8th September 2009
J. A. Clyde-Smith, Esq, Commissioner, and Jurats Le Breton and Clapham
The Minister for Home Affairs
In the matter of the second notice of application by Mr Graham Power QPM, Chief Officer of the States of Jersey Police, for leave to institute judicial review proceedings dated 24th March 2009.
The applicant appeared in person.
T. J. Le Cocq, Esq, Solicitor General for the Minister.
The applicant (“Mr Power”) applies to judicially review the decision of the respondent (“the Minister”) taken on 5th March 2009 to continue his suspension pending completion of the current investigation. The application was heard on 22nd July when our decision was reserved.
Mr Power was appointed the Chief Officer of the States of Jersey Police with effect from the 1st November 2000. He has some 42 years police service and has served in the senior ranks of four police forces. Prior to his current appointment, he was deputy to HM Chief Inspector of Constabulary for Scotland. He has been decorated by the Queen for distinguished service. His term of office as Chief of Police of the States of Jersey Police has been extended twice, the most recent extension being in 2007 following an assessment of his performance in post. In addition to his local duties, he sits on a UK committee which addresses sensitive policy issues relating to security matters and is an assessor for the body which selects potential chief officers for UK police forces.
Under Article 9(3) of the Police Force (Jersey) Law 1974 (“the Police Force Law”) he is responsible to the Minister for the general administration and discipline, training and organisation of the police force and of the port control unit. Prior to the introduction of ministerial government, he was accountable to the Home Affairs Committee.
The provisions of the Police (Complaints and Discipline) Jersey Law 1999 and the Police (Complaints and Discipline Procedure)(Jersey) Order 2000 do not apply to the Chief Officer. He is instead subject to a disciplinary code for the Chief Officer of Police which was sent to him on his appointment and which forms part of his contract. He remains subject to that code, which has now been amended to make reference to the Minister as opposed to the Home Affairs Committee.
The events which gave rise to the application have their roots in the historic abuse inquiry known as Operation Rectangle. The senior investigating officer in charge of Operation Rectangle was the former deputy Chief Officer, Mr Lennie Harper (“Mr Harper”). Mr Harper retired from the force in July 2008 and his place was taken up by Mr David Warcup (“Mr Warcup”), who was appointed on 4th August 2008 and who took over responsibility for Operation Rectangle. Subsequently Detective Superintendent Mick Gradwell (“Mr Gradwell”) was appointed as senior deputy officer responsible for Operation Rectangle.
In August 2008, Mr Warcup, with the authority of Mr Power, commissioned the Metropolitan Police to carry out a review of Operation Rectangle, which was commenced in September and from which an interim report detailing their initial findings was issued on 10th November 2008.
On the evening of 11th November 2008, Mr Warcup and Mr Gradwell gave a briefing on Operation Rectangle to Ministers in advance of a media briefing which was to be given the next day, the purpose of which was to correct facts that had been inaccurately presented and which in their view created a real risk to future trials. They announced that the forensic recoveries did not indicate that there had been murders of children or other persons at Haut de la Garenne and nor did the police believe that the evidence indicated that bodies had been destroyed, buried or hidden at Haut de la Garenne. Specifically:-
the piece of child’s skull found was not human bone and was recovered from within a “Victorian era”;
the cellars were not cellars but voids under the floor;
the shackles and restraints have not been identified and there was no evidence of shackles or restraints being used;
many of the bones recovered are animal in origin. Of those identified as possibly human they all predate 1950;
the bloodstains in the bath had not been identified as blood;
of the teeth recovered, they were milk teeth to come from at least 10 people and possibly up to 65 and generally had the appearance of having been shed naturally;
there were no people reported missing, no allegations of murder, no suspects for a murder and no specific time period for a murder.
They were satisfied, as were other qualified and experienced senior investigating officers, that there was no indication or evidence that there had been any murders at Haut de la Garenne.
On that evening of 11th November 2008, Mr Power was on holiday and at home. He was telephoned by the previous Minister for Home Affairs, to whom for convenience I will refer to as ”the Previous Minister”. According to the affidavit of Mr Power sworn on 5th January 2009, the Previous Minister invited him to come to a meeting at 11.00 a.m. the following day to discuss the content of the briefing given to the Previous Minister that evening. Whilst aware of the media briefing scheduled for Wednesday 12th November, Mr Power says he had no previous notice of a briefing for Ministers on 11th November.
Mr Power attended the meeting with the Previous Minister on 12th November, which commenced at around 11.10 a.m. Present were the Previous Minister, the Chief Executive to the Council of Ministers and the Head of Human Resources.
It is important to make it clear that the Court is not required to adjudicate on the events of 12th November 2008 and this summary given by way of background has been taken in the main from Mr Power’s affidavit and the documents disclosed by both parties. We did not have an affidavit from the Minister or Previous Minister dealing with these events and it is clear that certain aspects of Mr Power’s account are not accepted by the Minister.
Mr Power was handed a copy of the Disciplinary Code. It is helpful at this stage to set out the relevant provisions of the Disciplinary Code (amended to take into account the change to ministerial government) which are as follows:-
“Disciplinary Code for the Chief Officer of Police
1. Application and Principles
1.1 In the normal course of events, the Home Affairs Minister will raise, and attempt to resolve, issues arising which concern the performance, conduct, capability, etc., of the Chief Officer on a personal basis. The procedure described in this Code will be used only where such efforts to resolve problems arising have failed.
