Why Jersey Cannot Administer Justice
In the Child Abuse Disaster;
Not even faintly.
And – why the issue is even more fundamental than that.
Here is the belated follow-up to my previous post on the administration of justice in Jersey.
It’s as well that it’s late – because I was able to read the Jersey Evening Post of today, the 7th August 2008.
Which – sorry – makes this post another long one. I know some people don’t like my lengthy ramblings – but we have to resist sound-bite culture. There is masses of short stuff out there if you prefer – even the insubstantial glossings of The Rag – if all you have time for is a couple of paragraphs.
But as a remarked in a comment – notwithstanding the fact that Jersey has a very sizable panoply of journalists – none of them – and none of the media they work for – will deliver the in-depth analysis and polemics you find on this site.
Indeed – what I’m concluding here should have been researched and published by Jersey journos a long time ago.
Remember – I’m a one-man-band churning out this stuff – It’s not like I even get paid for it – but it’s still more detailed, more accurate and more informative than that which is churned out by all of Jersey’s hacks – combined.
And – at the end of this post I’ll explain the inexplicable.
By one of those notable coincidences, The Rag features an article of great relevance to the subject I’m addressing.
Well, not the article, actually – that’s the predictable regurgitation of establishment spin and statements of the bleeding obvious.
But accompanying the article, on page 16, is a photograph.
I strongly urge readers to try and get a look at the photo if you haven’t seen it already.
Maybe there is a God?
I couldn’t have prayed for a more timely, relevant – and telling photo.
This is what the photograph depicts.
It is a ceremonial procession which is beginning outside of the Jersey parliament building.
Who knows – it could have been taken on Liberation Day this year – as we were due to process from the Royal Square where the parliament building is – down to Liberation Square – to mark our liberation from the forces of fascism.
Let us remember – it was on the occasion of this year’s Liberation Day, that the Bailiff of Jersey, Sir Philip Bailhache, delivered his frankly deranged attack on the investigations into the Jersey’s child abuse disaster.
But that is by-the-by.
What does the photo depict?
At the head of the procession is a court functionary carrying the ornate Royal Mace which was gifted to the Jersey robber-barons & privateers for their loyalty to the Crown during the English Civil War.
The Mace symbolises the authority of the Crown – under which Jersey’s oligarchy operates.
So in the photograph we have what is – for our times – a particularly relevant depiction of the British Crown’s authority over Jersey.
A few paces behind the Mace walks Jersey’s Bailiff, Sir Philip Bailhache – head of the judiciary – and, bizarrely, head of the legislature – and the man who thinks “the real scandal” of the Jersey Child Abuse Disaster is not the abuse – but the “denigration of Jersey and her people.”
Walking along side Phil is the “Lieutenant Governor” – the functionary who represents the Crown in Jersey (in effect, the UK Government).
Phil is cloaked in some kind of pseudo-historical fancy-dress – funny hat – fur-trimmed red cloak, the whole bit.
The Lieutenant Governor is clothed in a yet more extreme example of that meaningless fancy-dress – so beloved by the British establishment to remind them of glory days gone by.
Mirror-shined boots, some kind of war coat, which may have been of relevance 200 years ago, a belt, so camply ostentatious it could have been designed by Jean-Paul Gaultier – as could the hat he wears – which appears to be attoped by a dead seagull.
This man is Lieutenant General Andrew Ridgway. A man who – instead of properly defending the good name of the Crown – has been implacable in his siding with the Jersey shysters.
He has repeatedly informed London that every thing in the garden is rosy – so far as public administration is concerned – notwithstanding the Jersey Child Abuse Disaster.
He has also – as has been reliably reported to me by several, separate sources – been doing his level-best to smear me by telling anyone who will listen that my campaign on behalf of abuse victims is just some kind of “political opportunism” and that I was merely “using the survivors for my political purposes” – his grasp of chronology clearly being so poor that he just doesn’t recollect that it was me who started campaigning for the truth to come out concerning child abuse – and that the resultant “political” row was generated and used opportunistically by his Jersey oligarchy friends to suppress the truth – and oppress me.
