House of Commons - Police Searches on the Parliamentary Estate

Police Searches on the Parliamentary Estate - Committee on Issue of Privilege Contents

2 Leaks, Government and the Police

What's wrong with leaking

9. In its Report on Leaks and Whistleblowing in Whitehall, the Public Administration Select Committee recognised that leaks are an "occupational hazard" in government, but its conclusion was that—

Leaks are damaging to trust within government and trust in government. In particular, they endanger ministers' confidence in an impartial Civil Service.[7]

10. The Public Administration Select Committee made several recommendations aiming to balance civil servants' duty of confidentiality with robust protection for whistleblowers acting in the public interest.[8] In its own investigation into Policing Process of Home Office Leaks Inquiry, the Home Affairs Committee stated—

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.[9]

The leaks from the Home Office

11. A number of leaks during 2007 and 2008, apparently emanating from the Home Office, led to mounting concern over whether the department could keep effective control over sensitive information. Sir David Normington, the Home Office Permanent Secretary, described to the Home Affairs Committee conversations he had had with the then Home Secretary (Rt Hon Jacqui Smith) where they exchanged their "frustration and anger" over what was happening—

From my point of view that is despicable, it is disloyal, it is completely undermining the work of the Home Office and it is completely unacceptable, I do not need to be told that by the Home Secretary.[10]

12. Apparently there had been 31 leaks of information from the Home Office over the four years up to September 2008, of which 20 had occurred between February 2006 and September 2008; all of the leaks, with the exception of one marked 'secret', were either 'unclassified' or 'restricted'.[11]

The Home Office asks the Cabinet Office

13. The Home Office tried first to identify the leaker(s) using its own resources. When that approach was not successful, the Home Office turned for help to the Cabinet Office. The Home Affairs Committee expressed concern that officials may have given an exaggerated impression of the damage done by the leaks.[12] We share that concern and we consider that Home Office officials were at fault in allowing an exaggerated impression to be formed by the Cabinet Office of the damage done by the leaks.

The Cabinet Office asks the Metropolitan Police (8 October 2008)

14. The Cabinet Office contacted the Metropolitan Police in late September or early October 2008.[13] Following the initial conversations, Chris Wright, then Director of Security and Intelligence at the Cabinet Office, wrote on 8 October 2008 to Robert Quick, then Assistant Commissioner for Special Operations in the Metropolitan Police Service, to ask the Metropolitan Police to investigate.[14]

CABINET OFFICE: CONFIDENTIAL INVESTIGATIONS — NOW UNCLASSIFIED

8 September 2008 *
* Note: Date mistyped on original letter above. This should read 8 October 2008.
Leaks

I am writing to ask whether you will consider agreeing to an investigation into a series of leaks, probably originating in the Home Office, which is causing considerable concern to the Cabinet Secretary.

A number of recent leak investigations, including some conducted by your officers, have raised questions about the security of sensitive information in the Home Office. Whilst not all the leaks which concern us merit, taken individually, investigation by the police, we are concerned that there is an individual or individuals in the Home Office with access to sensitive material who is (are) prepared to leak that information. We are in no doubt that there has been considerable damage to national security already as a result of some of these leaks and we are concerned that the potential for future damage is significant^†. The risk of leaking is having an impact on the efficient and effective conduct of Government business, affecting the ability of Ministers and senior officials to have full and frank discussions on sensitive matters and undermining necessary trust. You will not be surprised to hear that we are also concerned that there must be risk to information about sensitive operations which, if leaked, could give rise to grave damage.

If you are content to agree to an investigation into these matters, my staff will be happy to brief your officers on the detail. Equally, I shall be happy to discuss with you any arrangements for the oversight of the investigation.

Knowledge of this request is held very tightly here, in the Home Office and in the Security Service and will continue to be so.

A copy of this letter goes on a personal basis to David Normington, Jonathan Evans and to Robert Hannigan and Ciaran Martin here.

Information contained in this document may be subject to exemptions under the Freedom of Information Act (in particular the National Security exemptions in sections 23 and 24). Before considering information in this document for release under the Act, you should contact the Intelligence and Security Secretariat in the Cabinet Office for advice.

