Sunday, August 14, 2016

College of policing FOIA response

Below is the College of Policing's reply to my Freedom of Information request for their risk assessment.  If you don't want to read it all it basically says that we are not going to release the information because it would be embarrassing, or is they put it
"The disclosure of the information requested is very likely to prejudice and cause irreparable damage to the international relations between the College and Saudi Arabia".



Date: 25 July 2016
Our Reference: FOIA-2016-0059
Your Reference:  N/A

(Via email: tom@franklin-consulting.co.uk)

Dear Mr Franklin,

RE: Freedom of Information Act 2000 Request

I write in response to your Freedom of Information Act 2000 (or ‘FoIA 2000’) request dated 16 June 2016. I note from your request that you seek the following information:
“I would be grateful if you would send me a copy of the submission to the International Policing Assistance Brief (IPAB) regarding training of police officers in Saudi Arabia and the risk assessment that was undertaken.”
Decision

When a request for information is made under the FoIA 2000 a public authority must inform you, when permitted, whether the information requested is held. It must then communicate that information to you. If a public authority decides that it cannot comply with all or part of a request, it must cite the appropriate section or exemption of the FoIA 2000 and provide you with an explanation.

It is important to note that a FoIA 2000 request is not a private transaction. Both the request itself and any information disclosed are considered suitable for open publication, that is, once access to information is granted to one person under the FoIA 2000, it is then considered public information and must be communicated to any individual should a request be received. Any information released under the FoIA 2000 will also be published on the College of Policing’s website at a later date.

After conducting careful searches for any information relevant to your request, I can confirm that there is information held. However, it is with the above in mind that the College of Policing has decided to refuse your request under the following exemptions:


  •  Section 27 (1) (a) (c) and (d) (international relations)
  •  Section 31 (1) (a) (law enforcement)
  •  Section 43 (2) (commercial interests)

Your attention is drawn to the refusal notice provided in Appendix A.

May I take this opportunity to thank you for your interest in the College of Policing. Details of your complaint rights are provided in Appendix B.

Yours sincerely,

Neil Smith | Freedom of Information Caseworker
Ethics, Integrity and Public Interest Unit
College of Policing

Email: FOI@college.pnn.police.uk
Website: www.college.police.uk

Appendix A

Refusal Notice
Section 27 (1) (a), (c) and (d) (international relations)

Section 27 provides –

‘(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) …
(c) the interests of the United Kingdom abroad, or
(d) the promotion or protection by the United Kingdom of its interests abroad.’

The exemption under Section 27 (1) of the FoIA 2000 is both qualified and prejudice based. This requires me to determine the nature of the prejudice and/or harm that may result from disclosure of the information.

I must also conduct a public interest test to establish whether there is a public interest in disclosing or
withholding the requested information.

Prejudice and harm considerations


The case of Hogan v IC and Oxford City Council provides that the requisite prejudice must be real, actual or of substance. Furthermore, in the case of John Connor Press Associates Limited v The Information Commissioner, the Tribunal confirmed that, when determining whether prejudice would ‘be likely to occur’ the test to apply is that “the chance of prejudice being suffered should be more than a hypothetical possibility; there must have been a real and significant risk.”

The UK government works with many countries to secure the UK’s national security and economic well-being, often through government to government agreements. Many of these agreements include law enforcement training provision by the College, where the UK provides training to improve the capacity of foreign law enforcement agencies to tackle serious and organised crime and security threats internally.

The provision of this bespoke training and assistance increases the security of the relevant countries which in turn increases the security of the UK. The International Academy of the College works closely with a number of international partners such as the Department for International Development (DFID), the Stabilisation Unit (SU), the Foreign and Commonwealth Office and the UN and is regularly approached to provide support and assistance to these partners.

Any training of overseas law enforcement officers is coordinated by the College of Policing working in partnership with the National Police Chief’s Council (NPCC) - International Coordination Committee (ICC) and other stakeholders. The ICC oversees and coordinates the assistance that UK policing gives to other countries, both at home and abroad.

The College submits case by case international policing assistance proposals (or ‘IPABs’) to the DFID-SU to ensure multi–agency coordination and compliance with government policy. Feedback from DFID-SU and wider stakeholders, consideration of human rights and the College’s Code of Ethics inform the final decision made by the College to proceed or decline a request for international policing assistance.

HM Government publishes Overseas Security and Justice Assistance (OSJA) guidance which can help the NPCC-ICC assess the human rights risks of UK overseas security and justice assistance work and identify measures to mitigate such risks. The College completes a full OSJA Human Rights profile for countries where human rights compliance is of concern and will seek sign off through the relevant High Commission or Embassy of that country. The guidance can be accessed at:
https://www.gov.uk/government/publications/overseas-security-and-justice-assistance-osja-guidance

The information within the OSJA profiles and IPAB referrals are kept out of the public domain so as not to highlight the specific areas in which the College and the UK are co-operating with particular countries. This is not only essential for law enforcement purposes, but in order to maintain effective bilateral relations between the UK and our international partners and to ensure the protection and promotion of UK interests abroad. The disclosure of this information is likely to undermine these objectives and as such, there is a real and significant risk that is more than a hypothetical possibility.

