Damian Green MP, the mole, the police and the law: a discussion

In a recent post on a number of current issues, I mentioned my belief that the police had been justified in arresting Damian Green MP for questioning, and searching his parliamentary and other offices, for evidence about the official material which a mole in the Home Office had been leaking to him without authority for a period of some two years.  I also suggested that the Speaker and his parliamentary officials had been right to permit the police to pursue the investigation in the way they had done.  These views triggered an exchange of sometimes lengthy comments and responses between Chris Vine (CV) and myself (Brian) which seemed to me sufficiently meaty and informative (at any rate in regard to Chris’s contributions) to warrant reproduction in a new post.  Chris agreed and here it is.  Chris’s comments are in upper case;  my responses in italics.

CV: TDamian Green MPhe question whether it was right for Speaker Martin through the Serjeant at Arms to allow the police to search premises, examine computer systems and remove articles of Parliamentary as well as private property from offices in the Palace of Westminster is open to debate. Or at least, I think it is open to debate whether a search warrant could have been issued for entry into the House in order to do so, were consent not given, so far as it were to involve seizure of property of the House (seizing its computer systems for example could bring its business to a halt and they are analogous to its papers).

However it was plainly wrong (in my view) for the police to invoke the old common law offences of misconduct in public office and conspiracy merely because the statutory offences in section 2 of the Official Secrets Act 1911 had been repealed and replaced by more restrictive offences in the Official Secrets Act 1989 (the long title of which was “An Act to replace section 2 of the Official Secrets Act 1911 by provisions protecting more limited classes of official information”). The idea of the 1989 Act was to protect whistle-blowers up to a point – the line being drawn where the leak might be damaging within the terms of the 1989 Act. (The object was also to remove a public interest defence in the 1911 Act which worked against the prosecution in the Clive Ponting case).

In order for official information to be protected under the 1989 Act as an official secret, normally it has to fall into one of the categories that could give rise to an offence under that Act, that is to say security or intelligence information, defence information, information concerning international relations, foreign confidences, information which might lead to the commission of crime, and information obtained under the special investigation powers in the Interception of Communications Act 1985 and the Security Service Act 1989. In addition the disclosure normally has to cause harm to the UK or its interests as set out in the Act for the category in question, or (broadly) it could reasonably be believed that harm could occur.

If a civil servant were improperly to pass other (unprotected) information to, say, a journalist or member of Parliament, that is not to say that the civil servant concerned would not have breached the terms of his or her appointment as a civil servant and be liable to disciplinary action and dismissal (he or she would be likely to be dismissed and might suffer other civil sanctions), but that is a civil rather than a criminal matter.

The information obtained by Damian Green was not protected as an official secret by the 1989 Act. In my view it was quite wrong to circumvent the explicit purposes of and restrictions in the 1989 Act by instead relying on the common law offences of conspiring and committing misconduct in public office. A jury would almost certainly have been of the same opinion, and it is that conclusion which persuaded the DPP not to go ahead. Parliamentary democracies with entrenched human rights do not need to reach into their bag of old common law offences of uncertain scope when a statutory provision dealing with that area has already spoken. It is pretend democracies, outright tyrannies and failing governments which do that.

Brian writes: Thanks for this weighty comment. I understand the points that you make. But wasn’t the situation at the time of the arrest and questioning of Damian Green and the search of his office that neither the Home Office nor the police had any means of knowing what other material the mole had been leaking to Green in addition to the material whose leaks they did know about? It seems to me that it was legitimate to try to discover whether the mole had also been passing over information which was protected by the Official Secrets Act, even as amended or replaced by the 1989 Act, and that questioning Green and searching his office computers and papers was the most promising (indeed perhaps the only) method of finding out the answer to that rather important question. You’ll remember that the home secretary at the time was stressing that a lot of very sensitive material touching on national security passed through her private office (where the mole was working) and that since the leaking was so systematic and had been going on for more than two years, there was a natural fear that some of this national security material might well also have been leaked, in which case the OSA, 1989 edition, would have come into play.

I also think you’re possibly being a little hard on the police when you say that “it was quite wrong to circumvent the explicit purposes of and restrictions in the 1989 Act by instead relying on the common law offences of conspiring and committing misconduct in public office”, when in fact they didn’t charge anyone under either offence, and presumably couldn’t have chosen between the common law offence and the 1989 OSA until they had searched Green’s office and questioned him. If they cited the common law offence as the one under which they were carrying out the arrest and search, that was presumably because at that stage they had no evidence to support a charge under the 1989 OSA although they must have thought it possible that by the end of the day they would have found some, in which case they could have charged him under the more serious offence. As I said in my post, the DPP made a point of saying publicly that his decision not to charge Green or the mole was not to be taken as meaning that no offence had been committed. The assessment that any jury would have been reluctant to convict Green (of either the OSA or the common law offence) surely just acknowledges that the media (naturally!) had represented him as a great hero and victim and that whistle-blowing is generally represented in the media as a very brave and heroic act, reflecting the media’s vested interest in encouraging civil servants to betray their elected bosses by leaking stuff which makes a good story. A refusal to convict probably wouldn’t have meant any more than that. But it made it pointless to charge either of the two conspirators people concerned.

CV: I am sorry for the further great length of this but I think what you says needs a further response.

