Jersey Unreported Judgments

Judicial review - application for leave to apply for judicial review against the decision of the Lieutenant Governor.

[2017]JRC097

Royal Court

(Samedi)

21 June 2017

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. 

The Decision

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:-

"The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: see R v Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623, 628 and Fordham, Judicial Review Handbook 4th ed (2004), p 426. But arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application...".

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:-

"43     Prerogative of mercy

Nothing in this Part shall affect the prerogative of mercy, but, as respects the conviction of a person on indictment by the Royal Court or the sentence passed on a person so convicted, being a conviction or sentence against which an appeal lies under this Part to the Court of Appeal, the Lieutenant Governor may, if he or she thinks fit, at any time either -

(a)       refer the whole case to the Court of Appeal, and the case shall then be heard and determined by the Court as in the case of an appeal by a person convicted; or

(b)       if the Lieutenant Governor desires assistance on any point arising in the case, refer that point to the Court of Appeal for its opinion thereon, and the Court shall consider the point so referred and furnish the Lieutenant Governor with its opinion thereon accordingly."

7.        In Gallichan v His Excellency the Lieutenant Governor [2013] JRC 106A ("Gallichan") Sir Christopher Pitcher, Commissioner, sitting alone said:-

"2.      The Lieutenant Governor's power is contained in Article 43 of the Court of Appeal (Jersey) Law 1961, as amended.  Until the amendment in 2008 the power to refer cases to the Court of Appeal after conviction and appeal was exercised by the Secretary of State in London and, since 1995, it had been his practice to refer such cases to the Criminal Cases Review Commission in England.  Article 43 now provides that the Lieutenant Governor may refer cases "if he sees fit."  There is no test provided in the Law governing the circumstances in which a referral ought to be made.  Plainly the Lieutenant Governor cannot act with a completely unfettered discretion and accordingly he prepared a note to legal practitioners setting out the circumstances in which he would refer a case to the Court of Appeal. ...

...

5.        There remains of course the important difference between the appellate procedure in Jersey and in England, namely the test to be applied by the Court of Appeal in Jersey in Article 26 of the 1961 Law is different from that applied by the Court of Appeal in England.  Most importantly, Article 26 contains what is generally referred to as the proviso under which the Court of Appeal may, notwithstanding its opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.  That provision has for some years not applied in England and Wales.  The applicant in this case argues that the Lieutenant Governor should ignore this part of the Court of Appeal's consideration in deciding whether to make a reference.  The present case is not a case in which the proviso would be considered by any Court of Appeal.  Accordingly this question does not arise directly for decision by me.  However, had it done so, my view would be that the Lieutenant Governor, in considering the likely outcome in any further appeal, must have regard to the whole of the test that that court will be applying including the possibility of the application of the proviso.

6.        The English courts have dealt with the question of the correct approach to judicially reviewing decisions of the Criminal Cases Review Commission on a number of occasions.  Those authorities are directly relevant to the Lieutenant Governor's powers in Jersey.  The approach was clearly set out by the Lord Chief Justice, Lord Bingham, in the case of R-v-Criminal Cases Review Commission ex parte Maria Pearson [1999] EWHC (Admin) 452.  At paragraph 16 Lord Bingham said this:-

"16. Thus the Commission's power to refer under section 9 is exercisable only if it considers that if the reference were made there would be a real possibility that the conviction would not be upheld by the Court of Appeal.  The exercise of the power to refer accordingly depends on the judgment of the Commission, and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else.  Save in exceptional circumstances, the judgment must be made by the Commission, in a conviction case, on the ground of an argument or evidence which has not been before the court before, whether at trial, on application for leave to appeal or on appeal.  In the absence of such exceptional circumstances, the Commission cannot therefore invite the court to review issues or evidence upon which there has already been a ruling.  Resort to the Commission must ordinarily follow and not precede resort to the Court of Appeal.

17. The "real possibility" test prescribed in section 13(1)(a) of the 1995 Act as the threshold which the Commission must judge to be crossed before a conviction may be referred to the Court of Appeal is imprecise but plainly denotes a contingency which, in the Commission's judgment, is more than an outside chance or a bare possibility but which may be less than a probability or a likelihood or a racing certainty.  The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld.  The threshold test is carefully chosen: if the Commission were almost automatically to refer all but the most obviously threadbare cases, its function would be mechanical rather than judgmental and the Court of Appeal would be burdened with a mass of hopeless appeals; if, on the other hand, the Commission were not to refer any case unless it judged the applicant's prospect of success on appeal to be assured, the cases of some deserving applicants would not be referred to the Court and the beneficial object which the Commission was established to achieve would be to that extent defeated.  The Commission is entrusted with the power and the duty to judge which cases cross the threshold and which do not."

