Complaints against the Chief or Deputy Chief Officers of the States of Jersey Police (FOI)

Request

This Request relates to disciplinary complaints made against the Chief Officer and Deputy Chief Officer of the States of Jersey Police in the period 2000 to date.

A

What formal procedures were in place for dealing with allegations of disciplinary misconduct by the two highest-ranking officers of the States of Jersey Police (Chief Officer and Deputy Chief Officer, including other officers filling those roles on a temporary or acting basis), prior to the entry into force of the “States of Jersey Police Force (Chief Officer and Deputy Chief Officer) (Jersey) Regulations 2017”?

Please provide links to all relevant documentation available on-line (legislation, regulations, standing orders, ministerial decisions and so on)

B

How many complaints were made in accordance with the procedure(s) referred to in ‘A’, in each year from 2000 to 2017 inclusive? For each complaint, please indicate:

• dates on which the complaint was made and on which the complaints procedure was completed

• whether the complainant was the Chief Officer / Deputy Chief Officer; also, whether the officer held that post on an acting or temporary basis

• whether the complainant was a person reporting possible criminal activity / a crime victim / an alleged criminal offender / a suspect / a witness / other (if ‘other’, please explain)

• whether the complainant was normally resident in Jersey / a seasonal worker / a visitor or tourist / other (if ‘other’, please explain)

• the broad motive(s) for the complaint, classified using the forms of conduct listed in items 2 to 13 of the Discipline Code set out in Schedule 1 of the “Police (Complaints and Discipline Procedure) (Jersey) Order 2000)”

• the outcome: complaint dismissed (if so, on what grounds?) / complaint upheld (wholly or partially). If upheld, what sanctions were taken against the CO or DCO

• who investigated the complaint: Minister for Justice and Home Affairs / States of Jersey Police (SOJP / a UK police force / other (if ‘other’, who?)

C

How many complaints have been made in 2018 and 2019 (to date) in accordance with the new Regulations that came into force in 2017? For each complaint, please provide details as listed in question ‘B’.

Response

A

Discipline matters prior to 2017 and the introduction of the States of Jersey Police Force (Chief Officer and Deputy Chief Officer) (Jersey) Regulations 2017, were dealt with under the Disciplinary Code for the Chief Officer of Police

A copy of the superseded Disciplinary Code for the Chief Officer of Police is attached for reference.

Disciplinary Code for the Chief Officer of Police

All relevant documentation available on line is considered publicly available and is therefore exempt from release under Article 23 (Accessible by Other Means) of the Freedom of Information (Jersey) Law 2011 (the FOI Law).

B

Information submitted by either a complainant or Police Officer in relation to a complaint is considered exempt from release under Article 25 (Personal Information) and Article 26 (Information supplied in confidence) of the FOI Law.

Notwithstanding the application of such exemptions as absolute exemptions (therefore not requiring a public interest test), where there is an over-riding public interest in disclosure of information, information has subsequently been made public by the Government of Jersey.

Links to the relevant reports are provided below:

Operation Haven report - 12 November 2008

Napier report - 12 November 2008

Operation Belfong report - 9 June 2017

C

Since 2017, investigations into complaints against senior officers are undertaken further to the procedure detailed within the States of Jersey Police Force (Chief Officer and Deputy Chief Officer) (Jersey) Regulations 2017.

Information submitted by either a complainant or Chief / Deputy Chief Officer in relation to a complaint is considered exempt from release under Article 25 (Personal Information) and Article 26 (Information supplied in confidence) of the FOI Law.

Notwithstanding the application of such exemptions as absolute exemptions (therefore not requiring a public interest test), where there is an over-riding public interest in disclosure of information, information would subsequently be made public by the Government of Jersey.

Articles applied

Article 23 Information accessible to applicant by other means

(1) Information is absolutely exempt information if it is reasonably available to the applicant, otherwise than under this Law, whether or not free of charge.

(2) A scheduled public authority that refuses an application for information on this ground must make reasonable efforts to inform the applicant where the applicant may obtain the information.

Article 25 Personal information

(1) Information is absolutely exempt information if it constitutes personal data of which the applicant is the data subject as defined in the Data Protection (Jersey) Law 2018.

(2) Information is absolutely exempt information if –

(a) it constitutes personal data of which the applicant is not the data subject as defined in the Data Protection (Jersey) Law 2018; and

(b) its supply to a member of the public would contravene any of the data protection principles, as defined in that Law.

(3) In determining for the purposes of this Article whether the lawfulness principle in Article 8(1)(a) of the Data Protection (Jersey) Law 2018 would be contravened by the disclosure of information, paragraph 5(1) of Schedule 2 to that Law (legitimate interests) is to be read as if sub-paragraph (b) (which disapplies the provision where the controller is a public authority) were omitted.

Article 26 Information supplied in confidence

Information is absolutely exempt information if –

(a) it was obtained by the scheduled public authority from another person (including

another public authority); and

(b) the disclosure of the information to the public by the scheduled public authority holding it would constitute a breach of confidence actionable by that or any other person.

