3 Arrests and searches elsewhere
The arrest of Christopher Galley
61. Sir Ian Johnston concluded that the arrest
of Christopher Galley was lawful and proportionate in the circumstances.
The rationale for the arrest included Christopher Galley's having
been one of a very few people with access to a "tracked changes"
version of a draft letter from the Home Secretary to the Prime
Minister, which was the subject of a report in the Daily Mail
on 1 September 2008.[106]
Sir Ian Johnston was critical that some of the records relating
to the arrest were "not as complete or as consistent in some
of the documentation as they might be".[107]
His view nonetheless was that the arrest was lawful, considering
that the arresting officer would have formed the honest suspicion,
based on reasonable grounds, of Christopher Galley's guilt of
an offence, and that it was necessary to arrest him in order to
allow the prompt and effective investigation of an offence, in
order to prevent evidence being destroyed, and to obtain evidence
by questioning.[108]
62. Sir Ian Johnston believed that Christopher
Galley's arrest was proportionate, because arrest was the only
effective way to interview him, to recover property and to limit
his opportunity for collusion, which was important because of
the reasonable basis to suspect Christopher Galley's wide involvement
with other leaks.[109]
The police were not aware at the time of the Cabinet Secretary's
view (mentioned above) that they would have been wise to drop
the investigation once it was clear that national security was
not in question.[110]
The arrest of Damian Green
63. In his review of the decision to arrest Damian
Green, Sir Ian Johnston concluded there was a lawful basis for
the arrest. Christopher Galley's admission when arrested and questioned
that he had supplied four pieces of leaked information to Damian
Green was corroborated by letters found in his possession from
Damian Green on headed House of Commons paper. The police had
reasonable grounds for suspecting Damian Green of aiding, abetting,
counselling or procuring misconduct in public office by Christopher
Galley.[111]
64. The case being considered by the police against
Damian Green was that he had done more than receive leaks, according
to former Assistant Commissioner Robert Quick. Among the papers
seized from Christopher Galley's home were letters from Damian
Green which appeared to offer encouragement to provide further
material.[112] In evidence
to this Committee, Damian Green denied that he had ever encouraged
Christopher Galley to break his duty of confidence as a civil
servant.[113] Among
the messages relied on by the police was a letter dated 23 August
2007 from Damian Green on Commons headed paper
Dear Chris,
Thank you for your recent communications. As ever,
these have been extremely useful and I hope you can keep them
up in your new post.
Yours Sincerely,
D.[114]
65. Sir Ian Johnston considered on balance that
the police action to arrest Damian Green was disproportionate,
highlighting these key points
- the interval since the arrest
of Christopher Galley, allowing Damian Green ample opportunity
to dispose of evidence and to collaborate with Christopher Galley;
- the offences linked directly to Damian Green
were four cases of embarrassment level leaks (as were 30 of the
31 unauthorised disclosures from the Home Office between February
2004 and September 2008); and
- "the arrest of an MP will clearly arouse
public interest on very significant levels about security, Parliamentary
Privilege and liberty issues which, in my view, calls for additional
consideration in the use of power."[115]
66. Sir Ian Johnston concluded on balance that
operational aims of obtaining evidence by questioning could have
been achieved by a less intrusive approach, by inviting Damian
Green to attend a police station by appointment accompanied by
his legal representative for arrest and interview.[116]
Damian Green told us that he would have co-operated with such
a request.[117] Deputy
Assistant Commissioner John McDowall defended the decision to
arrest Damian Green without notice, despite the elapse of time
since the release of Christopher Galley: "you never know
when a person may or may not agree to actually come and speak
to you".[118]
67. Former Assistant Commissioner Robert Quick
strongly disagreed with Sir Ian Johnston's conclusion, describing
it to us as misleading, based on inaccurate information or a limited
appreciation of the facts and flying in the face of the evidence.[119]
Robert Quick described Christopher Galley's admissions at interview
on Wednesday 19 November as "troubling" and he told
us that ordinarily the police would have acted on those admissions
and would have effected a further arrest almost immediately. Robert
Quick told us that in this case, however, the police recognised
the huge sensitivities, and possible legal complexities, involving
a Member of Parliament: "it was my judgment, I believe shared
by John [DAC McDowall], that we should in this case exceptionally
delay taking action, so that we could take full legal advice from
the Metropolitan Police Directorate of Legal Services, and indeed
consult the Parliamentary authorities at an early stage, and indeed
take further advice from Crown prosecutors".[120]
The view taken by the police on Thursday 20 November, the day
after Christopher Galley's arrest, was that the risk of losing
evidence was outweighed by the need to ensure the legality of
any action and to liaise with, and seek guidance from, the parliamentary
authorities.[121] It
was only later that the police learned that Christopher Galley
had in fact phoned Damian Green in the evening of Wednesday 19
November, very soon after his release from police custody.[122]
The "Gold Group" chaired by Assistant Commissioner Robert
Quick met twice on Wednesday 26 November and decided that Damian
Green should be arrested the following day, the first day of the
short Prorogation recess.[123]
We have no hesitation in
agreeing with Sir Ian Johnston that the decision to launch the
surprise arrest of Damian Green was disproportionate.
