Further details are starting to emerge about the circumstances under which the police entered the House of Commons last week; the BBC has some of them, in this article, though it has to be said, the net result is further confusion rather than clarity.
Interestingly enough, the BBC article appeared some time after Wikileaks had already announced the publication of a letter from the Metropolitan Police to the Home Secretary giving responses to a number of questions concerning their access to the House. It may not surprise you to learn that that letter, too, does more to obfuscate than to clarify.
The essence of the police argument concerning whether or not they had a warrant to search Mr Green's office is as follows (The italics and paraphrasing here are mine, but only because the police letter is so convolutedly impenetrable. Whether that is intentional or accidental, I could not possibly say):
"PACE (the Police and Criminal Evidence Act) permits a magistrate to issue a warrant for consentless entry to premises in search of evidence of a suspected crime, if the officer in question believes the magistrate could be convinced that entry would not be granted without a warrant (i.e. on the basis of consent alone).
The officers in this case did not belive they would have been able to convince a magistrate that consent would be refused, and therefore did not ask for a warrant, because the strict requirements of PACE would not allow the magistrate to issue one under those conditions."
This raises at least as many questions as it purports to answer.
Let us, for the sake of argument, apply the 'reasonableness test' to three hypothetical cases.
- First, imagine that officers had asked Mr Green, directly, if they could search his office. He might well have felt it within his rights, as an MP, to refuse.
- Second, let's imagine that they asked the Speaker of the House, or the Serjeant at Arms, and either of those office-holders demonstrated the kind of concern for parliamentary sanctity which MPs from all parties have suggested is their duty. They might well have refused.
- Third, let's imagine that the officers had gone straight to a magistrate and asked for permission to search an MP's parliamentary office, looking for evidence of leaks which are acknowledged to have taken place, and on the basis of a common-law offence of 'improper behaviour in public office'. The magistrate might well have refused.
The police claim, then, is that they didn't ask for a warrant because they felt that would put a magistrate in the untenable position of having to decide, against reason, that consent for access would be refused. With respect, surely that is for a magistrate to decide, and that is why the magistrate's consent has to be sought. If the police cannot make a case which will convince the magistrate, then they know exactly where they stand.
Surely the clear implication is this: that the police were happier to proceed without first applying to a magistrate, because they suspected what answer they would have got if they had done so.
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