Appendix: Government response
The House of Commons Home Affairs Committee published
the report of its inquiry into the policing process of the Home
Office leaks inquiry on 16 April 2009.
The inquiry focused on:
1. The background to the investigation
2. The response by the Home Office and the Cabinet
Office up to the point at which the police were invited to consider
an investigation
3. The police investigation
This document sets out the Government's response
to the recommendations in the Committee's report. The Government
welcomes the Committee's report. Our detailed response to the
recommendations is below.
We are grateful to the Committee for their work
and the care with which they have drawn up their report. Since
the report was published Keir Starmer, QC, Director of Public
Prosecutions, has decided not to pursue criminal charges against
Mr Green and Mr Galley. The DPP has given a very full explanation
of his decision and his consideration of all the evidence. This
was not, of course, available to the Committee, so we are attaching
it to the Government's response. We particularly want to draw
the Committee's attention to the DPP's conclusions about the appropriateness
of the decision to call in the Police.
Following the conclusion of the case, Mr Galley
has been dismissed for gross misconduct and the Home Secretary
has asked HMIC to conduct a review.
Response to the Committee's conclusions
and recommendations:
Involvement of Home Office and Cabinet Office
We do not condone the unauthorised disclosure
of departmental information; this is an abuse by officials of
their positions of trust, and we support the use of disciplinary
action in such instances. We also understand the corrosive effect
that persistent leaking of information has on the efficient working
of departments, not least as it sows mistrust between Ministers
and officials. The Home Secretary made plain to us her anger at
the leaks. (Paragraph 13)
The Government welcomes the Committee's recognition
of the impact leaks can have on the efficient and effective working
of Departments. Unauthorized disclosures of information are contrary
to a civil servant's obligations under the Civil Service Code.
They are also potentially criminal acts. It is not only trust
between Ministers and officials that can be affected by such disclosures
but also the trust between the citizen and Government. Each citizen
has a reasonable expectation, for example, that information provided
to Government in confidence or information that is relevant to
their safety as citizens should be properly protected.
In this case the Home Office appears to have followed
best practice for investigating leaks, as set out in the Cabinet
Office's Memorandum to our sister Committee. Nevertheless, we
are concerned that growing frustration in both the Home Office
and the Cabinet Office may have led officials to give an exaggerated
impression of the damage done by the leaks that could reasonably
be presumed to have emanated from the Home Office. (Paragraph
13)
There is a clear mismatch between Sir David's
description of the sort of material that he suspected had been
leaked from the Home Office and the Cabinet Office's letter to
the police stating "there has been considerable damage to
national security already as a result of some of these leaks".
Sir David suggested that this phrase reflected the concerns not
about the 20-plus items he had identified but about the other
material that had been leaked from somewhere in Government. However,
the Cabinet Office letter did not refer to other departments:
only to the Home Office. (Paragraph 14)
We recognise that the Metropolitan Police might
still have decided to pursue an investigation on the basis of
the damage done to confidence between Ministers and officials
and the fear that the leaker(s) might have access to more sensitive
information that had not yet been disclosed. We also do not know
whether the oral briefing given to the police was less hyperbolic
than the letter. However, we think it was unhelpful to give the
police the impression that the Home Office leaker(s) had already
caused considerable damage to national security. (Paragraph 15)
The Government does not accept these conclusions.
In requesting the Metropolitan Police to consider an investigation
into leaks, the Cabinet Office and the Home Office were aware
of a number of leaks that had taken place over a long period of
time for which no source or sources had been discovered. The leaks
in question included those which have as a result of this investigation
been attributed to Mr Galley but also included a number of others
for which there is still no attributed source—a point the
Committee itself recognises in its conclusion at paragraph 18.
Some of these other leaks involved national security information
and were very damaging. The information in question was held in
a limited number of Departments including the Home Office.
At the outset of the investigation, neither Cabinet
Office nor Home Office officials nor the Metropolitan Police knew
whether there was a single source or multiple sources for the
information leaked. What was known was that there was an individual
(or individuals) working close to the Home Secretary's office
who appeared to be systematically leaking information. It could
not be ruled out that responsibility for the leaks, including
the leaks of national security information, mentioned above, lay
with this person or these persons. Equally, it was clear that
an individual (or individuals) close to the Home Secretary was
determined to breach the position of trust they were in in order
to leak information. There was a significant risk that their central
position in the Home Office gave them access to highly classified
information which they would be prepared to leak. The purpose
of the investigation was to establish the identity of the individual
or individuals so that appropriate action could be taken and further
damaging leaks prevented.
