Thread by @auerfeld

Coppel explaining the importance of the UN Working Group on Arbitrary Detention ruling, made after CPS decision about this FOIA request in late 2015, which found the UK and Sweden in breach of their international obligations. #Assange

Coppel: it is argued that the UNWGAD decision would have made no difference if it had been taken into account... "that is simply incorrect... the stance taken by the tribunal was of fundamental importance to the outcome of the appeal" #Assange

Coppel: "in August 2017 there had been a disclosure by the CPS... that had been catalysed by the willingness of the Swedish Prosecution Authority for that material to be disclosed. With that, the public interest consideration fundamentally shifted." #Assange

(that partial CPS disclosure resulted in media reporting like this, incidentally: theguardian.com/media/2018/feb…) #Assange

Coppel: in its original decision rejecting @SMaurizi's FOIA request, the CPS "majored on" the maintenance of foreign government confidentiality. #Assange

Coppel: "by the time we get to the FTT hearing that public interest factor had diminished.. it would have, or it should have, made the world of difference." [because Sweden had released documents in the meantime] #Assange

Coppel: other important developments: the UNWGAD decision was published after the CPS decision and that too is relevant to the public interest balance. The UK lost its appeal. In 2017 Sweden dropping the investigation v #Assange meant the US element became more important.

Judge Mitchell asks if all these matters were raised in front of the First Tier Tribunal. Coppel: they were and a chronology was produced. #Assange

Coppel: the touchstone for this tribunal is whether, had the FTT made its decision at the point we say it should have, would the result have been the same. "We say the answer is no." #Assange

Coppel now moving on to the second ground of appeal, which concerns when public can use "neither confirm nor deny" to limit their exposure under FOIA. #Assange

Is it right that public authorities can exclude things they would normally not be expected to do from the reach of FOIA? There are obvious ramifications for the ability to use FOIA requests to expose wrongdoing if they can... #Assange

In essence, the First Tier Tribunal had to consider a hypothetical here, because "neither confirm nor deny" applied. It only considered matters that fell within the CPS statutory functions ie things they would normally be expected to do. #Assange

An example of this is that any potential correspondence between @cpsuk and the Ecuadorian Embassy was not considered, even though press coverage suggested that this had happened (for instance in facilitating Sweden's interview of #Assange in the embassy).

Judge Mitchell asking Coppel about the FTT's powers - lots of technical stuff here about it being an executive body rather than a judicial one. #Assange

Mitchell: why is it a necessary conclusion that all three executive tiers of the FOI system make decisions at their own times? Coppel: otherwise you slip into judicial function. Major purpose of FOIA systems is improving trust in government as reach of gvt expanded. #Assange

Coppel: "the gist of our argument here is that the tribunal below, in deciding the NCND exemption, did not simply assume that the CPS held information held information responding to our request but made a further conjecture that was impermissible." #Assange

Coppel: the NCND exemption is there because some FOIA requests are highly sophisticated and may envisage exactly what document they want to get hold of. #Assange

Coppel: @SMaurizi's original request was for all correspondence between the CPS and Ecuador on the case of Julian #Assange. Usual approach for CPS would be to have confirmed whether that info existed and then cite an exemption if one applied.

Coppel: the FTT tribunal upheld a NCND approach,saying "the CPS had no proper role in dealing with Ecuadorian authorities... the only thing that such correspondence would be about, if existed, would be an inquiry or request concerning extradition to Ecuador" #Assange

Coppel: this assumption was "highly implausible" given that #Assange had been granted political asylum by Ecuador and was resident in its London embassy.

Moving on to ground three of @SMaurizi's appeal - does an individual interest in information negate the public interest in the same? Coppel: there is a public interest in an individual being able to access information about him or herself. #Assange

Coppel: not accurate to say that the public interest in this information was "minimal." There is an "acute" public interest in an individual not being deprived of information regarding him or herself. That's why we have regimes for eg access to medical records. #Assange

Coppel: "We do not sit in splendid isolation when there is an individual crying out for information about themselves." #Assange

Mitchell: there are set statutory schemes for individuals to access information about themselves. Coppel: the public interest is in individuals not being frustrated in obtaining information related to themselves. Not purely a personal interest. #Assange

Coppel: the tribunal did recognise, properly, that Mr #Assange had a strong personal interest in knowing whether the CPS had received inquiries. But it should have gone on to ask whether there was a public interest in this not being frustrated.

Coppel: more than this, the FTT failed to consider the "general public interest" - ie. the public interest is actually more than seeing that Mr #Assange's own interest was not frustrated. There is a wider general public interest in this case.

Coppel: this case has gone on for a long time and involved significant expenditure from the public purse. #Assange is the only journalist in the Western World to have been the subject of a UN WGAD decision.

Coppel: there is a strong public interest in the extent to which press protections are applied. "This is not a matter of weighting [different public interest factors], it's a matter of putting something into the scales in order to weigh them." #Assange

Coppel: weighing different factors is a matter for the FTT. We are arguing that some factors were left out entirely. #Assange

That's the end of submissions from @SMaurizi's side. Next up is @ICOnews. #Assange

I don't have the name of the ICO barrister, apologies to him!