2. Discipline Procedure
2.1 Preliminary investigations
2.1.1 If circumstances arise where the Home Affairs Minister considers it justified, he will notify in writing the Chief Executive to the Council of Ministers, of any complaints relating to discipline, performance or capability against the Chief Officer. A copy of this letter will be given to the Chief Officer. At the discretion of the Chief Executive to the Council of Ministers, there may be a meeting between the Home Affairs Minister and the Chief Officer, to determine the requirement for the complaints to be pursued.
2.1.2 In the event that the complaints are pursued by the Home Affairs Minister, a preliminary investigation will be undertaken by the Chief Executive to the Council of Ministers, to establish the relevant facts. Facts will include statements from available witnesses and the Chief Officer. Following the investigation the Chief Executive to the Council of Ministers will produce a written report which will be given to the Home Affairs Minister and the Chief Officer. The results of the preliminary investigation will be discussed by the Home Affairs Minister, Chief Officer and Chief Executive to the Council of Ministers.
2.2 Minor breaches of discipline or poor performance/capability
2.3 Continued or serious breach of discipline/poor performance/capability
2.3.1 If the preliminary investigation indicates that a more serious breach of discipline/poor performance/capability has occurred, or if the Chief Officer fails to improve and/or maintain improvements in conduct or job performance following the issue of oral warning(s), the issue will be considered by the Home Affairs Minister.
The hearing will be conducted by the Home Affairs Minister. The Minister will be advised by the Director of Human Resources.
2.3.2 The Chief Officer will be provided with, in writing, the following:
i) sufficient notice of the hearing;
ii) full particulars of the complaint;
iii) a statement of rights under these procedures; and
iv) details for the procedure for the hearing.
2.3.3 In more serious circumstances the Chief Officer may be suspended from duty on full pay by the Home Affairs Minister, pending the outcome of this procedure. In this event, the matter will be referred to the States of Jersey, in accordance with Article 9 of the Police Force (Jersey) Law 1974.
[2.3.4 – 2.3.8 contain detailed provisions relating to the hearing]”
The Previous Minister then handed Mr Power a letter dated 12th November 2008 headed “Disciplinary Code” in which he informed him that he had received a letter from the Chief Executive enclosing a copy of a letter he had in turn received from Mr Warcup on the 11th November concerning an interim report that Mr Warcup had received from the Metropolitan Police into the conduct of Operation Rectangle. Mr Warcup’s letter included extracts from the report from the Metropolitan Police and concluded that there are significant concerns about the command and control structures in place with regard to the inquiry and Mr Power’s role within that. Examples of those concerns were quoted from Mr Warcup’s letter as follows:-
““There are no specific terms of reference for Operation Rectangle – given the potential size, complexity and sensitivity of the enquiry, one would have expected a more precise terms of reference.
From a command control perspective, if ex DCO Harper was SIO then it raises the question of who supervised him at a strategic level.
There is no policy book dealing with forensic strategy which is a critical area in this investigation.
A major factor affecting the planning of Operation Rectangle was the decision to limit it to a single agency led investigation, e.g., Police only.”
In addition, the Deputy Chief Police Officer’s letter refers to concerns, including the following:-
“There is no evidence of a proper command structure having been put in place in relation to the HDLG investigation, with a designated Gold Commander responsible and accountable for the incident.
There is no recorded evidence of any strategic oversight and approval of tactical plans and enquiry parameters on the HDLG investigation.
Financial controls appear to have been weak with a lack of overall strategy and a lack of day to day control.”
The Previous Minister’s letter went on to say that having considered the letter from Mr Warcup and the pre-press briefing given the night before, the overall management of Operation Rectangle would be publicly called into question. In the light of this and in the light of Mr Power’s accountability under Article 9(3) of the Police Force Law, the Previous Minister had decided to invoke the Disciplinary Code relating to the Chief Police Officer. He considered that the issues raised in the report relate to alleged serious matters of performance and capability which could not be treated as something occurring in the normal course of events and could not therefore be dealt with on a personal level pursuant to paragraph 1.1 of the Code. He had asked the Chief Executive to investigate the matter in accordance with the Code. It would appear that Mr Power was not given a copy of Mr Warcup’s letter.
According to Mr Power, the Chief Executive said that in view of the letter, he would be allowed up to one hour to consider his position, which Mr Power interpreted as an invitation to consider tendering his resignation. Mr Power says he rejected that opportunity, denied any wrongdoing and protested at the unfairness of what was happening, in that he had not seen the documents to which the letter referred and had been given no chance to offer representations or to respond. Indeed, he said he had been given no notice, no time to prepare and was not offered any representation.
Again according to Mr Power, the Previous Minister then informed him that he had decided to suspend Mr Power with immediate effect and handed him a second letter, also dated 12th November, 2008. It reiterated the same concerns as in the first letter, but then went on to state:-
“My view is that the issues raised in the report of the Metropolitan Police and the letter from the Deputy Chief Officer of Police fall into the category of “serious circumstances” as set out in Paragraph 2.3.3 of the Disciplinary Code which was given to you when you started work for the States of Jersey by letter dated 3rd August 2000. I will write to you separately with a copy of the Disciplinary Code.
