Welcome to today’s dispatches from the front-line – where Samuel Beckett could be on a dérive - in the plot of Catch-22 – or a frightened Franz Kafka could be revising the plot of The Trial – from observing the Potemkin Court that is the Jersey “judicial” system.Stuart Syvret
EXTRACTS FROM ARMAGEDDON - # 7“Thanks to modern systems of accessing knowledge, and personal experience - it can be stated with some confidence that this applicant is probably better-placed than any person in the previous 800 years of Jersey’s status as a quasi-self-governing jurisdiction to see and understand the true nature of the Crown’s purported “judicial” function in the island.
Whilst very extensive written submissions are made in these applications – submissions which deal in detail with both evidential facts and legal argument – there is a need for an economical way of summarising what it is we are dealing with – a means of distilling “the issue” down to its pure essence – so that it can be easily held up to the light, as it were – and the responsibilities of the respondent Crown, Privy Council, and Secretary of State can be considered accordingly.No new terminology needs to be invented. The perfect phrase already exists:
The Jersey judicial and prosecution function is a Potemkin Village.
It is as simple as that.With grand buildings, and fanfares, and fancy-dress, and ceremonies and stentorian posturing – the prosecution function and the judicial function in Jersey might – at the most fleeting of glances – give the appearance of being a real prosecution function – and a real judicial function.
They are not.The “system” is a Potemkin Village.
With a Potemkin Court.The instant you get up close to it – you see it for the painted scenery that it is. The fakery isn’t even well done. You can see the supposedly solid structures, swaying with the breeze. You go up to them – peer around the edges of the sagging cardboard and paste – and see a few silly old men and their stage-hands desperately trying to keep the painted flats propped-up with a few lengths of 2 x 4 and some bits of string – the images running & melting in the dampness - futile in the hard gale and rain of modernity.
The Crown prosecution function and the Crown judicial function in Jersey are not – remotely - lawful – are not real. Not by any even vaguely credible application of the basic principles of the proper administration of justice. They are fake; are make-believe.The phrase Potemkin Village arose from what many historians now say was a myth, of Grigory Potemkin erecting fake villages along the banks of the Dnieper River in order to give a false impression of inhabited and happy communities to Empress Catherine II during a visit to the Crimea in 1787.
Although of dubious historic origin, the phrase Potemkin Village is now widely used in languages around the world - typically in politics, economics and law - to describe any construction (literal or figurative) built solely to deceive others into thinking that some entity or state of affairs is better than it actually is.The phrase “Potemkin village” has come to mean, especially in a political context, any hollow or false construct, physical or figurative, meant to hide an undesirable, inconvenient or potentially damaging reality.
There could not be a better description of the purpose - and the reality - of the Crown functions in Jersey.The phrase Potemkin Village is especially valuable in the context of these applications - and the responsibilities – and unlawful failures – of the defendant UK authorities, because the phrase is often used to describe tortuous and, essentially artificial legal constructs, arrived at by courts so as to avoid potentially controversial collisions with the executive or legislative realms.
The construction of a Potemkin-Village-judgment by a court will be engaged in when the court - often wrongly – finds it easier to avert its eyes from the plain realities of a case, because a true and accurate judgment would effectively drive an important and far-reaching policy decision. Some judges and some courts are especially cautious about producing judgments which might be seen to tread onto the territory of matters best left to the executive and the legislature.It seems probable that such considerations – whether the issues concerning the breakdown in good governance and the structural ultra vires of the polity in the Crown Dependency of Jersey should be best left to the UK executive – will colour the thinking of the London courts in respect of these applications.
However – the rule of law is, ultimately – the rule of law.Then no matter that the correct application and enforcement of the law does force the executive into a change in policy – so be it.
As the late Tom Bingham wrote in his book, The Rule of Law: -
“Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.
“This principle follows naturally from the two principles just considered, and indeed may be said to be inherent in them. But it deserves separate mention, since many would regard it as lying at the very heart of the rule of law principle. It is indeed fundamental. For although the citizens of a democracy empower their representative institutions to make laws which, duly made, bind all to whom they apply, and it falls to the executive, the government of the day and its servants, to carry these laws into effect, nothing ordinarily authorizes the executive to act otherwise than in strict accordance with those laws.”To suggest that the courts might be cautious in making decisions that have far-reaching policy impacts upon the executive, is not to make any criticism of the courts. In a democracy it is right and sensible that the court be alert to the fact it is not its role to govern.
