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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Warren -v- His Excellency, the Lieutenant Governor [2017] JRC 097 (21 June 2017) URL: http://www.bailii.org/je/cases/UR/2017/2017_097.html Cite as: [2017] JRC 097, [2017] JRC 97 |
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Before : |
Michael J. Beloff, Esq., Commissioner, sitting alone. |
Curtis Francis Warren
-v-
His Excellency the Lieutenant Governor
Advocate S. M. Baker for the Applicant.
Advocate D. J. Benest for the Respondent.
JUDGMENT
THE commissioner:
1. This is an application ("the Application") of Curtis Francis Warren ("the Applicant") for leave to apply for judicial review of a decision of the Lieutenant Governor by which His Excellency refused to refer the Applicant's conviction for conspiracy to import cannabis resin back to the Court of Appeal ("the Decision"), pursuant to the powers conferred on His Excellency by Article 43 of the Court of Appeal (Jersey) Law 1961 (as amended) ("the 1961 Law"). At the core of the prosecution case was a recording obtained by the Jersey police from an audio device secreted in a French hire car without proper authority.
2. The Royal Court Rules stipulate that presumptively an application for leave is made ex parte but allow for the attendance of the putative Respondent, here His Excellency (Royal Court Rules 16.2.(4)). Given the importance of the issue not only to the Applicant but more generally, of which I am fully cognizant, I invited His Excellency to be represented and was greatly assisted by the advocacy of David Benest on his behalf as I was by that of Stephen Baker for the applicant as well as by their respective skeleton arguments.
3. The test for such leave in this jurisdiction, as applied in Welsh v Deputy Judicial Greffier [2009] JLR Note 37, is that set out by the Privy Council in Sharma v Brown-Antoine [2007] 1 W.L.R.780:-
4. For an application for judicial review to succeed, the Royal Court would have to be satisfied that His Excellency's decision was unlawful, irrational or flawed by procedural impropriety (Planning & Environment Committee v Lesquende Limited [1998] JLR 1) and for present purposes I must be satisfied that one or more of those grounds is arguably established on the material before me.
5. Advocate Benest made clear that, were leave to be granted, His Excellency reserved the right to adduce further evidence than that already provided (to which I refer later). Accordingly, I could not consider whether it was appropriate, if permissible, to treat this application by way of a rolled up hearing allowing the opportunity for - but not compelling - an outcome that leave was given, but judicial review refused which would accelerate the ultimate disposition of the substantive application, were the Applicant to seek to take his case to the Court of Appeal or beyond.
6. Article 43 of the 1961 Law provides, as far as material, as follows:-
7. In Gallichan v His Excellency the Lieutenant Governor [2013] JRC 106A ("Gallichan") Sir Christopher Pitcher, Commissioner, sitting alone said:-
And at paragraph 59 of the same judgment:-
8. I respectfully adopt that analysis, so far as material, noting only that in the present case, as in Gallichan, there would appear to be no scope for the Court of Appeal to apply the proviso and His Excellency in his decision expressly made no reference to it. I need not therefore venture any view on whether, when and, if so, how any future Lieutenant-Governor might need to consider it. Obviously, if relevant, the proviso places a further obstacle in the path of a person convicted to have his second appeal succeed.
9. His Excellency has revised the Guidance, which applied at the time of Gallichan, which now reads in material part as follows:-
Guidance as long as itself intra vires (which the current version is) creates an expectation that it will be followed, absent exceptional circumstances Fordham Judicial Review 6th ed.6.28.
The Court of Appeal has jurisdiction, under Article 34 of the 1961 Law, to admit 'fresh evidence' before it only where:-
(i) It was not available at the trial:
(ii) It was relevant to the issues; and
(iii) It was capable of belief.
If the Court admitted the evidence, when deciding what effect it should have, the Court would consider whether there might have been a reasonable doubt in the minds of the jury as to the Appellant's guilt if that evidence had been given. Norris v AG [2014] JCA 087 paras 48-50.
10. In R v CCRC ex parte Pearson, cit.sup it was held that, when determining whether to make a referral to the Court of Appeal the Criminal Cases Review Commission ("the CCRC") must consider whether the Court of Appeal would allow the fresh evidence to be adduced:
11. By parity of reasoning, in essence, His Excellency had to ask himself two basic questions:-
(i) Did he consider that, if reference was made there was a real possibility that the Court of Appeal would receive it? ("admissibility")
(ii) If so, did he consider that there is a real possibility that the Court of Appeal would not uphold the conviction?("impact")
The exercise of answering such questions was quintessentially one of judgment.
12. On 19th February, 2015, the Applicant wrote to His Excellency as follows:-
"The Lieutenant Governor is respectfully invited to make the enquiries identified below and further to refer the case to the Court of Appeal in the light of significant fresh evidence which has recently been disclosed which reveals that police officers lied to the Royal Court in the original proceedings and furthermore that Law Officers deliberately obscured the true position regarding the investigation into the activities of Curtis Warren and his co-accused.