Cabinet Office officials discussed these matters
in detail with the Metropolitan Police before the letter requesting
them to consider investigation was sent. The Metropolitan Police
were fully aware of the background to all the leaks, including
those of national security material, and accepted that they, together
with the risks of further unauthorised disclosure of sensitive
material, were sufficient to justify their involvement.
When Parliament revised the Official Secrets Act
in 1989, it narrowed the scope of the section on unauthorised
disclosure of government information, focusing on specific types
of damaging information—relating to security and intelligence,
defence, international relations and crime and special investigation
powers. Unauthorised disclosure of these types of information
remained subject to criminal proceedings. This was in line with
what the then Home Secretary told the House in December 1988 when
introducing second reading of the bill, namely that it would "remove
the protection of the criminal law from the great bulk of sensitive
and important information", none of which would "any
longer have the protection of the criminal law". (Paragraph
16)
The Government notes the Committee's conclusion.
The determination of criminal charges following a police investigation
is of course a matter for the independent prosecuting authorities
and, in the case of offences under the Official Secrets Act, for
the personal decision of the Attorney General.
The Cabinet Office's guidance to departments says
that it is appropriate to involve the police in leak investigations
when they involve "a serious and damaging impact on the functioning
of a Department and … suspicion of leaking sensitive information".
However, it is easy to imagine circumstances in which a leak of
sensitive information could lead to a damaging impact on the functioning
of a Department without falling within the categories laid down
in statute. The Cabinet Office's guidance therefore seems to leave
open the possibility of involving the police in an investigation
without any suspicion—let alone evidence—that a criminal
offence under the Act has taken place. We recommend that the Cabinet
Office revise its guidance to preclude this possibility. (Paragraph
17)
The Government does not accept the Committee's conclusion
leading to this recommendation. Any decision to approach the police
to ask them to consider an investigation is not taken lightly
and as a matter of practice would be the subject of discussion
with the police before the approach was made. Ultimately, the
decision to investigate, including the determination of the potential
offences which justify an investigation, is a matter solely for
the police.
We note that the only person arrested for leaking
information from the Home Office was a junior official providing
administrative support, who had security clearance up to the level
of 'secret'. At this stage of the police investigation, it is
impossible to say exactly what information Mr Galley did disclose.
He may not have been responsible for all the 20-plus leaks identified
by Sir David—and, indeed, Sir David said it was not proven
that all those leaks emanated from the Home Office. This,
together with the fact that there has been no indication so far
that Mr Galley is linked to the 'other' national security-related
leaks that have caused such concern to the Cabinet Office over
the last few years, leaves the possibility (to put it no higher)
that there are other officials within government leaking more
sensitive information. We are unable to judge whether the controversy
over the investigation into Mr Galley and Mr Green makes it less
likely that those who have disclosed information damaging to national
security will ever be discovered. (Paragraph 18)
The Government remains concerned that there have
been leaks of information, including information damaging to national
security, for which the sources have yet to be discovered. The
Committee has acknowledged the corrosive effect of leaks in its
conclusion at paragraph 13. The Government will continue to investigate
the sources of leaks, including with the assistance of the police
where appropriate.
Parliamentary aspects
The aspects of this affair bearing on Parliamentary
privilege are not for us to explore. We note, however, that from
the outset of the investigation into Mr Green the police were
aware of the political sensitivity of the inquiry and were anxious
to adopt a cautious approach, including trying to make preliminary
contacts with Parliamentary authorities immediately Mr Green's
potential involvement in the case became apparent. It is very
regrettable that there should have been any misunderstanding over
the issue of consent to search Parliamentary premises, but, in
seeking consent before applying for a warrant, the police were
following the procedure set down in statute. (Paragraph 24)
The Speaker has subsequently issued a Protocol
stating: "In future a warrant will always be required for
a search of a Member's office or access to a Member's parliamentary
papers including his electronic records and any such warrant will
be referred to me for my personal decision". The Speaker's
Protocol goes on to detail the procedures to be followed when
the police indicate any intention of seeking a warrant to search
Parliamentary premises, and during the conduct of any search.
We hope that this Protocol will help the police to determine the
right process to follow in future. (Paragraph 25)
In the special circumstances of this case, we
urge the Government to table a motion that would allow the House
to decide whether to refer this matter to the Committee on Standards
and Privileges. (Paragraph 26)
We welcome the Committee's conclusion that the police
followed the procedure set down in statute. Details of the policing
operation and any future policing decisions are a matter for the
police service working with the framework of the law.
