A few weeks ago, the Nigerian Liberty Forum was alerted to the existence of a five-page letter dated 24 September 2009 written by Mr Tony Baldry, the Conservative MP for Banbury, to the Secretary of State for Foreign and Commonwealth Affairs, the Rt Hon David Milliband MP, and copied to the Attorney-General, the Rt Hon Baroness Scotland QC, the Lord Chancellor and Secretary of State for Justice, the Rt Hon Jack Straw MP, and the Secretary of State for the Home Department, the Rt Hon Alan Johnson MP.
In this letter, Mr Baldry apparently sought to persuade these senior Cabinet Ministers of Her Majesty’s Government of the need for the Her Majesty’s Government to discontinue the ongoing prosecution of the associates of the former Governor of Delta State of Nigeria, Mr James Ibori, for various money laundering offences at the Southwark Crown Court purportedly on the grounds that the prosecution is damaging to the interests of her Majesty’s Government.
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We understand that the Nigerian Government has refused a request from the Office of the Secretary of State for the Home Department under the terms of the Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Federal Republic of Nigeria concerning the Investigation and Prosecution of Crime and the Confiscation of Proceeds of Crime, 1990 for the extradition of Mr Ibori to the United Kingdom to face charges of serious breaches of the United Kingdom anti-money laundering laws. However, several associates of Mr Ibori, including his wife, sister, and solicitor are presently facing several charges of conspiracy to commit money laundering and money laundering at the Southwark Crown Court.
To put this prosecution in its proper context, it is necessary to repeat the words of Judge Rivlin QC while delivering a ruling in the preparatory hearing for the case at the Southwark Crown Court last year. According to him:
“All the money laundering offences ... arise in this way, and here I briefly summarise the Crown’s case. These ... defendants are all closely connected with a man named James Onanefe Ibori (‘Mr James’). Theresa is his wife; Christine is his sister and Adebimpe Pogoson was at the material time his personal assistant/secretary. Mr James has a chequered history. At one time, in the early 1990’s, when living in England and working as a cashier, he and his wife were in debt and also in trouble for minor offences of dishonesty; but by 1999 he had risen in the world, and in that year he took office as the Governor of Delta State of Nigeria. In that capacity he was required to make asset declarations, which are said to have been false. He was also paid a salary and expenses, which were expected to his only source of income.”
“Notwithstanding these limitations of his office, which were anti-corruption measures, according to the Crown it was not long before Mr James came into personal possession of very substantial wealth, running into millions of pounds sterling. The main thrust of the case against these defendants is that each of them then assisted him in a major money laundering operation, whereby these monies or at least part of them were paid into various bank accounts in the UK and/or used towards the purchase in this country of a number of properties, and/or to fund the luxurious life-styles of one or more of the defendants.”
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“As it happens, very substantial sums of money have already been frozen pursuant to Restraint Proceedings initiated by the Crown in 2007. The prosecution say that virtually all of this money had been dishonestly plundered from the Delta State or in other ways fraudulently obtained by Mr James Ibori.”
The Nigerian Liberty Forum knows that Mr Baldry, who was the Chairman of the House of Commons International Development Select Committee from January 2001 to May 2005, has extensive interests in the extractive industries of several emerging economies especially in West Africa. For example, he is the Chairman of Westminster Oil Limited (a British Virgin Islands registered company involved in the development of oil licences and exploration) and the Deputy Chairman of Woburn Energy plc (a UK AIM listed company specialising in oil exploration and recovery). He is also a director of West African Investments Ltd (a company that invests in “infrastructure and natural resource projects in Sierra Leone and elsewhere in West Africa”) and a shareholder in Target Resources plc (a company involved in gold and diamond mining in Sierra Leone). Mr Baldry is also the Chairman of the Advisory Committee of Curve Capital Ventures Ltd (“a sector neutral investment company that predominantly invests in India; China and Africa and advises companies on strategic growth and global expansion”).
We also know that the Honourable MP for Banbury is the head of a London barristers’ chambers (Chambers Of Tony Baldry MP of 1 Essex Ct, Temple, London EC4Y 9AR) where he practises as a barrister, arbitrator and mediator. We know that on 28 September 2009, four days after he was said to have written the letter to the Foreign Secretary, he registered the following interest in the MPs’ Register of Interests: “Received fee of £22,012.57 from Zaiwalla & Co., solicitors, for advising clients. ... Time worked: 16 hours. (Registered 28 September 2009).”
The interests of the British public (which includes an estimated three million Nigerians) and the Nigerian public in the prosecution of Mr Ibori’s associates at the Southwark Crown Court cannot be over-emphasised. Therefore the Nigerian Liberty Forum took the view that it will be completely unacceptable for a British Member of Parliament to use his good offices (in what appears to be a case of conflict of interests) to undermine this prosecution for less than altruistic ends. We therefore took immediate steps to establish the existence of this letter and to obtain a copy by making applications under the Freedom of Information Act 2000 to the relevant government departments.
