The UK Crown Prosecution Service is supposedly impartial, though several recent cases have disproved that, with three cases in particular demonstrating how the CPS not only concealed evidence, but interfered in the process of justice and even closed down a case merely because it would involve the prosecution of a senior figure in MI6. The three very different cases highlighted – MI6 and rendition (section ‘A’), undercover police and the climate activists trials (section ‘B’) and undercover police and ‘institutionalised rape (section ‘C’) are reprised below, together with examples of how the CPS either concealed, manipulated or disposed of evidence.
A. MI6 & extraordinary rendition
Yesterday the CPS announced that it would not be prosecuting their ‘suspect’ (former MI6 deputy chief, Sir Mark Allen) in the case relating to the kidnapping, rendition and torture of Libyan dissidents who were in opposition to Colonel Gadaffi. The CPS decision makes it known to countries around the world that British spy chiefs are beyond the law and that MI6 can still boast immunity from prosecution. Moreover, the decision sends out a clear message that if the UK can get away with this, then other countries that authorise rendition/torture can get away with such crimes too. In making this decision, the CPS can be accused of colluding in crimes against humanity.
The CPS has since released a statement regarding this decision:
“Following careful review, the CPS has concluded that there is sufficient evidence to support the contention that the suspect had been in communication with individuals from the foreign countries responsible for the detention and transfer of the Belhaj and Al-Saadi families; disclosed aspects of what was occurring to others within this country; and sought political authority for some of his actions albeit not within a formal written process nor in detail which covered all his communications and conduct.”
But despite that statement and the 28,000-page file of evidence compiled by the Metropolitan Police service, the CPS refused to proceed with the prosecution of Sir Mark Allen or Jack Straw (the Foreign Minister whom Allan reported to). Also in the frame are former prime minister Tony Blair and the former head of MI6 Sir Richard Dearlove.
In response to the decision by the CPS, Cori Rider of Reprieve, commented:
“Top British officials helped abduct a pregnant woman and four children, and so far we have no apology, no explanation, and now no one held responsible. Sir Mark Allen took credit, in writing, for the operation. Jack Straw, we are told, signed it off. The head of MI5 was so incensed about all this she wrote to Tony Blair at the time. Strangely, the CPS’s attitude to all this is ‘see no evil, hear no evil, and speak no evil’. It is hard to escape the conclusion that this decision has a great deal to do with political power and very little to do with the rule of law. While these families have been denied justice at every turn, we are determined to keep fighting for it.”
Here is the original Letter of Claim Against Sir Mark Allen by Abdel Hakim Belhadj and Fatima Bouchar (Leigh Day & Co.), January 2012′.
So what was the evidence the CPS referred to?
Documents found in Tripoli in 2011 confirmed that the British Government had been directly involved in assisting the Gaddafi regime to take custody of Mr al-Sadiq (Belhadj). A memorandum dated March 4, 2004, from the CIA to the Libyan government states “[w]e are working energetically with the Malaysian government to effect the extradition of Abdullah al-Sadiq from Malaysia. The Malaysians have promised to cooperate and arrange for Sadiq’s transfer to our custody.”
In March 2004, Sir Mark Allen wrote to Libya’s notorious spy chief Moussa Koussa, as follows: “Most importantly, I congratulate you on the safe arrival of Abu Abd Allah Sadiq [Mr Belhadj]. This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built over the years. I am so glad. I was grateful to you for helping the officer we sent out last week…Amusingly, we got a request from the Americans to channel requests for information from Abu ‘Abd Allah through the Americans. I have no intention of doing any such thing. The intelligence on Abu ‘Abd Allah was British. I know I did not pay for the air cargo. But I feel I have the right to deal with you direct on this and am very grateful for the help you are giving us.” (The letter really is signed ‘M’!)
(Not long after Allen moved seamlessly from MI6 to a £200,000 pa job at British Petroleum, working on their relationships with Gadaffi and other Arab dictators.)
Other documents, sourced in 2011, relate to the rendition arrangements of Mr Belhadj and his wife. Marked “UK Secret”, one document – see extract in image below – included ‘long lists of questions and background intelligence that MI5 and MI6 asked Libyan interrogators to put to Mr Belhadj during sessions where he claims he was being tortured’.