Police Investigation
However, in such circumstances all decisions made—who
was informed, when, and of precisely what—may be, and have
been in this case, subject to question and interpretation as interested
parties probe to see whether anyone could have influenced or hindered
the police operation. We recommend the adoption by the police
of a protocol setting out the exceptional circumstances in which
a politician would be informed of any police operation while it
was underway. (Paragraph 30)
the involvement of so many officers and, in particular,
the heavy involvement of so many high-ranking officers in disseminating
information on 27 November caused us some concern. Presumably,
the presence of DACs and others was deemed necessary because of
the political sensitivity of the operation. This is another reason
why it would be sensible not to keep politicians informed during
police operations. (Paragraph 31)
Denis O'Connor, Her Majesty's Chief Inspector of
Constabulary will undertake a review of the lessons learned from
the investigation conducted by the Metropolitan Police Service
into the leak of Home Office documents by Mr Christopher Galley.
Further information on the terms of reference is below.
We asked the police whether we could see a copy
of the report on the operation made by Mr Ian Johnston, Chief
Constable of the British Transport Police, at the instigation
of Sir Paul Stephenson. Mr Johnston referred us to the Commissioner
of the Metropolitan Police, who declined to give us the report.
We believe it would be useful to publish the Johnston report as
soon as practicable so that lessons may be drawn from this case
more widely. (Paragraph 32)
We note that the standards committees of the Greater
London Authority and Metropolitan Police Authority found that
Mr Johnson [Boris Johnson] had not breached their code of conduct,
but some of his actions were unwise, and his motives could have
been misinterpreted. (Paragraph 36)
The publication of the report is a matter for the
Metropolitan Police and the publication of any documents would
be in line with the normal rules and procedures that govern Metropolitan
Police handling of information.
Proposed review by Home Secretary
The Home Secretary told us that she was minded
to instigate a wide-ranging review into the conduct of the leak
inquiry once any court cases resulting from it had finished. AC
Quick and Mr Johnson welcomed this, and so do we. We consider
that the review should cover both the approach to the inquiry
within Government and the procedures adopted by the police, and
should address all the issues dealt with in this Report. (Paragraph
37)
Denis O'Conor, Her Majesty's Chief Inspector of Constabulary,
supported by his small team of relevant experts, will undertake
a review of the lessons learned from the recent Metropolitan Police
investigation in to Home Office leaks. The review will report
to the Home Secretary.
Decision on prosecution—Mr
Christopher Galley and Mr Damian Green MP, 16/04/2009
The Director of Public Prosecutions, Keir Starmer,
QC, has decided there should be no charges brought against MP
Damian Green or Home Office civil servant Christopher Galley,
following a Metropolitan Police Service investigation into leaks
of information from the Home Office.
INTRODUCTION
1. The Metropolitan Police Service has investigated
a number of leaks of information from the Home Office. That investigation
led to the arrest of Mr Christopher Galley, a Home Office civil
servant, on 19 November 2008 for an alleged offence of misconduct
in public office. When interviewed by the police Mr Galley admitted
passing various documents to Mr Damian Green, an Opposition MP.
Mr Green was arrested on 27 November 2008 for an alleged offence
of aiding and abetting, counselling or procuring the alleged offence
by Mr Galley and also on suspicion of conspiring with Mr Galley
for him to commit misconduct in a public office. He made no comment
in interview.
2. In the course of the investigation by the
Metropolitan Police Service searches were carried out at Mr Galley's
home address and at Mr Green's home address, his Constituency
offices and at his Parliamentary office. Various exhibits were
seized at each of these addresses. Mr Green claimed that Parliamentary
Privilege attached to most of the documents seized from his Parliamentary
office. That claim delayed the investigation in this case, but
I have now read and reviewed all of the relevant documents recovered
from the searches of the various addresses of Mr Galley and Mr
Green.
3. Having reviewed those documents and all of
the other evidence available in accordance with the Code for Crown
Prosecutors, I have concluded that there is no realistic prospect
of a conviction against either Mr Galley or Mr Green for the offences
alleged against them. Accordingly I have decided that charges
should not be brought against either Mr Galley or Mr Green for
those alleged offences.
4. The following paragraphs explain the reasons
for my decision.
5. It is important to bear in mind that the question
I have addressed is whether there is enough evidence resulting
from the investigation to provide a realistic prospect of conviction.
