Friday, November 28, 2008

Staggering Times

First of all, apologies for the lack of posts this week. I have been burning the midnight oil and work and haven't had time to blog.

Moving on to the Damian Green story, I'd like to look at something the press hasn't really covered. There are many things about this story that just don't seem right; 9 anti-terrorism officers arresting a middle-aged MP at his home in Kent; the Home Secretary and the Prime Minister claiming to know nothing about it; the Speaker of the House of Commons letting police search an MP's private office. There are so many things about the story that stink it's a wonder that people haven't started gagging when reading about it. But something that seems to have been missed is the alleged offence Green was arrested for; that of Misconduct in Public Office and a Conspiracy variable of it. Here are some highlights of the CPS guidance on this offence:

"It should always be remembered that it is a very serious, indictable only offence carrying a maximum sentence of life imprisonment. A charge of misconduct in public office should be reserved for cases of serious misconduct or deliberate failure to perform a duty which is likely to injure the public interest." I don't think anyone could question whether these requirements have been met. In fact, they look so far removed from this case one has to wonder why on earth this offence was used as cause for arrest. Admittedly charges have not been brought, and the CPS guidance technically refers to factors to be considered when preparing a charge, but the fact that the case looks so weak to begin with is relevant. Could you really say that this was a case of 'serious misconduct', or that public interest was at risk? Not a chance in my book - if anything, Green was acting in the public interest by leaking documents the government wanted to keep secret.

"The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public's trust in the office holder." If anything, wouldn't Green's actions see him gain public trust? The government has kept information quiet because it was politically embarrasing, but which also related to issues of great public concern. Does leaking information that is awkward for the Labour Party but of obvious public interest really qualify under this requirement?

"There must be a breach of duty by the officer, [which is wilful and which is such that the conduct is] an affront to the standing of the public office held." In other words, the conduct must be the opposite of what is expected from the person in question. But leaks in politics are like grains of sand in the desert. During the mid-90s it was often joked that Robin Cook had an army of moles inside government departments; they are very much par for the course. And what about the BBC's Robert Peston leaking potentially harmful economic information, or the government leaking they were considering a £1,000 Christmas windfall in the PBR? These things are leaks, but it seems that leaks are only not allowed if they are propagated by Conservative MPs, rather than journalists or the government.

If Damian Green has done something seriously wrong without a reasonable excuse, then of course the law should apply in the correct fashion. But at the moment it looks as though he has been arrested for doing something that is simply part of politics, and for making the government look bad. He seems to have been arrested for doing his job.


Jess The Dog said...

I think this will roll on, and gather momentum. No way that Brown and Smith did not know that Green was going to be arrested (sounds like Cluedo!)They may not have known when exactly, or where, but they would have been told of the impending arrest.

I'm looking forward to the Sundays!

Kev G said...

Raven - Are you able to assist with any of the following technicalities?

1. Injury to public interest. Interest in what? The holder of a public office not abusing it? In that case, the definition is completely circular.

2. Does the crime need a victim? Or even harm? Quality and quantity?

3. If not, does it require a unlawful gain by the office-holder?

[I am recalling the case of multiple share applications by Keith Best, MP for Ynys Mon, as a sort of "victimless crime", fortuitously committed by an MP. The harm (if any) would seem to be that the general public had had its opportunity diluted.]

4. Does this crime make the OSA redundant? So far as opposition MPs are concerned, is there anything that it does *not* make redundant?

5. Why is this within the compass of anti-terrorist police?

6. Anti-terrorist or otherwise, were police powers of seizure properly authorised? One doubts it, if they also tried to seize his wife's computer.

7. Does the CPS no longer maintain that like cases should be treated alike, particularly for an offence carrying a life tarriff?

8. Does the Speaker now have the discretion to admit the police to Parliament on fishing trips unless there is an overriding reason not to do so?

9. If not, and Michael Martin traduced the presumption which has held since at least 1642, should not he be the next suspect to have his collar felt for abuse of his public office?

10. Do opposition MPs now have any protection at all from arbitrary arrest? Do any of us?

The Raven said...

I'll give it a go from what I understand, though I'm no lawyer:

1. Completely circular, I thought. By doing something a bit iffy one could argue that public interest is being injured. But what if doing the iffy thing brings information out that is very much in the public interest?

2. Not as far as I know. I suspect this is why they used this rather than the OSA, since the OSA requires harm.

3. I suspect not. But an unlawful gain would probably count as injuring the public interest.

4. OSA only applies to leaks where harm has been caused. It doesn't make the OSA redundant; it just doesn't apply in this case - and cannont, in fact.

5. Some have speculated that the anti-terror police are actually just part of Special Branch. That it was never seen as a proper anti-terorism operation. But I honestly don't know.

6. The police got around this, in my view. By arresting Green they, apparently, avoided needing to get a search warrant. We can speculate as to why they didn't get one until we're blue in the face. But by arresting him - on 'reasonable suspicion' - they were then entitled to search anything that might have been relevant in proving said suspicion.

7. Not sure, though the CPS guidance makes it pretty clear that this isn't a charge to use with ropey evidence as your base.

8. Humour aside, I honestly don't know what precisely the Speaker can or cannot do.

9. Would be an interesting twist, certainly.

10. I can't help wondering if this was the point. To stop people being moles for the Tories by creating a state of fear. A friend of mine was recently arrested for running down the road screaming abuse at the person who had just mugged him. Alright, he shouldn't have been swearing quite so much, but how did the police catch him and not the mugger? So our protection isn't very good, that's for sure.