Oliver Wendell Holmes, Jr.
Another day in Jersey’s Courts;
It’s just like the Nazis Never Left.
Right, I guess I’d better confess straight away; I can’t yet supply my readers with the crucial, core facts from yesterday’s ‘directions hearing’ in Jersey’s Magistrates’ court.
Shameful though it is – I spoke to the reporters from Jersey’s only “newspaper”, the Jersey Evening Post – more commonly known as The Rag – and gave them an exclusive.
So you will have to wait until the said journal emerges to in order to be appraised of the central public interest information.
Namely, what I was wearing when I attended court.
I even gave them the brands.
How’s that for a dynamite source?
In the mean time, readers of this blog will have to settle for a detailed description of the manifest ultra vires nature of the conduct of, and the proceedings of, what passes for ‘justice’ in Jersey’s courts.
It was, of course, tediously predictable in oh-so many ways.
I was given half-an-hour to read some medical evidence – and then denied an adjournment in order to give it detailed consideration or seek a second opinion.
I was – again – refused disclosure of much of the crucial evidence required to show the abuse process argument – and to evidence the public interest disclosure defence.
I was flatly refused an adjournment – even though – in light of newly obtained evidence – a new string to the defence argument – that of criminal malicious prosecution – now exists, and requires time and disclosures to prove.
And I was denied an adjournment to enable the time necessary to pursue legal disclosure against the UK Nursing & Midwifery Council – who have been inveigled by the Jersey authorities into not acting appropriately and decisively on the evidenced complaint against ‘Nurse M’ – because “it would aid Syvret’s defence” if they did.
Perhaps most remarkably – in light of such apparently and actually biased decisions by the Magistrate Bridget Shaw – she continued to refuse to disclose the facts of her conflicts of interest – and continued to maintain – in the teeth of all evidence and precedent – that she “was not biased”.
Tuesday’s instalment of Kafka did produce one benefit – the only one I thought might emerge, and the only reason I attended; I was able to state my grounds for the proceedings being unlawful and seeking a judicial review of the conduct of Jersey’s judicial authority, the ‘Judicial Greffe’.
Admittedly – it took the customary forceful arguments – against Bridget Shaw – to eventually make her accept the fact that she cannot conduct the entire proceedings without letting me state my defences. But after various attempts to stop me from speaking, I was able to read out my grounds for arguing that the conduct of the proceedings of the Jersey Magistrates’ court against me are unlawful.
And having so read it in open court – I reproduce the entire document below, in this posting.
It is long – and tedious – but forgive me; these grounds have to be correctly and fully laid at an early stage – in order to facilitate that long trek to Strasbourg.
Just as certain as was Bridget Shaw’s overt bias against me, and peremptory dismissal of my argument – was her absolute failure to follow the accepted legal authorities on apparent bias, or to state any alternative, superior authority.
Instead, her position was yet more of the customary vacuous assertion: “I have made my mind up – and that is that; I do not have to cite justification; no – I will not let you speak; I do not have to explain my departure from the established English and ECHR jurisprudence; if I say my friendships with all these other Jersey oligarchs – whose suggested identities I will not confirm – does not matter – then that is that. I will not name them.”
For someone who has had to halt proceedings to borrow law books from me – and who has – as can be seen from the evidence of the transcripts – simply done what she is told by the prosecuting lawyer, the heavily conflicted Stephen Baker – Bridget Shaw exhibits remarkable confidence in setting her face so strongly against the entire modern jurisprudence of England – and of Strasbourg – on the question and the tests of apparent and actual bias.
As is readily ascertainable from the authorities, and from numerous judicial codes, judges are obliged – obliged, it is not discretionary – to openly inform the parties to a case if the judge has any kind of personal acquaintance with a person or persons who could be seen to be involved with the parties to the case. It is true that the judge, at first instance, is able to determine for himself or herself whether such acquaintance renders them incapable of meeting the tests of objectivity.
But – inescapably – the judge must – at the very least – let all such potential conflicts be known to the parties to a case.
That is the case – so that should the parties feel the judge is wrong should they refuse to deem themselves conflicted and stand down from the case – the parties can appeal the judge’s decision.
Bridget Shaw – apparently uniquely in the entire sphere of the judiciary of the British Isles – knows better.
She considers herself entitled to withhold from the defence, and the court generally – the fact that she is closely acquainted with – and has worked with – key witnesses in this case – such as Emma Martins, the Data Protection Commissioner, and Dave Minty, the police officer who was instrumental in controlling the illegal police raid, but who has since – against the evidence – denied involvement.
Bridget Shaw thinks it acceptable for her to ignore every wise and circumspect guidance of British judicial practice – and refuse to inform the defence of the fact she worked with a heavily conflicted and involved party to this case – former Attorney General William Bailhache.
She – alone – and in apparent superiority to the practice of every learned high justice in England – considers it acceptable for her to refuse to disclose or acknowledge the fact that she has taken legal advice and guidance in this case from one Advocate Richard Falle – long-term political enemy of mine – and best friend of William Bailhache’s brother, and further political enemy of mine – former Bailiff, Philip Bailhache.
Still – I suppose we shouldn’t be surprised – we are forever informed by these clowns of the “superiority” of “The Jersey Way”.
Indeed – so superior are Jersey judicial proceedings, Magistrate Bridget Shaw needn’t really bother turning up herself – as all she ever does is parrot that which is asserted by the prosecution. She could simply leave her red cloak behind – and Stephen Baker could repeatedly swap it for his black one – as he dashed between the judge’s seat and the lawyers’ bench – conducting a dialogue with himself.
In fact, so “efficient” are Jersey’s judicial arrangements, I need not even attend myself.
Though Bridget Shaw kindly volunteered the information that – should I take the attractive decision to simply stay at home – the hearing would proceed without me, in any event.
Which was about the only useful and rational information that emerged from the oligarchy side in the entire hearing.
Though the heavily conflicted and routinely perjuring Advocate Stephen Baker was absent on Tuesday afternoon, another of Barking Bill Bailhache’s politicised factotums was present – who – apparently – satisfied Bridget Shaw against every – evidenced – objection of the defence – by the simple assertion that I “would never be satisfied that I would secure a fair trial in Jersey.”
