Examination of Witnesses (Question Numbers
460-479)
DEPUTY ASSISTANT
COMMISSIONER JOHN
MCDOWALL
MBE AND CHIEF
SUPERINTENDENT ED
BATEMAN
23 NOVEMBER 2009
Q460 Mr Howard: Do you know where
we can find the answer to that question?
Deputy Assistant Commissioner McDowall:
I would imagine either Assistant Commissioner Quick or Assistant
Commissioner Cressida Dick.
Q461 Chairman: The discussions which
took place about the number of leaks, they resulted in—putting
it shortly—a reduction in the number of leaks that were
to be followed through. Is that right?
Deputy Assistant Commissioner McDowall:
That is correct, Sir, yes.
Q462 Chairman: Would it be reasonable
to assume that in the course of such discussions there might be
some reference not only to the number of leaks but to the quality
of the leaks?
Deputy Assistant Commissioner McDowall:
Yes, I would assume so.
Q463 Chairman: If the quality of
the leaks were revealed to be not against the state security,
or something of that kind, that would immediately, would it not,
in the minds of the police officers have downgraded what they
thought they were being asked to investigate?
Deputy Assistant Commissioner McDowall:
It may have done, Sir, I simply do not know. What I do know, as
I have just said, is that we would follow the evidence and there
needed to be a start point to the investigation and this was arrived
at as the most sensible way of starting because it appeared that
there was a pattern of sorts there.
Q464 Sir Alan Beith: What level of
classification of document would you have to have been satisfied
had been leaked in order decide that an offence under the Official
Secrets Act might have taken place?
Deputy Assistant Commissioner McDowall:
"Secret" level documents.
Q465 Sir Alan Beith: At the stage
when you came into the inquiry, were you given any evidence of
"secret" documents which might have come from this source
having been leaked?
Deputy Assistant Commissioner McDowall:
There was, I believe, one "secret" document that fell
into the broader number of leaks. Others were at "restricted"
level.
Q466 Sir Alan Beith: So the only
conversation to be had with Mr Wright, if "conversation"
is the right word, or even "negotiation", was to say
"There is only one document about which it would be appropriate
for us to be involved in the inquiry. The rest of this is a matter
for you and your internal security."
Deputy Assistant Commissioner McDowall:
That is potentially the case, albeit that some offences of misconduct
in a public office are routinely investigated by police as well.
Q467 Sir Alan Beith: But not by Special
Branch?
Deputy Assistant Commissioner McDowall:
We have had one instance where we investigated an offence of that
nature, yes.
Q468 Chairman: I do not think you
were present at the meeting of 22 October but at that meeting,
which was a consultation with the CPS, the possibility of misconduct
in a public office was raised. Do you understand that to have
been raised by the CPS?
Deputy Assistant Commissioner McDowall:
That is my understanding, yes.
Q469 Chairman: How frequently in
your professional career have you come across circumstances of
which the suggestion has been made that an appropriate charge
might be misconduct in a public office?
Deputy Assistant Commissioner McDowall:
I recall one investigation in the last couple of years where that
was the case.
Q470 Mr Howard: Did you have in mind
when considering a possible offence of misconduct in public office
the Attorney General's reference 3/203, which is referred to in
the Johnston Report?
Deputy Assistant Commissioner McDowall:
At that stage, no, sir.
Q471 Mr Howard: Is that not critical
to any decision where there is any potential offence of misconduct
in a public office?
Deputy Assistant Commissioner McDowall:
It is, and I think that was part of the advice that the CPS furnished.
At that stage they were not able to say whether that threshold
would be met or not.
Q472 Mr Howard: According to that
reference, the threshold is a high one, requiring conduct so far
below acceptable standards as to amount to an abuse of public
trust in the office holder.
Deputy Assistant Commissioner McDowall:
Yes, sir.
Q473 Mr Howard: Should not that high
threshold be uppermost in the mind of any senior police officer
contemplating the possibility of conducting an investigation into
misconduct in a public office?
Deputy Assistant Commissioner McDowall:
Indeed, sir, but it is also the case that until you reach the
end of that investigative effort, you cannot be sure whether you
have obtained that threshold or not.
Q474 Chairman: The impression I have
formed—and please correct me if I am wrong—is that,
having fallen at the hurdle of the Official Secrets Act, there
was a certain amount of scrambling going on to see "Is there
anything else that we can possibly use to deal with this matter."
Is that right?
Deputy Assistant Commissioner McDowall:
No, sir, I would not agree with that description.
Q475 Chairman: I know you were not
at the meeting and therefore you are obviously operating on the
basis of what you understand of the meeting.
Deputy Assistant Commissioner McDowall:
Yes, sir.
Q476 Chairman: It is not an unreasonable
observation, is it? "The Official Secrets Act is not involved
here. What on earth can we think of as an alternative?" and
up comes misconduct in a public office, which has the very high
threshold which Mr Howard has just indicated.
Deputy Assistant Commissioner McDowall:
As you say, sir, I cannot say for certain because I was not there
but it was a discussion that clearly other offences may have been
committed. I do not think I would describe it as a scramble to
find other offences. That is not the usual way in which we operate
with the Crown Prosecution Service. I think other offences were
identified and then it was a matter of whether there would be
evidence available for those or not.
Q477 Chairman: So far as we know,
there was nothing else identified other than misconduct in a public
office, which I think you agree with Mr Howard has a necessarily
high threshold.
Deputy Assistant Commissioner McDowall:
Yes.
Q478 Sir Alan Beith: A couple of
matters relating to the arrest of Mr Green: the Gold Group meetings
for Wednesday 26 November indicate that the decision to arrest
Mr Green was on the basis that the police had a duty to act without
fear or favour. I am sure that is right, but that cuts both ways,
does it not? If the police are asked to stretch their powers to
the limit by government and to use procedures which at the best
interpretation could only have been applied to one document, which
did not in the end turn out to have been involved in this case,
then fear of the government and fear of the executive could be
attributed by critics to the way the police conducted themselves;
in other words, they have to watch two dangers, not just one.
Deputy Assistant Commissioner McDowall:
Absolutely, sir. I think it is important to make the point also
that the effect of the series of leaks was something else, I think,
that was very much in the view of those who were making the allegation
in the first place; in other words, that the effective conduct
of government was being undermined. That is 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.
Nonetheless, in terms of acting without fear or favour, we always,
as far as we are able—and hindsight, of course, is a marvellous
tool—try to apply that test where we can.
Q479 Mr Howard: There is no criminal
offence, is there, of impeding the effective business of government?
Deputy Assistant Commissioner McDowall:
No, sir, there is not but, again, misconduct in a public office
still carries a term of imprisonment of life. It is still a common
law offence of some potential severity but I agree with you, there
is no offence as you suggest.
| 