This evidence is derived from the accounts given by police officers at a disciplinary hearing which took place in January 2013 and which was provided to the defence in September 2013. Furthermore, it is submitted that there is a compelling basis for the suggestion that there exists further disclosable material which the prosecution has declined thus far to provide to the defence." ('The Request for the Reference')."
13. In a letter dated 16th February, 2016, the Applicant provided clarification of the words "deliberately obscured the true position regarding the investigation into the activities of Curtis Warren and his co-accused" by setting out details of the allegations of misconduct said to be committed by Law Officers in this case and making a complaint about disclosure ('The Letter of Clarification').
14. The terms of reference of the Review stated:-
"His Excellency the Lieutenant Governor, pursuant to his powers contained in Article 43 of the Court of Appeal (Jersey) Law 1961, as amended, having received detailed representations from Curtis Francis Warren in relation to his conviction on 7th October 2009, has granted a review of that conviction.
The review will specifically examine the following:
(1) All aspects of disclosure and decisions made about disclosure which were or were not made by the Crown prior to and during the trial which resulted in conviction.
(2) Any fresh evidence or new argument touching upon the issue of disclosure, not previously raised at trial or during the appeal process.
(3) If there is a new argument or fresh evidence arising out of the issue of disclosure, to consider whether there is a real possibility that the conviction would not be upheld by the Court of Appeal.
(4) Independent Counsel from outside the jurisdiction of Jersey will conduct the review as set out above, and then advise His Excellency on the applicability of Article 43. A second independent Counsel will advise His Excellency on the content of the review and the applicability of Article 43.
(5) His Excellency will consider the results of the review and advice from both independent Counsel, and will decide whether or not to refer the conviction to the Court of Appeal on the grounds set out in the aforementioned Article 43(a) or (b).
(6) Both interested parties to this review agreed with the terms of reference."
15. Sub-paragraph (6) was confirmed as accurate before me. Indeed, in the Representations of 19th February, 2015, it was asserted on the Applicant's behalf that, absent the disclosure sought "the only way for it to be fairly evaluated is if the Lieutenant Governor instructs independent counsel to examine it against the relative criteria" (paragraph 32) which is exactly what was done.
16. In the Decision His Excellency said at paragraph 4 entitled "Legal principles I have applied in reaching my decision":-
And at paragraph 5 entitled 'Article 26 of the Court of Appeal (Jersey) Law 1961 - Fresh Evidence':
17. I cannot fault this approach in point of law and no challenge was made to it as such; the challenge was rather based on how that approach was applied in the particular circumstances of the Applicant's case, given the unfolding sequence of events which both preceded and succeeded his conviction.
18. The key chronology is as follows.
(i) On 20th March, 2008, Sir Richard Tucker, Commissioner refused an application to stay the proceedings against the Applicant who was ,with others, charged with conspiracy fraudulently to evade the prohibition on the importation of a Class B controlled drug i.e. cannabis in the amount of 180 kg and with a street value in excess of £1 million.
(ii) On 12th August, 2009, the Court of Appeal dismissed the appeal against the refusal of a stay ("the Court of Appeal's stay decision").
(iii) On 7th October, 2009, the Applicant and the others were convicted of the conspiracy; Warren, as the mastermind, was sentenced to 13 years imprisonment.
(iv) On 5th May, 2010, the Court of Appeal dismissed the Applicant's appeal against conviction ("The Court of Appeals conviction decision").
(v) On 28th March, 2011, the Privy Council dismissed the appeal against the Court of Appeal's stay decision;
(vi) On 15th January, 2013, disciplinary charges against three of the policeman involved in the investigation of the conspiracy were dismissed on the basis that he had heard "different evidence" to that before the Privy Council. The Chief Constable of Durham who presided had "no doubt that the officers have done nothing reprehensible" (paragraph 29).
19. The essence of the Applicant's case in this application, as foreshadowed in the Request for a Reference and Letter of Clarification is twofold:-
(i) there is actual new material, postdating the Privy Council's decision, namely the evidence given in the Disciplinary proceedings against the investigating officers which, if available, would have tilted the balance in favour of a stay of the criminal proceedings; and
(ii) there is potential new material in the possession of Advocate Sinel who represented some of the officers in the Disciplinary proceedings which his Excellency should have considered, but did not do so.
20. 'Fresh evidence' would prima facie embrace evidence given in the disciplinary proceedings which was ex hypothesi not available to the Privy Council or lower courts. If that evidence was repetitious of evidence given or relied on before those courts even if, in one sense, fresh, it could not be relevant to the issue of whether to refer or not. (It is not, however, necessary for me to delve too nicely into the issue of what is or is not fresh evidence. Stroud's Judicial Dictionary 8th edition shows that the concept has been variously defined and deployed in different statutory contexts and that the boundary between novelty and relevance has been sometimes blurred).
21. As to (i) above, there are three preliminary points to consider.
22. First although the Applicant seeks in form, if not in fact, to challenge the Court of Appeal's conviction decision as distinct from its stay decision as Lord Dyson said in the Privy Council at para 4 "A successful appeal (i.e. against the refusal of the stay) would inevitably lead to the quashing of the conviction" and, in my view, Article 43 is therefore properly engaged.
