Almost certainly – yes.
Families for Justice vs. Jack Straw;
Legal Proceedings Launched Tomorrow
In London’s High Court.
Following my two, somewhat lengthy, previous posts, I’ll try and keep this one shorter.
So – we have run our opinion-poll and the results are emphatic and conclusive.
As can be seen to the right, of our 234 voters, 199 voted that the Jersey judicial apparatus could not be seen to be objective and impartial in any matter, criminal or civil, arising from the Jersey Child Abuse Disaster.
Only 35 voted ‘yes’, that Jersey’s judiciary could meet the fundamental test of appearing to be objective.
That’s 85% – to 14%.
A crushing majority.
But – consider the nature of our original point; that the good administration of justice cannot permit even the faintest taint or suspicion of partiality or bias.
Let us imagine the results were reversed; that it was an 85% to 14% majority vote of confidence in the Jersey judicial apparatus?
Such is the implacable nature of the requirements for the good administration of justice – such as the requirement, which trumps all, for there to be no suspicion of bias in judicial proceedings – that even a figure of 14% would still damn the Jersey system as not capable of being able to appear to administer justice objectively.
If we extrapolate our hypothetical, reversed results to the whole population of the island, and said that 14% of people who live here had no confidence in the ability of our judicial system to appear impartial – it would still be a crushing, mortal blow to the credibility of Jersey’s courts as presently structured and overseen.
But if our results were reversed in this way, you might argue “well – that’s democracy. The majority have spoken; they have faith in the court system. End of argument.”
But with all due respect – you’d be wrong.
The reason for this is that the administration of justice – is not necessarily the same thing as democracy.
Generally, we take ‘democracy’ to mean that the will of the majority carries the day; what the majority want – the majority gets.
And in functioning democracies – that’s what happens – via the political sphere. Political parties win their majority. They then form a government. Members of the legislature then approve the laws and policies of that government. All of which should be the democratic will of the people in action.
So why is the administration of justice different?
As we’ve already established in the previous two posts – stable, civilised democracies require a separation of powers – that the legislature and the judiciary should be two, distinct entities; each with their own particular roles.
Such an arrangement creates the existence of checks & balances, which, in plain English, means that no part of state authority can abuse power without being held to account by the other parts of state apparatus.
So the political sphere, the legislature, and all the braying politicians in it, make their laws and make their policies based on anything – from cogent policy reasons, to party doctrine, to which signs of the zodiac may be in ascendance. (Don’t laugh – that’s what Ronald Regan used to do.)
Essentially – the political sphere can eat, digest and excrete any old rubbish – quite regardless of objective facts.
But the way in which the judicial sphere operates is dramatically different to this.
The realm of democracy – of majority will – extends into the judicial sphere only so far as laws are concerned. Once the democratically elected government has made its laws – it can influence no further what takes place in court rooms.
For there to be respect for the law, respect for the courts, respect for the administration of justice – judicial processes cannot admit the political, the philosophical, the irrational – to enter the equation.
Courts must operate on an entirely objective basis – taking into account only the laws, the precedents, the evidence and the merits or demerits of the particular case before them.
This means that the judicial apparatus cannot operate merely in a way which reflects the majority opinion of the day. For if it did – the very basis upon which the concept of justice exists would collapse – immediately.
Suppose there is a civil case before the courts – involving some character who is widely known and regarded as odious by most people. Should that fact influence the court?
Categorically – no.
No matter that the odious individual be widely hated – if – in law – and on the facts – he is right – then he wins. End of.
No matter if 99% of the population despise him.
Or consider a person accused of some monstrous crime. The “democratic” will – the opinion of the majority – might well be that the accused simply be lynched.
Acceptable? Again – no.
No matter how repulsive the individual; no matter how wretched they may appear to most of the population – if the law and facts dictate it – the court must – and will – find them innocent.
So – democracy – and the good administration of justice? Not necessarily the same thing.
So even if a minority of 14% cannot view the justice apparatus as being objective and impartial – then that apparatus is not credible.
But – it wasn’t 14% who expressed no confidence.
It was 85%.
It would be difficult to overstate the apocalyptic implications of this result for the administration of justice apparatus in Jersey as presently structured.
They are crushed.
But it gets worse than this.
Our poll gave a result of 85% who thought that the Jersey judicial system was not capable of meeting the necessary appearance of objectivity test.
But – I can inform you that every – single – last – one of the survivors of the Jersey Child Abuse Disaster, with whom I have discussed the question of prosecution and court impartiality, has no faith whatsoever that the Jersey apparatus will deliver any semblance of justice.
That is the view amongst the key people; those who most matter – the victims.
Of those I’ve discussed this issue with – 100% of them have no faith at all in the impartiality of the Jersey prosecution and judicial processes.
And can we find that fact remotely surprising?
When the ‘Bailiff’, Jersey’s chief judge, and head of the judiciary which will deal with all such cases, delivers outrageous political speeches in which he makes remarks such as referring to Jersey’s “so-called” child abuse scandal, and that whilst the abuse was scandalous – “the real scandal” were the criticisms of Jersey?
