Examination of Witnesses (Questions 60-79)
DEPUTY ASSISTANT
COMMISSIONER JOHN
YATES QPM, MS
CARMEN DOWD
AND MR
ASKER HUSAIN
13 JULY 2006
Q60 Mr Prentice: Is the investigation
going according to plan? Because when you came to see us before
you talked about scoping and sequencing the investigation, and
presumably keeping the important people to the end. Have you been
kind of blown off course by these three people who have refused
to be seen?
Deputy Assistant Commissioner Yates:
No. And is it going to blow off? It is very difficult to plan
an inquiry. You put lines of inquiry round it and parameters round
it but you have to be flexible and have a plan blown off course
occasionally. It has not been, to this date.
Q61 Mr Prentice: Can you tell us
how many people you have working on this operation, and the cost,
and whether the numbers have increased as the investigation has
progressed?
Deputy Assistant Commissioner Yates:
It is around 9 or 10 working on the investigation. Again, I pull
people in occasionally to do specific bits of work, analysis or
the like. It has not grown; it is a very small team, deliberately
small, for operational security reasons. I could not tell you
what the cost is; I will be at some stage. It is not cheap.
Q62 Mr Prentice: That is why you
are still confident that the leaks are not coming from Scotland
Yard because there are only nine or ten of you?
Deputy Assistant Commissioner Yates:
Absolutely.
Q63 Mr Prentice: You told us that
you are getting material from the Cabinet Office. Has any material
been withheld for whatever reason, or are you getting absolutely
everything that you have asked for?
Deputy Assistant Commissioner Yates:
We are getting full co-operation.
Q64 Mr Prentice: And the story about
this software firm in California that allows you to recover deleted
e-mails, the leak was presumably over in California?
Deputy Assistant Commissioner Yates:
I have no idea. It is not a company I believe we are using.
Q65 Mr Prentice: It is not a company
you are using?
Deputy Assistant Commissioner Yates:
No.
Q66 Mr Prentice: So that was complete
fiction?
Deputy Assistant Commissioner Yates:
Complete fiction—as far as I understand—
Q67 Mr Prentice: So the front page
of The Guardian was like an April Fool, a big hoax?
Deputy Assistant Commissioner Yates:
We are not using that company.
Q68 Mr Prentice: That is astonishing.
I do not want to go off on a tangent but have you, the Metropolitan
Police, corrected that by getting in touch with The Guardian
saying: "Hang on a minute, your front page story was a spoof"?
Deputy Assistant Commissioner Yates:
I think my Press Officer would say that we do not confirm or deny
anything around these things. Why would we? It is instead of using
something else, potentially. That is why we never identify an
informant because you get the process of elimination: "Who
are you using?"
Chairman: David Hencke is not entirely
reliable!
Q69 Mr Burrowes: I have a question
for the Crown Prosecution Service. In terms of the decision to
prosecute, who would that be made with? Would that involve the
DPP? Is there any need for consent to him or the Attorney General?
Ms Dowd: It would be dependent
on the charges that we consider are supported by the evidence,
but Asker and I are the reviewing lawyers in the matter and will
be consulting with the DPP and possibly the Attorney, I imagine
the Attorney. He is our supervising Minister.
Q70 Mr Burrowes: Yes, so depending
on the offence and whether he formally has to give consent as
the Attorney General, would he in any event be involved in the
consultation to decide on prosecution?
Ms Dowd: If his consent is required
he will have to make that decision, yes.
Q71 Mr Burrowes: And if it is not?
Ms Dowd: With the nature of the
investigation and the subject matter, I imagine we will be consulting
with the Attorney General in terms of our decision. That is not
to say the Attorney General will be making the decision; it will
be a CPS decision.
Q72 Kelvin Hopkins: Moving back to
the three people who have refused to give evidence, refused to
be interviewed, you seem relaxed about that because presumably
you can take their evidence all in good time as necessary, and
you did not require them to come and see you?
Deputy Assistant Commissioner Yates:
I cannot put the thumbnails on and say "You have to talk",
because I cannot do that, but if it was appropriate to exercise
that power I think we would consider and do it but at this stage
it does not merit that.
Q73 Kelvin Hopkins: But you are relaxed
about that, all in good time?
Deputy Assistant Commissioner Yates:
I would rather they came and saw us, but these things happen.
Q74 Mr Prentice: As far as the CPS
is concerned, let's say you get to this 50%, the evidential test,
50% chance of bringing a successful prosecution—why are
you smiling?
Ms Dowd: Can I just say that we
do not have 50% tests. The code is whether there is evidence that
discloses a realistic prospect of conviction. If you look back,
Mr Yates said, "If there was a test that the CPS said 50%,
then ..." but we never use percentages. Our test is quite
clearly enunciated in the code, "realistic prospect".
Q75 Mr Prentice: To what extent does
the consideration of the public interest come into this when deciding
to go ahead with a prosecution? It is either in the public interest
or it is not in the public interest.
Ms Dowd: Well, the first stage
is the evidential test so if you do not pass that then there is
nothing to consider.
Q76 Mr Prentice: You pass it but
then you still have to make that judgment whether taking the matter
to court is "in the public interest" or not, and I just
wondered if you could say a few words about that?
Mr Husain: It is like any other
offence that we would be considering. There are a number of criteria
which are set out in the code for Crown Prosecutors which highlight
or point to certain indicators which we would take into account
and make a decision on the basis of.
Q77 Mr Prentice: But it would be
a CPS decision not the Attorney General, because we just heard
the Attorney General might be called in?
Ms Dowd: No. If the offence we
are considering requires the Attorney General's consent then he
will be asked for his consent and it will be up to him to give
that. Otherwise it is our decision, a CPS decision.
Q78 Mr Prentice: I see. What about
the offences that require specifically the Attorney General's
consent?
Ms Dowd: There is a whole raft
of offences that require Attorney General's consent—
Q79 Mr Prentice: But in relation
to this inquiry?
Ms Dowd: The difficulty is until
we consider all the evidence we cannot say what are the raft of
offences we would be considering and might be supported by the
evidence.
Mr Husain: You are asking us to
pre-judge the situation—
Mr Prentice: I am just trying to find
my way through this. This is all new to me.
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