23. Second, although, given that unlike in Gallichan, the case has travelled as far as the Privy Council, at first blush it appears odd for the application to be one to refer the case back to a lower court, in my view there is nothing in Article 43 which disqualifies it for such a reason, and I agree with both Advocates that in principle any disagreement with the decision of the Court of Appeal made pursuant to a reference could itself be taken in accordance with the appropriate procedure to the Privy Council.
24. Third given that the Court of Appeal on any reference might have to resolve the tension alleged by the Applicant to exist between the case finally presented to the Privy Council on the part of the prosecution and the evidence that emerged in the disciplinary proceedings through means (unusually) of a hearing more suitable for a court of first instance, this did not present itself an insuperable hurdle such as would compel his Excellency to dismiss an otherwise viable application, see Article 34 Court of Appeal Jersey Law 1961 (Supplemental Powers of the Court) although the putative need to deploy such means may itself raise questions as to the ability of the Applicant to cross the threshold required to obtain such a reference.
25. To appreciate the full force of the application it is necessary to quote from the leading judgment in the Privy Council of Lord Dyson which other members of the Board Lord Hope, Rodger Brown and Kerr, while adding observations of their own, selectively quoted below, agreed (at paras 45-51):
26. Lord Hope spoke of the issue as "much more finely balanced" than the Commissioner thought (para 63). Lord Rodger agreed with Lord Dyson (para 69). Lord Simon Brown "very finely balanced indeed'' (para 78) and Lord Kerr for his part made his condemnation of the police behaviour "unequivocally clear" (para 81).
27. It was cogently argued by Advocate Baker with a range of metaphor both that it is clear that very little more by way of evidence of prosecutorial misconduct would have been required to persuade the Privy Council to have ruled in favour of a stay on grounds of abuse, and that the Court of Appeal on any reference would, faithful to the approach of the apex court likewise require very little more to reach the same conclusion; moreover it is now apparent that such evidence exists. I accept the first part of that argument but, for reasons I develop below, reject the second.
28. In broadest outline Advocate Baker submits that whereas before the Privy Council the illegality of what was done by way of surveillance with the conscious connivance of the officers was conceded ("version one") in the disciplinary proceedings the officers defended their behaviour as both lawful and proper (as indeed was the conclusion of those proceedings) ("version two"); hence, contrary to the findings of the Privy Council, they and the Courts below) were indeed misled, hence aggravating in a material way the misconduct relied on by the Privy Council in the balancing exercise it carried out.
29. In my view the essential flaw in that way of putting the Applicant's case is that version two is suggestive of a lower degree of misconduct than version one and hence could not of itself have enhanced the case for a stay.
30. Advocate Baker resourcefully advanced a variation of his primary theme, namely that on one or other occasion - it mattered not which - the police were not telling the truth and that to countenance the upholding of a conviction based, inter alia the testimony of dishonest officers was an affront to justice. I cannot accept that secondary line of attack either. Many a conviction has been upheld in criminal courts where police officers whose testimony has been relied on were guilty of gilding the truth or even fabricating evidence as long, of course, as there was other evidence sufficient to justify conviction. Whether a prosecution should be stayed in such circumstances is a question of fact and degree; there is no absolute rule one way or the other.
31. I turn from the general to the particular. The 'fresh evidence' from the police disciplinary hearing in 2013 was said to be that discussed in paragraphs 32 to 42 below Issues 1-4, it being, I should note "accepted that their evidence at the disciplinary hearing broadly mirrored their evidence at the hearing before the Commissioner". (Submissions in response to His Excellency's Provisional Submission paragraph 7 (ii)).
32. The officers claimed that Crown Advocate Jowitt and junior counsel Nigel Povoas told them to lie in witness statements about what they were instructed to say to French police officers during the unlawful fitting of the audio device in the French hire car. Consequently, they also lied about those instructions in their evidence to the Royal Court at the abuse of process hearing in March 2008 [Representation, to his Excellency paragraphs 47-51, Submissions in response to the His Excellency's provisional decision ("Response"), (paragraphs 4-13, 14(xii-xiv)). That claim was wholly inconsistent with what the Jersey police said in evidence in 2008 at the abuse hearing. It necessarily follows that either they lied about those matters in the abuse hearing, in which case the Courts seized of that issue had been misled, contrary to the conclusion of the Privy Council, or, this being the only other possibility, they lied in 2013.
33. His Excellency's position was as follows:
(i) At some point on 18th July, 2007, before travelling to France, PC Courtness and PC Hart were in a room with DI Pashley and DS Beghin. PC Courtness was told by DS Beghin to tell the French police, if they asked, that the audio device was a 'back-up' tracking device. That was a lie.
(ii) Both in their evidence at the abuse hearing and the disciplinary hearing, all the police officers accepted that PC Courtness and PC Hart were given an instruction to lie to the French police if the need arose. The account given at the abuse hearing was that the instruction was a formal part of the briefing.
