This file continues from the previous. In the first email dated 31 Aug 2006 Ansari replies to my last email.
Thank you for removing the reference to Lawrie's advice (although, for the record, my understanding is that the tribunal never asked to hear the evidence).
You are quite right that my email of 28 July 2006 regarding PCOs was ambiguous as to its finality. I have re-read it and think that, having now appraised myself of the relevant parts of your file, the advice in that email still stands. That is: I do not think that you will be granted a PCO (for the reasons set out in that email) but, subject to counsel's advice and bearing in mind the cost, I do not see any reason not to apply for one and try and obtain one.
I am happy to instruct a barrister from Doughty Street. However, I had a barrister from 4-5 Gray's Inn Square in mind. Please let me know how I should proceed.
I note your instruction regarding the IPT.
I am also away for the remainder of September from 8 September. If I get your instructions on time on the barrister point, I will instruct a barrister prior to me going but will have to progress the case upon my return on 2 October 2006.
I have, so far, spent 17 hours on your case. This includes all the time I have spent reading up on your file.
I replied on 1 September, pointing out that Ansari was in error, probably as a result of Simanowitz lying to him, regarding the Tribunal's wish to find out the substance of my complaint in November 2003. I also told Ansari I had left London because of the intensity of MI5 mindcontrol torture there.
Thanks for your email. I'm afraid your understanding is incorrect because the Tribunal was very enthusiastic to hear the evidence and substantive case, and that was their main reason for the hearing of November/2003. Perhaps Simanowitz has lied to you; he and Pitt-Payne stopped any mention of the material case, in the barrister's case because of his corruptly favouring the opposing side. I refer you to paragraph 4 of Mr Lloyd's letter of 22 March 2006.
I also note that Simanowitz told one version to Mr Lloyd; that we should not disclose the case because of my mental health; whereas to me he said in Nov/2003; "If you start discussing any other issues, given that you have not prepared to discuss them, you will almost certainly lose and the risk is then that they cannot be raised again subsequently." So to me he stated that there would be a subsequent occasion to state the material case. If Simanowitz has lied to you, then he has lied to me as well.
I don't think we should apply for a PCO because according to your advice, which I accept, we would not succeed. It would only waste money and time. We could ask counsel's opinion about this though.
4-5 Gray's Inn Square looks a strong chambers and I would probably agree to your suggestion for one of their members. Please could you tell me who specifically you have in mind, and why; for example whether you know the barrister personally or by reputation. Please could you also advise me of their likely charging structure, whether they would charge their standard rate or at any discount.
Please could you reply before you go on holiday to let me know regarding the barrister. I intend to spend September in Canada because the intensity of MI5's behaviour is much less here than it has recently been in London, where it was very painful.
Ansari replied with his suggestion of barrister.
The barrister that I had in mind was Saima Hanif who I have met through various public law events and who struck me as very clever. I attach a link to her profile.
As for her charging structure, this is normally done on the basis of an initial brief fee to look at the papers, followed by a charge for appearing at any hearing. However, I can discuss this with Saima's clerk, if you are agreeable about instructing her.
My only concern about Saima is that she is relatively junior and she may feel that this case merits a more senior barrister.
As for the PCO, I will raise the issue in my instructions to counsel (whoever that may be) and see whether they think it is cost effective to pursue.
I rapidly agreed to his choice of Hanif as barrister. Hanif agreed to represent me for a very reasonable fee. In a further email dated 8 September I made clear we must stop MI5 using the Serious Crime exemption.
I am pleased that Saima Hanif has agreed to take on the case, and that she has prior experience of the data protection field. Her rates are very acceptable. Please instruct her and revert to me when you return.
There is one point which I would wish to bring to your attention. At the November 2003 hearing there was an exchange between Robin Tam and the Tribunal president, which you may have read about in the emails and letters, during which Tam admitted MI5 were conducting activities against me and attempted to imply a Serious Crime exemption. However in law MI5 cannot claim that exemption, because they only acquired Serious Crime responsibility in 1996, prior to which they had been persecuting me for six years, and they gave up the responsibility in May 2006 to SOCA, since when they have continued to harass me severely (although they stopped for about three weeks immediately after losing the SC responsibility). We must make clear to the Court that they have been so doing, to prevent any possibility of them attempting to use that exemption, since obviously it is the National Security exemption which would be necessary in order for the case to go before the Information Tribunal. Please let me have your thoughts on this point.
Ansari did not immediately reply to the above point. There was an exchange of emails during which he sent me a copy of the instructions he had sent to the barrister.
IN THE MATTER OF:
BOLESLAW TADEUSZ SZOCIK
THE SECURITY SERVICE
1. Thank you for accepting these instructions. I thought it would be helpful if I set out an Introduction to the case, including the Objectives of the client, Boleslaw Tadeusz Szocik.
2. I then set out a History of the matter.
3. I conclude with our Instructions to you.
4. The documents referred to throughout are marked herein and attached as a separate bundle.
Introduction and Objectives
1. Since around 1997, Mr Szocik has been attempting to find out from the Security Service (SSer) what information that they hold regarding him.
2. The SSer has admitted that it holds some information about him. This information relates to correspondence that he had with the SSer, and, about a complaint that he subsequently made to the Security Service Tribunal (SST, the predecessor of the Investigatory Powers Tribunal, IPT). However, the SSer would neither confirm nor deny (NCND) that it held anything further on him.
