill Ogley. This letter was the trigger for the suspension of Police Chief Graham Power at an unscheduled meeting of the morning of the 12th November. At that meeting the Home Affairs Minister, Andrew Lewis, and the Chief Executive to the States of Jersey, Bill Ogley, confronted Mr. Power, and informed him of the existence of the letter. They made various un-evidenced assertions about the Warcup letter (which itself makes various assertions not supported by an objective analyses of evidence), told Mr Power that he was being suspended, but gave him an opportunity to “consider his position”. Although deeply shocked at these actions (as was clearly intended) Mr. Power nevertheless did not acquiesce to the intimidation and threats.

What we turn to now is a consideration of the legal questions and implications that arise from these events. When doing so, it is important to set aside partisan political considerations, such as whether one agrees or disagrees with the politics of people like Lewis or Frank Walker, the then Chief Minister who was also instrumental in the suspension of Mr. Power. Instead, we are considering the relevant issues simply from the perspective of the legal requirements – the standards and obligations upon any ‘public authority’ – and the legal environment, the requirements of the law – within which they operate.

All of the relevant ‘actors’ in these events – the relevant agencies – are legally classified as ‘public authorities’. Thus the Home Affairs Minister, the Chief Minister, the Chief Executive, the Chief of Police, and the Attorney General, are all public authorities. And as public authorities, each entity is bound by administrative law.

As a Minister, you are acting as a ‘public authority’ – and in that sense, you are not free to do whatever you may feel like. You – as the Office-holder – are bound by law to properly discharge the functions of that Office. Ministerial positions exist to serve the public good – in accordance with the law in the general sense, and the specific legal duties and powers held by individual Ministries. It is such legal requirements that bind governments to the rule of law, and protect us all from the tyranny of executive power exercised according to partisan political whim.

Any public authority, or ‘public body’, such as a Ministry, must obey the law.

Having been a Minister myself, I’m familiar with the burdens of Office – the legal obligations that come with exercising the powers conferred upon a ‘public body’. Some decisions are easy – some are very difficult; some decisions are of comparatively minor significance – some are of the most profound gravity. You, as the Minister, are therefore under a legal obligation to engage in the appropriate levels of research, advice, procedure and consideration, proportionate to the decision at hand.

In a small, quasi self-governing jurisdiction like Jersey decisions rarely come more serious and profound, than a decision to suspend the Police Chief.

And we must again remind ourselves that it is not two individual people we are considering here; it is two public authorities – each with their own distinct roles, duties and legal status. Thus a decision to suspend a Police Chief cannot even be likened to a decision to suspend a Chief Executive of a public department, as serious as such a decision might be. For in the case of the Police Chief, by suspending him – the Minister is suspending - effectively vetoing – those prominent criminal investigations initiated and carried forward under the leadership of that Police Chief.

The Minister is, in effect, making a political decision that could very well interpose itself directly into the questions of how ordinary people are to receive the protection of the law, which people are to receive such protection, and, indeed, if certain people are to be, de facto, protected from the law.

It will be obvious to any thinking person that a decision to suspend a Police Chief must meet the very highest possible standards of objectivity, evidence, due process, diligence, research and consideration. Such is the potential for the abusive interference in the very policing of the law – the very fabric of our society – that the most rigorous legal standards must apply to any such decision.

Because if such standards did not apply – then many ordinary powerless people – people who may be the victims of unlawful failures by government departments - or who may be victims of criminal acts by people closely allied to those in government – are in jeopardy of being denied the protections of the rule of law.

Denied those protections – if partisan politicians can bring about discriminatory, politicised policing – merely by removing an “inconvenient” Police Chief.

Which is – of course – exactly what Jersey’s political establishment did.

And so much documentary evidence for the manifest criminality of Jersey’s public authorities is now in the public domain that it takes an active determination to look away from it. Yet such is the festering and accusatory toxicity of it, some in Jersey and in London would sooner gaze upon Medusa.

The really horrifying thing, is that there is more to come.

Things you just couldn’t make up.

In the mean time, the letter from Deputy Police Chief Warcup, to Home Affairs Minister Andrew Lewis can be read here:

http://ricosorda.blogspot.com/2012/02/warcup-letter-operation-end-game.html

What does this piece of evidence – and other facts – tell us about the lawfulness – or otherwise – of the actions of Lewis in his capacity as Home Affairs Minister?

