Examination of Witnesses (Questions 260-279)
ASSISTANT COMMISSIONER
JOHN YATES,
MS CARMEN
DOWD AND
MR DAVID
PERRY QC
23 OCTOBER 2007
Q260 Chairman: Okay; we will drop you
a note. Let us go on to other territory. One of the things that
people have asked consistently about all this is how you got into
it really. What led you to think that it was worth supplanting
a parliamentary inquiry with a police inquiry in this area and
what kind of evidence did you have initially that made you think
that it was worth embarking on a police inquiry?
Assistant Commissioner Yates:
There are all sorts of things at the start of a police inquiry.
There will be credible allegations, there will be evidence available
in CCTV form, there are all sorts of things at the start of a
police inquiry, but in this case we had a number of complaints,
a number of other matters that were in the public domain, be it
the city academies issues and the like. In preparing for this
Committee, I went back to look at what I wrote on 21 March last
year as to why I started that inquiry. It is fairly short. It
may just be worth reading it in for the record in terms of what
was going through my mind and the decision-making process. I will
try and paraphrase it, but it will be fairly short. It says this.
It is dated 21 March last year, signed by me: "I am in receipt
of a letter from Angus MacNeil concerning possible abuses of the
above Act, the Honours (Prevention of Abuses) Act, by one or several
of the major parties. The political sensitivities around commencing
a criminal investigation in these circumstances are obvious. There
is a clear requirement for the police to act independently, impartially,
with the quite proper need to react to well-founded complaints
where it is proportionate to do so and where there is at least
some inference, intelligence/evidence of criminal wrongdoing.
Against this there is the risk that police action could be seen
to be politicised or as being used for the purposes of gaining
political advantage by one party over another." I then talk
about your Committee running, I then talk about Hayden Phillips.
I said, "In this case there appear to be prima facie
breaches of the above Act in terms of the Honours (Prevention
of Abuses) Act. Additionally, I am advised there may be wide breaches
of legislation regarding PPERA[4]
and corruption in public office." This was 21 March of last
year. "Conscious of the sensitivities, I have taken advice
from my own Director of Legal Services and have met today with
the Director of Public Prosecutions and his assistants. As ever
with such matters, the final decision is an operational one for
the police. The DPP, whilst making this clear, recognise the sensitivities
for the police but suggested it would be difficult in these circumstances
to ignore what are clearly serious matters. The advice of our
own legal services is that the police have an unfettered discretion
as to whether to carry out an investigation or not. This is a
very wide remit, and whilst I am not bound by the Code of Conduct
for Crown Prosecutors regarding the evidential test and the public
interest test, this does appear to me to be a sensible template
approach to take in this case. Additionally, I am bound to consider
issues around the proportionality of any police response. The
media impact and reputational issues for Her Majesty's Government
are not ones I take into account in reaching this decision, although
these matters will clearly have to be considered in due course",
and my decision, very briefly was to commence an investigation
into the allegations made by the MP Angus MacNeil and repeated
and contained with a national medium in relation to the potential
sale of honours for gain. "It is difficult at this stage
to consider the evidential criteria in any detailed sense because
an investigation has not commenced. There does appear, however,
to be sufficient material available to suspect potential criminal
wrongdoing by one, other or all the major political parties or
those acting on their behalf. The public interest, should such
matters be proved, is clearly a very high one and, thus, justifies
an impartial police investigation to establish whether or not
any offences have been committed." That was completed on
21 March last year and that was the thinking I was going through
around whether to start this inquiry or not. So I was trying to
balance the proportionality of a response against the potential
wrongdoing, the seriousness of the wrongdoing, bearing in mind
this is allegations of the sale of honours to fund political parties,
to purchase a vote in a legislative chamber. I considered that
to be extremely serious. So, that is how a criminal investigation
will start. We will then scope it, we will go and see what evidence
we can obtain, see what evidence we need to obtain, see what evidence
we must obtain, through whatever means, and then a constant period
of review throughout the investigation. This investigation had
a thorough review after three months by an independent person,
it had a peer review by a very, very senior, very experienced
chief constable from an outside force and throughout the whole
process of governance was strictly adhered to to ensure that we
did remain focused, we did remain proportionate and we did not
go on a fishing expedition into areas where we should not have
gone.