Section 27 (1) of the FoIA 2000 recognises that the effective conduct of international relations depends upon maintaining mutual trust and confidence. If the College and in turn the UK, does not maintain this trust and confidence with states with which it engages, the ability of the College to protect and promote UK interests through international relations will be severely diminished. I consider that the disclosure of the information requested is likely to highlight specific areas in which we are cooperating with Saudi Arabia and given the high expectation of trust and confidence as regards the information, this is very likely to be seen as a breach of trust on the part of the College and in turn the UK.

In the case of Campaign Against the Arms Trade v Information Commissioner and Ministry of Defence, 3 it was submitted that the disclosure of details relating to the provision of assistance to Saudi Arabia would result in an adverse reaction from Saudi Arabia and this would mean that Saudi Arabia would be less likely to be willing to do business with the UK. The Tribunal in the case held that there could be prejudice to the interests of the UK abroad, or the promotion of those interests, if the consequence of disclosure was to expose those interests to the risk of an adverse reaction or make them vulnerable to such a reaction notwithstanding that the precise nature would not be predictable, either as a matter of probability or certainty. The prejudice would lie in the exposure and vulnerability to that risk. The Tribunal held prejudice can be ‘real and of substance’ ‘if it makes relations more difficult or calls for a particular damage limitation response to contain or limit damage which would not have otherwise have been necessary.’

In the present case, on the basis of evidence we have received, there is a very real risk of an adverse
reaction from Saudi Arabia if the information was to be disclosed and this in turn, is likely to have an adverse impact on our relationship with Saudi Arabia and our ability to conduct effective international relations. The consequences of disclosure of the requested information is therefore, to expose the UK to the risk of an adverse reaction from the government of Saudi Arabia and undermines the capacity building and stabilisation work carried out there and elsewhere. This in turn is likely to dissuade Saudi Arabia and other international states from working with, and seeking assistance from, the UK and the College in the future. This would have the very real effect of compromising the ability of the College and the UK to work with and influence international governments on key security issues.

Please find the public interest test considerations that I have identified and considered in relation to my application of section 27 (1) (a), (c) and (d) of the FoIA 2000 stated below.

Public interest considerations favouring disclosure

The disclosure of appropriate and relevant information would reinforce the College’s commitment to being an open and transparent organisation, serving to maintain public confidence in the College and the wider police service. Furthermore, the relationship of the UK and Saudi Arabia is currently of a high public interest and disclosure of the information will result in an increased public awareness of how the College conducts business with the country and its international partners and what risk assessments are made prior to undertaking work with countries abroad. This would include providing details of how the College takes account of human rights issues and the consideration to mitigate risk and harm.

Public interest considerations favouring non-disclosure

The disclosure of the information requested is very likely to prejudice and cause irreparable damage to the international relations between the College and Saudi Arabia as well as other international states with whom we engage. Disclosure of the requested information is very likely to be seen as a breach of the mutual trust and respect which is fundamental to the College’s international relations. Should this mutual trust and respect be diminished, this would compromise the ability of the College and in turn the UK, to promote and protect its interests abroad and in forming new and mutually beneficial relationships with international states.

Evaluation

The public interest test is not an evaluation of what interests the public but rather consideration of whether the community benefit of possession of the information outweighs the potential harm. On weighing up the competing interests, I find the public interest test favours withholding the requested information.

I acknowledge that complete transparency in response to how the College engages with international states informs public debate, provides reassurance and promotes confidence in the police service, as well as in the College as the professional body for policing. However, as highlighted above, there is a real and considerable risk that disclosure of the information requested would be regarded as a breach of mutual trust and respect by Saudi Arabia and this would very likely cause severe and lasting damage to the UK’s international interests.

I consider that the release of information that is highly likely to prejudice the interests of the UK abroad and undermine the ability of the UK to influence and work with Saudi Arabia on key international and security issues cannot be in the public interest. As such, I am unable to provide you with the information requested under section 27 (1) (a), (c) and (d) of the FoIA 2000.

Section 31 (1) (a) (law enforcement)

Section 31 provides –

‘(1) Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice —

(a) the prevention or detection of crime’

The provision to refuse access to information under section 31 (1) (a) of the FoIA 2000 is both qualified and prejudice based. I am, therefore, required to establish the nature of the prejudice and/or harm that may result from disclosure and where prejudice and/or harm is established but not certain, determine the likelihood of it occurring. In addition, I must also conduct a public interest test to determine whether the public interest lies in disclosing or withholding the requested information.

