Appendix 2 (of ICO complaint)

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