Chris Wright
^† emphasis added

15. Damian Green told us that the "very, very strong statement from the Cabinet Office" that there had been considerable damage to national security already as a result of some of these leaks was false: "it is quite clear both in the Johnston Report and in the DPP's response that the idea that any of the leaks I was engaged with endangered national security was simply false".[15] The Home Affairs Committee described the impression given in the Cabinet Office letter that national security had been damaged by a Home Office leaker as "hyperbolic" and "unhelpful".[16]

16. Chris Wright later told Denis O'Connor, HM Chief Inspector of Constabulary, that it was in the minds of those involved at that stage that a fresh police investigation might find a single source both for the more recent Home Office leaks and for the previous cross-government leaks of 'Secret' material with which they might have been associated.[17] Sir Gus O'Donnell, the Cabinet Secretary and Head of the Home Civil Service, told us that he took responsibility for the actions of his staff, and he argued that Chris Wright's letter was correct in identifying that there had been damage to national security from the leaks. Sir Gus O'Donnell explained that the pattern of leaks emerging from late 2007 was very similar to that seen in an earlier period, from 2005 to 2007, of up to 40 leaks, possibly from the Home Office, including some leaks of highly sensitive material of importance to national security. The Cabinet Office did not, at the time they contacted the police, know the identity of the source of the leaks. Sir Gus O'Donnell further argued that "the letter from which Mr Green quoted was therefore correct in identifying that there had been damage to national security from these leaks".[18]

17. While we can understand the Cabinet Secretary's concern arising from the wider pattern of previous leaks, the reference to national security in the letter from the Cabinet Office to the Metropolitan Police Service of 8 October 2008 was ill-judged. We agree with the Home Affairs Committee that giving the impression that national security had been damaged by the Home Office leaks was hyperbolic and unhelpful. Civil servants who perpetrate leaks are quite rightly liable to disciplinary action, with consequences up to and including dismissal.

18. The second strand of the justification given in the 8 October letter for calling in the police was that—

The risk of leaking is having an impact on the efficient and effective conduct of Government business, affecting the ability of Ministers and senior officials to have full and frank discussions on sensitive matters and undermining necessary trust.

Sir Gus O'Donnell told us that this sentence provided an additional explanatory statement for the police.[19] Deputy Assistant Commissioner John McDowall told us that the view of those making the allegation that the effective conduct of government was being undermined was "a subjective view and not one which we, the police, can actually form a view upon, because we simply have no experience of conducting effective government".[20] Robert Quick, however, admitted that it was a consideration which influenced the investigation.[21] In our view the impact of leaks on the conduct of Government business is not, and never can be, a sufficiently weighty reason in itself to justify a police investigation.

Cabinet Office guidance

19. The threshold for calling in the police to investigate leaks was set out in unpublished Cabinet Office guidance on leak investigations policy and procedures (GLIPP).[22] Robert Hannigan, the Cabinet Office Head of Security, Intelligence and Resilience, told us that while the detailed guidance on investigations was in the process of being revised, new general guidance had been supplied to the Public Administration Select Committee.[23] GLIPP sets out the roles and corresponding responsibilities of all individuals in regard to combating and deterring leaking. The relevant passage of GLIPP from October 2008 stated that the police investigate cases that breach the Official Secrets Act "or involve criminal behaviour", which Sir Gus O'Donnell suggested to us might cover, for example, insider dealing or leaking market-sensitive material.[24]

20. In November 2009 the Cabinet Office produced a new guidance paper in a form suitable for publication, entitled "Official information: standards of conduct and procedures", which has annexed to it the protocol on leak investigations recommended by Denis O'Connor, HM Chief Inspector of Constabulary.[25] This new guidance states that "if a civil servant is found to have perpetrated a leak he or she can expect to face disciplinary action, with consequences up to and including dismissal".[26] The guidance requires a Department to make an impact and damage assessment that is both realistic and honest.[27] This impact and damage assessment will be "crucial" in deciding whether to refer a matter to the police.[28] The new guidance states explicitly that embarrassment or reputational damage to the Government, or to a particular Department, would not provide sufficient grounds for referral to the police,[29] and the guidance refers to HM Chief Inspector of Constabulary's conclusion that—

there should be a presumption in favour of the police not being involved unless there are (a) reasonable grounds for believing an offence under the Official Secrets Act 1989 has been committed or (b) reasonable grounds for believing a serious criminal offence has been committed as an integral part of a leak(s), such as the example where an official is subject to bribery or corruption, or very exceptional cases which seriously threaten the UK in economic or integrity terms.[30]

We wholeheartedly agree with the tone and content of the Cabinet Office guidance paper on official information standards of conduct and procedures, in the revised form issued in November 2009, and we endorse in particular the need for an honest and realistic assessment of any damage caused by leaks.