That is the test set out in the Code for Crown Prosecutors issued
by me as Director of Public Prosecutions under section 10 of the
Prosecution of Offences Act 1985. It is not my function to make
findings of fact and I have not done so. I have reached conclusions
based on my analysis of the evidence presented to me and I have
set out those conclusions later in this document. As in every
case, both Mr Galley and Mr Green are entitled to be presumed
innocent and that is the basis upon which I have approached this
case.
THE ALLEGED LEAKS
6. A series of articles in the national press
between October 2007 and November 2008 referred to the contents
of restricted and confidential documents that appeared to have
been leaked from the Home Office. The Permanent Secretary, Sir
David Normington, was seriously concerned about the damage that
was being done by these leaks. He was also concerned that whoever
was responsible for these leaks 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. The
assistance of the Metropolitan Police Service was requested and
a police investigation followed.
7. The police investigation focussed on six apparent
leaks.
8. Leak One:
On 14 October 2007, an article by Ben Leapman was published in
the Sunday Telegraph. It was about the asylum and immigration
system. It referred to a leaked Home Office memorandum which,
it was claimed, had been "seen by this newspaper". There
followed extensive quotes from the leaked document. The article
reported that government critics claimed that the document exposed
continuing failures in the asylum system even though the number
of refugees entering the country was at a 14-year low. Mr Damian
Green MP was quoted in the article as "the Conservative immigration
spokesperson" commenting on "the chaos that still affects
the asylum system". He added that "Ministers have toughened
up their rhetoric but underneath the same old policies are producing
the same old results".
9. The leaked document was the "Asylum and
Immigration High Level Monthly Performance Report July 2007".
It was marked "Restricted-Management". A copy was recovered
by the police from Mr Green's Parliamentary office bearing the
name 'Galley' in manuscript. In his interview with the police,
Mr Galley denied passing this document to anyone. As noted above,
Mr Green made no comment in interview.
10. Leak Two:
On 11 November 2007, an article by Justin Penrose was published
in the Sunday Mirror. It alleged that up to five thousand
illegal immigrants had obtained security jobs in the UK. The article
went on to allege that "Officials failed to check if any
foreign workers in the security industry were legally allowed
to be in Britain. The scandal surfaced when the agency that vets
security guards admitted it had not been checking if the applicants
were in the country legally." A spokesman for the Home Office
was quoted as saying "Ministers have ordered checks on all
existing security licence holders and these will be considered
shortly".
11. Follow up articles appeared in the Daily
Mail on 13, 14 and 15 November 2007 referring to "leaked
documents" and "a fresh Home Office document leaked
to the Daily Mail last night". Mr Green is quoted
in many of these articles. For example, the Daily Mail
reported on 13 November 2007 that "Tory immigration spokesman
Damian Green said last night: 'The Home Secretary has been caught
red-handed putting the short-term interests of the government
before the long-term task of solving a real problem'." There
were also follow up articles in The Times, The Independent,
the Daily Express, the Daily Telegraph and the Evening
Standard on 14 and 15 November 2007.
12. The leaked document was a copy of high level
submissions to Home Office Ministers in August 2007, updating
them about various issues relating to Security Industry Authority
(SIA) licences. It was marked 'Restricted'. In his police interview
Mr Galley admitted sending this document to Mr Green at the House
of Commons. Mr Green made no comment in interview.
13. Leak Three:
On 10 February 2008, an article by Melissa Kite was published
in the Sunday Telegraph. It was about an illegal immigrant
working in the House of Commons and was based on leaked documents.
The article claimed that "The Government stands accused of
a cover-up after leaked documents, obtained by the Sunday Telegraph,
showed that Liam Byrne, the immigration minister, was informed
immediately of the case of the Brazilian woman, a cleaner, when
she was arrested at Parliament 10 days ago. Yet the Home Office
confirmed the security breach one of the most serious to affect
Westminster only after being contacted by this newspaper last
night".
14. The article carried comments from Mr Green
in the following terms: "The Conservatives demanded urgent
action to prevent further breaches. Damian Green, the shadow immigration
minister, said: 'Of all the Home Office disasters, this has the
biggest security implications. Ministers like to talk tough about
cracking down on employers but it is clear that the system is
failing in our most sensitive buildings. What makes this even
worse is that ministers' first instinct was to cover it up'."
15. The leaked document was a copy of a report
to Home Office Ministers dated 31 January 2008 about an investigation
into an allegedly illegal worker at the Houses of Parliament.