(iii) At the disciplinary hearing, the account given by all those present (save PC Hart) was that the instruction given by DS Beghin was not a formal part of the briefing but more of an 'off the cuff' remark. DS Beghin asserts that there was no mention of the 'off the cuff' nature of the remark in his statement before the abuse hearing because he had been told by Crown Advocate Jowitt and Mr Povoas not to include such a reference.
(iv) The difference in the accounts, which is stated to be the 'fresh evidence' upon which the Applicant seeks to rely, is as to the nature of the instruction (ie whether it was a formal instruction or an 'off the cuff' remark). All agreed, both before the abuse hearing and the disciplinary hearing, that the instruction to lie was given.
(v) The nature of the instruction was relevant to the disciplinary hearing, as it might have had some bearing on the mitigation available to the various officers whose conduct was under review.
(vi) The nature of the instruction was irrelevant to the abuse hearing. It was the fact of the instruction having been given which was relevant, not the manner in which it was given.
(vii) Mr Povoas denies any suggestion that he instructed the officers as to what to include in their statements and/or evidence to the abuse hearing.
(viii) In any event, even if the officers had been instructed not to mention the nature of the instruction, the fact of the instruction was included in the statements and/or evidence. The direction allegedly given by Crown Advocate Jowitt and Mr Povoas would have simply had the effect of leaving out an issue which was irrelevant to the consideration that the Royal Court needed to undertake.
(ix) The fact that the nature of the instruction to lie was irrelevant can be seen from the fact that no questions were asked of the officers at the abuse hearing as to the nature of the instruction or the manner in which it was given.
34. I find that response cogent. The core of the misconduct which incurred the criticism of the Privy Council and lower Courts was the unauthorised planting of the audio device in the French car and the instruction admittedly given to the officers to lie to their French opposite numbers about the nature of the device see e.g. per Lord Hope para 61. Whether the instruction was formal or informal was peripheral. Still more peripheral was whether DS Beghin had been told by Crown Advocates to omit any reference to the 'off the cuff' nature of his remark in his 2008 statement. In the Representation at para 50, it is asserted that DS Beghin accepted at the Disciplinary Hearing that he had lied on oath at the direction of the Crown (para 50). The reference given in support of that assertion shows that his evidence on this point was far less clear cut (Transcript 35). Even assuming, contrary to Mr Povoas's denial, that they had instructed the officer to make no mention about the character as opposed to the fact of the instruction, it would accordingly not have advanced the case for a stay in any significant way. (I note in fairness to Mr Povoas that in an email to DI Minty of 16th January, 2008, he stressed "It is of course of the utmost importance to make your statements openly and candidly without interference or influence of others" which would be at odds with the attitude alleged against him). As Lord Kerr said in his summary of the principles which he gained from recent jurisprudence "a stay should not be ordered for the purpose of punishing or disciplining prosecutorial or police misconduct" (para 83).
35. The officers claimed that they had a meeting with their legal representative (Crown Advocate Gollop) as well as a member of the Police Association (Mr Thomas) at which they were informed that the Attorney General had decided to concede unlawfulness by the police in order to protect Crown Advocate Jowitt [Representation, paragraphs 52-53; Response, paragraphs 14(v-vii); accordingly the Privy Council and the lower Courts were misled by provision of an incomplete picture of the reasons for and circumstances of the concession.
36. His Excellency's position was as follows:-
(i) The concession made was that the police behaviour was unlawful as being contrary to the laws of France, Belgium, the Netherlands and Jersey. It was also accepted that the French police were lied to as to the nature of the equipment which was put into the hire car. The police at the disciplinary hearing argued that the concession ought not to have been made and that their actions were lawful.
(ii) The Review considered whether or not the decision to concede unlawfulness had been properly made. The conclusion reached was that it had been properly made, as the actions of the police had been unlawful.
(iii) As to the claim that Crown Advocate Gollop had advised the police officers that the concession was made to protect Crown Advocate Jowitt. Crown Advocate Gollop when asked, stated that he did not make the remarks attributed to him and did not understand how the concession would 'protect' Crown Advocate Jowitt in any event.
(iv) The allegation that the concession was made in order to 'protect' Crown Advocate Jowitt is also denied by William Bailhache QC, the then Attorney General.
(v) In fact, the concession did not protect the integrity of Crown Advocate Jowitt. He accepted before the Royal Court that he deliberately said something which he knew would encourage the police to act contrary to the laws of other states. Crown Advocate Jowitt was not, in fact, protected from criticism at any stage, either from the then Attorney General, or the defence at the abuse hearing or the Privy Council.
(vi) The advice to His Excellency was clear that the concession had been properly and appropriately made. In any event, if the conduct of the Jersey police officers was lawful, and the concession thus wrongly made, the Royal Court was more likely to have ruled against the Applicant on the abuse argument.