The statement was wrong on two – rather obvious – grounds. Firstly, I’d quite happily accept that I would receive a fair trial in Jersey – if and when the prosecution system and the judiciary of the island were not so obviously politicised, professionally and personally conflicted – and was separated from the other arms of the state.
You know? Just like has happened in all respectable democracies for at least the last two hundred years.
And – I would also accept that I was receiving a fair trial – when I was not before a court that – on the evidence – such as Tuesday’s performance – was brazenly exhibiting actual bias, withholding evidence of conflicts of interest – in direct defiance of all English and ECHR jurisprudence – and was flatly denying me the opportunity to obtain and cite the evidence needed to prove my public interest disclosure defence.
The subtlety of that last point may be lost on the casual observer. In Jersey’s Data Protection Law, there are several statutory defences for disclosing ‘controlled data’, for example, a public interest disclosure defence, for the purposes of exposing crime or preventing crime.
But – quite obviously – in order to make such a defence work – an accused person has to show, through evidence, that the data they exposed did actually serve a public interest by exposing and preventing criminal activities.
I can certainly meet that evidential test – several times over.
However – the prosecution and Bridget Shaw are not going to let me.
“Oh yes” – they say – “we do not dispute the defendant’s right to run a public interest disclosure argument. We’re quite happy for him to make that claim.”
“However – what we’re not going to accept is for the defendant to obtain and adduce the actual evidence necessary for him to establish the justification of his public interest disclosure claim.”
You see – what the Jersey oligarchy want to happen, is for me to show up in court – and do no more than point to the statutory public interest disclosure paragraph in the Data Protection Law – and say – “there – see that paragraph? That’s my defence argument.”
And then sit down and shut up.
And be convicted.
What they simply will not countenance is for me to spend time examining in detail – in open public court – all of the mass of evidence – and the testimony of the two expert witnesses I have – that would prove – several times over – that “Nurse M” is – in fact – a psychotic, Harold Shipman-type medical serial killer – and – in particular – that that much was obviously ascertainable at the time of the original 1999 investigation – but the then prosecuting authorities – Attorney General Michael Birt and the man who is currently a legal partner of Stephen Baker, Cyril Whelan – unlawfully abandoned the inquiry, in connivance with the hospital senior civil service – in order to avoid a scandal.
So when it is reported in Jersey’s mainstream media, that I am able to avail myself of the public interest disclosure defence – just be aware – of that subtle – but crucial – twist: I am ‘permitted’ to point to the statutory defence clause in the law – but I am being unlawfully and improperly prevented from adducing the evidence necessary to justify such a defence claim.
You see, Mick Birt – the now the Bailiff, and Jersey’s prosecution system – Stephen Baker amongst it – are the same authorities largely responsible for letting off child abusing psychopaths such as Jane and Alan Maguire.
So it just wouldn’t do – would it – for a very highly evidenced examination of their malfeasant concealment of serious crimes to be conducted through open court.
Why, because that would prove that the Jersey authorities were – in fact – in the habit of concealing serious crimes for reasons of political expediency.
And we just couldn’t have that now – could we.
So when Bridget Shaw and Stephen Baker re-convene to conduct their ultra vires charade – just bear in mind – that what will be taking place is politicised and personally conflicted spin-doctoring – not the administration of justice.
And for those interested in some of the detailed argument as to why that is so – I re-produce below my submission to Jersey’s judicial public authority; a submission which will form the basis of the forthcoming judicial review application.
For those interested in my clothing – you’ll just have to wait until The Rag hits the streets.
LETTER PRIOR TO JUDICIAL REVIEW APPLICATION
7th September 2010
Advocate Paul Matthews
Deputy Judicial Greffier
Royal Court Building
ATTORNEY GENERAL vs. STUART SYVRET
Unlawful nature of the administration of the judicial proceedings
LETTER BEFORE CLAIM
Prior to Judicial Review Application
Substantive reply required within fourteen days.
Dear Advocate Matthews.
1. Thank you for your response to my e-mail of the 13th August which I had principally addressed to Magistrate Bridget Shaw.
2. In the final analyses, I felt I had no choice other than to take the unusual step of writing directly to the Judge in question, as my repeated efforts to obtain the important evidence sought in respect of my right to a fair trial, by writing to the court clerk – Magistrates’ Court Greffier David Le Heuze – had all been met with failure.
3. I will address my specific concerns in respect of both Magistrate Shaw and Mr. Le Heuze in greater detail below, but before doing so, I feel I should respond to you with some general points.
4. Firstly, you will note that this is a Letter Before Claim, prior to a Judicial Review application, written to the Judicial Greffe as the relevant public authority, and in connection with important public law matters.
5. In a nutshell, I have no doubt that certain, fundamental aspects of the administration of Jersey’s justice apparatus in respect of my case, have been unlawful. I am, therefore, writing to you and specifically asking that you pass this letter to the Judicial Greffier so that he may consider the requests I am making that he recognise and correct that unlawfulness.
6. It is my strong hope that he will recognise the various unlawful aspects of the situation, and that he will take the appropriate steps to address and rectify them. In the event that he fails to do so, I regret I will have to make the relevant Judicial Review application.
7. I note your wish to regard this correspondence as ‘now closed’, but with respect, the issues being addressed in this correspondence are important, and I do not feel I have been in any way unreasonable or vexatious in writing to you; the questions I raise are legitimate.
8. I accept that I introduced my request for information by reference to the Code of Practice on Public Access to Official information, but, frankly, the request for information is perfectly capable of consideration outside of that guidance, on any reasonable view.
9. You claim that: –
9.1.1. “The reference to the Code is something of a red herring. The Judicial Greffe (of which the Magistrate’s Court is a part) is a judicial department (see Departments of the Judiciary and Legislature (Jersey) Law 1965). It is not an “authority” as defined in the Code of Practice nor a States Department for the purposes of the Administrative Decisions (Review) (Jersey) Law 1982.”