Apart from acknowledgements of receipt, we are yet to hear from the Attorney-General’s Office, the Foreign and Commonwealth Office and the Ministry of Justice with a decision on our freedom of information request. However, the Home Office has confirmed the existence of the letter but refused to disclose it. Their letter, a full version of which is annexed below, states inter alia:
“Your request has been treated as a request for information under the Freedom of Information Act (the Act) and I can confirm that the Home Office holds the information that you requested. However, after careful consideration we have decided that the information is exempt from disclosure under section 27(1)(a), s31(1)(c), s40(2) and s41(1) of the Act. These provisions provide that information can be withheld if:
- its release would be prejudicial to relations between the United Kingdom and any other state (s27(1)(a));
- its release would, or would be likely to, prejudice the administration of justice (s31(1)(a));
- it constitutes personal data (s40(2)); and
- its release would constitute an actionable breach of confidence (s41(1))
We do not believe that such a letter is exempted as claimed by the Home Office. We will be taking legal advice with a view to applying for an independent internal review of the handling of our request by the Home Office. In the meantime, we have reached the conclusion after very careful consideration that we owe the British and Nigerian public a duty to bring this matter to their attention immediately.
A FULL VERSION OF THE LETTER FROM THE HOME OFFICE
Reference: T19635/9 21 December 2009
Dear Mr Ogundamisi,
I am writing further to Alison Robinson’s letter of 2nd December 2009 , concerning your request, reproduced below:
“Please send me a copy of the following document by post and by e-mail. A 5 page letter dated 24 September 2009 from Mr Tony Baldry – the Conservative MP for Banbury, to the Foreign Secretary and copied to the Home Secretary , Mr Allan Johnson. The letter concerns the ongoing prosecution of alleged accomplices and associates of the Nigerian politician, Mr James Ibori, for money laundering at the Southwark Crown Court . I understand the letter was sent from Baldry’s barristers’ chambers One Essex Court , Temple , London EC4Y 9AR.”
Your request has been treated as a request for information under the Freedom of Information Act (the Act) and I can confirm that the Home Office holds the information that you requested. However, after careful consideration we have decided that the information is exempt from disclosure under section 27(1)(a), s31(1)(c), s40(2) and s41(1) of the Act. These provisions provide that information can be withheld if:
- its release would be prejudicial to relations between the United Kingdom and any other state (s27(1)(a));
- its release would, or would be likely to, prejudice the administration of justice (s31(1)(a));
- it constitutes personal data (s40(2)); and
- its release would constitute an actionable breach of confidence (s41(1))
The provisions of s40(2) and s41(1) are class-based and confer an absolute exemption. An explanation as to why these provisions have been applied is included in the annex to this letter.
Sections s27(1) and 31(1) are qualified exemption provisions and require us to consider whether in all the circumstances of the case the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Our public interest considerations and the reasons for our conclusion are set out in the attached Annex.
If you are dissatisfied with this response you may request an independent internal review of our handling of your request by submitting a complaint within two months to the address below, quoting reference CR 13463. If you ask for an internal review, it would be helpful if you could say why you are dissatisfied with the response.
Information Access Team
Home Office
Ground Floor, Seacole Building
2 Marsham Street
London SW1P 4DF
Alternatively, you can email: [email protected]
As part of any internal review the Department's handling of your information request will be reassessed by staff who were not involved in providing you with this response. If you remain dissatisfied after this internal review, you would have a right of complaint to the Information Commissioner as established by section 50 of the Freedom of Information Act.
Yours sincerely
FRANCES KENNAH
Freedom of Information request from Mr Kayode Ogunamisi (reference CR13463)
Information requested
Please send me a copy of the following document by post and by e-mail.
A 5 page letter dated 24 September 2009 from Mr Tony Baldry – the Conservative MP for Banbury, to the Foreign Secretary and copied to the Home Secretary , Mr Allan Johnson. The letter concerns the ongoing prosecution of alleged accomplices and associates of the Nigerian politician, Mr James Ibori, for money laundering at the Southwark Crown Court . I understand the letter was sent from Baldry’s barristers’ chambers One Essex Court , Temple , London EC4Y 9AR.
Response
The information is exempt from disclosure under section 27(1)(a), s31(1)(a), s40(2) and s41(1) of the FoI Act.
Section 40
Section 40 is an absolute exemption which allows information to be withheld if it constitutes personal data. It is the general policy of the Home Office not to disclose, to a third party, personal information about another person including personal details. This is because the Home Office has obligations under the Data Protection Act and in law generally to protect this information. It may assist if I explain that any release for the purpose of the Freedom of Information Act, is deemed as a release of information into the public domain as a whole.
