THE REGULATION OF INVESTIGATORY POWERS IN JERSEY.
As a friend and regular reader of the “Voice” I have been asked to produce a “plain person’s guide” to the laws governing the Regulation of Investigatory Powers in Jersey. I am told that this is because of some of the continuing fallout from the Curtis Warren case and also because of some apparent controversy relating to the management of these powers in the Island.
I am not a lawyer, a police officer, or a customs officer, but I do have some indirect knowledge of these laws and how they operate. A copy of the Regulation of Investigatory Powers Law 2005 (RIPL) and the accompanying Codes of Practice are available on the Jersey Legal Information Board (JLIB) website. These are some useful documents for anyone interested in exploring the subject in greater detail than I will attempt, although it is fair to warn that they are not an easy read. I have attempted to study these documents and have been helped by the comments of friendly contacts with recent legal and operational experience in dealing with this law. I hope that I have correctly summarised the contributions which I have received from others. The challenge has been to attempt to “boil down” a complex law into something comprehensible to normal everyday folk. I hope that I have had some success. Any mistakes are mine and not those of the patient and helpful people who have assisted me with this task.
It might be useful to begin with setting out what I think this law is about. It is basically about the powers of various state agencies to intrude into the privacy of citizens by such actions as placing them under surveillance, tracking their movements, bugging their cars, their phones, their homes or targeting them with hidden cameras. The law sets out who can do this, what the grounds are for doing it, who can give authority or issue a warrant for such actions, and how evidence from this type of activity can be admitted as evidence in a Court. There is an additional law which provides more information on the interception of telephone and other communications. This is the Interception of Communications Law 1993 which, for those with a serious interest, can be found from the link above (JLIB). Although I have taken information from both laws I will not deal with any of the laws in detail as I have been told that what is required is a simple explanation of how the Regulation of Investigatory Powers works in most cases in most circumstances.
Article 11 of RIPL sets out who can apply for a warrant under the law to install bugging devices and similar activity set out in the law. The people who can make an application in Jersey are: The Chief of Police, the Head of Customs and Immigration, the Director General of the UK Security Service (MI5), The Chief of the UK Secret intelligence Service (MI6), The Director of GCHQ, and the Head of Intelligence at the UK Ministry of Defence. I am told that in Jersey the Chief of Police and the Head of Customs make periodic use of the Law. I do not know what use MI5, MI6 or the Military make of the law and I am not likely to find out. Sorry about that. I have no information to offer on those organisations. I just know that Jersey lawmakers have included them in the law.
It might be useful to the reader to set out two opposing views on the effect of the laws referred to above. One view is that they give extensive powers to state agencies to “snoop” on the public. Another view is that they in fact restrict intrusion by laying down a set of rules, prior to which there were no clear constraints on this type of activity. Whichever view is taken these laws are the ones which apply in Jersey now.
It might also be useful to make the point that this article is confined to high level intrusion into the privacy of a suspect or suspects, which would involve things such as the installation of hidden bugging devices or the monitoring of phone calls. These things are subject to specific controls, a prescribed application process, and a requirement for the issue of a warrant before any action is taken. What is described as ”non intrusive” activity such as surveillance in a street or public place can normally be authorised by a senior officer in the organisation concerned, subject to relevant rules and guidelines. For those with a keen interest, the Code gives some details of how “non intrusive” surveillance and similar activity is authorised and managed.
I have set out above the details of who can make an application for a warrant under the law. The grounds for an application are also set out in the legislation. For practical purposes the grounds which matter are National Security and Serious Crime. RIPL defines “Serious Crime” in detail. The short definition is that the term “Serious Crime” is applied to offences for which a person aged 21 or over with no previous convictions could expect to receive a prison sentence of 3 years or more. I am told that in Jersey nearly all of the warrants issued under this provision relate to drug trafficking and drug dealing.
I have asked contacts how this process works in practice and this is what I have been told. Apparently, when the Police or Customs have information about activity which could amount to a “Serious Crime” the front line officers involved assess whether some form of intrusive activity, such as bugging or phone monitoring, is necessary and justified. If they think it is then they submit a detailed case to the relevant Chief Officer asking him to use his powers to make a formal application to the Attorney General for a warrant to allow the intrusive activity to take place. My contacts in the UK tell me that in the UK this was once done by means of a detailed written application but is now more commonly done by means of a specially designed computer system which records all of the information and the decisions taken in a database which is not capable of subsequent amendment. This means that decisions cannot be reviewed with the benefit of hindsight. I do not know what method is used in dealing with these matters in Jersey.
On the subject of applying to the Jersey Attorney General for a warrant, my UK contacts expressed some surprise at this part of the Jersey process. Procedures in the UK vary between the different national jurisdictions (for example Northern Ireland is different to Scotland and so forth) but it is usual for applications to be finally considered and a warrant issued by a judge or a government minister, both of whom would be expected to be completely independent of any investigation or prosecution which might follow. UK contacts see the position in Jersey as conflicted in that a warrant is granted by the Attorney General who is also the head of the prosecution service and legal advisor to both Police and Customs. The Attorney General would therefore be issuing a warrant in respect of a case in which he may have some direct involvement, either at the time or in the future. One UK observer with some knowledge of the Warren case saw this conflict as being a key difficulty with that investigation. Regular readers of this website will be aware that conflicts of interest are not exactly unknown in the Jersey legal system. Keen collectors may nevertheless wish to add this example to their list.