Prejudice and harm considerations

As stated above, any prejudice must be real, actual or of substance. The chance of prejudice being suffered should also be more than a hypothetical possibility with there being a real and significant risk.

Having reviewed your request, I consider that the disclosure of the information requested has the significant and weighty chance of highlighting the specific nature of how the College is cooperating with Saudi Arabia or how it intends to do so in the future. The disclosure of information regarding the type of assistance provided, or intended to be provided in specific countries has the very real risk of the unintended disclosure of law enforcement capabilities, or lack thereof, which may have an undesirable impact on law enforcement operations both in the UK and abroad. This in turn, creates a real and undeniable risk to the safety of the public and indeed law enforcement personnel in those countries with which we engage.

Please find the public interest test considerations that I have identified and considered in relation to my application of section 31 (1) (a) of the FoIA 2000 stated below.

Public interest considerations favouring disclosure

There is a clear public interest in making appropriate information available to the public in order to promote openness, transparency and to provide reassurance to the public, in particular, in terms of assurance as to the quality of training provided by the College both to UK officers as well as to international clients.

The increased public awareness of law enforcement capabilities and the way in which the police seek to bring law enforcement operations and incidents to a safe conclusion would promote a feeling of safety in the general public. In addition, the use of public money as well as the income generated by public bodies such as the College, is also a matter of strong public interest.

Public interest considerations favouring non-disclosure


I consider that disclosure of the requested information runs the risk of disclosing the law enforcement
capabilities, or the lack of such capabilities, of Saudi Arabia. In addition, the disclosure of the requested information has the likely potential to disclose law enforcement tactics which could jeopardise specific operations, both in that country and elsewhere.

The effect of disclosure has the likely effect of hindering the effective prevention and detection of crime and would compromise the ability to bring incidents and operations to a safe conclusion. Disclosure of information that undermines the operational integrity of law enforcement tactics and capabilities will adversely affect public safety and have a negative impact on law enforcement generally and this cannot be said to be in the public interest.

Evaluation


As stated above, the public interest test is a consideration of whether the community benefit of possession of the information outweighs the potential harm. It is not an evaluation of what interests the public. On weighing up the competing interests, I consider that the public interest test favours withholding the requested information.

I acknowledge that there is a clear public interest in transparency in relation to how the College conducts its business with international states and the decision making process, however, this must be weighed against the very real and considerable risk that disclosure of the information may bring, in particular with regards to disclosure of law enforcement capabilities, or lack thereof, as the case may be of Saudi Arabia, as well the risk of compromising specific operations which in turn jeopardises the safety of officers and the public at large.

I consider that the disclosure of the information is highly likely to provide assistance in undermining police capabilities and therefore compromise law enforcement operations which cannot be in the public interest. As such, I am unable to provide you with the information requested under section 31 (1) (a) of the FoIA 2000.

Section 43 (2) (commercial interests)


Section 43 (2) provides –

‘Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).’

The provision to refuse access to information under Section 43 (2) of the FoIA 2000 is both qualified and prejudice based. As such, I am required to establish the nature of the prejudice and/or harm that may result from disclosure and I must conduct a public interest test to determine whether the public interest lies in disclosing or withholding the requested information.

Prejudice and harm considerations

Due to the fact that the information requested relates to the work that the College is undertaking, or
proposes to undertake, in Saudi Arabia, I consider that the disclosure of the requested information would have the likely risk of undermining the commercial position of the College with regard to negotiating agreements for the provision of expert training and assistance with Saudi Arabia and other international states in the future.

The disclosure of information into the public domain runs the real risk that our competitors would exploit the information and therefore expose the College to the risk and vulnerability of commercial loss. This in turn, would be likely to have an adverse impact on the ability of the College to reach agreement with countries in the future on the provision of training, and thereby have a detrimental impact on its ability to generate revenue, meaning it will remain reliant on public funds for a longer duration.

The College is actively working towards reducing its grant in aid from the government and in becoming an independent statutory body, which would be adversely impacted should our commercial position be jeopardised through the disclosure of the requested information. It is clearly in the public interest that the College reduce our reliance on grant in aid from the government since this would save public funds.

Public interest considerations favouring disclosure

There is a clear public interest in making appropriate information available to the public. The release of such information promotes transparency and provides reassurance to the public as to the training and assistance provided by the College to various international states. This in turn, serves to support and maintain public confidence in the law enforcement capabilities of these countries and help to foster a feeling of safety in the general public.

Public interest considerations favouring non-disclosure

As a disclosure under the FoIA 2000 is a disclosure to the world at large, it is not only the applicant who would have access to the information. Consequently, the disclosure of the requested information is very likely to compromise the commercial position of the College and result in the College’s international clients seeking training and assistance elsewhere, not least from the College’s competitors who may seek to use and exploit the information that is disclosed to undermine the College’s commercial position.