Your request for information has been considered in line with the Home Office’s obligations under the Freedom of Information Act. However, it has been concluded that the information you have requested is exempt under Section 40(2) and (3) of that Act. Section 40(3) of the Freedom of Information Act applies where disclosure would breach the Data Protection principles.
Section 41
Section 41 is an absolute exemption which allows for information to be withheld if its release would constitute an actionable breach of confidence. This exemption qualifies the right of access under Freedom of Information Act by reference to the common law action for ‘breach of confidence’. According to that action, if a person who holds information is under a duty to keep that information confidential (a 'duty of confidence'), there will be a ‘breach of confidence’ if that person makes an unauthorised disclosure of the information.
The concept of ‘breach of confidence’ has its roots in the notion that a person who agrees to keep information confidential should be obliged to respect that confidence. However, the law has now extended beyond this: the courts recognise that a duty of confidence may also arise due to the confidential nature of the information itself or the circumstances in which it was obtained. The concept of ‘breach of confidence’ recognises that unauthorised disclosure of confidential information may cause substantial harm.
Whether or not a public authority, such as the Home Office, holds info rmation subject to a duty of confidence depends largely on the circumstances in which it was obtained and whether the public authority expressly agreed to keep it confidential. The courts will recognise that a person holds info rmation subject to a duty of confidence in two types of situations: (1) where that person expressly agrees or undertakes to keep info rmation confidential or (2) where the nature of the info rmation or the circumstances in which the info rmation is obtained imply that the person should keep the info rmation confidential.
We judge that we are under an implied duty of confidence, given the nature of the information contained in Mr Baldry’s letter, and the fact that he wrote privately to specific members of the United Kingdom government.
Section 27
Section 27(1)(a) allows us to withhold information if its disclosure would or would be likely to prejudice relations between the United Kingdom and another state.
Section 31
Section 31(1)(c) allows us to withhold information the disclosure of which would or would be likely to prejudice the administration of justice. Prejudicing the administration of justice is a broad concept and includes the prospect of prejudicing a fair trial of any person against whom proceedings have been or may be instituted.
The use of these exemptions require us to conduct a Public Interest Test to the considerations favouring withholding the information against those favouring its release.
Public Interest Test
Some of the exemptions in the FoI Act, referred to as ‘qualified exemptions’, are subject to a public interest test (PIT). This test is used to balance the public interest in disclosure against the public interest in favour of withholding the information, or the considerations for and against the requirement to say whether the information requested is held or not. We must carry out a PIT where we are considering using any of the qualified exemptions in response to a request for information.
The ‘public interest’ is not the same as what interests the public. In carrying out a PIT we consider the greater good or benefit to the community as a whole if the information is released or not. The ‘right to know’ must be balanced against the need to enable effective government and to serve the best interests of the public.
The FoI Act is ‘applicant blind’. This means that we cannot, and do not, ask about the motives of anyone who asks for information. In providing a response to one person, we are expressing a willingness to provide the same response to anyone, including those who might represent a threat to the United Kingdom .
Public Interest Considerations under section 27
We acknowledge that releasing information on this issue would increase public knowledge and awareness about the United Kingdom ’s relations with Nigeria . However, section 27(1)(a) recognises that the effective conduct of international relations depends upon maintaining trust and confidence between governments. If the United Kingdom does not maintain this trust and confidence, its ability to protect and promote United Kingdom interests through international relations will be hampered, which will not be in the public interest.
The disclosure of information detailing our relationship with the Nigerian government could potentially damage the bilateral relationship. This would reduce the United Kingdom government’s ability to protect and promote United Kingdom interests through its relations with Nigeria , which would not be in the public interest.
Furthermore, if cooperation between the United Kingdom and Nigerian governments were damaged, then this may, in turn, prejudice relations with other states as they may perceive that the UK does not handle their information with due care. For these reasons we consider that the public interest in maintaining this exemption outweighs the public interest in disclosure.
Public Interest Considerations under section 31
We acknowledge that releasing info rmation on this issue would increase public knowledge, albeit in a limited way, about the allegations currently being considered in the ongoing trial at Southwark Crown Court. However, we are of the view that release of the info rmation into the public domain whilst the case is still ongoing and the ensuing discussion and speculation which might follow concerning the contents of Mr Baldry’s letter would be likely to influence the conduct or otherwise affect the fairness of the trial. For these reasons we consider that the public interest in maintaining this exemption outweighs the public interest in disclosure.
Date 21 December 2009 End.
Signed Kayode Ogundamisi and Zaynab Abubakar for the Nigeria Liberty Forum.
Media Query by e mail to [email protected]
Phone +44 798 421 2553
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