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CPS faces legal ruling over refusal to disclose emails with US on WikiLeaks and Assange extradition

A court will decide whether the Crown Prosecution Service can refuse to neither confirm nor deny the existence of correspondence with US on investigations into Julian Assange and WikiLeaks

An Italian journalist is challenging the refusal of the Crown Prosecution Service (CPS) to confirm or deny whether it shared email correspondence with US prosecutors over the US investigation and potential extradition of WikiLeaks founder Julian Assange.

Stefania Maurizi, an Italian investigative journalist who writes for La Repubblica, has been fighting a four-year battle with the CPS to release correspondence between the UK, Sweden, Ecuador and the US on the investigation into WikiLeaks and its founder.

Assange took refuge in the Ecuadorian Embassy in 2012, after losing an appeal against extradition to Sweden following allegations of sexual assault. UK police forcibly removed him from the embassy in April 2019. He faces an extradition hearing next year on behalf of the US to face charges under the US Espionage Act.

Maurizi’s Freedom of Information Act (FOIA) campaign has secured significant disclosures on the investigation into Assange, including a confirmation from the Metopolitan Police that it shared correspondence on WikiLeak’s journalists in the UK with the US Department of Justice between June 2013 and June 2017.

The journalists learned in 2014 that a US court had ordered Google to disclose their personal emails, contacts, calendar entries and log-in IP address to the US government, as part of an investigation into alleged violations of the US Computer Fraud and Abuse Act, the Espionage Act and other US federal laws.

The current case began in 2015, when Maurizi filed a Freedom of Information (FOI) request for all the correspondence relating to Assange between the CPS and the US State Department and US Department of Justice, the CPS and the Swedish Prosecution Authority, and the CPS and the Ecuadorian Embassy.

The CPS and the Information Commissioner’s Office (ICO) refused the request in August 2015. Maurizi appealed to the First-tier Tribunal (FTT), which dismissed her appeal in December 2017.

Lawyers for Maurizi argued in the Upper Tribunal yesterday (1 July 2019) that the FTT made significant errors in law in refusing to order the CPS to confirm the existence of the correspondence under the Freedom of Information Act.

Maurizi told Computer Weekly that the correspondence between the CPS and US prosecutors could shed light on any collaboration between the US and UK after the US began investigations into Assange following WikiLeaks’ publication of secret files, including the Afgan and Iraq war logs, in 2010.

Read more about the case

“The US-UK correspondence is absolutely crucial. If my lawyers and I win the case, we might be able to finally establish whether the US had discussed charges and extradition with the UK authorities from the very beginning,” she said.

The case is expected to have significant implications for journalists and, if Maurizi is successful, will make it easier to establish what information prosecutors hold in extradition cases.

Philip Coppel QC, representing Maurizi, argued that the First-tier Tribunal should have considered the public interest arguments in disclosing information from the CPS at the time of the hearing in 2017, when new facts were available, rather than at the time of the original decision in 2015.

He argued that the FTT was also wrong to assume, contrary to the facts presented in court, that any correspondence from Ecuador must be about extradition, and therefore exempt from disclosure. It was possible that the CPS engaged with correspondence with Ecuador that went beyond its normal remit, according to a skeleton argument prepared by Maurizi’s lawyers.

The court also heard that although it was true that Assange had a personal interest in knowing whether the CPS held information about his extradition, that did not mean there was not a wider public interest in disclosing the information.

“The stakes in this particular case could not be higher. Julian Assange’s potential extradition to the US has profound ramifications for the ability to publish, and to access, information of significant public interest”
Naomi Colvin, Blueprint for Free Speech

The tribunal is expected to make a decision this week. Maurizi said that if she wins the appeal, the case to release the correspondence will be reheard by the FTT in a new trial. If she loses, she will consider appealing to the Court of Appeal, and potentially to the Supreme Court and the European Court of Human Rights.

Barrister Estelle Dehon, part of Maurizi’s legal team, said the case had implications for the UK’s Freedom of Information law.