10. With respect to the Code, I would point out that it is not legislation – merely a Code. It does not fix and apply a statutory framework within which the handling and disclosure of information – “official” or otherwise – is defined in law. It is merely a guide – to which public authorities should, as a matter of good practice, adhere. Given the non-legislative status of the Code, it follows, therefore, that public authorities, such as the Judicial Greffe, are not prevented from following those general principles of transparency.
11. I must also explain that the Code – very clearly – defines a “minimum” standard of openness. It suggests that maximum transparency should be the starting point – and that information should only be regarded as confidential when it is necessary to do so.
12. The general principles embodied in the Code are no more than an entirely reasonable set of guidance that any objective person could expect to be followed by any public authority in Jersey.
13. Therefore, if anything is a “red herring”, may I respectfully suggest that it is your attempt to argue that the general – entirely reasonable principles of transparency embodied in the Code – should not apply to a ‘public authority’, such as the Judicial Greffe.
14. Even if – hypothetically – your claim that the Code did not apply to the Judicial Greffe was correct, such a state of affairs would be largely irrelevant to the requests for information.
15. Instead, any objective person would consider the status of the Greffe as a ‘public authority’ – then consider whether, as such, it should comply with moderate and reasonable requests for information that fall within its purview – quite regardless of whether the department is captured by the Code.
16. The question is – ‘is it reasonable for any ‘public authority’ – in the year 2010 – to seek to withhold relevant information that comes within the ambit of that public authority’s formal responsibilities – in the absence of any especially compelling reason for non-disclosure?’
17. I do not believe that the proverbial ‘reasonable man on the Clapham omnibus’ would regard it as right that a modern ‘public authority’, such as the Judicial Greffe, should regard itself as impervious to reasonable requests for information.
18. You state: “The information you seek as to whether David Le Heuze (the Magistrate’s Court Greffier) is related to Ernest Le Heuze (a person convicted in the Royal Court) is not official information.”
19. You later go on to state that, “Even if the Code were applicable the information sought is not official information.”
20. I’m afraid I cannot agree with your definition of ‘official information’. I did spend some considerable time studying the principles of FOI codes and legislation when I was in the States, and I’m afraid it is a common gambit of authorities who wish to avoid gathering, collating and disclosing information that is within their purview to use arguments of the type you advance.
21. The question is not whether the information sought is actually, a priori, gathered, held and collated when the request for disclosure is received. Rather, the question is, ‘is the information sought, information that should reasonably be within the ambit of the authority?’ For example, ‘does the information sought have a clear relevance to the official activities of the public authority in question?’
22. If the answer to questions such as those two is affirmative, the process then moves to questions such as, ‘is the information sought actually reasonably obtainable by the authority in question?’ Or ‘is the request manifestly unreasonable?’ For example, some information sought might be so wildly outlandish as to not form a reasonable request.
23. On the reasonable basis described above, I turn to the actual questions and your responses. You state that the Judicial Greffe does not maintain records as to whether any of its staff are related to those who are tried and/or convicted before the courts.
24. I have no doubt that that claim is correct. Indeed, I go further – and state that I, personally, would not expect the Judicial Greffe to maintain such a general record.
25. However – that, quite obviously – is not really the point.
26. The point is, when the Judicial Greffe receives a question in a specific instance, concerning a relationship between a member of staff and a person convicted of crimes – and the relationship in question could be argued to have a bearing upon the objectivity of the administering functions of court proceedings in which the actual crimes the relative was convicted for have a clear and direct relationship to the accused in the current proceedings – the Judicial Greffe is, in all reasonableness, obliged to seek out the facts sought – and supply them to the present accused.
27. That is, quite regardless of any Code – or, indeed, any FOI legislation, if Jersey had any.
28. I say that because there is very clear UK case-law on the need for the appearance of objectivity to be maintained in courts, and how it is possible for such objectivity to be tainted by apparent conflicts involving staff in Magistrates’ courts.
29. So rather than considering my requests for information under the Jersey Code, rather, the requests should have been considered as a proper request for evidence, needed to test whether the proceedings against me can withstand being tested against extant UK case-law.
30. Indeed, I would argue that given the peculiar nature of Jersey’s Magistrates’ Court Law and the nature of its proceedings in general, and, even more significantly, the very strange nature of the conduct of those proceedings against me – the requested information is of even starker importance.
31. Therefore – my questions concerning the possibility of apparent bias or actual bias on the part of court staff involved directly in administering my case – and my questions concerning similar issues of apparent or actual bias in respect of the judge hearing the case – are entirely proper, reasonable and of the very kind that the relevant public authority – the Judicial Greffe – most certainly should answer.
32. I trust that clarifies my position and purposes in seeking the information?
33. Turning from the general to the specific, you state: –
33.1.1. “These matters arise in the context of judicial proceedings as opposed to administrative proceedings you need to draw your concerns to the attention of the presiding judge in the context of the criminal proceedings. These concerns will be included in your submissions on actual or apparent bias in those proceedings. If you are aggrieved at decisions made by the Magistrate there is a right of appeal and possibility of application for the Magistrate to state a case.”
34. There are, if I may say so, several flaws in that statement.
35. It is, obviously, a truism to state that ‘these matters arise in the context of judicial proceedings’. Why else would I be writing to the Judicial Greffe in connection with them? The Judicial Greffe is the ‘public authority’ responsible for the administration of Jersey’s judicial apparatus.
36. That being the case, the matters I raise are, most certainly, ‘administrative’.
37. For example, the Judicial Greffe employs staff, such as Mr. Le Heuze. As the employing department – the Judicial Greffe – quite plainly – has a responsibility for the suitability, competence, performance and appropriateness in particular instances, of its staff. Fulfilling those responsibilities is, clearly, ‘administrative’.
38. In the instant case, the Judicial Greffe is in no different a position to, say – by analogue – the Planning Department.
