Britannia Radio

EVENING STANDARD 1.12.08
Mr Green's arrest is an affront to democracy: Michael Martin must go
Geoffrey Robertson

Speaker Martin should not have let the police in unless he had
assurance from the Attorney-General or the DPP that this was a case
of necessity and that evidence of serious criminality would be found
in Green's office and might otherwise disappear.

Lenthall's defiance of the King is the foundation of
parliamentarians' rights to meet and do their public duty without
molestation. If Speaker Martin did indeed permit the police to
ransack Green's office, he should resign - or Parliament should
remove him from office. Otherwise, his decision will stand as a
precedent for the harassment of MPs in the future.

Who signed the search warrant? Did the police seek permission from a
magistrate as they should have done, or did they authorise themselves
under anti-terror provisions - which would amount to a serious
circumvention of due process?

Ironically, if the offices sought to be raided in a leak inquiry were
those of a journalist or a newspaper editor, the police would have to
apply to a circuit judge - an extra safeguard for public watchdogs.
MPs forgot to extend the same safeguard to themselves when they
passed the Police & Criminal Evidence Act back in 1984: they should
swiftly amend it so as to protect their own sources of information.

The first principle of the rule of criminal law is that it must be
"prescribed" - ie clear and well established. Why, then, was Green
searched and arrested for "conspiracy to commit misconduct in public
office", an offence which is hopelessly lacking in clarity and never
before used against an MP?

It has occasionally been charged against police officers who fail in
their duty to protect civilians and it can also serve to indict
police and civil servants who supply confidential information to
criminals. But a conspiracy charge based on this judge-made offence
(maximum sentence - life imprisonment) is not a satisfactory basis
for searching or arresting an MP who has received confidential
information.

If Green is alleged to have paid for it, then he should have been
charged with specific bribery or corruption offences; if it is
alleged that he induced a Crown servant to remove documents, then he
can be charged with theft. If he has procured and published sensitive
information about security or details relevant to fighting crime, he
can be charged under Section 5 of the Official Secrets Act (1989).
That would entitle him to a public interest defence.

If, however, the police evidence goes no further than to show that
Green - like any opposition MP, journalist or editor - was merely the
enthusiastic recipient of newsworthy information outside these
categories, then he has committed no crime and should receive heavy
damages for wrongful search and arrest. Just like John Wilkes, a
liberty hero whose victories for freedom should be celebrated in a
British bill of rights.

Much of the debate over the police action has missed the point.
Police have operational independence, and it would have been wrong
for them to have told their plans to the Prime Minister or Home
Secretary. But the police must act according to law and obtain the
approval of the DPP before beginning any operation against MPs.

This was what went wrong with the "cash for peerages" wild goose
chase which cost a fortune and caused a number of people to suffer
much-publicised dawn arrests, all on a mistaken legal premise. The
police ceased as soon as a leading counsel was brought in to tell
them the law - 15 months afterwards. The moral of that waste of
public time and money was that every such operation should be
sanctioned at the outset by the DPP.

For all the overblown rhetoric about police states, the reality is
more like police mistakes. While a full inquiry must await Mr Green's
trial - or the dropping of all charges - parliament can and should
act immediately to ensure that henceforth, no MP is searched or
arrested without the prior approval of the DPP.

Most important, an all-party committee should be established to work
out how to replace the Human Rights Act with a proper written
constitution, featuring a British bill of rights that sets forth the
liberties that were so hard-won and - as last week's events showed -
so easily forgotten.
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Geoffrey Robertson QC is author of The Tyrannicide Brief (Vintage)
and The Levellers - the Putney Debates (Verso).