But if some current policy position of the executive is unlawful – if some acts or omissions are ultra vires – if the case-specific circumstances are such that it is proportionately required – then the rule of law trumps the policy.The fatal difficulty for the respondent authorities in these applications – the Privy Council, Crown, and Secretary of State – is not merely that the polity of Jersey for which they are responsible is a Potemkin Village – but, actually, the apparatus and mechanism of the respondent authorities themselves – by which they pretend to discharge their duties in respect of the Crown Dependency of Jersey – is itself a Potemkin Village.
The Crown Dependencies oversight function exercised by the respondent authorities is a Potemkin Village.It is an ultra vires situation – with many dramatic and evidenced and deeply serious ultra vires consequences.
No matter that it overturn decades of policy stasis on the part of the respondent authorities – their policy is stale – failed – stagnant – unlawful.The rule of law will out…….”
“……….Commissioner Sir Christopher Pitchers:
“………….Sir Christopher Pitchers was chosen and appointed to hear the appeal by the directly and immensely conflicted Bailiff, Michael Birt – who had been the Attorney General in 1999.Upon that basis alone – just as in the applicant’s tabled civil claims in Jersey and the appointment of Sir Charles Gray by Birt – the resultant tribunal could not be, nor ever was, regarded as “objective and impartial”.
A person cannot appoint judges in their own cause.The fact that one has to argue for that point in Jersey - in the year 2013 - is, of itself, very clear evidence of the ultra vires failure of the Crown, Privy Council, and Secretary of State to ensure the proper administration of justice and effectiveness of human rights in the Crown Dependency of Jersey.
Commissioner Pitchers – although repeatedly asked - refused at the outset – and repeatedly refused for a sustained time – to declare his knowledge of, and acquaintance with, interested parties. This was unlawful.It is established English jurisprudence that judges, in the first instance, can decide themselves whether they are conflicted – and can make an initial decision upon a recusal application.
However – it is established law that any potential conflicts of interest – no matter how remote - should be declared to the parties.One of the key functions of judicial processes is the right to appeal. If a judge who has faced a recusal application which he has turned down, has failed to declare all relevant factors, then an affected party is automatically prevented from enjoying their right to mount an effective appeal.
Commissioner Pitchers only much later in the proceedings – and after persistent challenges – did eventually – and even then only with great reluctance - declare his knowledge of, and acquaintance with, certain conflicted parties.The two parties in question being - Bailiff Michael Birt - and Deputy Bailiff William Bailhache - who Pitchers eventually admitted having dined with.
Quite extraordinarily, Pitchers had refused to disclosure these fatal facts for many, many months.There are probably no more conflicted, interested parties in the proceedings against the applicant – than Michael Birt - and William Bailhache.
Both former Jersey Attorney Generals – both of who have – on the evidence - made various dangerous, conflicted, unsafe and corrupt decisions in respect of prosecutions; questionable prosecution decisions that the applicant was, expressly, investigating and challenging in the public interest, and as an elected representative.Indeed, it was for having undertaken such activity – criticising the Office of Attorney General - the applicant was being prosecuted – as was made plain at an early stage, though probably inadvertently, by Michael Birt’s friend, prosecuting Advocate Stephen Baker….. ”
“……….Sir Christopher Pitchers was actually chosen and appointed by the most directly conflicted public official in Jersey – Michael Birt – yet not content with that, Pitchers then dines with Birt – and William Bailhache – the second-most conflicted public official in Jersey. He then – for months and months – illegally conceals these profoundly conflicting and contaminating facts from the defence.The hubris on display exemplifies all that is dangerous and stagnant about judicial conduct in Jersey……….”
“………..Commissioner Pitchers was repeatedly, and from the outset, questioned about potential conflicts of interest and acquaintance with interested parties, by the defence. He kept that knowledge and evidence concealed for months.
Pitchers was not capable of constituting an objective and impartial tribunal in any matter involving the applicant – nor involving Bailhache or Birt. This is another grossly unlawful failure by Jersey’s judicial apparatus – and thus a grossly unlawful failure by the Crown, Privy Council, and Secretary of State…….”
“………..Nevertheless, the applicant obtained an affidavit from the former Chief of Police, Graham Power – which contains wholly damming testimony concerning the lawless conduct of Jersey Attorney General William Bailhache. The applicant again applied to make a judicial review application.
