There's been a lot of to-ing and fro-ing in the previous threads about whether the Police needed warrant or not. The Police apparently think they did, because they had three warrants issued at 5.15pm on Wednesday. One was to seach Damian Green's Ashford home, one to search his London home and one to search his constituency office.
Why did they not apply for a warrant to search his House of Commons office? Did they think they didn't need one? Or was it because Jill Pay had already given them the nod.
Or there is another explanation. The Police did think they needed a warrant to search Green's Commons Office, applied for it, but the magistrate turned it down. Unlikely, but in this peculiar story nothing is impossible.
Anyone know how this could be checked out?
36 comments:
Surely the Magistrates Court would have records. They used to in my day.
Brown's hypocrisy over this is breath-taking. With Mandleson's new line of attack this has become even more important to expose. Did any of the information that was leaked to Brown in the 80s and 90s threaten so-called 'state security'.
On the Labouyr hypocrisy front its worth listening to Eddie Mair skewer Harriet Harman on PM (c 5:21pm), especially the bit where he confronts her about the documents she received from her sister.
All Labour people on radio etc keep making the slur about national security. They are slimy critters.
I've no specially clever idea about how to check - an FOI request to the local Magistrates' Court? questions to the Justice Secretary? Or just ask the police? But I think in order to apply for a warrant they'd need to explain why they thought access wouldn't be given by consent - so logically, they need to ask for consent first (which they got) and then apply for a warrant if its refused (which we're now told will be the procedure the House will insist on).
I think the real question may be why they did obtain warrants for the house searches. Didn't they think the Greens would let them in?
Hi Ian,
My guess is that if an application was made it would have been to the senior district judge Timothy Workman or one of his deputies and not to a lay justice. He sits mostly at the City of Westminster Magistrates Court. You could try ringing them for information. The general switchboard is on 0845 601 3600 and the listing office (deals with which cases are heard and when)is on 0207 805 1146/1008.
Happy hunting,
Matt
The authority issuing a warrant to search within Parliament would surely have to come from a greater authority than Parliament, which does not exist. Warrants are from "the Crown" and we know what happened the last time the Crown intruded. Parliament would have to give permission, and none of its offices should presume to act on Parliament's behalf unless instructed to do so. The police should have been sent packing, and their arrogant behaviour beforehand filmed in great detail, with every face perfectly recognizable.
This was a massive raid on the constitution by the Government; do they realize themselve what they have done?
POLICE AND CRIMINAL EVIDENCE ACT 1984 (PACE)
CODE B
CODE OF PRACTICE FOR SEARCHES OF PREMISES BY
POLICE OFFICERS AND THE SEIZURE OF PROPERTY FOUND
BY POLICE OFFICERS ON PERSONS OR PREMISES
5 Search with consent
5.1 Subject to paragraph 5.4, if it is proposed to search premises with the consent of a
person entitled to grant entry the consent must, if practicable, be given in writing on
the Notice of Powers and Rights before the search. The officer must make any
necessary enquiries to be satisfied the person is in a position to give such consent.
See Notes 5A and 5B
5.2 Before seeking consent the officer in charge of the search shall state the purpose of
the proposed search and its extent. This information must be as specific as possible,
particularly regarding the articles or persons being sought and the parts of the
premises to be searched. The person concerned must be clearly informed they are
not obliged to consent and anything seized may be produced in evidence. If at the
time the person is not suspected of an offence, the officer shall say this when stating
the purpose of the search.
5.3 An officer cannot enter and search or continue to search premises under paragraph
5.1 if consent is given under duress or withdrawn before the search is completed.
5.4 It is unnecessary to seek consent under paragraphs 5.1 and 5.2 if this would cause
disproportionate inconvenience to the person concerned. See Note 5C
Notes for guidance
5A In a lodging house or similar accommodation, every reasonable effort should be
made to obtain the consent of the tenant, lodger or occupier. A search should not be
made solely on the basis of the landlord’s consent unless the tenant, lodger or
occupier is unavailable and the matter is urgent.