39. For example, if I were a Planning Minister, or the Departmental Chief Officer, or Chief Executive to the States, I would expect – simply as a matter of basic standards – Planning Officers to avoid conflicts of interest – apparent or actual. Thus if a planning application were to go before Planning Officer A, for consideration and recommendation – and there was some reason that caused the applicant to have been involved in some controversial matter that also touched, in a personal way, Planning Officer A, I would expect the automatic non-involvement of him with the case of that applicant.
40. Further – if the hypothetical applicant in question actually became suspicious of the existence of such a potential for an apparently biased decision – and actually asked the questions, and raised the matter himself with the Planning Officer, or his employers, I would – most certainly – expect a full and frank disclosure at first time of asking, and immediate withdrawal.
41. However, the applicant should not be placed in such a situation at all – because the Planning Officer – and his employers in this hypothetical example – are perfectly aware of the potential for tainted, or apparently tainted administrative decisions at the very outset – and should thus have ensured non-involvement in the first place.
42. It can be seen – indeed, it is established in law – that the public has a right to expect impartial and objective treatment from public authorities. In order to meet that reasonable standard, public authorities will – from time-to-time – have to be aware of potential conflicts of interest on the part of their employees and, even more so when specific questions are raised, investigate such potential conflicts. Therefore “information” concerning the potential for bias on the part of staff must – unavoidably – be “official” information. It is information that is essential to the proper and effective managing and performance of a public department.
43. But, alas, the Judicial Greffe has failed to meet those, good administrative standards.
44. You admit unambiguously the very clear state of knowledge of the Judicial Greffe in respect of David Le Heuze’s involvement – no-doubt deeply traumatic and distressing involvement – as a witness for the prosecution – in a case of child pornography charges – brought against his own brother, Ernest Le Heuze.
45. You state this: –
45.1.1. “David Le Heuze informed me of matters prior to Ernest Le Heuze’s presentation before the Magistrate’s Court. Arrangements were put in place so that David Le Heuze had no involvement with the case or access to any of the papers. This was particularly important in view of his position as a prosecution witness.”
46. So that the point I am making is absolutely clear and unambiguous, I state to you – as I did in my early questions to David Le Heuze himself – that in no way, shape or form, was I implying any kind of ‘guilt by association’ when raising this issue.
47. On the contrary, I consider that he did a thoroughly admirable thing in being a prosecution witness against his own brother; an act that cannot have been anything other than profoundly and deeply upsetting in all kinds of ways.
48. Rather, my point is this: whether conscious of it or not, no person could go through the trauma of having to help to convict one’s own brother of child porn charges, without it leaving emotional scars, psychological effects or feelings of anxiety – and of confused anger – whenever the subject of child abuse issues arises.
49. I have been at the very centre of attempts during the last three years to root-out and expose many decades of concealed child abuse in Jersey. Indeed – in all the post-war years – I was the only States member to have ever recognised the issue and to have spoken-out against the crimes.
50. Although the charges against me relate to the Data Protection Law – and my allegedly unlawful public exposure of a psychotic serial-killer – who is to say that whenever the administration of my case came across David Le Heuze’s desk – and every time he sat in court staring at me during those many directions hearings – he did not feel some form of resentment – of anger – towards the whole subject? Given the circumstances – how could he not look at me – of all people – and not be reminded of the family trauma of his brother’s crime? How could he not have strong emotions about it? Especially as I was outspoken in the media at that time – as Health & Social Services Minister – in stating that I wanted Ernest Le Heuze sacked without further prevarication.
51. Who is to say that such possible strong feelings on the part of David Le Heuze were not responsible for some of the many delays in the early stages; delays that hampered my defence? For example – the delays in obtaining the court transcripts? Or – perhaps David Le Heuze’s advice and influence on setting the dates for hearings might have worked to my disadvantage – some dates clashing with States meetings? Perhaps – given the status of Magistrate Shaw as a Relief Magistrate – and very obviously in need of frequent advice – some of which came from Mr. Le Heuze, he has had an influence on her?
52. Perhaps last October – when the court was witness to the extraordinary and disgraceful spectacle of Advocate Stephen Baker stating (once he had read the report of my expert witness and realised the prosecution simply had no answer to it) that I would have to “make an application to have that evidence necessary to prove my public interest disclosure defence deemed ‘admissible’” – Mr. Le Heuze should have quietly advised Magistrate Shaw that, actually, the evidence was already admitted – and Advocate Baker was attempting to abuse the court’s procedures?
53. Perhaps he felt – and feels – a deep and growing resentment towards me for re-opening and raising what must be a deeply painful episode for him? Perhaps that’s why I have been prevented from obtaining this information I sought – information important to my defence – for many weeks, by the intransigent refusal of Mr. Le Heuze to answer, or answer meaningfully, my e-mails?
54. Why have I not received transcripts of the proceedings since my return to Jersey? Even though I have requested them from Mr. Le Heuze? The failure – the refusal – to produce the transcripts, massively disadvantages me as a reluctantly self-representing non-lawyer.
55. Perhaps such a resentment towards me – even if sub-conscious – explains why I am having to be dragged through the court every two weeks – even though I am unwell, and the court has now received no less than three written medical confirmations of that fact – for what appears to be no other purpose than the calculated humiliation of me? Why is the Magistrates’ Court Greffier not recommending that the administration of the court should cease to waste time, resources and money on convening for pointless, ten minute hearings that are serving no legitimate purpose?
56. Of course – I would predict that the Judicial Greffe and David Le Heuze would argue that no such bias has occurred. I would argue that it has; that there has been actual bias.
57. However – regardless of whether actual bias has occurred – what most certainly has occurred is the appearance of bias.
58. The administration of the proceedings against me fail – plainly do fail – the test of the appearance of objectivity.
59. Given the nature of the role played by the Magistrates’ Court Greffier in Jersey law, the obvious administrative flaws in the handling of my case – and the extraordinary mater – like an unremarked elephant in the room – of the Jersey Child Abuse Disaster – no ‘reasonable person on the Clapham omnibus’ could look at the case and say there is no danger of a suspicion of bias in the administrative processes.
