Examination of Witness (Question Numbers
1120-1134)
ASSISTANT COMMISSIONER
CRESSIDA DICK
QPM
18 JANUARY 2010
Q1120 Sir Alan Beith: Am I right
in assuming that if you had not had a steer from the CPS that
a charge of misconduct in public office might run then you would
have had to turn to the Cabinet Office and say, "There's
no likelihood of a successful Official Secrets Act prosecution,
this is clearly a conduct and discipline matter and it goes back
to you"?
Assistant Commissioner Dick: We
were interested in has a crime been committed and is it a relatively
serious crime. That is a big part of any scoping and a big part
of my decision making about whether we go forward into investigation.
If there had not been, on the advice of the CPS, any realistic
prospect at that stage of a crime being made out then, of course,
we would have said to the Cabinet Office, "This is not territory
for us".
Q1121 Sir Alan Beith: Can I be sure
about that, that in essence the Cabinet Office had not pressed
a button starting a process which is very difficult to stop?
Assistant Commissioner Dick: I
think you can be sure on the basis that you have probably picked
up that there have been a number of worrying—for the Home
Office—leaks in the relevant period which have not resulted
in extensive or long investigations. If we get a referral like
this we will look to see has a crime been committed as far as
we can tell, how serious is that, what are the prospects of finding
out what happened, who has done it, what is the likelihood of
a successful prosecution, where does this sit in terms of our
priorities, how intrusive will it be for us to carry on, all those
sorts of questions. Frequently we will say, and I can certainly
imagine in these cases, "I am sorry, there's no reasonable
prospect of us getting anywhere here. This is not a matter for
the police". I know that is a position that has been taken
and I know it is a position that the Commissioner would want us
to take.
Q1122 Sir Alan Beith: This case did
ring some of those bells, did it not, like the bell about how
seriously intrusive would it be, in this case exercising the whole
issue of parliamentary privilege?
Assistant Commissioner Dick: At
a later stage, yes, absolutely.
Q1123 Sir Alan Beith: It must have
been fairly obvious to you that it was going to lead you in that
direction.
Assistant Commissioner Dick: No,
I do not think that was true. If we go back to the terms of reference,
I noticed, Sir, you had said in a previous hearing that these
cases are notoriously difficult to investigate, and you are absolutely
right, it is extremely rare after a leak for us to be able to
effectively investigate what has happened. Often if we are convinced
that there is a good suspect we will think about going to a proactive
inquiry, a covert inquiry, if all the circumstances justify that.
In these terms of reference I was being very clear that we were
not going to proactivity at that stage. It was something that
I discussed with the Deputy Commissioner at some length, that
we did not want to go to intrusive methods given that at that
stage we did have, unusually, five linked, it appeared, and some
very good investigation already done by the Cabinet Office and
that by moving forward in what we would call a reactive investigation
I could see that we might end up arresting people. We could do
that without going into all kinds of high-tech and covert methods.
Q1124 Sir Alan Beith: Are you quite
clear in your mind that something which is quite important to
the Cabinet Office, that is dealing with actions which impede
the efficient conduct of government business, is not a matter
for you at all?
Assistant Commissioner Dick: I
think this is something that we have all reflected on considerably
since this case. Again, I speak as somebody who has worked in
a place where there have been leaks going on and I understand
how incredibly difficult that can make the working environment
and how strong the desire is to find whoever is doing this so
that we can start having open conversations again and have confidence
and trust in each other and, indeed, be trusted by the public.
Q1125 Sir Alan Beith: We are not
discussing whether this is a good thing or a bad thing—I
think from most points of history it is rather a bad thing—but
whether it is the business of the Metropolitan Police to investigate
such matters in the belief that this is a crime.
Assistant Commissioner Dick: I
would say it is our business to investigate if we believe a crime
and, indeed, a serious one has been committed. I think one of
the bits of learning that has come out of this case is the new
Protocol makes it very clear that we will only be dealing with
the very serious end of crime. I stand by the decisions that we
made. I do not think we will find ourselves in this position again,
partly because the Director has made it so very clear in relation
to press and political leaks just how high he sees the threshold.
At that early stage, if we go back to October 2008, with the knowledge
we now have, which I know is impossible but hypothetically, we
would probably have said, "In relation to the misconduct
issues not appropriate, this is unlikely to lead to prosecution".
Q1126 Sir Malcolm Rifkind: A few
moments ago in answer to Sir Alan Beith you gave reasons why you
thought it was appropriate to have an offence of misconduct in
a public office.
Assistant Commissioner Dick: Yes.
Q1127 Sir Malcolm Rifkind: If we
can assume that issues of Official Secrets or national security
are not involved, can you tell us why you feel—if you feel—an
employee in the public sector who leaks information which has
nothing to do with national security or terrorism should be liable
to the possibility of facing criminal charges when an employee
in the private sector, who does exactly the same leaking information
belonging to his own company which may cause equal chaos and problems,
should not be subject to criminal prosecution? What is the public
interest that justifies the one and not the other depending on
who happens to employ you when national security is not involved?