Although not in the end charged, Damian Green was arrested on 27 November 2008 for “aiding and abetting, counselling or procuring the alleged offence by Mr Galley [of misconduct in a public office] and also on suspicion of conspiring with Mr Galley for him to commit misconduct in a public office”. The police also executed a search warrant with respect to his home in connection with these offences on arrest at his home.

On your particular defences for the police, I don’t think that it is right (if that is what they were doing) to arrest and search on suspicion of the superseded common law offence merely as a “make-weight” in the hope that they may find evidence of an offence under the 1989 Act, nor do I believe that a fear that “if we don’t catch him soon, then he might leak protected information relating to national security” washes except in a Mugabe or Putin-like world. That seems much too close to me to the “you don’t need to worry if you’re not guilty” approach to human rights, or predictive guilt for an uncommitted crime.

Otherwise there is a great danger that the police could in effect be used to carry out leak investigations for the civil service in cases where everyone knows the 1989 Act will not bite.

The fact of the matter was that all the information which was leaked to journalists and Damian Green, and which the police were investigating, were embarrassing for the Home Secretary rather than having any security implications. What alarmed the Home Office was the continuous nature of the leaks and the fact that it made running the Department very difficult. These are good reasons for catching and sacking the individual concerned. They are not good reasons, I submit, for arresting and carrying out a 12 hour search of an MP’s (or anyone else’s) house on vague common law offences because they knew that the leaks did not fall within the classes for which statutory offences had been explicitly provided by Parliament in the 1989 Act. At the end of the day unfortunately I think this was a Home Secretary and a then Assistant Police Commissioner out of their depth.

As an aside (it doesn’t go to the principle of my point) the Commons Home Affairs Select Committee’s report found that civil servants “exaggerated” the seriousness of Home Office leaks which led to Mr Green’s arrest, possibly out of “frustration” at the situation and that it had been “unhelpful to give the police the impression that the Home Office leaker had already caused considerable damage to national security”.

In any event, I do not believe that the police were, as you suggest, seeing if they could find evidence to make the statutory offences stick because they did not have any leaks to consider which could have engaged the statutory offences. What the DPP was considering was whether to prosecute for the common law offence and what the police were doing was investigating whether there was sufficient evidence to forward the file to the DPP with that in mind. I accept on this that the DPP is on your side in the limited sense that he was willing to run with the common law offence as an object of consideration, as in his decision he said this:

“30. I have concluded that there is evidence upon which a jury might conclude that there was damage. The integrity of the Home Office arrangements for handling restricted and/or confidential information was breached. That caused damage to the proper functioning of the Home Office, which was exacerbated by the prolonged period of the alleged leaks, the on-going relationship between Mr Galley and Mr Green and the sensitivity of the material to which Mr Galley had access. One of the principal concerns at the Home Office was that whoever was responsible for the leaks in question may have had access to Ministerial papers and that there was a potential risk that highly sensitive material relating to national security might be disclosed. This damage should not be underestimated and once the pattern of leaks was established in this case, it was inevitable that a police investigation would follow.

“31. … But, it is important that a breach of duty that might best be considered as a disciplinary matter should not be elevated to a criminal offence simply by virtue of the fact that the person leaking the information is a public official. Thus there is a need for an intense focus on any additional damage actually or potentially caused.

“32. In this case, I have concluded that there is little evidence of any additional damage caused by the leaks in question. The documents leaked undoubtedly touched on matters of legitimate public interest and Mr Green’s purpose in using the documents was apparently to hold the government to account. The extensive coverage of the issues by the national press, along with comments from Government and Opposition sources is evidence of this.

“33. The information contained in the documents was not secret information or information affecting national security: it did not relate to military, policing or intelligence matters. It did not expose anyone to a risk of injury or death. Nor, in many respects, was it highly confidential. Much of it was known to others outside the civil service, for example, in the security industry or the Labour Party or Parliament. These examples are not an exhaustive list of the types of information that may be damaging for the purposes of the offence of misconduct in public office.

“34. The threshold for criminal proceedings in such circumstances is particularly high, bearing as it does on the freedom of the press to publish information and ideas on matters of public interest. I have reviewed the leaked documents and all the other evidence available as a result of the investigation by the Metropolitan Police Service, in accordance with the Code for Crown Prosecutors. Having done so, I have concluded that, notwithstanding the evidence upon which a jury might conclude that there was a clear breach of duty by Mr Galley and the evidence of damage to the integrity of arrangements of handling restricted and/or confidential information within the Home Office, the overall evidence of damage in this case is not capable of meeting the threshold necessary for the institution of criminal proceedings.”

I think the DPP was being too kind to the police, and simply wrong in saying that after a pattern of leaks was established, “it was inevitable that a police investigation would follow”. Parliament had in the 1989 Act set out the classes of case which, by virtue of their potential damage to the national interest, it considered might justify criminal rather than civil sanction, and the police should stick to it. Interestingly, his description of the classes of case that the common law offence would engage in practice are nearly identical to those of the statutory offence anyway. Well, to give the DPP the benefit of every doubt, possibly a police investigation may be inevitable, but arrests and the execution of search warrants should not be. If I were DPP I would probably have said the same in my decision, because DPPs do not want to be seen to be putting the boot into the police on difficult issues having political ramifications, but I cannot believe the DPP meant it except in that limited sense.