3. This, notwithstanding a fairly complex history, set out below, is where the matter stands today.
4. Mr Szocik’s legal objective is to challenge the SSer's refusal to NCND and to be informed fully about what data the SSer holds about him.
1. On 28 February 1997 Mr Szocik made a complaint to the SST. We do not have a copy of that complaint. His complaint was rejected, by a letter of 2 June 1997 (Attachment 1).
2. On 10 December 2001 Mr Szocik made a subject access request (SAR), pursuant to section 7(1) of the Data Protection Act 1998 (DPA) to the SSer (Attachment 2).
3. On 20 March 2002, the SSer responded to the SAR by making a preliminary point that much of their activity was exempt from the requirement to comply with the SAR as it was covered by a National Security Exemption certificate (the Certificate), issued under section 28 DPA (Attachment 3). However, the SSer went on to confirm that it did hold some information on Mr Szocik, which was set out in an Appendix to the letter. The information set out in that Appendix appears to relate to an approach made by Mr Szocik to the SSer, its response to him, and, his complaint to the SST. Beyond revealing possession of this information, the SSer would neither confirm nor deny (NCND) that it processed any further data regarding him.
4. On 7 May 2002, following the SSer's response (Attachment 4), Mr Szocik appealed to the National Security Appeals Panel of the Information Tribunal (IT) on the basis that the information that he sought did not come within the terms of the Certificate.
5. On 9 May 2002, he also made a request for assessment, pursuant to section 42 DPA, to the Information Commissioner (IC) (Attachment 5).
6. On 16 May 2002, Mr Szocik also made a SAR to the ITP, regarding the data that its predecessor, the SST, would have had in relation to the complaint that he made to it (and any subsequent interaction the SST then had with the SSer) (Attachment 6).
7. In response to the appeal to the IT, the Home Secretary (who was the Respondent as he had issued the Certificate, his response being contained in a Respondent's Notice) submitted, in short, that Mr Szocik’s appeal was an attack on the NCND policy itself. This policy had already been unsuccessfully attacked in the Norman Baker MP case and should not be relitigated (Attachment 7).
8. On 19 July 2002, the IC responded to the request for assessment of 9 May 2002 (Attachment 8). The IC declined to deal with matters that involved the Certificate, and, noted that Mr Szocik had other avenues of appeal open to him at that time. The IC did find that the SSer had taken in excess of the 40 days required by the DPA to respond to the SAR. For this, the IC stated that it would write to the SSer to highlight the appropriate procedures under the DPA.
9. On 26 August 2002, after receiving no response from the IPT, Mr Szocik submitted another request for assessment to the IC in relation to his SAR to the IPT of 16 May 2002 (Attachment 9).
10. On 30 October 2002, the IPT replied to the SAR of 16 May 2002. In that response, the IPT stated that the "only" personal data it held about Mr Szocik was his name, date of birth and address. It then went on to NCND that it held any other personal data about him (Attachment 10).
11. On 4 November 2002, the IC responded to Mr Szocik’s request for assessment in relation to the IPT (Attachment 11). The IC stated that the IPT had taken in excess of the 40 days required by the DPA to respond to your SAR. Therefore the IPT had not complied with the DPA. However, as the IC understood that the IPT had now provided the requested information, it would not be taking the matter any further.
12. After some debate and confusion between the Secretary to the IT and the parties (both of whom had now instructed solicitors, BWB for Mr Szocik and the Treasury Solicitor for the Home Secretary) about whether Mr Szocik’s appeal to the IT was under section 28(4) or 28(6) DPA, it was settled that the appeal was actually under section 28(6) DPA. The Secretary therefore allowed the Treasury Solicitor to resubmit a response.
13. The Treasury Solicitor put in his response on 13 March 2003 (Attachment 12). In short, this response stated that an appeal under section 28(6) DPA required "proceedings" to be extant and that, in the absence of such proceedings being extant, the IT had no jurisdiction to hear the appeal. This letter was followed by one of 14 March 2003 which stated that the previous response was a preliminary point and not the Respondent's Notice.
14. On 7 April 2003, after some correspondence between BWB and the IC, the IC confirmed its view that the Certificate also covered the IPT (Attachment 13).
15. By a note of 18 June 2003, the President of the IT, Sir Anthony Evans, set out his reading of the facts and the law so far and ruled that a preliminary hearing was required (Attachment 14).
16. I understand that the hearing was settled. By a decision dated 20 November 2003 (but signed by the President on 25 February 2004), it was ordered that, by consent, the section 28(4) and 28(6) DPA appeal be dismissed but that, should Mr Szocik reappeal under section 28(6) DPA, the Respondents (the Home Secretary, the SSer and the IPT) would not take a point that the appeal had previously been dismissed (Attachment 15).
17. I also include, SSer’s exemptions certificate (Attachment 16), and, the decision in Norman Baker MP (Attachment 17).
18. Mr Szocik now wishes to issue court proceedings against the SSer to enforce his SAR. We can then apply to adjourn it and re-litigate the section 28(6) DPA point before the IT.
19. I would like to instruct you as follows:
(i) We at Bates Wells and Braithwaite can make the initial section 7(9) application and would ask that you review the application.
(ii) I would then like to instruct you to apply for an immediate adjournment or stay.
(iii) Finally, I would like to instruct you to advise on the application to the IT and then represent Mr Szocik at the appeal to the IT on our legal point.
20. I should point out that Mr Szocik has asked that the appeal only be pursued against the SSer (and not the ITP or Home Secretary).
Bates Wells and Braithwaite
13 October 2006
For further emails, please see the next file in this series.