“Please provide a copy of: 1) THE FULL correspondence on Julian Assange between the Crown Prosecution Service and the Swedish Prosecution Service between the 1st of November 2010 and the 8th of September 2015 which has NOT been released to me in my previous FOIA. 2) THE FULL correspondence on Julian Assange between the Crown Prosecution Service and the Swedish Prosecution Service between September 2017 and the 1st of December 2019. 3) THE FULL correspondence on Julian Assange between the Crown Prosecution Service and the Ecuadorian authorities between the 19th of June 2012 and the 11th of April 2019. 4) THE FULL correspondence on Julian Assange between the Crown Prosecution Service and the US Department of Justice between the 1st of November 2010 and the1st December 2019 . 5) THE FULL correspondence on Julian Assange between the Crown Prosecution Service and the US State Department between the 1st of November 2010 and the 1st of December 2019. Finally, please explain when, how and why the emails of a named CPS lawyer, [Mr X, a retired CPS officer, name redacted] were deleted. Given what the Swedish prosecutor said in deciding not to take the charges forward and given what emerged about the CPS advising the SPA not to question JA in the embassy, there is a clear public interest in knowing why the e-mails of the key person liaising with the SPA were deleted during an ongoing investigation, apparently against the CPS’s retention policy.”
“Mr Dunlop took the witness to his closed statement, which he confirmed was true to the best of his knowledge and belief. Mr Dunlop asked follow up questions relating to answers the witness had given in open about chilling effect and where he had suggested he could say more in closed. The witness elaborated on the examples in paragraphs 31 and 32 of his statement, which are redacted in the open statement, and gave further examples of the chilling effect from his personal experience. He was also questioned by the Tribunal about how passage of time may be relevant to any chilling effect as a result of disclosure. The witness referred to something he said in open evidence and which Ms Maurizi’s counsel commented on – i.e. the resources spent on this case. The witness explained that he did not mean to reprimand Ms Maurizi or her counsel. The reason he mentioned resources was that this costs a huge amount and does reduce the CPS’s capability. He said if the CPS are going to go through information line by line, the cost will be substantial. A huge amount of time had gone into dealing with this case. The Tribunal asked and the witness answered the questions submitted by Counsel on behalf of the Appellant. The tribunal asked questions relating to the balancing of the public interest in respect of all three aspects of the appeal, i.e. information relating to the Swedish Prosecution Service, the Ecuadorian authorities, and the US authorities. The witness answered those questions. Mr Dunlop asked one question in re-examination arising out of a question from the tribunal.”
“1) the FULL correspondence between the Crown Prosecution Service and the Swedish Prosecution Authority concerning the criminal investigation against Mr. Julian Assange 2) the FULL correspondence (if any) between the Crown Prosecution Service and Ecuador about the case of Mr. Julian Assange. 3) the FULL correspondence (if any) between the Crown Prosecution Service and the US Department of Justice about the case of Mr. Assange. 4) the FULL correspondence (if any) between the Crown Prosecution Service and the US State Department about the case of Mr. Assange. 5) the exact number of the pages of the Julian Assange's file at the Crown Prosecution Service.”
“42.— Legal professional privilege. (1) Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information. (2) 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) in respect of which such a claim could be maintained in legal proceedings.”
“(1) Any person (in this section referred to as “the complainant”) may apply to the Commissioner for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part I.”
“Appeal against notices served under PartIV (1) Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice.”
“10. The central issue in this appeal is whether Ms Maurizi’s request of12 December 2019 required different responses to those referred to in paragraph 8 above, by virtue of the passage of time and intervening developments and/or evidence in relation to Mr Assange’s case. The Commissioner is mindful that the public interest balance under section 2 FOIA is to be assessed at the time of the public authority’s response to the request (here,10 February 2020 ): Montague v Information Commissioner and DIT[2022] UKUT 00104 (AAC) . 11. Having considered the witness evidence and the withheld information, the Commissioner’s position is that the passage of time and intervening developments do not alter the conclusions reached in decision FS50610253 and in the decisions of the FTT and UT upholding that decision. Therefore, save as indicated below, the Commissioner invites the FTT to uphold his decision and to dismiss Ms Maurizi’s appeal.”
“Where a request has previously been considered by the Tribunal (and on appeal by the Upper Tribunal), but a similar request is made at a later date, the views of the earlier Tribunal are not binding, although they are relevant and attract considerable weight: Breeze v IC and Norfolk Constabulary (EA/2013/0053) (“Breeze”) at §25. The key question that the Tribunal must ask is whether there has been any new information which has come to light since the earlier decisions which could cause the Tribunal to come to a different view: Breeze §25.”
“In relation to adjudications subject to a comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions.”
“When assessing competing public interests under FOIA the correct approach is to identify the actual harm or prejudice that the proposed disclosure would (or would be likely to or may) cause and the actual benefits its disclosure would (or would be likely to or may) confer or promote. This…requires an appropriately detailed identification, proof, explanation and examination of both (a) the harm or prejudice, and (b) benefits that the proposed disclosure of the relevant material in respect of which the exemption is claimed would (or would be likely to or may) cause or promote.”