Memos between Western intelligence agencies and that of the Gaddafi regime provide an insight into how enemies became allies: click here to see these documented exchanges.
The documents found in Tripoli also reveal how the CIA were keen to speak to Belhadj (Sadiq). The first document to mention him is dated 4 March 2004, and is a memo to Tripoli from the CIA. It states: “Our service is committed to rendering the terrorist Abu Abdullah al-Sadiq to your custody.”
Two days later, there is further correspondence between the CIA and Libyan intelligence:
“Subject: Planning for the Capture and Rendition of Abdullah Al-Sadiq.,,,
The Malaysian government has informed us that they are putting Libyan Islamic Fighting Group (LIFG) leader Abdullah al-Sadiq and his pregnant (four months) wife on a commercial flight from Kuala Lumpur to London via Bangkok on the evening of 7 March, 2004.
We are planning to arrange to take control of the pair in Bangkok and place them in an aircraft for a flight to your country. It is vital that one of your officers accompany al-Sadiq and his wife … in order to provide legal custody of al-Sadiq’s spouse. We request that your officers in Kuala Lumpur and Bangkok refrain from making further requests of the Malaysians on this matter.
We also appreciate your allowing our service direct access to Al-Sadiq for debriefing purposes once he is in your custody. Please be advised that we must be assured that al-Sadiq will be treated humanely and that his human rights will be respected.
It is our standard practice that our officers cannot condone any significant physical or physiological aspects, such as direct physical contacts, unusual mental duress, unusual physical restraints or deliberate environmental deprivations beyond those reasonably required to ensure the security and safety of our officers and to prevent the escape of the detainees.”
Here is the 2007 Memo between UK and Libyan Governments re deportation (i.e. rendition)… (Note: this is a standard document, used by the UK Foreign Office in many instances with many countries – here’s a pdf re UK and Lebanon, with almost identical wording.)
Application and Scope:
A request for assurances under this Memorandum may be made by the sending state in respect of any citizen of the receiving state, any stateless person who was habitually resident in the receiving state, or any third-country national whom the receiving state is prepared to admit.
Such requests will be submitted in writing either by the British Embassy in Tripoli to the General People’s Committee for Foreign Liaison and International Co-operation or by the Bureau of the Great Socialist People’s Libyan Arab Jamahiriya in London to the Foreign and Commonwealth Office. The state to which the request is made will acknowledge receipt of the request within 5 working days.
A final response to such a request will be given promptly in writing by the Foreign Secretary in the case of a request made to the United Kingdom, or by the Secretary of The General People’s Committee for Foreign Liaison and International Co-operation in the case of a request made to Libya.
To assist a decision on whether to request assurances under this Memorandum, the receiving state will inform the sending state of any penalties outstanding against a person to be deported, and of any outstanding convictions or criminal charges pending against him and the penalties which could be imposed.
Requests under this Memorandum may include requests to the receiving state for further specific assurances. It will be for the receiving state to decide whether to give such further assurances.
The United Kingdom and the Great Socialist People’s Libyan Arab Jamahiriya will comply with their human rights obligations under international law regarding a person in respect of whom assurances are given under this Memorandum. The assurances set out in the following paragraphs (numbered 1-9) will apply to such a person, together with any further specific assurances provided by the receiving state.
An independent body (“the monitoring body”) will be nominated by both sides to monitor the implementation of the assurances given under this Memorandum, including any specific assurances, by the receiving state. The responsibilities of the monitoring body will include monitoring the return of, and any detention, trial or imprisonment of, the person. The monitoring body will report to both sides.
1. Where, before his deportation, a person has been tried and convicted of an offence in the receiving state in absentia, he will be entitled to a retrial for that offence on his return.
2. In cases where the person may face the death penalty in the receiving state, the receiving state will, if its laws allow, provide a specific assurance that the death penalty will not be carried out. In any case, where there are outstanding charges, or where charges are subsequently brought, against a person in respect of an offence allegedly committed before his deportation, the authorities will utilise all the powers available to them under their system for the administration of justice to ensure that, if the death penalty is imposed, the sentence will not be carried out.
