Criminal Justice, Data Protection, Freedom of Information, Immigration Law

Home Office, Twitter and Immigration

Immigration is never far from the headlines in the UK and this has been true for a number of years.  On 1 August 2013 the Home Office conducted a high profile immigration operation around the UK which caused debate and discussion in the UK.  On that day in August 2013 the Home Office published a series of tweets which provided details of the number of persons that they had arrested during the day accompanied by the hashtag #immigrationoffenders and in some cases photographs.

In the days that followed there was national press coverage online on the BBC News website, the Guardian, the New Statesman and others as well as international, for example on the website of Le Parisen, a newspaper in France.  This operation came around a month or so after the mobile billboard campaign ran by the Home Office, which popularly became known as ‘the racist van’ – a campaign that was criticised by the Advertising Standards Authority when the partially upheld a complaint against the Home Office.  Much of the criticism of the 1 August 2013 operation, known as ‘Operation Compliance’ was around the operation itself and centred on concerns about racial profiling.  However, some people considered whether the Home Office was properly complying with the Data Protection Act 1998 and there was even some consideration as to whether the activities might be considered as prejudicing future criminal proceedings (if any).

After some consideration I made a Freedom of Information request to the Home Office in August 2013 concerning the events of 1 August 2013, a request that finally came to a conclusion on 3 September 2015.  The Home Office initially refused the request and largely upheld that position on internal review (which it took over 9 months to complete).  The Information Commissioner found in his decision notice that the Home Office were entitled to withhold some of the information that they had withheld, but not the rest (see the ICO’s decision here – which also sets out my request in full).  The Home Office then appealed this to the First-Tier Tribunal (Information Rights).  The Tribunal dismissed the Home Office’s appeal (the Tribunal’s decision can be read here) after a hearing in late June 2015.  The information that was disclosed can be read here (this document does include some of the information that had been earlier disclosed, but the Home Office included it in the new disclosure for “consistency”).

What the information reveals is nothing sinister; it shows civil servants planning and executing a public relations campaign highlighting the work that the Home Office is undertaking.  My principal interest though was always around what consideration the Home Office had given to data protection implications, as well as concerns around prejudicing future criminal prosecutions and also compliance with civil service guidance (which someone else had written about following a tweet of a similar nature about a month earlier).

The information that has been disclosed reveals quite a lot by what it does not contain.  There appears to be no direct consideration of data protection or of prejudice to future criminal proceedings or civil service guidance.  Of course, these matters could have been considered and there simply exists no record of them having been considered (that, I suggest, would show a lack of proper and effective record keeping).  There is an indirect reference to the data protection and prejudice matters in the email extract dated 31/7.2013 at 16:42.

The information also shows that the Home Office changed the hashtag prior to the operation commencing.  It would appear from the information disclosed that they had initially intended to use #illegalworking.  It seems that they changed their mind because the 1 August 2013 operation was not solely targeting those working without the proper papers and permission and they feared criticism from using the #illegalworking hashtag.

Of course this information is not anywhere near as valuable as it might have been had it been released in August or September 2013, many people will have forgotten all about the 1 August 2013 operation (I suspect it will be etched in my mind for some time to come having lived it, studied it, discussed it and litigated it for over 2 years).  It has been a long road, but nonetheless the information that has been released is valuable:  it largely shows a measured discussion by civil servants who appear to be trying to demonstrate to the public in relevant and imaginative ways the work of one of the Departments of State; however, it does appear to highlight some weaknesses in the planning for such media operations and if anything, hopefully these matters will be considered in future operations.

Criminal Justice, English Law, Human Rights, Immigration Law, International Law, Legal System

Julian Assange

The latest twist in the Julian Assange saga has presented with it some interesting legal and diplomatic questions.  In June Assange walked into Ecuador’s embassy in central London seeking political asylum on the grounds that as a result of the decision to extradite him to Sweden he feared he would be further extradited to the United States of America where his human rights would be infringed.

I am no expert in International law and there are people far more learned than I in these matters who have commented.  I have linked to some of their writings and other commentary at the end of this blog post.  There are serious issues at play in this case and I thought I would put my two-penneth in.