5B If the intention is to search premises under the authority of a warrant or a power of
entry and search without warrant, and the occupier of the premises co-operates in
accordance with paragraph 6.4, there is no need to obtain written consent.
5C Paragraph 5.4 is intended to apply when it is reasonable to assume innocent
occupiers would agree to, and expect, police to take the proposed action, e.g. if:
• a suspect has fled the scene of a crime or to evade arrest and it is necessary
quickly to check surrounding gardens and readily accessible places to see if
the suspect is hiding
• police have arrested someone in the night after a pursuit and it is necessary to
make a brief check of gardens along the pursuit route to see if stolen or
incriminating articles have been discarded
The results of all this seem to be salutary. No other such raid will take place. Several coppers have been put in their place. No-one has had to insist that civil servants should be contractually able to leak.
I would like, in our system, for the opposition spokespersons to have access to all internal ministry docs, but no party is likely to be keen on than.
I will vote Labour at the next election (Ivan Lewis), but I would not mind a hung parliament.
I still could not trust Tories to behave better.
I believe that they realised they needed consent to get in. (No court can issue such a warrant) So they effectively uses subterfuge to obtain such "consent". Minor subterfuges to gain a perceived consent are an everyday tool in practical street policing. In this case, the senior plods who told their juniors to kid their way in must have been on something to think this wouldn't come out.
Unless.
They all thought in practise that they did have proper consent.
From whom we ask?
Why the Home Secretary of course. Who else?
But they said it was the DPP.
Well everyone can make a mistake in the heat of the moment.
it true that Boris spoke to Green about the case
oooucchhhh
Tim, Try writing in sentences. It usually aids understanding.
Would you also mind changing your name on this site. Tim Ireland also posts as Tim, and as he got there first he is probably entitled to keep the name. Could add another word? Tim from London, or something?
Perhaps they never applied for a warrant.
If Harman lead the Police to believe they didn't need one, it opens the door for her to stitch them up now and in doing so taking the focus off the Government.
"Try writing in sentences. It usually aids understanding." True. How about the first sentence of your post, Iain?
Mandy is pulling many strings, methinks.
HH is planning some ghastly outrage to our Constitution.
This should remind people how important Warrants are to us and how our protection under them has been eroded by this government.
What I don't understand and would be grateful for enlightenment on is, it has been stated that Damian Green was arrested, and where somebody is under arrest then the police do not require a warrant to search premises.Yet the police applied for a warrant to search DG's constituency home, parliamentary home and constituency office. Why would they need to do this and why not by that token apply for and be granted a warrant to seach his HoC office as well?
There seems to be an inconsistency or contradiction here.
wv zeropole shortage of east european plumbers?
Even more smoky mirrors designed to confuse.
I have a better plan. Let's go back to basics.
Galley/Green affair: An idiots guide for Tories
I have a horrible feeling Iain may actually have a point. On the face of it the police have warrants for the three premises for which they were not required but no warrant for the site that (at least arguably) may have done. Makes no sense. Unless...
...Green was never a target. Police wanted to search simply to bolster the case against Galley. With no intention to arrest Green they needed four warrants. The DJ gave them three but drew the line at Portcullis House. Only then did the police decide on the end run of arresting Green.
A little conspiratorial perhaps but can anyone think of a better explanation?
Yellowbelly. They didn't need a warrant. Section 18 PACE covers it.
I would be surprised if the police had applied for a warrant to enter and search offices at the House of Commons.
I expect they took the view that it was pointless because they would not be able to execute it without consent, or a breach of privilege would arise. If consent of the House was available then a warrant would not be necessary (apart possibly in relation to personal property of an MP he had in his office).
I think the Committee of Privileges should think long and hard before approving any scheme of the Speaker to permit warrants against the House to be issued and executed without consent.