3. If arrested, detained or imprisoned following his deportation, the deported person will be afforded adequate accommodation, nourishment and medical treatment, and will be treated in a humane and proper manner, in accordance with internationally accepted standards.
4. If the deported person is arrested or detained, he will be informed promptly by the authorities of the receiving state of the reasons for his arrest or detention, and of any charge against him. The person will be entitled to consult a lawyer promptly.
5. If the deported person is arrested or detained, he will be brought promptly before a civilian judge or other civilian official authorized by law to exercise judicial power in order to the lawfulness of his detention may be decided.
6. The deported person will have unimpeded access to the monitoring body unless he is arrested, detained or imprisoned. If the person is arrested, detained or imprisoned, he will be entitled to contact promptly a representative of the monitoring body and to meet a representative of the monitoring body within one week of his arrest, detention or imprisonment. Thereafter he will be entitled to regular visits from a representative of the monitoring body in coordination with the competent legal authorities. Such visits would include the opportunity for private interviews with the person and, during any period before trial, will be permitted at least once every three weeks. If the representative of the monitoring body considers a medical examination of the person is necessary, he will be entitled to arrange for one or to ask the authorities of the receiving state to do so.
7. The deported person will be allowed to follow his religious observance following his return, including while under arrest or while detained or imprisoned.
8. If the deported person is charged with an offence he will receive a fair and public hearing without undue delay by a competent, independent and impartial civilian court established by the law. The person will be allowed adequate time and facilities to prepare his defence, and will be permitted to examine or have examined the witnesses against him and to call and have examined witnesses on his behalf. He will be allowed to defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
9. Any judgment against the deported person will be pronounced publicly, but the press and public may be excluded from all or parts of the trial in the interests of morals, public order or national security in a democratic society, where the interests of justice or the protection of the private life of the parties and require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Either participant may withdraw from this Memorandum by giving 6 months notice in writing to the diplomatic mission of the other.
Where one or other participant withdraws from the Memorandum any assurances given under it in respect of a person will continue to apply in accordance with its provisions.
Signature: This Memorandum of Understanding represents the understandings reached upon the matters referred to therein between the Great Socialist People’s Libyan Arab Jamahiriya and the United Kingdom of Great Britain and Northern Ireland.
Signed in duplicate at Tripoli on 18 October 2005 in the English and Arabic languages, both texts having equal validity.
British Embassy, Tripoli
For the United Kingdom of Great Britain and Northern Ireland
Abdulati Ibrahim al-Obidi
Acting Secretary for European Affairs
Secretariat for Foreign Liaison and International Cooperation
For the Great Socialist People’s Libyan Arab Jamahiriya
Delivered Into Enemy Hand: US-Led Abuse and Rendition of Opponents to Gaddafi’s Libya
The UK’s dangerous reliance on Diplomatic Assurances, by Human Rights Watch
Rendition/torture: UK Govt still in denial despite irrefutable evidence
Additional info re UK & US collusion in rendition via Diego Garcia:
According to Guardian journalist Ian Cobain, at a NATO meeting in October 2001 the British government agreed to provide logistical support to the CIA’s extraordinary rendition program, resulting in CIA flights en route to ‘black centres’ and with stopovers in British airports. In a 2007 European Parliament report it was stated that there was “serious concern about the 170 stopovers made by CIA-operated aircraft at UK airports, which on many occasions came from or were bound for countries linked with extraordinary rendition circuits and the transfer of detainees.” Glasgow’s Prestwick airport was, according to the report, a “crucial staging point”. For a complete list of flights where the UK Government has been alerted to concerns regarding rendition through the UK, its Overseas Territories or the Crown Dependencies, click here.
Not only was Diego Garcia used by the CIA as part of its rendition programme, but also another British Overseas Territory – Turks and Caicos. In February 2008, Foreign Secretary David Miliband admitted that in 2002 two rendition flights, each carrying a detainee, stopped over in Diego Garcia. Reprieve documented 23 suspicious stops between 2001 and 2005 in the Turks and Caicos by aircraft that had been associated with extraordinary renditions – these include aircraft N379P (also known as N8068V), N313P, N85VM, and N829MG.