When various members of the present judiciary have been involved in the concealment of child abuse in the past?
When Jersey’s Attorney General, William Bailhache – brother of Bailiff, Philip Bailhache, has pro-actively obstructed and delayed the charging and extradition of suspects against whom there are well-evidenced cases?
Suspects the Police were ready and eager to charge?
No – we cannot – nor could any thinking person – be remotely surprised at such widespread scepticism towards the administration of justice in Jersey.
There is another fascinating feature of the last two posts and the opinion-poll.
In both posts I expressly invited – challenged, even – any lawyers; Jersey lawyers in particular – who disputed the analysis and the jurisprudence to argue their case via comments.
I have received not one – single – solitary legal argument against my analysis.
You’d think there’d be one or two – at least; given that 35 voted in support of the present system – and that the argument I advanced flattens the traditional approach to the administration of justice in Jersey.
But, no. Not one single legal disputant has raised a case.
And whether they care to admit it or not – no such credible argument could be promulgated.
The jurisprudence, the case-law, the Convention Rights – all make our case insurmountable and undefeatable so far as the good administration of justice is concerned.
That much was plain and obvious to me when I wrote a detailed and lengthy e-mail to the Bailiff, the Attorney General and all other senior figures in the Jersey law enforcement apparatus on the 15th November, 2007.
In that e-mail I explained – on an evidential basis – why the Jersey apparatus was not capable of meeting the appearance of objectivity test.
Even though I was not aware of the covert Police investigation at the time of writing the e-mail – I knew enough – through my own researches – to know we had a child protection catastrophe on our hands – and that these matters would, eventually come before the courts.
I concluded this detailed e-mail with a simple question; I invited them to accept that the Jersey law-enforcement agencies were hopelessly conflicted in respect of the inevitable child abuse cases coming to court, and that they should – voluntarily – recuse themselves from any involvement and instead invite the authorities in London to appoint independent prosecutors and judges.
Although the argument was overwhelming, I knew – of course – what the response would be.
With predictable haughty arrogance, both of the Bailhache brothers responded, essentially contemptuously dismissing my concerns.
I knew then that the path from that point would lead to where we arrive tomorrow.
The registering of papers with the High Court in London against the relevant UK Minister, in this case Jack Straw.
That destination was as plain-as-day to me back then. In fact, knowing full-well the power and arrogance of the Jersey oligarchy – I told survivors and whistle-blowers back in last July that we had no chance of securing justice unless we forced London to intervene.
So, tomorrow – under the banner of Families for Justice – John Hemming MP and I initiate our court action against the UK government for its failure to ensure the rule of law and the good administration of justice in Jersey.
And such is the strength and clarity of the case – I’m very confident we will, ultimately, win.
But – even considering the possibility of defeat; of the Jersey oligarchy wining – such a victory on their part would be entirely pyrrhic.
The nature of the evidence, the facts, the testimony from so many witnesses – so much truth – would destroy them. Even if they staggered from the court somehow victorious in some, technical legal sense – their standing, reputation and credibility would – still – all be annihilated.
I guess I felt in my bones – when it became clear the establishment were desperately trying to get rid of me as Minister, in an attempt to perpetuate the culture of concealment – around the end of July, 2007 – that this might be – The End – after 800 years – for the Jersey oligarchy.
And – ironically enough, I knew then that they could – with some serious common sense and humility – dodge the bullet; for example, by accepting the points I later made in my e-mail of the 15th November.
But – with equal irony – I knew back then that they simply would not take any such evasive action; that they would sink themselves through arrogance, hubris – and a deluded sense of utter invulnerability.
And so it has come to pass.
I suppose if I had to pick out one – of the multitude of catastrophic mistakes the Jersey oligarchy has made – as the most damaging, pivotal and damning – it would be Philip Bailhache’s speech – delivered on Liberation Day – in which he denigrated the child abuse investigation, insulted and wounded the survivors and poured contempt on the national media who – unlike the Jersey media – had ripped the lid off of the whole, festering mess.
A rabid Political speech by the head of Jersey’s judiciary – the same judiciary which, in theory, should be dealing with the Jersey Child Abuse Disaster objectively and impartially – in a manner which avoids even the merest suspicion of bias.
The Bailhache brothers – Philip and William are arch-Jersey conservatives; paternalistic, power-crazed, insular – and rabidly traditionalist.
Rather than embracing the 21st century – both have striven to turn the clock back to some Victorian age of deference; back to the days when the Jersey ruling elite simply did as it pleased – and people had neither the ability or will to challenge entrenched power in the island.
It is, perhaps, a final irony – that the mortal blows against the established order of things in Jersey have been – finally – administered by the Bailhache brothers.
Jersey’s profoundly unhealthy concentration of power; its ancient conflation of legislature and judiciary; its near-complete lack of effective checks and balances – finally destroyed – by two conservative, arch-traditionalists.