For the Minister’s – for any public authority’s decision to be lawful – the information that the decision is based upon must be accurate. It must be true in all reasonable and relevant respects. Information and advice being provided to any ‘public body’ such as a Minister must also be complete. It must not omit ‘relevant’ information, nor include ‘irrelevant’ information. Warcup’s letter fails all of those basic, established legal tests.

Therefore – on those grounds alone – the consequent decision of Lewis – of the Home Affairs Minister – was unlawful.

But it doesn’t stop there.

It is also very clearly established in the case-law concerning the standards of decision-making by public bodies, that the information, advice and guidance being provided to a public authority in order to inform a decision, must also be fair and balanced. If the information going to the public authority making the decision is unbalanced and biased – then any consequent decision of that authority is unlawful.

The manner in which Warcup presented information in the letter did not only fail to be balanced, in some innocent error – rather it was calculated and structured to generate and support a false and unlawful decision.

In fact – considering the material furnished to the Minister by Warcup and Ogley – and the nature of their conduct – the resultant decision of the Minister is unlawful – and thus vitiated – on most of the grounds established by judicial review: procedural unfairness, unreasonableness, errors of fact, proportionality, inconsistency etc.

But there are certain grounds of especial interest to us, upon which the actions of the Minister are unlawful. For example, ‘bad faith / improper motive’, ‘insufficient inquiry’, ‘frustrating the legislative purpose’ - and ‘abdication / fetter’.

One of the most striking and remarkable facts that arise from the letter and the consequent decision of Lewis, is the absence of anything even remotely approaching “sufficient inquiry”. Any Minister receiving information and advice that urged him down the path of any important decision, has a basic duty of care – and of competence and responsibility – to question that advice. And if the decision the Minister is being asked to make is especially unusual and dramatic – a decision of grave magnitude – then the basic responsibility to undertake “sufficient inquiry” is even greater.

It is nothing less than breathtaking that Lewis should have agreed to make a decision to suspend the Police Chief, on the basis of the un-evidenced assertions of Warcup – without so much as even requiring sight of the supposed ‘report’ Warcup was referring to.

Simply staggering.

Had I been a Home Affairs Minister who received a sudden letter of that nature – and it was being suggested to me by the author and the Chief Executive that the Chief of Police be suspended – the very first thing I would have done would have been to write to the Police Chief himself, forwarding to him Warcup’s letter, and asking for a written response. I would have also – simultaneously – required sight of the full report that Warcup was basing his assertions on.

The claim that has been made by Lewis, to the effect that he could not see the “Interim Met Report”, is wholly extraordinary. It is simply not true. Any public authority being asked to make a major decision is actually required – by law – to consider the relevant information that the decision is predicated upon. If the information does not form part of a ‘sufficient inquiry’ – then the decision is not lawful.

In fact, any Minister who was being asked to make such an extraordinary decision – but who was then refused access to the relevant information – would have to be stunningly incompetent not to immediately see that the decision he was being asked to make was unsafe – and almost certainly driven by improper motives.

Frankly, had I been Home Affairs Minister, and the approach of Warcup and Ogley been made to me in an effort to make me obstruct and remove the Police Chief – I would have sought the suspension of Warcup. The man’s actions were that strikingly unlawful.

It would take a deliberate effort not to see the actions of Warcup and Ogley as being driven by bad faith and improper motives.

If a public authority makes a decision – and that decision is contaminated by conflicts of interest, than the decision is unlawful. And it is important to understand what administrative law means by that; the person actually making the decision – a Minister – may be free of conflicts, and be acting in good faith – but if those who have been advising him, or furnishing him with information and guidance concerning the decision are conflicted, then the decision is unlawful.

Warcup claimed to be motivated by a concern for good policing. Just how credible was that claim?

I’ll answer that question below – with some information so extraordinary, you couldn’t make it up.

In the mean time, consider those other individuals that were informing and driving the decisions of Lewis – such as Attorney General William Bailhache, Chief Executive Bill Ogley and Chief Minister Frank Walker.

