After the November 2003 hearing

Dear Tadeusz

Data Protection

I am writing further to your email of 15 March, to which I have already sent a preliminary response. I will respond to the other points you raise in turn.

1. I have looked further into bringing a claim under Section 7(9) Data Protection Act 1998 in order that you have proceedings on which you can base an application to the Information Tribunal under Section 28(6).

1.1 As discussed with you previously it may be that the court requires you to have a fresh subject access request in order to bring this claim, although I can find no reference to any time limits following an initial subject access request which might prevent you from bringing the claim based on your previous request.

1.2 In this letter, I have adopted the pessimistic approach that the Treasury Solicitors will use any method available to them to try and prevent you from having a substantive hearing and that they will not be interested in co-operating to overcome administrative or procedural barriers to your application. By adopting this approach, which I believe in any event to be quite realistic, you will have some idea of the upper levels of costs that you might incur in taking this matter forward.

1.3 There will be court fees and our costs associated with submitting the Section 7(9) claim and with the stage at which the court allocates the case once a defence to your claim has been filed. The county court fees for the two stages will total £250. In addition our costs in drafting the claim and the particulars of claim are not likely to be less than £1,000 plus VAT and could be significantly more. I do not believe it is a good option to file more sketchy (and cheaper) particulars of claim even though your main purpose in bringing the claim is to use the s7(9) claim to make a s28(6) claim based upon it. This is because, firstly it may be important to impress upon the court that the s7(9) claim is in itself a serious one and so we cannot cut too many corners on it, and secondly because, if your Information Tribunal application does not succeed, you may wish to take the s7(9) claim forward.

1.4 As soon as the claim form is submitted to the court, there are “proceedings”, and you can launch your appeal under Section 28(6). It may not be necessary (if you do not wish to do so) to keep the application under Section 7(9) alive if we have satisfied the requirement for there to be proceedings, in which case we could then let the Section 7(9) claim drop. The decision in the Norman Baker appeal at paragraph 102, refers to the need for there to be “extant proceedings”. What is not clear is whether they need to be extant only at the time of submitting the application or whether they should be extant throughout the appeal. If it is the latter, then that may have considerable cost implications because we could not then withdraw from the Section 7(9) proceedings without losing the basis on which the s28(6) appeal is based.

1.5 Instead of dropping the Section 7(9) proceedings, you can apply for a “stay”. A stay is relatively easy to obtain where the application is not contested. However, on the assumption that it would be contested, we would have to justify why it should be granted. This would require filing detailed submissions, and at least one hearing in front of a master. For this you would need to allow £3,000 to £5,000, although it could even be higher. If you lost the application for a stay, you may also have to pay the other side’s costs which could be at least the same amount of £3,000 to £5,000. You could of course drop the application for the stay, and indeed the application altogether if it looked as if costs were escalating to this sort of level, but that might have an impact on the Section 28(6) appeal as discussed.

1.6 If the application for a stay is not granted, aside from the costs of the application for the stay itself, this would then mean that the Section 7(9) claim continued to progress and costs could quite quickly become very significant. The other side could request hearings for directions and to deal with preliminary issues. These might end up as separate hearings. They could also submit a large number of requests to us to provide additional information.

1.7 It is hard at this point to anticipate whether or not a stay would be granted. The court might not grant it if it felt that the application was simply an abuse of the court or of the legal process. We would have good arguments to justify why the stay should be granted but, even having discussed this with our litigation department, I cannot say with any certainty what decision the court would be likely to reach. We could seek counsel’s advice on this point alone if you would like us to do so.

2. With regard to the Durant case, I do not propose going into more detail at this stage. However, we probably should give it further consideration before going much further. The reason for this is that in that case it was held that where a data controller held some personal data which related to an internal investigation by the data controller of a complaint brought against it, the data was not biographical in nature and therefore did not fall within the definition of “personal data” under the Act. In your case, the data which has been disclosed to you by the Security Services, and which we have used as evidence that the Security Services do indeed hold data on you, could fall under the same exclusion. If it is not “personal data” under the Act that may affect the basis of our claim.

3. Following your instruction I have written to Andrew Nicol to seek his suggestions for another barrister. With regard to the Bar Pro Bono application, I cannot recall where we had got to on that. I can go back through my file, although I believe I had left the application with you to redraft following our meeting to discuss it. My concern about having only pro bono counsel is that we are unlikely to get someone who would give us the level of specialist knowledge that would be needed, and on whom we could rely to be available when we needed them. Nevertheless as a last resort, we should certainly consider seeking assistance from someone from the Bar Pro Bono unit to represent you at your hearings.

4. You are right that we have not discussed in any detail the substance (as opposed to the legal procedures) of your complaint. I did agree that I would sit down with you and go through this one day, and I would propose doing so in June after I return from parental leave.

