Scrutiny and the Royal Court
Tuesday 6th July 2010, 2:35PM BST.
A DECISION by a local firm of lawyers to seek a judicial review of the actions of the chief officer of police and a judge of the Royal Court would not have been undertaken lightly.
As it is, the application by AFR, whose premises were entered by police at 3am, seeks to have high-level and independent scrutiny of a number of issues it contends were wrong.
One of the first is the method it has to adopt in the first place. It claims that under the law, there is no effective structure to challenge the granting of a search warrant issued by a judge of the Royal Court because there is no actual right of appeal. So the alternative is to go to another judge of the Royal Court, ‘a fellow member of that tribunal’, as it puts it.
It is the same point this newspaper argued previously but in a different context.
When a judge slaps a gagging order on the media here, there is no right of appeal. For whatever reason, and contrary to what happens in the UK following a human rights challenge, the Guernsey legislation specifically excludes such a route and the media would also have to seek a judicial review.
It was a point touched on yesterday by Sir de Vic Carey, who granted AFR a judicial review, as he acknowledged the issue of one judge examining the actions of one of his fellows.
That aside, any examination of the actions of the police and the court in granting a search warrant will have to have regard to the proportionality of that, particularly since it affected lawyers.
The authority to enter and confiscate property is not something to be granted lightly and the European Court of Human Rights has previously held that the searching of lawyers’ premises should be subject to especially strict scrutiny to avoid any suggestion of persecution and harassment of members of the legal profession.
Whatever the outcome of the hearing, some substantial issues are involved, not least how the Royal Court scrutinises itself.
* AFR act as legal advisers to the Guernsey Press Co. Ltd and the Guernsey Press and Star. We have not discussed this matter with them.
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It seems from reading the online reports that the main gripe of Advocate Richardson was that he was awakened at 3 am and asked to be present at the search.
This seems to make redundant much of the claim by the advocates “ that the police could, by taking the wrong computer, have left the business unable to function. AFR says that would have had ‘a huge impact on the applicants’ reputations … in fact it could have destroyed it completely’.
The police had to act reasonably and to consider that risk of electronic evidence being lost, as well as letting the advocates know that they intended to enforce a search warrant and to be present at the search.
On a computing technical point are the Advocates’ saying they have no back up’s? Basic security surely?
The main gripe appears to be not the actions of Mr Le Page and Mr Finch, but at the system and lack of appeal.
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Would Mr Richardson have preferred the police turn up at his practice during office hours?
What sort of message would this give to clients present for appointments?
Ready made police defence is that they were being sensitive to the practice and client needs by the night visit, rather than a during office hours raid.
Still Mr Richardson seems to have diverted much attention freom the original problem!!!!
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Well said Stephen John.
Additionally, AFR seem to have missed the point. The police, once in possession of a search warrant need not seek permission from the owner/occupant of the premises, and indeed the owner/occupier need not be present. The police were paying him a courtesy.
What worries me most however, is AFR’s reputation. Clearly the police, and Judge Fince, felt AFR were holding some evidence. As such AFR clearly have some difficult questions to answer.
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