At our meeting earlier today, I informed you that I was considering whether you should be suspended from duty. I now write to inform you that I have decided, in accordance with the terms of your Disciplinary Code and the provisions of the Police Force (Jersey) Law, 1974, to suspend you from duty, on full pay, pending the outcome of the investigation and any subsequent hearings. In accordance with Article 9 of this Law, the matter of your suspension will be referred to the States of Jersey. If necessary, a public announcement shall be made of that fact.
In reaching my decision to suspend, I have taken into consideration the following:
Whether, or not, by remaining in post whilst the investigation is undertaken you may potentially be subject to an accusation that you were in a position to influence the investigation, unintentionally or otherwise
Whether or not, by remaining in post whilst the investigation is undertaken you may potentially be subject to an accusation that you were in a position to repeat the conduct or performance which is itself the subject of the allegation
Whether, given the nature of the allegations, it is possible for you to continue to fulfil the full duties and responsibilities of your office whilst the investigation is undertaken.
This is a precautionary suspension only and does not imply that any conclusions have been reached about your alleged role in the management of the historic abuse inquiry at this stage.”
Paragraph 2.1.1 of the Code requires the Previous Minister to notify the Chief Executive of any complaints relating to performance or capability against the Chief Officer, which letter is to be copied to the Chief Officer. Some two days after the meeting, Mr Power received a copy of the Minister’s letter to the Chief Executive, again dated 12th November 2008, reiterating the same concerns, informing him that he had decided to invoke the Disciplinary Code in relation to Mr Power and asking him to conduct a preliminary investigation pursuant to paragraph 2.1.2 of the Code. The Wiltshire Police have been commissioned by the Chief Executive to undertake that investigation under the name of “Operation Haven”, which investigation is still ongoing.
In his affidavit Mr Power complains strenuously about his treatment on 12th November. He points to the extremely short period in which these events took place. Mr Warcup received the interim report from the Metropolitan Police on 10th November 2008. He wrote to the Chief Executive on 11th November 2008 and the Chief Executive then in turn wrote on the same day to the Previous Minister. That evening, Mr Power was invited to attend the meeting on 12th November with (he says) no mention of its true purpose and he was suspended on 12th November after a meeting lasting no more than 35 minutes, prior to which he had no indication whatsoever as to the steps that were going to be taken. He points to the second letter handed to him making reference to a meeting “earlier today” indicating that whoever drafted it had assumed that there would be two meetings that day. Mr Power says that the steps taken appear pre-ordained and smack of a decision to suspend actually taken the day before.
His central complaint is that the Disciplinary Code, whilst permitting a suspension pending the outcome of the disciplinary procedure in serious cases (paragraph 2.3.3) creates a legitimate expectation that a complaint would first be the subject of a preliminary investigation by the Chief Executive in which he would be given full details of the complaint actually made and an opportunity to respond before any decision to suspend was made. There were a number of matters set out in his affidavit which he said would have been very pertinent to such a decision, which he had no opportunity to put.
Mr Power conceded in discussion that there must be circumstances where it would be appropriate to immediately suspend a Chief Officer, such as for example if he were being investigated or had been charged with a serious criminal offence, but the complaints here related to management issues.
We are conscious that the Minister has not responded to these criticisms of Mr Power (because the events of 12th November are not the subject of the application) and that we should therefore be slow to criticise the way Mr Power appears to have been treated. However, we feel constrained to voice our serious concern as to the fairness of the procedure apparently adopted by the Previous Minister. He was dealing with a person holding the most senior post in the police force and who had enjoyed a long and distinguished career. Bearing in mind the implications of suspension, we would have thought that fairness would dictate firstly Mr Power being given a copy of the media briefing and Mr Warcup’s letter and secondly an opportunity to be heard on whether there should be an investigation and, if so, whether he should be suspended during that investigation. Whatever disputes there may be as to precisely what occurred at the meeting with the Previous Minister, it is clear that no such opportunity was afforded to Mr Power. There is a stark difference between the way Mr Power was treated on 12th November and the way he has been treated by the Minister when the decision to suspend him was reviewed on 5th March 2009.
Mr Power submitted that there was nothing revelatory in the media briefing given by Mr Warcup and in support of that submission, he referred to us to the transcript of the BBC report of 31st July 2008, given shortly before Mr Harper’s retirement and at a time when Mr Harper was in charge. Quoting from that report:-
“Jersey’s ongoing hunt for answers
When the Jersey police announced back in February they had found “possible human remains” at a former children’s home on the island, it made headlines around the world.
There was some controversy over the initial findings, but now that they have completed their searches at Haute (sic) de la Garenne, police say they have found partial remains of at least five children.
They have uncovered 65 milk teeth, which their experts say could only have come out after death.
And over 100 fragments of bone, of which two have so far been identified. One has come from a child’s leg, another from inside a child’s ear. Work to identify others is still going on.
But Lenny Harper, the deputy chief of police in Jersey, told the BBC that for the moment it’s unlikely a murder inquiry will be opened. It has so far been impossible to date the remains precisely.
‘We were pinning our hopes very much on the process of carbon dating,’ he told me.
‘The latest information we’re getting is that for the period we’re looking at it’s not going to be possible to give us an exact time of death. The small number of bones that we’ve had carbon dated up till now have given us different readings.
‘On one bone we were told there was a probability that they died in 1650 but also a smaller probability that they died in 1960.’
