European Commission of Human Rights Application

Dear Sir or Madam,

In 1988 the Applicant, a resident of Gibraltar at the time, made an
Application to the European Commission of Human Rights which was
responded to by the FCO
The Application resulted from Judicial Review proceedings in the
Supreme Court of Gibraltar and also involved the Legal Assistance
law. Following the Application a second one was made'

The Application Nos are (Schiller v. the United Kingdom)

1:-16484/90 and

2:- 17744/91

I would be obliged for all information held by the FCO that
concerns the above numbered Applications

Sincerely, david schiller

Dear Madam, 27th November 2009

Thank you for your emails of 21st October, 4th and 5th November
requesting information under the Freedom of Information Act.

Unfortunately I won’t be able to assist you as this Act does not
extend to Gibraltar nor does it have its own legislation on this

Yours sincerely, Kirsty Bowman-Vaughan”
--

Dear Ms Bowman-Vaughan

Applications to the ECHR, Nos 16484/90 and 17744/91

Thank you for your response (copied above) to my request for
information held in relation to the above numbered Applications to
the European Commission of Human Rights

(The e-mails you refer to of the 21st and 5th are not relevant so I
will respond to that aspect seperately)

The Applications to the European Commission of Human Rights were
made by virtue of the United Kingdom being a signatory to the Human
Rights Convention and as the High Contracting Party it was the UK
government, specifically the FCO, who responded to the Applications
eg Application No 16484/90 was responded to by A F Glover as the
'Agent of the government of the United Kingdom'

The Freedom of Information Act requires all the information of the
description specified and which the FCO holds to be disclosed -

Where or how any information held was obtained is irrelevant

It is noted that the FCO imply that no information, other than
information obtained from the Gibraltar authorities is held

That the 'Act does not extend to Gibraltar nor does it have its own
legislation on this' is irrelevant to the request for information

Sincerely, David Schiller

ftao Alison Cross

Dear Alison

Thank you for your response from which it is noted that you now
claim legal professional privilege in respect of all the
information the FCO hold in relation to the request save for one
copy letter from me to the Attorney-General for Gibraltar and its
reply

Before I respond in any substantive manner could I ask that you
confirm that the FCO consider it appropriate for the 'Iberia desk'
to deal with the application for information or whether it would be
more appropriate for the FOI section (if one exists) to be involved

Yours faithfully,

david schiller

Dear Alison

Please refer to your email of the 1st December wherein you invoke
'Legal Professional Privilege' as a reason not to supply the
information requested
--
I agree that “The Freedom of Information Act seeks for disclosure
of information to allow transparency and therefore better
accountability and decision making...” but do not agree that “the
principle of Legal Professional Privilege applies in this case
because release of Legal Advice would prevent lawyers from having
the necessary confidentiality to properly advise their clients”

The government cannot reasonably put itself in the same category as
a private 'lawyer/client' relationship when dealing with a response
to proceedings designed to protect the 'Human rights' of its
citizens and 'this case' cannot reasonably equate to one in which
the “release of Legal Advice would prevent lawyers from having the
necessary confidentiality to properly advise their clients”

Legal advice given to the FCO regarding a citizens rights under a
convention they have guaranteed should be available to all unless
it is suggested that 'non-disclosure of information allows
transparency..' applies to 'Human rights' cases?

Why would the FCO want to conceal legal advice on such an issue

It is a matter of record that Senior Crown Counsel (Harris) who had
charge of the original judicial review, in a blatant act to
influence the Decision, fabricated criminal charges against me (and
another) and obtained a 'guilty' verdict. The prosecution was
entirely based on fabricated evidence, was against the advice of
the Police and Crown Counsel and legal representation was refused
--
It will be appreciated that even in normal lawyer/client
relationships a client can waive the right to confidentiality and
if there is a specific 'Legal Opinion' which the FCO might consider
to be 'In the Public Interest' not to disclose (or any other
exemption would properly apply) the relevant material should simply
be redacted or withheld, with an acceptable reason being given
--
It is also a matter of record that the DPP has indicated he will
'take over and discontinue' any criminal prosecutions against, for
example, the five Law Lords : 'In the Public Interest'
Of course there are many interpretations of what 'the Public
interest' means so the DPP's and FCO's interpretation might not
always accord with anybody riding on a bus to or from Clapham ?
-
The purpose of the ECHR Case should have been to ensure compliance
with a convention that the UK signed-up for and there can be no
proper basis for withholding legal advice!