William Bailhache as Attorney General was the source of all legal “advice” provided to Jersey government departments – and had been for some years. That advice had been so crushingly and catastrophically defective as to have permitted several States of Jersey departments to be pursuing policies that were manifestly illegal. For example, policies that led to entire regimes of corporate child abuse by Jersey government departments.

He was also Jersey’s sole prosecuting authority – thus plainly giving a direct conflict of interests in wishing to minimise the scope and scale of all files for prosecution landing on his desk from the police. After all, just how problematic is it going to be – to have to consider bringing criminal charges against the same government departments that you have been defectively advising?

And how deeply problematic for William Bailhache – that one of the most powerfully suspected child abusers in Jersey’s civil service – a man the police were very eager to prosecute – happens to be a golfing friend of yours?

The conflict of interests becomes multiplied yet further, when it is noted that William Bailhache was the senior partner of the law firm Bailhache LaBesse – when that firm catastrophically failed a number of its young legal aid clients in 1998 – when those clients were abuse victims of the States of Jersey’s Blanche Pierre Group Home.

William Bailhache was the source of legal “advice” and direction – behind the actions of Ogley, Warcup and Lewis. On those grounds alone it is not possible for the decisions of Lewis to have been remotely lawful.

What then of the fact the Chief Executive, Bill Ogley, was playing such an instrumental and pro-active role in engineering the constructive dismissal of Police Chief Graham Power?

It was not lawful for Ogley to have been involved – at all – in any actions concerning Graham Power and the child abuse investigations. Ogley was in charge of the civil service that was in many ways the key focus of the police investigations. Indeed – so well-documented is the history of the criminal conduct of Jersey’s civil service in unlawfully concealing child abuse over the decades, that various formal criminal complaints had been made against various senior civil servants.

Amongst those suspected of acting criminally in terms of conspiring to pervert the course of justice and of committing misconduct in a public office were immediate friends and colleagues of Ogley – and Ogley himself.

In July 2007, Ogley had led a meeting of certain senior civil servants at which they were illegally conspiring to engineer my dismissal as Health & Social Services Minister because I had uncovered a range of very serious child protection failures. We know that that meeting occurred – because Graham Power was present, and Ogley attempted to involve him in that illegal conspiracy. The Police Chief made a contemporaneous file-note at Police Headquarters to record the facts.

Bill Ogley - in so many ways – epitomised the very despicable, self-protecting criminality that lies at the heart of so many decades of concealed child protection failure in Jersey. A highly paid, supposed professional – in fact betraying the vulnerable and the public interest, and lying, and acting criminally to protect himself and his colleagues from accountability and scrutiny.

The failure of a Home Affairs Minister to insulate and protect his formal decision-making process as a public authority from such toxic and starkly corrupt influence renders any decisions he made manifestly unlawful.

Then there is the well-documented role played by the then Chief Minister, Frank Walker.

Walker was instrumental in driving forward the conspiracy to have Police Chief Graham Power suspended. We know from evidence painstakingly gathered that the original claims by Lewis – to the effect he had no concerns about the performance of Graham Power until the 11th November - to be lies. People like Bailhache, Lewis, Ogley and Walker had been seeking to engineer the dismissal of Graham Power for months. The question then arises, was it in any way lawful, for the Chief Minister to have been influencing the decisions of the Home Affairs Minister?

And perhaps even more significantly – was it in any way lawful for a Chief Minister – Frank Walker – to have had any involvement of any kind at all – in any attempts to obstruct, sabotage or remove the Police Chief – when the police under the leadership of that Chief were pursuing a very serious criminal investigation against a close friend and business associate of Walker’s?

Any involvement – of any kind – by Frank Walker in any of the pressure, actions or decisions that led to the suspension of Graham Power – was unlawful.

And I don’t just mean unlawful in the civil sense of it rendering null and vitiated the actions of the Home Affairs Minister.

I mean illegal – in the criminal sense.

Here is a quote from the Judicial Review Handbook, from the section that deals with unlawful decisions of public authorities when the authority has ‘abdicated or fettered’ the power that is conferred exclusively upon it by law:

“Acting under dictation: A public body must not surrender its independent judgment to a third party. Nor must one public body bring about the surrender of another public body’s independent judgment.”

