Continued from the post above:
The Crime Combating Unit is a joint Investigation/Intelligence instrument of proved and recognised merit in combating crime, based in the UK. It works as a link between the police, the community and the media. It is a formally recognised system that provides people with a means of transmitting information to the police, without having to reveal their identity.
The very essence of the Crime Combating Unit is anonymity. The UK police and legal authorities provide a level of protection for anonymous status under contractual terms established between them and the respective source from the Crime Combating Unit. Questions are not asked to identify the source and any material that could identify the source is edited or carefully reviewed. To proceed differently would constitute a breakdown in understanding between the police/legal authorities and the source.
A high volume of information was provided by citizens by means of the Crime Combating Unit, which was transmitted to the Portuguese authorities. Under these circumstances, the requesting entities wish that, in relation to these documents, any reference to the Crime Combating Unit be eliminated and/or any information provided by any source, whoever it may be, or could be, susceptible to identification.
D. Communication between Police Forces
In this case and understandably, the level of cooperation between police forces has no precedent. Agreements and procedures were established between all parties, so that the investigation could proceed rapidly and on the widest level possible.
This occurred based upon the full understanding that the communications in reference would be kept confidential.
An eventual breakdown in this confidentiality would be extremely worrying, essentially due to two reasons:
Firstly, the material was provided under confidentiality and because of this there was no check, case by case, of the possible risks that could result from its exposure to the public domain. It should be noted that what is in question, amongst others, are the privacy rights of third parties. These rights could be rights that were not preventatively protected due to not all qualitative analysis having been carried out as regards any of the material in question;
Secondly, it is very probable that its divulgation could have negative effects on the exchange of material in the future, and could potentially prejudice important criminal investigations in the future.
E. Orientation of the NPIA
The NPIA - National Policing Improvement Agency - is a unit established in the UK in order to improve police techniques and methodology, namely by means of the presentation of orientation lines for use by police officers with relation to numerous aspects of police procedure.
These orientations are always presented in the Police to Police regime and with the following epigraph: "To be defined as delicate material and for this reason, not to be divulged, with its basis being the fact of treating material, directly or indirectly, that would reveal techniques and methods used by a police officer within the scope of a criminal investigation. Material whose divulgation could lead to the perpetration of other crimes, or prejudice the prevention of crime detection".
A set of documents of this kind was provided to the Portuguese authorities with the aim of helping the work in the investigations underway. Bearing in mind the epigraph referred to and the Portuguese authorities' acceptance of the material, the requesting entities make clear their deep preoccupation in the face of the possibility that the material in reference could be divulged without having had the opportunity to analyse its contents in detail nor the risks that could be associated.
Apart from the fundamental rights of the subjects identified in the information provided, which could be seriously affected by their imminent divulgation, especially with regard to the alleged sex offenders, police materials, techniques, methods and protocols and Intelligence would be revealed, which are classified and confidential under UK Rights.
With regard to the above, the following caution and request are made:
II.
To be added to the contents of I, expressed above, it should be taken into account that there are a set of legal measures in the UK destined to protect individual rights, for example, The Human Rights Act 1989 (entered into force in the UK following the European Convention on Human Rights), The Data Protection Act 1984, Regulation of Investigative Powers Act 2000 and legislation concerning common rights in the UK which recognises that in a large diversity of cases, there are obligations on the part of the state authorities to intervene in a coherent form with respect to the protection of individual rights.
It should be noted that the divulgation of the above-mentioned elements would most probably affect legal and international police cooperation in the future within the domain of complex criminal investigations, therefore putting into question the execution of Portuguese Justice.
It is important to consider that the divulgation of information provided by the requesting entities to the Portuguese authorities would violate the disposition of articles 2 and 8 of the European Convention on Human Rights and the dispositions of articles 1,2 7 8 9, B) 25, 26, 27, no. 1, 32, no. 2 and 8 of the Portuguese Constitution at least with respect to the information of a private and intimate nature of the subjects identified.
On the other hand, the divulgation of this information would violate article 7 of the European Union Convention on Mutual Legal Assistance in Penal Material of 29th May 2000 and which entered into force in Portugal on 23rd August 2005 and which is fully applicable in this case as the requesting entities always requested confidentiality for all information that was not provided within the framework of a formal request from the Portuguese authorities.
If this was not the case, or in other words, if the transmission of information by the requesting entities had not pre-supposed respective confidentiality, this information would never have been transmitted to the Portuguese authorities, as according to what was stated previously this information would be subject to confidentiality covered by UK Rights and Law.
The Portuguese Law itself protects confidentiality of information transmitted within the scope of international legal cooperation, as laid down unequivocally in article 149 no. 1 of Law 144/99 of 31st January, which could in this way also be in violation.
