A prosecution against MP Damian Green was unlikely to be brought, and unlikely to succeed if it did go ahead, a legal expert said today.
The shadow immigration minister was arrested last night on suspicion of "conspiring to commit misconduct in a public office and aiding and abetting, counselling or procuring misconduct in a public office" and released on police bail after nine hours in custody.
The 52-year-old's arrest follows a mole hunt in the Home Office, ordered by senior civil servants in the department after a series of embarrassing stories appeared in the press over the past year.
A Home Office staff member was arrested last week in connection with the investigation, and it is understood Mr Green's arrest stems from that.
Robert Brown, a partner at Corker Binning law firm, said that in some respects it would not be difficult to prove a case against the official if he had been leaking confidential Home Office information.
For Mr Green, asking or encouraging the official to leak material would constitute "counselling or procuring" misconduct, while assisting him to leak it would be "aiding and abetting", Mr Brown said.
The "conspiracy" element was more general, but essentially suggests the two parties got together and agreed to carry out the offence.
Someone could be guilty of conspiracy whether or not the offence is ultimately carried out.
But Mr Brown said he thought it very unlikely the authorities would pursue a case against Mr Green, who has vigorously defended himself, saying he acted in the public interest.
"In a Western democracy, I think it would be very surprising if an elected Member of Parliament was put on trial for an offence which arises from him putting in the public domain material that he thinks should be there in the public interest," Mr Brown said.
"If this information is genuine and the Government have tried to bury it, it would look very bad trying to prosecute someone trying to bring it into public, because releasing the information might be reasonably justifiable in the public interest."
Mr Brown said that if the case did go ahead, the Clive Ponting trial showed juries were unwilling to convict defendants when they have acted in the public interest
Mr Ponting, a senior official in the Ministry of Defence, was prosecuted for revealing to an MP in 1984 that ministers had misled Parliament over the sinking of the Argentinian ship the Belgrano during the Falklands War.
The jury ignored a direction from the trial judge that Mr Ponting had no "public interest" defence outside his role as a servant of the state, and acquitted him.
"It would be interesting to see whether a jury would dare to convict someone if they thought he was making public information that they thought should be in the public domain," he said.
"If it was military secrets or something compromising national security, then maybe, but not if it's just another thing about immigrants."Reuse content