Q261 Chairman: That is very helpful.
I want to stay with the genesis of this for the moment. You are
clearly absolutely right to be robust in not letting political
considerations intrude onto a judgment that you would make, but
it turns out that you had a letter from an SNP MP and you had
some press cuttings, and we now know from what the CPS has told
us in its explanatory statement, when no charges could be brought
a year or so later, explaining the nature of any evidence test
that would have to be met, it seems to me, that you had nothing
approximating an evidential test when you began.
Assistant Commissioner Yates:
How would I get an evidential test when I had not investigated?
Q262 Chairman: No, but I am sure
we shall talk more about this, we shall talk about the way in
which this is a rather difficult test to pass. This is what the
CPS statement has told us at the end of the inquiry. So, what
I am asking you is: were these things not known at the outset?
Assistant Commissioner Yates:
Of course they are not. How would I know what is going to be there
when I have not investigated it?
Q263 Chairman: The nature of the
evidential test was not known at the outset?
Assistant Commissioner Yates:
Of course I know the nature of the evidential test, and that is
a matter that the Crown Prosecutors and counsel—
Q264 Chairman: The CPS has now told
us in its statement that, unless there is an unambiguous agreement,
you cannot bring charges. What I am saying to you is: where was
the evidence at the outset of an unambiguous agreement?
Assistant Commissioner Yates:
How would I have known that? What we have, what I have said is
there were inferences, there were indications that evidence may
be available. If policing was that simple, we would not need many
of us. If I just got an allegation and said, "There it is.
That will do"—. We have to go and investigate.
Q265 Chairman: When we had our initial
discussions with you we talked about some of these things and
we said to you how difficult it would be to secure any kind of
conviction.
Assistant Commissioner Yates:
You never know what you are going to find out. What I would say
is that my experience of conducting investigations, going back
many years, is that you go through in a stage process. You may
come across witnesses who suddenly want to tell you everything,
there may be an inside trap. For instance, the greatest successes
in police corruption have been around cops turning into super-grasses
in terms of telling us what has happened. How do we know that
is not going to happen in this case? What you do is you start
your inquiries; you then follow the evidence. This is a case where
that happened. I would not know from the start. Can I go back
to one thing you said at the start in terms of one letter. We
had over 20 complaints in this case in terms of the allegations.
Q266 Chairman: But those of us who
are not lawyers but do have a sense of how this world works were
fairly sure at the outset that, unless you had some evidence that
we did not know about, this would go nowhere. Can I remind you
of the exchange that we had here last July? I said to you this,
"We know that you are more likely to get a peerage if you
give large amounts of money to a political party, that is just
a historical fact, so discovering that would not be a revelation.
Finding people who will say that they engage in transactions of
that kind as discovered by the 1925 Act seems to be not entirely
likely". And you say, "It could be a very difficult
case to prove but we are some way down the line in terms of the
investigations".
Assistant Commissioner Yates:
And we were.
Q267 Chairman: But it went nowhere.
Assistant Commissioner Yates:
Look, I keep hearing this thing about an abortive police investigation.
If this was an abortive police investigation, that is the template
you judge us by, then, frankly, about 80% of our cases would be
abortive. What we do is we have allegations, credible allegations,
we investigate them, we find the evidence, we analyse it, we give
it to our colleagues here and they then apply the evidence test
and the public interest test. Many cases do not go beyond that
point. It seems to me that this is a case where justice has worked
pretty well.
Q268 Paul Flynn: Can I contrast the
investigation now to the allegations of Conservative Party honours
that you received on 30 July this year.
Assistant Commissioner Yates:
Which one is that; I am sorry.
