On 28 October 2014, a FOI request to the UK Home Office asked “whether any Swedish judicial authority has made a Mutual Legal Assistance (MLA) [Letters of Request] related to Julian Assange, and in particular, has a request for "interception of communications" been made?” The request received this reply:
We can neither confirm nor deny whether we hold any of the information you have requested by virtue of Sections 23(5), 27 and Section 31 of the Freedom of Information Act 2000.
The so-called Glomar response, "the exclusion from the duty to confirm or deny”, only becomes a duty (one would imagine) if the issues behind its evocation - actually exist.
Section 27 relates to 'International Relations':
Following the above consideration we have determined that the public interest favours maintaining the exclusion of the duty to confirm or deny whether we hold the requested information.
It is arguable that a Letter of Request (LOR) by Marianne Ny (the Swedish prosecutor in the Assange case) would meet the 'public interest test' (PIT):
PIT is used, in the case of these exemptions, to assess the balance of the public interest for and against the requirement to say whether requested information is held or not.
This is because of several unusual circumstances that have arisen in the Assange case. First, a potential LOR “for intercept” is bound up with prosecutor Ny's European Arrest Warrant (EAW). From the moment Assange arrived in the UK, Ny was presented with two options; to submit one or more LORs (available grounds were: for questioning, for search or seizure, for interception and so on - the UK has received about 144 requests from Sweden over the four years of Assange's detainment), or to submit a EAW to extradite and question (a practice recently made illegal under UK extradition law).
Ny selected the EAW with respect to questioning (considering EU member states' proclivity for dismissing EAWs - the UK rejects 85% - one has to ask why Ny's EAW was accepted by Scotland Yard, when a UK court later found that a LOR to question was a “more proportionate response”), a choice that is becoming increasingly controversial, including within Swedish political and judicial circles. However, it does not follow that because an EAW was issued, other LORs were not used elsewhere. And while a LOR to question may well have stirred up significant legal difficulties for Ny (hence the use of the EAW), an intercept-LOR would avoid these difficulties, remaining hidden from Assange's defence team until pre-trial disclosure.
Further, the particular mechanism for authorising an intercept-LOR acts as a shield against the scrutiny of a UK judicial authority in that, while all LORs must be sent to - and reviewed by - the UK Central Authority (UKCA), intercept-LORs can (paradoxically) take a different path. They may be sent directly via diplomatic channels (bypassing the usual 'judicial authority' oversight assigned by UKCA) to a 'competent authority' (the Home Secretary) for review and authorisation.
The likelihood of a Swedish intercept request being accepted is high. After all, it would give the UK security agencies a powerful legal basis for any ongoing operations aimed at Assange and WikiLeaks.
(1) Information held by a public authority is exempt information if it was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).
(2) A certificate signed by a Minister of the Crown certifying that the information to which it applies was directly or indirectly supplied by, or relates to, any of the bodies specified in subsection (3) shall, subject to Section 60, be conclusive evidence of that fact.
(3) The bodies referred to in subsections (1) and (2) are—
Since Assange entered the Ecuadorean embassy in London (June 2012) and was granted diplomatic asylum, any intercept-LOR has increasingly, over time (now 881 days), become a “fishing expedition”. CPS rules in connection with UK requests are clear: “does the assistance sought amount to little more than a 'fishing expedition' or is it, as it should be, a request to obtain specific evidence? A letter of request must not be a request to a foreign authority for the latter to conduct an investigation on our behalf.” Surely the rules applied to UK practices should also apply to foreign authorities? An intercept-LOR spanning well over two years is without question investigatory, and would amount to an abuse of process. Without disclosure of Assange-related LORs, abuse of process arguments and opportunities for judicial review are censored, and such an outcome does not meet a PIT for either Section 27 or 31.
The CPS also states that a request must heed “practical issues including costs and the availability of resources” and that it ought not to be too “wide in its scope”. In a case heard before the Judicial Committee of the Privy Council (February 2009) concerning a surveillance LOR and abuse of process, issues of privacy relating to “a suspect’s right to the confidence of privileged communications with his solicitor” were raised. Any intercept-LOR placed on the embassy must be considered too “wide in its scope” because it will, without question, breach Assange's right to legal professional privilege. And, in doing so, it is an abuse of process, “a serious affront to the integrity of the justice system”, according to the Council. All of which should be included in a 27, 31 PIT.
The concern of cost should also be part of a PIT, and it is another of the 'unusual circumstances' of this case. UK policing activity at the embassy is currently running at £9,000 per day. The cost to UK taxpayers will soon reach £8 million, of which half remains unexplained (despite FOI requests), due to “national security” considerations. Of course, the Assange case does not have anything to do with the construct of 'national security', but WikiLeaks arguably does - something that is not necessarily a bad thing. If these national security costs are being generated by a intercept-LOR that is based on allegations of sexual offences, it is clearly in the public's interest to understand how such a conflation came about and to know the extent of the case's politicisation.