Police have been investigating allegations of abuse at the home from the late 1940s onwards – many witnesses have given evidence of sexual and physical abuse in the 1960s and 1970s.
But Haute (sic) de la Garenne was built as an industrial School in the late 19th Century – and Lenny Harper said it is possible the remains could date from that time. Though the police have other evidence indicating that the remains were burned, and efforts made to conceal them, in the late 1960s or early 1970s.
‘ So whilst that possibility does exist … then you have to ask why would people go to all the trouble of moving the bones, of burning them at some stage, and of hiding them in a different place and then of covering them up. We don’t have answers to that, and that’s part of the problem,’ he said.”
Whilst the report of 31st July 2008 states that it was unlikely “for the moment” that any murder inquiry would be opened the clear implication is that children had been murdered at the site. In our view the subsequent briefing by Mr Warcup was revelatory.
Application for judicial review
On 9th January 2009 Mr Power applied for leave for judicial review of the decision of the Previous Minister made on 12th November 2008. In the meantime, the new Minister (who had taken office in December 2008) had familiarised himself with the events, taken advice and decided to review the suspension. Mr Power was formally informed of this by the Minister’s letter of 30th January 2009. He expressed the wish to see Mr Power in advance to review the material that he would be considering in deciding whether or not to continue the suspension so that Mr Power could make representations to him about that material. Accepting the principle that leave for judicial review should not be granted if an alternative remedy is available, Mr Power agreed to the adjournment of his application to await the outcome of the Minister’s review.
That meeting took place on 13th February 2009 and was attended by the Minister, the Head of the Employee Relations for the States of Jersey, Mr Power and representing him, Dr T Brain, Chief Constable of Gloucestershire. The meeting was taped and we have a typed transcript. The meeting went on into the afternoon and much of it was taken up with the status of the Disciplinary Code and its relationship to the statutory provisions.. The Minister ultimately determined that he had power under Paragraph 2.3.3 of the Code to suspend the Chief Officer at the outset of the procedure and certainly before any preliminary investigation. There were discussions about the material he would rely on. It was agreed that Mr Power should have the letter from Mr Warcup of 11th November 2008 and the briefing notes for the media presentation. Issues arose in relation to the Metropolitan Police report referred to in Mr Warcup’s letter in that the report contained sensitive material in relation to ongoing inquiries. The Metropolitan Police were not prepared for it to be used for the purposes of disciplinary proceedings. The provisional view at this meeting was that a redacted version would be made available.
The Suspension Review meeting took place on 5th March 2009 with the same attendees. It was also taped and transcribed. Further problems had been encountered with the Metropolitan Police report and the Minister resolved to proceed by ignoring the sections of Mr Warcup’s letter which related to that report, which proposal was ultimately accepted by Dr Brain.
An issue arose as to whether the Minister should have regard to what were described as the A.C.P.O. reports (the Association of Chief Police Officers). On 23rd February 2008, the day police uncovered what they thought was a piece of a child’s skull, Mr Harper, with the authority of Mr Power, approached A.C.P.O. to appoint a mentor and advice team for the purpose of Operation Rectangle. The team first visited on 29th February 2008 and made recommendations. Subsequent visits were made when the implementation of the previous recommendations was reviewed and further recommendations made.
As at 5th March 2008, Mr Power did not have access to those reports but the Minister was strongly urged by Dr Brain to do so. The thrust of Dr Brain’s submission was that the A.C.P.O. reports constituted contemporaneous reports by leading experts as to the management of Operation Rectangle in contrast to the report of Mr Warcup. Reference to such reports would balance that of Mr Warcup and could well be material to whether or not a suspension was justified. The Minister declined to do so as to open up one aspect of the matter would effectively be to be drawn into consideration of the underlying evidence which he determined was inappropriate in the context of an ongoing investigation.
There were further discussions about the criteria to be applied by the Minister, following submissions by Dr Brain. Dr Brain made submissions to the Minister on whether the suspension should be continued or not and after an adjournment over lunch the Minister returned to give a detailed decision the kernel of which was in the following terms:-
“I now turn to the criteria which I have set myself. (a) Are the allegations/circumstances sufficient (sic) serious to allow Section 233 to stand on its own. My answer to that is yes, they are. (b) Is there sufficient credible material for an investigation? Yes, there is. (c) Is it necessary and proportionate to suspend Mr Power? Now, I take this in bits. Firstly, the likelihood or unlikelihood of eventual dismissal. My view, without wishing to form any firm opinion, is that this is more than a serious possibility and is not unlikely. Secondly, are the matters investigated sufficiently serious? Yes, they are very serious and not just technical. Thirdly, the issue as to whether the Wiltshire investigation can properly continue while Mr Power remains in post. I cannot see how the Wiltshire investigation, which involves the evidence of other police officers, all of whom are alleged to be very much junior to Mr Power, can properly continue … and which will also involve the use of police systems. I cannot see how this can properly continue while Mr Power remains in post. He is the Chief Officer of Police and not some junior who can be moved across to some other section. Fourthly, public confidence. This is a major issue here. The November 2008 information led to great public concern about the management of the Haut de la Garenne investigation and, consequently, to great public concern in relation to the senior leadership of the States of Jersey Police, including that provided by Mr Power. I, therefore, conclude that it is both necessary and proportionate for Mr Power to remain suspended. Or, in fact, as I said before, I am making a decision as to whether he should be suspended as if I was making it originally, pending the investigation of these matters.”