Andrew Lewis, in his capacity as Home Affairs Minister – failed that test; a test very powerfully established in the case-law.

Not only did he surrender and abdicate the independent judgment his Office should have exhibited – he surrendered it to other, directly conflicted, public bodies – and surrendered it to directly and starkly conflicted individuals – such as Bailhache, Ogley and Walker.

We are left with only the stark fact – that the public authority of Home Affairs Minister lost all contact with lawful conduct – and was instead adrift on a tide of conspiracy, illegality and perversion for improper purposes.

And if further proof were needed – further proof that the object of the exercise had been to sabotage effective policing by permitting direct interference in policing matters by non-police third-parties – let us ask the question how did things go after the unlawful coup against Graham Power?

I mentioned earlier some information that was so extraordinary, you couldn’t make it up.

The police ‘Gold Command Group’ established by David Warcup routinely involved in its meetings senior representatives from directly conflicted organisations – and directly conflicted individuals.

The actual police Gold Command Group was having regular meetings – at which it permitted non-police third-parties to influence and inform its decisions and strategies.

The organisations that Warcup had participating in these meetings actually included the Heath and Social Services department – and the Chief Minister’s department. Both public authorities that were subject to criminal complaints of conspiracy to pervert the course of justice in respect of the child abuse cover-ups.

Not insane enough?

At certain of Warcup’s Gold Command Group meetings, the Health and Social Services department was actually represented by the Deputy Chief Executive of that department – and the Chief Minster’s department was represented by the Chief Executive, Bill Ogley.

Both men who were subject to formal criminal complaint of conspiracy to pervert the course of justice, and of misconduct in a public office.

David Warcup, with the backing and direction of William Bailhache and Frank Walker, provides the wholly defective and inadequate and dishonest letter for the purposes of engineering the suspension of Graham Power; that action is carried out by Bill Ogley and Andrew Lewis – and the public of Jersey, and the wider-world are told that it was necessary to improve policing in Jersey, which, supposedly, had been defective under Mr. Power because he and Lenny Harper did not establish a ‘Gold Command Group’ . Warcup has established a Gold Command Group – and with Graham Power off-the-scene, that Group proceeds to become heavily contaminated and perverted with the presence and influence of non-police third-parties – and directly conflicted organisations and individuals with an interest in sabotaging the proper investigation of all the child abuse issues. Just as Graham Power and Lenny Harper knew it would – which is why they didn’t establish one.

I posed a question at the beginning of this article, “what now?”

Where do we – where does Jersey – go from here?

Every one of our relevant public institutions is plainly and on the evidence, embroiled in a complete failure of even the most basic standards of good governance. An anarchic lawless imbroglio that far transcends Watergate in anti-democratic criminality. Ordinary people – the powerless and the vulnerable have been denied the protection of the law – denied it by Jersey’s government. We have an overtly corrupted prosecution system. A good and brave Police Chief gets illegally suspended. Prominent opposition politicians are then subject to police-state repression. We have a court system in which judges, including those recruited by the local syndicate from England, routinely make assertions not even compatible with basic logic, let alone case-law when considering cases that are embarrassing to their friends. Government departments that are under direct criminal suspicion have been allowed to have a seat in the very core of the Police Gold Group overseeing investigations into the actions of those same government departments. Senior civil servants under direct criminal complaint of having conspired to pervert the course of justice to conceal child protection failures sit around the table with the Police investigation team, and contribute to its strategy. Spin-doctors are given access to the witness statements by abuse survivors to write a report the government can then use to try and attack the integrity of the Police investigation. We have a wretched vast catalogue of plain and evidenced lies given by Ministers when answering questions in the Jersey parliament about these issues. And politicians are able to play a direct role in the removal of a Police Chief when the police under that Chief’s leadership are pursuing the most profound and serious of investigations into a close friend and business associate of those politicians.

Where, indeed, do we go from here?

As I wrote in a recent comment:

“Look across Western Europe - you will find no other jurisdiction or enclave as openly corrupt and stagnant in all its public institutions and authorities as Jersey.

Jersey is the “Picture of Dorian Grey” that the British Crown keeps hidden in the attic.”

How did that story end?

Stuart.