Examination of Witnesses (Question Numbers
580-599)
MR DENIS
O'CONNOR, CBE, QPM, SIR
IAN JOHNSTON,
CBE, QPM, DL AND ASSISTANT
COMMISSIONER JOHN
YATES, QPM
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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