Strangely enough – as I sit here writing this post, the Lieutenant Governor is hosting – at Government House – a dinner party which features some UK politicians – and as guest of honour – Lenny Harper – to mark his retirement.
As though Lenny and his team had had unwavering support from these clowns.
Take it from me – the Police are under no illusions as to the cosmetic nature of such functions. Knowing Lenny, I expect he’s making all the right noises – but keeping his council – for the time being.
Keeping his powder dry.
So what, then, does the photo depict after Phil & Andy?
You couldn’t make it up.
For there – walking behind Phil & Andy – we see none other than the Deputy Bailiff, Michael Birt – and Francis Hamon, former Deputy Bailiff, and still an active judge in Jersey’s court.
The Rag has always been in the habit of using such photographs – the fancy-dress, the manufactured tradition and pomp – the invented ceremonial functions – all developed over the centuries – or in this case, the last decade – to make a vast number of Brits go weak at the knees and doff their caps.
Such awe-inspiring “grandeur” is calculated to keep the rabble in line; an objective very much supported by The Rag.
But – in yet another example of crass misjudgement – they’ve used this photograph – clearly not realising that – under the current circumstances – what it depicts is altogether unsavoury – and damning of the administration of justice in Jersey.
For what is depicted are the unhealthy mish-mash and over-laps of traditional power, symbolism, the most senior Jersey oligarchy figures – all of whom should have been held to account a long time ago – and the supportive presence of the Crown/UK government in the form of Andy Ridgway – through who’s Offices the Jersey oligarchy has – yet again – been shielded and protected from accountability – no matter that the oligarchy’s actions have been inimical to the good of 85% of Her Majesty’s subjects here in Jersey.
I guess too many society dinner parties must rot the brain.
So in what way is the presence in the photograph of Michael Birt and Frances Hamon of relevance to our discussion?
In the 1990’s, Francis Hamon was – in addition to being a judge in Jersey’s Royal Court – a member of the Board of Governors of Jersey’s leading private school, Victoria College.
During this period, repeated complaints of child abuse were made to the school’s leadership.
At one point the then headmaster asked Francis Hamon – whilst they were playing a game of squash – what he should do about the complaints of abuse. Hamon failed to advise him to go to the Police.
And out of that whole, wretched abuse episode – it was plain that several people had a powerful case against them to answer for conspiring to pervert the course of justice, misconduct in public office, and breaching the Children (Jersey) Law 1969 by failing to properly protect children for which they had responsibility.
Amongst these people were the headmaster, Jack Hydes; Frances Hamon; deputy head, John Le Breton and one Piers Baker – the man who thinks child abuse is “teachers perks”.
All four of these people should have faced trial – none of them did.
Who was the Jersey Attorney General at that time?
The person responsible for the non-prosecutions?
The person who should have – but failed to – seek the prosecutions of these individuals?
Yep – Michael Birt; now Deputy Bailiff; deputy head of the Jersey judiciary and deputy chair of the legislature.
And there he strides – in the photograph – alongside Mad Frankie Hamon – and behind Phil and Andy – all of whom walk behind the Mace which represents the Crown – which – in theory – should be protecting its subjects in Jersey by ensuring to them the safety of the rule of law and freedom from tyranny.
Phil Bailhache – failed to deal correctly with child protection issues in the past – and who has made the most gross and crass overtly political interventions against the child abuse investigation.
Andy Ridgway – who has singularly failed to properly represent the Crown – who has defended these failed Jersey grandees to the authorities in London – and who has – pro-actively – been engaging in smear campaigns against me – the only Jersey politician to have openly represented the interest of the survivors.
Mike Birt – who not only failed to prosecute all those who should have been, in connection with the child protection failures at Victoria College, but who also – in 1998 – stood up in Jersey’s Royal Court and asserted that the case against the McGuires had to be dropped because of “insufficient evidence”. I, incidentally, read that evidence last year, after it had been drawn to my attention by whistle-blowers.