Q269 Paul Flynn: This is a Crown
Prosecution Service one, but it was brief and it was over in a
couple of months, and that would seem to be proportionate and
reasonable. No stories of dawn raids, no continual leaks to the
press and hysterical reporting on this, in contrast to what happened
in this case. When do you make a judgment, looking at the likelihood
of a conviction, when we recall that there has only been one conviction
in the 82 years since the 1925 Act has been in place, and, on
the basis of that, the witness was willing to say, and said in
writing, that he had been offered an honour for a bribe and for
money? That is a really strong basis to go on, but we have seen
this case go on and on and on and there seems to be to us, having
looked at the Act in detail, very little chance of getting a conviction
on this. Why on earth should it have gone on all this time and
cost so much?
Assistant Commissioner Yates:
You have that exact binocular of hindsight which you can look
into. It is fair enough saying that now, but we did not know that
at the time. You are not aware, and I will not disclose, the nature
of the evidence we were gathering. There were a number of opportunities
that provided us, we felt, with good chances of providing sufficient
evidence for the prosecution to consider. It may be worth asking
Carmen about the evidential test and those matters, because I
do not think I have probably got the point across as well as I
would have liked.
Q270 Paul Flynn: Can I take another
point? When the case finished you said, "Some people have
been surprised about the intensity and length of the police investigation,
and I recognise that this has been an uncomfortable time for many
of those who came under the investigative spotlight." I am
not going to mention names here, but we have got letters from
the people who were being investigated. They would not have described
their experience as being uncomfortable; they have described it
as an ordeal. They describe themselves as being deeply distressed
by what happened—people hung out to dry with the dawn raids,
the continuous publicity and the bewilderment at accusations that
they say were unfair and untrue. Does it not suggest, if you use
the word "uncomfortable", that you have a cavalier attitude
to what these witnesses went through and these people who were
suspects?
Assistant Commissioner Yates:
Mr Flynn, when I joined this organisation I took an oath as an
officer of the Crown and there are four guiding principles behind
that oath. It is fairness, it is integrity, it is diligence and
it is impartiality, and that is the touchstone that I used throughout
this investigation, those four key issues. I am sorry if it was
an ordeal. I suspect anybody under a criminal investigation finds
it to be an ordeal, but I did my job. I am not sure I can say
any more.
Q271 Paul Flynn: But there has to
be a judgment. When this accusation was made originally, entirely
properly, by the Scottish Nationalist MP he had made a political
complaint and he advanced that by making a complaint to the police—an
entirely proper thing to do—but some judgment had to be
made whether there was a basis for this great Byzantine investigation,
and surely it would have been obvious from the previous cases
and the evidence you were getting that this was going to collapse?
Assistant Commissioner Yates:
Mr Flynn, throughout this inquiry I worked from day one very closely
with the Crown Prosecution Service and very closely with counsel.
We sought their advice throughout. We challenged ourselves, and
I challenged them: do we continue? Is it right? Is it proper?
Is it proportionate? It is not just me going off on a wild goose
chase thinking this is great fun, because it was not great fun
at all, it was bloody difficult. We sought their advice, they
provided their advice and, on their advice, whilst the operational
matters are for me, we continued our inquiries to their natural
conclusion.
Chairman: I am going to bring Carmen
Dowd in in just a second, but in case anyone has any questions
that relate to what Carmen may say, can I ask them to make them
now.
Q272 Mr Burrowes: On the evidential
test, back in July AC Yates was telling us that you were up to
35 to 40% looking at the bar of 50% in terms of sufficient evidence
for a prosecution. Between July and the time of the decision did
it go up? Was there a gap? Did we get beyond the 40%? Is there
a piece of evidence that suddenly meant that it went down to nil,
as AC Yates said it could go to? Or was there a judgment call
that changed from the CPS?
Ms Dowd: I think you will find
also in the record that we discussed the issue of percentages,
and the CPS do not engage in an exercise in assessing percentages,
and, in fact, Mr Yates almost retracted that sort of assessment.
Mr Burrowes: But that is the case. In
July we were at about 35 to 40%. It is on the record. Did we move
on from there or did we move away from it?
Q273 Chairman: I think what happened
is that John Yates referred to 35 to 40% and you said in your
evidence, "We do not do percentages." I think that is
the context for it.