37. In my view four matters stand out. First that the conduct of the Police Officers was clearly unlawful. The Privy Council unsurprisingly did not rely upon a mere concession on a matter of this gravity - see Lord Dyson's judgment in the Privy Council at paragraph 45 explaining his reasons. This appears to be common ground see response paragraph 14.v. Second on an issue of law His Excellency properly relied, as envisaged in the agreed Terms of Reference on the unequivocal advice of his experienced advisers. Third not only would such concession, if properly made, not have been prompted by a need to protect Crown Advocate Jowitt, but it did in fact not protect him from criticism, see Lord Dyson paragraphs 45 and 48. Fourth if (quod non) the conduct of the Police Officers had been lawful, the very foundations of the stay application would have been fatally undermined. I cannot therefore identify any irrationality in His Excellency's analysis.
38. The Applicant adds to his substantive points on Issues 1 and 2 ancillary procedural points. He asserts that:-
(i) the officers' claims could and should have been tested or rebutted by obtaining evidence from the individuals mentioned by the police: Crown Advocate Jowitt; Nigel Povoas; Advocate Gollop; and Mr Thomas, the President of the Police Association.
(ii) Deprived of the opportunity to question those individuals on the matters alleged, the Applicant wrote to the review team to stress the importance of interviewing them as part of the review.
(iii) It is now apparent that enquiries were made in writing on an informal basis and that some were either not approached or did not respond.
(iv) The responses given do not provide satisfactory answers to the key issues, eg:
(a) paragraph 18 of the Decision sets out the response of Nigel Povoas to the allegation regarding the witness statements.to the effect that he had no involvement in the drafting of DS Beghin's statement which was carried out by Crown Advocate Jowitt (which the Applicant suggests is corroborated by the email referred to at paragraph 14 of the Decision from DS Beghin dated 6th November, 2007, and entitled 'statement re audio deployment': "Matthew is this going along the right lines?") but there is no response at all from Crown Advocate Jowitt and the matter is simply left there.
(b) at paragraph 16(10) of the Decision, in relation to the false statement served on the defence, a response from Nigel Povoas is given which is inconsistent with the true chronology of events in that, Crown Advocate Jowitt had not told Advocate Baker that he was preparing to provide imminent disclosure in relation to the foreign authorisations (the statement was served on 28th September, 2007; the earliest correspondence from the Crown in relation to foreign authorisations was on 15th October, 2007; disclosure was made on 10th December, 2007). The review has accepted this response without giving an opportunity for the Applicants to challenge this.
39. In my view if the substantive points were without force, the procedural points lack purchase. It is not, of course, the case that no Advocate (or indeed Law Officer) could never virtute officii be economical with the truth or worse; but neither the Review team nor His Excellency was obliged to resolve every alleged or even apparent inconsistency in the Record on matters not germane to the central issue. The Applicant has to adduce fresh evidence, which does more than raise questions in the margin rather than the core of the salient issue as to the sustainability of the conviction, and evidence of a quality and credibility justifying a reference.
40. The Applicant alleges that the 'fresh evidence' demonstrates that senior police officers, including the then Chief Officer, knew about the unlawful conduct and were, therefore, complicit in misleading foreign authorities relying on the following:-
(i) One of the Officers DCI Minty says that he told Chief Officer Graham Power 'guts and garters' CH1 bundle 2 tab 13 p115. "When I spoke with Graham Power later that day at the ops management meeting it was quite clear what had taken place and what was occurring." transcript119) Mr Power was briefed with exactly what had happened (ditto p126) and referred to as letter that Mr Power had written to Advocate Sinel (ditto p47) in which he clarified that he had not been misled, a letter neither sought by the review nor disclosed.
(ii) If correct this shows that senior police officers, including Chief Officer Graham Power and Superintendent du Val, knew about the unlawful bugging of the hire car and, in consequence, were complicit in the misleading of foreign authorities [Representation, paragraphs 36-41, Response, paragraph 14(xx)].
(iii) Moreover on 5th February, 2013, Mr Power published a statement that he had not been misled. The Applicant says that this was inconsistent with evidence given at the abuse hearing and at odds with the acceptance by the Privy Council that the Chief Officer had been misled.
41. His Excellency's response is as follows:-
(i) The Applicant asserts a conflict between the accounts of three senior offices and Officer Minty in respect of who had placed the audio device. The allegation is that they cannot all be telling the truth.
(ii) At the abuse hearing, Officer Minty was not asked, by the Applicant or otherwise, whether or not senior offices were misled on the issue. At the disciplinary hearing, into the conduct of Officer Minty, he asserts that he told those senior offices everything.
(iii) The Chief Officer, in evidence before the abuse hearing, stated that he had not been deliberately misled. The Chief Officer had also written a letter in which he stated that he was not misled by Officer Minty or anyone else. The Applicant considers that these two statements by the Chief Officer are contradictory. His Excellency disagrees - the Chief Officer's meaning was clear; he had misunderstood the position due to confusion, but he had not been deliberately misled.
(iv) In any event, these allegations, as can be seen from the evidence before the abuse hearing, do not constitute 'fresh evidence'.