One of the flights to and from Diego Garcia is believed to have seen the rendition of either Muhammad Saad Iqbal Madni, a dual Egyptian-Pakistani national who was seized in Jakarta on 9 January 2002 after arriving from Pakistan, put into a coffin, then renditioned via Diego Garcia on Flight N379P and taken to Egypt, where he was made to stand for 92 days and tortured with electric cattle prods.
A second N379P flight is believed to have renditioned either Sheikh Al-Libi (who in September 2002 was taken via Diego Garcia to Egypt, where he was tortured into “admitting” that Al Qaida was in league with Saddam Hussein in the development of weapons of mass destruction) or Ramzi Bin Al-Shibh (who was taken into custody in Pakistan, then via Diego Garcia to Guantanamo Bay).
Manfred Novak, the United Nations’ special rapporteur on torture, said he had received credible evidence that detainees were held on Diego Garcia between 2002 and 2003
Another detainee suspected of being renditioned on one of the flights to/from Diego Garcia is Binyam Mohamed, who was renditioned to Morocco, where he was subsequently tortured (a razor blade taken to his genitals).
B. CPS cover up in climate actvists’ trials
The collapse of the Ratcliffe and Drax trials and the quashing of convictions of those who had been acccused of involvement in a planned protest at the power power stations contributed to the setting up of the Pitchford Inquiry into undercover policing. But the original convictions may have remained in force had not the true identity of undercover police officer Mark Kennedy been discovered and revealed by activists. Consequently, the CPS decided at an appeal hearing to quash those convictions – mainly, it should be pointed out, to avoid embarrassing evidence being presented in open court. This embarrassing evidence – extracts of which are reproduced below – would have also provided proof that the CPS and trial prosecutors were fully aware of Kennedy’s pivotal role prior to and during the initial trials, and right up to and including the appeal hearings.
Importantly, this evidence demonstrates a conspiracy between the CPS and police to, in effect, pervert the course of justice.
The six activists charged with the planned Ratcliffe power station action asked to see undisclosed evidence but, rather than hand that over, prosecutors dropped the charges against them. The CPS claimed that the charges were dropped not because of Kennedy but because of other evidence, which the CPS refused to reveal.
The Independent Police Complaints Commission later found that the CPS also knew about the activists’ plan, not only before it happened, but before many of the activists themselves. Furthermore, Felicity Gerry, the prosecutor in the trial of the 20 activists had been informed about the existence of an undercover officer and had known Mark Kennedy’s true identity a week before any of the activists did. And so, for the six weeks before the trial, and every second she was in court, Ms. Gerry knew that a police officer had filed evidence on the case that the defence were unaware of – yet she failed to mention this to the court.
It also transpired that Mark Kennedy had recorded a meeting that exonerated the six, but which the prosecutors and police withheld from the defence – perhaps this was the evidence that the CPS refused to reveal?
According to the Guardian: “Kennedy’s draft witness statement was apparently not handed to prosecutors, but instead placed in a Nottinghamshire police safe. But, according to the documents, the material did include… the crucial “transcript of the recording” made on his watch, referred to by the code “130409/MARK”. The extract (image) below is from the same documents that were locked in the Nottinghanmshire Constabulary police safe.
Below are extracts of transcripts of reports by Mark Kennedy, each with the same heading (see image below) and signed off by ‘M’ (Kennedy). The CPS had these transcripts in its possession some months prior to the Ratcliffe trial, but were held back from the defence team. (Note: defendants names have been hidden from these extracts for privacy purposes via a whiteout tool.)
Danny Chivers, one of the defendants, later commented:
“We firmly believe that this trial collapsed not because of the existence of the officer [Kennedy], but because of the existence of evidence from that officer, evidence that would have supported our defence. Rather than disclose that evidence – which could have exonerated us, exposed the fact that they’d been sitting on it all along, and given the world further insights into the murky Kennedy affair – they chose to drop the case.”