The ability of the College to generate its own income by provision of training and assistance is fundamental to the College’s objective of becoming a statutory body that is independent of government. This requires reducing the College’s dependence on grant-in-aid from the government, which can be said to be very much in the public interest.

Evaluation

On weighing up the competing interests I am of the opinion that the public interest test favours withholding the requested information. Whilst I acknowledge and accept the benefits of transparency and public confidence in the training and assistance provided by the College to various states, I am not of the view that they outweigh the potential negative impact on the College’s own commercial interests. There is a very real public interest in protecting the College’s ability to generate income so as to allow the College to become less reliant on government funding and disclosure of the information requested would undermine this objective significantly. As such, I am unable to provide you with the information requested under section 43 (2) of the FoIA 2000.

Section 23 (5) (information supplied by, or relating to, bodies dealing with security matters) and Section 24 (2) (national security)


The College of Policing can neither confirm nor deny whether the above information represents all the information held that would meet the terms of your request, as the duty to comply with section 1 (1) (a) of the FoIA 2000 does not apply by virtue of section 23 (5) and section 24 (2). Please see my submissions in this regard below.

Section 23


Section 23 provides:

(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).

This is an absolute exemption and I am therefore not required to complete a public interest test.

Section 24


Section 24 (2) is a qualified exemption and as such there is a requirement to evidence any harm confirmation or denial that any other information is held as well as considering the public interest. Please see my submissions in this regard below.

Harm for neither confirming nor denying that any other information is held for Section 24

As disclosure under the FoIA 2000 is a disclosure to the world at large, disclosure of the information, if held, runs the risk of providing criminals with information, that when used on its own or with other information that is likely to have an undesirable effect of the national security of states concerned as well as the national security of the UK. This would in turn, have an impact on the ability of these states and the UK to protect itself from threats from criminals and its enemies and cause a risk to the safety of its citizens. It is also likely to have an adverse impact on the ability to conduct effective law enforcement operations, both in the UK and abroad. This has the likely consequence of undermining the UK’s ability to protect its interests aboard which is in turn is likely to adversely affect national security.

Public interest considerations in maintaining NCND

By confirming or denying whether any other information is held would have the effect of making security measures in international states less effective since it may highlight vulnerabilities in those states. Confirming or denying whether any other information is held would also have the effect of making security measures in the UK less effective as international police forces would be unable to share information and intelligence in order to combat threats from criminals. This would, in turn, be highly likely to compromise ongoing or future law enforcement operations to protect the security or infra-structure of those states and also lead to irreversible damage to the international relations between the UK and the states with which it engages.

Public interest considerations in not maintaining NCND

The public are entitled to know how public money is being spent and how public authorities conduct their activities and generate their income. By confirming whether any other information regarding the provision of training to international states is held would lead to a better-informed public and therefore, increase public confidence and allow better public debate.

Evaluation

To the extent that section 24 (2) applies, the College of Policing has determined that in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in confirming whether or not any other information is held. I can therefore, neither confirm nor deny whether any other information relevant to your request is held.


Sunday, July 24, 2016

Crown attempts to appeal DSEI 8 acquittal


The Crown, for purely political reasons, has chosen to spend tens of thousands of pounds pursuing eight of us through the courts, despite our already having been acquitted.  Whilst we were trying to prevent war crimes and crimes against humanity the Crown took obstructing the highway as more serious.  But, having lost their case for obstruction they tried to appeal, and were slapped down by the Judge twice.  Now they are spending far more in trying to get the Judge’s decision judicially reviewed!  It is clear that it is not about our minor cases of obstructing the highway, but because they do not like the fact that the Judge went out of his way to make clear that illegal activity occurs at the Defence & Security Equipment International (DSEI) arms fair; and that the police are doing nothing about the crimes there.  And the crimes taking place, or supported, at DSEI include war crimes, crimes against humanity and the sale of illegal equipment such as torture equipment.

The facts are not contested.  The DSEI arms fair is one of the largest arms fairs in the world, held every other year in London, and each time illegal activity takes place there including both the sale of illegal equipment including torture equipment and cluster bombs and that weapons are sold in the knowledge that they will be used to commit war crimes or crimes against humanity.  It was also accepted that the police, and other authorities, do little, if anything to detect or prosecute these crimes.

A large group of ordinary people felt so strongly that it was necessary to prevent these very serious crimes that they chained themselves to vehicles, each other or the gates or simply lay in front of lorries in each case to try to prevent arms from being delivered to DSEI and hence sold to murder civilians in Yemen, Palestine, Turkey, Kurdistan or any of the other places where crimes against humanity are being committed.