42. I accept that the Privy Council and the lower courts proceeded on the basis that the Chief Officer of Police had been misled (Lord Dyson paragraph 45). Had he indeed been privy to what was proposed by way of planting of an unauthorised device that might have aggravated the misconduct found; but His Excellency's conclusion as to the Chief Officer's state of mind (see para 41(v) above) seems to me a plausible interpretation of the relevant material (even if not the only possible one). In the context of a disciplinary hearing several years after the event DCI Minty clearly had every incentive to reconstruct what took place (without necessarily consciously giving false evidence) in a manner which put his own behaviour in the best light. I have noted the conclusions of the Chief Constable of Durham that in January 2013 DCI Minty's "evidence in recollection has also been affected by time" (para 24, ditto that of DI Beghin para 23). In my view a reference cannot be made simply because of mere allegations which, if correct, might have provided some grist (but no more) to the advocate's mill in contending that a stay should have been ordered.
43. The Applicant asserts that the police officers gave much more positive evidence than at the abuse hearing that Crown Advocate Jowitt knew that the Jersey police intended to put an audio device into the hire car before it happened [DI Minty Transcript, p122] at the abuse hearing more moderately than they did, or would have told him, that. Crown Advocate Jowitt denied, at the abuse hearing, that he had been told of the intention to place an audio bugging device in the hire car.
44. His Excellency's response was as follows:-
(i) That this allegation is not 'fresh evidence' as it was investigated before the Royal Court. Both the Royal Court and the Privy Council acknowledged that there were differences between the evidence of members of the Law Officers' Department and the police. On no analysis can this be described as 'fresh evidence'.
(ii) In any event, the dispute between Crown Advocate Jowitt and the police officers was clear at the abuse hearing. It was not found necessary to determine whose recollection of events was the more accurate. It is highly unlikely, therefore, that the Court of Appeal would reach any different conclusion if His Excellency was to refer the case back on this point.
45. I cannot find that evaluation in (ii) in any way irrational which is sufficient to dispose of Issue 4 as a basis for a reference (9(i) is consistent with what Lord Dyson said at para 29).
46. The Applicant alleges that the former Attorney General ("the then AG") knew about the unlawful police conduct prior to his meeting in late August or early September 2007 [transcript, p49]; ie prior to the date he says he did, and that the true state of the then AG's knowledge was not given to the Royal Court. He elaborates the point thus:
(i) In relation to the then AG, no evidence was produced for the abuse hearing in 2008. Shortly before the Privy Council hearing, a witness statement and some emails to and from Crown Advocate Jowitt were disclosed. The lateness of the disclosure and surrounding circumstances are set out in the Representation, (paragraph 60) and in more detail in a letter to Ms Weekes dated 24th December, 2015, [pp27-30]. This evidence was only seen by the Privy Council during the course of the hearing and the inconsistencies between this and earlier evidence set out in a document entitled Schedule B were not able to be properly explored before the Privy Council. The Review sought a response from the then AG in relation to the letter to the Dutch Authorities. This is set out at paragraph 14(2) of the Decision but provides no clarity on the matter.
(ii) The position of the then AG at the relevant time is further called into question following the disclosure at paragraph 24 of the Decision of a document not previously disclosed. This is a form for cancellation of an authority for intrusive surveillance which refers to the French hire car. The form is dated 3rd August, 2007, and has been completed by DC Louise Wood. It has been endorsed by Chief Officer Power and CI Bonjour and has been signed by the Attorney General on 6th August, 2007, granting the cancellation. The form contains details of the fact of the deployment of both tracking and audio devices in the hire car and monitoring of the product of both devices. On its face, the document suggests the then AG would have been aware of the use of the audio device from that date which would contradict his earlier evidence to the effect that he had only been aware of this from early September 2007 [statement 3rd February, 2011, -5]. At paragraph 27 of the Decision, the then AG has been asked for his observations and has no recollection of seeing the form or reading its contents. Once again, given the very late disclosure of this document, the Applicants have had no opportunity to ask questions of him or any of the other signatories of the form. Therefore the matter has not been satisfactorily concluded.
(iii) On the basis of this 'fresh evidence' the Privy Council and the courts below were wrong to conclude that the Law Officers had been misled by the police.
47. His Excellency's response is as follows.
(i) The then AG has always maintained that he did not hear of the use of the audio device until 30th August, 2007, and that he did not speak about it with Crown Advocate Jowitt until early September 2007. As to the matters relied on in this context by the Applicant:
(ii) This is not fresh evidence. This matter was raised with the Crown directly, by those acting for the Applicant, back in 2007.
(iii) A complete review of the disclosure by those conducting the Review led to the discovery of one document which might have relevance to this issue. This is a cancellation form, dated 3rd August, 2007, relating to the authority for surveillance of the car of one of the Applicant's co-accused. That form was drafted as though the authorisation given by the Solicitor General in relation to the car of the co-accused extended to the French hire car.
(iv) The form contained details of the deployment of the tracking and audio devices on 18th July, 2007.
(v) The then AG signed the document granting the cancellation on 6th August, 2007.
(vi) The then AG was asked to comment on this. He stated that he has no recollection of seeing the form or having read its contents. He acknowledges that the signature is his and that he has written the time and date on the form. He considers that he would not have scrutinised the cancellation form as he would an application for surveillance, because of the effect of the different documents.