Just take my word for it; the evidence was NOT “insufficient” for a prosecution to go ahead.
And it is even less “insufficient” now.
Now that Jersey’s present Attorney General has had the completed papers from the Police on the McGuires – for three months now – and still he fails to act.
The present Attorney General being one William Bailhache – brother of Bailiff, Phil.
The same William Bailhache who obstructed my old Health & Social Services Committee when it was attempting to investigate child protection failures in the wake or the Bichard report.
The very same Attorney General who has, to date, obstructed the charging of at least three other suspects in addition to the McGuires.
One of whom – Danny Wherry – is a member of the same golf club as Bailhache.
You think it couldn’t get any worse?
Alas, not included in the photograph – though most probably present – will have been the 12 “Jurats” – a form of lay-judges who sit in judgment on cases before the court.
These 12 ‘judges’ are elected by an electoral college of lawyers and politicians – now doesn’t that just sound like a recipe for a healthy and straight judicial system?
But that isn’t really the point.
Amongst the 12 Jurats is one John Le Breton – the former deputy head of Victoria College.
Le Breton one was of the key participants in the cover-up of the child abuse; one of the people who should have been prosecuted – back in the late 1990’s – by Michael Birt.
Instead – he sits on the court benches – handing down “judgments” on lesser mortals – including – get this – former St. Helier Constable, Bob Le Brocq.
Le Brocq was the public figure who caught the flack for the presence of the paedophile Roger Holland in the parish’s honorary police force. He was arraigned before the court for this – and admonished – and consequently lost the election he was to shortly face.
I cannot say whether Le Brocq’s actions were all that they could or should have been; but what I can say – is that he was a good deal less culpable than the Bailiff, Philip Bailhache, who, when Attorney General, failed to make an attempt to get Holland thrown out of the police.
And very – very – substantially less culpable for child protection failures than one of the Jurats who sat in judgment on him – John Le Breton.
Le Breton colluded with the then headmaster of the school in attempts to cover-up the complaints of abuse – and even went so far as to, with Jack Hydes, attempt to humiliate and intimidate two of the victims into withdrawing their complaints.
Even by Jersey standards – his conduct was so appalling he had to resign in disgrace from the school. But – in typical Jersey oligarchy fashion – he was rapidly re-habilitated when the ‘electoral college’ appointed him to be a Jurat.
So there we have – illustrated by photographic evidence – published by The Rag, no less – the simply inescapable conflicts of interest, over-laps, direct involvements, professional and personal relationships, mutual intermeshings – and involvement of the Crown – all of which go further to the proof that the administration of justice apparatus in Jersey is – plainly – incompetent to deal with any matter arising from the Jersey Child Abuse Disaster.
So having described in detail the direct conflicts of interest which bedevil the prosecutory and judicial apparatus in Jersey – let’s recap the fundamental – rock-solid – legal principles of objectivity.
In yesterday’s post, I explained, at some length (sorry), the background information pertaining to the Jersey Child Abuse Disaster, the Jersey oligarchy’s profoundly antagonistic and deeply conflicted position – and why, resultantly, the prosecutory and judicial processes of Jersey are manifestly incapable of achieving the necessary appearance of objectivity.
Yesterday I dealt with some fundamental, legal principles, and then went onto explain how the head of Jersey’s judiciary – it’s chief Judge, Sir Philip Bailhache – was deeply conflicted; I explained that no judiciary headed by this man could even remotely be regarded as appearing to be objective and impartial in any matter arising from the Jersey Child Abuse Disaster.
And – as I said I would – I have described above why, not only Phil, but all the rest of Jersey’s prosecutory and judicial apparatus as well, was also hopelessly conflicted.
But as I also said, there is also another – absolutely fundamental issue – which I will conclude with.
Before then, let’s recap the situation, the arguments, the facts.