60. Whilst I feel it fair to say that some blame must attach to Mr. Le Heuze for not recognising the conflict himself, and then having no involvement in my case – by far the greater blame for this disastrous situation must lay at the door of the Judicial Greffe itself. As the employing department – and – moreover – one that is centrally involved in what should be the good administration of justice – and which should have been aware of the crucial importance of avoiding even the appearance of bias – the Judicial Greffe should have had a higher standard of administrative performance, and ensured its staff were not placed in conflicted situations.
61. Indeed, I harbour no ill will towards David Le Heuze – and can imagine the resentment and distress he must feel at having been placed in this situation when his employers should – most clearly – have exercised a greater duty of care towards their employee – and a greater duty of care towards the accused person; me.
62. Mr. Le Heuze and I have both been placed in an utterly intolerable and unacceptable position.
63. Indeed – it is nothing less than extraordinary that this conflicted situation was allowed to persist – even though the Judicial Greffe was fully aware of it – until I eventually discovered the relationship between the two Mr. Le Heuzes for myself.
64. The fact that such a lack of candour – and, remarkably, such an apparent failure to be aware of the case-law on bias and apparent bias – should exist on the part of the Judicial Greffe must, I’m afraid, now cast great suspicion upon the candour and wisdom of the department generally.
65. Let me state the fact plainly – the involvement of David Le Heuze as the Magistrates’ Court Greffier, and principal administrative court clerk in my case, makes the entire proceedings thus far unlawful.
66. It goes without saying that any and all involvement of Mr. Le Heuze in any matter involving me must cease with immediate effect.
67. In that regard, you state in your e-mail: –
67.1.1. “I should be grateful if you would refrain from addressing any further correspondence on this particular subject to David Le Heuze.”
68. You may rest assured that – for reasons of his clear conflictedness – I will not be engaging in any further communications with Mr. Le Heuze – and nor will I be attending any future court proceedings unless I receive an assurance of his non-involvement.
69. I would, therefore, be grateful if you would supply me with the name and e-mail address of an alternative Magistrates’ Court clerk with who I may correspond in connection with the administration of my case?
70. As stated earlier, this is a Letter Before Claim, written prior to a Judicial Review application. I will, therefore, summarise below the formal requests I am making of the Judicial Greffe.
71. I will now turn to the questions I raised in respect of the presiding Magistrate, Bridget Shaw.
72. In my e-mail to David Le Heuze, dated 19th July, and – which was subsequently forwarded by me to Magistrate Shaw and other recipients including yourself in my e-mail dated 13th August – I asked a number of direct questions of Magistrate Shaw. Though re-numbered here for clarity, In essence, the questions relevant to Ms. Shaw were these as follows.
73. In direct connection with my defence – and the established and absolute right to a fair hearing not tainted with actual bias or the appearance of bias – I require to know the following information: –
74. 1: The identities of all persons from who Ms. Shaw has received any form of legal advice or guidance in respect of any aspect of the cases against me?
75. 2: Specifically, a confirmation as to whether any such advice has been received from Advocate Richard Falle?
76. 3: Expanding upon the points raised in questions 1 & 2 above, I require knowing whether Ms. Shaw is personally aquatinted with, or has socialised with, or has worked with, any of the following individuals:
76.1. Philip Bailhache;
76.2. Michael Birt;
76.3. William Bailhache;
76.4. Richard Falle;
76.5. Tim Le Cocq;
76.6. Stephen Baker;
76.7. Cyril Whelan;
76.8. Emma Martins;
76.9. Bill Ogley;
76.10. Robert Key;
76.11. Frances Hamon;
76.12. John Le Breton;
76.13. David Benest;
76.14. David Minty?
77. The legitimate requirement for this information should be plain.
78. In the event of an application for Judicial Review having to be made, I can describe in some detail – and on an evidenced basis – the reasons why each of the individuals listed in question 3 have to be viewed as having various interests in respect of me, my work in the interests of child protection, and my other political and campaigning activities, so as to render professional or personal relationships with them contaminating of any judge presiding over a case involving me.
79. Indeed, in respect of most of the individuals listed, I can produce prima facie evidence of their direct engagement in criminal actions – for example, breaches of the Children (Jersey) Law 1969, breaches of the Children (Jersey) Law 2002, conspiracies to pervert the courses of justice, and of misconduct in a public office.
80. Moreover – I can likewise demonstrate – on a clearly evidenced basis – my lawful and extensive political work against such crimes.
81. Thus – any association between any of the said individuals and Magistrate Bridget Shaw must – unavoidably – heavily contaminate her, and render her wholly incapable of appearing impartial.
82. But in this matter, I need not even rely upon the established authorities to support the risk of apparent bias; for in this case – I can readily demonstrate actual bias.
83. The evidence is there to be read in the court transcripts of the many directions hearings, and the resultant decisions. I am not aware of a more Kafkaesque set of proceedings to have occurred before a Jersey court since the Nazi occupation ended.
84. Magistrate Shaw has consistently appeared as nothing more than a puppet of the prosecuting lawyer, Advocate Stephen Baker. He has – quite literally – simply been telling her what to do during many of the crucial preliminary hearings. And her acquiescence to the directions of Advocate Baker has been quite breathtaking.
85. And were that not bad enough Advocate Baker himself is wholly conflicted in these matters – and should be playing no role whatsoever in any case involving me – because he worked for, and in connivance with, the former Attorney General William Bailhache, in unlawfully obstructing the police in their efforts to secure the extradition and prosecution of the two child abusers, Jane and Alan Maguire.
86. I having been very closely involved in efforts to secure justice on behalf of the victims of the Maguires.
87. The proceedings against me as presided over by Bridget Shaw are – manifestly – illegal.
88. They are unlawful not only on the grounds of apparent bias – but also of actual bias.
89. The conduct of the original unlawful police investigations against me and my former partner – and the conduct of the prosecution itself against me – are both unlawful.
90. A Letter Before Claim, prior to seeking Judicial Review, has already been written by me to the relevant public authority in Jersey, the very heavily conflicted Attorney General.