“51. …the public interest in maintaining the s.30 exemption arises from the nature of the work done by the CPS extradition unit. It is generally in the public interest that offences be prosecuted and punished. The purpose of the extradition legislation is to serve the interests of justice by making provision for offenders or suspected offenders to be sent to the country which has prosecuted or is prosecuting them. It is also to ensure that the UK does not become a safe haven for criminals. Further, the existence of effective extradition arrangements provides a reciprocal benefit. When the UK wants to extradite offenders or suspected offenders from another country to the UK, this is much more likely to happen where the sending country benefits from effective extradition arrangements with the UK. 52. The question of public interest in maintaining the exemption therefore demands a focus on the practical requirements for the effective conduct of extradition proceedings, in a way which not only serves the particular proceedings but also is in keeping with the wider goals of ensuring that the UK is not a safe haven and of encouraging other countries in their reciprocal arrangements with the UK.”
“[57] b. More particularly, in support of the more general goals above, there is a public interest in information being made available that can increase public understanding of how extradition proceedings are handled by the CPS, including the handling of the relationship with a foreign prosecuting authority. c. There are some further features unique to this particular case. The matter has dragged on unresolved for a long time. The circumstances have also involved a high cost to the public purse. How this came about, and whether the money has been well spent, are matters of legitimate public concern. d. So far as the evidence before us goes, Mr Assange is the only media publisher and free speech advocate in the Western world who is in a situation that a UN body has characterized as arbitrary detention. It is a matter of public controversy how this situation should be understood. The circumstances of his case arguably raise issues about human rights and Press freedom, which are the subject of legitimate public debate. Such debate may even help to resolve them, which would itself be a public benefit.”
“It is not appropriate for us to try to specify in general terms what facts would be sufficient to tip the scales the other way for the purpose of the exemption in s30(1)(c) from the way that they come down in this case. The balance must depend on the particular circumstances. However, to avoid any misunderstanding we would express our disagreement with remarks made by Mr Cheema in his evidence which gave the impression that he regarded non-disclosure as a blanket policy such that only consent from the foreign authority or something like a danger to life and limb would tip the balance. Ms Dehon was right to submit that his approach to upholding the exemption appeared to be too indiscriminate. There are clearly other kinds of considerations than personal safety which would be capable of tipping the balance in particular circumstances. An example might be where there was material misconduct on the part of the foreign judicial authority.” (Emphasis added)
“In his decision notice, the Commissioner found that the CPS had correctly relied on section 30(1)(c) FOIA in refusing request 2. Having considered the further information the CPS ultimately discovered within the scope of this request, and Mr Sheehan’s evidence in relation to that information, the Commissioner maintains that section 30(1)(c) FOIA is engaged and the public interest favours maintaining that exemption. In the Commissioner’s view, the balance tips more firmly in that direction than for request 1, given the more recent nature of the information within the scope of request 2.”
“[197] Given the FtT’s finding of fact that, if there were correspondence, it would concern extradition, I cannot but avoid the conclusion that the FtT was also satisfied that, to the extent that Ms Maurizi’s request went beyond extradition, the information was not held by the CPS. It should not come as a surprise that the CPS does not hold information that is irrelevant to its functions. Although expressed differently, this analysis really makes the same point as did Mr Dunlop QC in arguing that a NCND hypothesis needs to be linked to the real world. … [200] The FtT rightly held that section 30(3) FOIA does not inevitably operate by reference to the entirety of the requested information. In limiting the scope of the hypothetically held information as it did, the FtT was simply following through with the natural consequence of its finding that, if any information were held, it would relate to extradition. I find it very difficult to see how the FtT could have taken a different approach in the light of that finding. If, despite having found that the only Ecuadorian information that the CPS might hold would concern extradition, the FtT then subjected the entirety of Ms Maurizi’s request to the public interest balancing exercise, it would have only been storing up difficulties. How could it have determined whether the public interest in maintaining the exclusion of the duty to confirm or deny outweighed the public interest in disclosing whether the information was held when, on its findings, much of the information requested would not have been held? But the FtT did not put itself in that position, no doubt because it appreciated that it would have set up an impossible task for itself.”
