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

Examination of Witnesses (Question Numbers 460-479)


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.

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