Internal review request

I have received today the response to my FOI Request dated 7 December 2019 in which I asked for information about disciplinary complaints made against the Chief Officer and Deputy Chief Officer of the States of Jersey Police in the period 2000 to date.

Having given that response due consideration and found it seriously lacking, I request an Internal Review into the handling of my Request, in accordance with the “Freedom of Information Internal Review Procedure”. The reasons for requesting this Review are set out below:

1

In Section 'A' of my Request I asked, in synthesis, what disciplinary procedures were in place for the Chief Officer (CO) and Deputy CO of the States of Jersey Police (SOJP) prior to the entry into force of the States of “Jersey Police Force (Chief Officer and Deputy Chief Officer) (Jersey) Regulations 2017”.

By way of response, you have appended a copy of a document entitled “Disciplinary Code for the Chief Officer of Police”, noting that this document was “superseded” (presumably by the Regulations of 2017).

The document is certainly of interest and appears to respond to the Request. However, there is no indication whatsoever as to the source of that text, its degree of authority (law, regulation, some institution’s internal policy, other?) or the period of time when it was in force / applied in that form. For example: was this Code in force at the time of the suspension of former Chief Officer Graham Power QPM? Without this essential information the document cannot be properly cited and is hence unusable in any academic or legal context.

I therefore request that your response be amplified to provide meaningful citation information for this document.

2

In Section 'B' I sought information about complaints from 2000 to 2017. First, I asked: “How many complaints were made in 2018 and 2019 (to date) in accordance with the new Regulations that came into force in 2017?", but you have not given a figure.

You have provided several documents, all already in the public domain (and all already known to me) concerning the suspension of former CO Graham Power QPM and complaints made by a towing company owner against SOJP officers and employees (although it is not explicit in the “Belfong” Report that any of the complainant in that case were of CO or Deputy CO rank). Most of the specific information I requested can be drawn from those documents – but only in regard to those two cases.

I therefore request an answer to the preliminary “How many?” question, and, if that number exceeds two, the requested details for all such cases besides the two referred to in the previous paragraph.

3

In Section 'C', I requested similar information for all complaints made after the entry into force of the 2017 Regulations.

Again, you have not answered the “How many?” question – apparently on the grounds that “information submitted by either a complainant or Chief / Deputy Chief Officer in relation to a complaint” is considered exempt from release under Articles 25 and / or 26 of the FOI Law.

However, the number of complaints in a given period of time is not “information submitted by a complainant or a police officer”. It is just a statistic, a simple number reflecting the frequency of instigations of a process. That statistic does not fall within the scope of either Article 25 of the FOI Law, which safeguards “personal information”, nor Article 26, which protects “information given in confidence”.

In partial response to my own request, I note that the Jersey Police Complaints Authority: Annual Report 2018 (R22-2019) states (page four): “No complaints against either the Chief Officer or the Deputy Chief Officer were referred to the Authority in 2018.”, so there is clear precedent for placing these complaints statistics into the public domain (even if the number of cases is zero). That said, the fact that no complaints were "referred to the Authority" does not necessarily imply that no complaints were submitted to the Minister for Justice and Home Affairs (the starting point for complaints processing under the 2017 Regulations), because the Minister has the authority to dismiss a complaint even before the Jersey Police Complaints Authority (JPCA) becomes involved.

Also, and notwithstanding Article 1(2) of the “Disciplinary Code” referred to in your response to Section 'A', there is clear precedent for placing comprehensive details of complaints against the top-ranking officers of the SOJP into the public domain, including far more detail than was requested in the present FOI Request. As demonstrated in your response to Section 'B', disclosure was made even in cases where SOJP officers and employees, or indeed the whole SOJP as a public-service institution, had been found only to have failed to meet proper standards, without going so far as to engage in criminal misconduct (eg perverting the course of justice). Such disclosure was and still is entirely consistent with the need for public scrutiny of the Island’s highest-ranking public officials who, merely by taking on such prominent roles in society, assume also the risks associated with any failure to satisfy pre-established standards of conduct and / or performance.

It is relevant to consider that when a law or regulation applies, by definition, to only one or two persons (in this case the CO and Deputy CO of the SOJP), those post-holders cannot expect any degree of anonymity such as that provided by the “less than 5 individuals” rule commonly applied to aggregate statistics of larger populations where there may be a risk of identification simply by virtue of there being few potential "candidates". Also, disclosure is especially relevant at this time considering that any complaints in 2019 will (if the "zero complaints referred" statistic from the JPCA can be relied upon for 2018) have been the very first to be made since the new Regulations of 2017 came into force, such that there will be enhanced public, academic and institutional interest in observing how the new Regulations work in practice.

