Robin Wilton's esoterica

A back-bench Labour MP, Bob Marshall-Andrews, has called for Speaker Michael Martin to resign over the Damien Green searches.

As you will see from the last section of the BBC article (sub-titled "Trust Breakdown"), the gaps are starting to show, both here and from the earlier disclosures via wikileaks, between the Speaker's initial Commons statement and the police version of events - notably concerning what was said about the notorious 'missing warrant'.

Clearly, part of the complexity here has to do with the fact that, while the office searched was Mr Green's, the police first had to gain lawful access to the House of Commons and then apply to someone for permission to enter the office itself. Their rationale for not approaching Mr Green himself would, understandably, be that be might have refused or made it impossible for them to recover whatever evidence they were looking for. The picture is further complicated by the fact that both the Speaker and his Serjeant at Arms have roles to play in protecting MPs and their premises, respectively.

So the police faced a problem - they needed to apply to one person (or possibly two) who could 'gate' their ability to search the offices of someone else. As was clear even from the Metropolitan Police letter to the Home Secretary, Section 8 of the Police and Criminal Evidence (PACE) Act is drafted specifically to cater for this situation:

A magistrate may grant a warrant for entry if "it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence". The police say they didn't apply for a warrant because they weren't sure they could convince a magistrate that that was the only way they were likely to gain access.

The fact that they weren't sure is hardly an excuse for not asking. That's why the magistrate is written into the process.

Then there's the question of the offence with which Mr Green is charged: "misconduct in public office". There is animated discussion of whether or not this is serious enough, in this case, to have justified his arrest and the searches. One indication is in the action taken against the civil servant involved: as yet, he has not been charged - least of all with a criminal offence. This strongly implies that the alleged offence does not pass the threshold set out in the Crown Prosecution Service guidance on "misconduct in public office", cited here on Carl Gardner's blog.

In defence of Mr Green's position, the CPS guidance clearly describes the offence in terms of the likelihood that what he did would be "such as to undermine the public's trust in him as the office holder". I would have thought that his diligence in uncovering facts which the government would have preferred - out of embarrassment - to keep hidden would have rather the opposite effect.

The guidance does say that, in gauging the seriousness of the offence, a broad view of its context and consequences should be taken. The Home Secretary has argued that the broader consequences of Mr Green's actions were such as to undermine the functioning of her department, and the impartiality of its civil servants. I have not yet seen her advance any evidence in support of that speculation.

On the face of it, then, there are reasonable doubts as to whether the police based their actions on a suitable offence, whether their actions were proportionate to the evidence and seriousness of that offence, and whether they followed due process in their dealings with officers of the House (not to mention their lack of dealings with any magistrate). It would be ironic, wouldn't it, if their actions proved to be such as to undermine the public's trust in them as office-holders?