The suspension having been reviewed and maintained, the decision of the Previous Minister on the 12th November was thus rendered otiose. On 22nd April 2009, Mr Power applied for and was granted leave for a judicial review of the Minister’s decision dated 5th March 2009, which application was unopposed by the Minister. The application in relation to the decision of 12th November 2008 was withdrawn.
Principles of judicial review
The classic statement of the core grounds for judicial review can be found in Lord Diplock’s speech in Council for Civil Service Unions v Minister for the Civil Service (1985) AC 374 at p.410:-
“By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.
I have described the third head as “Procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.”
In Reid v Secretary of State for Scotland (1999) 2 AC 512 at pages 541-542, Lord Clyde held that (page D58):-
“Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision-maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence.”
Sir Thomas Bingham MR approved the following approach to the issue of irrationality:-
“The Court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker.”
Thus the supervisory jurisdiction of the Court is different from an appeal on the merits. The issue is not whether the authority reached the right decision, or whether the Court agrees with it, but whether the public authority has committed some identifiable public law wrong. Judicial review is the main mechanism by which the Courts exercise their supervisory jurisdiction to prevent abuses of power by public authorities.
In cases involving convention rights, the principle of proportionality applies. In B v Secretary of States for the Home Department (2000) UKH RR 498 at 502c, Sedley LJ described this principle in this way:-
“In essence [proportionality] amounts to this: a matter which interferes with a Community or human right must not only be authorised by law but must correspond to a pressing social need and go no further than strictly necessary in a pluralistic society to achieve its permitted purpose; or, more shortly, must be appropriate and necessary to its legitimate aim.”
The differences in approach between the traditional grounds of review and the proportionality approach were considered by the House of Lords in Regina (Daly) v Secretary of State for the Home Department (2001) 2 AC 532 where Lord Steyn said this:-
“27. The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Minister of Agriculture, Fisheries, Lands and Housing  1 AC 69 the Privy Council adopted a three-stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:
“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”
Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases? Academic public lawyers have in remarkably similar terms elucidated the difference between the traditional grounds of review and the proportionality approach: see Professor Jeffrey Jowell QC, “Beyond the Rule of Law: Towards Constitutional Judicial Review”  PL 671; Professor Paul Craig, Administrative Law, 4th ed (1999), pp 561-562; professor David Feldman, “Proportionality and the Human Rights act 1998”, essay in The Principle of Proportionality in the Laws of Europe edited by Evelyn Ellis (1999), pp 117, 127 et seq. The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith  QB 517, 554 is not necessarily appropriate to the protection of human rights. It will be recalled that in Smith the Court of appeal reluctantly felt compelled to reject a limitation on homosexuals in the army. The challenge based on article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the right to respect for private and family life) foundered on the threshold required even by the anxious scrutiny test. The European Court of Human Rights came to the opposite conclusion: Smith and Grady v United Kingdom (1999) 29 EHRR 493. The court concluded, at p 543, para 138:
“the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights answered a pressing need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court’s analysis of complaints under article 8 of the convention.”
In other words, the intensify of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.
28. The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell  PL 671, 681 has pointed out the respective roles of judges and administrators are fundamentally distinct and will remain so. To this extent the general tenor of the observations in Mahmood  1 WLR 840 are correct. And Laws LJ rightly emphasised Mahmood, at p 847, para 18, “that the intensity of review in a public law case will depend on the subject matter in hand.” That is so even in cases involving Convention rights. In law context is everything.”
As can be seen below, an issue arises in this case as to whether Mr Power’s Convention rights are in fact engaged and therefore whether the principle of proportionality which he urged upon us comes into play.
Burden of proof
In cases involving traditional grounds of review, the burden is upon Mr Power as the applicant to prove on the balance of probabilities that the decision of the Minister on 5th March constituted an abuse of his administrative powers and this on one or more of the grounds of illegality, irrationality or procedural impropriety. The Solicitor General accepted that if Mr Power’s Convention rights are engaged then the burden is upon the Minister to satisfy us on the balance of probabilities that the decision to continue the suspension of Mr Power was necessary and proportionate.
Mr Power’s submissions
Mr Power put forward a number of submissions in his skeleton argument which he developed for us and which we take in turn.
Accountability and inherent unfairness
Following the change to ministerial government, the Chief Officer is now no longer accountable to a committee of persons but to a single Minister. The only document governing the exercise of his disciplinary powers is the Disciplinary Code which the Minister agreed was not well drafted. At the core of his concern is the accountability of the Chief Officer to a single Minister, who is under no obligation to consult with other parties, and whose powers are not subject to any of the checks and balances which he says are seen as fundamental in comparable jurisdictions, of which he gave examples. He pointed to the recommendation of the Clothier Committee for the establishment of a police authority, a recommendation agreed by the States in 1998, but which is yet to be implemented.
Mr Power sought to convince the Court that his accountability to a single Minister is now part of a structure which is contrary to recognised good practice, contrary to the will of the States, and part of an arrangement which is inherently unfair. This is particularly the case in circumstances in which the Chief Officer of Police perceives his duties and responsibilities in a way which is contrary to the political agenda of the single Minister to whom he is accountable.