And at paragraph 59 of the same judgment:-

"59.    Had the Commission decided to refer this case to the Court of Appeal, that would (if based upon a proper direction and reasoning) have been a reasonable and lawful decision.  The decision not to refer was in our view equally reasonable and lawful.  The question lay fairly and squarely within the area of judgment entrusted to the Commission.  If this Court were to hold that a decision one way or the other was objectively right or objectively wrong, it would be exceeding its function.  The Divisional Court will ensure that the Commission acts lawfully.  That is its only role.  To go further would be to usurp the function which Parliament has, quite deliberately, accorded to the judgment of the Commission.  We find no grounds for impugning the Commission's decision, and accordingly refuse this application."

7.        Later cases have emphasised that in judicial review the court is not an appellate body from the Criminal Cases Review Commission but is examining the decision not to refer to determine whether that decision was lawful.  Taking one example from among a number, in the case of Cleeland-v-Criminal Cases Review Commission [2009] EWHC 474 (Admin), Lord Justice Scott Baker said, at paragraph 48:-

"48.    I would wish to emphasise the very high threshold that has to be crossed to persuade this court that a decision from the Criminal Cases Review Commission not to refer a case to the Court of Appeal (Criminal Division) is unlawful.  A grant of permission to apply for judicial review in a case of alleged wrongful conviction, especially in a case which as long a history as the present one, is liable to raise the hopes and expectations of the convicted person.  An alternative to granting permission on paper would have been to adjourn the permission application for an oral hearing on notice to the CCRC.  Had that been done in this case, the CCRC would have been able to expand upon and explain the grounds for resistance in the acknowledgment of service, and it may very well have been that permission would not then have been given." ..."

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:-

"3.      The purpose of this Note is to inform all Jersey lawyers who practice in criminal law of the system which the Lieutenant Governor will use in future to consider applications under Article 43 for him to refer cases to the Court of Appeal, and the legal test against which applications will be measured for merit.

...

6.        A referral is likely to be an exceptional and rarely-granted remedy.  It is most certainly not an opportunity for an unsuccessful appellant to seek a second bite of the appeal cherry.

...

7(b)     In respect of conviction, where there is a new argument or fresh evidence not previously raised and an appeal against conviction has previously been determined or leave to appeal has been refused, and there is a real possibility that the conviction would not be upheld;

...

7(d)     In applications to which paragraph 7(b) and (c) apply the Lieutenant Governor will need to be satisfied that there was good reason for the new argument or fresh evidence or information not being presented at the original appeal or application for leave to appeal......."

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:

"The judgment required of the Commission is a very unusual one, because it inevitably involves a prediction of the view which another body (the Court of Appeal) may take. In a case which is likely to turn on the willingness of the Court of Appeal to receive fresh evidence, the Commission must also make a judgment how, on all the facts of a given case, the Court of Appeal is likely to resolve an application to adduce that evidence under s 23, because there could in such a case be no real possibility that the conviction would not be upheld were the reference to be made unless there were also a real possibility that the Court of Appeal would receive the evidence in question. Thus, in a conviction case of this kind, the first task of the Commission is to judge whether there is a real possibility that the Court of Appeal would receive the evidence. The Commission has, in effect, to predict how the Court of Appeal is likely to answer the question which arises under s 23, as formulated above. In a conviction case depending on the reception of fresh evidence, the Commission must ask itself a double question: do we consider that if the reference is made there is a real possibility that the Court of Appeal will receive the fresh evidence? If so, do we consider that there is a real possibility that the Court of Appeal will not uphold the conviction? The Commission would not in such a case refer unless it gave an affirmative answer to both questions. The parties are agreed, and we accept, that the test of 'real possibility' is the appropriate test in asking both questions''.

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 19^th 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 16^th 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 19^th 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":-

"(1) On the advice of my advisers I have adopted the following criteria in deciding this application.