National security leaks remain unsolved

21. Sir Gus O'Donnell told us that it had been hoped that the investigation launched with the letter of 8 October 2008, taking as its starting point some of the embarrassing leaks, would lead to the source of the national security leaks from the earlier period. He admitted that "in that sense, the investigation failed" because the leaks admitted to by Christopher Galley did not cover national security.[31] When giving evidence in December 2009, more than a year after the events which led to our inquiry, Sir Gus O'Donnell told us that he remained concerned about the source of those serious leaks, which had at that date still not been accounted for, even after the investigation and dismissal of Christopher Galley.[32] We are concerned by the Cabinet Office's continued failure to identify the source of other leaks across Government of more highly classified material.

The Police and the Cabinet Office—scoping and negotiation

22. Sir Gus O'Donnell told us that the Cabinet Office did not determine the conduct of the investigation, nor were they consulted by the police on the decisions to make arrests.[33] As he put it, "you completely lose control when you hand over to the police".[34] He told us that if he had been consulted once the facts of Christopher Galley's leaking had become known, he would personally have preferred taking disciplinary action under the civil service code to making arrests.[35] It is clear, however, that the Cabinet Office remained in touch with the police after the 8 October letter, as a process of scoping and "negotiation" continued up to at least the time of Chris Wright's second letter to the Metropolitan Police Service, sent on 29 October 2008.

23. Assistant Commissioner Cressida Dick, who was then Deputy Assistant Commissioner for Security and Protection, stood in for Assistant Commissioner Robert Quick in his absence from 9 to 24 October and remained involved in the case until about 12 November 2008, when she handed over the supervision of the investigation to Deputy Assistant Commissioner John McDowall.[36] Assistant Commissioner Cressida Dick told us that "we had not ruled out that whoever the suspect might be for those five linked [leaks] they could have been involved in others of the 31 [leaks], including those which might pertain to the Official Secrets Act".[37] Deputy Assistant Commissioner John McDowall told us that following the letter of 8 October from Chris Wright police officers had "negotiated" the scope of the investigation with the Cabinet Office, reducing its focus from some 32 leaks to "four or five that looked to be the most obvious points to go and investigate further".[38]

24. Although GLIPP prescribed the convening of a case conference, Robert Hannigan, the Cabinet Office Head of Security, Intelligence and Resilience, told us that in this case there were a number of informal meetings between Cabinet Office staff and the Metropolitan Police Service but no formal case conference, a difference which Robert Hannigan described as "very, very marginal".[39] We deplore the Cabinet Office's failure to follow its own guidance by not calling a case conference which could have ensured a properly balanced approach was taken to investigating the Home Office leaks.

The Cabinet Office identifies the likely culprit

25. In the meantime, a Cabinet Office internal investigator reported that, although he had not found hard evidence of guilt, Christopher Galley was likely to have been responsible for leaking the Home Secretary's draft letter to the Prime Minister, which was the basis for the Daily Mail article on 1 September 2008.[40] Christopher Galley was named as a strong suspect in four other leaks of 'unclassified' or 'restricted' material in the period October 2007 to April 2008.[41] Denis O'Connor considered that "ironically, the identification of Christopher Galley by an internal investigator illustrates the value of using the skills of an experienced investigator and reinforces the benefits of in-house capabilities".[42] The actual leaks associated with Christopher Galley are set out below.

From DPP Statement, 16 April 2009:

The police investigation focussed on six apparent leaks.

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".

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.

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.".

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.

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.

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."."

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."."
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.

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 "suspected of 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.

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.

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."."

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.

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.

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.

26. Not all the leaks in question have since been accounted for, but the ones relevant to the search of Damian Green's office have been largely admitted by Christopher Galley, an administrative officer in the Home Office with clearance to see documents with a security classification of up to 'secret'.[43] To that extent, it turns out that Chris Wright had been correct to say in his 8 October letter that that there was an individual in the Home Office with access to sensitive material who was prepared to leak; but none of these leaks attributed to Christopher Galley were of material classified 'Secret' and nor were any of them in fact "damaging" in terms of the Official Secrets Act (see paragraph 38 below). There was therefore no basis for the concern expressed in the 8 October letter that the potential for future damage was significant.