Any defending Counsel would pretty well guarantee to his client that he could secure an acquittal on a common law official secrets prosecution on information not in fact protected under the 1989 Act. The DPP knew that.

Incidentally, the common law offence should not be regarded as “lesser”. Unlike statutory offences, which always specify a maximum penalty, common law offences are punishable on indictment by unlimited fines and unlimited (ie life) imprisonment.

Post scriptum: Some leaks are in the national interest. Some brave senior civil servants leaked information on the preparedness of the nation for war (or lack thereof) to Duncan Sandys and Winston Churchill faced with an incompetent Neville Chamberlain, eventually leading to Chamberlain’s downfall and a very close run thing on whether the country was to be invaded or not. Duncan Sandys MP himself showed particular courage, being interviewed by the Attorney General on the matter and being given an opportunity to defend himself in the House. His house was never trampled upon nor was he arrested.

Brian writes: Chris, I wouldn’t venture to question what you say about the law; and anyway there’s much in your comment that I unreservedly agree with. I would just point to paragraph 30 of the DPP’s statement, which you helpfully quote, as being to my mind the nub of the matter, even if he got cold feet in other parts of the statement. I’m probably influenced by having spent more years than I care to count as a public servant, handling large amounts of official information of which much was highly sensitive, conscious always of my duty of confidentiality as an unelected civil servant or diplomat to my democratically elected political masters. Perhaps as a consequence of this background, I see much more justification than you do for the fear and suspicion that a mole at the very heart of the Home Office (in the Home Secretary’s private office), necessarily having access to vast amounts of highly sensitive information bearing on national security, terrorism, crime, the operations of the Security Service, and other such matters, and eventually known to have been systematically betraying official information on a large scale to a political adversary of the government on the opposition front bench, might well have been committing offences under the Official Secrets Act. No-one could have known at that stage how much or what kinds of information the mole had been passing on in addition to what he was known to have passed to Damian Green. No-one could even have been confident that he had not been leaking much more sensitive material to others besides Damian Green. Such a fear and suspicion in such murky circumstances seem to me to have been entirely reasonable; and not to have taken all reasonable steps to find out whether or not they were well founded would have been quite irresponsible. Against that background I don’t think it’s right to call the questioning of Damian Green or the searches of his offices and home “a fishing expedition”: nor do I think it was improper to conduct them under the umbrella of a suspected common law offence or offences, since the evidence then available didn’t warrant action under the OSA, and to have acted under the OSA would rightly have been regarded as excessive.

I further venture to question your condemnation of the resort to the common law as a crafty and improper way of evading the limitations of the 1989 Official Secrets Act. AFAIK, the 1989 Act didn’t repeal or replace the common law offence of misconduct in a public office in the context of the unauthorised leaking of official information, nor could it have rendered it inoperative. There’s a spectrum, surely, of leaking offences, ranging from giving away top secret nuclear weapon secrets to an enemy power at one end, to sending a copy of a junior minister’s appointments diary to a newspaper in a plain brown envelope at the other. The OSA since 1989 covers only a limited section of that spectrum, but it can’t mean that the rest of it is now open season: nor that the law now gives carte blanche to any old official to pass on bits of official information to the press, or the opposition, or indeed his teenage son, whenever the fancy takes him, so long as it isn’t information protected by the OSA, and without regard to the wishes of ministers and senior officials regarding the release of the information in question, including its timing.

There’s another highly relevant point here. It’s not just the contents of the information that may or may not be intrinsically damaging if published or put into the wrong hands: it’s the fact of an official having claimed the right to act in accordance with his own judgement and impulse, and in so doing having overridden the right of ministers to manage their own official information. This undermines ministers’ trust in their officials, which in turn inhibits frankness in relations between ministers and officials, which in turn degrades the quality of the advice that ministers receive from officials. The consequence is a coarsening of the quality of government which is damaging to every one of us. I strongly believe that we need the common law offence, or something like it, to protect us from the wholesale unauthorised betrayal of official information that would in effect become lawful if the common law offence were to be allowed to fall into abeyance. To decide that such a serious and harmful denial of duty should be dealt with as merely a disciplinary matter for the department concerned to deal with, almost on a par with taking sick leave to go and watch a test match at Lord’s, is seriously to underestimate its gravity and potential harm. The likely difficulty of securing convictions in a climate of admiration of so-called whistle-blowers and the prejudices of a self-interested media is surely neither here nor there. There’s a lot of sympathy for Ronnie Biggs, but no-one’s suggesting that robbing trains should be made legal.

Finally, I of course agree that some leaks, in special circumstances, are in the public interest to such an extent that the public interest in publication of the information clearly outweighs the harm that all unauthorised leaking is bound to do. I’m surprised that you didn’t quote as an example of this the unauthorised and probably illegal sale of the information about MPs’ expenses to the Daily Telegraph. You may remember that the hapless Speaker Martin was initially fulminating about this mother of all leaks, preparing to call in the police to track down the villainous leaker, and generally trying to treat the leak as the scandal rather than the facts about the conduct of MPs which it revealed. Presumably someone took him on one side and explained that if the leaker in this case were to be identified, he would probably be carried shoulder-high through the streets of London to acknowledge the cheers of the populace; and that persuading a jury to convict him of any offence would be like persuading a jury to convict Diana, Princess of Wales, of having committed adultery (still, I seem to recall, technically high treason in the case of the spouse of an heir to the throne). The jury system is a useful safeguard for the occasional, very rare, case where a leak is the only available way of exposing wrong-doing on a significant scale. But that’s not a good reason for discarding a generally sound and necessary law.

