Sir, Maurice Frankel (letter, Dec 4) identifies the most serious aspect of police proceedings against Damian Green, namely their decision to search and arrest on charges of conspiracy and aiding and abetting in relation to alleged “misconduct in public office” of his source in the Home Office. Were this charge to stick, it would mean that any “public watchdog” — editor, journalist or MP — who enthusiastically receives a leak from a civil servant, would be liable (incredibly) to a maximum sentence of life imprisonment, without any public interest defence.

Charging these common law offences in respect to leaks of merely “confidential” information would be a clear breach of the Home Secretary’s assurance to Parliament, given during the passage of the 1989 Official Secrets Act. To charge them in a case where (so Sir Paul Stephenson has hinted) leaked information has “potential” security implications, would circumvent section 5 of that Act, which applies to recipients of such information but protects them by requiring the prosecution to prove that any disclosure of the information would be damaging to the interests of the United Kingdom. No such defence is available to the common law charges. The offence of “misconduct in public office” was invented by Lord Mansfield in 1783 to convict a deceitful army accountant. It has been superseded by more modern statutory offences of bribery, corruption and theft. The common law has no clear definition of “misconduct” and the crime is now mainly used against police who recklessly fail in their duty. It has never been used against a “watchdog” until R v Kearney and Murrer. The latter was a local newspaper journalist charged by Thames Valley Police with “aiding and abetting misconduct in public office” — the very charge copied by the Met for use against Mr Green. On November 25 her trial collapsed because the judge held that the prosecution had breached the Article 10 free-speech guarantee in the Human Rights Act.

Two days later the Met Police arrested the MP (and obtained entrance to Parliament) on a charge they must therefore have known was legally questionable. The CPS did know, because on that very day a decision was taken not to appeal the Murrer decision. So why didn’t the Met police take advice from the DPP, who heads the CPS, before their rash decision to enter Parliament and arrest an MP on a charge that is probably incompatible with the Article 10 right to receive and impart information? Their blunders demonstrate the necessity of police to obtain authoritative legal advice from the DPP at the beginning, and not at the end, of controversial operations. The police are only entitled to operational independence if those operations are conducted according to law.

Geoffrey Robertson, QC

London WC1

Sir, What does the Speaker mean when he refers to a warrant as authority for the police to enter the House of Commons? A warrant from whom? The Queen herself does not have the right to enter the House of Commons without the invitation of the Speaker and the House itself. Who does he suggest has the right to issue a warrant that would entitle the police or anyone else to do so? Neither a magistrate nor a High Court judge, nor any other officer of the Crown has that power. The talk of warrants is a complete irrelevance.

What occurred in the House of Commons was a gross breach of parliamentary privilege permitted by the very person whose office exists to uphold it, and some of whose predecessors have gone to the Tower to protect it.

Mark Lomas, QC

London EC4

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