It was marked "Restricted-Investigation". In his police
interview, Mr Galley admitted posting this document to Mr Green
and acknowledged that he "knew it would obviously end up
in the press". Mr Green made no comment in interview.
16. Leak Four:
On 20 April 2008, an article by David Leppard was published in
The Sunday Times. It described a list of Labour MPs identified
by the party Whip's office as 'plotting' against the Counter-Terrorism
Bill. The following week the same newspaper published another
article by Mr Leppard referring to a "leaked Whitehall document
marked restricted" and prepared for the Home Secretary. This
was said to have suggested that the government might make concessions
on its counter terrorism reforms to win over disaffected opponents.
17. The leaked document was a Briefing on the
Counter-Terrorism Bill marked 'Restricted'. In his police interview,
Mr Galley denied passing this document to Mr Green, but he did
admit that he passed him a Whips' list of the names of MPs who
were undecided about their votes in respect of the Counter-Terrorism
Bill. Mr Galley told the Police that he had access to this document
which was kept in a safe belonging to the Special Advisers: he
admitted photocopying the list and handing it to Mr Green. Mr
Green made no comment in interview.
18. Leak Five:
On 1 September 2008, The Daily Mail published an article
based on a draft letter from the Home Secretary to the Prime Minister,
which it claimed had been "leaked to the Daily Mail",
predicting that the credit crunch would lead to a rise in crime.
A similar article appeared in the Daily Telegraph referring
to a "leaked Home Office letter". Mr Green was quoted
in the Daily Mail in the following terms: "Damian
Green, the Tory immigration spokesman, said: 'This rips the veil
off the complacent comments we have been getting from the Home
Office ministers about how their performance is improving. It
is clear that almost all areas of the Home Office things are going
to get worse'."
19. The leaked document was a copy of a "Draft
letter to No 10" dated August 2008. It was not marked 'Restricted',
but from its contents it would have been clear to anyone reading
it that it was a confidential document. In interview, Mr Galley
admitted passing this document to Mr Green. Mr Green made no comment
in interview. A copy of the draft letter was found in Mr Green's
Parliamentary office.
20. Leak Six:
On 15 November 2008, The Daily Mail published an article
by Christopher Leake based on a 'leaked' Home Office document
suggesting that the levels of most violent crime had risen under
the Labour government.
21. The leaked document was a Briefing Pack for
incoming Ministers at the Home Office. It was marked "Restricted
Policy". In his police interview, Mr Galley denied leaking
this document to anyone. Mr Green made no comment in interview.
THE ALLEGED OFFENCES
22. As already noted, Mr Galley was arrested
for an alleged offence of misconduct in public office and Mr Green
was arrested for an alleged offence of aiding and abetting, counselling
or procuring the alleged offence by Mr Galley and of conspiring
with Mr Galley for him to commit the offence of misconduct.
23. This is not a case which falls within the
framework of the Official Secrets Acts and I therefore intend
to focus on the offence of misconduct in public office. This is
a common law offence which has existed for many years. As the
Court of Appeal noted in the case of Attorney Genera's Reference
No.3 of 2003 [2004] EWCA Crim 868, the circumstances in which
the offence may be committed are broad and the conduct which may
give rise to it is diverse.
24. There are four essential elements of the
offence, namely:
i. the suspect must be a public official acting
as such;
ii. s/he must have wilfully breached his/her
public duties;
iii. the breach must have been such a serious
departure from acceptable standards as to constitute a criminal
offence; and to such a degree as to amount to an abuse of the
public's trust in the public official; and
iv. there must have been no reasonable excuse
or justification.
25. The third and fourth elements are critical.
They make it clear that not every act of misconduct by a public
official is capable of amounting to a criminal offence. There
is a threshold and it is a high one. In particular, as the Court
of Appeal recognised in the case of AG's Reference No.3 of
2003, to attract criminal sanctions, the misconduct in question
would normally have to amount to an affront to the standing of
the public office held and to fall so far below the standards
accepted as to amount to an abuse of the public's trust in the
office holder.
26. In this case, where the alleged misconduct
in question is the leaking of information to an Opposition MP
and, apparently through him, to a national newspaper, some assistance
on the threshold for criminal culpability is provided by Article
10(1) of the European Convention on Human Rights (incorporated
into our law by the Human Rights Act 1998), which strongly protects
the freedom of the press. It does so by safeguarding the right
of everyone to receive and impart information and ideas without
interference. Although this right is not absolute it can be restricted
where restriction is prescribed by law, legitimate, necessary
and proportionate where it touches on matters of public interest
which the press has a legitimate interest in publishing, it attracts
special protection. That is because of the well-recognised and
special role of the press as a public watchdog. As a result any
criminal proceedings which restrict the ability of the press to
publish information and ideas on matters of public interest calls
for the closest scrutiny. In particular, the need for a criminal
prosecution must be convincingly established. However, that does
not mean that restricted and/or confidential information cannot
ever be protected by the imposition of criminal sanctions in cases
of unauthorised disclosure.