CV: We can agree to disagree but three (short) responses to finish on.

First, I agree that governments must govern and departments of state must be able to rely on officials being able to give confidential advice to Ministers. Public administration would suffer severely were that not the case. I have no problem at all with the confidential Ministerial advice exclusion in the Freedom of Information Act 2000. But that does not mean that any leak outside the classes determined by Parliament should comprise the commission of a criminal offence and that anyone in the country should be subject to the issue of search warrants against them. The Home department can carry out their own leak inquiry and sack the miscreant, which they did.

Secondly, the general rule on the prerogative and other natural powers of the Crown is that where a statute makes provision in an area in which those natural powers formerly operated, then it suspends or impliedly repeals the natural powers (AG V De Keyser’s Royal Hotel [1920] AC 508), although there is some theoretical debate about which of those two applies. You are right that this does not generally apply to common law offences, which probably says something about the underlying assumptions behind our legal system. The thinking on offences seems to be to rely on the common sense of the prosecuting authorities, which in the end prevailed. But I put this to you, to which frankly there can be no answer: what is the point of Parliament legislating on the particular area of official secrets, following the Clive Ponting case, if the prosecuting authorities can simply ignore that legislation and go back to their old ways in any case (such as the Galley one) where they find it doesn’t suit their purposes? It is not that the Galley case was peripheral to the 1989 Act and caught by a side wind – it was precisely in point.

The police have in any event learnt their lesson. The official in the Fees Office of the House of Commons who provided MP’s expense claim records to the Daily Telegraph was also committing a common law offence, and one that was apparently done in exchange for payment. The Speaker referred it to the Metropolitan Police. They said that were not going to get involved and the Speaker should treat it as a civil matter.

Thirdly, have the Home office found that their powers of obtaining information in a leak inquiry are too limited in cases of relatively low level but systematic leaking so that they would like to tap into the powers of the police under the Police and Criminal Evidence Act 1984 whenever there has been a leak? If they have, do it properly and put a Bill before Parliament to get more powers or to amend the 1989 Act. I just cannot buy the dangerous argument that it was OK for the Home department and the police to do what they did because Galley might have been leaking or about to leak protected information. If the Home department were not even able to show any “reasonable suspicion” within the meaning of PACE (which is all that is required and not a difficult burden to discharge) concerning an OSA offence then back off. Do we believe in the rule of law or not?

Brian writes:  Thank you. My only comments on this, which don’t I think amount to disagreements, are that (i) I’m sure that the home office, at some stage in the Damian Green affair, supported its decision to call in the police by explaining that they lacked the resources to carry out a proper investigation into the two years of systematic leaks themselves — which I must say is a relief to me: the last thing we want is a home office in-house secret detective agency, accountable presumably to no-one!, so I hope they won’t ask parliament for investigatory powers and resources; and (ii) I would have expected Parliament — meaning in practice the government, I suppose — to make its intentions explicitly clear if by restricting the scope of the Official Secrets Act it also intended to legalise all unauthorised leaks of official information not covered by that Act. Since it didn’t do so, I would have thought that the implication was that the position on all such information remained unchanged, i.e. covered by existing common law. Oh, and (iii): I don’t think we can extrapolate any general conclusions from the refusal of the police to agree to investigate and possibly to prosecute the leaker of the MPs’ expenses information to the Daily Telegraph, even for money. They must have known that to do so would make them a laughing-stock, given the state of public opinion and the almost universal view that if ever there was a justified blowing of a whistle, this had to be it. It would surely be unsafe to deduce from this that the police will refuse to take an interest in some future case of a house of commons official selling information of a different kind to the media where there’s no obvious public interest defence. But I promise not to interpret your silence in response to these comments as implying your agreement!

CV: Yes, we don’t disagree on too much. On “the last thing we want is a home office in-house secret detective agency”, we already have one – MI5. It reports to the Home Secretary and although I have no personal knowledge (if I did I imagine I could not say anything), I have always assumed that it carries out civil service leak investigations and does things like positive vetting. With MI6 (SIS) and GCHQ, which report to the Foreign Secretary, and the Defence Intelligence Staff (I think they are MoD), it forms part of the UK Intelligence Services.

I don’t have any problem with MI5 existing. It is politically accountable even though not much is said about it, probably more so than in many other countries. That’s fine by me.

CV: Afterthoughts: There are legal issues arising about the lawfulness of arrests and searches, particularly in Parliament, but at the end of the day it is a matter of judgement about whether what the police did is right in its broader sense rather than its legal sense.