The Guardian later commented: “it was the Crown Prosecution Service rather than the police that withheld the tapes [evidence].” And “In June 2009 Cunningham [trial prosecutor] exchanged a series of emails with Nick Paul… at that early stage Paul was also aware of a “participating informant” and “sensitive disclosure issues” relating to Kennedy’s evidence.”
It was Nick Paul who had overall responsibility for the Ratcliffe and Drax cases. Mr. Paul was in fact the Domestic Extremism Co-ordinator for the CPS Special Crime Unit and was based in the CPS’s London office. Paul happened to share that office with the Director of Public Prosecutions, Kier Starmer. When Mr Paul eventually left the CPS, he entered into private practice at Doughty Street (law) Chambers, where he was eventually joined by his former colleague Mr Starmer, who is still listed as an associate tenant there. (Interestingly too, spycop Jim Boyling provided a witness statement for a trial under his false spycop identity and his defence barrister was none other than Kier Starmer.)
After the publication of the Ratcliffe-on-Soar Power Station Protest – Inquiry into Disclosure Mr Starmer, then still DPP, appeared on BBC Newsnight to defend the report. Newsnight presenter, Jeremy Paxman, asked him “Are you absolutely certain there are no other cases in which people have been convicted on the basis of the evidence of undisclosed undercover police officers?” Paxman repeated the question to Mr Starmer three times, but did not get an answer.
C. The CPS and the institutionalised rape of eight women
Last November Undercoverinfo published an article on the scandal that involved undercover police officers forming sexual and long-term (even marital) relations with women, simply because they were ‘targets’ to acquire information. The article reported how seven of the women eventually agreed to an undisclosed settlement. Meanwhile the CPS ruled that there would be no prosecution of the UCOs (undercover officers) involved.
One analysis of the CPS decision quotes from a legal expert: “I do think they [the police officers] should have been charged and prosecuted for these activities. The women would clearly not have consented to sex had they known the men were undercover police officers. I think there is a level of deception in these cases which raises them above the ‘I love you’ sort of deception [where someone pretends to in love to convince someone else to have sex with them].”
(Note: the question of consent and undercover policing is examined in detail by lawyer Ben Fitzpatrick)
Carole Cadwalladr in the Guardian commented: “…there is something deeply troubling about the case. About the way that it was women who were targeted, abused and exploited – systematically, institutionally. About the way the Met dealt with the fall-out and the question that remains: what is still happening, in our name, paid for by our taxes, carefully concealed from sight? This was sex used as a weapon. Emotional intimacy as a instrument of state surveillance.”
Here is the CPS ruling – let’s deconstruct it…
“In order to prove the offence of rape the prosecution must show that the complainant did not consent to sexual intercourse. In this case the Sexual Offences Act 1956 and the case law interpreting that Act is applicable, the effect of which is that consent can be negated if there has been a deception as to the nature of the act (for example where consent was induced by the pretence that the act of intercourse was for medical treatment) or where there has been deception as to the identity of the suspect. The identity of the suspect is relevant to a very limited extent. Section 1(3) of the Act expressly provides that impersonating a woman’s husband may vitiate (negate) consent. This section was later extended by case law to include the impersonation of a person’s partner. The law does not go further and allow the fact that a person does not reveal their true or full identity to be capable of vitiating consent where it is otherwise freely given.”
Undercoverinfo comment… The key here is what constitutes sexual consent. Consent is only truly consent if both parties are knowledgable of all the facts. An undercover police officer using a false identity in order to obtain information from a ‘target’ and who then develops a sexual relationship with that target is clearly deceiving that target. The CPS is therefore entirely correct when it says that “consent can be negated if there has been a deception as to the nature of the act… where there has been deception as to the identity of the suspect”. But where the CPS spectacularly erred is when it ruled that if the victim consented to sex, despite not being aware of this deception, then no crime had been committed. Should it be the case that in matters of law this ruling is correct, then a far better option would have been to test the law in court (and, if needed, set a new precedent). The CPS, however, chose not to proceed with this option.
