Sunday, 30 November 2008

MPs and the law

I have tried not to get wound up about it but the incident of the MP and his arrest and treatment has got under my skin. It seems that condemnation of police is universal but much of this, I feel, comes from public ignorance of some of the lesser used laws of the land fuelled by the media who see it as a stick to beat one side or the other. We have claims that it was not a matter for police action and that they should have held off the complaint that was made to them by a senior official of the government. This suggestion that it was not a police matter is made at a time when more and more people are complaining that the service do not attend when they report a crime. If the allegation were not investigated by police – who then? Does anyone feel happy about the cash for honours saga where government obviously called many of the shots? Then we had the off and on and off again BAE/Saudi case. Who is really convinced by the results of the inquest into David Kelly? Where evidence will mainly consist of documentation or computer records all too easily destroyed or deleted, maximum confidentiality is essential. Editors have focussed on who was told in advance of the raids. They suggest that DPP should have been consulted but several who make this point report that he was told shortly before they went in. We have not heard what the DPP has to say but it was open to him to object when he was told. It would seem he did not; any observation from him now that he objected would be an example of 20::20 after sight. The speed of modern communications would have allowed things to be cancelled or done differently.
There are those who say that the civil servant and the MP were following a tradition long established. I would agree but many things have changed since the tradition commenced. Both journalists and whistle blowers have lowered integrity in these times where we now live.
I've done some digging. My understanding of conspiracy was aged but simple. I knew it as the execution of an unlawful act or doing something lawful by an unlawful means. Here, both parties chose an unlawful way to carry out their actions. We have procedures whereby illumination can be directed into dark recesses. The Freedom of Information Act (FOIA) 2000 came into force on 1 January 2005. It establishes a “general right of access to all types of recorded information held by public authorities”. . It also needs to operate in conjunction with the Data Protection Act (DPA) 1998 and the Environmental Information Regulations 2004, and oversight of all three rests with the Information Commissioner. This legislation and regulation promote a “culture of openness” and accountability, alongside protecting privacy rights, across the public sector. The whistle blower could have supplied the member with chapter and verse to formulate a FoI request. All legal and above board.
The Criminal Law Act 1977 redefined conspiracy and put it on a statutory footing. The offence-creating provision is section 1(1). So far as material for present purposes section 1(1), as substituted by the Criminal Attempts Act 1981, provides:
'…if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions … (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement …he is guilty of conspiracy to commit the offence or offences in question.'
The offence therefore lies in making an agreement. Implicitly, the subsection requires also that the parties intend to carry out their agreement. The offence is complete at that stage. The offence is complete even if the parties do not carry out their agreement. The offence is complete even if the substantive offence is not thereafter committed by any of the conspirators or by anyone else. The whole question of conspiracy is well examined in R. v. Saik a House of Lords appeal in session 2006 UKHL 18 reported at.
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Worthy of note at this time is “will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement “ I will suggest that the action by the civil servant to pass on papers was an offence by him. As soon as the MP agreed to accept these, he was dragged into the conspiracy.
The MP was dragged into the conspiracy situation by his association with the civil aervant who is considered to have committed an offence of misconduct in public office. The elements of this offence have been stated by CPS as
a) A public officer acting as such.
b) Wilfully neglects to perform his duty and/or wilfully misconducts himself.
c) To such a degree as to amount to an abuse of the public’s trust in the office holder.
d) Without reasonable excuse or justification.
A Public Officer is Guilty of Misconduct in these circumstances:
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. 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”
It is a Serious Offence, compared by the CPS to perverting the course of justice:
Like perverting the course of justice, misconduct in public office covers a wide range of conduct. 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.
So, I think that explains why the MP was due to be investigated. Can I quickly dispose of the question as to why Anti-Terrorist police were used? It is just a quirk of a 2006 police reorganisation. Official Secrets Act cases have always fallen to Special Branch, which was merged into the Counter Terrorism Command in 2006, hence you get a superannuated Plod on the case rather than the regular variety. I am not sure if MPs are bound by the OSA; it might clash with parliamentary privilege. Members of both Houses of Parliament are granted special rights and privileges, including immunity from laws on slander for any statement made in a parliamentary debate.
These privileges are affirmed in the Commons by the Speaker at the beginning of each Parliament.
Parliamentary privilege guarantees the rights of MPs and peers to enjoy freedom of speech and freedom from arrest (on civil matters) in the House, and the freedom of access to the monarch. As to whether the Speaker or any other parliamentary functionary had a right or duty to stop police from searching his Westminster office, the detailed law of parliamentary privilege has been built up from individual cases where Parliament has decided that certain acts interfere with the essential rights of MPs. These are known as "contempts". It may be the question of searching rooms at Westminster has not been considered. It is also a privilege and not an absolute right that over-rides the law of the land. And, let's look at the question as to whether removal of papers was an abuse of privilege. It would seem not. is Standard Note: SN/PC/2024 Last updated: 5 April 2004 Author: Oonagh Gay, Chris Pond of the Parliament and Constitution Centre where the opinion is “A Member referring an allegation to a Minister, government body, council or company would not be protected by absolute privilege, since letters and telephone calls originating with Members are not proceedings in Parliament for the purposes of the Bill of Rights. (my emboldening)
The question of arrest derives from Police and Criminal Evidence Act (PACE) and is part of section C which covers, amongst other matters, the detention, treatment and questioning of persons by police officers as well as tape recording of interviews with suspects together with searching of premises by police officers and the seizure of property found by police officers on persons or premises.
Starting at the beginning of the relevant bits we have C 3.21 which rules that anyone attending a police station voluntarily to assist with an investigation may leave at will unless arrested. If it is decided that they shall not be allowed to leave, they must be informed at once that they are under arrest. One can here understand a quandary for any investigator. If the subject is asked to come to the police station at their convenience it is likely that they will destroy any physical evidence such as documents or recordings of conversations. If allowed to walk away as soon as the interview commences, the same risk applies. So, it is sound investigative practice to arrest anyone who is a witness against whom charges might be brought. The question of suspicion would seem to be covered under Note for Guidance 10A which states that there must be reasonable, objective grounds for the suspicion based on known facts or information which are relevant to the likelihood the offence has been committed. If the civil servant has admitted the contact or there is other good evidence such as connecting the disclosure by the MP with the role of the civil servant, then he is a suspect and has to be dealt with as such.
PACE imposes numerous conditions regarding the manner in which interviews be carried out. The main thing requires the recording of the interview. This would seem to require a suite especially fitted out and not in a suspects office or home. There are notices that have to be displayed for the information and benefit of prisoners. Anyway, anyone who experienced the charms of the Judges Rules which governed police action prior to PACE will recall the “admissions” made in the back of police cars of the 'Gawd blimey guv – you've got me bang to rights' school. As the argot of the times had it ' done up like a kipper'.
The searching would seem to be OK as well. Police and Criminal Evidence Act 1984 Section 18 permits a constable to enter and search any premises occupied or controlled by a person who is under arrest for an arrestable offence if he has reasonable grounds for suspecting there is on the premises, other than items subject to legal privilege, that relates to that offence or some other arrestable offence connected with or similar to that offence.
A constable may conduct such a search before taking the person to a police station and without the written authority of an other inspector rank or above if the presence of that person at a place other than a police station is necessary for the effective investigation of that offence.
I have enough of the conspiracy theorist in me to accept a suspicion that the protests are politically based rather than outrage at erosion of our legal customs and tradition.



  1. Caroline19:14

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