It would be appropriate to check whether, the informants were told of the application of articles 16 and 19 of Law 93/99 of 14th July and whether they were contemplated or pre-supposed.
It will correspond to the Criminal Instruction Judge to determine the upholding of the secret of justice about all the elements identified above, in terms of article 76 no. 7 of the Penal process Code and other constitutional norms and principles and of the International Law that could be applicable if these have not yet been determined.
Only in this way will the necessary concordance between fundamental rights and constitutional principles and International Law be guaranteed in the case of conflict in this concrete case, also complying with the principle of proportionality consecrated in article 18, no. 2 of the Fundamental Law.
It should also be said that the divulgation of information from the process files that refers to personal data of individuals and who were in no way indicated in the current inquiry would also be an attack on the most elemental rights of personality and even on physical integrity.
On the other hand, the exceptional regulations foreseen in the protection of witnesses mentioned previously, covered by Law 101/2001 0f 25th August and above all in the State Secret Law (Law 6/94 of 7th April) permit the consideration of other rights, interests and values that are constitutionally protected within the domain of the penal process.
It is not necessary to mention that all that could be considered to be 'means of proof' would obligatorily need to be kept outside of the judicial secrecy, in the sense that the rights of the arguidos, those of the offended parties and the assistentes and those of the public in general are necessarily superimposed upon the rights of third parties who are the object of the information provided, to the right of security and the international rights referred to previously.
The argument that article 86 no. 7 of the CPP does not permit the Criminal Instruction Judge to ponder all the rights and interest in question should not be advanced, considering the logic of practical concordance, being previously limited to maintaining the judicial secrecy only for the 'elements' that were not considered to be 'means of proof'.
Such an understanding would result in material unconstitutionality of the norm that id extracted from articles 86, no. 1, 2 and 3 and no. 7, 8 , 9 b) 89, no. 6 and 90, no. 1 of the CPP, when interpreted in the sense that the Instruction Judge is not appropriate to maintain the judicial secrecy about means of proof that doe not sustain a decision for accusation or for archiving, amongst others, to ponder the fundamental rights of third parties that are identified in these elements and (or the information transmitted confidentially by the legal authorities or foreign police forces and also when interpreted in the sense that the fundamental rights of personality and national and international security cannot, in the concrete case, be superimposed upon the right to defence of the arguidos in the penal process, as this would be a violation of that laid down in articles 2 and 8 of the European Convention on Human Rights and 1, 2, 7, 8, 9, 25, 26, no. 1, 27, no. 1 32, no. 2 and 8, 18, no. 2 and 8 of the Portuguese Constitution and article 7 of the EU Convention related to Mutual Legal Assistance in Penal Material of the 29th May 2000, ratified by the Decree of the President of the Republic no. 53/2001 of 16 October 2001 which entered into force in Portugal on 23rd August 2005.
In spite of all that it mentioned previously the requesting entities claim to make it absolutely clear that they do not claim in any way to interfere or prejudice the proceedings of the current process.
In truth, this requirement constitutes the possible processional way, destined to protect the fundamental rights of all the individuals who could be affected by the aim of the judicial secrecy about the elements in question, especially the internal security in Portugal and the UK and international and European security in general, the integrity of policing and investigation methods throughout the world, safeguarding in this way, the future of this kind of cooperation.
It is also certain that the requesting parties remain available to collaborate or assist the Portuguese authorities in the identification of all the documents that were provided by the requesting entities and in the evaluation of associated risks.
In these terms, we request from Your Excellency - in adhesion or in complement of any other identical requirement already presented, or for the case or with relation to the elements already mentioned - the following instruction:
A. The maintaining of the judicial secrecy about all the elements in the process that were provided by the requesting entities to the Portuguese authorities outside of the scope of the formal requests made, in these terms and with legal consequences;
Or in the case that this is not considered,
B. The maintaining of the judicial secrecy concerning all the elements of the files from categories A and C identified above that were provide by the requesting entities to the Portuguese authorities outside of the scope of the formal requests, in these terms and with legal consequences;
And, in either case,
C. The delivery to the requesting parties of a CD with the information relating to the process and all its annexes, so that the requesting entities can carry out a qualitative analysis of all the elements provided by them and which figure in the process;
And,
D. Whilst there is no final decision about the above, that there should be an immediate and provisional suspension of the access to the process, for the elements in the categories referred to above or those about which there are doubts as to which of the categories they belong to, either by the subjects and participants in the process, or third parties, in these terms and with legal consequences.
Conc 25-07-2008
Letter from lawyers representing British police forces requesting that certain documentation from UK police files be withheld from the DVD for public release.
http://www.mccannpjfiles.co.uk/PJ/LAWYERS_UK_POLICE.htm
