Examination of Witnesses (Question Numbers
430-439)
DEPUTY ASSISTANT
COMMISSIONER JOHN
MCDOWALL
MBE AND CHIEF
SUPERINTENDENT ED
BATEMAN
23 NOVEMBER 2009
Q430 Chairman: Good afternoon, gentlemen.
Thank you very much for coming. I believe, Mr McDowall, you have
got someone who will pass you papers.
Deputy Assistant Commissioner McDowall:
If necessary, yes.
Q430 Chairman: We are very grateful
to you for making yourselves available. I think you are aware
of the remit of this Committee and of the issues that we have
been considering, and I imagine you may have seen some of the
transcripts of earlier evidence and are familiar with these. There
is one particular matter, Mr Bateman, which I think you will have
appreciated is something that we will want to explore with you
in detail arising out of a conversation at which you were not
present on 2 December when certain—allegations is perhaps
a little strong—observations were made which no doubt you
will wish the opportunity to deal with. First of all I should
ask you if you would formally identify yourselves for the record.
Deputy Assistant Commissioner McDowall:
I am John McDowall, Deputy Assistant Commissioner with the Counter-Terrorism
Command in the Metropolitan Police Service.
Chief Superintendent Bateman:
Good afternoon. Ed Bateman, Chief Superintendent. I am your Head
of Security here at the Houses of Parliament.
Q431 Chairman: Mr Bateman, you have
provided a memorandum and I think it would be helpful to the Committee
if you were simply to read that into the record. You would be
happy to do that for us?
Chief Superintendent Bateman:
Very happy, thank you very much. Thank you for the opportunity.
Since November 2007, I have been the Head of Security at the Palace
of Westminster. As the officer in charge of the Metropolitan Police
Service Security Force, my role is to work with the Serjeant at
Arms in the Commons, Black Rod in the Lords and the Parliamentary
Security Co-ordinator, to provide a safe and secure environment
within Parliament. Part of this role is to provide an interface
between Parliament and the MPS. A recent example of this was February
2007 with the "Plane Stupid" demonstration on the roof
of Parliament that led to me facilitating on separate occasions
meetings or conversations between Serjeant at Arms, Jill Pay,
and the investigating officers and Black Rod and the investigation
officers. In the case of the "Plane Stupid" intrusion,
Jill Pay, with the consent of the Member involved, authorised
officers to enter and search a Member's office in Portcullis House
for evidence of an offence allegedly committed by a researcher.
A more recent example of this side of my role involved Members
and Peers' expenses when, following a request from the House,
I facilitated an introductory meeting between officials and police.
In most cases, once I have brought parties together I withdraw
as I am not part of the investigation team and my personal involvement
becomes unnecessary. Cases often involve high degrees of confidentiality.
On Thursday 20 November 2008 at five o'clock I met with a detective
sergeant from the MPS Counter-Terrorism Command at Portcullis
House, SW1. The officer asked me a series of hypothetical questions
concerning the arrest of a Member. Specifically, our conversation
was focused on the likely view of the Serjeant at Arms to a request
to search a Member's private offices within the building. The
officer did not provide details of who the MP was, their party,
or of the allegation being investigated. I agreed to speak with
Serjeant at Arms, Jill Pay, to seek out her view. I met with Jill
Pay later that evening and rehearsed the same conversation. I
advised Serjeant at Arms, Jill Pay, that the CPS were considering
police investigation evidence concerning an MP. The MPS expected
to receive advice concerning the offences being investigated the
following week. Jill Pay provided a "provisional" opinion
that she would have the authority to grant consent to search a
Member's office were they being investigated for a criminal offence.
Following the meeting I contacted the officer who had visited
me at Portcullis House and informed him of the Serjeant at Arms'
view. I met again with the Serjeant at Arms on a number of occasions
between 20 November and 26 November on unrelated matters. On several
of those occasions Jill asked me whether the MPS had received
the CPS advice. Whilst I do not recall whether it was at our first
meeting on 20 November or a later discussion before 26 November,
we did have a detailed conversation as to why the MPS were approaching
the House seeking consent to search as opposed to immediately
applying to a magistrate to secure a warrant. It was, and remains,
my understanding that Jill Pay was very clear that a warrant was
unlikely to be granted by a magistrate unless it could be shown
that a person on the premises with the authority to provide consent
was either unavailable or refused to do so. My recollection is
that Jill Pay was aware that the MPS were content and prepared
to seek a search warrant from a magistrate, if necessary, but
could not do so until the House had considered its position and
declined to consent. Again, while I am not able to say definitely
on what day the conversation took place, I can confirm that I
told the Serjeant at Arms in one of our earlier conversations
that although the investigation was being conducted by officers
from the Counter-Terrorism Branch, it was not terrorist related.