This much is not seriously in dispute; the result is that all eight defendants were acquitted on April 15 by Mr Justice Angus Hamilton as we were trying to prevent crime.  In his summing up Hamilton said:

“the court has been presented with clear, credible and largely unchallenged evidence from three experts that criminal wrongdoing had occurred at past DSEI exhibitions involving the sale of arms to countries which then used those arms against civilian populations and the sale of items that were inherently unlawful such as cluster munitions and items designed for torture and inappropriate restraint. There was, as a result, a compelling inference that such activities would also take place at the 2015 DSEI exhibition.

“The court was also presented with clear, credible and largely unchallenged evidence that such criminal activities are not being properly investigated and, where appropriate, prosecuted. Ample evidence of this was provided by the three experts.”

In other words, the prosecution did not challenge our evidence that criminality habitually occurs at DSEI and that the police were doing nothing about it; so it fell to us as concerned citizens to attempt to prevent some of the most serious crimes imaginable.

In trying to deny us the right to use crime prevention the prosecution relied on two main arguments:
·        That we had not used sufficient force to be able to use section 3 of the Criminal Law Act 1967 which says “A person may use such force as is reasonable in the circumstances in the prevention of crime….”  The crown argued that we did not use sufficient force to be allowed to rely on this act; which has the interesting effect that the defence might be allowable if we had used greater force!
·        That the crime was not sufficiently imminent to allow us to intervene; and that we should instead rely on the police to enforce the law.  Which we were able to clearly demonstrate that they had failed to do in the past and no evidence that they would enforce the law this time.

With the court having rejected these the Crown chose to appeal by asking the Judge to “State Case” (ie to allow the appeal on points of law).  However, they made such a cack-handed attempt that Mr Justice Hamilton was moved to write:

“I decline to state a case on the basis of the current application as it is frivolous, and in particular it is misconceived”.
and
“The CPS application repeatedly significantly misrepresents the contents of the judgement delivered at the end of the case and therefore seeks to challenge the decisions reached on wholly erroneous bases. The CPS application also muddles factual decisions with decisions of law and it is not open to the CPS to seek to appeal findings of fact.”…. “In these circumstances the very least the CPS should do is to read the judgement fully and, if appropriate, frame their application based on what was actually decided rather than what they seem to believe was decided. The CPS also needs to make a significantly better effort to identify any claimed errors of law as distinct from findings of fact.”

Rather than accepting this slap from the Judge they wrote a long and detailed explanation of their original request for appeal which the Mr Justice Hamilton also declined saying:

“There may be an appealable point in this case but unless and until the CPS prepares its application on the basis of what was actually said in my judgement (rather than something they appear to imagine was said) I am simply not prepared to implicitly condone such poor preparation by stating a case on the current application.”

Despite this further slap down the Crown has now decided to try to get the decision of the judge judicially reviewed by the High Court.  Apparently, to achieve this they will have to demonstrate that no reasonable person could have acted as the judge did in refusing the appeal!

The Crown has already spent tens of thousands of pounds pursuing this relatively trivial case, but have now briefed a QC and prepared a two-hundred-page document! Yes! Two hundred pages! Which they have submitted to start the Judicial review proceedings.  They are asking either that the court quash the Learned District Judge's decision to acquit the interested parties (ie the defendants) and direct that the case be remitted to the magistrates' court so that it may be heard in accordance with the law; or to make an order compelling the magistrates' court to state a case.

Note that they are asking for a complete new trial – which would presumably require many more thousands of pounds to be spent both by the prosecution and the defence as well as witness’s time and court time.  I should also point out that we only offered one of our defences in the original trial – that we were trying to prevent crime as the judge said he would rule on that defence before hearing our other defences.  So even if this defence is rejected we should go back to the original court and offer our other defences which include the use of the European Convention of Human Rights Article 9 Freedom of thought, conscience and religion, Article 10 Freedom of expression and Article 11 Freedom of assembly and association.


Instead, we hope that common sense will prevail and that the High Court will not allow this clearly politically motivated request for a judicial review, and allow our acquittal to stand.

Friday, July 22, 2016

Crown Prosecution Service letter to Judge Hamilton

We received this letter from the Crown Prosecution Service (CPS) to Mr Justice Hamilton some time ago, but decided that might be best not to publish it in the hope that the CPS would not pursue the judicial review.  However we are now publishing it.


F.A.O District Judge Angus Hamilton
Stratford Magistrates' Courts
Dear District Judge Hamilton

31 May 2016
Our Ref: 01/KF/4656015

DPP V. DITCHFIELD & ORS- PRE ACTION PROTOCOL FOR JUDICIAL REVIEW (LETTER BEFORE CLAIM)

We write further to your decision to decline to state a case in the above captioned proceedings. The decision in question is dated 5 May 2016, but was communicated to the Crown Prosecution Service on 20 May 2016.

The purpose of this letter is, respectfully, to invite your reconsideration of the decision for reasons set out below. Should you maintain your decision not to state a case the Crown Prosecution Service will have no alternative other than to apply for judicial review of your refusal, although, for reasons which are obvious, it is very much hoped that this course can be avoided.