IThere are two further points to be acknowledged and which probably need to be made here. The first, which you raised, and with which I agree, is that strictly speaking the common law offence of misconduct in public office still exists so on a technical level the police did not act unlawfully with respect to Mr Galley in respect of the arrest on that ground (as to Mr Green see further below). I think they acted wrongly in the broader sense for the reasons I have given and will not repeat here, but not unlawfully in the sense that they could be sued for it. (As an aside, I think the House or Lords would revisit the rule that statutory offences do not impliedly suspend or “shadow out” common law ones on the same matter were it ever to get there in a stark enough case such as that of Galley, but the Galley case would not get to the House of Lords as in the unlikely event of a prosecutor proceeding with such a “shadow” charge there would never be a conviction by a jury to be appealed.)

The second is the conspiracy charge against Mr Green. Conspiracy is another common law offence which raises my hackles. One feature of conspiracy is that it can be an offence to agree with someone to do something which is not an offence. Conspiracy to do a civil wrong, such as to break a contract, including a contract of employment, is also an offence. It was precisely that offence (from the, in my view, arbitrary and pre-democratic common law bag of tricks) which was employed against the early trade union movement and which sent the Tolpuddle Martyrs away to lands afar. If you are keen on common law offences you could therefore justify the arrest of Damian Green on the basis that OK, he had not been conspiring to commit an OSA offence, but he had been conspiring (so the Home office said) to commit another conspiracy recognised by the law, that concerning the “shadow” offence and the civil wrong of Mr Galley breaching the terms of his appointment.

I answer that in two ways. First, on the factual ground that there was no evidence to support the Home office’s suggestion to the police that rather than Mr Green being just a regular and happy recipient of leaked information (which would not comprise a conspiracy) he had been “grooming” and “positioning” Mr Galley to leak information (which might). Mr Galley had been arrested and questioned some time in advance of Mr Green’s arrest and he denied such “grooming”. This suggestion appears just to have been an invention born of the Home Office’s
frustration about the leaks. The investigation of Mr Green’s computers and papers revealed no evidence of such grooming.

Secondly, I object to the use of the conspiracy offence in this way on the policy ground I have mentioned above, and I deprecate it in the Galley/Green case in particular because it appears to have been a Home Office invention to persuade the police to take the case on. But I concede that those taking your point of view have a better argument with the conspiracy charge (or non-charge) than the basic “misconduct in public office” non-charge.  [CV]



9 Responses

  1. J says:

    A very interesting exchange of ideas. As a young non-civil servant, non-lawyer who has followed this story only comparatively superficially via the papers, it’s good to get a more indepth look at the nuts and bolts of the case. (I’m fully with Chris Vine on this one, I’ll confess). Brian seems to have been quite outraged at the public response to the raid, but I think perhaps Green’s arrest drew the strong reaction it did as a result of a number of other factors neither of you mentions. It followed a series of events that served to portray the police as increasingly going beyond the boundaries one would consider healthy in a democratic state; abuse of SOCPA and anti-terrorist legislation to criminalise protestors being just example of the above I am familiar with… in other words, context, gentleman, was a great part of this case, or at least the public response to it. Forgive me if this seems facile, but I think it’s worth noting, for an unhealthy combination of the police and New Labour have served to render the UK a very very scary place to protest in and the leaks were indeed very far from threatening national security. I’m sure the civil service could quite comfortably have tracked down the mole and charged or dismissed him at their discretion without police storming through Green’s office and home and hashing up post hoc legal justifications for their behaviour… Meanwhile, apropos of my previous comment about protest, I invite you here http://www.youtube.com/watch?v=Ol9hcQlVX9M for your viewing pleasure…

    Brian writes: Thank you for this. Of course the context of public reactions to the conduct of the police in relation to Damian Green helps to explain those reactions, but it certainly can’t be used to justify them. Whether the police have behaved badly or misused their (anyway excessive) powers in completely different circumstances is wholly irrelevant to the question whether they misbehaved towards Mr Green. I understand the views of those like yourself and Chris Vine who think they did: I just don’t agree with you, for the reasons exhaustively described in this post and the one that sparked it.

    On your specific points, it’s easy now to observe reassuringly that “the leaks were indeed very far from threatening national security”, but I wonder if you would have been prepared to make such a complacent and baseless assumption if you had been an official responsible for home office security who discovered that a mole at the heart of the department, handling sensitive and high-classified material every day, had been systematically and repeatedly leaking material to an outsider with no right to receive it, for at least two years, when you had no way of knowing the extent or nature of the leaks apart from the three or four that had been used publicly, and no way of knowing how many other people besides Mr Green had been receiving his leaks? When the police questioned Mr Green and searched his offices, they too had no means of knowing the extent or nature of the leaks that had been taking place for so long. That was precisely what they had been tasked to find out. (And incidentally the published video clip of the police entering and starting to search Mr Green’s office hardly bears out your description of them “storming through Green’s office and home”, language which props up your case against the police generally but doesn’t seem to me appropriate to the events in question here.)

    And, in the same vein, I’m a little bit surprised by your confidence in asserting that “I’m sure the civil service could quite comfortably have tracked down the mole and charged or dismissed him at their discretion without [the need to call in the] police….”, when precisely the opposite has been publicly stated by both the then home secretary and the civil service head of the home office, and indeed confirmed by the Director of Public Prosecutions. Of course if you have better information than any of those three about what the home office could and should have done, you’re fully entitled to express that view. If not, perhaps not? I just raise the question, without presuming to answer it.