ICO: FTT is part of the judicial machinery of the state. It's wrong to say it's a third level of executive review. #Assange

ICO: Mr Coppel's review of the history of FOI is also irrelevant. He's trying to give you a particular view of the first tier tribunal system. Disagrees: "It simply won't do to take a one size fits all model." #Assange

ICO: there is nothing in the statute governing the tribunal system that makes the relevant date for a decision the date of the actual hearing. #Assange

ICO: it is permissible to take into account subsequent evidence "only insofar as these new matters shed light on matters at the relevant time" #Assange

ICO: @SMaurizi is asking you, Judge Mitchell, to overturn the decision of a three-judge panel. #Assange

We're deep into the technical weeds here, I'll let you know when we emerge. #Assange

The ICO barrister is discussing the position taken on the "what is the proper date for the public interest test" issue in previous cases. Lots of references to paragraph numbers in rulings I don't have in front of me. #Assange

ICO: Mr Dunlop for the CPS made clear the time of the public interest test at the FTT hearing and @SMaurizi did not protest at the time. Now too late to make this objection. #Assange

Mitchell: "the fact remains that the FTT turned its mind to a possible earlier reference point.. I don't think appeal was granted on an academic ground." Asks to move on. #Assange

ICO barrister expanding point that any new information must shed light on the public interest decision taken initially. The statute does not entirely exclude new information. #Assange

ICO disagrees that changing the date of the public interest consideration would have made a difference. #Assange

ICO: the duty of confidence to a foreign state was the determining factor and the passage of time did not change this. #Assange

ICO now turning to points 2 (neither confirm nor deny) and 3 (personal interest v public interest) very briefly. #Assange

ICO: FTT looked at a "crucial factual finding" - a foreign authority would only be in contact with the CPS extradition unit regarding an actual or potential extradition. #Assange

ICO: wrong to say this is "conjecture" as Mr Coppel does, the FTT had heard evidence from a witness and reached a factual conclusion. "This is an absolutely simple point. There is no error of law in this case." #Assange

ICO: "the suggestion by the appelant that when dealing with NCND that you must deal only with the wording of the request and look no further cannot be right. That is not how the NCND machinery is deployed." Wrong to conclude there was correspondence with Ecuador. #Assange

ICO: On ground three (personal v public interest in CPS correspondence with US authorities). We do not disagree public interest is engaged, it's about weighing the different interests. #Assange

ICO: There is a very high hurdle to arguing that a tribunal decision was perverse in the FOI context #Assange

ICO: From our perspective there is nothing approaching an error of law in the FTT decision. #Assange

ICO: FTT concluded that it is not in the public interest to tip someone off about a potential extradition request. "There is no error of law there." #Assange

ICO barrister now hands over to Mr Dunlop for @cpsuk. But we're going to have lunch first. #Assange

And we're back. Mr Dunlop opens for @cpsuk with some factual corrections to his skeleton argument. #Assange

Dunlop: says his 4 part argument on point 1 ("what is the date for the public interest test") mirrors that of Mr Hopkins, who appeared for @ICOnews. #Assange

Dunlop: "our basic argument is that the tribunal did consider the public interest balance on two alternative bases" either 2015 or at the time of the appeal. "It found whichever was right, the public interest weighed in favour of maintaining the exemption." #Assange

Dunlop: so this is entirely academic. But even if you don't buy that, it is still unfair and unjust for the argument to be addressed now. #Assange.

Dunlop: in mid-2017 the Swedish Prosecution Authority disclosed documents and, in response, @cpsuk did too - even though they weren't obliged to. "they took a pragmatic decision not to wait for a further request. #Assange

Dunlop: our argument addresses the overlap between the SPA disclosure and the @cpsuk disclosure. "The CPS kept back the instructions and advice communicated by themselves and the SPA that the SPA had not themselves disclosed." #Assange

Dunlop: notes that @cpsuk is still bound to keep confidential material that SPA has not disclosed, uses analogy of client-lawyer relationship. Further disclosure might also damage extradition procedures. #Assange

Dunlop: FTT concluded that potential damage to extradition justified lack of disclosure. The SPA's actions in the meantime do not change this. #Assange

Dunlop: the test is not whether the result would have been the same. When you read the findings of an expert tribunal you should assume they knew what they were doing. Was there an error of law? #Assange

Dunlop: even if you were to take the tribunal findings as defective, it is not fair or just to introduce a new issue for consideration now. #Assange

Dunlop is going through case law on whether it would be appropriate to reconsider at this point (unsurprisingly, he thinks not...) #Assange

Dunlop now revisiting evidence of CPS witness in the 2017 hearing, Mr Cheema. CPS extradition unit is small and was dealing with 1000 live extradition cases at the time. #Assange

Dunlop referring to the excessive workload of the lawyer who was then dealing with the #Assange case, according to Mr Cheema. Judge Mitchell asks if this evidence was accepted. Dunlop: I don't think the evidence about workload was ever in dispute. #Assange

Dunlop basically arguing that given CPS workload, it would be inappropriate for them to have to undertake the FOI task another time. #Assange