5. I am not sure whether I was aware of the exchange between Sir Anthony Evans and Robin Tam that you refer to in your email. It may have been along the lines of the issue which you, I, and Tim had discussed earlier about how Section 28(6) could have any application at all. This is because the national security exemption certificate provides for the right of the Security Services to neither confirm nor deny (“NCND”) the existence of data. If they did so, this might mean that the requirement in Section 28(6) that the certificate identifies personal data to which it applies was not met. It might seem as if this would make s28(6) redundant which would support our argument that the NCND policy is invalid because it defeats the purpose of the legislation. However, the counter-argument to this is that there might be some other types of certificate, for instance a serious crime certificate, which did not permit the data controller to rely on NCND. This would mean that s28(6) did have some application after all and so would defeat the argument we would otherwise wish to bring. This may have been the context in which a serious crime certificate was discussed. However it may be that you recall something different to this. I certainly did not get the impression that the Security Service or indeed the Treasury Solicitor would try to claim that a serious crime certificate could apply to any personal data about you which they have processed.

6. Tim’s advice to you, that you should direct your claim to the Investigatory Powers Tribunal, was based on his interpretation of the national security exemption certificate and the fact that even if you are able to show that you have proceedings, it might well be that the Information Tribunal is not the appropriate forum for bringing the kind of challenge which you seek to make. His particular concern was that if you persisted at the Information Tribunal, you were at risk of incurring high costs. I agreed with this analysis. Even if the tribunal did want to hear more about the substance of your appeal, their desire would not reduce your risk of incurring the other side’s costs. Nevertheless if your interpretation of what Tim said to Robin Tam is correct, and if he behaved unprofessionally, then I can understand why you would not want to continue to instruct him. I must say, however, that I have felt his advice to be very good and he has been supplying it at a very good rate, and I do regret that you no longer wish to instruct him.

7. I have also heard back from Liberty, who remain interested in your case. They appear to have convinced the Investigatory Powers Tribunal to look at the facts of the case and decide whether a neither confirm nor deny response was reasonable. This is based on the argument that where NCND is applied in situations where there is no threat to national security, it is an infringement of Article 8 of the European Convention of Human Rights. They are now awaiting the decision of the Investigatory Powers Tribunal and have agreed to keep me informed. In return I have agreed to keep Liberty updated about the progress of your application, and I assume that you do not have any objection to me doing so.

Finally, as mentioned above, I am going to be on parental leave from the 5th April until the end of May inclusive. I will be happy to continue to progress the matter on my return. In the meantime you may wish to contact John Trotter on any specific points you have.

Best wishes

Yours sincerely

Lawrence Simanowitz

hi Lawrie,

Thanks for your letter of 29 June. You will have received payment for your recent invoice.

1. Please could you confirm that you received my fax of 17/3/04 with the Tribunal's order dated 25/2/04.

2. The priority now is for me to make clear the material complaint, I will write up a summary and we should meet in three or four weeks for this purpose. We must do this before meeting Mr Burton, because the actual complaint is substantial and Mr Burton must be told what it is about in order to offer advice as to the probability of successfully bringing a 28(6) appeal. I chose 28(6) rather than 28(4) at the outset because I wished to complain about my circumstances rather than legal technicalities, but unfortunately I have been too unassertive in not making the complaint clear.

You already have an idea of what is complained of, because it's detailed in the subject access request dated 26/1/02 which is incorporated in the bundle. What I need from you prior to our meeting is clear agreement that having heard the substance you will continue instructions in bringing the matter to Information Tribunal, or to other proceedings if I so decide. The proceedings so far have been on technicalities only, and my understanding has always been that the actual complaint would be heard once those were settled. Obviously having argued technicalities for a year and a half you will bring the material issue to court, but I'd just like some clarity on this.

3. Regarding costs, in your letter of 6/4/04 p1.6 you say that if a stay is not granted, costs of 7(9) could quickly become very significant. I would like to know what order of costs there would be if that happened. So far our side's costs have totalled about £20,000 and I am worried about the Tribunal president's remark that people generally do not sue a government department because of that consideration. However we should talk about the material issues first, because you will then understand my motivation for this case.

Please could we therefore meet to talk over the substance in about three weeks; I think we should allocate two hours in the afternoon for this.

regards, Tadeusz

Dear Tadeusz

Data Protection

Thank you for your emails of the 15th August and 11th July. I apologise for the delay in replying:

1. I can confirm that I have received the tribunal’s order of the 25th February 2004.

2. I am happy to fix a date for us to meet. The best week would be the week commencing 6th September 2004. I would propose we meet any time after lunch on Monday the 6th, Tuesday 7th, or Friday the 10th. Please confirm when would be convenient.

