Policing and Crime Bill

Debate between Lord Pannick and Earl Attlee

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Earl Attlee (Con)]

My Lords, I strongly support the noble Lord, Lord Paddick, and his very reasonable amendment. The Committee is very lucky to have his expertise. Unfortunately, I have limited experience in the area of PACE and police investigations, so I am unable to offer the Committee my own solution. However, I have no difficulty in seeing that something is seriously wrong and needs urgent attention, and I intend to support the noble Lord vigorously.

Throughout the passage of the Bill, the Minister has never hesitated to rely on the principle of operational independence for the police, but it is a principle that I think is often taken too far and seems to me to be an excuse for doing nothing. Interestingly, when the then Home Secretary, my right honourable friend the Prime Minister, wanted to curb the use of stop and search powers, operational independence did not seem to be a problem.

In public life, some people are important, some are powerful, some are senior and some are all three. Fortunately, I am none of these, so there is no risk to me of being subject to a sensational and false allegation, because no one would be the slightest bit interested.

It is not often that the Metropolitan Police has to investigate someone who is far more senior than the commissioner himself. When such a situation arises, no one—as far as I am aware—is suggesting that an investigation should not take place; far from it. In fact, in recent years we have seen Cabinet Ministers investigated and prosecuted. As far as I know, during Operation Midland Ministers and the Government did absolutely nothing and let the police follow the evidence, and rightly so. We would not expect anything else, and we do not want to repeat the mistakes of the past.

Nevertheless, if the Metropolitan Police decides to investigate someone as senior as the noble and gallant Lord, Field Marshall Lord Bramall, KG—Knight of the Garter—one would expect the commissioner to keep himself very closely informed indeed, not least because it could have adverse effect with our overseas opponents. It also could cause very serious reputational damage to the Metropolitan Police if the operation turned out to be flawed.

The Committee will be aware that Lord Bramall was Chief of the Defence Staff at the height of the Cold War. Our Security Service, over many years, would have formally and informally taken all the necessary steps to ensure that he could be trusted with large amounts of highly classified material. Our “Four Eyes” partners would also have relied on that confidence, but the exceptionally overt Operation Midland investigation could well have called into question the reliability of our vetting procedures.

Lord Bramall would have known everything when he was Chief of the Defence Staff. For instance, in the event of a mass armoured attack on the north German plain, would we have used tactical nuclear weapons? He would have known. What serious weaknesses did we have that our opponents were unaware of? He would have known. What weaknesses did our opponents have that we knew about but they did not? He would have known. If there was any problem with Lord Bramall along the lines alleged, it would have been of strategic significance. It would have been unbelievably serious.

At Question Time last week, the Minister referred to the Henriques report. The report was initiated and the terms of reference were set by the commissioner. Apparently, this means he can also determine what is published and what is not. Therefore, my first question to the Minister is: does the report and its terms of reference cover the failure of the commissioner to terminate the Operation Midland inquiry into Lord Bramall as soon as possible after it became obvious that there was not one shred of incriminating evidence? Secondly, has my noble friend read the report? Will the Home Secretary initiate an inquiry on her own terms, so that she can determine what will be published?

I am extremely unhappy about the procedure for obtaining search warrants, although my advice is that the magistrate concerned probably did the right thing by granting one in the Bramall case. What is the point of involving the judiciary if magistrates grant a warrant in such circumstances as Lord Bramall’s case? What questions were asked of the police requesting the warrant in such an improbable case? For instance, were they asked whether the Security Service had been consulted and whether the sanity of Nick had been checked by a medically qualified person? If the complaint turned out to be fiction and baseless, would a criminal prosecution of Nick be inevitable because that should be the remedy for a malicious and baseless complaint? It would also be interesting to know whether the commissioner asked these questions. It now seems that it may be better to allow a senior police officer to authorise a search rather than relying upon the judiciary. At least there is some mechanism for holding senior officers to account, eventually.