(vii) There is no other evidence that the then AG had any knowledge of the unlawful conduct prior to 30th August, 2007. There is no evidence of any communication between the then AG and Crown Advocate Jowitt in relation to this issue and/or the advice that Crown Advocate Jowitt had given to the police, before September 2007.
(viii) The then AG's instruction to DI Pashley, on 19th July, 2007, that any audio monitoring device on the boat 'Skiptide' had to be turned off if it entered French waters, is inconsistent with any allegation that the then Attorney General knew of, condoned, or encouraged, audio monitoring of the hire car.
(ix) Evidence of the nature and force of the then AG General's reaction, on and after 30th August, 2007, to the discovery of the unlawful conduct also supports the suggestion that 30th August, 2007, was the first that he had heard of it.
(x) In any event, the issue which would concern the Court of Appeal is whether the then AG had any knowledge of the unlawful conduct prior to, or during, the unlawful audio monitoring. There is no evidence at all that the then AG had any such knowledge.
48. I accept that the position of the then AG was of particular importance given that a key finding of the Commissioner in 2008 was that he was not complicit in any unlawfulness and that his letter to the Dutch authorities on 7th September, 2007, was, if objectively misleading, not shown to be deliberately so. Additionally that the Privy Council judgment refers throughout to the then AG as having been misled, e.g. per Lord Dyson paragraph 55 (a position, I remind myself, then espoused by the Applicant (ditto)). For a law officer in any jurisdiction to have connived at or condoned illegal behaviour, particularly one which was calculated to undermine the trust which should exist in the field of justice between friendly jurisdictions would be a grave matter indeed and were the Privy Council to have concluded, or the Court of Appeal on a reference back to conclude, that the then AG had indeed misconducted himself in that way it might tilt the scales in favour of a stay on abuse of process grounds. But his Excellency examined whether there was indeed any plausible evidence to that effect and concluded that there was not. In my view his evaluation of the probabilities was well within the bounds of rationality; the inherent improbability of the then AG deliberately acting in a manner alleged contrary to his fundamental duty and with all the risks involved must also to be taken into account, see Re B [2009] AC 11 per Lord Hoffman at para 11. The Applicant tries to fly a kite but there is insufficient wind to lift off the ground.
49. His Excellency's position is that in large measure the allegations raised are based on evidence that is not 'fresh evidence' (and would not be even entertained by the Court of Appeal). His Excellency also considered whether, even if the evidence could be considered 'fresh evidence', there was a real possibility that the Court of Appeal, if the case were referred, would not uphold the conviction. In each case, and for the reasons given, His Excellency considered that there was no such real possibility.
50. His Excellency's conclusion is invulnerable even if the evidence had the quality of freshness as long as he applied to it (which he did) the 'real possibility' test (being the correct test) both as to admissibility and as to impact in a way which is not irrational. He obviously considered the issues not just severally but cumulatively. At an early stage in the history of this matter, the then Solicitor General in a letter dated 23rd September, 2013, while deciding that the material generated during the disciplinary proceedings was disclosable (contrary to the view of the prosecution who had taken advice from an English QC) cast doubt on the credibility of the evidence said to underpin Issues 1 - 5, but also wondered "about the relevance of some of these matters with regard to the issues before the Privy Council". His Excellency, after a more thorough review has reached a not dissimilar but far more detailed conclusion. I can find not even arguable irrationality (or, I repeat, mis-direction) in his Decision.
51. I turn finally to what I earlier deliberately described as potential fresh evidence. The Applicant's case on this separate issue was developed as follows.
52. During the course of the review, a letter was sent to Ms Weekes QC in August 2016 by Advocate Sinel (who represented the police officers in the disciplinary proceedings). He said he had retained material from those proceedings relevant to the issues now under review and whether the Privy Council had been given the true picture. He offered Ms Weekes QC access to the documentation and referred to previous letters he had written to the Lieutenant Governor on the subject. He said in later correspondence that he never received a response to this or to a subsequent letter dated 28th October, 2016.
53. Further correspondence ensued between Advocate Sinel and the Lieutenant Governor's office regarding the material in his possession. The Lieutenant Governor's Chief of Staff, Mr Oldridge, wrote in an email on 15th November, 2016: "I am confident that if you have further material, you will know where it is and be able to deliver it today". Advocate Sinel responded on 15th and 16th November, 2016, that he was away at that time, in court the following day, and in the UK the day after that. He could not understand why no response had been received to his various previous offers to assist and that all of a sudden he was being given impossible, immediate deadlines to meet for providing the material. On 17th November, 2016, Mr Oldridge sent an email to Advocate Sinel: "The Lieutenant Governor has set a strict timetable which he intends to stick to". He asked for any matters relevant to His Excellency's position to be reduced to writing by no later than 22nd November, 2016.
54. On 22nd November, 2016, Advocate Sinel wrote a letter to the Lieutenant Governor's office in which he asserted that the Privy Council had been misled and quoted various paragraphs from the judgment which he said were "simply wrong either in whole or in part". He asserted that the Attorney General was not misled by the police and that, on the contrary, he was aware at all times of what was happening and encouraged and supervised the use of the audio surveillance. He also said that the Chief Officer had not been misled. He offered to retrieve all the relevant documents and said he could elaborate on all the points in his letter. This offer was not taken up and the review team never spoke to Advocate Sinel nor looked at any of his material.