The FCO know that in accordance with the Rules of Procedure ECHR
Case No 16484/90 was declared 'admissible' until the involvement of
the British Commissioner when it was changed to 'inadmissible'

That was followed by the evidence being altered and a 'Decision'
being published knowingly and falsely naming the applicant as a
convicted criminal

That was done by the Human Rights Commission

I copy below an extract from a letter sent to H C Kruger, the
secretary of the ECHR, on the 13 February 1992 :-

“Application Nos 16484/90 and 17744/91 SCHILLER v. the United
Kingdom

Dear Sir

PUBLICATION OF THE DECISION OF THE COMMISSION

The Commissions Decision in relation to application No 16484/90
quotes: "the applicant had been convicted following an incident in
which he had repeatedly rammed another boat in 1987" and it is
prominently stamped

"The applicant's identity may be disclosed"

It goes on to give details, amongst others, of the applicants name,
age and financial details including those of his wife

The Commission received a letter dated 12th March 1990 explaining
the errors in the Judicial Review judgment relating to an alleged
ramming incident and independent of that letter they know that the
applicant was charged with causing criminal damage during the
pursuit of a person who had inter alia in the middle of the night
cut adrift and caused damage to several boats and had attempted to
escape and the indictment was based on damage caused by a collision
between the applicants barge and the escaping vessel

Further they know it was never alleged that the applicant had
repeatedly rammed another boat and the 'conviction' was after the
decision to refuse a 'fast launch' licence and could play no part
in that decision and was, in any event, quashed by the Appeal Court

The Commissions references to the matter of the alleged ramming
incident together with their failure to mention any qualifying
details indicates a deliberate and premeditated act aimed at
falsely discrediting and defaming the applicant and prejudicing the
application

The further deliberate decision to revoke the confidentiality
ensured by Rule 17 and publish such false, prejudicial and
defamatory material from behind the screen of privilege enjoyed by
the Commission, in whom is entrusted the protection of Human Rights
is indefensible AND the applicant demands:

A CLEAR AND UNAMBIGUOUS APOLOGY FROM THE COMMISSION”
--
The Freedom of Information Act:

The issues involved in the ECHR and Privy Council cases are matters
of no direct concern to the 'Gibraltar government' since they are
not 'Defined Domestic Matters' as listed in the Gibraltar
Constitution Order and come under the direct control of the UK
government : the FCO is the relevant 'government department' within
the terms of the Freedom of Information Act
Information held by all authorities in Gibraltar and elsewhere that
relates to the requested information is 'information held by the
FCO' and is discoverable

The information you have provided consists of a letter from me to
the A-G and the reply from Albert Trinidad. It was Trinidad who
suborned the 'fresh evidence' put before the Law Lords after they
indicated to the A-G that they wanted the appeal opposed.

Does the FCO seriously claim the only information they hold
regarding the applications to the ECHR is copies of two letters and
some 'privileged legal advice'

If your argument is to be maintained the submissions made by the
FCO to the ECHR were based on 'privileged legal advice' and led to
the legal assistance law being altered and the argument put that
the Applicant should return to the Gibraltar appeal court and
thereafter to the judicial committee of the Privy Council with the
benefit of legal assistance under the new law

Ultimately the Hon Chief Justice for Gibraltar (Sir Alistair
Kneller) stated that the matters concerned ought to be submitted to
Her Majesty in Council following which legal assistance was
withdrawn and £12,000 demanded as security for the Respondents
costs

The privileged advice you now hold must also support the Applicants
Case and not the FCO's since all the relevant legal arguments it
could muster were clearly put to the ECHR

Is it the FCO case that by virtue of legal advice it holds it knows
that British Citizens civil rights are being contravened and it is
content for such situation to continue?

The information requested is not limited to 'legal advice',
privileged or otherwise, but all the information held by the FCO
that
concerns the Applications to the ECHR that it opposed ; to argue it
holds no non-legal information is absurd and to argue any legal
Opinions it holds are privileged is perverse

Sincerely, David Schiller

david schiller

Dear Foreign and Commonwealth Office,

Please pass this on to the person who conducts Freedom of
Information reviews.

In the absence of a response to my last email please 'internally
review' my FOI request 'European Commission of Human Rights
Application'.

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/eu...

Sincerely

david schiller

For Information I copy the text of an Application to the ICO for 'a
decision' as suggested by the FCO:-

24th March 2010

Ref: A Freedom of Information request to the Foreign & Commonwealth
Office

Dear Information Commissioner,

The FCO have stated there to be a right to apply to you 'for a
decision' in regard to their 'internal review' in relation to the
above unsuccessful request for information
Please accept this email as a request for such 'decision' (whatever
that might mean?)
-
On the 4th November last a request for information held by the FCO
was made in the following terms:
“Dear Sir or Madam,
In 1988 the Applicant, a resident of Gibraltar at the time, made an
Application to the European Commission of Human Rights which was
responded to by the FCO. The Application resulted from Judicial
Review proceedings in the Supreme Court of Gibraltar and also
involved the Legal Assistance law. Following the Application a
second one was made'

The Application Nos are (Schiller v. the United Kingdom) 16484/90
and 17744/91 I would be obliged for all information held by the FCO
that concerns the above numbered Applications”