The level of disclosure given in the cases mentioned in the response to Section 'B' was no doubt fully in compliance with the then-current FOI and data protection legislation (Freedom of Information (Jersey) Law 2011 and Data Protection (Jersey) Law 2005, respectively), and is still susceptible to public disclosure as demonstrated by your response to this Request and consultation of the current Laws. I note also that, although the Regulations of 2017 were not yet in force when the “Belfong” Report was finalised, the Draft of those new Regulations was cited therein and indeed served as a model for determining the scope and content of information that should be wholly or partially declassified once a complaints procedure has been completed. Accordingly, it contains a rather complete account of the complaints and the investigation thereof, sanitized only with regard to the protection of the identities of the complainant and complainant (identities which were in fact in the public domain having been widely reported in the local Press), and it constitutes a precedent that should be followed now that the 2017 Regulations are in force.

I conclude, therefore, that the only admissible (and temporary) exemptions to full FOI disclosure today for complaints dealt with under the 2017 Regulations would relate to cases in which the complaints procedure remains incomplete. And even if there are cases still pending as we move into 2020 it would be fully in order to make that fact known (as is done as a matter course in JPCA Annual Reports in respect of complaints against SOJP officers and employees of lower ranks).

In the firm belief, therefore, that there is no reasonable justification for not responding fully to Section 'C' of the Request, I ask that you provide the requested statistics for the numbers of complaints in 2018 and 2019, accompanied by specific case information comparable in scope and detail with that given in the response to Section 'B', or at the very least, responding to each of the seven bullet-points in Section 'B' of the Request.

Finally, I note from the “Freedom of Information Internal Review Procedure” that the Internal Review will be issued to “someone senior to the original decision maker where this is reasonably practicable. They will not have involvement in the original decision.” As a matter of general principle, I believe that the source of FOI responses and all other communications from public officials should be made known to the person making the request (and be included in any published version on the gov.je website or elsewhere). Therefore, noting that the response received today is not accredited to any specific source (nor even dated), I ask that the outcome of the Internal Review shall properly identify all those involved in drafting both the original response and any additional information that may be released as a consequence of the Internal Review.

Internal Review response

The review has been completed by two senior members of the Government of Jersey, independent of the original decision making process.

1

Information is not held as to exactly when this code was implemented.

Versions of the code are available on the Jersey Archive website as part of the documentation cited in the Care Inquiry. The original version dating from August 2000 and the later updated version dating from 2005, updated to reflect the change to ministerial government. Links are available as follows:

Digital copy of the Disciplinary Code for the Chief Officer of Police

Digital copy of the Disciplinary Code for the Chief Officer of Police (updated)

The following link provides details about the changes in the Code to reflect Ministerial Government and therefore provide context for the differences between the above referenced codes:

Code to reflect Ministerial Government - Draft letter from Deputy Lewis to Mr Ogley

2 and 3

The Internal Review panel requested sight of all relevant information. It was noted to the panel that the information requested was only available for the period from 2007 to date. After discussion the panel noted that this should have been made clear in the original response. After review of the available information, and subsequent discussion of the original response, it was agreed to partially uphold the original response.

In relation to the period 2007 to 2017, no additional recorded complaints were located, other than those detailed in the publicly available documentation. The further details requested in question 2, in relation to the identity of the complainant and such specific details, are withheld under Article 25 (Personal Information) of the Freedom of Information (Jersey) Law 2011.

On a wider note, the Panel noted that, in relation to the published complaints reports, the decision was taken by the relevant parties before commencement of the work, that each report would be made public. The rationale applied was that the public interest in such cases outweighed the individuals’ right to privacy. Confidentiality was also outweighed by the public interest and the existing public knowledge.

Notwithstanding such decisions, the following quote, taken from the confidentiality clauses (Clause 1.2) of the Disciplinary Code for the Chief Officer of Police (superseded) is pertinent;

The outcome of any particular case arising under the Code will not, as a general rule, be publicised, but it is accepted that following the outcome of a particular case, the Home Affairs Minister and / or the States Employment Board and / or the Chief Officer, might decide that public disclosure is appropriate.

Precedent is not created by such decision, as each determination to publish would be made on the explicit basis of the relevant complaint. It would not always be the case that public interest would outweigh personal prejudice.

The Panel discussed the changes implemented under the 2017 Law and noted that any formal complaints / allegations made against the Chief Officer / Deputy Chief Officer would be investigated. These may be settled at any of the incremental steps of the complaint process. There would not necessarily be a sufficient weight of public interest in every complaint to outweigh the rights of an individual. It would be the obligation of the Minister to decide on the relative weight of public interest against personal prejudice. It should always be acknowledged that the weight of potential prejudice is substantially higher in a small island than in a larger jurisdiction.

Given the small number of individuals involved, release of current statistical information could be directly applied to individuals, and therefore is deemed personal information. It is the consideration of the reviewers that the above arguments apply equally to release of statistical data and that there could be considered a greater possibility of prejudice with release of statistical data. Purely statistical data would carry no explanation of claims made or resulting actions.

The review panel considered that both Article 25 (Personal Information) and Article 26 (Information supplied in confidence) had been correctly applied to question three.

Addendum

The Jersey Police Complaints Authority (JPCA) are a separate legal body and do not fall under the scope of the Freedom of Information (Jersey) Law 2011.

In relation to your final request, that the drafter of the original response be identified, we would note that there is no obligation under the Freedom of Information (Jersey) Law 2011 to identify such individuals.