This was explained to me by the counter-terrorist detective sergeant
on 20 November and I was authorised to share this information
with Jill Pay. I am aware from reading evidence already given
to the Committee that it has been suggested that I may have coerced
the Serjeant at Arms into not including her senior colleagues
in the information given to her in confidence during the week
of 20¸27 November. That was never my intention. Indeed, I
approached the Serjeant at Arms on the evening of 20 November
in the knowledge and belief that she would consult colleagues
before coming to a decision as to whether or not the House would
consent to a search of a Member's office following their arrest.
It was my understanding throughout that period that the Serjeant
at Arms was applying for, and receiving, appropriate advice from
senior colleagues. I do not have a relationship with the senior
Clerks to the Houses, Speaker, or Lord Speaker, other than through
the offices of the Serjeant at Arms or Black Rod. I would never
assume to be in a position to direct or influence with whom or
how the Serjeant at Arms performed her role. I do not recall advising
Jill Pay that she did not have to consent. However, because Jill
Pay had understood the position that the MPS would approach a
magistrate and apply for a search warrant in the absence of consent,
my presumption was, knowing the alternative, she knew that she
did not have to consent to the search. On Wednesday 26 November,
together with a detective chief inspector, a detective inspector,
and the detective sergeant I had met on 20 November, I met with
Jill Pay in her office. The detective chief inspector began by
informing Jill Pay that the MPS were investigating a sensitive
allegation involving an MP. Jill Pay confirmed that wherever a
Member had an office on the estate it would be regarded as "the
Commons" and was, therefore, under her jurisdiction. The
officers repeated the earlier asked question concerning whether
she could or would give authority to search an MP's office if
they were arrested for a criminal offence. The detective inspector
set out clearly why they were seeking consent as opposed to relying
upon a warrant. They explained that the issue focused on the fact
that there was an authorised person (the Serjeant at Arms) on
premises able to grant consent. There was a discussion with Jill
Pay concerning from where the Serjeant gets the authority to search
parts of the Commons. I recall the detective inspector speaking
on a mobile telephone to MPS lawyers. Jill Pay then left the room
stating she would seek legal advice. Approximately ten minutes
later, the Serjeant at Arms returned informing the room that she
would have the authority to authorise such a search. From subsequent
conversations with Jill Pay I am aware that the advice was taken
directly from the Clerk to the House of Commons, Dr Malcolm Jack.
Jill Pay was emphatic that she would need to include the Speaker
before any arrest and search. The detective chief inspector declined
to provide the name of the MP or the alleged offence. The meeting
then agreed that the detective sergeant would return at 0645 on
27 November, with me, to brief Jill Pay and provide details of
the MP and of the allegation. This would be immediately before
arrest. Jill Pay stated that she would put Mr Speaker on standby
to receive a telephone call from her at 0730. On Thursday 27 November
at 0650 myself, the detective sergeant and two further officers
met with Jill Pay at her private apartments within Parliament.
The detective sergeant informed her that Damian Green MP was the
Member being investigated and provided details of the allegation.
An officer explained the "Premises Searched" form. Jill
Pay listened and at one point repeated the conversation of the
previous day explaining that she was consenting, as she understood
that applying for a warrant in these circumstances was unlikely
to succeed. By this I mean that it was believed that the court
would not grant a warrant unless police could demonstrate that
they had sought the consent of the Palace of Westminster and that
this consent had been refused. Jill Pay signed the form consenting
to the search. At no time was Jill Pay told that she had to consent
or was that inferred. Jill Pay was in control of the meeting and
we (the police) were there to brief her. Jill Pay was informed
that the arrest would be delayed possibly until mid-morning due
to dignity and proportionality issues. The Serjeant at Arms took
notes with a view to briefing Mr Speaker by telephone at 0730.
