Comments on Iain Dale's Diary: Michael Martin's Statement Poses More Questions fo...

I note some one saying that a warrant is unnecessa...

2008-12-03T22:22:00.000Z

I note some one saying that a warrant is unnecessary where consent is given for a search. Consent by whom? Did Damian Green consent? Can the Commons staff consent on his behalf?

Some others have been saying s 18 of PACE dispenses with a warrant. Damian Green's custody record will have to show that a sec 18 search was authorised by an officer of a certain rank.

Even if the police went over to the commons armed with this authority the police would have had to inform the Commons staff -if not the speaker- that they were there to carry out a search under sec 18.

But the staff would not have known that the search was a s 18 search until they were told as such. You cannot expect them to have asked the police: Are you here on a s 18 search? it seems improbable. Moreover, it is very likely that the person in question would not haveknown of s 18. In any event, if it was a s 18 search the police would have told her it was a s 18 search.

The more natural thing is to ask for a warrant.

Moreover, it would be equally natural for the police to have told them that they did not require a warrant because they had the power under s 18. Ergo, there was no s 18 search.

It is no use saying now that s 18 enabled a search.

The terms 'arrestable offence' and 'serious arrest...

2008-12-03T22:11:00.000Z

The terms 'arrestable offence' and 'serious arrestable offence' that some commentators are using in reference to this matter are erroneous. These legal phrases have been obsolete in England and Wales since 2006.

And please - your comment on this too...APA: LEAVE...

2008-12-03T19:15:00.000Z

And please - your comment on this too...

APA: LEAVE POLITICS OUT OF POLICING
2nd December 2008 Association of Police Authorities Chairman, Bob Jones, said: “The recent controversy over the arrest of Damien Green clearly illustrates the difficulties when it can be alleged that police investigations are for party-political purposes.
”Because politicians are not above the law, there will inevitably be police investigations on issues such as postal voting and cash for honours, as well as cases like the current controversy.
“It is essential for public confidence that the police are properly accountable for impartially carrying out the law of the land. Currently, only in London, can the police be described as being accountable to a single political party, through either the Home Secretary or the London Mayor. Elsewhere in the country police are accountable to police authorities which cannot have a party-political majority, thereby offering assurance to local people that the police are accountable to all of the community, not a single vested interest.
”Outside of London, allegations of Chief Constables working to a party political agenda are rare, as the balanced structure of police authorities which oversee local policing, means this allegation has no credibility.
”The proposals from all three front benches, including the government’s proposals to introduce direct elections to police authorities, would re-introduce a party political majority to whole swathes of the country, opening up even more allegations of a party political agenda to the detriment of both policing and politics.
”All 3 front benches need to think again. For policing to have the confidence of our communities the service must be transparently accountable to the whole of the community. Reintroducing party politics to British policing will cause immense damage to public confidence in the Service.”

Thanks

Carl Eve

Iain - your comment on this please...ACPO COMMENT ...

2008-12-03T19:13:00.000Z

Iain - your comment on this please...

ACPO COMMENT ON INVESTIGATION INTO HOME OFFICE LEAKS
1st December 2008 Chief Constable Ken Jones and President of ACPO said: “The last 48 hours has seen a good deal of speculation and critical commentary around the recent arrest of Damian Green MP. Such a reaction was inevitable but there comes a time to step back, suspend judgment and allow due process to run its course. The Home Office occupies a unique position in government, with responsibility for decisions on crime and terrorism which affect the safety and security of everyone. To meet that responsibility in a way which delivers effective law enforcement to the people of our country requires complete trust between government, law enforcement and intelligence agencies. Leaks can and do erode that trust, particularly given the critical and sensitive nature of information the Home Office handles. In recent times ACPO has shared the concerns of the Permanent Secretary regarding leaks from his department. The Metropolitan Police Service was properly asked to assist.
“The police service always strives to operate in the broader public interest, and not in the interests of any political party, group or government. This is an increasingly difficult task for the service but it is not one we will shirk. The independence of UK law enforcement from undue influence and pressure is the jewel in the crown in our system of criminal justice. We should protect that principle, even when inconvenient, as it occasionally is. If an investigation reveals that any person may be involved in wrongdoing then they have the right to expect that we will investigate the matter in ways which seek to get at the truth and either sustain the allegation or exonerate them. No one can be above the law. The good reputation of our Parliament turns, to an extent, on its willingness to demonstrate its support for this principle when necessary. Enquiries of this sort provide assurance that no person under investigation, regardless of station, shall be given an opportunity to influence an enquiry in their favour.
“There are now several avenues open whereby the MPS can properly be asked to give an account in due course. Meanwhile, to repeat an earlier point, we need to let the enquiry run its course.”

