Information Rights Team
Information and Record Management Service
Home Office
4th Floor, Seacole Building
2 Marsham Street
London
SW1P 4DF
email:
info.access@homeoffice.gsi.gov.uk
To whom it may concern.
Home Office reference: MLI07/210/2104 – FOI
10041; CR10041
Home Office MATERIAL RELATING TO MADELEINE
McCANN
The Home Office of the United Kingdom
recently released a standard form letter in
response to requests made under the Freedom
of Information Act concerning aspects of the
investigation into the disappearance of
Madeleine Beth McCann.
Errors reflected in the section entitled
'Public Interest Considerations'
notwithstanding, it is claimed, and I quote
two sentences from the first paragraph of
the section entitled 'Harm and prejudice':
"The investigation into the disappearance of
Madeleine McCann is still ongoing.", and
"Leicestershire Constabulary are the lead
force in the UK dealing with this
investigation but the
principle [sic] investigation agency is
Policia Judiciara (PJ) in Portugal."
It is commonly known that the case file of
the Polícia Judiciára (PJ) was handed over
to the judicial authorities in Portugal,
namely the Ministério Público (MP), headed
by the Procurator-General of the Republic
who announced publicly on the Ministry's
official website on 21 July 2008:
"Por despacho com data de hoje (21.07.2008)
proferido pelos dois magistrados do
Ministério Público competentes para o caso,
foi determinado o arquivamento do inquérito
relativo ao desaparecimento da menor
Madeleine McCann, por não se terem obtido
provas da prática de qualquer crime por
parte dos arguidos.
II
Cessa assim a condição de arguido de Robert
James Queriol Evelegh Murat, Gerald Patrick
McCann e Kate Marie Healy, declarando-se
extintas as medidas de coacção impostas aos
mesmos.
III
Poderão ter lugar a reclamação hierárquica,
o pedido de abertura de instrução ou a
reabertura do inquérito, requeridos por quem
tiver legitimidade para tal.
IV
O inquérito poderá vir a ser reaberto por
iniciativa do Ministério Público ou a
requerimento de algum interessado se
surgirem novos elementos de prova que
originem diligências sérias, pertinentes e
consequentes.
V
Decorridos que sejam os prazos legais, o
processo poderá ser consultado por qualquer
pessoa que nisso revele interesse legítimo,
respeitados que sejam o formalismo e limites
impostos por lei."
In the first paragraph it is
stated explicitly
"foi
determinado o arquivamento do
inquérito
relativo ao desaparecimento da menor
Madeleine McCann",
in English: "the inquiry relating to the
disappearance of the minor Madeleine McCann
was archived" with effect from the date of
his officially published instruction
('despacho'), namely, 21 July 2008.
Paragraph IV of the above despacho states,
in English, "the inquiry can be re-opened by
the Ministério Público or the request of an
interested party should new evidence come to
light that would give rise to the need for
serious, relevant and consequential police
work."
The consequence of these two official
pronouncements is, therefore, that, contrary
to the status implied by the Home Office,
the investigation in Portugal is not
ongoing. With that principal investigation
being in legal abeyance pending the receipt
of new evidence, any and all evidence held
by the Leicestershire Constabulary acquired
during their support role in that principal
investigation should have been passed to the
judicial authorities in Portugal. Failure to
have done this
might be construed to be obstruction of
justice.
Further,
any documented evidence in that principal
investigation that has been retained by the
Leicestershire Constabulary belongs to the
judicial authorities in Portugal and,
therefore, should be subject to the same
legal provisions that apply to the
documented evidence held in Portugal,
specifically, as stated in paragraph V of
the above despacho, it should be made
available for consultation by any person,
subject to the formalities and limits
imposed by the law (in Portugal), who can
show a legitimate interest in the documents
of the case file.
Among other things, Articles in the
Portuguese Penal Process Code stipulate
that,
- at 86(1), a criminal case is public,
subject to restrictions imposed by
(Portuguese) law;
- at 86(6), the publication of a criminal
case implies the right of the general public
to hear, the right of the media to publish,
and the right of anyone having legal cause
to obtain copies, extracts or certificates
of documents pertaining to the case;
- at 88, the media are expressly permitted,
within the limits of the (Portuguese) law,
to publish information about the case. There
is no mention in that article of any
limitation prescribed at the whim of a
foreign government;
- at 90(2), other persons are permitted,
without prohibition, to read details of the
case published through the media;
On 4 August 2008 access to the case file was
granted to the 'media' by the Portuguese
authorities. In compliance with Portuguese
law certain documents had been withheld by
the Portuguese authorities for reasons
recorded in the file.
It should
be noted that the term 'media' (comunicação
social) above is not limited solely to
organs of the Portuguese press but, rather,
it encompasses every organ of communication
to people in general in every country
throughout the world. Hence, the 'media' in
general, anywhere in the world, is deemed to
have a legitimate interest in the documents
contained in the case file.
It is, therefore, very much in the Public
Interest to know whether any organ of the
Government of the United Kingdom has placed
any restriction or limitation on the
reporting of any facet of this case, save
for those already specifically excluded by
Portuguese law, by any or all media
organisations in the United Kingdom.
In considering this request, read together
with the response already received from the
Home Office, I submit that:
- Section 27 of the Freedom of Information
Act as an exception has no bearing on this
question other than as an attempt by the
Government of the United Kingdom to avoid
embarrassment, which is not a valid
foundation for exception;
- Section 38 of the above Act as an
exception has no foundation because the
condition of the missing child, whatever
that might be, cannot be affected by the
disclosure of the existence or otherwise of
a 'gag' on the British media;
- Section 31 of the above Act has no
foundation due to the fact that, as
demonstrated above, the principal
investigation in Portugal is no longer
ongoing.
It is made clear here that should there be,
outside the principal case, one or more
investigations into the disappearance of
Madeleine Beth McCann mounted by or under
any British authority alone, then this
request does NOT seek to know any
information about that, or those,
investigations. This request is focused
entirely upon material pertaining solely to
the principal investigation.
I reiterate the original request submitted
on 11 August 2008:
This is a request for information, namely
for any and all records or documents or
extracts thereof reporting or evidencing
that at any time on or after 4 May 2007 any
form of limitation or restriction or
injunction or moratorium over the free and
fair and unfettered disclosure of any aspect
whatsoever of, or any detail whatsoever of,
the Inquiry into the disappearance of
Madeleine Beth McCann and/or over any
information pertaining to any persons
directly associated with that disappearance
and/or directly associated with the Inquiry,
was requested, instructed and/or obtained by
any person, or persons, whether employed at
any level within or providing any service
within the Home Office or any of its
ancillary operations, including, but not
limited to, the Central Office of
Information.
It seeks further:
(a) the identity, or identities, of any and
all the persons by whom,
(b) the date and time at which, and
(c) the means of communication through
which, any such limitation or restriction or
injunction or moratorium referred to above
was requested, instructed and/or obtained.
For the purposes of this complaint, and due
to the elapse of time during which certain
information has become public knowledge, I
will reduce the request to its simplest form
in the hope of a simple, one-word response –
a Yes, or a No:
Has any organisation in the British media
been restricted by any organ of the British
Government from freely and fairly disclosing
anything pertaining to the principal
investigation as documented in the case file
released by the Portuguese authorities on 4
August 2008?
Prevarication in the form of a mere
re-issuance of the standard form letter
already received will be taken to be an
affirmative response.
Yours faithfully
Albert Moisiu |