Police Complaints and Discipline: extension to Honorary Officers conducting Parish Hall Enquiries (P.30/2009) – comments.

STATES OF JERSEY

POLICE COMPLAINTS AND DISCIPLINE: EXTENSION TO HONORARY OFFICERS CONDUCTING PARISH HALL ENQUIRIES (P.30/2009) – COMMENTS

Presented to the States on 30th March 2009 by H.M. Attorney General

STATES GREFFE

COMMENTS

1. A s the Attorney Generalhas responsibility for the prosecution service in Jersey, I am presenting these commentsin relation to the Proposition (P.30/2009)ofthe Deputy of St. Martin seeking the States to agree that thePolice(Complaintsand Discipline) (Jersey)Law 1999 (the "1999Law") be amended so that the definition of "complaints" is extended to includecomplaints against honorary police officers conducting Parish Hall enquiries.

Summary

2. I d o not think itisnecessary or indeed appropriate to amend the1999 Law, and I amsorryifthe Deputy 's correspondence with mehas led toanymisunderstandingofmyposition.Thatpositionis that the Parish Hall enquiry is essentially a prosecutionprocess and, to the extent that it is,it falls outside the scopeof the 1999Law.However, that is notto say that there will notbesomeoccasionswhenthere is conductat a Parish Hall enquiry which merits beingtreatedas a disciplinary issue rather than a prosecutionissue.The essential difference is between misconduct,which is disciplinary, and incompetencewhichis a matterto be addressed by the AttorneyGeneral.The1999Law is structured as it is to give relevant authority to the Attorney General as titular headof the honorary police, and I suggest that the Attorney General shouldbe left todecideon a case-by-casebasiswhich are matters ofcompetence and which are matters of conduct. If that is the conclusion, then no amendmentof the 1999Lawisnecessary.
3. I f m  embers' view is that it is appropriateto introduce specificprovisionsin the 1999 Law, itwouldbe essential that itbemadeclear that theLawwas not intendedtocoverprosecution decisions.

Detail

4. I t is perhaps right to start with Article  17of the 1999 Lawwhich is in theseterms:

" In t e rpretation of Part 3.

In th i s Part, unless the context requires otherwise –

" c o m plaint" means any complaint about the conduct of a member of the honorary police which is submitted to the Connétable of the Parish in which that member serves –

(a ) b y a member of the public;

(b ) o n behalf of, and with the written consent of, a member of the public; or

(c ) b y a member of the Force, Port Control Officer or a member of the Honorary Police otherwise

than in the course of his or her duty;

" re g ister" means, in relation to each Parish, the register maintained for it under Article 20

(1)." (emphasis added).

5. I d o not think it is necessary to deal in detail with the factual circumstances surrounding the motorist to whom the proposer refers,but these facts can be made known to members at the time of the debateshould they be relevant.
6. I t is enough perhaps to say that the motorist was charged with contravention of Article 23(3) of the Police Force (Jersey) Law 1974, in that, not being a police officer,hehad in his possessionan article of police uniform, namely an official police sign. A detailed decision was given in the Magistrates' Court acquitting the motorist of that charge.
7. S u b sequentlythe motorist wrotetometomake a complaintabout various actions ofthose involved in his prosecution – the States Police who called at his home at 8.20 a.m.on a Sundaymorningtowarn him to

attend a Parish Hall enquiry on 20th February, the conduct of 2 Centeniers and also the conduct of the honorary

police officer who had arrested him. He also had complaints to make about the court process.