68. While we note the decision
of the Gold Group chaired by Assistant Commissioner Robert Quick
to take stock of the evidence from Christopher Galley before making
a decision on whether and how to arrest Damian Green, we find
their approach difficult to understand or justify.
69. Deputy Assistant Commissioner John McDowall
explained that the Metropolitan Police Service decided to take
a "softly-softly" approach to the arrest of Damian Green
on Thursday 27 November and so had decided not to ask Kent Police
for help in identifying where his home was, owing to the police's
anxiety "to preclude the widening of knowledge in relation
to the investigation".[124]
Damian Green told us that there was circumstantial evidence that
the police were simply surrounding the wrong house.[125]
DAC John McDowall denied that the police went to the wrong house,
but asserted to us that the arresting officers had narrowed the
search to a certain two adjacent dwellings in a relatively rural
area.[126] By 1.05
pm on the day of the arrest Assistant Commissioner Robert Quick
decided to phone the Leader of the Opposition to ask for his help
in locating Damian Green.[127]
70. Damian Green told us that he regretted leaving
his home with the police before they had completed their search,
because when he next returned he found his home "unliveable
in because they had taken away all means of communication with
the outside world".[128]
The police took away Damian Green's mobile, his Blackberry, both
phones and faxes, the home computer and even the Internet hub,
which Damian Green described to us as "unnecessarily heavy-handed".[129]
Robert Quick told us that the investigation team emphatically
denied the stories that were later allowed to circulate, without
being challenged or refuted by the Metropolitan Police Service
Press Office, including allegations that the police targeted the
wrong address, used sledgehammers and caused significant damage.[130]
The arrest of Damian Green
by the Metropolitan Police was poorly executed and in any case
quite unnecessary, since the police could have arranged to interview
him by appointment.
71. Among the many shortcomings in the conduct
of the police operation, it is disturbing that for his first three
hours in custody Damian Green was subject to covert tape recording.[131]
Sir Ian Johnston noted that good practice usually means that the
Superintendent authorising such covert action should come from
outside the line command of the investigation. The fact that this
was not done in the Damian Green case contributed to providing
"rich material for an attack on the proportionality overall
of the investigative approach".[132]
We condemn the covert use
of electronic surveillance, which was not authorised in the way
that good practice normally requires.
72. Damian Green told us that one of the consequences
of having been arrested would be that he would forever need a
visa to visit the United States, no longer being eligible for
the US visa waiver scheme.[133]
As is normal practice, he was fingerprinted, photographed and
required to give a DNA sample.[134]
Damian Green was in some respects treated with consideration,
in not being detained in a cell or placed under any form of physical
constraint, having instead a section of the Belgravia police station
custody suite set aside for his privacy.[135]
A few months after the decision not to press charges, the police
decided to make another concession in Damian Green's case by deleting
his DNA record from the national database.[136]
Damian Green told us that the police "agreed it was an exceptional
case so they would do it but they did not give an explanation".[137]
The retention of DNA profiles on the national database is a central
issue in the Crime and Security Bill, currently before Parliament.[138]
Search warrants
73. Our inquiry was prompted by the search of
Damian Green's office on the Parliamentary Estate, which was executed
without a search warrant. There were, however, some search warrants
issued by a District Judge for other premises linked to this case.
A warrant was granted by a District Judge for a search of Christopher
Galley's home on Wednesday 19 November 2008, after a comprehensive
written information was laid. Sir Ian Johnston noted that it was
"interesting" that the warrant contained reference to
secret material: "it is not clear why reference to this type
of material is included, given the MPS scoping study and the apparent
absence of reported leaks at this level during Galley's time at
the Home Office".[139]
Nevertheless, Sir Ian Johnston's view was that given the District
Judge received a comprehensive written information before granting
a warrant, the search was lawful. In Sir Ian Johnston's opinion,
there was a reasonable prospect of relevant letters from Damian
Green being found at Christopher Galley's home and that it would
have been neglectful to fail to undertake such a search. As a
District Judge had apparently concluded it was appropriate to
authorise a warrant, having considered proportionality and consent
issues, Sir Ian Johnston concluded that the searches of Christopher
Galley's home (and office see below) were proportionate.[140]
74. On Wednesday 26 November 2008 search warrants
were obtained from the court for Damian Green's home addresses
at Charing, Kent and Acton, London and his constituency office
in Kent.[141] Sir Ian
Johnston observed that, though a comprehensive written information
had been laid before the District Judge setting out the basis
for the search, it was "of note" that the warrants covered
search for 'secret' material: "in the MPS scoping document,
none of the leaks in the Home Office while Galley worked there
apparently relate to material at this level in the GPMS".[142]
Sir Ian Johnston told us that the wording of the application for
the warrant was "pretty sloppy work": "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".[143]
We are deeply concerned by
the sloppy wording of the written informations, upon which search
warrants were obtained, and their inconsistency with the true
character of the leaks uncovered in the actual investigation which
must have been known and understood as a result of the scoping
operation.
