A particularly interest aspect of the law relating to the Damian Green case came out in my discussion with Charon QC earlier. You’ll remember that he was arrested on suspicion of conspiracy to commit misconduct in public office, and as a secondary party to misconduct in a public office. The elements of the offence of misconduct are:
a) someone must be a public officer, e.g. a civil servant;
b) he or she must wilfully misconducts him- or herself;
c) the misconduct should be serious enough to amount to an abuse of the public’s trust in the office holder;
d) he or she must act without reasonable excuse or justification.
It’s this last element that interests me, because it seems to me that whether you look at it through the lens of conspiracy or secondary liability, the only relevant justification is the civil servant’s for his actions: if his actions were unjustified in law than I don’t think an MP who did what Damian Green is apparently suspected of could be acquitted on the basis of justifying his own behaviour – I think that would be legally irrelevant.
If I’m right (I’d welcome the views of criminal specialists) then I think it’s a highly questionable and indeed objectionable aspect of the law as it stands and as it’s being used here – it seems clear to me that Green, if ever he were charged, should be able to argue in court that his own conduct was justified – not be limited simply to relying on a derivative argument that the civil servant’s conduct was justified.
The most recent authority on misconduct in public office is Attorney-General’s Reference 3/2003 from which you appear to have quoted the requirements of this offence. Their Lordships appear to have ruled out any requirement for “bad faith” – (compare with the tort of misfeasance in public office). They also left for the future any attempt to define “public office” and there are many people who perform public functions – (e.g. where functions are contracted out) – but who might not be caught by this offence.
Given that key aspects of the offence are not very clear, one wonders if the law meets the minimum standards of certainty which criminal law should have? I have had a brief look at some of the European jurisprudence and I think that the point is at least arguable though it might just survive this test.
I would tend to agree that the point about what amounts to “reasonable excuse or justification” is unclear. The judge would have to rule on whether something was “capable” of amounting to a defence and then it would be for the jury to decide whether, on their view of the facts, it did. Personally, even if the civil servant acted unlawfully, I see no reason why the MP should not have his own defence that disclosure of the material was justified in the public interest.
If we look at history, there are many instances where MPs have been given material obtained unlawfully. For example, there is little doubt that Churchill was given material relating to the state of affairs in pre-war Germany. We all know that Gordon Brown himself is a past master at using leaked information. Also, half the most recent budget was leaked.
If we look at our own law of evidence, the fact that evidence is obtained illegally does not automatically exclude it at trial though there may be a s.78 application.
Why then should a possible defence be denied to the MP particularly given that the offence is so vaguely defined.
The question of the misconduct being “serious enough” – point (c) in your thread – is also interesting. In the Attorney’s reference, the judges made it clear that this would be a question decided ultimately by the jury. One suspects that they might well find in favour of the MP.
Assuming the case gets to trial, the jury may yet again be the “lamp which shows that freedom lives.” Any bets on the whole thing being dropped: not in the public interest?
Unfortunately, we may not know until February when the MP has to return to the Police. This is yet another feature of modern criminal process which requires serious overhaul. Nobody should have to to wait so long to find out whether they will actually be charged or not. It is alien to our common law tradition. We are rapidly going into a world like the Portuguese “arguido” system which is capable of blighting someone’s life for very lengthy periods.
It raises also the issue of whether the MP can now perform his “shadow role” given that his arrest may well hinder his ability to speak out, even perhaps in Parliament, about immigration matters. Maybe Article 9 of our own Bill of Rights might protect him provided that he speaks only in Parliament.
I would raise another aspect, if this information was received for parliamentary purposes, for example an attempt to raise a problem with immigration law to the attention of the house, then surely police/judicial intervention or investigation is a breach of the constitutional restrictions placed on the law by the 1689 bill of rights?
I would also put forward the problem that to claim the independence of the police is sacrosanct despite parliamentary priviledge, the hypothetical position whereby an mp illegally received information that revealed corruption within a police force, and the police involved acted to silence him before he could reveal it to the house -the parliamentary protection of the BOR would have to be expected to override the polices so called independence, and one would expect the judiciary to declare any prosecution or arrest ultra vires!
It was interesting that, way back in 1938, the late Mr Duncan Sandys asked awkward questions about military equipment. His questions contained figures which could only have been obtained unlawfully (in breach of Official Secrets). The Attorney-General had a word with him and this was held by a Select Committee to be a breach of privilege and the A-G was criticised.
Of course, in those years Sandys was closely linked to Winston Churchill who was also stirring up matters related to the true plans of Hitler.
There is another aspect of this story which is not receiving any attention. In order to search the properties they did (including the House of Commons), wouldn’t the police have needed a warrant issued by a judge or magistrate?
Did they have a warrant (and issued by whom?), and does it follow that they must have satisfied a judge/magistrate that they had reasonable grounds to suspect that Green was guilty of an offence?
Have found the answer to my own question. Under s.18 of PACE the police can search any premises occupied or controlled by a person who has been arrested for an arrestable offence if they have reasonable grounds to suspect that there is evidence there. They do not need a warrant. The search must be authorised by an officer of inspector rank or higher.
@ Anonymous – please stop guessing! The issuance of a warrant (assuming that there was one) is not dependent on reasonable ground to believe that a specific person is guilty of an offence. The need to search is part of the investigatory process. Precisely what the Police must show the magistrate or judge will depend on the statute under which they are purporting to search. Often the warrant is issued on the basis of informant information to the effect that, for example. stolen goods are being hidden somewhere. You do not need to have a specific offender in mind for that.
Personally, I would hope that some other criminal expert steps in to try to answer Head of Legal’s quetsion. I believe that defences to criminal charges are essentially related to the personal circumstances of the offender and do not depend on whether or not someone else has a defence. The offence in issue here is purely common law and thus common law considerations about defences must apply.
I’m interested in your point about “arguido” status, Peter – I think you have a good point about this being a worrying development. Why should it take so long? The CPS should be able to advise on the case before Christmas, I reckon.