Remarkably – although he had already ruled that the question of the vires of the conduct of the Attorney General could not be challenged in the criminal appeal – Commissioner Pitchers was appointed - by the conflicted Michael Birt - to be the judge who heard this fresh judicial review application. Even more remarkably – Pitchers rejected judicially reviewing the vires of the conduct of the Attorney General – falsely claiming that the applicant already had access to a remedy in the criminal appeal – when Pitchers himself had already dismissed bringing any such matters into the criminal appeal.By this stage events had transcended a point which the imaginings of Kafka alone could have conjured. It was actually funny – in grim way – like some fantastical blend of The Trial - with Catch-22 – and as dramatised by Samuel Beckett.
During this rejected judicial review application, the applicant repeated a request he had made many times earlier, for the prosecution to disclose to him a copy of the detailed statements Police Chief Graham Power had prepared for the Wiltshire police force, because it had been suggested to the applicant that they contained evidence of relevance to his case and the defence arguments.Throughout the earlier proceedings, the Crown prosecution lawyer – Michael Birt and William Bailhache’s friend, Stephen Baker - had repeatedly refused to disclose Police Chief Graham Power’s statement. Stephen Baker repeatedly claimed that “it would not be disclosed, because it did not contain anything of relevance to the case”.
Due only to the applicant’s persistence in asking the question, Commissioner Pitchers eventually - in one of his frequent and undisguised displays of irritation at the applicant’s impertinence in running a defence – asked the prosecution lawyer “whether the document in question contained anything of relevance?”Quiet astonishingly, the Crown lawyer Stephen Baker– after several moments of deafening silence – and staring at the ceiling - said - “I don’t know sir, I haven’t read it.”
Even setting aside all of the vast list of other, and prior, misfeasances and corruptions in the conduct of the case – and instead considering just this one moment – this was The End of the Crown’s case – the moment the prosecution self-immolated.In making that statement, the prosecuting lawyer was admitting to having repeatedly lied to the courts - and lied throughout the entirety of the earlier proceedings – when falsely claiming that the evidence sought for disclosure had been considered, and deemed to be ‘not relevant’ and therefore, ‘not needing to be disclosed’.
This revelation showed a breathtaking abuse-of-process and a straightforward denial of justice.It is worth digressing to just reflect upon the fact that what we are considering is - evidencedly - not some mere fatal “mistake” by the prosecuting lawyer – some inadvertent error that destroys the prosecution for having been an abuse-of-process – but rather out-and-out malfeasance. Up to the moment of his confession, Stephen Baker had repeatedly – repeatedly – with mens rea – lied to the court and the applicant. This is misconduct in a public office - and conspiracy to pervert justice – by Advocate Stephen Baker. But – in the Potemkin Village that is the criminal “justice” system in Jersey, who would charge and prosecute Baker? His close friends in the Law Officers Department who he works with on a day-to-day basis – and who were being protected from scrutiny by the malicious prosecution of the applicant in the first place?
What might have been the outcome of the prosecution against the applicant at earlier stages – if the evidence sought for disclosure had, in fact, been examined and assessed? Not only that statement by Mr Power – but other evidence too? Much – if not all of it – should have been disclosed to the applicant – as the applicant had sought from the outset in his original disclosure letter (supplied) to Advocate Robin Morris.The disclosures that should have followed would have had a dramatic effect upon the research, the course of - and the structure – and nature - of the defence case and arguments.
Any non-corrupt, self-respecting court - that is, any real court, as opposed to a Potemkin Court - would have – upon hearing Advocate Baker’s confession – dismissed all charges against the applicant, throwing the prosecution case against him out, there and then, as the gross miscarriage of justice and abuse-of-process it was. Moreover, a real court would have indicated it required a serious investigation into the conduct of Baker and the Crown prosecution more generally.Commissioner Sir Christopher Pitchers – appointed by his conflicted dinning partner Michael Birt - simply ignored Crown Advocate Stephen Baker’s seismic confession – and just carried on - as though it hadn’t happened.
It was as though Commissioner Pitchers was hosting a convivial dinner-party, and Advocate Baker had farted – filling the room with a foul stench – but host and fellow guests each stoically ignored the concussion and resultant odours – because pretending it hadn’t happened was the polite thing to do – and hoping that no-one else had noticed.This applicant noticed.
This applicant will not go along with the pretence.