In 2017 a group of lawyers and academics reported potential criminal matters related to Brexit to the Metropolitan Police Service. These reports were referred to the Special Enquiry Team working under Commander Stuart Cundy.
Documents have now emerged which show the unit sought private legal advice before investigations were commenced or taken to the Crown Prosecution Service.
The documents also appear to show the Special Enquiry Team will only investigate Members of Parliament when asked to do so by IPSA, the Independent Parliamentary Standards Authority.
The matters reported included concerns over the legitimacy of the UK’s Article 50 Notice to the EU and other potential Misconduct In Public Office offences relating to the Government’s refusal to release Brexit impact assessments.
Commander Cundy wrote to the group on 27 November 2017 stating no investigation would take place as regards Article 50.
Detective Inspector Gail Granville of the Special Enquiry Team referred to his letter in declining to investigate offences pertaining to the impact assessments on 11 December 2017.
An official complaint about the failure to investigate was dismissed on the grounds it was an abuse of the complaints system to disagree with a senior officer’s decision in March 2018.
Commander Cundy is at the centre of the growing scandal arising from the Special Enquiry Team’s failure to launch an investigation into Brexit campaign spending referred to them by the Electoral Commission earlier this year.
The Met cited “political sensitivities” as the reason for the delay in investigating the Electoral Commission’s case and MPs are now demanding an explanation.
“The MPS does not consider there is sufficient evidence to commence an investigation into whether the offence of misconduct in a public office has been committed in the way that you allege. Therefore no further action will be taken.”
In the first document, Commander Cundy responded to allegations reported between August and October 2017 which relate to “alleging that the offence of misconduct in public office has been committed by the Prime Minister and/or members of the Cabinet.”
In his 27 November 2017 letter, Cundy wrote: “The MPS has considered the arguments in your letter carefully and has commissioned independent legal advice to evaluate the legal arguments advanced by [Redacted] on which you rely. That legal advice is subject to legal professional privilege.”
“However, I can say that it is the view of the MPS that the European Union (Notification of Withdrawal) Act 2017 is sufficient to constitute a legally binding declaration of the UK’s intention to withdraw from the European Union (EU) and to empower the Prime Minister to notify the United Kingdom’s intention to withdraw from the EU under article 50(2),” he added.
Commander Cundy concluded: “As a result, the MPS does not consider there is sufficient evidence to commence an investigation into whether the offence of misconduct in a public office has been committed in the way that you allege. Therefore no further action will be taken by the MPS in relation to this matter.”
No investigation of the alleged offence took place and no evidence was gathered. The specific allegation (also a UK constitutional law issue) has never been tested in the courts of England and Wales.
Commander Cundy reached his conclusion without any CPS input or judicial oversight.
The Metropolitan Police Service policy on crime investigation is publicly available online.
It states: “The role of an investigator is to gather all relevant evidence which either proves or disproves a person’s involvement in an alleged offence.” The policy does not mention obtaining legal advice other than via CPS, and does not account for private legal advice being obtained to decide whether or not an investigation takes place.
The College of Policing, which sets the national standards, does not mention obtaining legal advice prior to investigation.
The investigative evaluation documents states: “Investigators should only exclude material as irrelevant after careful consideration or consultation with the disclosure officer (where this role is being carried out by a separate investigator) or a crown prosecutor (who has ultimate responsibility to decide what material will be used in the case).
When the group challenged Cundy’s conclusion and suggested they would be willing to meet, additionally requesting a release of the legal advice to be examined by lawyers, Commander Cundy replied by email, writing: “I can confirm that the Metropolitan Police Service will not be waiving legal privilege and disclosing the legal advice received in reaching our decision that no crime will be recorded.”
“An assessment has also now been completed by my team in relation to the additional matter you raised regarding Department for Exiting the European Union (DexEU) confidential reports. Having assessed this matter, a decision has been made that the Metropolitan Police Service will not commence a criminal investigation into your allegations.”
On 11 December 2017, Detective Inspector Gail Granville – identifying herself as the Operational Head of the Special Enquiry Team – wrote to the group regarding an “allegation of misconduct in public office regarding no-publication of confidential Brexit impact reports.”
She wrote: “Further to recent correspondence from Commander Cundy on 27 November 2017, I am writing to advise you that an assessment has also now been completed by my team in relation to the additional matter you raised regarding Department for Exiting the European Union (DexEU) confidential reports. Having assessed this matter, a decision has been made that the Metropolitan Police Service will not commence a criminal investigation into your allegations.”
As with the other allegation, no investigation took place and no evidence was gathered.
“It is not a criminal offence for the HM Government to refuse to publish sensitive confidential information,” DI Granville added.
The select Committee on Exiting the European Union published some of the material from documents provided by DexEU in December 2017, after the government was forced to hand over 850 pages of information. This followed a Commons defeat for the government in November 2017 amidst allegations of David Davis MP misleading Parliament over the assessments.
Detective Inspector Granville went on to write: “Matters relating to the behaviour of MPs within Parliament, should be referred to the Parliamentary Commissioner for Standards in the first instance.”
“If the Commissioner, having investigated the complaint, believes that the behaviour amounts to a criminal offence, they will make a referral to the MPS to assess any criminality,” she added.
The Special Enquiry Team “terms of reference” which have been made available on the internet following a third party Freedom Of Information Act request clearly show the department is there to work with IPSA and to “assess and review allegations relating to offences committed by those in public office and/or on the Parliamentary Estate where the matter relates to the disclosure of their duties as a public official.”