8. A s is set out in thereportaccompanyingP.30/2009, investigations ofthe complaints madeagainstthe Vingtenier and the PoliceConstable were conducted,but I have not accepted that the complaint against the Centenierwhocarriedout the Parish Hall enquirywas a complaintwithinthemeaningofthe1999 Law.
9. A s I have previously advised the States, the Parish Hall enquiry is not a judicial process but a prosecution process. It is slightly unclear from thereportaccompanyingP.30/2009 as to whether the proposer accepts this position, butinmyview, the position is clear.
10. I n Attorney General v. Devonshire Hotel Limited1987/88 JLR 577, the Royal Court hadto decide whether the doctrineof autrefois convict and autrefois acquitoperated to bar a prosecutionwhere the respondent companywas charged in whatwas then described asthePolice Court, nowtheMagistrate's Court, with a breachof the Licensing(Jersey)Law1974incircumstanceswhere,at the Parish Hall enquiry, theCentenierwhoconducted the enquirydecidedforcompassionatereasonstoproceedbyway of written caution, and where the then Attorney General had directed the prosecution take place, whereupon the Centeniercharged the respondent companyasinstructed.Thelowercourtrejected the defence of autrefois convicton the ground that no penalty had been imposed,butaccepted that the Attorney General couldnot direct the Centenier to reverse his initial decision not to prosecute because, having informed the respondent that no proceedings would be brought against it, it would be contrary to the rulesof natural justice to do so. The Attorney Generalappealed that decisionof the lowercourtby way ofcase stated, and the questionwhichhad to be determined in the Royal Court waswhether the Attorney Generalhadtherightandpowertoinstruct a Centenier to prosecute in a case in which the Centenier had already decided not to prosecute.
11. T h e Royal Court held that the doctrine of autrefois acquitor alternatively autrefois convictcouldnot operate to bar the prosecution.Inconducting an enquiry into the alleged offence " the Centenier was not performing a judicial function – Mr. Day conceded that Centeniers do not have judicial powers as normally understood – there were no "proceedings", there was no conviction and the Centenier was not a court of competent jurisdiction. Accordingly the defence of autrefois convict fails."
12. A l l the reasoning ofthe Court which led to that conclusionwasbasedon the premise that the Centenier's decision at a Parish Hall enquirywas a prosecution decision, shownindeedby the fact that the Attorney General has the power in law tooverrule that decision.
13. T h e Codeof Directions for Centeniers on the Conduct of Parish Hall Enquirieswhich I issuedon 23rd February, 2008, replacing the Guidance issuedbymypredecessoron 10th January 2000, restated the principle that the Parish Hall enquiry is a prosecution process because the reportof the Panel chaired by Sir Cecil Clothier did not reflect the long-standing legal position confirmed by the Royal Court in Attorney General v. Devonshire Hotels Limited, and it wasinmyjudgmentimportanttoset the record straight.
14. I w ould respectfully suggest that thereis little point in having a debatein the Statesaboutwhat the 1999 Law means or does notmeanin this context. My own view is that the 1999 Law does not extend to complaints against Centeniers in relation to the exercise by them of a decision to prosecute ornotto prosecute. That view is either rightorwrong,and at somepointmayormay not be tested in a courtof law. Theissueformembersnowis whether, given that isthe view whichtheCrown takes in relation to the 1999 Law, it is appropriate to amend the Law and provide expressly that a complaint about a prosecution decision at a Parish Hall enquiry shouldbetreatedas a "complaint" for thepurposesof the 1999 Law.
15. T h e 1999 Law provides a framework for dealing with complaints about the conduct of membersof the honorary police. If one looks at the Police (Honorary Police Complaints and Discipline Procedure) (Jersey) Regulations 2000, it is clear that a memberof the honorary police commitsan offence against

discipline if the member's conduct does not meet the standard set out in the Discipline Code which is a Schedule

to the Regulations (see Regulation 2). Nothing in the Discipline Code deals with the making of prosecution decisions; in other words, the competence of the Centeniers. There are indeed requirements for honesty and integrity, fairness and impartiality, politeness and tolerance and matters of that nature; there is also a requirement that officers should be conscientious and diligent in the performance of their duties. The Discipline Code however, does not describe in any sense what the obligations are in relation to the taking of prosecution decisions, which is indeed why these are set out in the Code on the Decision to Prosecute which is published on the Law Officers' website.

