Inquiry into police raid must be free of actual and apparent bias

Some four months after a dramatic police raid on a respected family Doctor’s surgery in Alderney, more questions remain than have been answered.

At the end of last month the police announced that their investigation has cleared Dr Lyons of any suspicion of any criminal offence.

On July 31st, the Medical Practitioners Tribunal lifted their interim suspension of Dr Lyons’ registration as a doctor.

So all is now back to normal, right? Not quite.

The right to privacy and personal property are key principles of the Bailiwick’s justice system, as well as that of the British Isles and most of Europe.

The Bailiff (the Islands’ most senior judge) or other appropriate judicial officer may issue a search warrant granting powers of entry, search and seizure. This can only be granted for the purpose of searching for stolen property, illegal drugs, firearms and evidence of serious offences.

It is clear from the media that the warrant upon Dr Lyons’  surgery and his home fell into the latter category, suspicion of
serious offences. It is also clear to me that, at least on the day of the ‘SWAT’ style raid, the police suspected Dr Lyons having committed the most serious offence that any defendant can ever be called to account for in front of a Court.  And not once, but on up to four occasions.

Since the Police have subsequently stated they have found no evidence of any criminal wrongdoing, one has to ask, on what evidence did the learned Bailiff (or other judicial authority) grant the police the authority to enter and search?  Our laws are supposed to protect us from unreasonable searches and seizures by the authorities;  furthermore, the Channel Islands are only part of the British Isles to have had direct experience of such things within living memory, so you would expect the judiciary to require the executive to show cause that the evidence being sought was likely to be found before rubber-stamping search warrants.

When the police have information that appears to justify an application to conduct a search, the officer concerned must take  reasonable steps to check the information is accurate, recent and not provided maliciously or irresponsibly.  Under the Police Powers and Criminal Evidence Law, this is the responsibility of an officer of the rank of Inspector or above.

Amongst other things, the officer must the specify the  object of the search, including, when the purpose of the proposed search is to find evidence of an alleged offence, an indication of how the evidence relates to the investigation. Information supporting a search warrant application should be  as specific as possible, particularly in relation to the articles being sought.

Again from newspaper reports: the object of the search was to seize medical records of particular interest.

Yet it was also reported that the police seized entire computer disks, containing medical and/or medical related records on all the surgery’s patients, including myself and my relatives who are also Dr Lyons’ patients.

This is disproportionate and, it appears, a clear breach of my own (and that of all other patients of the Eagle Medical Practice) legal right to private and family life;  this infringement is even more egregious when you consider that PPACE gives officers powers to require information stored in electronic form to be produced in a form which can be taken away and in which it is visible and legible:  so they could just required, and taken away only the records they were interested in.

Searches must be made at a reasonable hour, unless this might frustrate the purpose of the search. And searches must be conducted with due consideration, and with no more disturbance than necessary:  you might take the view that this means not only during daylight hours, but also without barging in causing unnecessary distress and inconvenience to uninvolved third parties such as patients.

Dr Lyons has not only now been cleared by the police investigation of involvement in any criminality, but the complaints from the States of Guernsey to the General Medical Council have also been fully considered and rejected by the Medical Practitioners Tribunal service, who, on July 31st restored him to the register with no conditions whatsoever, thereby exonerating him of any suggestion of professional incapacity.

Despite this, the senior official in charge of the States of Guernsey Health and Social Security department (HSSD) recently made a vigorous defence of the States’ heavy-handed actions, saying that they would do the same again, because “all allegations have to be referred on”.

With all appropriate respect to the professional expertise of the official concerned , that is just not so, in a democratic society. Both the executive and the judiciary have a responsibility to consider allegations carefully and seriously.

For the States irresponsibly to report someone to the police, and to make complaint to their professional licensing body, making allegations of serious offences on what (it now appears from the conclusions of the police and the GMC tribunal) was little or no evidence, is in my mind, equally as culpable as ignoring concerns would be.

The States of Alderney and Neil Harvey MSA are to be unreservedly and wholly commended for their strong stance in calling for a public inquiry.

The response of Guernsey’s Chief Minister, Deputy Le Tocq to this call is, initially, encouraging.

But such an inquiry has to be a fully independent, judge led inquiry

Any inquiry that is carried out under the authority of the States of Guernsey itself, or appointed by them will fail the test of apparent bias, since it was the Guernsey Government itself (i.e the Health and Social Security Department) that was the instigator of the whole sorry mess.

That any tribunal must now ensure the absence of apparent bias is an extremely important constitutional principle on the right to fair hearing that  developed in Guernsey at the beginning of the century in McGonnell’s Case, and is now widely accepted throughout the rest of Europe.

Fortunately, there are  legal and legislative mechanisms that can deal with this, even if they are not often required to be used.

I am sure that the States of Alderney, and the Chief Minister will agree with me that the only way to prevent further damage to the reputation of Guernsey is to grasp the nettle and make sure this is dealt with in a fair, open and transparent matter in order to avoid any such potential criticisms, or allegations of ‘cover up’. And that can only be done by an independent, judge-led inquiry.

I very much look forward to learning whether the proposed inquiry will meet this standard.

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