This whole saga started in October 2010 when the Swedish authorities issued a European Arrest Warrant (EAW) for Mr Assange.  EAWs are a way of ensuring the co-operation between member states of the European Union.  When the Swedish authorities issued the EAW, Assange was living in the UK and had been for no more than a couple of months.  There had been appeals against the EAW in Sweden and it was in December 2010 that Assange was informed by the Metropolitan Police Service that a valid EAW had been received.   Mr Assange then sought to challenge his extradition to Sweden in the English Courts and took his case all the way to the Supreme Court of the United Kingdom which held against him.  A number of important decisions were taken in these cases including that the offence for which he is sought is the equivalent to the offence of Rape in English law (something which some Assange supporters, even today, state is not the case) and that the under criminal procedure in Sweden the case against Mr Assange had reached a point that would be the equivalent of having been charged in English law.

One of the difficulties with any extradition proceedings is that each legal system is different and one cannot simply compare the system in the country seeking extradition to the system here in the UK.  Indeed, there is no uniform process of criminal procedure in the United Kingdom.  The UK courts have looked at the Swedish and English systems and decided that if Mr Assange was facing these allegations in England he would likely have been charged by this point.  This is important because Article 1 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (“the Framework Decision”) states that an EAW can only be issued “for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.”  In order to charge Mr Assange with any offence (within the meaning of Swedish and not English law) the Swedish authorities require to conduct a further period of questioning.  Mr Assange and his supporters have tried to use this in order to challenge the validity of the EAW.  However, as noted above the UK courts have found that the Swedish authorities are seeking him for the purposes of conducting a criminal prosecution and not merely to question him in relation to an allegation.

I don’t propose to say much else on the history of this case as it is really history now and much has already been written on it by others.  However, I do propose to consider the developments of the last few days and also some of the wider implications.

I first of all wish to state clearly that I am in favour of Mr Assange going to Sweden to face these allegations.  They remain only allegations at this stage and Mr Assange is afforded the presumption of innocence.  I make no comment on his guilt or innocence in relation to these allegations.  However, they are extremely serious allegations and the women who have made them have rights as well.  They have the right provide their version of events in court and to have the Swedish judicial system consider the evidence against Mr Assange and determine whether he has committed a criminal offence contrary to the law of Sweden.  He may be guilty and he may be innocent.  The only way in which that can be determined is for Mr Assange to face the Swedish judicial system.  If his supporters believe him to be innocent then they should be encouraging him to go to Sweden and prove that fact so as to ensure his name is cleared of these terrible allegations.  In my view, any right-minded and sensible individual should be in favour of Mr Assange going to Sweden to answer these allegations.

There has been some suggestion that Mr Assange could be further extradited to the United States of America where he may be tortured or face the death penalty.  Neither the UK nor Sweden will extradite a person to a country where they will face torture or the death penalty.  The European Convention on Human Rights (ECHR) will simply not allow it and any attempt to extradite Mr Assange to the USA without sufficient assurances that he will not be tortured and that he will not face the death penalty will likely lead to a sufficient challenge before the European Court of Human Rights (ECtHR) in Strasbourg.  Both the UK and Sweden are signatories to the ECHR and under the Framework Directive Sweden would need the consent of the UK before extraditing Mr Assange to the United States of America (Article 28, paragraph 4).  This means that the assurances given by the United States would need to satisfy both Sweden and the United Kingdom that Mr Assange will not be tortured and will not face the death penalty.  Of course the Home Secretary might be minded to give such consent were it sought; it would not prejudice Mr Assange’s right to recourse to the ECtHR.

Earlier this week the Foreign Minister of Ecuador announced that the Government of Ecuador was offering Mr Assange political asylum.  This caused outrange amongst the British and Swedish Governments who strongly criticised the decision.  The evening before the decision on Mr Assange’s application for Asylum was announced the British Government sent what has been considered to be quite a threatening letter to the Government of Ecuador.  It is recognised in International Law that premises used as Diplomatic or Consular premises are sovereign territory of the country using them.  This means that, while still in the UK, the United Kingdom cannot enter the premises to arrest Julian Assange without the permission of Ecuador’s Government.  To do so would be similar to English police officers travelling to Ecuador and removing a person from the country and brining them back to the UK.  They would not normally have jurisdiction to do that, unless Ecuador’s Government had so agreed to them having such jurisdiction.

The latter reminded Ecuador that under English law the UK Government could cease to recognise Ecuador’s premises by virtue of the Diplomatic and Consular Premises Act 1987 (“the 1987 Act”).  The 1987 Act is an interesting one and it wasn’t really enacted with cases like Mr Assange’s in mind.  As Carl Gardner stated in a comment on his blog post in relation to this issue (see links below for article), one of the principle considerations behind the 1987 Act was where diplomatic premises were being misused.  A Minister for State in the Foreign and Commonwealth Office (FCO) at the time, Baroness Young, use the example of where diplomatic premises were being used for terrorist purposes.

