64
47.
SIU work was periodically reported to Moor in their Target/Progress Reports. Then Moor and the General would together consider the work done by the SIU and the direction of SIU work, then Moor would brief Clancy who would in turn brief the SIU.
48. As always, targetting was and is a matter for the Police; the Legal Department is to give legal advice. Whatever the basic and general policy position might be, the consequence of that meeting was that there would be some kind of liaison for discussion between the Police and the Legal Department but there was no question of any official surrendering of police authority at all. As a matter of practice there would be consultation in relation to the area of targetting because of the sensitive nature of the investigations. There was no suggestion that the Legal Department sought to take over the Police or the Police sought to surrender their "classic rights" but merely that as a matter of practice there would be consultation on the matter of targetting in relation to individual cases. Though this was a departure from normal practice, it was a practical solution.
49. After the Government House meeting, it was no longer the DCI who directed the targetting and priorities of the SIU as had been the former practice but it was Moor who directed the SIU on these matters. In order that police resources and manpower were used in the most efficient way, priorities had to be given to recent homosexual activity and not stale intelligence. In deciding on priorities Mr. Moor would have discussions with the DCI and sometimes also with Ross and Quinn.
50.
On 15 or 16 September 1979 Brooks returned from leave and resumed his duties as head of the SIU. He reported to Clancy, who told him manpower would be available to enable him to keep the Unit as much as possible up to a certain strength. Clancy also told him that as a result of the Duffy petition, the Attorney General and other senior persons had decided to widen the duties of the SIU, to include not only procurement and abuse of youth, but the investigation of those within the Police, legal circles and the Judiciary. Brooks was however not shown the Charter. Clancy gave him the general gist of the whole letter. Clancy also informed him two members of the Legal Department were appointed particularly to help the SIU in their work. Apart from the above, Brooks did not receive any further policy instructions.
51. It should be noted that up to the date of the Attorney General's Charter, no police operation had been mounted against consenting adults for their homosexual activity unless there was evidence against them or a complaint had been made against them, in which case normal police action would have been taken. If information was received about homosexual activity between consenting adults, such information would be assessed but no active follow-up investigation would be taken except for the purpose of gathering intelligence. The Charter did not result in
any increase
in the investigation into police officers who had already come to the attention of the SIU. And there was no direction from Moor to investigate the police officers whose names had been passed on to him with credible leads. There was, at the time, a manpower shortage in SIU, therefore there had to be a priority of commitments. Nor did Moor and Clancy specifically consider the position of police officers who were homosexuals and informers. There was therefore a degree of selectivity (see below).
H.
SELECTIVITY IN THE SIU INVESTIGATIONS
52. In theory, the Police had no discretion to be selective in their work. Section 10(b) of the Police Force Ordinance stipulates that the duties of the Police Force shall be to take lawful measures for preventing and detecting crimes and offences. It is therefore part of the obligations and duties of a Police officer to detect crime and bring an offender to justice (Archibald on Criminal Practice, Evidence and Pleading, 40th ed. p. 1311, para. 2718).
53.
In practice, since it is impossible to investigate or detect every crime and bring every culprit to justice, selectivity in Police work is inevitable as a matter of reality. In this context, selectivity is well described by Mr. Clancy, Director of Criminal Investigation, as a “device to ensure that Police resources and manpower are used in the most effective and efficient way to deal with a particular problem, so that resources and manpower are not dissipated across a very wide front with less efficiency and less effectiveness." Put more plainly, selectivity is a conscious decision on the part of the Police Force, in the face of strongly competing calls on their resources, to choose targets for active consideration from among a pool of "suspects" who are so classified because certain information or intelligence against them has been gathered. The degree of selectivity obviously depends on the number of targets chosen for investigation in relation to size of the pool of suspects. If all suspects were actively investigated, then the question of selectivity would not arise. However, bearing in mind that only limited resources can be allocated to one particular type of crime, the number of targets that can be actively investigated at any one time would be dictated by the manpower resources allocated, the severity of the offences concerned and the reliability of the information at hand. In the field of homosexual offences, Mr. Clancy, in his evidence, stated that "given the extent of the field and the fact that the Unit (SIU) had been in existence for a relatively short period, I think one of the parameters certainly would be recent activity."
54.
In a situation where only a small number of targets have been pursued, such as the investigation of homosexual offences, very often cries of "victimization" or "persecution" would be made by the persons under investigation. These
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