Now we have had the fantasy lets hope we get to kn...

2008-12-03T19:06:00.000Z

Now we have had the fantasy lets hope we get to know what really happenened....
We need to know about the warrants and who signed them and why.
We need to know if the Home Secretary was involved.
We need some good good leaks from the Police - why should they carry the can!
And we need to hear from the S-at-A.

Parliamentary privilege encompasses a range of rig...

2008-12-03T18:50:00.000Z

Parliamentary privilege encompasses a range of rights and privileges claimed over time by both Houses of Parliament. Parliamentary privilege in respect of proceedings in Parliament is only one part of privilege and the only part covered by statute. There is privilege designed to protect members individually in fulfilling their duties and there is privilege claimed collectively by each House. What happended in respect of the search of Damian Green's office does not relate to proceedings in Parliament. However, it is for the Commons to determine if it breaches any of the other privileges it claims for itself or its members, for example in respect of obstructing members in fulfilling their duties.

It seems to me the Government front bench has badl...

2008-12-03T18:38:00.000Z

It seems to me the Government front bench has badly misjudged this issue. Peter Mandleson yesterday, and Jacqui Smith, earlier today, had clearly decided to go in hard against the Tories and now the phrase 'potential breach of security' is being bandied about. But it won't wash. It won't wash with the public and it won't wash with their own backbenchers.

Also: Gordon Brown's habit of ostentatiously laughing when David Cameron is speaking is becoming tedious. I suggest someone punches him on the nose to teach him some manners.

"The House of Commons distinguished itself this af...

2008-12-03T18:30:00.001Z

"The House of Commons distinguished itself this afternoon. There was no ranting, no raving, no play acting, and most of all not too much sign of party politics. It was an occasion when the House of Commons rose to the occasion and showed that it can behave itself when it needs to."

And just think, if we were not predominantly governed by the EU it could be our sole legislative entity too.

I find it incredible that Jill Pay went off to seek legal advice in the Palace of Westminster - a place stuffed to the rafters with lawyers - and no one advised her that she did not have to grant access to the police unless they had a warrant.

There is something very peculiar about this whole caper and the police do themselves no credit by

a) investigating in the first place instead of telling the Home Office to deal with the leak themselves

b) using the tactics they did to gain access to Damian Green's office when it was probable a search warrant would be refused as he was not suspected of a serious arrestable offence.

Head of Legal: I do not think you can conclude wh...

2008-12-03T18:30:00.000Z

Head of Legal: I do not think you can conclude what "everyone in Parliament" thinks. Going back to the original point, as I said "The Serjeant at Arms could have sent the police packing, even if they were clutching a warrant."

Best, as you say, to move on to something else.

I'm sorry you think it's tedious, Vine. But if you...

2008-12-03T18:23:00.000Z

I'm sorry you think it's tedious, Vine. But if you're right on this, how come no one in Parliament seems to think no search could be conducted even with a warrant? It's not just me you're saying is wrong: everyone in Parliament is wrong, on your view.

Anyway, perhaps you're right and we should shut up about this now: readers can make up their own minds who's right, and I'm quite happy to be shown I'm wrong.

The real issue here (as I keep saying on my own blog) is nothing to do with privilege, but the abuse by ministers and police of this old, ill-defined common-law offence against a civil servant and an MP to enforce secrecy by the most authoritarian means - simply to protect the government from embarrassment.

Head of Legal: This is getting rather tedious. P...