Assistant Commissioner Dick: I
think it is the essence of the common law offence of misconduct
in a public office which is applied in a variety of different
circumstances which is that the public do have an expectation
of how their public officials, their paid public servants, should
behave. If there is a gross abuse of that trust—I am almost
talking as an ordinary citizen here—I do not see that it
is unreasonable to suggest that should be subject to criminal
sanction. However, it is clear that it is a high threshold and
it will be used sparingly. If you look through some of the cases,
and I do have lots of case studies which I could show you, I think
you would agree that it is entirely proper given what these people
have done that they should be prosecuted and in actual fact there
is often not a suitable other criminal charge. I do think the
position of a public servant is different from somebody working
in a business.
Q1128 Chairman: Including being liable
to life imprisonment?
Assistant Commissioner Dick: That
is another matter. Certainly sometimes people who are charged
with misconduct offences do end up in prison. I am not aware of
very lengthy sentences, but I absolutely do understand that it
is potentially life imprisonment. I am getting out of my territory.
More of you are lawyers than I am. I think it is very unlikely
that anybody would end up in prison for a very, very long term
for a misconduct offence, they would be there for a different
offence.
Q1129 Ann Coffey: The offence is
misconduct in public office but, of course, an elected representative,
ie Damian Green, was caught up in this so we are not simply talking
about that applying to a civil servant. It is a very important
area because people would say that elected representatives must
be able to freely state what they think, what they believe in,
and if they get information they should be entitled to pursue
that. In many ways people look to Members of Parliament to take
up cases of injustice. How do you think that the misconduct in
public office offence applies to elected representatives?
Assistant Commissioner Dick: It
is important to remember in this case that Mr Green was arrested
for aiding and abetting, counselling or procuring, and conspiracy
rather than for the substantive office of misconduct in public
office. The lesson from this case is that clearly although the
Director says that the investigation was thorough, the investigation
was inevitable, and I agree with that, he also says that the threshold
is very high and he makes it clear that such things should be
used very sparingly. It is going to be extremely unusual in the
future, I would have thought, for a politician who becomes engaged
with somebody who is leaking in these sorts of circumstances to
find themselves subject to arrest and criminal inquiry. This case
has clarified lots of things for us. None of that is me saying
that what we did was wrong, I stand by all the decisions that
we made at that time, but I have also had to reflect on this and
it is quite clear that the public do want politicians to be challenging,
they want them to be using information, they want them to be accessing
information, and the law around human rights is developing all
the time and public interest favours more and more people getting
access to information.
Q1130 Ann Coffey: It is very difficult
for a politician to do their job without being given information
and you could argue that in the wider public interest it is important
that people feel able to give information to elected representatives
who can raise it without being arrested and charged with conspiracy.
Maybe the problem with this, and you talk about higher standards
so clearly there has been a lot of reflection on what happened,
is that it is important to separate out how people behave in their
job, ie how civil servants do their job in a professional way,
and not get into a situation in which because they may not do
their job within their terms of reference it then becomes a criminal
investigation. There may be a lot that went wrong with using this
offence which was clearly used for all sorts of purposes because
we heard evidence from people who came before that there was a
certain amount of confusion about what, in fact, they were investigating
and they might have been investigating misconduct in public office
with a view to see if they could be getting some evidence for
some other offence being committed.
Assistant Commissioner Dick: I
think the key point that the Director focuses on is damage done.
He makes it clear that there was an abuse of trust. He goes through
a number of points that are proven in relation to this offence,
but overall he feels that the damage done was not sufficient.
I think that means politicians, if they are engaging in that kind
of activity, have to be very careful. I know there has been discussion
in this Committee that a politician will know when it is a matter
of national security and when it is not, but I am not sure that
is absolutely right. Actively encouraging someone to leak from
a government department is always going to be a perilous activity.
Q1131 Sir Alan Beith: It is always
going to be what?
Assistant Commissioner Dick: I
think it is quite a perilous activity for a politician.
Q1132 Sir Alan Beith: It may be perilous
but are you trying to change the definition of what constitutes
an Official Secrets Act offence?
Assistant Commissioner Dick: No,
not at all. Certainly not.
Ann Coffey: We have talked a lot about
parliamentary privilege and the fact that one of the things we
have as Members of Parliament is the ability to raise issues and
go into waters that may be difficult for other people, but no
Member of Parliament can make judgments about the information
that they receive. Surely saying that this is a very dangerous
activity for politicians is a way of silencing us, making us not
take those kinds of risks or go into those kinds of areas, not
take up those issues that people think we should take up without
the police coming and accusing us of conspiracy.
Chairman: We may be taking you beyond
your competence.
Ann Coffey: I was using it to make a
statement, Chairman.
Q1133 Chairman: May I just remind
everyone, of course, Mr Green was arrested, there was an investigation
and no proceedings were taken against him.
Assistant Commissioner Dick: No.
Q1134 Chairman: He is innocent by
our system.
Assistant Commissioner Dick: Absolutely.
Chairman: It is important to keep all
of that in mind. Assistant Commissioner, thank you very much for
your evidence, the Committee is very grateful. Perhaps I could
just say for the benefit of the public that concludes the public
hearings that the Committee will be holding. We hope to publish
our report by the end of March.
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