Examination of Witness (Question Numbers
14 DECEMBER 2009
Q940 Ms Hewitt: I gather it was 21
November that the Crown Prosecution Service said that in relation
to Mr Green, there might be this offence of misconduct in public
office. Did the CPS warn you or your colleagues that there appears
to be a very high threshold for actually establishing such an
offence? Was there any warning about the evidential requirement
that would be needed to prosecute such an offence?
Mr Quick: To the best of my recollection,
there was some advice given about the threshold of damage that
needs to be proven, and I think we were under no illusion, it
is quite a high threshold, but, of course, until you investigate
and actually establish the facts, it is quite difficult to make
that judgment. So once an investigation starts, of course you
have to keep it under review, but it seemed to me that we could
not escape the fundamental fact that someone entrusted with secrets
was leaking material and prepared to take quite drastic action
to leak material, namely steal documents and take them from the
Q941 Ms Hewitt: At the same time,
when the CPS was saying, well, there might be this offence of
misconduct in public office, were the CPS also expressing a view
on Official Secrets Act charges? Were they saying that there would
not be any possibility of prosecution under the Official Secrets
Mr Quick: I never personally attended
the consultations with the CPS, but was always briefed in detail
about them. My understanding very clearly was the Official Secrets
Act dimension of this investigation was always being kept under
review as it moved forward. However, in relation to Mr Galley,
the advice was that his conduct on the facts that we had established
at that point may amount to an offence of misconduct in public
Q942 Ann Coffey: Did you have some
thoughts about the context in which this investigation was being
done? You talk about on the one hand the seriousness, the concern
about secret information being leaked, and this damaging national
security, but in the context that this was an Opposition politician
who might see it indeed as part of his job to expose aspects of
government policy based on documentation he might have got, did
you think about that aspect of it when you were using this catch-all
of misconduct in public office, that it might be viewed in a very
different way perhaps?
Mr Quick: Of course I was very
mindful of the context. The first thing I think to say is in my
experience, and certainly in my own experience, the police are
not particularly concerned about the activities of Opposition
MPs in making the life of the serving Government difficult, that
is not really of much interest to police officers. However, you
made the remark that the offence is a catch-all; I am not entirely
sure what you mean by that, but it is a very specific offence.
Q943 Ann Coffey: What does it mean?
Mr Quick: Well, the offence is
that you breach the duties and trust of a public office, and in
doing so, you cause damage, and part of the investigation, under
misconduct in public office, of course was to try to establish
how much damage has been caused.
Q944 Chairman: Yes, from the point
of view of the civil servant, the duty and trust of a public office
may perhaps be clear, particularly in the context of the Civil
Service Code. It is not so clear in the context of a Member of
Parliament. How does that offence apply to the actions of a Member
of Parliament? In what way do we breach public trust?
Mr Quick: Well, in this case,
I believe, and the CPS will speak for themselves, of course, if
asked, but I believe their advice really was along the lines that
the inquiry had revealed some evidence that suggested Christopher
Galley may be guilty of a relatively serious criminal offence,
and that further, the evidence had revealed the potential for
an MP, Mr Green, to have incited, encouraged, conspired with him
to leak material, and therefore potentially commit the same offence
as a joint enterprise. As the inquiry progressed, of course, evidence
emerged that Mr Green was not a passive recipient of leaks but
was active in procuring leaks, and therefore, placing Mr Galley
potentially at risk of criminal sanction and potentially himself.
Q945 Ann Coffey: But Damian Green
is not subject to the Civil Service Code, is he? I go back to
my point: what you seem to be saying is if you establish that
the civil servant was guilty, and that is easier to establish,
then if in this relationship with Damian Green, then Damian Green
also became guilty of the same offence, because he was receiving
material that the civil servant was giving him, and clearly he
was in breach of that. But I am sort of questioning that, because
it seems to me that although you can establish that misconduct
in public office easier with a civil servant, it is not that easy
to establish with a Member of Parliament, who might see that their
duties go to the wider public, to their constituents, to exposing
things they see a government might want to keep hidden, but they
see it as their duty to show us, because after all they are elected,
they are not employed in the same way that civil servants are
Mr Quick: No, and I think I understand
your point, but at the same time, whilst Mr Green, of course,
was not subject to the Civil Service Code, he is subject to the
criminal law, and the evidence revealed, I believe, quite a worrying
degree of complicity on the part of Mr Green
Q946 Ann Coffey: Complicity in what,
Mr Quick: In encouraging the leaking
Q947 Ann Coffey: Do you not think
politicians should encourage leaking of material?
Mr Quick: Well, I do not think
they should, no. I think it is clearly
Q948 Ann Coffey: That is a criminal
offence, is it, encouraging leaking of material?
Mr Quick: It can amount to a criminal
offence, of that there is no doubt.
Q949 Ann Coffey: Even though it is
not an offence under the Official Secrets Act?
Mr Quick: I think my response
would be that the purpose of the investigation is to establish
whether it is or is not, and that is the process that we were
Q950 Mr Henderson: Can I ask you,
Mr Quick, did you consider prosecution of a lesser offence than
misconduct in public office? I think you may have heard the questions
I asked Sir Gus. Was that considered?