As a very experienced police officer, Mr Power’s views on accountability and the inherent unfairness of the current arrangements should carry some considerable weight in the appropriate forum, but this Court is not the appropriate forum. The law gives the power to suspend to the Minister, and it is not for the Court to usurp the legislature by conducting a far-reaching inquiry with a view to effecting legislative change through case law. Our concern is and only can be the regularity of the decision made by the Minister on 5th March within the existing legal framework. Accordingly, we take the view that the concerns expressed by Mr Power in relation to accountability and inherent unfairness are not matters that we can take into account.
Mr Power did not seek to criticise the procedure laid down in the Disciplinary Code for hearings to be conducted by the Minister. His contention was that as a matter of construction, the power to suspend could only come into play after a preliminary investigation had been undertaken pursuant to paragraph 2.1.2 but, as previously mentioned, in discussion he accepted that both as a matter of construction and as a matter of good sense, there must be circumstances in which the Minister may suspend the Chief Officer pending the outcome of the procedures set out in the Disciplinary Code, as made clear in paragraph 2.3.3. Furthermore, the power of the Minister to suspend is enshrined in primary legislation, namely Article 9.2 of the Police Force Law which is in the following terms:-
“The Chief Officer may be suspended from office by the Minister which (sic) shall refer the matter to the States at their first sitting and may be dismissed from office by the States.”
He referred us to the Minister’s own comments on the poor drafting of the Disciplinary Code and submitted that the Minister should have sat down with him and his adviser to negotiate a new Disciplinary Code that would have included the necessary checks and balances and this before proceeding any further. In the context of a disciplinary process that had been engaged, we do not regard that suggestion as tenable. The current Code, whether poorly drafted or not, binds both parties.
Introduction of new criteria
At the conclusion of the meeting on 5th March, and on delivering his judgment, the Minister said this:-
“But, put at its simplest, the issue boils down to this. Was the historic abuse inquiry mismanaged resulting in unnecessary adverse international publicity for Jersey and its people, difficulties in the conduct of resulting prosecutions and wasted expenditure?”
Mr Power says he has no recollection and can find no record of the issue of adverse publicity or the difficulty in the conduct of prosecutions being put to him, or him being asked to respond to such matters in any way at any time. These issues are not included in the terms of reference for Operation Haven and as far as is known, nobody has been tasked with seeking evidence to support or refute what the Minister alleges. He asked the Court to consider whether the introduction of these issues by the Minister amounted to an “ambush defence” which had been introduced by him after the opportunity to make representations had ended. If so it may support the conclusion that the “right to be heard” had been denied in respect of these matters.
In our view, the comments of the Minister have been taken out of context and do not constitute the late introduction by him of new criteria. He was simply summarising the core of the complaint against Mr Power namely that Operation Rectangle was mismanaged, with the results that flowed from that. It did not form any part of the criteria for his decision which he later addressed in clear terms and which we have set out above.
Mr Power complains that having excluded the reference in Mr Warcup’s letter to the report of the Metropolitan Police, the Minister effectively brings that report back into play in his decision by referring to the suspension letter which (as quoted above) gives a number of bullet point examples taken from the Metropolitan Police report. However, in our view, the Minister was simply seeking to summarise the nature of the complaints against Mr Power taken from the suspension letter, Mr Warcup’s letter and from the terms of reference in the Haven investigation. From page 75 of the transcript it is clear that what he was excluding (with Dr Brain’s agreement) was that section of Mr Warcup’s letter commencing with the heading “Metropolitan Police review interim report”, comprising three paragraphs on page 7 of the letter and six paragraphs on page 8 of the letter. There is nothing to suggest that he went back on his proposal.
Mr Power further complained about the Minister’s refusal to have regard to the A.C.P.O. reports in coming to his decision. By excluding reference to the Metropolitan Police report, the Minister was relying on evidence from the single source of Mr Warcup, but available to the Minister could have been the contemporaneous reports from A.C.P.O. At every stage Operation Rectangle was mentored and advised by the world’s leading experts. Surely, says Mr Power, any reasonable Minister would at least have looked at these reports, before coming to a decision on suspension. Such reports would undoubtedly have come into play in any preliminary investigation and would therefore have influenced the outcome but whether or not it would have affected the outcome, the complaint is that it was grossly unreasonable for the Minister not even to look at these reports at all.
At paragraph 16 of his affidavit of 14th May 2009, the Minister deals with this complaint in the following manner:-
“I do not accept the complaint that I failed to consider relevant evidence. I could not consider the reports prepared under the direction of the Serious and Organised Crime agency (SOCA) [ACPO] alone because they are only one part of a whole range of documentary evidence available relating to the police management of the historic abuse inquiry. I gave Mr Power the opportunity on the 5th March (see page 52 of the transcript onwards) to persuade me that I needed to adopt a different approach on this issue. However, after hearing representations on the point, I came to the conclusion that in order to consider the SOCA reports properly and determine what weight to be attached to them, I would have had to hear oral evidence from the author(s), consider what information had been given to them and the nature of the enquiries conducted by them. I would have had to go through the same exercise with every other report relating to the management of the historic abuse inquiry. This process is disproportionate when the decision under consideration is whether or not an individual should be suspended from office.”
Initially, we had some sympathy with Mr Power’s submissions in this respect. The complaint against him related to his management of Operation Rectangle, made after the event and here apparently were contemporaneous reports on that very subject. The A.C.P.O. reports have since been disclosed to Mr Power and were contained in the Court’s bundle. Should not the Minister at least have looked at them?