Sorry but after watching today's debacle I know democracy in this country is dead - Brown wouldn't answer a question and wasn't even listening to Clegg - his arrogance knows no bounds - I cannot believe this (insert appropriate word) is Prime Minister.
Come on Cameron up your game and get rid of this odious excuse for a man- otherwise we are ruined
Rohan @ 8.51 pm
so why did they apply for them and have them granted at 5.15 pm on the Wednesday?
I am not at all sure Yellowbelly. It strikes me as odd that the police sought three warrants when under section 8(1a)(b) they could have used an all premises warrant. My hunch is that they felt that the various provisions didn't cover the situation fully so to remove doubt they sought warrants to cover all their bases. That means they comply with the statutory duty imposed on them via section 6 of the Human Rights Act to act compatibly with Convention rights. The right in this context being Article 8 - respect for home and correspondence. Interferences with Article 8 need to be prescribed by law. PACE provides that legal framework.
Of they can search consensually. Indeed, much policing is carried out on that basis. So cheekily they rock up at the Commons and ask to be let in...
Does it matter? It's just been revealed that the democratic principals of Parliamentary Privilage and the sanctity of Parliament are little more than constitutional conventions that can be ignored should there be a will to do so.
That's the real issue here. Not only what happened bad enough, but it was also completely legal. Parliament has the same protections as my house. No more, no less.
I'm pretty stunned actually. The MP's should be running to the statute book to right this wrong but they won't. They are all too busy pandering to the overly simplistic line that "no-one is above the law".
*shakes head*
Despairing Liberal, Withering Vine: I believe we are making a point that is being overlooked. A warrant would not have been enough. Any invasion of the House of Commons should need permission from Parliament. That is a stronger protection than the need for a warrant from the Crown. The Government, the Police and the supine officers of the Commons should all be in trouble.
I think the explanation must be that the police thought they could not safely rely on the Greens giving them consent to enter their houses, or on Damian Green or his party chairman or agent giving consent to enter his constituency office - so took the view they were unlikely to gain entry with consent, and went for a warrant. The question to be asked here is why they made this assumption, and how they convinced a Magistrate that they were right, rather than merely asking for consent to search.
In contrast, they must have thought it likely the House authorities would consent to a search of Damian Green's Commons office - if they took that view, then they did the right thing by asking for consent rather than going for a warrant. This seems to me actually less questionable, not more so, than the decision to go straight to obtaining warrants without first seeking consent (if that's what they did) in respect of the other premises.
LBS: My criticism of what went on was a lack of judgement, not a lack of procedure. The police needed the consent of the House to enter and to seize property there (with or without a warrant) and they got it via the Serjeant at Arms. Whether a warrant may or may not have been issued is a non-issue raised by the Speaker. As I say, it seems to me it would have been pointless for the police to have applied for one.
It is just possible that the police were not wise to the privilege issue arising, applied for a warrant (with the other three which raised no privilege issues) but were refused it on the grounds that it would be improper to issue it without the (pointless) consent. But that would not have made what the police did improper, as opposed to ill-advised.
Head of Legal said...
"This seems to me actually less questionable, not more so, than the decision to go straight to obtaining warrants without first seeking consent (if that's what they did) in respect of the other premises."
Surely, if the police first asked for consent to search the other premises and it was refused then they would have had to go off and apply for a search warrant from a magistrate. That would have given the occupants time to destroy any incriminating evidence while the police were waiting for the warrant to be issued.
Head of Legal @ 9.26 pm said
I think the explanation must be that the police thought they could not safely rely on the Greens giving them consent to enter their houses, or on Damian Green or his party chairman or agent giving consent to enter his constituency office - so took the view they were unlikely to gain entry with consent, and went for a warrant. The question to be asked here is why they made this assumption, and how they convinced a Magistrate that they were right, rather than merely asking for consent to search.
But I thought he was placed under arrest and it has been established on here that if he was under arrest then a warrant was not required for a search of the premises to take place?
http://duncanborrowman.blogspot.com/2008/12/parliamentary-privilige-bill-of-rights.html
Newmark, you're right: that's presumably why they went for a warrant.