As can be seen by reading my last posting, the established facts are these:
1: Jersey is having to come to terms with a child abuse disaster of world-scale. No matter what the particular facts and details of each case may be – we cannot now be but certain that something quite monstrous has gone profoundly wrong with the Jersey authorities’ attitude to vulnerable children.
2: The final exposure of a vast catalogue of abuse will, obviously, lead to both criminal and civil legal cases.
3: There is, therefore, no escaping the fact that a prosecution system and judiciary will need to be deployed to deal with all such cases.
4: Certain rock-solid, fundamental and inescapable principles of jurisprudence are established as such immovable foundations of justice as to be beyond all credible argument. For our purposes, the relevant principles are:
(a) Justice must be seen to be done. All judicial process have to avoid even the merest hint or suspicion that they may not be impartial and neutral. The administration of justice – in order to be credible – has to meet a test of the appearance of objectivity. There cannot even be the merest suspicion of conflict.
(b) No man can be a judge in his own cause. No person can sit in judgement on a case in which they feature in any way; nor can a person appoint those who will judge him; to do so would be to breach the crucial appearance of objectivity.
I did invite any lawyers who dispute my analysis to debate the issues on this blog, but none has. I guess there are some arguments so fallacious and absurd that not even lawyers could make them.
So we can safely conclude that our analysis is correct.
1: The administration of Justice Apparatus in Jersey needs to become involved in the child abuse disaster.
2: The administration of justice has to appear to be impartial; it has to avoid even the merest suspicion of being conflicted.
3: Jersey’s senior judge and head of the judiciary, Sir. Philip Bailhache is hopelessly conflicted, as detailed in Tuesday’s posting. He has made several, strident, political interventions in connection with the Jersey Child Abuse Disaster, and has a personal history of not responding adequately or professionally to child protection issues.
4: As things stand, no judge can be appointed to hear cases in Jersey’s court unless the judge is appointed and/or approved by the Bailiff, Sir Philip Bailhache; or in his absence, the Deputy Bailiff, Michael Birt.
5: The involvement of either man in appointing judges would breach the appearance of objectivity test on the grounds that ‘no man can be a judge in his own cause’.
6: The conflicts of interest entirely engulf the rest of the Jersey prosecutory and judicial apparatus. Bailiff, Deputy Bailiff, Attorney General, Jurats – all are hopelessly conflicted.
So that much is established fact; no Jersey lawyers at all have rushed to dismiss our argument so far.
Through its own choice and insistence over the decades and centuries, the Jersey judiciary maintains an involvement in politics. There is a profoundly unhealthy over-lap between the legislature and the judiciary.
The Bailiff and Deputy Bailiff, in addition to being head and deputy head of the judiciary are also speaker and deputy speaker of the Jersey parliament.
No propositions, amendments, questions, formal statements or reports can be tabled to the legislature without first being approved by either the Bailiff of Deputy Bailiff.
Both men routinely exhibit dramatic political bias in exercising these bizarre powers.
I personally – as have a number of other non-establishment members – have had propositions, amendments, questions and reports interfered with and obstructed on a regular basis.
The deep politicisation of both men is very much evident in such examples of pro-oligarchy bias and the obstructions placed in the way of anti-establishment States members.
The Bailiff, or in his absence, the Deputy Bailiff, acts as the civic head of the island; though God knows on what authority.
In this capacity, the Bailiff has routinely made political speeches and given addresses in which he purports to speak for the community of Jersey. When doing so he has adopted the cloak of de facto prime ministers – making political pronouncements as would the prime minister in the UK.
In making such speeches, the Bailiff has repeatedly attempted to defend the status quo of Jersey’s position; to defend the oligarchy and to – as he would no doubt presume it – to speak on behalf of the community.
In acting in this way he has routinely – as is a matter of public record – made it crystal-clear that he is joining in with, and supporting the actual political establishment of the island in all their various efforts to show a veneer of respectability to the outside world.
So here’s the rub.