The existence of the A.C.P.O. reports was acknowledged by Mr Warcup in his letter of 10th November 2008 where he stated that their advice concerning the development of effective investigative parameters had not been followed. Thus, the complaint of Mr Warcup had been made in the express knowledge of and notwithstanding the A.C.P.O. reports and we agree that sight of the A.C.P.O. reports themselves would not actually assist the Minister without very extensive further inquiries – in effect the precise role being undertaken by the Wiltshire police in Operation Haven. We therefore concluded that the decision not to have regard to the reports themselves was rational and certainly within the range of responses open to a reasonable Minister in his position.
Reliance on Warcup
Mr Power argued that the Minister should be slow to rely on the opinion of a single individual namely Mr Warcup, particularly when he has a significant professional and financial interest in the outcome. He set out a number of grounds upon which he felt Mr Warcup’s opinion could be challenged but he did not impugn Mr Warcup’s reputation or motives at the review. The Solicitor General referred us to the English Court of Appeal decision of R-v-Newham Borough Council  EWCA Civ 55 where Laws LJ stated:-
“In my judgment the CREEDNZ Inc. case (via the decision In re Findlay) does not only support the proposition that where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by the decision-maker, then it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review. By extension it gives authority also for a different but closely related proposition, namely that it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor accepted or demonstrated as such.”
We accept this as authority for the proposition that the Minister is entitled to come to his own view as to the weight to be attached to the allegations made by Mr Warcup. He had clearly considered the allegations carefully and concluded that they were sufficiently credible. We can see nothing irrational or unreasonable in the Minister doing so.
Mr Power was suspended on 12th November 2008 and by 5th March 2009 had therefore been suspended for just under four months. The Minister had been told that the report by the Wiltshire police was due by the end of June, which meant that Mr Power would have been suspended for some 7½ months. By the time of the hearing before us, the report had not arrived. Mr Power is in the course of preparing detailed submissions to the Wiltshire police and he estimates that the report will not be finalised much before the end of this year.
The Minister was clearly conscious of the effect of suspension on Mr Power (page 99 of the transcripts) but Mr Power invited the Court to consider whether the Minister was in fact engaged in a process of “dismissal by stealth” which would effectively bypass the need for an evidence based assessment and a fair hearing. In any event, he asked the Court to agree that the potential for a long suspension to evolve into a constructive dismissal entitled the Court to set a higher test to whether the Minister’s actions were justified, necessary and proportionate and whether he had successfully discharged the burden of proof in that regard.
Judging from previous precedents, he maintained that the suspension of a person of Chief Officer rank was normally a career ending event and in perpetuating the suspension the Minister knew full well what he was doing. The longer a suspension, the less the probability of the Chief Officer successfully resuming a career. As it transpires, Mr Power is due to retire in any event in 2010.
We can sympathise with anyone in Mr Power’s position and can understand the deleterious effect of a lengthy suspension. However there is no evidence that the Minister is engaged on a cynical exercise of his powers to bring about a constructive dismissal without a fair hearing. We address the issue of whether Mr Power’s Convention rights are engaged below, but to equate the power to suspend to a de facto dismissal would be to seriously limit the circumstances in which the power could be exercised, if ever, because until the investigation of the complaint is completed, the Minister is unlikely to be in a position to mount a case for dismissal.
In this case, the Minister considered both the length of time Mr Power had been suspended and the estimated time for the completion of the investigation. That investigation is being conducted by the Wiltshire Police and not by him, and he has little option other than to await its outcome. There is no evidence that this investigation is not being pursued with all due diligence and speed.
Mr Power asserts that the procedure followed by the Minister was flawed in that he did not answer certain correspondence prior to the review, and did not tell Mr Power and Dr Brain in advance of the case against him. He accepted however that he was given all the material which the Minister would be considering in deciding whether or not to continue the suspension in advance of 5th March 2009 meeting. That assertion is not supported by any case law. The material given to him made abundantly clear the issues under consideration by the Minister and we agree with the Solicitor General that the Minister was not under a duty to analyse that material and categorise it in accordance with disciplinary criteria. The Minister’s decision refers to the material that he took into account and demonstrates that he took into account Mr Power’s representations about that material. The Minister was considering such material against the question of suspension, and not dismissal.
Mr Power submitted that we should apply the doctrine of proportionality but this presupposes that his Convention rights had been engaged. Mr Power did not specify precisely which Convention rights he relied on, but it would seem that Article 6 is the most appropriate. Article 6(1) of the Convention states:-
“In the determination of his civil rights and obligations or of any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
We agree with the Solicitor General that the Minister’s decision on 5th March 2008 was not determinative of Mr Power’s civil rights as defined by Article 6(1). It was rather in the nature of a provisional decision and all of Mr Power’s contractual rights, for example to pay and to pension provisions, are unaffected. The Solicitor General referred us to paragraph 4.6.6 of the Human Rights Law and Practice, Third Edition as follows:-
“In the determination of Civil Rights and Obligations
4.6.6 Article 6 covers all proceedings, whether between two private individuals or between an individual and the state, and including constitutional court proceedings, the result of which is ‘decisive’ for civil rights and obligations. However, a tenuous connection or remote consequences do not suffice: the civil rights and obligations must be the object, or one of the objects, of the ‘contestation’; and the result of the proceedings must be directly decisive of such a right. Thus, in the le Compte v Belgium case, the ECtHR held that art 6 applied to proceedings before a medical disciplinary tribunal which had suspended the applicant Belgian doctors, because those proceedings were directly decisive of the applicants’ private law right to practise medicine. By contrast, in Fayed v United Kingdom the mere fact that an official investigation had made findings detrimental to the applicants did not bring that investigation within the scope of art 6, because the report was not dispositive of any legal right or obligation.”