The Police and the Crown Prosecution Service (22 October 2008)

27. Following the identification of Christopher Galley as a suspect, police officers held a consultation with the Crown Prosecution Service on Wednesday 22 October, as part of their continuing scoping exercise. The consultation concluded that there did not appear to be sufficient evidence to constitute an offence under the Official Secrets Act 1989, but the behaviour of a serial leaker might amount to a common law offence of 'misconduct in public office'.[44]

28. Sir Gus O'Donnell mentioned the possible motivation of Christopher Galley in leaking Home Office documents: "the concerns here were not about the conduct of official business, but about procuring personal benefit, in this case employment, from the leaking of official material".[45] Robert Quick's written evidence set out the "hypothesis" that Galley was being exploited but Sir Ian Johnston's own assessment of the evidence was that "the relationship between the two was, if you like, at its worst equal but probably was driven more by Galley than by Mr Green".[46] As Damian Green told us, "over a two and a half year period we met on four occasions, and on all four occasions at his instigation I think, so the idea that there was some close permanent relationship between us was always false".[47]

29. In our view the Metropolitan Police made the wrong decision after their discussions with the Crown Prosecution Service on Wednesday 22 October 2008. We reach that conclusion for these reasons: the source of the leaks had been found, but not by the police; the damage done was not as severe as the Cabinet Office had made out; the evidence was not strong enough to use the Official Secrets Act; and nor was the evidence strong enough to support a successful prosecution for misconduct in public office.

30. After Christopher Galley had been arrested and interviewed, the Metropolitan Police approached the Crown Prosecution Service for advice on the type of offence that might have been committed by the MP implicated by Christopher Galley. As far as Denis O'Connor could ascertain, the CPS were not asked for their views on proportionality or potential value.[48]

Official Secrets and Parliamentary Privilege — the Sandys case

31. The Official Secrets Act 1989 was a long-awaited and welcome improvement on the Official Secrets Act 1911, which notoriously provided in section 2 that wrongful communication of any official information was a misdemeanour punishable by imprisonment for up to two years.

32. In his evidence to us, Damian Green referred to the Sandys case, which arose in the run-up to the Second World War from a clash between parliamentary privilege and the Official Secrets legislation then in force.[49] On 27 June 1938, Mr Duncan Sandys raised a complaint on the floor of the House, as a matter of privilege, that the Attorney-General had asked Mr Sandys about the "highly secret" sources of information Mr Sandys had evidently used in a draft of a parliamentary question (about shortages of anti-aircraft guns and instruments) which Mr Sandys had enclosed in a letter to the Secretary of State for War.[50] Mr Sandys also complained that the Attorney-General had informed Mr Sandys that he had a legal obligation to reveal the sources of his information and that the Attorney-General had threatened Mr Sandys with prosecution under section 6 of the Official Secrets Act 1920, punishable with imprisonment of up to two years - a threat subsequently withdrawn by the Attorney General, once Mr Sandys had sought the Speaker's permission to raise the matter in the House.[51] Sir Donald Somervell, the Attorney General, denied having used the Official Secrets Act to threaten Mr Sandys.[52]

33. The House agreed on 30 June 1938 to a motion from Mr Sandys referring the detail of Mr Sandys' allegations and the general question of the applicability of the Official Secrets Acts to Members to a special Select Committee on the Official Secrets Act.[53] This Select Committee agreed a first report in August 1938, dealing with the actual case of Mr Sandys, and a further report in April 1939 addressing the general applicability of the Official Secrets Acts to Members of Parliament in the discharge of their parliamentary duties.[54] In its 1939 Report, the Committee stated its opinion that the soliciting or receipt of information was not a proceeding in Parliament.[55] The Committee concluded —

"it would be inadvisable to attempt by legislation or otherwise to define the extent of immunity from prosecution under the Official Secrets Act to which Members of Parliament are or ought to be entitled. It would be extremely difficult, if not impossible, to draw a line between acts which are or ought to be permissible and acts which are or ought to be criminal. The privileges of Parliament, like many other institutions of the British constitution, are indefinite in their nature and stated in general and sometimes vague terms. The elasticity thus secured has made it possible to apply existing privileges in new circumstances from time to time. Any attempt to translate them into precise rules must deprive them of the very quality which renders them adaptable to new and varying conditions, and new or unusual combination of circumstances, and indeed might have the effect of restricting rather than safe-guarding Members' privileges, since it would imply that, save in circumstances specified, a Member could be prosecuted without any infringement of the privileges of the House."[56]