Jill Pay informed the group that the Speaker was leaving his apartments
at 0740 to catch a plane to Scotland. Jill Pay rehearsed her briefing
in front of the group. It was agreed that the Serjeant at Arms
would only give very brief facts and that an officer would listen
to her conversation. At 0730 Jill Pay rang Mr Speaker from the
next-door room. The detective sergeant stood at the door to the
room (although I could also hear the conversation). Jill Pay told
the Speaker the MP's details, the exact wording of the allegation,
a brief context including that it concerned a "Whitehall
leak" and the fact that she was authorising a search of his
private office. The call lasted less than one minute. She then
returned to the room. Jill Pay said that Mr Speaker had asked
no questions but had said that Damian Green was a "nice man".
At about 1450 on 27 November I received a telephone call from
the detective sergeant stating that an MP and a second person
had entered Damian Green's office whilst it was being searched
and filmed the scene and the conversation. They were still there
during our conversation. I was at New Scotland Yard, but immediately
contacted the Serjeant at Arms by mobile telephone and asked her
to intervene. I received an e-mail from Jill Pay at 1641 stating
that she had subsequently challenged the Member concerning his
actions. Jill Pay informed me that she had formally asked him
to return the tape from the camera. The Member stated that it
had already left the estate. In support of the consent given at
0730, Jill Pay later confirmed her decision in a letter dated
27 November sent to the detective sergeant and copied in to me.
Chairman, that is my statement.
Chairman: Thank you very much, Mr Bateman.
Sir Alan Beith is going to begin with some questions to you, Mr
McDowall.
Q432 Sir Alan Beith: Mr McDowall,
you are the National Co-ordinator of Terrorist Investigations
with the rank of Deputy Assistant Commissioner in the Metropolitan
Police, is that correct?
Deputy Assistant Commissioner McDowall:
That is correct, Sir Alan, yes.
Q433 Sir Alan Beith: Do your command
responsibilities within the Metropolitan Police include all of
the previous functions of Metropolitan Police Special Branch?
Deputy Assistant Commissioner McDowall:
That is correct. Yes, I think they are all now contained within
my command. Yes.
Q434 Sir Alan Beith: Do you find
that any confusion arises from your title and the fact that you
carry out responsibilities that have nothing to do with terrorist
investigations?
Deputy Assistant Commissioner McDowall:
I have not hitherto been aware of any confusion arising as a result
of that, no, Sir.
Q435 Sir Alan Beith: But you or your
officers will find yourselves in situations where you describe
yourselves as from the Counter-Terrorism Branch on matters which
have nothing to do with terrorism?
Deputy Assistant Commissioner McDowall:
Indeed, Sir Alan. I would expect them to explain that they were
not engaged on counter-terrorism issues.
Q436 Sir Alan Beith: The Cabinet
Office Director of Security and Intelligence, Chris Wright, wrote
to Mr Quick on 8 October 2008 and said: "We are in no doubt
that there has been considerable damage to national security already
as a result of some of these leaks". That was not true, was
it?
Deputy Assistant Commissioner McDowall:
At the time, Sir, clearly we were not aware of how much truth
there was in that statement. It was an invitation, I think, to
investigate to establish whether that was the case or not.
Q437 Sir Alan Beith: The fact that
you were carrying out the investigation must have been based on
the assumption that an offence against the Official Secrets Act
had taken place.
Deputy Assistant Commissioner McDowall:
Initially, Sir, yes, it was felt that was the substance of the
allegation.
Q438 Sir Alan Beith: Should not the
police have withdrawn once it became clear who the perpetrator
of the leaks was and, therefore, much clearer as to what the extent
of the leaks were because did it not then become an internal disciplinary
matter for the Home Office?
Deputy Assistant Commissioner McDowall:
I think it is difficult at the outset and, indeed, as the investigation
continues quite often to ascertain exactly where the investigation
is going to take you, where the evidence will lead you. Even at
the point when the scoping exercise had been done there still
existed the possibility that other offences may appear as a result
of that search for evidence. 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 offence
were present.
Q439 Sir Alan Beith: You used the
phrase "not made out". That implies there was evidence
to suggest that such offences had been committed but insufficient
evidence to put before a court rather than that there had been
no evidence even to that point of any leak which was damaging
to national security.
Deputy Assistant Commissioner McDowall:
I think, Sir, at that point there was a total of 32 leaks which
were the subject of concern by two government departments in particular
and at that stage we were investigating to establish whether any
of those leaks were connected and if we could ascertain who was
responsible for them. I think at least one of those leaks potentially
could fall to be considered under the Official Secrets Act.
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