Mr Quick: Not to my knowledge.
The original offences that were under consideration or questions,
were offences under the Official Secrets Act committed, and were
offences of misconduct in public office; I am not aware of any
lesser offences at that stage being considered.
Q951 Mr Henderson: Whether it was
worthwhile considering a lesser offence is something one would
need to make a judgment about, but were there lesser offencestheft,
or entering the safe without permission?
Mr Quick: In fact, thank you for
reminding me, in fact the theft and handling dimensions, receiving,
I believe were considered, because one of my colleagues, a Detective
Chief Superintendent who was overseeing parts of the investigation,
briefed me to that effect, that there had been a discussion.
Q952 Mr Henderson: Conspiracy?
Mr Quick: Conspiracy to commit
an offence of misconduct in public office, I believe was discussed.
Indeed, I think the advice clearly was that that was an offence
that may be capable of proof.
Q953 Mr Henderson: So the Member
of Parliament could have also been charged with conspiracy?
Mr Quick: Yes.
Q954 Mr Henderson: Can I ask you
exactly the same question, just to finish on this point, as Sir
Gus: do you think the law is adequate in this regard, or do you
think there is need for modification?
Mr Quick: Clearly, as has been
said, the application of this offence to leaks is very controversial,
and I think that was understood very early on in this inquiry.
I would want to really underline that the Metropolitan Police
did not go forward with these acts without consideration at the
highest levels in a great deal of depth, a lot of soul-searching
and searching of one's conscience, but I think the law is pretty
clear as it stands. It has been suggested that perhaps there should
be no criminal sanction for leaking material that is of a restricted
or confidential classification, but I do think that introduces
some really practical problems and risks, which may be a matter
for others to consider.
Q955 Mr Blunkett: The present Director
of Public Prosecutions in his decisions relating to Christopher
Galley has actually narrowed the definition, has he not?
Mr Quick: Yes, I think he has
helped, I think this case has further defined the parameters,
and his judgment, as Sir Gus O'Donnell made clear, was that in
the circumstances, it was inevitable, indeed I would say pretty
obvious that this was going to be investigated by the police,
because there clearly was a very serious risk created by Mr Galley's
behaviour, and indeed I might venture to suggest Mr Green's behaviour.
However, he made clear that the threshold for damage is quite
high, he said there was damage that was created by these leaks,
and that that damage should not be underestimated. However, how
far away from the threshold that would have led to a prosecution
perhaps only the Director of Public Prosecutions knows.
Q956 Chairman: So some good may have
come out of these events after all?
Mr Quick: Quite possibly.
Q957 Sir Alan Beith: I am just slightly
worried by loose reference to "these leaks". When the
phrase "these leaks" was used by the Cabinet Office,
it was referring to leaks which went back to 2005, and included
leaks which there was no evidence around to suggest were linked
in any way to Mr Galley or Mr Green. Were you using it in the
Mr Quick: No, I think my reference
was to the commentary by the Director of Public Prosecutions on
16 April of this year which was solely on those leaks that the
investigation had revealed were connected to Mr Galley and Mr
Q958 Sir Alan Beith: Notwithstanding
your answers to earlier questions, I am still puzzled as to why
you or somebody in the Metropolitan Police did not go back to
the Cabinet Office at the point when it became clear that the
one offence you could go after was misconduct in public office,
and say, "We have not found evidence of an Official Secrets
Act offence, it is not even that we have established that these
various people may be involved, but we cannot pin it on themyou
actually had not found evidence of thatbut we are proceeding
on this other matter", because what you were doing at that
point was making a judgment, as you are entitled to do as a police
officer, that in this respect, the criminal law should be tested
or perhaps enforced against two individuals, but you were not
pursuing to its conclusion a charge about an Official Secrets
Act offence. It seems odd to me that you did not say to the Cabinet
Officeyou could have said, of course, "It is entirely
up to us, we are entitled to proceed in this matter, or you may
prefer yourselves to carry out an investigation", but you
did not have that discussion with them.
Mr Quick: I think that is a fair
point. However, my recollection of events is simply this, that
at that point, when decisions were taken to effect the arrest
of Mr Green, the fact is we did not know and could not possibly
know whether offences under the Official Secrets Act had or had
not been committed, because the material that we had recovered
indicated a relationship over two years where clearly a number
of pieces of information were leaked. I do not believe to this
day we have recovered all of that material. I do not believe to
this day we are entirely and conclusively sure about everything
that was leaked in that period, in that relationship. And we had
very compelling information from a member of Opposition that secret
material was being leaked, so surely there is a logic
Q959 Sir Alan Beith: This was the
same quotation as was used in the earlier evidence by Gus O'Donnell,
the so-far unnamed Opposition spokesman said, "We only use
half the material", or words to that effect.
Mr Quick: That allied to the facts
that were pretty indisputable that we had someone prepared to
enter a safe which we believed to hold secret material.