75. What emerges from the Johnston Report is
that a District Judge has to rely on the facts submitted by the
police in their written information. These facts may be plausible
even if they are fundamentally mistaken, as in the reference to
secret material in this case. We cannot know whether the reference
to secret material was a critical factor in the decision to issue
the search warrants but we
are clear that to exaggerate or to make a mistake in a written
information submitted to a Judge when applying for a warrant is
to breach lawful standards.
Search without a warrant
the Home Office
76. Christopher Galley's office at the Home Office
was searched by consent of the appropriate official at the Home
Office, who was entitled to give consent and signed a form in
Book 101 to that effect.[144]
From the police point of view, this was the correct procedure
to follow in obtaining authority to search a workplace of a suspect
who was not the owner or tenant of the premisesthe same
process that they followed a few days later, in seeking leave
to search Damian Green's office at the House of Commons. Sir Ian
Johnston's view was that given the consent of Christopher Galley's
employer was obtained before the search, it was lawful.[145]
77. Sir Ian Johnston's Report sets out the conditions
in section 8(3) of the Police and Criminal Evidence Act 1984 that
a District Judge must apply in considering an application for
a search warrant
(a) that it is not practicable to communicate
with any person entitled to grant entry to the premises;
(b) that it is practicable to communicate with
a person entitled to grant entry to the premises but it is
not practicable to communicate with any person entitled to grant
access to the evidence;
(c) that entry to the premises will not
be granted unless a warrant is produced;[146]
(d) that the purpose of a search may be frustrated
or seriously prejudiced unless a constable arriving at the
premises can secure immediate entry to them.
78. According to Sir Ian Johnston, a consensual
search should be sought if any of these conditions are not met
and it is for the District Judge to consider these issues.[147]
While Sir Ian Johnston did not interview any District Judges or
the officers presenting material in the information, he decided
on balance that the searches of Damian Green's homes and constituency
office were proportionate.[148]
106 The source document, which was not protectively
marked but should have been marked Restricted Policy, for the
Daily Mail article on 1 September 2008 titled "Home
Secretary's warning that credit crunch will send crime soaring
is blindingly obvious says Minister" (Johnston Report, pages
33 and 38) Back
107
Johnston Report, page 39 Back
108
Johnston Report, page 39 Back
109
Johnston Report, page 39 Back
110
Q 902 Back
111
Johnston Report, page 41 Back
112
Ev 163 para 7 Back
113
Q 12 Back
114
Exhibit INM/32, quoted in the Johnston Report, page 34; Christopher
Galley had recently transferred to the Strategy Unit in Home Secretary's
Private Office -in June 2008 he was promoted to be assistant to
the Director of the Strategy Unit Ev 163 para 10 Back
115
Johnston Report, page 44 Back
116
Johnston Report, page 44 Back
117
Q 71 Back
118
Qq 482 to 485, 489 to 494 Back
119
Ev 169 para 35 Back
120
Q 980 Back
121
Ev 164 para 14 Back
122
Ev 164 para 14. After his conversation with Damian Green, Christopher
Galley contacted the police and arranged to return for a second
interview under arrest on 21 November. In the course of the second
interview Christopher Galley suggested that in the phone conversation
after his first release from custody Damian Green had appeared
to distance himself. Christopher Galley claimed that Damian Green
had told him to "plead not guilty" and not to mention
him to the press and had said "'do not mention David Davis'
(Ev 163 para 12). Back
123
O'Connor Report, paras 7.2.9 to 7.2.13; Johnston Report, pages
35, 42; Ev 164-165 paras 15 to 18 Back
124
Qq 486, 495 Back
125
Qq 27 to 29 Back
126
Qq 486, 495 Back
127
HAC page 13, Qq 255 to 257 Back
128
Q 42 to 44 Back
129
Q 44 Back
130
Ev 167 para 28 Back
131
Q 40; Johnston Report, pages 51 to 53, Qq 584 to 585 Back
132
Johnston Report, page 51 Back
133
Q 48 Back
134
Johnston Report, page 45 Back
135
Johnston Report, page 45 Back
136
BBC News, 19 August 2009 Back
137
Q 49; the national DNA database continues to hold DNA records
of innocent people - a policy which has been criticised, for example
in the European Court of Human Rights ruling in S and Marper
v UK of 4 December 2008 Back
138
See Eighth Report of Session 2009-10 from the House of Commons
Home Affairs Committee, The National DNA Database, HC 222-I,
published 8 March 2010 Back
139
Johnston Report, page 40-MPS is the Metropolitan Police Service Back
140
Johnston Report, page 40 Back
141
O'Connor Report, para 7.2.12; and Johnston Report, pages 35, 40,
47 Back
142
Johnston Report, page 46 -GPMS is the Government Protective Marking
Scheme Back
143
Q 590 Back
144
Johnston Report, page 40 Back
145
Johnston Report, page 40 Back
146
Our emphasis Back
147
Q 586 Back
148
Johnston Report, page 47 Back
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