Examination of Witnesses (Question Numbers
600-618)
MR DENIS
O'CONNOR, CBE, QPM, SIR
IAN JOHNSTON,
CBE, QPM, DL AND ASSISTANT
COMMISSIONER JOHN
YATES, QPM
23 NOVEMBER 2009
Q600 Mr Howard: This is not the police
setting out the parameters; it is Mr Wright.
Assistant Commissioner Yates:
I think it is unfortunate wording in the letter. I would be absolutely
clear that it is the police who are setting the parameters of
the investigation, who are delivering the investigation. The important
thing that we do is that we review our progress occasionally in
dialogue with the victim at regular intervals to make sure the
investigation is progressing in the way that you would want. The
decision making is ours.
Q601 Chairman: Even if that is right,
Mr Wright should not be writing letters of that kind.
Mr O'Connor: I think we can all
agree the letter was unwise.
Sir Alan Beith: That was the second
of Mr Wright's letters which had things wrong with it, because
the first one made an assertion which proved not to be true, the
assertion about the damage to national security which had arisen
from the leaks referred to in the case.
Q602 Ann Coffey: Just coming back
to this serious interference with the functions of government,
what does that mean? Is that a basis on which investigations can
take place? Is it guidance? What does it actually mean?
Mr O'Connor: There are two documents
that were in existence as I stepped into this. One was a protocol
between the police and the Cabinet Office to look at leaks. Underneath
that was the second document, which was guidance for investigators.
That was the document that had this two-way process in which the
police could become involved. It was relatively open-ended. That
is the point of it. If there was evidence of any criminal activity
that was associated with serious inference with the function of
government, then the police could become involved. There was some
kind of a rationale for that, I suppose, if you take it in terms
of a leak about the economy or something like this that is going
on for a period of time that involves all sorts of other problems.
I thought it was so open-ended that it could allow the police
to become involved on relatively minor matters or where, frankly,
what was happening was very unclear.
Q603 Ann Coffey: Or very political.
Mr O'Connor: Indeed, and I thought
that it was probably in everybody's interests for the separation
between the police and the state to be clearer and the rationale
around their use to be more precise.
Q604 Ann Coffey: This is a serious
intertwining of the state and the police, is it not? To understand
what is a serious interference with the function of government
would be very difficult to define anyway, would it not? It could
only be a definition by the government.
Mr O'Connor: It is potentially
quite subjective and phrases that have been used around it include
the smooth running of government, the interference with ministerial
business and confidence. All of those issues apply within the
Civil Service and they apply to Ministers but there are other
routes to deal with that, including having a proper security system
and having a decent investigative capacity yourselves.
Q605 Ann Coffey: Does not the problem,
as you rightly say, become a serious problem when around that
definition the police are involved?
Mr O'Connor: I think there is
too much room for mischief around that. I think the police are
part of the state but they are not an instrument of the state
and having that clarity is hugely important.
Q606 Ann Coffey: Do you think this
guidance should be looked at again?
Mr O'Connor: This guidance, I
understand, has been looked at and has been removed and new guidance
as a result of this report and what has been learned has now been
issued, which changes it.
Q607 Mr Howard: The cardinal principle
to be borne in mind is, is it not, that impeding the effective
conduct of government is not and should not be a criminal offence?
Mr O'Connor: It is not, sir.
Chairman: As I said rather flippantly
a little earlier, it is part of the job of Opposition.
Q608 Sir Alan Beith: Nobody has mentioned—I
presume someone thought it relevant—the possibility of a
criminal offence around whether any kind of inducement had been
offered to Mr Galley to leak information. I am slightly puzzled
that nobody has mentioned that.