As a judge – let alone as actual head of the judiciary – the fortunes and appearances of the island’s governmental authorities ought to be a matter of total disinterest to him.
No respectable judge can do their work if they carry in their minds the constant consideration: –
“How will the implications of this judicial matter look politically; how might it affect the executive. I don’t want to see any damage or harm come to the cause, standing or reputation of the government.”
Yet that is precisely what we have from Phil Bailhache.
And this state of affairs is doubly problematic for him and the judiciary which he leads.
Firstly, in the case of Phil Bailhache – we do not even need to speculate on his political views, allegiances or priorities.
He, himself has overtly, prominently and publicly displayed just such political partisanship.
So in his case – it isn’t even merely a case of “suspicion” of conflict. It’s out on the table – for the world to see.
Secondly, even if he hadn’t bee so incautiously overt in his political activities – the mere fact that he regards himself as the ‘civic’ leader of Jersey – and thus has an unambiguous stake in the appearance and reputation of the island and its establishment – means that he cannot escape the suspicion that he may be biased.
Which returns us to the established point that no respectable judicial process can, for one instant, be associated with even the merest whiff of suspicion.
The test is that judicial processes must achieve the appearance of objectivity.
Neither of the present incumbents as Bailiff and Deputy Bailiff – nor indeed, those roles as presently defined, can get remotely close to meeting that test.
To elaborate on the principles at play here; in respectable, functioning democracies – it has been accepted – for a very long time – that there needed to be a clear separation between legislature – the realm of politics – and the judiciary – the realm of law.
Such a ‘separation of powers’ has long been regarded as necessary in order to achieve what are termed effective ‘checks and balances’. This needs to be so in order to ensure that neither realm – the political or the legal – can indulge in untrammelled power; that each be subject to checks and restraints by the other.
The political sphere makes the laws to which the courts must work within, and adjudicate upon. The courts then administer justice impartially – free of political considerations.
For this arrangement – which underpins power in all established, respectable democracies – to work – the courts must be free of any political taint.
Not least, because – and this is a very relevant point to the Jersey situation – it is often governments which break the law. Public authorities; different sections of public administration are subject to the rule of law – every bit as much as you or I.
Therefore, the courts; the judiciary, will often be called upon to hear cases and adjudicate upon both criminal and civil actions against the government or one of its departments.
But this arrangement cannot possibly work if judges carry with them the concern – “how will this look for the government?” If they did – the effectiveness of the rule of law collapses – instantly.
Judges, and the courts over which they preside, must – I repeat, must – set aside, and not allow, contamination by political, personal or philosophical considerations.
The whole modus operandi of judicial proceedings is that they apply objectively the laws of the day, admit only evidenced facts to enter the equation – and that they then come to impartial and objective decisions based upon the relevant laws and the merits or otherwise of that particular case.
Judges and their courts will often be called upon to adjudicate over some action or omission of the government. And the factual, evidenced, lawful conclusions of such cases may well be profoundly embarrassing and extremely detrimental to the government.
And that is just – “tough”.
The law – is the law- is the law.
And if a government has broken a law – it must be held to account by the courts – quite regardless of whether the judgment is “politically” damaging for the government.
Having laid out those facts – we are forced to accept that there is only one credible conclusion we can arrive at in our consideration of the competence of the judicial apparatus of Jersey to deal with the child abuse disaster.
And that conclusion is that it cannot be remotely regarded as competent as presently structured.
Both structurally – and in terms of the political actions of certain of its senior members – its contaminating entwinement with the political sphere in Jersey forms an insurmountable obstacle to the good administration of justice.
In fact – this conclusion is so inescapable that we have to question the calibre and competence of senior figures in the Jersey prosecutory and judicial apparatus when they continue to refuse to face that fact.
Even if all of the individuals I cite above were – by some superhuman and Christ-like ability – to set aside their personal views, their prior involvements and their political considerations; even if I was to concede that such a fantastical notion could be exercised by these individuals – it would still make no difference.
It would make no difference – whatsoever – to the fact that they would continue to APPEAR to be conflicted.