2008-12-03T18:16:00.000Z

Head of Legal: This is getting rather tedious. Privilege is involved in anyone other than the House itself exercising the powers of the Crown (which includes judicial powers) within the precincts of the Palace of Westminster. Without consent of the House (or the prior giving up of that privilege) they simply cannot do it. This issue was settled when Charles I lost the civil war.

Your extract was concerned with the arrest of members for criminal offences. There is no problem with an arrest provided it is not done in the precincts of the Palace of Westminster. It used to be said it could not be done while Parliament was sitting even outside the precincts, but that is no longer the case. Neither is there a problem with the issue of a warrant in respect of an MP's home.

I did a very quick online search and found the fol...

2008-12-03T18:14:00.000Z

I did a very quick online search and found the following Erskine May quote:

“serving or executing civil or criminal process within the precincts of either House while the House is sitting without obtaining the leave of the House is a contempt.”

This would seem to imply at least that on a day the House was not sitting, there was no contempt. It would also appear that other restrictions on searches and arrests in Commonwealth Parliaments have been imposed either by statute (in Canada) or written protocol (in Australia), which would seem to imply that such restrictions did not exist at Common Law.

No, it doesn't, but I don't think one is needed, b...

2008-12-03T18:08:00.000Z

No, it doesn't, but I don't think one is needed, because as I keep saying, no privilege is involved here. You obviously don't agree with the JCPP in the report I've cited.

Head of legal: That's the wrong way round. Parli...

2008-12-03T18:04:00.000Z

Head of legal: That's the wrong way round. Parliament can certainly by enactment give up its privileges - as was done (in part) in the Data Protection Act 1998 - but you would need to show a specific provision in the Police and Criminal Evidence Act applying its provisions to the House of Commons. I do not have the Act in front of me. Does it have one?

It's nothing to do with Parliamentary sovereignty,...

2008-12-03T18:03:00.000Z

It's nothing to do with Parliamentary sovereignty, girlie boi. Parliamentary sovereignty means Parliament can make or unmake any law, and no one can set aside its laws. It's about its power to legislate, not its privileges.

Jimmy: Says Erksine May (although it will be next ...

2008-12-03T18:00:00.000Z

Jimmy: Says Erksine May (although it will be next week before I have my copy available to me), principles established at the time of the Commonwealth and possibly also article 9 of the Bill of Rights (although that may be more contentious).

girlie_boi: The Speaker's statement was not concerned with the search of Mr Green's home. Privilege is irrelevant to that. What you say is not wrong, but not the point that the original article was dealing with.

Think what you like, Withering Vine: I'll be happy...

2008-12-03T17:59:00.000Z

Think what you like, Withering Vine: I'll be happy to admit you're right if you can cite me the section of PACE which exempts Parliament, or the case which establishes the point you're making. I think what you say about warrants shows you're out of line with what most people think, on all sides - that a warrant could be applied for and exercised in relation to the Palace of Westminster.

Adam, it's not that legal premises are a no-go. Legal privilege is about legal advice - the police can't simply seize anyone's legal advice - that's why searches of lawyers' offices are tricky. There's no problem searching a solicitor's office to find drugs, arms, laundered cash etc.. And anyway, this is all irrelevant: legal privilege is wholly and entirely different from Parliamentary privilege, which, as Jimmy has rightly said, does not prevent criminal arrest of MPs or search of their premises.

The Joint Committee on Parliamentary Privilege said in 1999 -

The privilege (freedom from arrest) appears never to have applied to members of either House in respect of criminal charges, or to any matter which includes an element of criminality.

See para. 326 of its report.

Forgive me if this has been covered, but there see...

2008-12-03T17:57:00.000Z

Forgive me if this has been covered, but there seem to be two important points not really being picked up here, neither of which is effected by the warrant / no warrant business:

1) Its been widely reported that the S@A's role was downgraded recently, and her responsibility is now only for the Commons chamber itself - if so, how can she legally grant permission for the police to search an MP's office?