As you are aware, the Crown Prosecution Service's application to state a case posed two questions for consideration by the High Court. Your refusal to state a case is made on the basis that the application is frivolous within the meaning of that term as set out in R v Norlh West Suffolk (Mildenha/1) Magistrates Court [1998] Env LR 9. The Crown Prosecution Service maintains its position that its application is and was properly made.

The starting point is section 111( 1) of the Magistrates Court Act 1980 rthe MCA 1980"). This section sets out the procedure for stating a case and makes clear that the function of the appellate court is to determine whether the decision of the magistrates' court is "wrong in law or is in excess of jurisdiction." The remedy of an appeal by way of case stated is available in relation to an error of law or a decision taken in excess of jurisdiction. The authorities make it clear that a decision on a questions of fact may give rise to an appeal by way of case stated, in particular, where it is alleged to be a decision of fact that no reasonable court could properly have reached on the evidence before it: see Oladimeji v DPP [2006] EWHC 1199 (Admin), a copy of which is enclosed for ease of reference.

Section 111 (5) of the MCA 1980 provides that justices may refuse to state a case where they are of the opinion that the application is "frivolous". In the Mildenhall case, supra, the Court of Appeal considered the meaning of frivolous in this context. It was held that a refusal to state a case may arise "when the court considers the application to be futile, misconceived, hopeless or academic." Lord Bingham CJ observed that a refusal of a case on grounds of frivolity is not a decision to which justices will often come. For the reasons set out below, it is respectfully submitted that the application in the instant case is not futile, misconceived, hopeless or academic. Indeed the contrary is the case.

In the course of your judgment you found that the availability of the defence contained in section 3 of the Criminal Law Act 1967 was "in a state of flux, development and consequent uncertainty. I therefore applied the principle that any uncertainty must be resolved in the defendant's favour and I agreed to hear the arguments in relation to the potential 'prevention of crime' defence and the supporting expert evidence". The decision to leave open the defence of the prevention of crime and the decision to admit evidence relating to that defence were clearly decisions of law. The observation that the law is in a state of flux is, with respect, difficult to reconcile with your refusal to state a case. The acknowledgment that the law is in a state of development suggests that clarification of the scope of the defence contained in section 3 is a matter of public importance and properly a matter for consideration by the High Court.

In the course of your judgment you also found that the "force" used by the defendants fell within the ambit of section 3. This interpretation of the phrase "use of force" also amounted to a decision of law. The case law referred to by the parties in the course of oral and written legal submissions acknowledged that whether actions such as those taken by the defendants could amount to force within the ambit of the section 3 defence has not yet been authoritatively determined. Hitherto, the courts have been prepared, for the sake of the argument, to assume that activities such as chaining oneself to a vehicle and pouring sugar in a petrol tank fell within the ambit of section 3. In so doing it has been noted that the question as to whether these types of activities involved the use of force for the purposes of section 3 would have to be decided on another occasion.

This issue of law is by no means frivolous and is properly included within question one for consideration by the High Court

As noted above, questions of law may also arise where a decision of fact is arguably one which was not open to the court. For this reason, ground 4 as set out in the Crown Prosecution Service's application (dated 29 April 2016) contends that in acquitting the defendants, on the basis that their actions were objectively reasonable in the context of a section 3 defence, was not a decision properly open to the court. This amounts to an error of law and is reflected in question 1 of the Crown Prosecution Service's application.

In Kracher v Leicester Magistrates Court [2013] EWHC 4628, the High Court emphasised the importance of challenging magistrates' courts decisions of law by way of case stated, rather than by way of judicial review. Again, we attach a copy for ease of reference. The questions in this case are plainly decisions of law and an appeal by way of case stated is unquestionably the appropriate route of appeal.

In conclusion, it is respectfully submitted that the questions included within the application are properly matters for consideration by the High Court and it would, accordingly, be appropriate to state a case.

For the reasons set out above, we respectfully invite you to reconsider your refusal to state a case. This will avoid the additional costs of seeking judicial review of your decision, which should be unnecessary and certainly is something the Crown Prosecution Service is anxious to avoid.

In accordance with paragraph 20 of the pre-action protocol for judicial review, we request that a response to this letter be provided by email (to xxxxxxx@cps.gsi.gov.uk) within 14 days (i.e. by 14 June 2016).

A copy of this letter has been provided to the legal representatives of the acquitted defendants in this case as prospective Interested Parties.

