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

Examination of Witnesses (Question Numbers 580-599)


23 NOVEMBER 2009

  Q580  Chairman: If there is a breach which contributed to unfairness, they might well exclude the evidence?

  Assistant Commissioner Yates: Yes, that is right.

  Q581  Mr Howard: This was not a minor breach, was it?

  Assistant Commissioner Yates: You can take a view it was not a minor breach.

  Q582  Chairman: Were you surprised to learn of it, Mr Yates?

  Assistant Commissioner Yates: I, of course, was not involved in the original investigation, so I have come to this anew. Some element of surprise, yes, I suppose, that is right.

  Q583  Chairman: I think everybody generally accepted that coming into the House of Commons to search a Member's office is an unusual occurrence. Advice was taken, as we understood from the previous witness, about whether issues of privilege might arise. Obvious sensitivities. In those circumstances, would you have expected procedure to be followed to the letter?

  Assistant Commissioner Yates: I think this case had considerable oversight by my predecessor and some very senior colleagues in Specialist Operations. There was very significant oversight of the case, and it was a very unusual case, so it required that. Yes, I would expect things to be done by the letter, yes.

  Q584  Mr Howard: The breach of PACE was not the only respect in which it fell short of the standards that you and others might have expected. There are pages in Sir Ian's report—I would be unnecessarily taking up the time of the Committee if I read them all out—which amount to a view—I do not think I am unfairly characterising it—that it was a slapdash inquiry.

  Assistant Commissioner Yates: On page 34 of Ian's report, in terms of his recommendations, I would say that we agree with them and we have taken them forward. The recommendations reflect some of the issues you have just discussed. We have no issue with the recommendations that Ian has made, and indeed, we have implemented all of them.

  Mr Howard: You do not dissent, I note, from my characterisation.

  Q585  Chairman: It is not an inquiry to be proud of in these respects, is it? For the necessity to bring Sir Ian in at all and for him to write in such condemnatory terms is clearly something which the Metropolitan Police must find embarrassing.

  Assistant Commissioner Yates: There are clearly lessons to be learned from this, and we have done that.

  Q586  Chairman: Sir Ian, did you have regard to the circumstances that gave rise to treating Parliament differently, that is to say, seeking consent here rather than applying for a warrant? Did you consider whether or not it might have been appropriate simply to say, "Three places to search, three warrants. Please can we have them?"

  Sir Ian Johnston: One of the conditions for granting of warrants is that the search cannot be undertaken by consent. If I can find the reference in my report to that, it is section 8.3 of the Police and Criminal Evidence Act, which says that "a district judge considering an application under the Act must apply the conditions set out in 8(3) of the Act, namely"—and it speaks about a number of them but one of them is that "entry to the premises will not be granted unless a warrant is produced". So it is reasonable for the officers in the first instance to explore the issue of consent, and quite appropriate within the rules of PACE to do that. I think it was the correct thing to do in the first instance to ask for consent. The issue is about how that was done and how the actual detail of that was managed.

  Q587  Ann Coffey: Do you think it would have been difficult to get a warrant if the police had had to apply to a district judge with a letter from the parliamentary authorities refusing consent to the search?

  Sir Ian Johnston: I suppose you have to be guided by what was in the information. They had been successful in their informations applying for search warrants for Mr Green's home address, for example, and it would have been on a similar basis, and although, clearly, a district judge would exercise great care in deciding whether or not to grant the authority, he would be persuaded most, I think, by the evidence put forward in pursuit of that application rather than perhaps the particular venue which was being searched.

  Q588  Ann Coffey: You do not think there is anything that would be deemed as special about the House of Commons?

  Sir Ian Johnston: If I were a district judge, I would think extremely carefully about granting a warrant. What I am saying is that the district judge also, I suspect, thought very carefully about granting a warrant for Mr Green's home address, and, in fairness to them, I suspect they think pretty carefully about it most of the time anyway, or all of the time.