I am aware that some readers would like to know more specific details about how the process of scrutiny of applications by the Chief Officers of Police and Customs operates in Jersey. I have made my enquiries and have not been able to find out anything beyond that which I have set out above. That said, the law is clear enough. An application to the Attorney General for a warrant can only be made by the Chief Officer (or his Deputy in his absence) and no other. On my reading of the law the role of the Chief Officer in scrutinising applications would appear to be one of the key safeguards in the legislation. I have spoken to a contact in the UK whose role once involved attempting to persuade Chief Officers of Police to make applications for warrants. He told me that the procedure involved operational officers putting together a written case for a warrant, followed by a meeting with a Chief Officer (usually an Assistant Chief Constable) who would ask questions. I was told that this was sometimes a difficult process, with Chief Officers often rejecting applications or sending them back for more evidence or information. This happened to such an extent that my contact began to take a cynical view of this process. He suspected that Chief Officers were sometimes asking for more information for no better reason than to create an “audit trail” which purported to demonstrate how thoroughly they were scrutinising applications thereby protecting themselves from any allegation that they were taking their duties lightly. That is all I can find out on this subject.
Once a warrant is issued by the Jersey Attorney General then the relevant intrusive action can take place. The legislation and the code set out rules regarding the need to review progress and ensure that the original grounds are still valid.
The point of obtaining a warrant from the Attorney General is, in most cases, to ensure that evidence and information is lawfully obtained and can be used in Court. But it is a bit more complicated than that. Some material can be used as evidence and some can only be used as intelligence. The difference between evidence and intelligence is that evidence can be used in Court but intelligence is used to assist in the search for evidence. The monitoring of telephone calls is an example of this difference. Articles 20 and 21 of RIPL appear to deal with this, albeit in a way which is near impenetrable to a non-legal mind. I have been told that the practical effect of this part of the law is that the transcript of a monitored telephone conversation cannot be used as evidence in a Court. This is consistent with the law in the UK. But it can be used as intelligence. For example if Customs monitor a telephone call in which suspects talk of a planned drug importation then they can use the information from the call to intercept the importation, but cannot use the contents of the call as evidence. The same does not apply to such things as bugging devices. Anything relevant which such devices pick up can be used in evidence, including, interestingly, the voice of someone speaking into a nearby telephone. From what I have read, something of this kind appeared to have occurred during the Warren case.
This does not mean that evidence obtained outside the rules set out in the Law and the Code cannot be used in Court. It just means that if evidence is obtained within the rules then it would be very hard for a Court to exclude it. If evidence is obtained outside the rules then the Court has to decide whether to admit the evidence or not, depending on the overall circumstances of the case. Nothing in the Laws themselves appears to exclude a Court from admitting evidence gathered outside the terms of the Law and the Code.
I have been asked to write something about the role of the Commissioner in overseeing the working of the law. Details of his role can be found in Article 9 of the Interception of Communications Law and elsewhere. The Commissioner for the Interception of Communications and for RIPL in Jersey is a UK Judge. Currently it is Sir John Nutting QC who is an Appeal Court Judge. The Commissioner has sweeping powers to visit the Island and scrutinise all records and activity in relation to RIPL. Everyone involved is required to give him full access and cooperation. In plain terms his role is to ensure that all parties are playing by the rules and to make recommendations for improvement. He produces an annual report to the States (Jersey’s Parliament.) His reports are published and a recent report is to be found HERE. The law allows him to exclude from his public report anything which might undermine justice. From studying the Commissioners reports this exclusion appears to be given a wide interpretation to include breaches of the prescribed procedures by law enforcement agencies. Presumably this is done on the grounds that if too much information was released on the workings of those agencies such information might be of benefit to criminal organisations. So if there was any significant concern about the way that agencies in Jersey were conducting themselves with regard to intrusive activity then this would not be included in the report to the States. In such circumstances the Commissioner makes a separate confidential report to the Bailiff. In Jersey the Bailiff is a non-elected official who is Speaker in the States and the Senior Judge in Jersey’s Royal Court. At least two contentious issues appear to arise from this arrangement. The first is that none of the agencies which conduct intrusive activity in Jersey are accountable to the Bailiff. It is not clear what if anything the Bailiff is able to do about any reported breach of the law or who is able to hold him to account for his response to any critical comment which the Commissioner might make. Readers may wish to consider whether this is an appropriate arrangement in an alleged democracy. The second point is that there would appear to be at least a theoretical possibility that the Bailiff would be shown intelligence material relating to a case which could later appear before him in his capacity as a judge. This raises the issue of yet another potential conflict of interest.
I hope this short summary is useful in assisting interested readers in understanding the basic features of the Regulation of Investigatory Powers in Jersey.(END)
The many conflicted hats of the Bailiff and Attorney General rear their heads once more and begs the question who holds the real power in Jersey? This, in our opinion, further demonstrates it is the Law Offices and NOT the "Democratically" elected members of parliament.
Readers might think that the Law (RIPL) is being administered correctly in Jersey and that loopholes in parts of the Law are not being exploited by those in power?..........................Stay tuned.