The generalised points of Sections 27 and 31 (catch-alls that run against the legal principle of 'maximum certainty') used "in favour of" Glomar, must be weighed not only against a prosecutor's misconduct in this particular case, but also against the knock-on effects of her decisions. The damage to public confidence in judicial processes, and to accepted human rights norms should be counted in any decision not to disclose LORs.
(4) In subsection (3)(c) “the Government Communications Headquarters” includes any unit or part of a unit of the armed forces of the Crown which is for the time being required by the Secretary of State to assist the Government Communications Headquarters in carrying out its functions.
(5) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) which was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).
Section 23 relates to “information supplied by, or relating to, bodies dealing with security matters”:
November 19, 2014
The first evidence of UK intelligence operations at the Ecuadorean embassy came in the form of Press Association photographs of a police document (24 August 2012) that indicated the involvement of the Metropolitan Police's Covert Operations Group 'SO10' during the 'siege' period of Assange's asylum. Later (14 June), a GSM bug (manufactured by Surveillance Group Ltd, a UK-based firm with connections to the MOD) was found inside the embassy. These incidents speak to the £4 million “national security” policing budget, and are clearly the 'tip of the surveilling iceberg'.
The text of Section 23 is curious. It states that in the case of a FOI request about a Swedish Prosecution Authority intercept-LOR, the Home Office is entitled to use Glomar because “disclosure [would involve] information directly or indirectly supplied to the public authority [by one or more] of the bodies specified in subsection (3).” The text also says (again in the context of the FOI request) that a certificate signed by a Minister of the Crown is “conclusive evidence of [the] fact” that “the information to which it applies was directly or indirectly supplied by, or relates to, subsection (3) [intelligence] bodies”.
These passages are reminiscent of the semi-admissions that sometimes occur when rigid bureaucracies find themselves trapped between an ingrained instinct to exist within the law (seen in the fact that Section 23 was mentioned at all) and the need to uphold perceived interests. In 23, the use of a ministerial certificate in justifying Glomar certainly appears to break with the nonspecific positions of 27 and 31.
It is of some interest that 23's subsection (4) takes the time to link GCHQ to the British Armed Forces (no other associations are mentioned); which bizarrely (in a sort of Royal Engineers way) reminds one of the unexplained tunnelling beneath the embassy during Assange's 15 September 2014 participation in the New Zealand election 'The Moment of Truth' conference with Edward Snowden.
No doubt the specifics of the story of surveillance at the embassy will one day emerge. In the meantime, Assange's appeal against Ny's EAW (due to be heard before 21 November) understates that “[Assange] is most likely under auditory surveillance”, and WikiLeaks prepares to release SpyFiles 5.
27 (1) Information is exempt information if its disclosure under this Act would, or would
be likely to, prejudice—
(a) relations between the United Kingdom and any other State,
(b) relations between the United Kingdom and any international organisation or international court,
(c) the interests of the United Kingdom abroad, or
(d) the promotion or protection by the United Kingdom of its interests abroad.
With regards to public interest considerations, the Home Office states:
It is acknowledged that disclosure of a Letter of Request could improve public understanding of international co-operation processes relating to criminal investigations and prosecutions. In addition there is a general public interest in understanding whether or not the Home Office has been asked to assist in a particular criminal investigation abroad, particularly if the case is high profile and/or involves a British citizen.
With regards to “public interest considerations in favour of maintaining the exclusion of the duty to either confirm or deny” Section 27(1), the Home Office states:
Sections 31 relates to 'Law Enforcement':
31(1) Information which is not exempt information by virtue of section 30 is exempt if its disclosure under this Act would, or would be likely to, prejudice—
(a) the prevention or detection of crime,
(b) the apprehension or prosecution of offenders,
(c) the administration of justice,
(d) to (I).
It is established international practice that Letters of Request are sent in confidence and are not disclosed outside government departments, agencies, the courts or enforcement agencies in the UK without the consent of the requesting authority (as noted in our published guidelines). Disclosure of Letters or Request could affect the UK’s relationships with other countries in regard to Mutual Legal Assistance and impede or hamper investigations or legal proceedings either in a specific case or in the future.
With regards to “public interest considerations in favour of maintaining the exclusion of the duty to either confirm or deny” Section 31(3), the Home Office states:
To reveal whether the Home Office does, or does not, hold individual Letters of Request would be likely to prejudice the law enforcement process, even where it is public knowledge that criminal proceedings are taking place abroad. Disclosure could prejudice law enforcement by:
• Diminishing the chances of a successful prosecution, future charges, or making arrests.
• Diminishing the chances of a fair trial.
• Endangering victims, witnesses or others as they participate in investigations and proceedings.
• Impeding other ongoing or future proceedings.
• Facilitating the commission of crime.
(a) the Security Service (MI5),
(b) the Secret Intelligence Service (MI6),
(c) the Government Communications Headquarters (GCHQ),
(d) the Special Forces,
(i) the Security Vetting Appeals Panel,
(j) the Security Commission, (ed. abolished in 2010),
(k) the National Criminal Intelligence Service (NCIS),
(l) the Service Authority for the NCIS,
(m) the National Crime Agency