Yours faithfully

Crown Prosecution Service




Drop Hinkley Point - letter to Julian Sturdy MP

Dear Mr Sturdy,

Apparently a decision is to be made on Hinkley Point next week.  This would be a huge disaster and missed opportunity for the UK.  Let me outline just a few of the problems with Hinkley Point
  1. It is an unproven technology; with two other power stations being built to the same design being massively over budget and over time so that there is a serious danger that it will not be available when we need it.
  2. It is yet another massive development project in the South when we need projects and development in the North of the country far more.
  3. It is taking money from renewable energy.  We are seeing the government provide subsidies for North Sea Oil and Fracking both of which are enormously harmful while removing all subsidies from renewable energy developments.
  4. It offers guarantees of electricity prices for three decades, during which time we can expect the price of renewable energy to fall massively with the result that consumers (you and me) are likely to end up paying more for electricity to France and China.
  5. Nuclear energy leaves dangerous waste for tens or hundreds of THOUSANDS of years, waste that we don’t have any way of safely handling so that it is currently stored at huge cost and with a serious danger of leaks.


If the investment were instead put into renewable energy it would create thousands of jobs within the UK, provide electricity much more quickly and safely.

Please press the Chancellor to drop Hinkley Point and invest the money in renewables instead.  It will be better for Britain, safer and create more jobs in the UK.
Best wishes
Tom.
Tom Franklin
4 Frazer Court
York
YO30 5FH

Monday, July 18, 2016

Fairer voting system - letter to Julian Sturdy

Dear Mr Sturdy,

Another week, another letter; but democracy is too important for me not to be involved.

Caroline Lucas has organised a ten minute rule bill debate to introduce a fairer system of voting.  We currently have a system where a mere 37% of voters gained a majority of MPs; and where over 4 million UKIP voters are represented by a single MP.  This is clearly undemocratic, and is undermining democracy.  We increasingly see people alienated from the political process because they do not believe they will be heard.  Any voter in a safe seat feels that their vote does not count, and that the government is determined by a small number of voters in a few swing seats.

Whilst the Conservative party is clearly the winner under the current system it is no longer sustainable, and when people feel that they have little or no say in the makeup of government they look for other ways to express their opinion.  We know that for many who voted for Brexit it was a howl of rage and despair against the system (we know because surveys tell us as do our own conversations with many people).

If democracy is to survive it needs to be renewed and refreshed, and as with the referendum, we need to ensure that every vote counts.  It is therefore imperative that we move to a system of proportional representation.  I hope that you can put short term party benefit aside for the benefit of the whole country and support the Lucas bill on 20 July.

Best wishes
Tom.

Tom Franklin
4 Frazer Court
York
YO30 5FH

Thursday, July 14, 2016

Don't renew Trident - letter to Julian Sturdy MP

Dear Mr Sturdy,

As I am sure you are aware there will be a debate and vote next Monday on the renewal of Trident.  It seems to me to be a particularly poor time to have the debate.  With a new leader and new secretary of state for defence there must be a need to reflect on where we are and whether a Trident replacement is an appropriate use of limited money when there are clearly other greater needs, and the UK has just voted to withdraw from influence in the world.

I am aware that you are supporter of nuclear weapons, and would under some circumstances be willing to use them.  However, with the Chilcot report just published and it comments on our ability to undertake even conventional wars it seems that it would be appropriate to consider the most cost effective ways of defending the country.  To select hugely expensive weapons (around £200 billion over their lifetime) which would mean that we had already lost if they were used seems to be a waste of money when we are told that there is a shortage of other weapons.

I am opposed to all war, but nuclear weapons are especially evil because of the huge number of people that will die if they ever used; and most of the people killed would be civilians.

I therefore urge you to vote against the renewal of Trident, or failing that, to press for a postponement of the vote so that the matter can be considered more rationally and reasonably than in the current febrile atmosphere.

Best wishes
Tom.

Tom Franklin
4 Frazer Court
York
YO30 5FH

Sunday, July 10, 2016

The right of EU nationals to remain in the UK

Letter to Julian Sturdy via Hope not hate http://action.hopenothate.org.uk/page/speakout/eu-nationals-remain


Message Dear Julian Sturdy,

I am writing to you as a local constituent to urge you to give your support for the right of EU nationals to remain in the UK after Britain leaves the European Union.

Exclusive polling by the anti-racist organisation HOPE not hate, conducted by Populus, has found that 80% of the public support the Right to Remain. The 4,035-strong survey, conducted between 30 June and 4 July, found that this position was supported by 84% of Conservative voters, 85% of Labour voters, 95% of Liberal Democrat voters and 56% of UKIP voters.

There is considerable anxiety for the 3 million EU citizens who have made their homes in the UK, and the 1.2 million British citizens living in other EU countries.

This is also a vital concern for many British businesses and public services employing EU nationals, who do not want retrospective disruption to their existing workforce at a time of economic uncertainty.

We would urge you to make a clear and unequivocal statement that EU migrants currently living in the UK are welcome to stay here. EU nationals should not become bargaining chips in our negotiations with the European Union.