55. His Excellency's response was as follows:-
(i) Advocate Philip Sinel, of Messrs Sinels Advocates ("Advocate Sinel"), acted for certain of the police officers during the disciplinary proceedings. In essence, Advocate Sinel has claimed that he has evidence in his possession, as a result of that instruction, which demonstrated that an inaccurate picture had been presented to the Royal Court and the Privy Council. In particular, Advocate Sinel alleged that he had evidence which demonstrated that the then Attorney General had not been misled, but had rather had full knowledge of the unlawful conduct and indeed had encouraged and supervised the unlawful conduct.
(ii) The affidavit of Major Oldridge, His Excellency's Chief of Staff at Government House, sets out the nature of the correspondence exchanged with Advocate Sinel and exhibits the salient parts of the same. Advocate Sinel was invited, on a number of occasions, to provide any further evidence or documents which he had. None were forthcoming.
(iii) Those conducting the Review undertook a thorough review of all the material relevant to the Applicant's case. This included:-
(a) All documents submitted by the Applicant;
(b) All correspondence and documents relating to the issue of disclosure, both before the Royal Court trial, and before and after the Privy Council hearing;
(c) The transcripts of the various hearings, including any relevant directions hearings, the abuse hearing, and the Royal Court trial;
(d) All documents in relation to the Invicta inquiry conducted by Hampshire police;
(e) All documents in relation to the disciplinary proceedings, conducted by the Chief Constable of Durham, including the transcripts of the disciplinary hearings;
(f) All documents held by the Law Officers' Department relating to the Applicant's case, save those relating to the issue of the confiscation proceedings. These amounted to 34 boxes of files, mostly duplicates of those other documents listed above. The Solicitor General has provided written confirmation that all relevant files have been provided.
(The list, I interpolate, is closely aligned with what the Applicant proposed should be reviewed (Representation para 57).
(iv) His Excellency provided ample opportunity for Advocate Sinel to produce anything further which he might have. Advocate Sinel did not do so. His Excellency considered that it was difficult to see what further information or documents Advocate Sinel could possibly have which had not already been provided to those conducting the Review. Accordingly, His Excellency proceeded to take his decision on the basis of the advice provided to him by those conducting the Review, after they had undertaken a detailed consideration of all the relevant documents.
(v) Further, given the importance the Applicant ascribes to the documents alleged to be held by Advocate Sinel it is surprising that he has not himself obtained those documents or at least made attempts to obtain them. It ill behoves him to complain that His Excellency has not reviewed this evidence when he has not put it before him.
56. In my view, what material Advocate Sinel may or may not have had which would have assisted the Applicant was never revealed. Advocate Sinel first hinted at his possession of important material as early as 2nd July, 2014, (see email from Advocate Baker to Advocate Sinel on even date). He was repeatedly asked for this material during the course of His Excellency's review by Major Oldridge. He never produced it. What may have seemed at first blush to have been an arbitrary decision by His Excellency not to consider what Advocate Sinel may have had because of the expiry of His Excellency's term of office, i.e. by an artificial cut-off date, and his need to reach a conclusion on the Applicant's application before then appears, once the full history of Advocate Sinel's involvement in the matter is appreciated, to have been a perfectly proper one. Advocate Sinel's performance in this context was all run up and no jump.
57. The closest Advocate Sinel came to even hinting at what he had was in a letter of 18th June, 2015, which was, in so far as relevant, already known to His Excellency or wholly irrelevant to the application; it alluded to matters (see para 3.12 - 3.19) alleged to fortify Advocate Sinel's well-known belief that justice is not a commodity readily available in Jersey. While it is true that Advocate Baker did not himself press Advocate Sinel for production of this material, this is not a basis for concluding that he would have been any more successful in his search for its production than was Major Oldridge.
58. As to procedure generally, His Excellency made use of the services of two highly qualified lawyers from England; Anesta Weekes QC and Sir John Saunders, a former high court judge. It is apparent that they undertook a thorough review of all the material that they reasonably conceived to be relevant to the Applicant's case. It is difficult to see what avenue was left unexplored. Advocate Baker could before me only refer back to Advocate Sinel's opaque offer.
59. His Excellency's report was submitted in draft to that team; they made well-crafted submissions in response on 17th November, 2016. If this did not result in any amendment of the final report, it was because those submissions were deemed not sufficiently persuasive to justify the reference sought; I would reject any imputation that they were not properly considered at all. I remind myself yet again that I have to determine whether His Excellency was arguably irrational in making the decision which was for him alone, not for the Court to reach. I cannot so conclude.
60. In my judgment the "very high threshold" which must be crossed before I could find that there was an arguable case to be made that his Excellency acted ultra vires in refusing the Applicant a reference has not even been closely approached.
61. The application for leave to apply for judicial review is accordingly refused.