  Q589  Chairman: Could I refer you to page 46 of your report, annex A, the last paragraph of that page. Dealing with this general question of lawfulness, you say, "These"—that is a reference to the other searches—"were undertaken by a warrant issued by a district judge. A comprehensive information was laid spelling out the basis for the search. However, it is of note that the warrants covered search for secret materials" and then in the Metropolitan Police scoping document: "None of the leaks at the Home Office while Galley worked there apparently related to material at this level of the GPMS."

  Sir Ian Johnston: Indeed.

  Q590  Chairman: What inference, if any, do you draw from that?

  Sir Ian Johnston: The inference I drew from it was that it was pretty sloppy work in terms of the wording of the application for the warrant. It is something I came across 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.

  Q591  Chairman: Mr O'Connor, you have been very patient. You, of course, also, in your capacity as Chief Inspector, have produced a report and I have the recommendations in front of me, four I think in particular. Having made these recommendations and having followed the course of events with which this Committee is concerned, do you think the Damian Green investigation was actually a waste of police time?

  Mr O'Connor: I think that there was something to be investigated at the outset. Whether that investigation should have run as far as it did is a matter you have just been talking to Sir Ian about. I think that what I have learned from looking at it is that if the police are to be involved in an investigation—and there are other methods of investigation and, ironically, in this case that other method of investigation was under way in parallel—what needs to be done is you need to make the argument for whether the police are involved at all, and then to continue to be involved. My own view is that I can see the need, because of their powers and so forth, for them to be involved in Official Secrets Act investigations. What I think was much more problematic here was for them to be involved in an investigation which eventually came to be about the serious interference with the functions of government, which is close to the smooth running of the state. I do not see a rationale for the police being involved in that.

  Q592  Chairman: That is what happened here. These principles which you have just enunciated were effectively conflated. They were not taken, as it were, in series, one after the other, and, as a result, the police were engaged before a judgment was made as to whether they should be engaged. Is that right?

  Mr O'Connor: Absolutely. The guidelines at the time were a compounding factor. There were two sets of guidelines, which I refer to in this report, and the guidelines from the Cabinet Office, which were drafted and I think dated in October of that year, started off with the Official Secrets Act but further on there was a rationale around investigating crime, which then in the guidance for the investigator transformed itself into two categories by which you might enter this whole fray, one being the Official Secrets Act and the second a serious interference with the function of government. When I saw that guidance, I thought, "This guidance is problematic because it is going to take the police potentially to the wrong place, or provide a rationale for them to continue in the wrong direction potentially."

  Q593  Mr Howard: On this point of the investigation, can any of you shed any light on the involvement of Mr Wright? I do not know if you heard my questions earlier. We know a lot of attention was focused on the letter written by Mr Wright on 8 October but it is clear from Sir Ian's report that another letter was written, and it is clear from the evidence we heard earlier from Mr McDowall that there was at least one meeting between Mr Wright and police officers. Can any of you shed any light on what happened in relation to the extent of Mr Wright's involvement between 8 October and 29 October, and indeed beyond, if it did extend beyond that date?

  Sir Ian Johnston: I clearly set out what I know in the report but outwith what I have written in the report, the Cabinet Office have overall responsibility for looking at matters of leaks, and it was his role in that respect which him took into this, and the conversations or the engagement he had with the Metropolitan Police was about providing material in support of that, documents and the like, and about answering any questions from the Met. However, as you can see from my report, the communication between him and the Met turned into something which helped to define the boundaries of the inquiry, and I think that was a point that you raised earlier on as being questionable in its appropriateness, and I agree with that.

  Q594  Mr Howard: You agree with?

  Sir Ian Johnston: I agree about it being questionable. They have to decide whether this is something to pursue through the criminal justice system or through some internal disciplinary process, and if they are left with what they were left with in this case, they would in the normal course of events have run it through the disciplinary process and not through the criminal justice process. So I can see some legitimacy in them staying in touch with what is going on and, if you like, seeking to influence whether it is drawn to a halt or not on the basis that the case would be dealt with by discipline if it only reached a particular threshold. I can see why they would want to retain interest. What I am not able to tell you is the detail of that engagement that they had.