The FCO refused to supply any information on the grounds that :-
“this Act does not extend to Gibraltar nor does it have its own
legislation on this”
leading to the response :- “… The Applications to the European
Commission of Human Rights were made by virtue of the United
Kingdom being a signatory to the Human Rights Convention and as the
High Contracting Party it was the UK government, specifically the
FCO, who responded to the Applications eg Application No 16484/90
was responded to by A F Glover as the 'Agent of the government of
the United Kingdom' The Freedom of Information Act requires all the
information of the description specified and which the FCO holds to
be disclosed - Where or how any information held was obtained is
irrelevant. It is noted that the FCO imply that no information,
other than information obtained from the Gibraltar authorities is
held That the 'Act does not extend to Gibraltar nor does it have
its own legislation on this' is irrelevant to the request for
information”
--
thereafter following an internal review the FCO said :- “You
requested an internal review of the decision, conveyed to you in
Alison Cross' email of 1 December 2009, not to disclose material on
your request regarding Application Numbers 16484/90 and 17744/91
under the Freedom of Information Act 2000 (“the Act”). I have
conducted a full examination of all the material, both released and
exempted, of relevance to your request. I have concluded the
following.
Search for information
I have reviewed the original search for information in relation to
your request, and have spoken to personnel involved and checked
procedures were followed correctly. I am content that a reasonable
search was carried out in relation to your request.
Use of exemptions: The exemption previously used was the Legal
Professional Privilege (Section 42 Freedom of Information Act). I
have reviewed the material thoroughly and am content that the
exemption was correctly used and the material should not be
released. As stated in Alison Cross' letter of 4 December 2009, the
principle of Legal Professional Privilege applies in this case
because release of Legal Advise would prevent lawyers from having
the necessary confidentiality to properly advise their clients. I
am therefore satisfied that your Freedom of Information request was
handled appropriately and the correct information was released.”
--
History and Brief Explanation:-

1 The application to the FCO for information is connected with
other requests to government departments including a recent
application to the MoJ for information dealt with by the ICO which
is currently the subject of an Appeal to the Parliamentary
Ombudsman against (inter alia) the Decision of the ICO to support
the Ministry of Justices' assertion that they hold no information
other than that they have disclosed
The FCO confirmed holding information of the type sought but claim
the only document not subject to exemption is a single A4 sheet of
paper dated 29 April 1996 with no explanation as to how or why it
was received or how it was responded to – other than to confirm
information of the type sought is held by the FCO it is a
meaningless document
-
One of the ECHR Cases referred to was declared 'Admissible' by the
initial 'non-British Raporteur', but upon the involvement of the
British member of the Commission (Sir Basil Hall) the evidence
submitted by the Applicant was altered and the Application changed
to 'Inadmissible' (see copy of letter to ECHR 13th Feb 1992)
The altered evidence relates to (i) 'terretorial jurisdiction' and
(ii) knowingly and falsely naming the Applicant a 'convicted
criminal'
The known false evidence was accepted by the Commission and despite
the Application having been changed from 'Admissible' to
'Inadmissible' a 'Decision' was published naming the Applicant as a
convicted criminal
[As a part of the original judicial review proceedings Kenneth
Harris (Senior Crown Counsel), on behalf of the Attorney-General
for Gibraltar, fabricated criminal charges against me and submitted
to the review, as a reason for not granting a licence, that I 'zoom
around Gibraltar ramming other boats']

Much more was involved and the ECHR cases and Gibraltar proceedings
involve 'acres' of documents not concerned with 'legal Opinion'
-
Whether it is legitimate for the FCO not to reveal 'Legal
Professional Opinion' with regard to Human Rights legislation the
UK purports to abide by or not is a matter of judgment but that
they hold no other information cannot be true : they have not
alleged any information to have been destroyed or lost and the
effort they put into opposing the ECHR cases and (inter alia) legal
proceedings in the Gibraltar courts was substantial and over a
lengthy time span
--
Notwithstanding their submission that 'Legal Professional
Privilege' applies there is little difference between our
respective legal Opinions on the main relevant issues, viz:- ;

1 The Applicants submission that the 'Fast Launches (Control)
Ordinance 1987' (the relevant 'law' under scrutiny in the original
judicial review proceedings) was ultra vires the UK was implicitly
accepted by the FCO by their action in amending the Ordinance,
during the review proceedings, by removing the expression
'terretorial waters'
Notwithstanding the judicial review having thus been effectively
determined in favour of the Applicant it went ahead as if the UK
did have jurisdiction!

2 The FCO agreed with the legal argument of the Applicant in regard
to the availability of legal assistance for impoverished citizens
by altering the law and submitting to the ECHR that I should return
to the Gibraltar courts and appeal the JR Decision to the appeal
court and thence, if necessary, to Her Majesty in Council with the
benefit of the 'altered law'
Notwithstanding the Application to the ECHR having also been
effectively determined in favour of the Applicant the Commission
'Published' a known false Decision naming the Applicant a convicted
criminal and altering the submitted evidence regarding (inter alia)
terretorial jurisdiction!
–
I have not gone into any great detail herein since I am not sure
what the ICO require to make a 'decision' and I would be pleased to
supply any specific or general details you may require

Sincerely DAS