Dunlop: "we are now in a position where there has been a judicial proceeding.. the general orthodoxy should apply" #Assange

Dunlop: the only two significant subsequent developments are the SPA disclosure and the CPS disclosure of documents that followed it. The UNWGAD ruling was dealt with by the FTT. #Assange

Dunlop: now turning to ground 2 of the appeal (the use of NCND). Coppel said that the assumption that any correspondence with Ecuador could only be about an extradition request was unsafe and based on no evidence. In fact it was based on Mr Cheema's evidence. #Assange

Dunlop turns to ground 3 (personal interest v public interest). Starting point is that the FTT is an expert tribunal that should be assumed to have known what it was doing. #Assange

Dunlop: @SMaurizi argues a factor was left out of the balance, "the public interest in Mr #Assange being tipped off about an extradition request from the United States."

Dunlop: "The tribunal was plainly right to reach the conclusion that they did. It is not in the public interest for an individual to be tipped off in such a way. The public interest lies strongly in the other direction." #Assange

Dunlop: "even if there is a public interest in an individual being able to have information about themselves, that does not apply in this case." #Assange

Dunlop rests his case for @cpsuk. We now have submissions from @foreignoffice (this is at the request of Judge Mitchell, none of the other parties seem to think they need to be here, including the FCO itself). #Assange

FCO: we were asked to comment on whether the Vienna Convention on Diplomatic Privileges applies here. A40 speaks to embassies corresponding with government ministries. A24, 27 concerns inviolability of documents in diplomatic mission archives. #Assange

FCO: "our position is that on analysis, these points do not advance this appeal." #Assange

FCO barrister starts with A.41(2), which seems to be relevant to ground 2 (NCND re: correspondence with Ecuador). A41 is not incorporated into English law. #Assange

FCO: A41 not being incorporated means that these issues are not justiciable by municipal courts. #Assange

FCO: As a result the FTT was quite correct not to take A41 into account. No error of law there. #Assange

FCO: A41 can be considered as evidence, but with limited effect. None of the parties asked for it to be taken into account, so doesn't reach the level of error by the FTT not to consider it. #Assange

FCO: "This is the only issue on which all the parties to this appeal sing with one voice." #Assange

FCO on A24 & 27 - these are incorporated into English law and concern the inviolability of documents in a diplomatic mission. But does not apply here because the FOIA request was made to @cpsuk not the Ecuadorian embassy. #Assange

FCO: documents that are no longer in the archives of the diplomatic mission are by definition not inviolable. #Assange

FCO cites case law "the document must remain in or part of the diplomatic archive" - hilariously, this is a ruling concerning the admissibility of State Dept cables in court :) #assange

FCO: clear that a document sent from the Ecuadorian Embassy to @cpsuk would lose its diplomatic inviolability. #Assange

FCO submission is over. Phillip Coppel now has the opportunity to respond on behalf of @SMaurizi #Assange

Coppel: I'll deal with my responses, ground by ground. The majority of my points relate to the first (timing of the public interest test). #Assange

Coppel: We are not asking that the tribunal take on some investigatory role, but it is entitled to take account of what the parties put to it. #Assange

Coppel: Mr Hopkins for the FCO argued that the FTT was exercising judicial power for the state - that is incorrect. #Assange

Coppel: authorities cited re: "date of decision" are not as persuasive as ICO/CPS made out. #Assange

Coppel now teasing out what he sees as difficulties in the @ICOnews position. Ambiguities working in favour of the public authority. #Assange

Coppel: "Mr Hopkins says this is not asymmetric. I'm afraid it has all the hallmarks of asymmetry." #Assange

Coppel: Mr Hopkins' general argument is that if the circumstances have changed, then you should make a new request. But different sections of FOIA then might be used to refuse a request. #Assange

Coppel: wrong to propose making a new request as the "great solution for an applicant who has had a change of facts." A Section 14(2) exemption (for repeat requests) might then be applied. #Assange

Coppel: this leads to a fundamental disparity of treatment between public authorities and those making requests, who face uncertainty and considerable delay. #Assange

Coppel: turns to @cpsuk arguments on Swedish document disclosures followed by the CPS making disclosures of their own. The important bit for the public interest is what Sweden disclosed. #Assange

Coppel: the FTT did not actually deal with this point. Mr Dunlop says it is too late to consider now but the reference he raised is irrelevant. #Assange

Coppel: The assumption regarding Ecuador's communications with the @cpsuk (that they could only be regarding an extradition request from Ecuador) was an inadmissible hypothetical because it did not make sense. #Assange

Coppel: @cpsuk's main argument was that a tip off was contrary to the public interest. That is a factor, but it is one that was taken into account. Our appeal is that other factors in favour of disclosure were *not* taken into account. #Assange

Coppel: neither CPS nor ICO can point to where the FTT actually weighed up the factors in favour of disclosure. That's an error of law. #Assange

Coppel concludes for @smaurizi. Others being given a response to reply again. ICO: on ground 3, Mr #Assange did not make this request and if he was interested he could have used his subject access rights. FTT was not urged to consider the factors Mr Coppel talks about.

And we're done. Decision will be handed down "by the end of this week". #Assange