Sunday, 3 March 2013

Is the CoI a bigger issue than you imagined?

It seems we are finally to have a debate in the States on setting up a Committee of Inquiry into child abuse in the Island. It is on the order paper for the sitting on 5th March, see . For reference, the original move to request a Inquiry was in 2011 (see  For a detailed run down of why it has taken so long to come about you could take a look at Bob Hill's blog at

There are of course numerous stakeholders in this process.  The victims and survivors, particularly those whose cases were not prosecuted, who deserve and indeed may need a chance to voice publically what happened to them.  There are former staff.  There are the agencies who should have realised something was amiss and either did  not identify an issue, or identified it but ignored or possibly colluded with it.  There are the past politicians and the senior civil servants in the States who could and should have identified and acted on problems. And of course there are the actual perpetrators of abuse and their colluders.

Missing from that list is the Law Officers. Yet I think they have a huge amount at stake in the CoI. In fact I would go as far as to say this CoI has the potential to be as constitutionally significant to us as the reforms of 1948.  I think this explains is why certain statements and comments have been issued to try to shape the debate and the approach of the CoI even in advance of it being sanctioned by the States.

Perhaps the best place to start is what  an inquiry is and is not. Canada makes a lot of use of Public Enquiries similar to our Committee of Inquiry.  There is a good piece discussing a number of important topics such as whether judges should chair at  The item I would like to take up is the purpose of the inquiry ' Broadly speaking, there are two types of independent inquiries: those that have a mandate to find and report on facts, and those with a mandate to make recommendations for the development of public policy.'  Our CoI has nothing to do with policy formation - it is about finding and reporting the facts. 

Regulation 6 of the CoI regulations  is clear. "Because a committee of inquiry can be seen as a quasi- judicial process witnesses can, if the committee wishes, be examined on oath. " The key phrase is 'can be seen as quasi-judicial'.  Quasi means resembling or being akin to, but not actually being.  Can be seen as means it is one possible view.  To put it in other words it is NOT a judicial process.   Indeed point 10 of the AGs comments says 'At the conclusion of its deliberations, a Committee of Inquiry reports back to the States Assembly. It does not, however, make any finding of guilt or innocence in a criminal sense nor does it determine a legal right.'

Last month Tony Musing blog made some important observations on the comments from the Attorney General at  However I think it is worth re-reading the AG's comments ( bearing in mind the points above. This leads to some further questions.   Why in item 14 does the AG refer to people accused by complainants?  There can be no such thing in a fact finding non-judicial process.  There are only witnesses and evidence.

In item 23 we read  'There is a fundamental principle that the prosecution process should be free from any political influence or interference in any way'.  The quid pro quo of that is the prosecution service should not act politically or influence political process. A point missing from the AG's comment. Why?  In fact the whole of section D section could be read so an attempt to head off questioning of prosecution decisions and processes.  However as an independent CoI is neither a political body nor a judicial one, it is perfectly free to question and inquire into the prosecution process without breach of the fundamental principle outlined above.

If the AG succeeds in his presentation of this CoI as a judicial process with accusers and defendants and the use of lawyers to represent the opposing sides, then he wins a much larger point.  He will in effect have established  that the Law Officers are unchallengeable by any format or any body in the Island.  Much as he might tout the fundamental principle of individual prosecutions and processes being free of politics, that situation would violate an even more important and precious principle that none, not even Law Officers, is above the law or public scrutiny.  We have come perilously close to that state.  It is that sort of thinking that got us in a position that a magistrate cannot be relieved of pay and office when found guilty of a crime.

It is imperative that all States members understand the hugely important and significant repercussions of the amendments and the comments of the AG when voting on this proposition and amendments. This is a turf war that the people , transparency, accountability and democracy cannot afford to lose.


  1. You should consider that the Crown Officers in Jersey are very sensitive about their status and powers - espcially to prosecute and judge or to overthrow administrative decisions of government.
    The same conflict of interests arose with the setting up of the Review Boards - now called Complaints Boards - procedures. These do not have the power to strike down government administrative decisions because the Crown Officers want that power reserved to them exclusively. When (lawyer) Senator Jeune set up the Board many years ago he was very keen not to trample on the Crown Officers exclusive jurisdiction and so it has remained - in spite of many calls for change - ever since.
    Likewise, the power to overthrow Planning Decisions by non-judicial people (UK planning inspectors and such like) has always been resisted by the Crown Officers.
    Yes, its a power thing and the Jersey Royal boys do not want to let go.

    1. Yes power has that attribute eveywhere. Which is why eternal vigilance and perpetual struggle are de rigueur in politics.

  2. Very good post - thank you. You have made me re-think the way that the AG is influencing the process.

    I knew that he was, and that that was in some way illegitimate, but you add a new dimension.

    On a different matter, you write:
    "Our CoI has nothing to do with policy formation - it is about finding and reporting the facts. "

    On the contrary. Once they have established the facts, be they the specific details of abuse and abusers, or the governance of the institutions and how that failed, or the attempts to discredit the police investigation and why these took place and whether they were correct or in fact a disgrace, THEN the CoI recommends . . .

    all kinds of things. These things will depend on the nature of the evidence they are confronted with and their own reaction to that evidence. I hope we get a panel who are genuinely up to the job, I really do.

    Now, what is there for any States member to be afraid of?

    1. Yes Daniel, I'm sure policy changes will follow. But that is not the focus nor the main purpose of this Inquiry. One of the peculiarities of this situation is the way Williamson reported and his changes introduced ahead of any inquiry into the facts. In practice the CoM have introduced the policy changes they see appropriate/fit/acceptable. No doubt will be used by some as an argument that it has all been put right, so there's no need for a CoI now.

  3. J.T.

    Former Deputy Daniel Wimberley's letter to Ian Gorst looking at two sides of THE STORY

    1. Thanks for that link. I suspect thre is more to come on this.

  4. Replies
    1. I don't hold all lawyers are crooks. However former Magistrate Christmas has proven some are....