Ms Dowd: Yes, and the reality
is that the CPS did not review the case with a view to making
a decision until all the evidence was available. So, I think we
made it perfectly clear at the private hearing in July that we
had made no assessment about the prospects or otherwise of a conviction
at that time and, therefore, on that basis, having not made an
assessment, I cannot answer your question as to whether that non-assessment
went up or went down because that was not my assessment.
Q274 Mr Burrowes: No, but like any
investigation, particularly this investigation, you were involved
at an early stage.
Ms Dowd: Yes.
Q275 Mr Burrowes: You came before
the Committee, you were seized of the facts, papers were passed
to you on a regular basis and you were not going to just be done
with not giving any advice at all, you must have been communicating
legal advice, as guidelines suggest you should do on any investigation?
Ms Dowd: Yes.
Q276 Mr Burrowes: You must have been
giving advice that essentially gave a green light to continue
those investigations since they were, obviously, heading towards
a recommendation of a charge?
Ms Dowd: I think the line of questioning,
if I may say, demonstrates a misunderstanding about what an investigation
is actually about. If your assumption is that an investigation
is in order to prove someone's guilt, then your assessment might
be right, but if a complaint has been made, a police officer is
duty bound to pursue all reasonable lines of inquiry. He might
find evidence that exonerates or damns, and that information is
passed to us to make an assessment. So, along the way when we
are giving legal advice, of course we are going to give advice
about pursuing lines of inquiry, where, as Mr Yates says, operational
matters are for him.
Q277 Mr Burrowes: But where you say
at the conclusion there is no evidence of any explicit agreement
to form the basis of a charge, surely you had been advising AC
Yates at an early stage about that and we would not have been
dealing with 40%, close to 10% for a charge.
Ms Dowd: We were not dealing with
percentages for a charge, we were dealing with waiting until the
investigation had been concluded so that we could fully review
the case. A case of this nature cannot be looked at in a piecemeal
fashion. There are lots of pieces of evidence in any case that,
when put together, look very different from when they sit alone,
and so it was not until the investigation had been concluded that
we sat and looked at all of the evidence and made our decision.
Q278 Mr Burrowes: But from July onwards
did the evidence change in terms of admissibility or was there
independent legal advice that came on board which changed the
situation?
Ms Dowd: I think Mr Perry was
on board in terms of advising all along the way, but I think you
are straying into areas of the process that I am not going to
engage in, simply because I think it is an erroneous position
to suggest that we had a percentage of evidence in July.
Chairman: I do not think we are straying
very far.
Q279 Mr Walker: Mr Yates, can you
just explain to me, because I am a layman, what is the justification
for dawn raids? I can understand if you are arresting a terrorist
suspect or you are arresting a gang of dangerous drug dealers,
but beating down the door virtually of prime ministerial advisers.
What possible threat do they pose to the safety of your officers,
so why the six a.m. raids?
Assistant Commissioner Yates:
Let me try and help you, Mr Walker, without talking in any way
about that particular case. Let us talk generically. If you are
presented as an investigator with what you believe to be an ongoing
conspiracy to pervert the course of justice, what you do not do
is put those who you suspect of that conspiracy on notice that
you are investigating those matters. That would be ridiculous.
What you do not do is say: "Why do you not pitch up at the
police station on Thursday and bring all the material and the
evidence that we might want with you so we can examine it on that
Thursday morning?" What you do is you use your powers effectively
for the effective conduct of the investigation, and on a conspiracy
to pervert the course of justice people under suspicion of those
type of cases will try and hide evidence, will try and mislead
you, in my experience—I am talking generically here—and,
therefore, you have the powers to use and you use them quite properly.
When you say "beat down the door", well, occasionally
you will beat down the door, and we did not in this case anyway.
The other matter is six a.m. I am faced with a bit of a difficult
choice here: because if individuals work in places that are extremely
high profile, I am looking at the most proportionate, least intrusive
way of conducting that type of arrest. Once I have made the decision
than an arrest is necessary, I am looking at the least intrusive
way to do that. Where do you think that is going to be? Of course
it is going to be somewhere that is private, that is not in the
full glare of publicity and where it is not going to cause further
embarrassment for people who are already in a very difficult place.
So, that is the choice I am faced with.
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