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

3  Arrests and searches elsewhere

The arrest of Christopher Galley

61.  Sir Ian Johnston concluded that the arrest of Christopher Galley was lawful and proportionate in the circumstances. The rationale for the arrest included Christopher Galley's having been one of a very few people with access to a "tracked changes" version of a draft letter from the Home Secretary to the Prime Minister, which was the subject of a report in the Daily Mail on 1 September 2008.[106] Sir Ian Johnston was critical that some of the records relating to the arrest were "not as complete or as consistent in some of the documentation as they might be".[107] His view nonetheless was that the arrest was lawful, considering that the arresting officer would have formed the honest suspicion, based on reasonable grounds, of Christopher Galley's guilt of an offence, and that it was necessary to arrest him in order to allow the prompt and effective investigation of an offence, in order to prevent evidence being destroyed, and to obtain evidence by questioning.[108]

62.  Sir Ian Johnston believed that Christopher Galley's arrest was proportionate, because arrest was the only effective way to interview him, to recover property and to limit his opportunity for collusion, which was important because of the reasonable basis to suspect Christopher Galley's wide involvement with other leaks.[109] The police were not aware at the time of the Cabinet Secretary's view (mentioned above) that they would have been wise to drop the investigation once it was clear that national security was not in question.[110]

The arrest of Damian Green

63.  In his review of the decision to arrest Damian Green, Sir Ian Johnston concluded there was a lawful basis for the arrest. Christopher Galley's admission when arrested and questioned that he had supplied four pieces of leaked information to Damian Green was corroborated by letters found in his possession from Damian Green on headed House of Commons paper. The police had reasonable grounds for suspecting Damian Green of aiding, abetting, counselling or procuring misconduct in public office by Christopher Galley.[111]

64.  The case being considered by the police against Damian Green was that he had done more than receive leaks, according to former Assistant Commissioner Robert Quick. Among the papers seized from Christopher Galley's home were letters from Damian Green which appeared to offer encouragement to provide further material.[112] In evidence to this Committee, Damian Green denied that he had ever encouraged Christopher Galley to break his duty of confidence as a civil servant.[113] Among the messages relied on by the police was a letter dated 23 August 2007 from Damian Green on Commons headed paper—

Dear Chris,

Thank you for your recent communications. As ever, these have been extremely useful and I hope you can keep them up in your new post.

Yours Sincerely,


65.  Sir Ian Johnston considered on balance that the police action to arrest Damian Green was disproportionate, highlighting these key points—

  • the interval since the arrest of Christopher Galley, allowing Damian Green ample opportunity to dispose of evidence and to collaborate with Christopher Galley;
  • the offences linked directly to Damian Green were four cases of embarrassment level leaks (as were 30 of the 31 unauthorised disclosures from the Home Office between February 2004 and September 2008); and
  • "the arrest of an MP will clearly arouse public interest on very significant levels about security, Parliamentary Privilege and liberty issues which, in my view, calls for additional consideration in the use of power."[115]

66.  Sir Ian Johnston concluded on balance that operational aims of obtaining evidence by questioning could have been achieved by a less intrusive approach, by inviting Damian Green to attend a police station by appointment accompanied by his legal representative for arrest and interview.[116] Damian Green told us that he would have co-operated with such a request.[117] Deputy Assistant Commissioner John McDowall defended the decision to arrest Damian Green without notice, despite the elapse of time since the release of Christopher Galley: "you never know when a person may or may not agree to actually come and speak to you".[118]

67.  Former Assistant Commissioner Robert Quick strongly disagreed with Sir Ian Johnston's conclusion, describing it to us as misleading, based on inaccurate information or a limited appreciation of the facts and flying in the face of the evidence.[119] Robert Quick described Christopher Galley's admissions at interview on Wednesday 19 November as "troubling" and he told us that ordinarily the police would have acted on those admissions and would have effected a further arrest almost immediately. Robert Quick told us that in this case, however, the police recognised the huge sensitivities, and possible legal complexities, involving a Member of Parliament: "it was my judgment, I believe shared by John [DAC McDowall], that we should in this case exceptionally delay taking action, so that we could take full legal advice from the Metropolitan Police Directorate of Legal Services, and indeed consult the Parliamentary authorities at an early stage, and indeed take further advice from Crown prosecutors".[120] The view taken by the police on Thursday 20 November, the day after Christopher Galley's arrest, was that the risk of losing evidence was outweighed by the need to ensure the legality of any action and to liaise with, and seek guidance from, the parliamentary authorities.[121] It was only later that the police learned that Christopher Galley had in fact phoned Damian Green in the evening of Wednesday 19 November, very soon after his release from police custody.[122] The "Gold Group" chaired by Assistant Commissioner Robert Quick met twice on Wednesday 26 November and decided that Damian Green should be arrested the following day, the first day of the short Prorogation recess.[123] We have no hesitation in agreeing with Sir Ian Johnston that the decision to launch the surprise arrest of Damian Green was disproportionate.

