Examination of Witnesses (Question Numbers
572-579)
MR DENIS
O'CONNOR, CBE, QPM, SIR
IAN JOHNSTON,
CBE, QPM, DL AND ASSISTANT
COMMISSIONER JOHN
YATES, QPM
23 NOVEMBER 2009
Q572 Chairman: Gentlemen, thank you very
much for your attendance and for the evidence which you are going
to give. For the record, I wonder if you would identify yourselves,
please.
Sir Ian Johnston: Ian Johnston,
formerly of British Transport Police and ACPO Crime Committee,
now with the Olympic Games people.
Mr O'Connor: Denis O'Connor, Her
Majesty's Chief Inspector of Constabulary.
Assistant Commissioner Yates:
John Yates, Assistant Commissioner, Specialist Operations at the
Met.
Q573 Chairman: Thank you very much.
Perhaps I might begin with you, Sir Ian, because we have had the
benefit, obviously, of your report, and I think you were present
in the course of the evidence which was just given. On this question
of PACE, have you any comment to make?
Sir Ian Johnston: There was certainly
a breach in relation to the search provisions, because they do
require that the person you are seeking consent from is informed
that they need not consent, and that does not appear to have been
the case on this occasion. So there was a clear breach of PACE
there, although that breach does not in fact make the search itself
unlawful; it is merely a breach of it. Then there are a number
of issues of judgment around arrest in relation to Mr Green where
PACE and the interpretation of it is important. They also help
to inform the judgment around proportionality
Q574 Chairman: What did you make
of the evidence from which an inference might be drawn that there
was some anxiety that Mr Green might, if not disappear, at least
make himself unavailable? Was that something which you thought
was reasonable in all the circumstances?
Sir Ian Johnston: My view certainly
in relation to his arrest was that it would have been possible
to undertake that process in a different way and achieve the same
operational outcomes, and they could do that by inviting him into
a police station, where he could come with his barrister, and
they can deal with the matter in that way. My own judgment was
that they would have lost nothing in that process given in particular
the period of time that had passed between the arrest of Mr Galley
and the time taken to get in touch with Mr Green. During that
period of time it was known that Galley had been in touch with
Mr Green and in fact had informed the police that that did happen.
I felt the prospects of recovering any property other than that
which Mr Green would want them to recover was unlikely and therefore
that basis for an arrest was not a sound basis.
Q575 Chairman: And not telling Kent
Police?
Sir Ian Johnston: I think there
are always judgments to make. I listened with interest to the
comments more generally around this. There is a tendency, rightly
or wrongly, to operate on a need-to-know basis, and one of the
issues I was asked to look at by the Acting Commissioner was the
business of inclusivity in this investigation. Certainly, in terms
of updating people as to what had happened promptly and appropriately,
I think the Metropolitan Police fulfilled their obligations. It
is not unusual for a home force not to be told. On the other hand,
it is quite often the case that they are. It is an operational
judgment and really one that they chose to make in one direction
and they need to justify that to you if that is what they want
to do.
Q576 Sir Alan Beith: Do you think
they might have been influenced by the fact that quite a lot of
their own officers seem to have a practice, which has been commented
on in the past, of releasing information about people about to
be arrested to the press?
Sir Ian Johnston: I do not think
it is particularly around their own officers. I think the more
people who know about anything, the more likely it is for information
to get into the public domain, and that is a pretty well established
fact, I think. Many parts of society which you would generally
expect absolute confidentiality from occasionally let the side
down.
Q577 Mr Howard: On the question of
the breach of PACE, Sir Ian, you have said that it did not make
the search unlawful, but is there a distinction—forgive
me; it is a long time since I practised law and even longer since
I practised criminal law—between an unlawful search and
the admissibility of evidence produced as a result of a search
which was conducted in breach of PACE? Would the breach of PACE
have cast some doubt on the admissibility of any evidence which
the search produced?
Sir Ian Johnston: It goes more,
I think, to the conduct and credibility of the individuals involved
in the process than the admissibility of the evidence that is
found. If vital evidence was found, it would be for a court to
rule. It would not be excluded as a matter of practice.
Q578 Mr Howard: It would not be automatically
excluded but that would be a factor which the court could take
into account in deciding whether or not to admit it.
Sir Ian Johnston: You are taking
me into areas I am slightly light on, sir. I would look to the
police for support.
Assistant Commissioner Yates:
It is the scale of the breach a" propos what you actually
find in terms of admissible evidence. If it was a dramatic breach
of PACE, then I think a court would take the view that they would
probably exclude it under section 78 of PACE.
Q579 Chairman: They would take an
overall view of fairness, would they?
Assistant Commissioner Yates:
Yes, exactly.
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