34. The continuing significance of the Sandys case was mentioned several times in evidence to us.[57] In his written evidence, the former Clerk of the House Sir William McKay explained that the House had agreed with the 1938-39 select committee that the working definition of 'proceedings' should be extended to communications between one Member and another or between a Member and a minister so closely related to some matter pending in or expected to be brought before the House that they form part of the business of the House. [58]

Official Secrets and the Official Opposition

35. Sir Gus O'Donnell quoted to us the remarks made (by Rt Hon David Davis, the Member for Haltemprice and Howden) in a BBC interview on 28 November 2008—

Our job when this information comes to us is to make a judgment, is it in the public interest that this should be known publicly or not? In about half the cases, we decide not, because we think there are reasons, perhaps of national security, or military or terrorism reasons, not to put things in the public domain.[59]

In his own written evidence to us, David Davis claimed that it was "much more common than is generally supposed" that a Member of Parliament decided to keep secret data brought to them that was properly secret.[60] Sir Gus O'Donnell told us that, while the David Davis interview might have exaggerated the proportion of leaks he had received dealing with national security, he would be very concerned if the true figure were half of that.[61] He also agreed that David Davis' claim on the BBC was made only after the arrest of Damian Green.[62] The comments made by David Davis on the BBC, the day after the arrest of Damian Green, do not excuse the decision made by the Cabinet Office on 8 October to call in the police to investigate the apparent unauthorised disclosure of unclassified or restricted documents to certain newspapers.

36. Damian Green had also made clear to us that he thought genuine security concerns ought to be respected—

I think a responsible attitude of any politician of any party, but particularly an opposition politician receiving [leaks], is obviously to make a test of our national security, whether this endangers national security, or perhaps in particular whether it breaks the Official Secrets Act and clearly that would then be a criminal offence to make it public.[63]

Reform of the Official Secrets Act

37. The reform of the Official Secrets Acts was considered a number of times over the years, notably by the Franks Committee which reported in September 1972.[64] The Government brought forward in 1988 a new legislative framework to protect official information. In introducing the Second Reading of the 1988-89 Official Secrets Bill, the then Home Secretary, Rt Hon Douglas Hurd, asked the House "to agree in principle that the criminal law should be prised away from the great bulk of official information".[65] Since then, the Freedom of Information Act 2000 has transformed the legislative framework within which sensitive official information is protected.

38. Under the reformed Official Secrets Act, a person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a "damaging" disclosure of any information in his possession by virtue of his official position: a disclosure is "damaging" if it would, or would be likely to, cause damage to the work of the security and intelligence services, or damage the capability of the armed forces to carry out their tasks, or lead to loss of life or injury to members of those forces or serious damage to the equipment or installations of those forces, or endangers the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests or endangers the safety of British citizens abroad.[66]

39. Sir Gus O'Donnell told us he was "just not sure" if there was a need for legislative sanctions to punish leaks which fell below the Official Secrets Act threshold but which deserved more severe treatment than provided in the disciplinary provisions of the Civil Service Code.[67]

40. The Director of Public Prosecutions confirmed in his statement of 16 April 2009 that "this is not a case which falls within the framework of the Official Secrets Acts".[68] Denis O'Connor explained that "the police remained engaged because they felt it was their duty once involved to go where the evidence took them and because any withdrawal could have been misinterpreted adversely as partiality one way or another".[69]

41. According to Denis O'Connor, the rationale for continuing a police investigation into Home Office leaks below the "Secret" level stemmed from two Cabinet Office documents: a draft protocol between SO15 and the Cabinet Office which referred to cases "where it is believed that an offence under the Official Secrets Act 1989 or any other serious criminal offence may have been committed", and Cabinet Office guidance to Government Departments suggesting that the threshold for calling in the police is where leaks amount to "serious and damaging interference with the functions of government".[70] Despite what Denis O'Connor described as "doubts about the wisdom of continuing with the investigation",[71] the police operation continued on the basis of CPS advice that they could prosecute the culprit(s) for a serious but lesser-known criminal offence under common law — misconduct in public office.