“The 1956 Act does not define “consent”, and so the word needs to be given its ordinary meaning in cases falling under that Act. The 1956 Act was replaced by the Sexual Offences Act 2003, which does provide a definition of consent in section 74. Although the 2003 Act is not applicable in this case, as it post-dates the allegations, the principles set out in section 74 of that Act, which relate to freedom and capacity to make a choice, provide helpful guidance as to the ordinary meaning of “consent” and to that extent were relevant to this case.”
Undercoverinfo comment… The 1956 Act is clearly inapplicable here – and this is another reason why the CPS ought to have ruled that the matter be tested in the courts. Back to the CPS ruling…
“Case law which demonstrates the law on consent as set out in the 2003 Act includes:
R – v – Assange, where the court concluded that if consent was conditional on the use of the condom during intercourse, and the condition was deliberately disregarded, that was capable of amounting to rape.
R(F) – v – the DPP, where the claimant said that she had consented to sexual intercourse only on the clear understanding that her partner would withdraw before ejaculation, and there was evidence that the condition was deliberately ignored. The court held that those facts were capable of amounting to rape on the basis that she had been deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. The court commented that “the evidence relating to choice and the freedom to make any particular choice must be approached in a broad common sense way”.
R – v – McNally, where consent was negated on the basis that the victim believed she was having sex with a male partner, where in fact she was having sex with a female who had deceived her. In this case the Court of Appeal said that “depending on the circumstances, deception as to gender can vitiate consent”… but added: “in reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent.”
Undercoverinfo comment… The undercover police officers deceived women over many months and, in some cases, years. And during that period they had sexual intercourse with their victims – and in two cases, fathering children. The allegations made against Julian Assange and the two other cases quoted have no legal relevance in the spycops matter, but by bizarrely conflating those allegations and the two other cases in its spycops ruling the CPS clearly demonstrated either profound ignorance, or its unequivocal political interests.
Back to the ruling…
“We have concluded, after careful consideration of the evidence in accordance with the principles set out above, that any deceptions in the circumstances of this case were not such as to vitiate consent and that consequently there is insufficient evidence to prosecute for rape. In order to prosecute the offence of indecent assault, the same test would need to be satisfied in terms of consent, and the CPS has determined there was insufficient evidence for a realistic prospect of conviction on this basis. In order to prosecute for procurement of a woman for sexual intercourse by false pretences, the prosecution would need to show that any deception was carried out as a specific inducement to sexual intercourse, which took place as a direct result of such inducement. There was insufficient evidence to prove this. In order to prosecute misconduct in public office, the prosecution would have to show that an officer knowingly abused their position in order to bring a sexual relationship about, as opposed to having engaged in a sexual relationship whilst holding the position in question. There was insufficient evidence to show this. In order to prosecute a breach of the Official Secrets Act the prosecution would have to prove that the suspect in question disclosed information that would, or would be likely to, damage the work of the security and intelligence services; or that the disclosure would impede the prevention of offences or the apprehension or prosecution of suspected offenders. We determined that neither could be proved.”
Undercoverinfo comment… The CPS argues that deception that involves sex must also include inducement: this is nonsense. The deception in the spycops cases here was extensive and comprehensive – and everything that took place as a result of that deception should be brought into question. The apology by the Metropolitan Police for what had happened is indubitably an admission of guilt on all levels, including an admission that the undercover police officers were guilty of misconduct and, in doing so, had abused their positions.
Here are more comments on the above from legal expert Ben Fitzpatrick.
As for the Assange case, the CPS stage-managed the entire legal process, as these letters from CPS legal adviser, Paul Close, to Sweden’s DPP, Marianne Ny, show. Close’s advice to Ny was basically to avoid questioning Mr Assange at all costs, and to drag out the proceedings as long as possible, if not indefinitely (with the aim of either imprisoning Assange for life in the Ecuadorean embassy, or to wait until he left the embassy so that he could be arrested and extradited to the USA). The correspondence between Ny and Close shows they had a very personable relationship – if not close (pun intended). Indeed, in one of his emails to Ny, Mr Close ends up saying “I am sure you can guess what I would love to send you as a Christmas present” (i.e. Julian Assange).
See also: Police spys corrupt CPS barristers