Sir Ian Johnston: The Met put
together a fair amount of material to make that case but I have
to say, my own assessment of the evidence was that the relationship
between the two was, if you like, at its worst equal but probably
was driven more by Galley than by Mr Green. I do that really on
a very quantitative basis of an assessment of who instigated communications
and how many items of the material that I saw. This I have to
accept is a limited amount of material because I only saw material
up to the 14 days. There was more material being instigated by
Mr Galley than by Mr Green. Could I just say on the letter from
Mr Wright, I think we would all agree that this was not a clever
letter to have written. I read it as setting out an agreement
following a discussion rather than, if you like, a diktat to the
Met about the scope of the inquiry. Neither of those are a good
position to be in but one is a slightly better position to be
in than the other, and I saw it as the slightly better position,
or the slightly less worse position.
Q609 Chairman: You may have given
us a title for our report by saying "too much room for mischief."
Mr Yates, you have to take these matters forward, and perhaps
we might just explore with you for a little while how you see
the way forward. You will be aware that the Speaker issued a memorandum
on 8 December 2008.
Assistant Commissioner Yates:
Yes.
Q610 Chairman: In your view, would
that be apt to deal with circumstances such as we are presently
investigating and avoid the difficulties which have arisen?
Assistant Commissioner Yates:
A lot of this is in the detail. The devil is in the detail, as
ever. I think for the most part, we would be understanding and
content around it. There are issues around number 6 in the protocol,
around his role in testing the validity of warrants, which we
would probably say had been tested by a judge or a district judge
or a magistrate. What we would seek to do if we could, sir, is
to provide you with some detailed written feedback on this. Ninety
or ninety five percent it is there.
Q611 Chairman: That would be very
helpful. I do not think the House of Commons has ever had any
detailed response from the Metropolitan Police about the contents
of the protocol.
Assistant Commissioner Yates:
It is envisioned that there would be some confidentiality arrangements,
for example. That might prevent us from sharing some material
with the DPP or the CPS which might prevent them taking matters
forward. There is just some level of detail on which we would
like, through lawyers, to provide you with some feedback.
Q612 Sir Alan Beith: In relation
to the protocol, and also of course the same condition would apply
in actually applying for a warrant, ought not the police to take
full responsibility for a decision as to what the nature of the
offence being investigated was rather than taking it on trust
from the Cabinet Office, without reference to the documents allegedly
leaked, that these constituted Official Secrets Act offences?
Assistant Commissioner Yates:
In summary, yes, but I think the important thing is that one of
the lessons from this inquiry is we, the police, engage with the
CPS, who will eventually have conduct of any case that they take
forward at the earliest possible opportunity, and then with the
CPS, who are the experts in these matters in terms of the legal
position, decide what we think the offences committed have been.
Q613 Chairman: Has there been any
consideration by the Metropolitan Police about issues of privilege
which may arise in relation to incidents of this kind?
Assistant Commissioner Yates:
Yes, sir, there has been a considerable deliberation about these
matters, through this case and many other cases as well. Again,
I would seek your willingness to accept some feedback around that
as well in terms of our position. It is an immensely complex matter
that I do not even begin to think I could understand or explain
in this Committee. Better minds than mine can, I hope, put something
cogent together to help you.
Q614 Chairman: Can I put an example
to you from my own personal experience? I had a constituent who
came to me to complain on behalf of her son about the conduct
of a police officer. Without the details, the allegation was that,
because the son had fallen out with the police officer's daughter,
with whom he had had a relationship, there was now some kind of
persecution taking place. Obviously, an allegation of that kind
is very serious. As a Member of Parliament to whom it is made,
you have to be very sensitive in the way in which you handle it.
On the other hand, you have a duty to your constituent. Therefore,
on my files in my office—a long way from here, in Fife-
there were documents of that kind. You can understand my sensitivity
if someone arrived with a warrant and said, "This information
is not privileged and therefore we are entitled to take it all
because it may or may not bear on some allegation made against
you." Can you see any solution to that?
Assistant Commissioner Yates:
My understanding of privilege is that it is not the possession
of it that is the issue; it is how you use it. In terms of taking
possession of it and putting it in the hands of a third party
prior to it being examined by special counsel, whatever, I think
that is probably the way those sorts of matters should be taken
forward. Again, it is an incredibly complex matter that I do not
think there is any easy path through.