91. In that communication I have made it clear that, as a result of me obtaining further evidence – it is now plain that the entire enterprise as conducted against me is a malicious prosecution; a criminal enterprise wilfully engaged in, in order to conceal other crimes and to protect certain public authorities and senior individuals working in those authorities, from the consequences of various malfeasances and criminalities committed by them.
92. I explain that – because – at present – it looks very much as though the Judicial Greffe and the Judicial Greffier – and Magistrate Bridget Shaw – are also parties to that broader criminal enterprise.
93. And to cite just one of the grounds for having that view – one need only consider the deeply disturbing lack of candour – and otherwise inexplicable intransigence – on the part of the Judicial Greffe, of Magistrate Shaw, and of Mr. Le Heuze – in refusing to answer perfectly reasonable and appropriate questions.
94. Questions that do – quite clearly – go to the heart of the tests established in English case-law for assessing such matters as ‘apparent bias’, let alone actual bias.
95. Indeed, in recent years the test has evolved to match that of the ECHR Article 6 test.
96. It is no longer necessary for an applicant to demonstrate a “real danger” of apparent bias.
97. Instead, the test is now “whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.
98. Applying that test, there is not the remotest possibility that the Magistrates’ court as constituted in respect of the charges against me, could avoid a real possibility of the tribunal being biased.
99. And – I’m afraid – the wholly unreasonable and unsustainable refusal of David Le Heuze, and of Magistrate Shaw, and of the Judicial Greffe itself – to answer the questions I pose in respect of confounding experiences and of conflicting and compromising friendships and other personal relationships can only massively add to the already very strong appearance of bias.
100. Why – it must be asked – if there were no issues to hide – no relationships to conflicted individuals who could be viewed as parties to the case – the startling reluctance to simply answer the reasonable questions I have posed?
101. After all – all am seeking is a fair hearing before an objective and impartial tribunal.
102. A very long established legal right.
103. One cannot but draw the obvious conclusion from the starkly displayed fear of Jersey’s judicial authorities to exhibit candour in these matters.
104. That conclusion being that the entire proceedings against me are unlawful – starkly and graphically so.
105. That they can satisfy the tests of neither traditional English jurisprudence, nor that of Strasbourg.
106. Obviously – setting aside for one moment the questions that flow from that fact for a number of the current senior individuals – the implications for the present structure of what passes for the administration of justice in Jersey are significant – to say the least.
107. That – however – is not my problem.
108. Most respectable and civilised jurisdictions accepted over two hundred years ago, the need for a separation of powers in order to protect the public good through the existence of effective checks and balances. Many of the contaminations that befoul this case arise because of overlaps in the basic state functions. That the Jersey authorities – belatedly – are to be forced to face that reality and modernise is, frankly, no bad thing. It is – unarguably – to the public good.
109. I’m afraid it is not sustainable for the Judicial Greffe, as the employing public authority – to attempt to cast aside and disown its responsibility for the appropriateness of the involvement of its staff in certain situations or cases. Plainly – what we are dealing with here – in the peculiar context of Jersey- is not merely one unfortunate and rare instance where a judge – Magistrate Shaw in this case – happens to be personally conflicted. Instead – given the small size of Jersey – what we are facing is an inevitability; a structural weakness in the local system; an inherent danger of such conflicts of interest, and appearances of bias arising that – in the absence of a legislative decision to introduce a separation of powers – there must – unavoidably – be upon the public authority – the Judicial Greffe – a particularly acute duty of care to ensure that its employees do not find themselves in conflicted situations, and that members of the public are protected from the risk of being exposed to such conflicts.
110. The Judicial Greffe has failed in that manifest and reasonable duty. It has failed in the case of the presiding judge, Magistrate Shaw – just as it has failed – for reasons explained in detail above – in respect of the Magistrate’s Court Greffier, David Le Heuze.
111. It is not even as though such problems were unforeseeable. Even in a large nation-state, such as the UK, the dangers of apparent bias, actual bias, and other issues concerning the performance, conduct and professionalism of judges are well-recognised.
112. For example, the Guide to Judicial Conduct (Second Supplement published in March 2008) describes the expectations and requirements upon judges very clearly. In explaining how such guidance arose from the ‘Bangalore principles of Judicial Conduct’, the guidance says this:
112.1.1. “On a wider stage, what have become known as the Bangalore Principles of Judicial Conduct were initiated in 2001. The Bangalore principles arose from a United Nations initiative with the participation of Dato’ Param Cumaraswamy, UN Special Rapporteur on the Independence of Judges and Lawyers. A draft code of judicial conduct was prepared by a group comprising senior judges from Commonwealth countries. This was discussed at several conferences attended by judges of both common law and civil law systems and has also been considered by the Consultative Council of European Judges. Revised principles were prepared in November 2002 following a round-table meeting of Chief Justices held at the Peace Palace, The Hague and were endorsed at the 59th session of the United Nations Human Rights Commission at Geneva in April 2003.
112.1.2. The principles are succinctly stated as six “values” and their stated intention is: “To establish standards for ethical conduct of judges. They are designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct. They are also intended to assist members of the Executive and Legislature, and lawyers and the public in general, to better understand and support the judiciary”. The principles are:
112.1.3. (i) Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.
112.1.4. (ii) Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.
112.1.5. (iii) Integrity is essential to the proper discharge of the judicial office.
112.1.6. (iv) Propriety, and the appearance of propriety, are essential to the performance of all of the activities of the judge.
112.1.7. (v) Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office.
112.1.8. (vi) Competence and diligence are prerequisites to the due performance of judicial office.
113. In this context, principles (i), (ii), (v) and (vi) are engaged.
114. The document later states – in section 3, “Impartiality” – at Paragraph 3.12: –
114.1.1. “If circumstances which may give rise to a suggestion of bias, or appearance of bias, are present so that they are to be disclosed to the parties, that should be done well before the hearing, if possible. Case management procedures will often enable this to be achieved.”