The issue was considered in the case of R (Malik) and Waltham Forest PCT and Secretary of State for Health (2006) EWHC 487 (Admin) where Collins J said this:-
“That provides some apparent support for Mr Engelman’s submission. However, it is necessary in my judgment to consider the nature of the proceedings which led to the suspension. If the suspension was a final order, it is apparent that Article 6 may be engaged in accordance with the principle set out in Le compte v Belgium. But if the suspension is an interim measure and there is no financial penalty involved in that payment continues, in my judgment the decisions which regard interim measures to be outside Article 6 should prevail.”
Mr Power’s position is to be contrasted to that of the doctors in Le Compte whose suspension prevented them from practising as doctors and earning a living. The suspension of Mr Power does not engage Article 6. Mr Power also raised the potential effect of the decision to suspend him on his right to a family life under Article 8 of the Convention, but again we agree with the Solicitor General that his rights in this respect are not affected by the suspension.
In terms of “illegality” Mr Power did not assert that the Minister did not understand the Code and the Law that regulated his decision making and he accepted that the Minister had the power to suspend the Chief Officer at the outset of any disciplinary procedure and before any preliminary or other investigation.
As to ”irrationality”, the Minister was conducting a review of the decision taken by his predecessor in November, but in essence two questions arose both of which the Minister answered in the affirmative:-
Was there sufficient material to justify a disciplinary investigation? If so,
Could Mr Power remain in post whilst that investigation took place?
Those questions have to be addressed in context, which we would summarise as follows:-
Mr Power was the Chief of Police and Mr Harper the Deputy Chief and Senior Investigating Officer in respect of Operation Rectangle.
Mr Harper retired from the force in July 2008, and was replaced as Deputy Chief Officer and senior investigating officer in respect of Operation Rectangle by Mr Warcup.
Mr Warcup conducted a review of Operation Rectangle and reached conclusions which were presented to the Ministers and to the media that were revelatory and which brought into serious question the management of Operation Rectangle.
At the same time that the conclusions were published, the Minister received, via the Chief Executive, a report from Mr Warcup, raising significant issues about the management of Operation Rectangle and Mr Power’s role in that.
These are serious matters and seen in context, we conclude that the decision of the Minister that there was sufficient material to justify a disciplinary investigation was rational and within the range of responses open to a reasonable Minister in his position. In relation to the second question, of course it may have been possible, as Mr Power submitted, for him to remain in post pending the investigation. He said that he could have assisted the investigating officers in gathering evidence for that investigation. However it was a perfectly rational decision of the Minister to conclude otherwise and again it was within the range of responses open to a reasonable Minister in his position.
Turning to procedural impropriety, the procedure adopted by the Minister in conducting his review was procedurally fair; in contrast, we have to say, to the procedure apparently adopted by his predecessor in November 2008. In the first stage, on 13th February 2009, the Minister invited Mr Power to make representations to him on the status of the Code, the relationship of the Code to the statutory provisions and the documents and other information which the Minister should take into account in making his decision. The Minister informed Mr Power of the advice received by him, so that Mr Power could comment upon it and put forward a different view if he wished to do so. Mr Power was subsequently provided with the information which the Minister would be taking into account. The second part of the review took place on 5th March 2009, when the Minister gave Mr Power the opportunity to make representations about the criteria which would govern the Minister’s decision and about whether the suspension should be continued or lifted. At the conclusion of the hearing, Mr Power was informed by the Minister that he would remain suspended from office.
Although we have found that Mr Power’s Convention rights are not engaged, we consider the decision of the Minister to continue the suspension as both necessary and proportionate. Once it is concluded that an investigation into Mr Power’s role in Operation Rectangle is to take place, it becomes necessary to ensure that the investigation is conducted properly and without any interference. As the Minister remarked it is difficult to see how that can be done when the investigation concerns the Chief of Police himself. Suspension is a proportionate means to achieve his removal from his post during the conduct of the investigation in that it is an interim measure under which all of his contractual rights are maintained.
We conclude that there has been no abuse of the Minister’s powers and the application is therefore dismissed.
Police Force (Jersey) Law 1974.
Police (Complaints and Discipline) Jersey Law 1999.
Police (Complaints and Discipline Procedure)(Jersey) Order 2000.
Council for Civil Service Unions v Minister for the Civil Service (1985) AC 374.
Reid v Secretary of State for Scotland (1999) 2 AC 512.
B v Secretary of States for the Home Department (2000) UKH RR 498.
Regina (Daly) v Secretary of State for the Home Department (2001) 2 AC 532.
R-v-Newham Borough Council  EWCA Civ 55.
Human Rights Law and Practice, Third Edition.
R (Malik) and Waltham Forest PCT and Secretary of State for Health (2006) EWHC 487 (Admin).