Yellowbelly: I can't answer your point about why they didn't rely on s18 re: the houses and constituency office.
To be honest, I can't understand why people think the issue of warrants is so crucial, anyway. Of course it'd be important if the searches were unlawful, but on what we know there seems no reason to think they were - unless you take an eccentric view of Parliamentary privilege, like say Withering Vine does. I suspect much of the focus on this has been because MPs and journalists assumed that the fact there was no warrant meant the search was unlawful.
The big issue here is the outrageous, authoritarian behaviour of ministers (they must have ordered Cabinet office to call in the police) and the police is using the common law to arrest Galley and Green in the first place. The question of warrants is a sideshow. I really hope MPs don't get so obsessed by it that they fail to ask the really important questions to Jacqui Smith tomorrow.
As most people won't bother following my link, this is what I said:
The events of today, and indeed the past few days over Damian Green strike to the heart of our democracy. Let nobody believe this is a storm in a political tea cup, some bit of trivia. It is wrapped up in the whole basis of our free, representative, parliamentary democracy. But do not let the Tories claim it is about the right to oppose. The fundamentals are about the power of Parliament, not about the government party and opposition - they go back far further in our constitution to that.
Now many are amazed that the Police came without a warrant. And Ian Dale has a posting on this.
But, who could issue such a warrant. The Bill of Rights 1689 says:
That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.
So, in my view, and I am not a lawyer (but this is the sort of issue that if it was commercial law would make lawyers very rich), that the only court that could award such a warrant is the House itself, by calling the police to the bar of the House. Or at least by the House itself delegating that power internally, which is maybe why Mr Speaker said today that he would have final say on future incidents, though I am not convinced that quite fits the relevant section of the Bill of Rights.
Question is, what stipe would issue a warrant to search the offices of a higher court?
Duncan Borrowman ...
On my "eccentric view" on privilege, the fact of the matter is that there is no precedent for the current case as it appears to be the first time that the police have carried out a raid within the precincts of Parliament.
It is well accepted that unlawful conduct committed within the precincts has no privilege attaching to it unless it were to be comprised in a proceeding in Parliament (and so protected under article 9 of the Bill of Rights); nor can members or peers use the precincts as some kind of "sanctuary" against arrest. But that does not mean that warrants can be issued and executed without consent for the seizure of property of Parliament (such as its computers or papers) in furtherance of a criminal investigation.
On thinking about it, something might well therefore hang on whether any property seized were to be property of Parliament or personal property. However, since Damian Green did not (as far as we know) consent to any seizure, it seems unlikely that any significant quantity of personal property was taken from his office at the House.
This is entirely academic if Parliament chooses not to enforce such privileges as apply in this case.
To answer one other of your questions, it is unlikely that article 9 of the Bill of Rights (which you cite) would have any application to the execution of warrants within the House. It would not generally comprise a proceeding in Parliament.
If we had a formal written British constitution then all this would never have happened. All this talk of 4 principles is because the rules simply aren't clear enough. Constitution by convention is just an excuse to make the rules up as they go along. Mind you, it'll take a revolution to get that sorted..
Would the magistrates agree to grant a warrant for the Palace of Westminster? They have no jurisdiction there, so the issue of a warrant would serve no useful purpose.
If the Parliamentary authorities had not given permission for a search, applying for a warrant would be enough to put you in contempt of the House. On the other hand, if permission had been given, nothing would be added to it by the issue of a warrant. Parliament could, for example, change its (collective) mind and then the warrant would be unenforceable.
This letter confirms that the police could not have got a warrant without first asking for consent to search the Parliamentary office - and that that's what they did first, rightly.
As a matter of interest it also clearly shows that the police's legal view, as well as the Speaker's, is that a search warrant can indeed be issued by a Magistrate under PACE in relation to the Palace of Westminster.
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