The Embassy of Ecuador is being used for the purposes of its mission.  I would find it hard to accept that granting asylum to a person and keeping that person there when the UK did not agree with that decision would be a sufficient reason for de-recognising the current premises used by Ecuador as its embassy.  In any event, removing diplomatic status of Ecuador’s embassy in London would open the way for Ecuador and its allies to retaliate and take action against our own diplomatic premises.  This, I would suggest, is not really a viable option and would be a severe abuse of the legislation.  Quite why the UK put such a “reminder” into a letter is something that can only be speculated upon.  It could have been a blunder, it could have been part of a diplomatic strategy or it could even have been part of an elaborate plan that has been negotiated between the three nations and Mr Assange.

Storming the Embassy is not really an option either.  It’s not been openly suggested by the UK Government, but some on the internet have suggested that the UK Government might just send the British Police (or even the SAS) into the embassy and drag Mr Assange out.  Such a move would be deeply disturbing and would no doubt be considered as an act of aggression towards it by Ecuador.  Again, such a move would put the UK’s diplomatic premises in Ecuador and other nations at risk and would set a dangerous precedent which is clearly contrary to the settled international custom on diplomatic premises.

The outcome of this case is likely to be rather dull than any of this.  It’s not likely to result in Judicial reviews in the UK Courts as the UK tries to use the 1897 Act; it’s not likely to result in a case of Ecuador v the United Kingdom before the International Court of Justice and it’s most certainly not going to result in a raid upon a foreign embassy in London.  What, in my view, is more likely to happen is that deal will be struck which will allow Mr Assange to either hand himself over to UK authorities or to make his way to Sweden and into the hands of the Swedish authorities.  It’s going to be impossible for Mr Assange to get out of the UK to Ecuador and there are real practical issues about him remaining in Ecuador’s embassy for the rest of the days (not least given the small size of Ecuador’s embassy in London).

In essence, Mr Assange should go to Sweden and answer the extremely serious allegations made against him.  He is probably more protected against extradition to the USA by being in Sweden than remaining in the UK.  By going to Ecuador’s embassy he has managed to create a diplomatic nightmare involving at least three countries.  The conclusion to this long-running saga might be some way off, but it will certainly not involve storming diplomatic premises and will unlikely involve stripping diplomatic premises of their diplomatic status.  Although, with Mr Assange anything is possible!

 

LINKS
The Council Framework Decision (pdf)
Extradition Act 2003
Diplomatic and Consular Premises Act 1987
Assange v Swedish Prosecution Authority (High Court of England and Wales judgment)
Assange v Swedish Prosecution Authority (Supreme Court judgment) (pdf)
Wikipedia Article on the European Arrest Warrant
Julian Assange: can the UK withdraw diplomatic status from the Ecuadorian embassy? (Carl Gardner)
Assange, Asylum and Immunity (Charles Crawford)
Julian Assange: can he get out of this? (Carl Gardner)
Will the Ecuadorian embassy be stormed? (David Allen Green)
The desperation of Julian Assange (David Allen Green)
Assange and the Supreme Court decision (David Allen Green)
Assange (@PME200)

Immigration Law, Politics

Harriot Harman on Question Time

I’m just watching Question Time and noticed that Harriet Harman was told that she was wrong when she was correct (rare I know, but she was and I feel I should point this out).

As I said, I hate to say it but Harriot Harman was correct when she said the maximum fine for Baroness Scotland was £5,000 – the £10,000 fine only applies to those who made no attempt to check that someone is entitled to work in the UK.  £5,000 is the maximum fine for making enquiries but not keeping proof of those enquiries or making enough enquiries into someone’s eligibility to work in the UK; which is what the UK Border Agency found in the case of Baroness Scotland.

Civil Liberties, Human Rights, Immigration Law, Legal System, Politics

Phelps’ banned from entering UK

Earlier I posted an entry about the plans of the Westboro Baptist Church (WBC) to come to the UK tomorrow in order to protest against the putting on of  The Laramie Project.

The UK Border Agency has banned Fred Phelps and his daughter, Shirley Phelps-Roper, from entering the United Kingdom.  However, the Church is still encouraging its supporters to come to the UK in order to spread their message of  hate.

Police in Hampshire are aware of the planned protest and are watching the situation.