Misconduct in public office

42. The common law offence of misconduct in public office is traceable back at least as far as a 1783 decision by Lord Mansfield in the case of an accountant who corruptly concealed from his superiors in the office of the Receiver and Paymaster General of the Forces that he knew that certain sums of money had been omitted from the final accounts: "a man accepting an office of trust, concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office; this is true by whomever and in whatever way the officer is appointed".[72]

43. The current CPS guidelines on misconduct in public office set out the elements of the offence-

a) a public officer acting as such,

b) wilfully neglects to perform his duty and/or wilfully misconducts himself,

c) to such a degree as to amount to an abuse of the public's trust in the office holder,

d) without reasonable excuse or justification.[73]

44. The CPS guidance on charging practice states -

Like perverting the course of justice, misconduct in public office covers a wide range of conduct. It should always be remembered that it is a very serious, indictable-only offence carrying a maximum sentence of life imprisonment. A charge of misconduct in public office should be reserved for cases of serious misconduct or deliberate failure to perform a duty which is likely to injure the public interest.[74]

45. The CPS guidance suggests further that prosecutors should consider carefully whether they have an alternative course of action-

Before deciding to proceed with a charge of misconduct in public office you should consider whether the acts complained of can properly be dealt with by any available statutory offence. If the seriousness of the offence can properly be reflected in any other charge, which would provide the court with adequate sentencing powers, and permit a proper presentation of the case as a whole, that other charge should be used unless the facts are so serious that the court's sentencing powers would be inadequate; or it would ensure the better presentation of the case as a whole; for example, a co-defendant has been charged with an indictable offence and the statutory offence is summary only.[75]

46. Ultimately, the Director of Public Prosecutions, Keir Starmer QC, having taken independent advice from James Lewis QC and Gavin Millar QC, concluded that there was no realistic prospect of a conviction against either Christopher Galley or Damian Green for the offences alleged against them and that accordingly charges should not be brought against either Christopher Galley or Damian Green.[76] In his Statement announcing the dropping of the investigation, the Director of Public Prosecutions described the third and fourth elements of the misconduct in public office offence (so serious as to constitute a criminal offence, and no reasonable excuse) as critical; "not every act of misconduct by a public official is capable of amounting to a criminal offence".[77]

47. While our own inquiry is concerned with parliamentary privilege, the Director of Public Prosecutions gave some consideration to the Human Rights Act in relation to freedom of the press. Since the alleged misconduct in question was the leaking of information to an Opposition MP and through him to a national newspaper,[78] the Director of Public Prosecutions argued that -

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.[79]

48. One factor in the Director of Public Prosecutions' sensitivity to the Article 10 point might have been the collapse of the prosecution in R. v Murrer and Kearney in which Mr Justice Southwell made a ruling under the Human Rights Act 1988 that the prosecution was in breach of Article 10 of the European Convention on Human Rights, relating to press freedom.[80] The formal acquittal of the accused was announced on Friday 28 November, the day after the arrest of Damian Green, but seems not to have sounded any alarm bells with those pursuing the Home Office leak investigation.

49. The number of prosecutions for misconduct in public office has risen over recent years, from five or fewer in each year from 1998 to 2004 to ten in 2005, eight in 2006 and twenty-one in 2007.[81] Some recent cases have involved dereliction of duty by police officers, which may have contributed to a degree of heightened awareness of this little-known offence.[82] Sir Gus O'Donnell told us that he had never had experience of the offence of misconduct in public office being used before.[83] Assistant Commissioner Cressida Dick was familiar with the offence of misconduct in public office, having had knowledge of cases in relation to police officers and other public officials: "it has been used in a wide variety of circumstances including financial and sexual misconduct as well as unauthorised disclosures of information".[84] Assistant Commissioner Dick told us that in the Metropolitan Police district in the 18 months leading up to December 2009 "we had about 58 people arrested and about 31 people charged with it". In her view, misconduct in public office is not a particularly obscure offence, but rather one that is useful and important: "there are occasions, and they may be limited, when it is an entirely proper and respectable, if I can put it that way, offence to use, including in unauthorised disclosure cases where there has been a gross abuse of trust".[85]