  Q595  Mr Howard: If, as Mr McDowall originally put it, although he resiled from the use of the phrase subsequently, there was any negotiation between the police and the Government, in effect, on the scope of the investigation, that would be entirely improper, would it not?

  Sir Ian Johnston: When you are trying to put your arms round an investigation, understanding its boundaries and getting the best possible focus to the inquiry I think is legitimate activity, and you are going to be dependent upon people from outside your own organisation to help you understand those boundaries. For example, this inquiry was confined to the 31 leaks originally. There was obviously some discussion with somebody about why it was 31 and not all the leaks that had taken place in the recent history of the universe. So they had had some conversation about that. Similarly, when they got to this point here, as I set out in my report, there were only about half a dozen things that they could lay any claim to Mr Galley's involvement with and therefore, if you like, the parameters of the inquiry would then be set around those. I think what you are questioning is what degree of influence they should have in that process, and I think it is at the very least questionable that they should have some degree of influence on it. If they were all very minor matters which they wanted to deal with by way of internal discipline, I do not think that would have been an inappropriate decision for them to take, and they would have had to have been involved in some dialogue to get to that point.

  Q596  Sir Alan Beith: It is not very minor. It would be internal discipline if it were anything less than secret documents that were being looked into.

  Sir Ian Johnston: Yes. The conversation I had with Mr Wright was to the effect that, if they had realised what they had at the end of the investigation, these matters would have been dealt with by internal discipline.

  Q597  Chairman: That is Mr O'Connor's third recommendation, is it not?

  Mr O'Connor: Indeed it is.

  Q598  Chairman: The police will take the lead in Official Secrets Act inquiries or other very exceptional, serious criminality, but that the Cabinet Office or Departments will deal with other leaks and agree the guidance with the police.

  Mr O'Connor: I wanted to make a clear division of labour for the future so there could not be that haemorrhaging or leak or drift, as it were. I might be able to just cast a small amount of light on that conversation. I too have spoken to Mr Wright. It is perhaps worth separating out what the police are doing here in terms of information and influence. Mr Wright in his role had some kind of oversight for government across the spectrum about security and leaks. There was the Home Office, which had a particular problem, 31 leaks, which are in play here, and there was a process to be gone through about testing to some degree, or discussing with him, bearing in mind the letters that are written, particularly the letter that is referred to at paragraph 715 of my report, where the possibility, as I see it, is made of linking the Home Office material with other leaks that were happening in government. So it is perfectly possible to see that an investigator or somebody contemplating an investigation would want to try and establish the kind of terrain they were operating in. I would separate that out from that necessarily influencing in any way whether they decided ultimately that if it was Official Secrets Act it was for them, or if it was another matter that could be better dealt with elsewhere, but you would expect them to be reasonably diligent in testing somebody who is writing letters and had that oversight. I think it is possible to separate the two things out and I think there was a measure of that going on—maybe not as precise as we would like it to be with the benefit of hindsight, and not as testing as I suggest in the protocol, and I suggest it is quite a hard testing stage process when you are offered information that invites you to step forward and do these things.

  Q599  Mr Howard: Let me suggest one factor to you which supports Mr McDowall's original characterisation of what went on as a negotiation, and that is the letter which was written by Mr Wright on 29 October. On 29 October Mr Wright wrote to DAC Cressida Dick agreeing that a scoping exercise would be undertaken by the MPS in the first instance and, subject to that exercise and if appropriate, the MPS would undertake an investigation to identify the sources of the unauthorised disclosures, identify the chain of that disclosure, and if necessary appropriate and authorise proactive measures should be taken. That is Mr Wright dictating the scope of the investigation, and I suggest to you that that is wholly improper.

  Assistant Commissioner Yates: You will often enter into dialogue with the victims—and Mr Wright is representing the victim, as in the state and the government, in terms of leaks—and you will often set parameters around that. An example I would give is a large-scale bank fraud where you have 1,000 victims, and you would negotiate with the bank because you require access through the bank to their systems and their processes to identify the victims. So you will enter into that dialogue, but it is for the police to set the parameters, it is for us to husband and use our resources in the most appropriate way, and we set the parameters in that way.

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