If this totally flawed inquiry can be inflicted upon a retired officer of stratospheric seniority with apparent impunity, what is to protect the ordinary man in the street? It seems to me that the judiciary dish out search warrants like sweets, despite how distressing it must be for an innocent person, whatever their status. So far as I can see, the Commissioner of the Metropolitan Police had the power to terminate this inquiry at an early stage, but chose not to do so for presentational reasons. He could have written a sincere letter of apology to Lord Bramall, but chose not to, presumably on legal advice. Luckily, Lord Bramall has not passed away too soon; it is a pity the same cannot be said for Lord Brittan or, indeed, Lady Bramall.

Both these failings seem to me to indicate a lack of capacity to take an unpalatable course of action. It is not unusual for retired Commissioners of the Metropolitan Police to be offered a seat in your Lordships’ House, but your Lordships’ House is overfull with active Members. We already have far too many Peers, and we already have several retired senior and very senior police officers who are already meeting the needs of the House exceptionally well, not least the noble Lord, Lord Paddick. It is not clear to me why we would need another retired commissioner, and one who appears to be unable to write a sincere letter of apology to a Field Marshal who has had his reputation traduced solely because he is such a senior officer and a great public servant. If the police use their powers carelessly, it is our duty to constrain them.

[Lord Pannick]

My Lords, the Committee will be very grateful to the noble Lords, Lord Paddick and Lord Campbell-Savours, for bringing forward this amendment on what is undoubtedly an important issue. I am sure the Committee shares their sense of outrage—I certainly do—at the treatment of Sir Cliff Richard and others who were wrongly and unfairly accused of sexual offences, but I am not persuaded that this amendment is the answer to the problem. A prohibition on publicising an accusation of a sexual offence raises many difficulties.

The first is that publicity can lead others to come forward with supporting evidence that helps to make the case against the person who is rightly accused. Sometimes this is evidence that the person accused has treated them in the same way. They have not previously come forward because they are fearful that no one would take them seriously. It is only hearing that an allegation is being taken seriously that gives them the confidence to come forward.

--- Later in debate ---

[Lord Pannick]

The problem is that they come forward during the course of the trial only if there is one. By reason of the publicity, they are encouraged to come forward and present evidence that helps to persuade the prosecuting authorities that the matter should proceed to a trial. That is the difficulty. The noble Lord, Lord Paddick, says that justice should not be achieved at any cost. He is right, but to impede convicting the guilty is a very high cost indeed. That is the first problem.

The second problem is that the amendment would prevent the person accused from publicising the allegation against him in order to express his outrage or possibly to seek alibi witnesses. There are cases in which publicity has been sought by the person wrongly accused and this helps to exonerate that person. I appreciate that this amendment would allow the person accused to seek permission from the judge to publicise the matter in the public interest. But if I am wrongly accused of a sexual offence, I should not need to persuade a judge that it is in the public interest for me to be able to publicise the fact. I am entitled to publicise the matter because it is in my interests.

The third problem is common to restrictions on open justice. You can prevent publication of the name of the person concerned, but you cannot prevent people in the know from gossiping. The consequence is that a larger group of people know the name of the person concerned. Those who do not know inevitably speculate. This amendment or any variation of it would not prevent the press from publicising—and they would—that a famous footballer, a well-known pop star or a senior politician has been accused of a sexual offence. It would not prevent the press from publicising details as long as this does not identify the specific politician, pop star or footballer concerned.

[Earl Attlee]

I am sure that the noble Lord is right. Would that not let other victims know that their allegations would be taken seriously?

[Lord Pannick]

No. They would not know who the individual was. This of course is very unfair on famous footballers, well-known pop stars and senior politicians who are not the subject of the accusation. Can they issue a press release to say that they are not the person concerned? That is the third problem.

The fourth problem is that the amendment does not address the difficult question of what is meant by being accused. As drafted, the prohibition on publicity would apply whether or not it is the police making the accusation. It seems to suggest that any accusation of a sexual offence would prevent publicity, but how far does this go?

Fifthly, the amendment fails adequately to address when the prohibition on publicity comes to an end. As drafted, the prohibition on publicity ends when the person concerned is charged with an offence. But let us suppose that the police decide not to bring charges and the person concerned is exonerated. Under this amendment, it seems that no publicity is allowed even at that stage—the person concerned cannot tell the world that he has been vindicated and the press still cannot report that a false allegation has been made.