    I agree with many of your objections to the excessive powers that have been granted to the police under cover of the so-called “war on terror” (which is not a war) and to the many ways in which some policemen have abused them. But I think the YouTube clip to which you helpfully provide a link gives only rather ambiguous support to those legitimate objections. If the police have often behaved with unnecessary and disproportionate force and in an unacceptably authoritarian manner in (for example) their handling of demonstrations, quite large numbers of demonstrators have themselves been unnecessarily and disproportionately provocative and even violent in their own behaviour, which predictably (but not justifiably) elicits similarly disproportionate reactions from the police. Some, but of course not all or even most, demonstrators stretch the concept of a “peaceful demonstration” to breaking-point and sometimes beyond it. But that, I repeat, has nothing whatever to do with police actions over Damian Green and his mole.

  2. Tim Weakley says:

    Brian, could we be told who Chris Vine is?  With his permission, of course, and purely for interest’s sake.  I note the breadth and depth of his knowledge of public affairs and the clarity with which he expresses his views, and I feel rather guilty that I can’t recognise his name.

    Brian writes: It’s obviously up to Chris Vine, not me, to provide more information about himself if he feels so inclined. I have provided in the introduction to this post a link to his blog.

  3. J says:

    Thanks for the cogent response Brian. You are entirely correct that police behaviour in other circumstances cannot be used to “justify” public reaction to the Green case and is “wholly irrelevant” to the specifics of the case .  I just thought it worth mentioning as a causal factor, for you seemed somewhat incredulous that people had responded as they did, and the context did strike me as quite important in this regard (only; not in the legal sense)…   (As a news story, nine counter-terrorism officers rifling (if not storming) through an MP’s home when the known leaks had been simply embarrassing to the government looks pretty awful). You are no doubt quite correct about my “complacent” assumption that the leaks could have been dealt with internally. Just speaking from my experience in the private sector, and defer to you as a former civil servant on that… Best regards. (Have emailed you some comments on the protest issue privately so as not to clog up your blog with tangentials).

    Brian writes: Thanks again. On a very small but quite flavoury point, my understanding is that the police who conducted the search were not in fact counter-terrorism officers, contrary to a great deal of media reporting: they were from the division which includes counter-terrorism, but from a different branch of it. But I haven’t tracked down chapter and verse for that view; I simply recall reading a police statement to that effect.

    As for the police ‘storming’ or ‘rifling’ through Mr Green’s home or office, I can’t see anything wrong with saying that they were ‘searching’, thus avoiding emotive terms for which no evidence is offered, but which such evidence as we have actually contradicts.

  4. Chris WIld says:

    The above discussion goes into a lot of (interesting) detail about the legal situation. However this legal situation has to be placed in the context in which it occurred. This, I believe, is what triggered the public response and disgust. The first element of the context is that, from the reporting we have, the  police deliberately misled a naive sergeant-at-arms. If she had asked for a search warrant and been informed that it did not exist she might have simply refused access and have been completely in her rights – the police appear to have pulled a fast one. Police pulling fast ones with a parliament is not something we want to promote. 

    But more significantly, the public were well aware that Prime Minister Brown had openly and repeatedly used information from a mole while in opposition. Indeed he made much of his reputation with this. The juxtaposition of what appeared to be a slightly dodgy police intervention in parliament with this prior context went some way to winding the public up. It would be interesting to have your opinions on this aspect of the matter.

    Brian writes: Thanks, Chris. But I think your account of what happened when the police sought permission to search an MP’s parliamentary office makes a lot of questionable assumptions. Had the police applied to an ordinary magistrate for a search warrant to enable them to search premises inside the Palace of Westminster, I think the magistrate would almost certainly have told them to apply instead to the authorities at Westminster responsible for parliamentary security — which is what they did. I can’t imagine a magistrate taking on himself such a responsibility, with all the possible implications of privilege and parliamentary ‘sovereignty’ liable to jump up and bite him or her in the bottom. I know of no evidence that the police misled the Sergeant at Arms, deliberately or otherwise. It was open to the Sergeant to seek advice from the senior Clerk of the Parliaments or from the Speaker himself before deciding whether or not to give the police the permission they sought, and it’s far from clear whether she actually did so — it seems likely that she at least informed the Speaker, who could then have intervened to reverse her decision to give the necessary permission, but very sensibly refrained from doing so. Had the Speaker or the Sergeant at Arms refused the police permission to conduct the search, they would have been open to the serious charge of obstructing the police in the execution of their lawful duties, or even of attempting to pervert the course of justice: there were clearly no possible grounds for refusing permission to the police to search premises which have no special protection under parliamentary privilege or otherwise. (Nor was Damian Green in any way immune from arrest and questioning, whether in the precincts of the Palace of Westminster or anywhere else. On what grounds could the Speaker or anyone else have tried to prevent that happening?)