The letter from Detective Inspector Granville raises serious questions about the Met’s operational independence and appears to fly contrary to established parliamentary advice.
The Joint Committee on Parliamentary Privilege has made clear that: “We think it only right that Members of both Houses are as equally subject to the law, both civil and criminal, as the people they represent.”
In 2008, then Speaker Michael Martin referred back to the 1999 Committee report, telling Parliament: “The Joint Committee on Parliamentary Privilege in its authoritative report in 1999 said that the precincts of the House are not and should not be a haven from the law.”
However, criticism of police handling of cases involving high profile figures may have muddied the waters in recent years.
The Metropolitan Police Service came under heavy fire in 2015 for its handling of allegations against Lord Brittan.
The Home Affairs Select Committee under Keith Vaz MP concluded in their report on high profile cases that: “We request that, in response to this report, the MPS and the CPS set out the steps they plan to take to improve their handling of such cases.”
“Using the complaints process just because you disagree with a decision taken by a senior officer, after he has sought legal advice, is in my opinion an abuse of the complaints system.”
Unsatisfied with the inaction of the Special Enquiry Team, the group lodged a complaint with the Metropolitan Police’s Directorate of Professional Standards.
The contested issues were responded to in March 2018 by Inspector Duncan Marriott, who ultimately dismissed the complaint saying: “I believe that it does not need any more investigation because I consider it to be an abuse of the complaints system. My reasoning for this is that your complaint is based on the fact you do not agree with the decision taken by Commander Cundy not to progress a criminal investigation into the allegations being made.”
“Using the complaints process just because you disagree with a decision taken by a senior officer, after he has sought legal advice, is in my opinion an abuse of the complaints system,” he added.
The Independent Office for Police Conduct allows members of the public to make complaints to the police and about officers over inappropriate conduct, failures to carry out duties, and even how a police force is run or applies policy.
The IOPC website clearly states: “Police forces or relevant organisations are expected to take all complaints seriously, to listen to you and to act in a fair and balanced way to seek to put things right.”
No serving officers are exempt from complaints about how they carry out their duties, no matter at what rank they serve and this is made clear in the College of Policing Code of Ethics which was released in response to the crime statistics scandal uncovered in Parliament in 2013-2014.
The Code of Ethics states: “All police personnel in leadership roles are critical role models. The right leadership will encourage ethical behaviour.”
“The more senior in rank, grade or role you are, the greater the potential for harm as a consequence of any misuse of your position or any failure to meet the standards required by the Code of Ethics,” the document adds.
A Metropolitan Police Service spokesperson responded to the documents, saying: “It’s not unusual to seek legal guidance in complex matters. Sometimes, it’s the job of the police to investigate whether a crime has actually occurred before doing anything else. In terms of IPSA we do work with them on referrals but if we discovered criminality they would defer to us, not vice versa.”
“Police officers make decisions all the time. It would be unfair to classify those decisions as disciplinary matters just because they are not agreed with,” they added.
The Metropolitan Police Service has declined to comment further on the issues raised in this article but adds in respect of this year’s Electoral Commission referrals: ” The evidence in both of these cases is being assessed by the MPS in
order to make an informed decision as to whether a criminal
investigation is required.”
What Is The Met’s Special Enquiry Team?
Previous FOIA requests by third parties have been responded to by the Metropolitan Police, giving an overview of the unit as follows:
When was the Special Inquiry Team formed?
The Special Enquiry Team has been in existence in a number of forms for
approximately 15 years. It was originally a unit within the SO6 Economic
and Serious Crime Command that dealt with fraud and corruption offences in
the public sector. In 2013, following an internal restructuring within the
MPS the unit was transferred to the SCO1 Homicide and Major Command.
What is the function of the SET?
Please see the below extract from the SET Terms of Reference.
* To investigate sensitive and confidential enquiries within the
Metropolitan Police District involving high profile subjects and
domestic PEPs (politically exposed persons) which require Specialist
Crime involvement and do not fall within the remit of other specialist
units. For example MP’s and Lord’s Expenses.
* To assess and review allegations relating to offences committed by
those in public office and/or on the Parliamentary Estate where the
matter relates to the disclosure of their duties as a public official.
* To provide advice and assistance to other commands/force areas and the
Independent Parliamentary Standards Authority (IPSA) regarding
allegations against MP’s and Members of the European Parliament
* To act as MPS lead for Electoral Offences. The SET are the MPS SPOC
for Electoral Fraud and Malpractice allegations, the majority of which
relate to the Representation of the People Act 1983 (RPA), Parties
Political Elections and Referendum Act 2000 (PPERA) and Electoral
Administration Act 2006 (EAA).
* Whilst respective boroughs maintain responsibility for the local
policing of elections, including policing polling stations and
community issues, the SET will provide specialist, focussed advice to
all MPS boroughs with regard to guidance and the SET works with the
Electoral Commission and local authorities in a proactive preventative
capacity to ensure free and fair elections.
* In addition commanding officers within the MPS may task the SET to
deal with other confidential cases not outlined above which are deemed
to be beyond the capability and capacity of borough police or other
What recorded offences has it investigated over the last 5 years?
Since 2013 the SET has investigated over 170 recorded criminal offences
relating to Misconduct in Public Office, offences under the Representation
of the People Act 1983 (RPA), the Parties Political Elections and
Referendum Act 2000 (PPERA) and the Electoral Administration Act 2006
(EAA), False Accounting, Perjury and Perverting the Course of Justice.
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