68.  While we note the decision of the Gold Group chaired by Assistant Commissioner Robert Quick to take stock of the evidence from Christopher Galley before making a decision on whether and how to arrest Damian Green, we find their approach difficult to understand or justify.

69.  Deputy Assistant Commissioner John McDowall explained that the Metropolitan Police Service decided to take a "softly-softly" approach to the arrest of Damian Green on Thursday 27 November and so had decided not to ask Kent Police for help in identifying where his home was, owing to the police's anxiety "to preclude the widening of knowledge in relation to the investigation".[124] Damian Green told us that there was circumstantial evidence that the police were simply surrounding the wrong house.[125] DAC John McDowall denied that the police went to the wrong house, but asserted to us that the arresting officers had narrowed the search to a certain two adjacent dwellings in a relatively rural area.[126] By 1.05 pm on the day of the arrest Assistant Commissioner Robert Quick decided to phone the Leader of the Opposition to ask for his help in locating Damian Green.[127]

70.  Damian Green told us that he regretted leaving his home with the police before they had completed their search, because when he next returned he found his home "unliveable in because they had taken away all means of communication with the outside world".[128] The police took away Damian Green's mobile, his Blackberry, both phones and faxes, the home computer and even the Internet hub, which Damian Green described to us as "unnecessarily heavy-handed".[129] Robert Quick told us that the investigation team emphatically denied the stories that were later allowed to circulate, without being challenged or refuted by the Metropolitan Police Service Press Office, including allegations that the police targeted the wrong address, used sledgehammers and caused significant damage.[130] The arrest of Damian Green by the Metropolitan Police was poorly executed and in any case quite unnecessary, since the police could have arranged to interview him by appointment.

71.  Among the many shortcomings in the conduct of the police operation, it is disturbing that for his first three hours in custody Damian Green was subject to covert tape recording.[131] Sir Ian Johnston noted that good practice usually means that the Superintendent authorising such covert action should come from outside the line command of the investigation. The fact that this was not done in the Damian Green case contributed to providing "rich material for an attack on the proportionality overall of the investigative approach".[132] We condemn the covert use of electronic surveillance, which was not authorised in the way that good practice normally requires.

72.  Damian Green told us that one of the consequences of having been arrested would be that he would forever need a visa to visit the United States, no longer being eligible for the US visa waiver scheme.[133] As is normal practice, he was fingerprinted, photographed and required to give a DNA sample.[134] Damian Green was in some respects treated with consideration, in not being detained in a cell or placed under any form of physical constraint, having instead a section of the Belgravia police station custody suite set aside for his privacy.[135] A few months after the decision not to press charges, the police decided to make another concession in Damian Green's case by deleting his DNA record from the national database.[136] Damian Green told us that the police "agreed it was an exceptional case so they would do it but they did not give an explanation".[137] The retention of DNA profiles on the national database is a central issue in the Crime and Security Bill, currently before Parliament.[138]

Search warrants

73.  Our inquiry was prompted by the search of Damian Green's office on the Parliamentary Estate, which was executed without a search warrant. There were, however, some search warrants issued by a District Judge for other premises linked to this case. A warrant was granted by a District Judge for a search of Christopher Galley's home on Wednesday 19 November 2008, after a comprehensive written information was laid. Sir Ian Johnston noted that it was "interesting" that the warrant contained reference to secret material: "it is not clear why reference to this type of material is included, given the MPS scoping study and the apparent absence of reported leaks at this level during Galley's time at the Home Office".[139] Nevertheless, Sir Ian Johnston's view was that given the District Judge received a comprehensive written information before granting a warrant, the search was lawful. In Sir Ian Johnston's opinion, there was a reasonable prospect of relevant letters from Damian Green being found at Christopher Galley's home and that it would have been neglectful to fail to undertake such a search. As a District Judge had apparently concluded it was appropriate to authorise a warrant, having considered proportionality and consent issues, Sir Ian Johnston concluded that the searches of Christopher Galley's home (and office —see below) were proportionate.[140]

74.  On Wednesday 26 November 2008 search warrants were obtained from the court for Damian Green's home addresses at Charing, Kent and Acton, London and his constituency office in Kent.[141] Sir Ian Johnston observed that, though a comprehensive written information had been laid before the District Judge setting out the basis for the search, it was "of note" that the warrants covered search for 'secret' material: "in the MPS scoping document, none of the leaks in the Home Office while Galley worked there apparently relate to material at this level in the GPMS".[142] Sir Ian Johnston told us that the wording of the application for the warrant was "pretty sloppy work": "in a number of places where there was a shift — in my view, not a well thought through shift — from assessments at a very serious end of these issues to one which was a less serious end, and there was an inconsistency throughout, and this is but one example, I think, of that inconsistency".[143] We are deeply concerned by the sloppy wording of the written informations, upon which search warrants were obtained, and their inconsistency with the true character of the leaks uncovered in the actual investigation which must have been known and understood as a result of the scoping operation.