    As for Gordon Brown having got information from a mole while in opposition (or, come to that, Winston Churchill who certainly did the same thing), the first point is the obvious one that two wrongs don’t make a right: secondly, that AFAIK the mole’s department didn’t request a police enquiry or make any attempt to have Brown (or Churchill) charged under either statute or common law: thirdly, that we don’t know — or anyway I don’t know — whether there was any evidence that Brown (or Churchill) had actually encouraged the mole to go on illicitly stealing and passing on documents and information, as Damian Green (on the evidence of the mole himself) seems to have come perilously close to doing, or whether Brown and Churchill were merely passive recipients: and fourthly, we don’t know whether either Brown or Churchill might have had a ‘public interest’ defence on the grounds that there was a genuine public interest in bringing into the public domain the information stolen and handed over (which pretty clearly was not the case in respect of the information received by Green). So the cases are not really comparable, and it wouldn’t affect the argument even if they were.

  5. Chris WIld says:

    Hello Brian,

       Thanks for the reply and the clarification on the legal side. As I indicated, based on the reporting there was some controversy about whether the police had been forthright in explaining the status of their search authority. According to the Telegraph the speaker claimed that the police had neither a search warrant nor his permission to search Mr Green’s office; they only had permission from the sergeant-at-arms (which would still be acceptable?). According to some commentators, the sergeant-at-arms acted naively under the influence of the police, and should never have given the permission, hence my comment about the police pulling a fast one, or if you prefer, taking advantage of an opportunity.  Many commetators believe that the speaker was fully entited to say no to the police without any risk of being charged with obstruction of justice – I am not qualified to have an opinion on this question.

    But the legal niceties were not really my point (they seem likely to be clarified for the future). I was actually more interested in the combination of circumstances and how it was viewed by the public. Rightly or wrongly, the public has taken this incident and added it to the evidence about manipulation of liberties and power by New labour with support from the police.

    Though I will remark finally, that in the case of Brown, he repeatedly received information and openly admitted to using a mole in interviews, without any apparent reaction from the government of the day or of the police – clearly something has changed in the meantime, for better or for worse. I am not totally convinced that a defence that the cases are not really comparable carries the day in this instance.

    Brian writes:Thanks again, Chris. I wouldn’t dispute your account of how public opinion, or much of it, has viewed the whole affair: I simply note that the widespread public attitude which you describe (blaming New Labour and the police for exceeding their powers, when there’s absolutely no evidence that either did) clearly reflects the positions taken by most of the print media (which have an obvious interest in encouraging moles to leak, whatever the consequences for good government), and also the attitudes of many MPs (some of whom are always on the lookout for ways to expand their supposed privileges and immunities, and were unpleasantly surprised to discover that neither they themselves nor their parliamentary offices had any immunity from police search and investigation if there was any suspicion that an offence has been committed). Whatever “the public” might think, it’s pretty obvious that the permission of the Sergeant-at-Arms, the senior parliamentary official responsible for security in the Palace of Westminster, was more than enough to license the police to do what they did. Whether she did consult or merely inform the Speaker, or should have done so, and whether the Speaker could or should have intervened to withdraw the permission granted by the Sergeant-at-Arms, is entirely a matter for the two high officials concerned. In my opinion there were no grounds whatever for either of them to have prevented the police from acting as they did: indeed they would have been open to the severest censure if they had tried to do so.

    I didn’t say that the cases of Damian Green and Gordon Brown were not comparable as any kind of attempted defence of the latter: I merely pointed out that as the circumstances of the two cases were materially different, the fact that Brown was not arrested, questioned or searched, whereas Green was, can’t have any bearing on the rights and wrongs of the police action in regard to Green. I neither condemn nor seek to defend Gordon Brown over his receipt of leaks from a mole: I don’t know enough about his case to do either.

  6. David Raynes says:

    I have read this exchange with interest, unless  I missed it by reading quickly I cannot see where anyone has explained that Green HAD to be arrested for the provisions of  PACE-the Police & Criminal Evidence Act, on searching controlled premises after arrest to become operational. Warrants were obtained for other premises. Were the Police refused a Warrant for the HoC Office or did they not apply fearing refusal? If the last point is true a subseuent search using PACE would have been improper.

    Secondly the Common Law Offence of Misconduct is wheeled out extensively,especially by MetPol, when Police are inclined to go on adventurous often unjustified, fishing expeditions. I do not say they were necessarily doing so in this case but it looks like it. Thirdly there was absolutely no need to call in the Police, there are private sector investigation organisations with relevant experience, skills and staff with or who have had recent security clearance. Think about it, once the Police are called in the Home Office lost control of the investigation and of events (as it should be). far wiser to call in a private sector investigation serviec with experience of such enquiries who would report to the Home Office . Done that way the Home Office keeps control, if the individual  were identified and an assement made of damage, the Home Office would still have had the OPTION of calling in the Police, or the option of not doing so and quietly disciplining the offender with evidence provided by their tame investigators.  Any sensible analysis of what the Home Office did tells one that this was a deliberate attempt to intimidate other leakers and potential leakers and damage the Conservatives. The decision to call in the Police  was I conclude a POLITICAL decision not a practical one.
    It rebounded.

