Attorney General - legal "immunity" for an undercover police witness to a QC-led Review

Spy Blog is interested in the legal and procedural immunities offered to whistleblowers etc. Unless these are fair and sufficient, they will not allow whistleblowers to use the normal or extraordinary channels with the system to make their allegations, in the public interest.

However, if carte blanche immunity is given to secret informers and agents provocateurs then the most basic principles of justice are abandoned.

If you are a police or intelligence agency or military insider, would you be satisfied that the very limited legal immunity offered on behalf of this QC-led review is sufficient for you to testify in safety, especially where your current or former colleagues have the power to threaten you with criminal charges from their vast array of legal powers, regardless of the wrongs you may be exposing in the public interest ? ,

In this case, the identity of Peter Francis was public, but what if other of his, still anonymous, former undercover police colleagues, wish to speak up about the same or similar allegations of corruption, incompetence and political smear campaigns ?

To really "get at the truth", especially about secretive police / intelligence / military etc. operations, any QC-led or former / currently serving Judge-led or Privy Councillor - led Inquiry or Review. needs to have limited legal immunities for witnesses, made clear from the very outset,

c.f. the previous blog entry

FOIA Attorney General - full copy of "limited immunity" secured for witness(es) by Michael Ellison QC review of Police Corruption / spying on Stephen Lawrence family etc. allegations

Freedom of Information request - Our ref: FOI/13/14

I am writing in response to the Freedom of information request you submitted to this Office by email dated 14th January, the detail of which is copied below.

1) A full copy of the "limited immunity" undertaking by the Attorney General secured by Mark Ellison QC, who is reviewing police corruption and allegations of police spying on the Steven Lawrence family & campaigners

2) Does this "limited immunity" apply only to the Official Secrets Act 1989 or does it cover other potential charges e.g. Terrorism Act 2000 section 58a Eliciting. publishing or communicating information about members of armed forces etc. ?

3) Does this "limited immunity" apply only to former undercover police officer Peter Francis, or does it cover other potential witnesses or whistleblowers who may wish to communicate with the Ellison review ?

I have now been able to consider your request, It is probably worthwhile to make it clear that this was not an immunity from prosecution. limited or otherwise. The Attorney General provided an undertaking that within certain parameters, evidence given by Peter Francis would not be used against him in any prosecution. The purpose of an Inquiry, public or otherwise, is to get to the truth of what happened. The Attorney General is often asked by the chair of an inquiry to provide an undertaking so that witnesses may be able to give full and frank evidence to the inquiry without fearing that what they say may subsequently be used against them in a prosecution Although the evidence given by an individual cannot be used against them in a prosecution, it does not follow that a prosecution cannot follow The same evidence may be available elsewhere or from some other source, That is why these are undertakings as to the use of evidence and not an immunity from prosecution

I attach the two letters sent from this office to the Ellison Inquiry. Personal contact details of AGO officials have been redacted, You will note that it is limited to Mr Francis and is in respect solely of information about which he had already spoken to the media.

Home Secretary Theresa May's statement announcing that the existing QC-led review by Mark Ellison would now look into the media reports of undercover police surveillance & smears against the Lawrence family and supporters. Undercover Policing - HC Deb, 24 June 2013, c25

This QC-led Review into police corruption around the Lawrence case was announced by Home Secretary Theresa May back in July 2012 - Stephen Lawrence - HC Deb, 11 July 2012, c30WS

With regard to your request under point 2. I would like to note the following. Section 1 of the FOI Act 2000 confers an entitlement. where you have requested recorded information from a public authority, to be informed in writing by the public authority whether it holds information of the description specified in your request, and in cases where the relevant public authority confirms that it holds information, you are entitled to have that information communicated to you.

As point 2 does not appear to be a request for 'recorded information', but rather seeking legal advice, it does not fall under the scope of the Freedom of Information Act

No, this was not "seeking legal advice", it was asking about the scope of the "limited immunity", just like point 3, which is obvious from the text.

The letters clearly state " in any criminal proceedings." which obviously covers point 2 entirely.

If you are dissatisfied with the handling of your request. you have the right to ask for an internal review Internal review requests should be submitted within two months of the date of receipt of the response to your original letter and should be addressed to Rowena Collins Rice. Director General. at the above address.

Please remember to quote the reference number above in any future communications.

If you are not content with the outcome of the internal review. you have the right to apply directly to the Information Commissioner for a decision The Information Commissioner can be contacted at' Information Commissioner's Office, Wycliffe House. Water Lane. Wilmslow, Cheshire, SK9 5AF.

Yours sincerely

Guy Flitton
Freedom of Information Officer

letter 1 - Attorney General Office to Mark Ellison QC 21Nov2013 (.pdf):

Attorney General's Office
20 Victoria Street

tel: [redacted]
fax: +44 (020) 7271 2433

Mark Ellison QC
The Stephen Lawrence Review
QEB Hoiiis Whiteman.
1 - 2 Laurence Pountney Hill

21st November 2013

Dear Mr. Ellison

Thank you for your letter of 23rd October concerning the possibility of an undertaking being offered to Peter Francis should he agree to assist your review. Following consultation with the Crown Prosecution Service the Attorney General is prepared to offer Mr Francis an undertaking in the following terms:

This is an undertaking provided to Peter Francis in respect of his provision of evidence to the Stephen Lawrence Review being carried out by Mark Ellison QC. 'Evidence' includes oral evidence, any written statement made by Mr Francis preparatory to giving evidence to the Review or during the course of his testimony to the Review, and any document or information produced to the Review by him.

This undertaking applies only to evidence given about matters which are within the terms of reference of the Review and limited to what has been published In the media as to what Mr Francis has said regarding his tasking and reporting connected to the Lawrence campaign.

No evidence Mr Francis may give before the Review, nor any evidence as defined above. will be used against Mr Francis in any criminal proceedings.

The Attorney General is content for you to make public the existence of the undertaking should you wish.

Yours Sincerely

Kevin McGinty
Deputy Legal Secretary

letter 2 - Attorney General Office to Mark Ellison QC 12Dec2013 (.pdf):

Attorney General's Office
20 Victoria Street

tel: [redacted]
fax: +44 (020) 7271 2433

Mark Ellison QC
The Stephen Lawrence Review
QEB Hoiiis Whiteman.
1 - 2 Laurence Pountney Hill

12 December 2013

Dear Mr. Ellison

l understand that the solicitors acting for Mr Francis have sought clarification of the of the Attorney General's undertaking that evidence Mr Francis may provide to the Inquiry will not be used against him in any criminal proceedings. I can confirm that the undertaking will cover any evidence given by him that supplements the issues already published in the media and is within the terms of reference of the Inquiry.

Yours Sincerely

Kevin McGinty
Deputy Legal Secretary

It is significant that Peter Francis' solicitors felt the need to seek further clarification that their client would not face criminal charges if he chose to give evidence to the QC-led Review.

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This United Kingdom based blog has been spawned from Spy Blog, and is meant to provide a place to track our Freedom of Information Act 2000 requests to United Kingdom Government and other Public Authorities.

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