75.  What emerges from the Johnston Report is that a District Judge has to rely on the facts submitted by the police in their written information. These facts may be plausible even if they are fundamentally mistaken, as in the reference to secret material in this case. We cannot know whether the reference to secret material was a critical factor in the decision to issue the search warrants but we are clear that to exaggerate or to make a mistake in a written information submitted to a Judge when applying for a warrant is to breach lawful standards.

Search without a warrant — the Home Office

76.  Christopher Galley's office at the Home Office was searched by consent of the appropriate official at the Home Office, who was entitled to give consent and signed a form in Book 101 to that effect.[144] From the police point of view, this was the correct procedure to follow in obtaining authority to search a workplace of a suspect who was not the owner or tenant of the premises—the same process that they followed a few days later, in seeking leave to search Damian Green's office at the House of Commons. Sir Ian Johnston's view was that given the consent of Christopher Galley's employer was obtained before the search, it was lawful.[145]

77.  Sir Ian Johnston's Report sets out the conditions in section 8(3) of the Police and Criminal Evidence Act 1984 that a District Judge must apply in considering an application for a search warrant—

  (a) that it is not practicable to communicate with any person entitled to grant entry   to the premises;

  (b) that it is practicable to communicate with a person entitled to grant entry to the   premises but it is not practicable to communicate with any person entitled to grant   access to the evidence;

  (c) that entry to the premises will not be granted unless a warrant is produced;[146]

  (d) that the purpose of a search may be frustrated or seriously prejudiced unless a   constable arriving at the premises can secure immediate entry to them.

78.  According to Sir Ian Johnston, a consensual search should be sought if any of these conditions are not met and it is for the District Judge to consider these issues.[147] While Sir Ian Johnston did not interview any District Judges or the officers presenting material in the information, he decided on balance that the searches of Damian Green's homes and constituency office were proportionate.[148]

106   The source document, which was not protectively marked but should have been marked Restricted Policy, for the Daily Mail article on 1 September 2008 titled "Home Secretary's warning that credit crunch will send crime soaring is blindingly obvious says Minister" (Johnston Report, pages 33 and 38) Back

107   Johnston Report, page 39 Back

108   Johnston Report, page 39 Back

109   Johnston Report, page 39 Back

110   Q 902 Back

111   Johnston Report, page 41 Back

112   Ev 163 para 7 Back

113   Q 12 Back

114   Exhibit INM/32, quoted in the Johnston Report, page 34; Christopher Galley had recently transferred to the Strategy Unit in Home Secretary's Private Office -in June 2008 he was promoted to be assistant to the Director of the Strategy Unit Ev 163 para 10 Back

115   Johnston Report, page 44 Back

116   Johnston Report, page 44 Back

117   Q 71 Back

118   Qq 482 to 485, 489 to 494 Back

119   Ev 169 para 35 Back

120   Q 980 Back

121   Ev 164 para 14 Back

122   Ev 164 para 14. After his conversation with Damian Green, Christopher Galley contacted the police and arranged to return for a second interview under arrest on 21 November. In the course of the second interview Christopher Galley suggested that in the phone conversation after his first release from custody Damian Green had appeared to distance himself. Christopher Galley claimed that Damian Green had told him to "plead not guilty" and not to mention him to the press and had said "'do not mention David Davis' (Ev 163 para 12). Back

123   O'Connor Report, paras 7.2.9 to 7.2.13; Johnston Report, pages 35, 42; Ev 164-165 paras 15 to 18 Back

124   Qq 486, 495 Back

125   Qq 27 to 29 Back

126   Qq 486, 495 Back

127   HAC page 13, Qq 255 to 257 Back

128   Q 42 to 44 Back

129   Q 44 Back

130   Ev 167 para 28 Back

131   Q 40; Johnston Report, pages 51 to 53, Qq 584 to 585 Back

132   Johnston Report, page 51 Back

133   Q 48 Back

134   Johnston Report, page 45 Back

135   Johnston Report, page 45 Back

136   BBC News, 19 August 2009 Back

137   Q 49; the national DNA database continues to hold DNA records of innocent people - a policy which has been criticised, for example in the European Court of Human Rights ruling in S and Marper v UK of 4 December 2008 Back

138   See Eighth Report of Session 2009-10 from the House of Commons Home Affairs Committee, The National DNA Database, HC 222-I, published 8 March 2010  Back

139   Johnston Report, page 40-MPS is the Metropolitan Police Service Back

140   Johnston Report, page 40  Back

141   O'Connor Report, para 7.2.12; and Johnston Report, pages 35, 40, 47 Back

142   Johnston Report, page 46 -GPMS is the Government Protective Marking Scheme Back

143   Q 590 Back

144   Johnston Report, page 40 Back

145   Johnston Report, page 40 Back

146   Our emphasis Back

147   Q 586 Back

148   Johnston Report, page 47 Back

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