Q615 Chairman: I think our constituents
believe that when they write us a letter that is confidential.
In fact, we now say so at the bottom of our stationery, that it
is only confidential to a limited extent, and that if there is
any allegation of criminal behaviour and a warrant is issued,
the confidentiality flies off. That potentially could be quite
embarrassing, not just for us but for the police.
Assistant Commissioner Yates:
I have read the Australian protocols, which are pretty clear in
the way matters should be handled when there is the hint of a
suspicion that privileged material might be seized. It is those
clear, transparent protocols that we need to have to ensure that
it is dealt with appropriately and that other embarrassing or
worse situations do not arise.
Q616 Chairman: One of the suggestions
that has been made to us from other quarters is that there ought
to be a Parliamentary Privileges Act, so that all of this is set
down in statute. Is that something that, arising out of this case,
the Metropolitan Police have given any consideration to?
Assistant Commissioner Yates:
We have been giving consideration to it. What we would seek is
the clearest and most transparent method of dealing with that
matter. If that has to be enacted, it needs to be enacted. It
is just the clarity around how we should behave and the protocols
we should adopt to ensure that we deal with such sensitive material
appropriately.
Q617 Sir Alan Beith: You and I have
discussed these matters in all sorts of interesting circumstances
but I wanted to put to you the question which I put earlier, given
the responsibility you now have, which is the confusion that arises
from the amalgamation of Special Branch and the Counter-Terrorism
operation, which is extremely important work, as said by earlier
witnesses, from which they are distracted by deep engagement that
maybe we can argue they should not have had to be involved with
in the first place. That confusion, which is not unlike the confusion
the Chancellor got into in relation to the government of Iceland
recently, does actually have consequences. In this case we know—and
we have received evidence from the Speaker—that he was significantly
influenced, and thought that other officials had been, by the
belief that a counter-terrorism investigation was taking place.
Do you have any idea of how this can best be dealt with? Will
it require splitting up the functions again or could it be done
in some other way while retaining whatever advantage there is
in running them together?
Assistant Commissioner Yates:
On the initial thing in terms of who they are and what they do,
whilst they are from the Counter-Terrorism Command, I would expect
the officers to tell the individual that they were on this business
as opposed to counter-terrorism business and make it clear. That
is the first point. On the second point, I think Mr O'Connor's
report in terms of the protocols to be adopted makes it clear
that issues of this sensitivity go to the Deputy Commissioner's
purview first, as opposed to mine, and then the Deputy Commissioner
will have a conversation with me, my opposite number in the Serious
Organised Crime, to say "Where is this best investigated?"
and whether there are issues, just as you have described, that
could influence people in terms of the presentation issues around
it and cause some alarm. It goes to the Deputy Commissioner now
and then there is a conversations at the appropriate level to
say "Yes, it's best, John, for you and your teams to do it,"
because of sensitivity around vetting, for example, because I
have a lot of vetted people that work for me, or "No, Cressida,
in your Serious Organised Crime bit now I think that is the most
appropriate place for it to be investigated." It is that
balancing issue that I think we have to set about right now, going
in at very senior level to decide where it should go.
Q618 Sir Alan Beith: It is difficult
to avoid the impression being created when someone walks through
the door and announces that his role is Co-ordinator of Counter-Terrorism
functions that ...
Assistant Commissioner Yates:
I absolutely accept the point you are making. Sometimes it is
the skills and competencies and vetting levels of people which
will dictate where the matter can be best investigated.
Chairman: Gentlemen, thank you very much
indeed. We are most grateful to you. Sir Ian and Mr O'Connor,
we have derived a great deal of benefit from your reports, which
have been very helpful to us in setting the scene for our investigation.
Once again, thank you very much for your attendance and for your
evidence.
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