115. It is clear – very clear – notwithstanding the extremely telling – and alarming – failure of the Magistrates’ Court Greffier, Magistrate Shaw herself, and of the Judicial Greffe to exhibit candour – that Magistrate Shaw is certainly surrounded with a range of circumstances which “may give rise to a suggestion of bias or appearance of bias” – but yet, not only were these potential conflicts not disclosed to the parties – well, certainly not the defence, at least – before the case started – they were not even disclosed at the beginning of the case.
116. Indeed – utterly extraordinarily – even now – all concerned appear to be doing all they can to continue to conceal the facts of her personal, professional and social acquaintances which – most certainly – do give rise to the appearance of bias in the case.
117. The fact that – even at this stage – it can be regarded as acceptable for Magistrate Shaw and the Judicial Greffe to continue to seek to conceal such fundamental facts from the defence is staggering; it is a fact – of itself – that could easily stand alone to damn judicial practice in Jersey.
118. And as paragraph 3.12, quoted above, says of the dangers of conflict arising, and the need to avoid them, “case management procedures will often enable this to be achieved.”
119. The general policy for case management procedures is a responsibility of the relevant public authority – in this case the Judicial Greffe. If such policies are too inadequate, weak – or non-existent – to ensure that judges and parties are not placed in situations of apparent or actual bias – then that is a clear administrative failure on the part of the Judicial Greffe.
120. An administrative failure that has unlawful consequences.
121. Hence one of the grounds for the Judicial Review application.
122. A further, seriously confounding issue arises in the context of the Jersey Magistrates’ Court Law – and the degree of power, control and direction the prosecuting lawyer has over proceedings.
123. Effectively – and at risk of repetition, the evidence is there to be observed in the transcripts; the prosecuting lawyer, Advocate Stephen Baker is, effectively “conducting” the proceedings. Even were he not directly and personally conflicted in this case – he would still be engaged in what is, effectively, a quasi-judicial role in largely determining the direction of the prosecution he himself is running.
124. But – additionally in this case, he does have a direct conflict of interests in respect of his involvement – as an agent of the previous Attorney General, William Bailhache, in seeking to obstruct the police in their efforts to secure the extradition of the child abusers, Jane and Alan Maguire from France.
125. Given both his personal, professional conflicts of interests – and the de facto quasi-judicial role he is fulfilling – Advocate Baker is being permitted to be ‘a judge in his own cause’.
126. This is directly counter to the ancient dictum, “nemo judex in causa sua”.
127. It is – therefore – of even starker and greater importance that a judge – any judge – presiding over this particular case should be absolutely robustly independent – and categorically free of any bias whatsoever – actual or even perceived.
128. Magistrate Bridget Shaw cannot hope to meet that test.
129. As the famous dictum from an English case – as long ago as 1924 has it, so I’m hardly advancing some outré revolutionary notion – “justice must not only be done but should manifestly and undoubtedly be seen to be done”.
130. English courts have gone on to rule that, ‘a real danger of bias might arise if there were personal friendships or animosities between the judge and any member of the public involved in the case. (My emphasis.)
131. There are certainly, ‘friendships’ between Magistrate Shaw and certain of those who could be described as parties to matters concerning me.
132. But a higher test that the tribunal must meet is now established; no longer is it necessary for an applicant to show “real danger of bias” – but rather, as quoted above, “whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.
133. Magistrate Bridget Shaw is known – to varying degrees and in various ways – to at least some of the fourteen individuals I list above, and in respect of which individuals I have made repeated attempts to determine the full nature and extent of Magistrate Shaw’s relationships to.
134. I have been wholly unreasonably and improperly thwarted in obtaining that information.
135. That is clearly so on the authorities. As all sources state, there are very few cases where a certain relationship will – automatically – trigger an appearance of bias and of recusal. Virtually all such cases – of disputed impartiality, or of apparent bias – hinge about the specific facts that pertain in each particular case.
136. Yet – in spite of the fact we are all aware of an arguable range, of possibly multiple conflicts of interest – the facts – the evidence necessary for determining whether bias in this case – apparent or actual – exists, is being unlawfully withheld from the defence.
137. In your e-mail to me, you state this: –
137.1.1. “These matters arise in the context of judicial proceedings as opposed to administrative proceedings. You need to draw your concerns to the attention of the presiding judge in the context of the criminal proceedings. These concerns will be included in your submissions on actual or apparent bias in those proceedings. If you are aggrieved at decisions made by the Magistrate there is a right of appeal and possibility of application for the Magistrate to state a case.”
138. As I observed earlier, there are several problems with your assertion.
139. As explained, the apparent and actual bias of these proceedings – of this tribunal – in respect of me, are not some “unforeseeable” and rare act of happenstance.
140. The profound problems with these proceedings arise and exist in the Jersey context as a direct result of unlawful policies – and the unlawful absence, in some ways, of policies – of the relevant public authority – the Judicial Greffe.
141. For example – not having in place a set of administrative procedures that automatically engages all reasonable steps to protect clerks, judges and parties from what are clearly going to be a frequency of apparently or actually conflicted cases in the context of Jersey, is – plainly – a structural administrative failure of the public authority, as opposed to being a one-off error of judgment by one or two employees.
142. Therefore your suggestion that the matters I raise can be dealt with within the extant proceedings, as just another passing judicial consideration for the judge, is not, I’m afraid, sustainable.
143. Indeed – as much was confirmed by Magistrate Shaw herself during the last hearing, when challenged by me on the point of the failure for me to be supplied with answers to my questions concerning her conflicts of interest.
144. We would be able to consider her exact words – but for reasons suggested above – the completion and supply of transcripts has dried up since my return to Jersey, thus greatly hampering my defence.
145. However – going from memory, Magistrate Shaw responded to my question by denying that she had received my e-mail, and went on to say that if I had any concerns or questions concerning her status or conduct in this case – the proper course of action was for me to direct such enquiries to the Judicial Greffe.
146. It can be seen therefore, that a sharp difference of opinion exists between your assessment of the situation, and that of the Magistrate herself, who confirmed – when I drew my “concerns to the attention of the presiding judge” – that the Judicial Greffe was the proper authority with which to raise such questions.