And it is that mere suspicion – that mere hint of conflict – which renders them and the entire Jersey judicial apparatus incompetent to deal with any issues – criminal or civil – arising from the Jersey Child Abuse Disaster.
I said earlier that there was a fundamental issue with which I would conclude; by which I would attempt to explain the inexplicable.
So, here goes.
Given that it is – very – very – obvious that the Jersey prosecutory and judicial apparatus is hopelessly conflicted in any matter relating to the child abuse disaster; given that there are absolutely mountains of rock-solid jurisprudence – unassailable authorities – which make our case – which seal our conclusions – we have to ask a question?
Why should the Jersey judicial apparatus be placing itself in diametric opposition to all established authority and case-law?
The reason is this.
They all know that if they conceded the fact – for it is a fact – that Jersey’s prosecutory system and judicial apparatus is disastrously conflicted – and therefore incompetent to deal with these cases – then we head – very rapidly – to an unavoidable conclusion.
The legal principles, the jurisprudence, the case-law and human rights – all draw Jersey implacably to an inevitable conclusion.
Which is that – because of its tiny size, because of inevitable conflicts of interest – because of that fundamental principle that justice must be seen to be done – because no suspicion of bias can be permitted in judicial processes – Jersey is not capable of the proper administration of justice under the present constitutional arrangements.
Not just in respect of the Jersey Child Abuse Disaster – but in practically every single criminal or civil case of any significance.
If the Jersey oligarchy were to concede the fact of their conflictedness – to admit that they cannot meet the test of the appearance of objectivity in the present crises – then – inevitably – they also concede that such a small place as Jersey cannot properly administer justice at all – without dramatically greater external involvement and oversight.
This is why the Jersey oligarchy – finally – finds itself making a last stand. And doing so – in futility – against the entire canon of established jurisprudence and authority.
They know – we know – they know we know – we know they know we know – that a final, implacable end has been reached.
That whilst Jersey can – and should – remain self-governing insofar as the political sphere is concerned – in the case of the competent administration of justice – we must now embrace external and independent judicial processes.
Justice must not only be done – it must be seen to be done.
Not even the merest suspicion of partiality or conflict can be associated with any respectable, functioning judicial processes.
Jersey is, therefore, simply incapable of meeting that basic standard.
And to those who condemn me for committing such heresy – recognise that the fundamental legal principles I describe are not some fanatical product of mine; they are the sound and wise product of centuries of justice.
If Jersey is to stand as a respectable, self-governing jurisdiction into the future – we simply have no choice other than to accept that what passes for the administration of justice at present in the island – just does not meet the requisite standard.
Indeed – probably hasn’t done for at least 100 years.
I do not advocate full independence for the island. Personally, I want to retain my British citizenship.
Nor do advocate becoming a part of the United Kingdom – I value Jersey’s historical independence.
But this is now the 21st century.
The good administration of justice cannot be delivered internally – in a community of 90,000. Structurally – it simply isn’t possible. The conflicts are simply inescapable.
I, along with John Hemming MP, am shortly to embark upon a legal action in London against Jack Straw MP – the relevant UK Government Minister.
Our case is simple:
Britain – historically, constitutionally and under modern Convention obligations – has ultimate responsibility for the good administration of justice in Jersey.
Britain does have the power to intervene – something unarguably established by robust precedent.
Britain should intervene – under the present circumstances – which involve a clear breakdown in the ability of the Jersey prosecutory and judicial apparatus to meet the test of the appearance of objectivity.
Britain’s ability to exercise such power is through Jack Straw and the Privy Council.
Britain’s failure to intervene – on behalf of a very substantial number of abuse victims, and the good administration of justice generally – should be subjected to Judicial Review.
That – in essence – is the case we will be making.
Personally – I’m confident we will win; that we will secure a Judicial Review of the situation.
But – I really wish none of the above was necessary.
I just wish our oligarchs possessed the wisdom to – finally – face the inevitable.