“The case has wide implications about how the ICO and the FOIA tribunal should interpret the public interest in releasing information. If the appeal is successful, it will make the FOIA system easier to use, because it will allow those seeking information to rely on the up-to-date position. This is important where there are a lot of delays in appealing to the ICO and then to the tribunal,” she said.

Naomi Colvin, programme director for the UK at Blueprint for Free Speech, a charity, said Maurizi’s Upper Tribunal case was crucial for determining the strength of freedom of information in the UK.

“The stakes in this particular case could not be higher. Julian Assange’s potential extradition to the US has profound ramifications for the ability to publish, and to access, information of significant public interest. An overwhelming majority of journalistic institutions and non-governmental organisations internationally see the charges laid against Assange as a profound threat to fundamental press freedoms both in the United States and, through the mechanism of extradition, abroad,” she said.

Journalist’s battle to release UK correspondence on Julian Assange

2010: Press reports reveal that Julian Assange and Wikileaks are under investigation by the US authorities.

August 2010: Assange visits Sweden. Allegations of sexual offences are made against him.

7 December 2010: Assange is arrested by appointment in London. Proceedings begin to extradite Assange from London to Sweden.

30 May 2012: The Supreme Court Dismisses Assange’s appeal against extradition.

19 June 2012: Assange takes refuge in the Ecuadorian Embassy.

16 August 2012: Ecuador grants Assange diplomatic asylum. The UK government does not recognise the asylum.

August to September 2015: Maurizi uses Swedish Freedom of Information law to request correspondence between the Swedish Prosecution Authority (SPA) and Assange’s legal team, the UK government, the US and Ecuador. She receives a partial response, with some 226 pages of information. The SPA discloses that the US authorities have not been in touch over Assange.

September 2015: Maurizi makes a Freedom of Information request to the Crown Prosecution Service for:

• All correspondence between the CPS and the Swedish Prosecution Authority concerning Assange;
• All correspondence between the CPS and the US State Department of Justice or the US Statement Department concerning Assange;
• All correspondence between the CPS and the Ecuardor on Assange;
• The exact number of pages in Assange’s file at the Crown Prosecution Service.

6 October 2015: The CPS refuses Maurizi’s FOIA request.

October 2015: Police end physical surveillance of Assange in the Ecuador Embassy, but Scotland Yard continues “overt and covert” tactics to arrest Assanage.

December 2015: The UN working group on arbitrary detention finds that Assange had been subject to arbitrary detention.

21 December 2015: The CPS refuses Maurizi’s request again after conducting an internal review, on the grounds that answering the request would be prejudicial to international relations, that the material contained information from another state, and that it related to criminal proceedings and personal data. It refuses to confirm or deny whether it held correspondence with US authorities, with the Ecuador Embassy. It refuses to disclose the number of pages in Assange’s file for reasons of cost.

22 December 2015: Maurizi appeals to the UK information commissioner.

September 2016: The Svea Court of Appeal in Sweden issues a judgment disagreeing with the UN working group’s finding that Assange had been unlawfully detained.

6 February 2017: The information commissioner rules in favour of the CPS withholding its correspondence on Assange, citing public interest gounds.

March 2017: Maurizi appeals under the FOIA to the First-tier Tribunal.

19 May 2017: The Swedish Prosecution Authority announces that it is revoking the European arrest warrant for Assange.

August 2017: Following Maurizi’s appeal, the CPS releases several highly redacted emails.

December 2017: The First-tier Tribunal dismisses Maurizi’s appeal and refuses permission to appeal to the upper tribunal.

April 2018: Maurizi applies to the Upper Tribunal for permission to appeal.

September 2018: The Upper Tribunal gives Maurizi permission to appeal on points of law.

14 Jan 2019: Westminster Magistrates Court orders that Assange should face a full extradition hearing to the US in February 2020.

11 April 2019: Julian Assange is arrested. The US unseals a 6-page indictment against Assange.

23 May 2019: US issues a 37-page superseding indictment against Assange.

1 July 2019: Maurizi’s appeal is scheduled at the Upper Tribunal.

25 February 2020: Scheduled date of extradition hearing into Julian Assange.

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