    Brian writes: Thank you for these interesting observations. My impression is that the police not unreasonably regarded the permission of the Serjeant-at-Arms to search Damian Green’s offices as an acceptable substitute for an ordinary search warrant. In any case it would have been a brave magistrate who would have issued a search warrant for a search of an MP’s parliamentary office without first getting the agreement of the Palace of Westminster authorities (the Clerk of the House or the Serjeant-at-Arms or the Speaker or whoever). It’s quite possible that the police took soundings about an ordinary search warrant and were advised to ask the Serjeant-at-Arms instead. I assume that Mr Green had to be arrested to ensure that — if he had been receiving classified documents from his mole — he didn’t go home and destroy them before the police could get to them. You’ll recall that Tony Blair’s senior advisers and officials at Number 10 kept being arrested in the early hours of the morning during the police investigations of whatever-it-was, for that same reason. As for the Home Office’s option of calling in private investigators instead of the police to track down the source of the continuous and systematic leaking, I doubt whether that would have been regarded as acceptable in such a politically charged case, involving an opposition front bench MP. Anyway, calling in the police seems to be standard practice by government departments who find their information being betrayed to outsiders without authority. I can’t recall any example of a government department using private investigators for such a purpose. Apart from anything else, considerations of extra cost would probably rule it out.

    The suspected common law offence of misconduct in a public office was clearly entirely appropriate to the offences possibly committed both by Mr Green and his mole, whether or not that offence is sometimes misused by the police (or the Crown Prosecution Service?) in other cases. For a public servant to feed out, without authority, sensitive information for the purely political purpose of seeking to embarrass the ministers to whom he owed his loyalty and to promote the interests of their political opponents — and to continue this betrayal for more than two years, passing over more than 20 documents — is self-evidently nothing like as trivial as you imply. Taking stern action both to stop the leaking and also in what you call “a deliberate attempt to intimidate other leakers and potential leakers” — I would prefer the word ‘deter’ to ‘intimidate’, but it’s the same thing — seems to me entirely proper; to have done any less would have been a dereliction of senior officials’ duty. As for your imputation that the action taken was also designed to “damage the Conservatives”, that would seem completely out of character for the politically neutral senior civil servants who took the action in question, and who — also very properly — took care not to involve their ministers in any way, precisely to guard against any suspicion of party political motivation. It ‘rebounded’ because (1) opposition MPs and the media have a vested interest in encouraging leakers, (2) some MPs rallied to Damian Green’s support in the mistaken belief that the action taken by the police was somehow in breach of their precious parliamentary privilege; the rebound was not because Mr Green and his mole turned out to have been acting honourably or legitimately, nor because establishing the identity of the treacherous mole and how much damage he and Mr Green had done between them was in any way improper.

  7. David Raynes says:

    Well a lot of words Brian. The right to search controlled premises after arrest under PACE covered the Office. The Police would know that even if you do not. It is authourisable by an Officer of the rank of Inspector-no big deal it is in the Act. That right would also have covered Green’s house incidentally but they chose to get a warrant, that is normal and good practice if time allows. Early morning raids are useful because they are intimidatory but also they have the advantage of (usually) investigators  knowing where the suspect is.

    HMG does use private investigators, why not? Commonplace in the private sector.  Cheaper than  the Police to do initial research and often with higher skills. I am told such a business is quite regularly used. One I have heard of managed by an ex MI5 Officer has alleged close links to the department.  No, departments do NOT usually call in the Police to investigate leaks, I have done such a leak enquiry myself when I was in the public service. It is, as I explained quite often better not to call the Police in the first instance unless very serious crime is suspected (not the case here-this was political embarrassment).  As I explained, if the Police are NOT called initially, the department keeps control of events and political fallout. I fear you have misread events. When Jacquie refers publicly  to Robert Quick as “Bob” something is wrong. The relationship with the Blair (Commissioner) led, MetPol and HMG was too close and MetPol was too eager to obey HMV. They have most certainly learnt a lesson. I cannot see the current regime being quite so quick (no pun intended) to take up something like this as aggressively as they did with Green.

  8. David Raynes says:

    And worth noting, the Official report, now published in some what censored form, agrees broadly with my interpretation of events.

    Brian writes: It depends on which report you’re referring to. Reports on the affair have now been published by the House of Commons Home Affairs Select Committee (of MPs), by seven senior MPs appointed by the Speaker, by the former head of the British Transport Police at the request of the Metropolitan Police Commissioner, and by by Her Majesty’s Chief Inspector of Constabulary on, it seems, his own initiative. The reports by MPs are predictably critical of the police action, by which many MPs feel threatened and which some MPs wrongly assume to have been in breach of their privileges. MPs are by definition parti pris in this. To the extent that the police reports are critical of the actions of the police in arresting and searching Mr Green, their criticisms seem to be based on the fact that the 20 or more documents leaked without authority to Damian Green turned out not to have concerned matters affecting national security. But the investigation of the leaks, including the arrest of Mr Green and the search of his offices, was carried out precisely to find out whether or not the leaks did concern matters affecting national security: there’s an obvious fallacy involved in blaming people for acting in a way that later proved to have been disproportionate to the character of the leaks when that was unknown, and could not have been known, at the time, and was something that obviously needed to be investigated. It’s also very relevant that in announcing that no charges were to be brought against Mr Green or his home office mole, the Director of Public Prosecutions stressed that this decision should not be taken as an indication that no offence had been committed.

  9. David Raynes says:

    Lest there be doubt I was referring to the only report that really matters:
    “The heavily redacted report by the former British Transport police chief constable, Sir Ian Johnston”.

    There is no shame Brian in sometimes admitting you got things wrong. It happens and happens a lot in the blogosphere where writers often bang on about matters they barely understand.