Police Guidance - Application for Production Order (FOI)

​​Request

Please provide a copy of any guidance or equivalent that may be considered by the States of Jersey Police (SOJP) when preparing an application for a production order under Schedule 2 of the Police Procedures and Criminal Evidence (Jersey) Law 2003, including (without limitation) any guidance relating to the duty of disclosure.

In the UK the forms to apply for a production order under the Police and Criminal Evidence Act 1984 (PACE), schedule 1 have been published online, including notes for guidance for applicants - see https://www.gov.uk/government/publications/application-for-a-production-order-under-pace ​

At present, the SOJP does not appear to have demonstrated an equivalent level of transparency

Response

There is no published guidance in respect of preparing a production order.

Schedule 2 applications under the Police Procedures and Criminal Evidence (Jersey) Law 2003

Police Procedures and Criminal Evidence (Jersey) Law 2003 

are made inter-partes therefore the extent of either party’s duty of disclosure would be determined by the judge hearing the application.  

Any advice provided by Law Officers is subject to legal professional privilege and Article 31 of the Freedom of Information (Jersey) Law 2011 has been applied.

Articles applied

Article 31 - Advice by the Bailiff, Deputy Bailiff, or a Law Officer

Information is qualified exempt information if it is, or relates to, the provision of advice by the Bailiff, Deputy Bailiff, the Attorney General, or the Solicitor General.

Public Interest Test: 

While there is some public interest in disclosing the manner in which the States of Jersey Police (SOJP) prepare applications for production orders under Schedule 2 of the Police Procedures and Criminal Evidence (Jersey) Law 2003, including any guidance on the duty of disclosure, there are also reasons to maintain confidentiality.

Any advice provided by Law Officers would be subject to legal professional privilege. The confidentiality of any such advice is crucial to protect fully informed decision-making, allowing Scheduled Public Authorities to seek legal advice in private without fear of adverse inferences being drawn from the content or the fact that advice was sought.

Disclosing whether advice was or will be sought could inhibit the manner in which Law Officers’ advice is taken and provided. This aspect of the Law Officers’ Convention carries significant weight in the public interest test, as recognized in HM Treasury v IC [2009] EWHC 1811. The Convention has been considered by the Jersey Office of the Information Commissioner and was held to be part of Jersey law.

Further, it is not considered appropriate or in the public interest to disclose even limited details of the private advice that those investigating or prosecuting any crime may benefit from. 

Whist it is acknowledged that the strong public interest in protecting Law Officers’ advice may be overridden in some cases if there are particularly strong factors in favour of disclosure, is has been also determined that disclosing whether advice was or will be sought could inhibit the Law Officers from:

1. Giving frank advice.

2. Inhibiting Scheduled Public Authorities from taking advice for fear of its publication.

3. Inhibiting the full disclosure to the Law Officers of all material relevant to the advice being sought.

Real weight ought to be afforded to this aspect of the Law Officers’ Convention. Disclosing to the public either the legal advice or whether specific advice has been sought does not outweigh the three principles set out above which require the long-standing Law Officer Convention to be maintained. 

Therefore, the balance is in favour of maintaining the exemption, and it is not considered that the public interest in disclosure outweighs the preservation of the Convention on this occasion.​