16. T h e States Police Discipline Code is very similar totheHonoraryPolice Code. It is wellknown the States Police donot take prosecution decisions. Norshouldthey.Thefact that the Honorary Police and States Police Discipline Codes are so similar alsotends to suggest that the Discipline Codefor Honorary Police is not aimed at prosecution decisions.
17. F u rthermore, there is powerunderthePoliceForce(Jersey)Law1974 at Article  3 for the Attorney General to give directions to a Centenierwhohasdeclined to charge a person. Asis underlined in the Devonshire Hotel case to which I have made reference above, that authority given to the Attorney General is entirely lawful. It arises because the States recognised that the Attorney General is in charge of the prosecutionservice,and therefore should have the power todirect a Centenier to prosecute.Because the Attorney General also has the Crown's discretion to issue a nolle prosequi, it follows that the Attorney Generalcanalso direct a Centenier not to prosecute.
18. T h e Magistrate's Court (Miscellaneous Provisions) (Jersey)Law 1949, provides at Article  5:

" N o th i n g in this Law shall derogate from the powers of the Attorney General to institute proceedings before the Royal Court in respect of any offence."

19. O n ce again, this provision is one wherethe States have recognised that theAttorney General has a discretion toprosecute,and it is a recognitionwhich impliedly accepts the historical position that the Attorney Generalas a Crownappointment is in chargeof the prosecutionservice.

The procedure under the 1999 Law for handling complaints

20. It i s worthlooking at the procedurefor handling complaintsaboutmembersof the honorary police. Upon a submissionof a complaintto a Connétable , the complaintshouldberecorded in theregisterand the Attorney General notified that thecomplainthas been made.Ifthe Attorney General is satisfied that a complaintmaybedealt with informally, he should direct the Connétable to deal with it in that way.The Attorney Generalmaynotdirect that a complaint be dealt with informally unlesshe is satisfied that the conduct complained of,evenifproved, would not justify a criminal chargeor a disciplinary hearing.
21. If the Attorney General is satisfied that a complaintmaynotbe dealt with informally, he is to notify the Police ComplaintsAuthority of the complaintand direct the Connétable to request the Chief Officer to appoint a memberof the Forcetocarry out an investigation.
22. T h eseprovisionscannot easily be reconciled with what this Proposition seeks. It is clear that theAttorney General'spowers to direct a Centeniereither to prosecuteor to cease a prosecution,or to start fresh proceedings of his own in the Royal Court,allremain.If the complaintabout the Centenier is that hehas not prosecuted a suspect when thecomplainant considers that the suspect should havebeenprosecuted, there seems little point in the AttorneyGeneral referring that matter to the Connétable to deal with it informally. Onecannotexpect the Connétable to take a chargingdecision.But if heorshedidinvestigate the matter and then supported the Centenier, andthecomplainant is not satisfied, he can still ask the Attorney General to overrule the Centenier and to prefer a charge.The Connétable is in effect beingasked to waste his time seeking informal resolution whenhehimself no longer takesprosecutiondecisionsand when his views as to whatshould take place have no finality.
23. T h erewouldbenopointintheAttorneyGeneraldetermining that the complaintshould not bedealtwith

informally and directing the Connétable to request a member of the States Police Force to carry out an

investigation, because ultimately the decision which had to be reviewed was a prosecution decision, which would be for the Attorney General in any event.

24. S im ilar considerations apply if the complaintconcerns a decisiontoprosecute.Once again, the Attorney General is in the position of directing the Centenier to ceasetheprosecution, if he thinks fit. There is no pointin asking the Connétable to resolve the matter informally, because the Connétable does not have the power to direct that the prosecutionshouldcease,and there isnopoint in the Attorney General directing the Connétable toappoint a memberof the Statesof Jersey Police Force to carry out an investigation, because theupshotof the investigation would be a decisionby the AttorneyGeneral as to whether the proceedings shouldcontinue.
25. F o r thesereasons, I reached the view someyears ago that the 1999Lawsimplyis not consistent with treating complaintsabout a prosecutiondecisionas a "complaint" for the purposes of that Law. I have canvassed that view with theChairmanof the Police Complaints Authority, who shares it.
26. T h eremaybe some memberswhoconsider that prosecution decisions shouldnot lie withintheauthority of the Attorney General. That is a completely different issue, and one which presumably will be canvassed intheproposedreviewof the rôlesof the AttorneyGeneral.Thepoint I seekto make in these comments is that for as long as the Attorney General does have the responsibility for taking prosecution decisions, the legislation that exists which enables a full oversight of those decisions is simply inconsistent with the disciplinary process which the 1999 Law envisages.
27. F o r these reasons, I invite members to share the view that this Proposition is inappropriate.

H.M. Attorney General