I          By virtue of Article 43 of the Court of Appeal (Jersey) Law 1961, I may refer the case back to the Court of Appeal if I see fit.  This is an unfettered discretion but it must be exercised in accordance with public law principles: the decision must be lawful, fair and reasonable.  All relevant factors must be considered and all irrelevant factors must be disregarded.  I am required to give reasons for my decision and the applicant must have an opportunity to comment upon the decision before it is finalised.

Ii         In deciding whether to refer the case back, I have applied the following test: I should refer the case back to the Court of Appeal if I find there is a new argument or fresh evidence which has not been raised before and there is a real possibility that the Court of Appeal would allow the appeal in the light of that new argument or fresh evidence (see Gallichan v Lieutenant Governor of Jersey [2013] JRC 106A).

Iii        In considering whether there is a 'real possibility' that the Court of Appeal would allow the appeal, I have adopted the guidance given by Lord Bingham in R v CCRC [2000] 1 Cr App R 141 that 'a real possibility' is 'more than an outside chance or bare possibility but might be less than a probability or likelihood or a racing certainty'.

And at paragraph 5 entitled 'Article 26 of the Court of Appeal (Jersey) Law 1961 - Fresh Evidence':

"(i) Fresh evidence means evidence which was not available at the hearing before the Commissioner and the appeal hearings.  If the fresh evidence was available then there will need to be a good reason why it was not adduced. By way of example, a good reason could be that the fresh evidence is a document which should have been disclosed prior to the abuse hearing or an appeal but it was disclosed too late to be used.

(ii) The powers of the Court of Appeal in considering an appeal are set out in Article 26 of the Court of Appeal (Jersey) Law 1961 which reads as follows:

"Subject to the following provisions of this Part, on any appeal against conviction, the Court of Appeal shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that, on any ground, there was a miscarriage of justice, and in any other case shall dismiss the appeal:

(iii) Provided that the Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

(iv) In considering whether to remit the case to the Court of Appeal I have not considered on the advice of my advisers the likelihood or otherwise of the Court of Appeal applying the proviso.

(v) The question for me is whether considering matters raised by the Applicant and any other matters arising from the Review which my advisers have carried out, there is a real possibility that the Court of Appeal would decide that a stay should have been ordered because of the conduct of the police and/or the conduct of those having responsibility for the prosecution.

(vi) In considering the weight to be attached to any fresh evidence I have considered it within the context of the evidence given before the Commissioner and the observations of the Privy Council.

(vii) While I have considered all the matters raised individually, I have also considered them cumulatively as I am advised that would be the approach of the Court of Appeal.

(viii) A court may order a stay of a prosecution either if it is impossible for the Defendant to have a fair trial or if it offends the court's sense of justice and propriety to try the Defendant in the particular circumstances of the case.  It is the second of the two alternatives which is relevant to this case.

(ix) In such a case the court must balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means.

I have followed the judgment of the Privy Council as to the matters which have to be taken into account by a court in deciding whether to impose a stay. I have taken into account their assessment of the decision of the Commissioner and that they considered it was a decision which was finely balanced and could have gone either way.

I have taken note of the reasoning of the Privy Council set out in pars 45 to 50 of the judgment resulting in the conclusion that the decision that the Commissioner took in refusing a stay was not perverse and was not one which no reasonable Judge could have reached."

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 20^th 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 12^th August, 2009, the Court of Appeal dismissed the appeal against the refusal of a stay ("the Court of Appeal's stay decision"). 

(iii)      On 7^th October, 2009, the Applicant and the others were convicted of the conspiracy; Warren, as the mastermind, was sentenced to 13 years imprisonment. 

(iv)      On 5^th May, 2010, the Court of Appeal dismissed the Applicant's appeal against conviction ("The Court of Appeals conviction decision").

(v)       On 28^th March, 2011, the Privy Council dismissed the appeal against the Court of Appeal's stay decision;

(vi)      On 15^th 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):

"45. The police were unquestionably guilty of grave prosecutorial misconduct in this case. They acted in the knowledge that the Attorney General and the Chief of Jersey Police had not given authority to install the audio device without the consent of the relevant foreign authorities and would not do so; and that the foreign authorities had refused their consent. To some extent, they no doubt felt encouraged to take the approach that they took by the unwise advice given by Crown Advocate Jowitt on 11 July. But nothing can detract from the seriousness of the misconduct. The Commissioner was right to characterise it as "most reprehensible". It is a matter of concern to the Board that in his witness statement of 21 January 2008, DCI Minty said: "Given identical circumstances again I believe that we would respond in the same way". It is to be hoped that, having read the strictures of the Commissioner as well as those of the Board, he no longer adheres to this view.