“106. Even if the NCND policy were applicable, no weight should be given to the issue of potential disclosure of the current status of extradition requests, given the status of the Swedish and US requests were well known. 107. The CPS simply relies on its evidence before the Previous Tribunal [OB/527 §35]. This evidence was given against the previous factual background and so does not address the matters set out above, or: a. The criticism by the UN Special Rapporteur of the UK and Ecuadorian authorities/ conduct, including his public statement that there has been a relentless campaign of defamation of Mr Assange, including by Ecuador [OB/156]; and b. The changed, much more pressing human rights and press freedom concerns (see §§19-20 above). 108. There is a dearth of information in the public domain concerning the role, if any, of the Ecuadorian authorities and the role played by the CPS, in particular whether there was any contact between the CPS and the Ecuadorian authorities, while Mr Assange was in the embassy, in relation to either the Swedish or the US extradition requests. 109. Closing: Mr Sheehan, in his oral evidence, for the first time, accepted that the public interest factors in favour of disclosure of any Ecuadorian authorities, should it exist, is “very significant”
“115. While public interest factors in favour of disclosure may be generalised (such as throwing light on a controversial case where there is a distinct lack of transparency), in this instance there are also a number of factors in favour of disclosure of the CPS-USA correspondence that are very different from those in play concerning the CPS- SPA correspondence… 120. …[the] factors relevant to the public interest in disclosure, … have changed very significantly since the previous request, where there were only generalised “media freedom” and human rights concerns. Now, credible press freedom and human rights organisations, both domestic and international, are speaking with one voice, in a way that has not happened previously in relation to Mr Assange and WikiLeaks: a. Closing: The UK’s National Union of Journalists has highlighted the risks to journalism posed by the Assange extradition and the dangerous precedent that the extradition would establish, criminialising common journalistic practices and weakening media freedoms in the UK (Appellant’s Corrections to Witness Statement §§9-12); b. Closing: The International Federation of Journalists spoke called for the extradition to be halted because of the risks to journalism and media freedom (Appellant’s Corrections to Witness Statement §§13-14); c. Closing: Amnesty International launched has repeatedly emphasised that the indictment characterises everyday journalistic practices and part of criminal conspiracy, including source protection and secure communications with sources [OB/163]; d. A coalition of press freedom and human rights organisations, including the ACLU, Human Rights Watch and Reporters Without Borders, has written on a number of occasions that, despite the organisations having “different perspectives on Mr. Assange and his organization”, they are “united however, in our view that the criminal case against him poses a grave threat to press freedom both in the United States and abroad” [OB/170-171]; and e. The International Network of Civil Liberties Organisations, which includes Liberty, has stated that the US’s indictment “raises serious world-wide implications for freedom of the press. The US Justice Department’s charges are an attack on basic journalistic activities such as investigating, soliciting information, cultivating sources, protecting reporters’ identity, and publishing information of public interest.” [OB/167]. 121. The CPS and the Commissioner should have given the very strongest weight to this evidence and to the very serious implications for media freedom and should have weighed this strongly in the balance in favour of disclosure. This is the approach the Tribunal should take. … 123. Finally, the factor which the Previous Tribunal indicated might tip the balance in favour of disclosure in extradition matters – material misconduct on behalf of the foreign requesting state – arises in relation to the US extradition request: a. There is credible evidence that the US’s investigation used unlawful or improper means, including improperly obtaining audio and video of Mr Assange’s meetings with his lawyers – this is where legal professional privilege is clearly relevant, because the US breached the protection given to lawyer- client advice [OB/473]; and b. There is credible evidence, from the UN Special Rapporteur, that the US is responsible for a relentless campaign on intimidation and defamation against Mr Assange and the extradition request are being used as a means to further that intimidation [OB/156].”
“The lawyer concerned retired from the CPS in 2014. Deleting the lawyer’s email account after retirement was in line with CPS general practice. As you know, issues concerning this matter were considered at the First Tier Tribunal in 2017 (in the case of Maurizi v IC & Crown Prosecution Service) and the tribunal referred to this in the decision issued in December 2017. For example at para 41 of that decision the judge said: “A question arose in evidence about the CPS’s records management policy and about the deletion of the email account of one of the lawyers dealing with the matter, who retired. It became apparent that all significant case papers were intended and believed to be collated separately from the email account. Moreover, the deletion was made before Ms Maurizi’s information request was received. We conclude that there was nothing untoward in the deletion of the email account.””
“On the deleted e-mails, I am NOT content with the CPS just quoting the Tribunal decision. I am requesting all information held by the CPS relevant to when, how and why the e-mails were deleted. None of this information was before the Tribunal. None of it was ever provided to me and to my lawyers to whom I am copying this request for an internal review by the CPS.”
“In its original and review decisions, the CPS has made reference to its general policy of deleting employees’ email accounts after they retire, but it has not confirmed whether it holds any information as to whether that was the reason for the deletion of [named lawyer’s] account specifically, or as to when or how [named lawyer’s] account was deleted. Contrary to what is implied by the CPS, those questions were not answered in the course of the proceedings relating to the 2015 Request.”
“25. Your letter states that “the CPS have assured the Commissioner, and she accepts, that the deletion of [named lawyer’s] email account was carried out in accordance with the relevant records management policy at the time.”
“77. CPS said that a named former CPS officer, whose email account was of interest to the complainant, had retired from CPS, and his email account had been deleted in line with CPS general practice of the day. At the time of his retirement in 2014, his relevant network account had been disabled to prevent its use on the CPS network. After three months, the data associated with the officer’s email account had been deleted. 78. CPS added that deletion of the officer’s email account had been carried out in accordance with the then CPS records management policy. This had been in line with CPS general practice and was undertaken before the complainant’s 2015 first FOIA request had been received. CPS said that CPS had previously disclosed such relevant information as it held in relation to the deletion of the officer’s email account. 79. The Commissioner accepted the CPS evidence and decided he therefore had no concerns in respect of the deletion of the officer’s email account.”