An important precedent

In all the noise about the Damian Green affair, an important legal precedent has been set that will change the way in which leaks from civil service departments can be investigated.

The precedent has been set by the Director of Public Prosecution Keir Starmer's statement on the police searches at the home and offices of Conservative MP Damian Green. This is the key passage:

"It has to be recognised that some damage to the proper functioning of public institutions is almost inevitable in every case where restricted and/or confidential information is leaked. In this case, therefore, I have considered whether there is evidence of any additional damage caused by the leaks in question. I have concluded that the information leaked was not secret information or information affecting national security: it did not relate to military, policing or intelligence matters. It did not expose anyone to a risk of injury or death. Nor, in many respects, was it highly confidential. Much of it was known to others outside the civil service, for example, in the security industry or the Labour Party or parliament."

As the former Lord Chancellor Lord Falconer set out on Radio 4's Today this morning, this statement sets out very clearly the criteria that now have to be satisfied for calling in the police to pursue a leak inquiry.

The matter has to be genuinely secret; it has to have the potential to endanger national security or people's lives; and the leak has to have done some sort of damage.

Those criteria are some distance from the current Cabinet Office guideline which, broadly, permits calling in the police 'after some thought' if sensitive information is being leaked. In other words, the state will no longer be able to call in the police merely on the grounds that leaks have been persistent or embarrassing.