147. You do suggest that Judicial Review may be a possibility, but also suggest that appeal, or ‘case stated’ may be the appropriate way forward, as Judicial Review is usually regarded as a remedy sought at last resort, once more immediate remedies have been exhausted.
148. I would welcome your observations as to whether my understanding is correct, but my recollection is that such remedies are not available to me?
149. You may recollect that I did, in fact, challenge the impartiality of Magistrate Shaw at the very outset of the case. She rejected my application to recuse – deeming herself non-conflicted – and capable of not risking the appearance of bias. (As is now plain – whether we care to admit it or not – Magistrate Shaw was seriously mistaken in that assessment of her position, and was, indeed, in further error in not, a priori, declaring any and all such possible conflicts of interest, but those are separate points.)
150. Having so raised my concerns, at the outset – and having had them rejected, I attempted to appeal Magistrate Shaw’s decisions to the Royal Court, and the Magistrate did, in fact, state a case.
151. My appeal was heard by Sir Richard Tucker – and it was rejected on two grounds. Correct me if I have this wrong, but my understanding was that the judgment suggested that Magistrate Shaw was “premature” (I think that was a polite way of saying she was in error) in even having stated a case.
152. Further – and perhaps more significantly – it was concluded that no right of appeal lay against interlocutory decisions of a Magistrates’ Court. The law appeared to be that all the accused could do was wait until convicted – then appeal against conviction and/or sentence.
153. Therefore – the alternative remedies you suggest have, in fact, already been attempted by me, rejected and exhausted. You also, incidentally, point out that the Administrative Decisions (Review) (Jersey) Law 1982, does not capture the Judicial Greffe.
154. So far as I can tell – Judicial Review is the only remedy left open to me – should I wish to secure to myself the inalienable right to a fair hearing before an impartial tribunal.
155. I am not aware of any case-law – English or ECHR – that deems it acceptable for courts of first instance to be hopelessly conflicted and biased – and incapable of constituting an impartial and objective tribunal – merely because a appellate court exists which may overturn such miscarriages of justice.
156. I do not, therefore, have any intention whatsoever, of surrendering to a biased and plainly unsafe court of first instance – thus allowing myself to be wrongly convicted – in the vague hope that some higher court might – one day – overturn that conviction.
157. I have an absolute right to a fair trial – as guaranteed by Article 6 of the ECHR.
158. That right applies – quite unarguably – in courts of first instance. Such courts are not excused from maintaining the standards of the impartial administration of justice, merely because some possible avenue of appeal exists.
159. In this case, the court of first instance – the Jersey Magistrates’’ Court – and in the particular circumstances of the case against me – being heard by the conflicted judge, Bridget Shaw – does not constitute an objective and impartial tribunal.
160. And – most significantly – it fails to meet that standard, because of fundamental administrative practices – unlawful policies – of the relevant public authority – the Judicial Greffe.
161. The profoundly serious issues that arise in this case are the result of structural unlawfulness in the policies and practices of the Judicial Greffe.
162. It is on that basis I shall be making an application for Judicial Review.
163. That is, reluctantly making such an application – in the absence of the Judicial Greffier accepting the obvious and serious defects in the authority’s policies and practices, and the unlawfulness of the consequences in my case – and acceding to my requests, which I itemise below.
164. Decisions I am asking the Judicial Greffier to make.
165. For all of the reasons described above – and more besides, the conduct of the judicial proceedings involving me has been unlawful.
166. I am, therefore, asking the Judicial Greffier – as the relevant public authority to: –
167. 1: Recognise the manifest unlawfulness of the conduct of the judicial proceedings against me.
168. 2: Recognise that both the Magistrates’ Court Greffier, David Le Heuze – and the Magistrate, Bridget Shaw – are both conflicted – incapable of meeting the appearance of impartiality – and are biased, in both appearance and substance, even if sub-consciously.
169. 3: Recognise that the many aspects of manifest unlawfulness in the proceedings arise as a result of a structural and policy failings of the Judicial Greffe as the relevant public authority.
170. 4: Recognise that the unlawful administrative failings of the Judicial Greffe have caused the administration of justice in Jersey fall below acceptable standards of impartiality and objectivity.
171. 5: Recognise that in failing to have in place the correct and lawful administrative procedures and safeguards, the Judicial Greffe has improperly exposed employees, judges and parties, to needlessly difficult and stressful situations of conflict.
172. 6: Advise the prosecution that the proceedings involving me so far have failed to meet the requisite standards of objectivity and impartiality, have failed to comply with the requirements of Article 6 of the ECHR, and must, therefore, in the interests of justice, be begun again, from day one.
173. 7: Ensure that the re-started proceedings are fully compliant with the requirements of Article 6 of the ECHR, and with the most recent English authorities.
174. 8: Ensure that all of the information I have sought in respect of conflicts of interest and potential conflicts of interest – and of bias and apparent bias – as itemised at paragraphs 74, 75 and paragraph and sub-paragraphs 76 above, is obtained and supplied to me without further prevarication.
175. 9: Recognise that the failures of the Jersey judicial apparatus to meet the requisite standards for the good administration of justice has caused, and will continue to cause very severe damage to the population of Jersey by denying to them the proper protections of the law and the impartial and objective administration of justice – by administering a judicial apparatus so obviously skewed in favour of the powerful – by failing to ensure the administration of justice in Jersey occurs upon a level playing-field – by failing to ensure that judges and court staff are properly managed, administered and guided in such ways as to ensure that conflicts of interest and apparent and/or actual biases are avoided – by administering a judicial apparatus that enables wrongdoing by the powerful to persist – by permitting Jersey’s judicial apparatus to be used as an instrument of political oppression – the current policies, practices, decisions and administration of the justice apparatus of Jersey by the Judicial Greffe has caused massive harm to the public good.
176. 10: Recognise that in respect of the many manifest wrongs I have suffered as a result of the unlawful acts and omissions of the judicial apparatus of Jersey, I am owed appropriate recompense and justice.
177. As stated at the beginning of this letter, I require a substantive response answer within 14 days.
Thank you for your assistance.