3. I understand why you are frustrated that your material complaint has not yet been heard. However, the tactics we have adopted up until now were the ones which we recommended because there was little point in you spending the time on going through the detail of your complaint if we were unable to get an application heard. I still think there is some question over this but am willing to spend some time with you going through the key elements of the substance of your complaint at this stage if you are keen for me to do so. Following that I can give you further comments on the merits of your case if you would like me to do so. I cannot give a guarantee in advance that I will be happy to continue acting for you as I do not know what you have to show me. However, if I am satisfied that there is merit in your case and if you wish to continue proceedings then I would be willing to do so.

4. It is very hard to say what the level of costs could be if a stay is not granted, as referred to in my letter of 6th April 2004. If the other side does decide to make things difficult for you by making a number of applications where there have to be separate hearings their costs alone will be several thousand pounds and could easily go above £5,000, perhaps as high as £10,000 or £15,000. Much of it will depend on whether the government wishes to contest this case as a point of principle. However, along the way you will get an indication as to whether this is happening because we will see what sort of applications are being submitted by the government. It will be important for you and I to bear in mind that the applications for costs may come subsequently, after the substantive applications have been submitted and possibly even some time after some of the hearings have been held. At that stage it would be too late to withdraw without incurring cost penalties, so if you do wish to withdraw because of concern about costs we will need to do so before applications from the other side have got too far.

I look forward to hearing from you.

Best wishes

Yours sincerely

Lawrence Simanowitz

Dear Mr Szocik

Data Protection – subject access

Lawrie Simanowitz and I have discussed your meeting with him on the 9th September 2004. He has listened to the audio recordings you gave him and has outlined to me the substance on which your subject access case against MI5 is based. We have also both looked at your website www.five.org.uk.

I understand that Lawrie advised you that the evidence is unlikely to be strong enough to convince a Judge, or a tribunal. I can confirm that and would add that if you were to introduce it before a court or tribunal, the President or Judge would certainly regard it as so lacking in credibility that it would undermine your case and lead to a summary judgement against you, or to your claim or application being rejected at a very early stage.

I think that the only way that we could take this forward would be to focus exclusively on what we perceive to be the strongest evidence of failure by MI5 to comply with your initial subject access request, namely the fact that they have disclosed that they hold personal data about you relating to your previous appeal to the Security Service Tribunal. This would form the basis for the launch by you of a claim with at least some prospect of success, since it is evident that MI5 have breached their own policy (which forms part of the basis on which the exemption is granted) to “neither confirm nor deny” that they hold personal data. You and Lawrie have already discussed the strategy for this approach – it would involve an initial application to the Court under Section 7(9) Data Protection Act 1998. In reply MI5 can be expected to cite the national security exemption certificate granted under Section 28 of the Act. Rather than have the Court find against you on the basis of this exemption, we would then apply to stay the application in order that you have proceedings to launch an appeal before the Information Tribunal under Section 28(6).

Lawrie has mentioned to you that in all of these proceedings our case would focus either exclusively or predominantly on the evidence which we regard as being strong enough to take the case forward. I am sorry to say that any mention of the type of facts on which you base your claim of MI5 surveillance and harassment would be prejudicial.

As the partner responsible for professional conduct in this firm I also have to advise you that, if we are to continue to act for you we are obliged by Law Society rules to contact the medical professional who is treating you. The reason why we ask for this at this stage is because of the nature of the evidence you recently presented to Lawrie. Our concern is that, particularly from an outside point of view, the extreme and unlikely nature of what you are suggesting could be taken as being connected in some way with your mental illness and it could therefore be improper or unprofessional for us to continue to act for you. We can only do so if a qualified medical professional confirms that it would be appropriate. I regret having to ask this but could you please provide contact details and provide us with permission to approach him or her. Until we receive the appropriate approval we cannot continue to act for you. If we do receive such approval then we will be willing to continue to act for you.

Yours sincerely

John Trotter

Dear Tadeusz

Data Protection

Thank you for your email of the 7th November 2004 – I apologise for the delay in replying. You asked questions on two particular areas:

1. I spoke to media colleagues in prominent and relevant positions. I did so on a confidential basis and therefore cannot tell you anything about them that would reveal their identity. I am sure you will appreciate the reasons for this.

2. I listened to the CD recording. I tried very hard to identify the words to which you had drawn my attention. I could not make out any of the recordings sufficiently clearly to be satisfied that they were saying the words you have identified.

As John has outlined in his letter to you we do not think that the evidence you provided to me on the 9th September 2004 is strong enough to convince a judge or a tribunal. Indeed we think that its inclusion in any claim would be counter productive.

I await your response to John Trotter’s letter.

Best wishes

Yours sincerely

Lawrence Simanowitz