Liberty concerned about heavy-handed tactics against opposition politician

28 November 2008

Liberty Director Shami Chakrabarti said:

“The fundamental duty of the Metropolitan police is to protect Londoners from harm, not the Government from political embarrassment. Sending nine counter-terror officers to search and arrest an opposition politician who poses no flight risk leaves the Met with a great deal of explaining to do in due course.”

“Liberty has no intention in siding with any political party, still less of interfering with an ongoing police investigation, but we feel duty bound to raise important operational, legal and Constitutional questions about this incident.”

Liberty believes this incident raises the following questions:

● In the absence of any national security or official secrets implication, why is the criminal law (as opposed to internal discipline or dismissal) even in play as a means of dealing with employee discipline within the public service?

● Why was a serving Member of Parliament who posed no flight risk or risk to the public arrested rather than being invited to attend for interview (as was the case with the former Prime Minister)?

● Who decided that it was in the public interest to employ criminal justice tools to investigate an elected representative suspected of presenting information to the public?

● Why such a heavy- handed operation with so many officers searching Mr Green’s London flat?

● Why was it decided that he should be arrested and his home and House of Commons office whilst Parliament was not sitting so that questions could not be raised there?

● Who informed the media of Mr Green’s arrest?

● Given that this whole matter relates to an alleged Home Office whistleblower, who in that department knew of the operation against Mr Green?

Legal background on “misfeasance in public office”

The common law offence of misfeasance in public office was recently defined by the Court of Appeal as: “a public officer acting as such who wilfully neglects to perform his duty and/or wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust in the office holder, without reasonable excuse or justification”.

To be guilty of aiding and abetting you have to have participated in the act. If you take no part in it and do not act in concert with the person who commits it, you do not become an aider and abettor merely because you do not endeavour to prevent to the offence, or fail to apprehend the offender. Encouragement can amount to participation, but mere voluntary presence which in fact encourages the principal is not enough.

The protections of the whistle-blowing legislation (in the Employment Rights Act 1996) do not apply if the disclosure constitutes a criminal offence – but that may be circular, because making a protected disclosure could amount to “reasonable excuse or justification”.

There are a number of legal hoops to get through in order to be protected as a whistleblower:

- The information must, in the reasonable belief of the employee, tend to show:

o Criminality, or

o Breach of a legal obligation, or

o Miscarriage of justice, or

o Danger to health and safety, or

o Damage to environment, or

o Concealment of any of the above.

- The disclosure must be made in good faith.

- It must be made to the employer (or a Minister, in the case of civil servants), unless:

o It discloses an “exceptionally serious failure”, or

o The employee reasonably believes that he will be subjected to a detriment as a result or that the information will be concealed, or

o The employee has previously made the disclosure to the employer and no action was taken.

- If the disclosure is made to a third party:

o The employee must believe the information to be substantially true, and

o The disclosure must not be made for personal gain, and

o It must be reasonable to make the disclosure in all the circumstances.

If you satisfy all of that, your employer must not sack you or subject you to a detriment as a result of making the disclosure.

Contact: Jen Corlew on 0207 378 3656 or 0797 3 831 128

Notes to Editors

1. In 2004, Liberty successfully represented whistle-blower Katharine Gun, a former GCHQ employee who was charged under the Official Secrets Act after she disclosed that the American National Security Agency had asked for British help in spying on delegations to the UN Security Council in the run-up to the Iraq War.