50. As we have noted, the Director of Public Prosecutions announced on 16 April 2009 that he had decided not to bring charges against either Christopher Galley or Damian Green for the offences alleged against them, because there was no realistic prospect of a conviction against either of them. He had nonetheless concluded that there was evidence upon which a jury might find that the conduct of Christopher Galley, in leaking the documents to Damian Green, had seriously breached the trust placed in him by the public and that there was evidence upon which a jury might find that Damian Green had aided or abetted Christopher Galley's conduct.[86] In the Director of Public Prosecutions' view, "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".[87] A contrasting view was expressed to us by Assistant Commissioner Cressida Dick —

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.[88]

51. The Director of Public Prosecutions recognised that the leaked documents undoubtedly touched on matters of legitimate public interest; that Damian Green's purpose in using the documents was apparently to hold the government to account; and the extensive coverage of the issues by the national press, along with comments from Government and Opposition sources, was evidence of public interest in the contents of the leaked documents.[89]

52. According to the DPP's statement of 16 April 2009, the threshold for criminal proceedings in such circumstances, bearing on the freedom of the press to publish information and ideas on matters of public interest, is particularly high.[90] He concluded that the overall evidence of damage to the integrity of arrangements of handling restricted and/or confidential information within the Home Office was not capable of meeting the threshold necessary for the institution of criminal proceedings against Christopher Galley and Damian Green.[91]

53. Given the considerations advanced by the Director of Public Prosecutions on 16 April 2009 when dropping the case — freedom of the press, public interest, the limited extent of damage done and the high threshold for criminal charges — it is hard to understand why all this was not clear on 22 October 2008 when the police consulted CPS lawyers. Sir Ian Johnston says that the police consultation with the CPS on 22 October 2008 was on a 'generic basis'.[92] Deputy Assistant Commissioner John McDowall of the Metropolitan Police Service told us that "when it became clear that it looked as though offences against the Official Secrets Act were not at that time made out we sought the advice of the Crown Prosecution Service who informed us that, on the face of it at least, there was the possibility that offences of misconduct in a public office were present".[93] We consider that if sufficient rigour had been shown on 22 October 2008 the conclusion reached on 16 April 2009 — that the facts failed to reach the standard required for prosecution—could have been reached six months earlier.

54. The Public Administration Select Committee was concerned that the use of misconduct in public office charges in connection with the leaking of information might blur the boundaries established by the Official Secrets Act 1989, which was passed with the intention of limiting the areas in which it would be a crime to leak official information.[94] We agree with the Public Administration Select Committee and we wish to emphasise that the common law offence of misconduct in public office should not be used in relation to allegations of leaking of information in order to subvert the clearly expressed will of Parliament to limit the application of the Official Secrets Act to protecting only information whose disclosure is likely to be damaging to the security and intelligence services, to the armed forces, to the interests of the United Kingdom abroad or to the prevention and detection of crime.

55. One consequence of latching on to the common law offence of misconduct in public office was what Deputy Assistant Commissioner John McDowall described as its "potential severity".[95] Damian Green confirmed in his evidence to us that he was told by the police while under arrest that he faced life imprisonment.[96]

56. The CPS guidance on the elements required for misconduct in public office sets out the third element of the offence as wilful neglect and/or misconduct "to such a degree as to amount to an abuse of the public's trust in the office holder" but the Director of Public Prosecutions gave a fuller version in his Statement of 16 April 2009: "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".[97] We recommend that the published CPS guidance should be updated to include the Director of Public Prosecutions' position on the offence of misconduct in public office, as set out in his Statement of 16 April 2009.

57. The Bribery Bill [Lords], currently before this House, may help to clarify some aspects of the law on corruption. Last year the Joint Committee on the Draft Bribery Bill recognised that the criminal law includes a wide range of offences that are likely to overlap with the proposed bribery offences under the draft Bill, including the common law offence of misconduct in public office.[98] The Joint Committee noted that the Law Commission had decided to concentrate on developing new proposals for bribery, rather than undertaking a broader rationalisation of the law, and that the Law Commission had concluded that some degree of overlap with other offences was unavoidable and best resolved by prosecutors deciding on the appropriate charge before commencing criminal proceedings.[99] In our view the current law on misconduct in public office remains unsatisfactory, not least because it is punishable with up to a life sentence. We recommend that the Law Commission re-visit its 1997 recommendation that misconduct in public office be made a statutory offence, in the light of developments of the past dozen years.