2) When Mr Green's house was raided, Mrs Green prevented the police taking away her documents / PC etc because they contained, amongst other things, legally privileged correspondence with her clients. Isn't MPs' correspondence with constituents similarly protected, if so why was that taken? (Or rather, why didn't the Commons authorities prevent it from being taken?)

The point is missed somewhat IMHO. Yes there is Pa...

2008-12-03T17:55:00.000Z

The point is missed somewhat IMHO. Yes there is Parliamentary privilege but the overriding concept is one of Parliamentary Sovereignty. I have severe doubts (althoug not he Speaker apparently) that a Warrant could even lawfully be issued in respect of an office on the Parliamentary Estate. Warrants are usually issued pursuant to S8 of PACE 1984 and are issued by a Magistrate after taking information on Oath from the Applicant.

Now can it be lawful for an inferior court to issue a Warrant in respect of an office in what is actually a superior court? Parliament is after all a Court and the Parliamentary precints are a ROYAL PALACE. It can be argued that by issuing a warrant the Court would be interfering with the operation of Parliament. It is an interesting 'moot' point and one which I don't think has been properly addressed.

As for S18 PACE 1984 yes that DOES permit a search of premises once a person has been arrested. However, it requires the written authority of an officer of at least Inspector Rank and has very limited scope.

The searches of Green's home and non Parliamentary Estate office could have been conducted AFTER arrest under S32 PACE 1984. There are questions about whether or not the arrest should have occured (in my view it should not) but once the arrest had taken place the other 3 searches were lawful. It is just the one in Parliament itself which is legally flawed.

"The issue of a warrant for the entry and search o...

2008-12-03T17:54:00.000Z

"The issue of a warrant for the entry and search of the House of Commons is unconstitutional and a breach of privilege."

Says who?

Head of Legal: Sorry, I just think you are wrong. ...

2008-12-03T17:48:00.000Z

Head of Legal: Sorry, I just think you are wrong. The issue of a warrant for the entry and search of the House of Commons is unconstitutional and a breach of privilege. The Serjeant at Arms could have sent the police packing, even if they were clutching a warrant.

You are right that the question of issuing a warrant is a red herring, but for the wrong reason.

I don't pretend to have legal expertise, but I did...

2008-12-03T17:47:00.000Z

I don't pretend to have legal expertise, but I did a little search on the net and found cases in the UK where a solicitor was arrested and his office searched, which presumably included priveleged information.

I always thought legal premises were no go for police.

Yes, Withering Vine, I am saying PACE applies! If ...

2008-12-03T17:46:00.000Z

Yes, Withering Vine, I am saying PACE applies! If it didn't, then what would sense would talk of warrants make? The Police apply for search warrants... under PACE.

Jimmy's right: this isn't about Parliamentary privilege at all. Parliamentary privilege does not extend to giving MPs any protection from criminal arrest and search.

And Erskine May is quite wrong: this is nothing to do with legal privilege, which is about legal advice. If the police had found legally privileged material in Damian Green's office, it'd have been protected from seizure just the same as anyone else legally privileged material.

As has been mentioned, does not the whole charade ...

2008-12-03T17:43:00.001Z

As has been mentioned, does not the whole charade sum up this government;
cowardly manipulation, poorly conceived plan, failure of enterprise, attempt to conceal the facts, misleading denials of ministerial involvement, bluster, blaming others, enquiry revealing shocking levels of ignorance and incompetence - sacking of some numb-nuts minion who carries the can.

Repeat ad nauseam.

What a stinking, foul, useless lot they all are.

I doubt that the Sargent at Arms even had the auth...

2008-12-03T17:43:00.000Z

I doubt that the Sargent at Arms even had the authority to give consent to the search of Mr Green's private office. Only Mr Green can give consent, or the search should have taken place under warrant.

The police should have known this and should not have used the consent as authorisation to proceed in the way they did. They appear to have become to big for their boots on this, hubris seems to have been driving them forward. Their attitude is clearly seen in the video recently uploaded.

Speaker Martin was definitely asleep on the job when he was called by the Sargent at Arms. Anyone with an ounce of common sense would have asked under what authority the police were intending entering the HoC.