Sincerely,

Tom Franklin

Tuesday, July 05, 2016

HMRC response to FOI request re policing of DSEI

Dear Mr Franklin

Thank you for your email of 4 June about the 2015 Defence and Security Equipment International (DSEI) exhibition. In your email of 4 June you refer to an earlier email that you sent to Jon Thompson on 26 April. Unfortunately the email address you used for Mr Thompson is not valid, so I’m afraid that email was not received.

In your email of 4 June, you stated the following:

Subject: detection and prevention of crime at Defence Security and Equipment International (DSEI)

In April a judge said trying a case of obstruction outside DSEI said:

“the court has been presented with clear, credible and largely unchallenged evidence from three experts that criminal wrongdoing had occurred at past DSEI exhibitions involving the sale of arms to countries which then used those arms against civilian populations and the sale of items that were inherently unlawful such as cluster munitions and items designed for torture and inappropriate restraint. There was, as a result, a compelling inference that such activities would also take place at the 2015 DSEI exhibition.

The court was also presented with clear, credible and largely unchallenged evidence that such criminal activities are not being properly investigated and, where appropriate, prosecuted.” 

To set my mind at rest I would be grateful if you could tell me what actions your officers have taken in the past to discover these crimes. 
  • Have you inspected exhibitors prior to the fair? 
  • Do you have police in the fair briefed to look for illegal activity? 
  • Are you vetting exhibitors and buyers to ensure that no human rights abusers are present?
  • What level of resource are you devoting to the prevention and detection of crime at DSEI? And
  • In particular, what have you done to prevent weapons being exported to countries known to use them for human rights abuses such as Saudi Arabia and Israel?

Section 1 of the Freedom of Information Act 2000 (FoIA) gives applicants the right of access to recorded information, where that information is held by a public authority. Requests that require ‘yes’ or ‘no’ answers, or ask for explanations or clarification are not strictly requests for recorded information and do not fall to be answered under FoIA. Although your questions do not meet the criteria set out in the FoIA, I am happy to treat your e-mail as a general enquiry and to answer your questions accordingly. To the extent that we are providing information about identifiable persons (individuals or legal entities) this is being done outside of any FoIA obligations as such information would be absolutely exempt from disclosure under section 44(1)(a) of the FoIA.

HMRC takes breaches of arms export controls very seriously, and looks into all credible allegations of arms export control offences. HMRC investigators will carry out a full investigation where there is clear evidence of a serious criminal offence.

Since 2005, 17 individuals and 4 companies have been successfully prosecuted as a result of HMRC investigations into breaches of arms export controls, arms trafficking controls or breaches of sanctions and arms embargoes. A further 40 companies have paid financial penalties for breaches of these controls. None of these offences related to the DSEI exhibition.

There is no clear evidence provided to HMRC that criminal offences have been committed at DSEI in relation to UK arms export controls or arms trafficking and brokering controls, for which HMRC is responsible for investigating. No breaches of arms export controls were identified at the 2015 DSEI exhibition. During the 2013 DSEI event, organisers found some literature on the stands of two foreign exhibitors which related to electric shock batons and leg irons. In the UK and the European Union, certain trade in these goods is prohibited because they could be used for the purposes of torture or degrading treatment.

The two foreign exhibitors were expelled from the exhibition and the literature in question was confiscated and passed to HMRC. However, simply having literature relating to these items does not necessarily mean a criminal offence has been committed. HMRC officers assessed the situation and decided it would not be appropriate or proportionate to take further action against these two companies.

HMRC officers work closely with colleagues from other Government departments and agencies, as well as the event organisers, to help prepare for each DSEI event. We make sure that in advance of each event the exhibitors are made fully aware of UK and EU legislative requirements in order to prevent breaches of UK law occurring. Exhibitors’ stands are subject to compliance checks by the DSEI compliance team before and during exhibitions. HMRC officers attend each day to help ensure that exhibitors comply with their export control responsibilities. A team of HMRC officers attended the 2015 DSEi event and were supported by technical staff from the Department of Business, Innovations and Skills (BIS) as well as other government officials.

Determining who should be invited to exhibit at the DSEI exhibition or who should attend is not one of HMRC’s functions. However, we work closely with other Government departments and the organisers in advance of DSEI and if we had particular concerns about an exhibitor or attendee we are able to raise those concerns.

In general, exports of firearms and military equipment require an export licence issued by BIS. HMRC officers work closely with Border Force officials to ensure that any exports of arms and military equipment have a valid export licence. HMRC and Border Force enforce anti-smuggling controls designed to detect and prevent the unlicensed export of arms and military equipment.

We carry out appropriate checks in relation to all destinations, and pay particular attention to those countries subject to United Nations and European Union sanctions and arms embargoes.

I hope this addresses your concerns.

Yours sincerely,

Lee Barham

Head of Customs Enforcement Policy