46. So the case for a stay in this case was of considerable weight. The misconduct was very serious. It involved misleading the Attorney General and the Chief of Police and the authorities of three foreign states. Furthermore, unlike in the case of Grant, without the product of the unlawfulness, there would have been no trial. This was truly a "but for" case.

47. But as against that, there were factors which, taken cumulatively, the Commissioner was entitled to conclude weighed heavily against a stay. First, the offence with which the appellants were charged was very serious. Secondly, the ringleader Mr Warren, was a professional drug dealer of the first order. He had committed the index offence only a few weeks after his release from prison following a 13 year sentence. He had previously been sentenced in The Netherlands to sentences totalling 16 years' imprisonment for leading an organised group concerned in 1996 in the importation of large amounts of cocaine and the manslaughter of a fellow inmate thereafter.

48. Thirdly, to some extent the unwise advice of Crown Advocate Jowitt mitigated the gravity of the misconduct of the police. The officers must have felt encouraged and heartened by that advice.

49. Fourthly, there was no attempt to mislead the Jersey court. It was always understood by the police that the circumstances in which the evidence was obtained would be revealed to the appellants and that the court would be required to decide whether to refuse to admit the evidence under article 76(1) of the 2003 Law. The police knew that the court would decide whether to refuse to admit the evidence on the grounds that "having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would so adversely affect the fairness of the proceedings that the court ought not to admit it" (emphasis added). The court would be the arbiter on the fairness of admitting the fruits of the misconduct.

50. Fifthly, there was real urgency in this case. It was only on 11 July that the police obtained information that Mr Welsh intended to drive through France, Belgium and The Netherlands and that he intended to leave Jersey on 13 or 14 July. The French and Dutch authorities communicated their refusal of consent on 12 July. But as became clear from the letter of 7 January 2008 (see para 19 above), if there had been sufficient time, it would have been possible to obtain authorisation from the examining magistrates to install and use an audio device in The Netherlands. It was only early on 18 July that the police discovered that Mr Welsh was intending now to hire a car and drive to Amsterdam the following day. There was no time to make any further requests or applications. This was a fast moving situation. The Jersey police were understandably anxious to secure the evidence as to the nature of the drugs. They were dealing with experienced and sophisticated criminals, who could be expected to second guess the police tactics. It was in these circumstances that the police cut corners and acted unlawfully.

51. The Commissioner had to undertake a difficult balancing exercise. Some judges might have granted a stay; others, like the Commissioner, would have refused one. The Board finds it impossible to characterise the decision to refuse a stay in this case as perverse or one which no reasonable judge could have reached."

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)). 

Issue 1

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 18^th 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 16^th 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). 

Issue 2

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 6^th 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 28^th September, 2007; the earliest correspondence from the Crown in relation to foreign authorisations was on 15^th October, 2007; disclosure was made on 10^th 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.  

Issue 3

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 5^th 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. 

Issue 4

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). 

Issue 5

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 24^th 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 3^rd 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 6^th 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 3^rd 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 30^th 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 3^rd 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 18^th July, 2007. 

(v)       The then AG signed the document granting the cancellation on 6^th 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 30^th 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 19^th 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 30^th August, 2007, to the discovery of the unlawful conduct also supports the suggestion that 30^th 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 7^th 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. 

Overall

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 23^rd 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. 

The Sinel allegations

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 28^th 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 15^th 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 15^th and 16^th 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 17^th 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 22^nd November, 2016. 

54.      On 22^nd 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 2^nd 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 18^th 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. 

Procedural Irregularity

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 17^th 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. 

Authorities

Court of Appeal (Jersey) Law 1961 (as amended).

Welsh v Deputy Judicial Greffier [2009] JLR Note 37.

Sharma v Brown-Antoine [2007] 1 W.L.R.780.

Planning & Environment Committee v Lesquende Limited [1998] JLR 1.

Norris v AG [2014] JCA 087.

R v CCRC ex parte Pearson, cit.sup.

Court of Appeal (Jersey) Law 1961.

Stroud's Judicial Dictionary 8th edition.

Court of Appeal Jersey Law 1961 (Supplemental Powers of the Court).

Re B [2009] AC 11.