The Cabinet Office asks the Metropolitan Police to continue (29 October 2008)

58. Deputy Assistant Commissioner John McDowall told us that the police could not be sure, until they had reached the end of their investigative effort, whether the case that they had prepared would meet the high threshold required to prosecute for misconduct in public office.[100] Assistant Commissioner Cressida Dick told us in January 2010: "I do not think we will find ourselves in this position again, partly because the Director [of Public Prosecutions] has made it so very clear in relation to press and political leaks just how high he sees the threshold".[101]

59. Sir Gus O'Donnell told us that if the police had gone to him and made clear there was no national security aspect to the case, and that they were considering offences relating to misconduct in public office he would have advised the police, first, to consult the Crown Prosecution Service — "because personally I would be very, very surprised if there is anything there" — and secondly, if the case did not involve national security, "my indication would be you are probably wise to consider halting the investigation^".[102] If the Cabinet Secretary had been adequately briefed about the stage the leak investigation had reached by 22 October 2008, it could and should have been called off. Instead, and unfortunately, the process of "negotiating" or "scoping" the investigation culminated in another letter from Chris Wright, sent to Deputy Assistant Commissioner Cressida Dick at the police's request on 29 October. Given that both parties knew what the internal investigation had found, it is clear from the reference to the 1 September leak that Christopher Galley was now the principal suspect.

CABINET OFFICE: CONFIDENTIAL INVESTIGATION — NOW UNCLASSIFIED[103]
29 October 2008

Further to my letter dated 08 September 2008 (which should have been dated 08 October) addressed to AC Robert Quick and his agreement to undertake an investigation, I am happy to confirm the following investigation terms of reference for the investigation that ——— and ——— from Cabinet Office have drafted together.
The terms are written against the background of a number of serious, unauthorised disclosures, which potentially have originated from the Home Office. We understand that at our request the Metropolitan Police intend to:
First:
Conduct a scoping exercise to assess if any criminal offences have been committed.
Secondly:
Subject to the above and if appropriate
undertake an investigation to identify the source/sources of these unauthorised disclosures taking the unauthorised disclosure of the draft Home Secretary's letter to the Prime Minister reported in The Times on the 1^st September 2008 as a starting point;
to identify the chain of that disclosure and any other related unauthorised disclosures; and
if necessary, appropriate and authorised, proactive measures should be taken to achieve these outcomes.

Chris Wright

60. Assistant Commissioner Dick said she would not describe the process of confirming the terms of reference as a "negotiation"—

I have got no reason to think at all that the Cabinet Office officials at any stage tried to influence the terms of reference. They were aware of what we were intending to do and, as I said, we all thought that was very important. If you look at the terms of reference they are carefully drafted and make it clear, for example, that we are not going to deal with all 31 of these, we are going to start with the one on 1 September, which was the one which appeared to be going to give us the best initial leverage, and we were going to identify the chain of that disclosure and any other related ones. Then it also makes the point that we will only go to proactive measures, by which I mean covert measures, if it is necessary, appropriate and authorised. It was really a matter of trying to get clear with them what we would and would not be doing.[104]

Assistant Commissioner Cressida Dick told us that "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'."[105] None of the leaks of which Christopher Galley was suspected had inflicted any damage on national security. There was no basis for the concern that the potential for future damage to national security was significant. The Cabinet Office was wrong on 29 October to continue to press for a police investigation of the recent Home Office leaks, and it was a mistake for the Metropolitan Police Service to act upon the Cabinet Office's request.

7 PASC Report, paras 8, 12 Back

8 PASC Report, pages 34 to 39 Back

9 HAC Report, para 13 Back

10 HAC Report, Q 14 Back

11 O'Connor Report, para 7.1.2 According to Denis O'Connor, the vast majority of the Home Office leaks were of a low security classification, and the one previously classified as Secret no longer posed a threat to national security at the time of referral (O'Connor Report, para 8.1.2) For the six leaks investigated by the police see the extract from the DPP statement of 16 April 2009 below after paragraph 25 of this Report. Back

12 HAC Report, para 13 Back

13 Ev 161 (Robert Quick) para 1 Back

14 PASC Report, Ev 68 to 69. Chris Wright moved on in 2009 from the Cabinet Office to a post in the Ministry of Defence; Robert Quick resigned as Head of Special Operations at the Metropolitan Police Service in April 2009. Back

15 Q 7 Back

16 HAC Report, para 15 Back

17 O'Connor Report, para 7.1.6 Back

18 Q 818 Back