THE EVIDENCE
27. In this case, I have concluded that there
is evidence upon which a jury might conclude that the conduct
of Mr Galley in passing various documents to Mr Green amounted
to a clear breach of his public duties. The documents in question
were clearly restricted and/or confidential and in leaking the
documents to Mr Green, Mr Galley seriously breached the trust
placed in him by the public.
28. I have also concluded that there is evidence
upon which a jury might conclude that Mr Green aided or abetted
Mr Galley's conduct and, in particular, his breach of the public's
trust. There is, additionally, evidence upon which a jury might
conclude that there was an on-going relationship between Mr Galley
and Mr Green, which Mr Green encouraged in the hope and expectation
that Mr Galley would continue to supply restricted and/or confidential
information to him.
29. As the Court of Appeal recognised in the
Attorney General's Reference No 3 of 2003, it will normally
be necessary to consider the likely consequences of any breach
of duty by public officials in deciding whether the conduct falls
so far below the standards of conduct expected as to constitute
a criminal offence. Therefore, I have considered the extent to
which there has been any actual damage arising or the extent of
any potential damage that could have arisen as a result of the
conduct under investigation in this case.
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. However, it has to be recognised that some
damage to the proper functioning of public institutions is almost
inevitable in every case where restricted and/or confidential
information is leaked and, for that reason, such damage will rarely
be sufficient, without more, to reach the high threshold required
before a criminal prosecution for misconduct in public office
can be justified as appropriate. This was recognised by the European
Court of Human Rights in the cases of Roemen and Schmidt v
Luxembourg (25 May 2003), Ernst v Belgium (15 July
2003), Tillqack v Belgium (27 November 2007) and Voskuil
v Netherlands (22 February 2008). It is important that public
officials should not leak restricted and/or confidential information.
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.
35. In those circumstances, I have concluded
that there is no realistic prospect of a conviction in Mr Galley's
case because his alleged conduct is not capable of reaching the
threshold necessary to make out the criminal offence of misconduct
in public office. Equally, I have concluded that there is not
a realistic prospect of a conviction against Mr Green for aiding
and abetting Mr Galley's conduct or for conspiring with Mr Galley
for him to commit the offence of misconduct.
CONCLUSION
36. For the reasons set out above, I have concluded
that there is no realistic prospect of a conviction against either
Mr Galley or Mr Green for the offences alleged against them. Accordingly
I have decided that charges should not be brought against either
Mr Galley or Mr Green for those alleged offences.
37. My conclusion should not be misunderstood.
The unauthorised leaking of restricted and/or confidential information
is not beyond the reach of the criminal law. The fact that the
overall evidence of damage or potential damage in this case is
not such that the offence of misconduct in public office is made
out should not be taken to mean that the absence of sufficient
damage actual or potential will always lead to a decision not
to prosecute. Where the threshold identified in the case of AG's
Reference No.3 of 2003 is met, a criminal prosecution would
be justified. Each case will have to be carefully considered on
its facts. My conclusion is simply that, on the particular facts
of this case, there is no realistic prospect of a conviction against
either Mr Galley or Mr Green.
38. In coming to a conclusion in this case, it
has not been necessary for me to resolve the question of the legality
of the searches of Mr Galley's home address and Mr Green's home
address, his Constituency offices and at his Parliamentary office.
I do not propose to do so. However, as noted above, once the pattern
of leaks was established in this case it was inevitable that a
police investigation would follow. There has been a thorough investigation
and, without it, I would not have been able to reach a conclusion
on the particular facts of this case.
39. The conclusion that charges should not be
brought against either Mr Galley or Mr Green in respect of the
six leaks investigated by the Metropolitan Police Service is mine.
I have been assisted by Gavin Millar QC (a leading media law specialist),
James Lewis QC (on various matters relating to Parliamentary privilege),
and by senior and experienced lawyers at the Crown Prosecution
Service. However, I have not been asked to consult, nor have I
consulted, any Minister before coming to my conclusion.
Keir Starmer QC, Director of Public Prosecutions,
16 April 2009
| 
