Category Archives: crime

March 11, 2025 · 8:47 am

An offence of unlawful access to records of the dead?

I’m starting to wonder whether Parliament should consider a new offence of accessing and/or retaining records of the deceased without lawful excuse.

The BBC, and others, are reporting concerns that there may have been unauthorised access to medical records of the victim of killer Valdo Calocane. In the last few years we have also seen similar stories emerging in relation to police files on the murders of Sarah Everard, Bibaa Henry and Nicole Smallman (and I am sure there are many others).

The offence at section 170 of the Data Protection Act 2018 cannot be engaged when the records in question relate to someone who is dead, and although there is the potential for prosecutions for misconduct in a public office, or under the Computer Misuse Act 1990, there will be times when these do not apply.

Such unwarranted access seems to be a serious risk which arises wherever there is a high profile killing, and it must cause immense extra distress for the families and friends of the victims.

I wonder if now is the time for a debate on the topic, with an agenda item of whether there is need for a new criminal offence.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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January 30, 2025 · 7:54 am

Exceptionally unlikely: ICO and judicial review

[reposted from my LinkedIn account]

Where Parliament has entrusted a specialist body with bringing prosecutions, such as the Serious Fraud Office, or the Information Commissioner’s Office (ICO), it is “only in highly exceptional circumstances” that a court will disturb a decision made by that body (see Lord Bingham in R(Corner House and others) v Director of the Serious Fraud Office [2008] UKHL 60)).

Such was the situation faced by the claimant in an unsuccessful recent application for judicial review of two decisions of the ICO.

The claimant, at the time of the events in question, was a member of the Labour Party and of the Party’s “LGBT+Labour” group, She had been concerned about an apparent disclosure of the identity and trans status of 120 members of a “Trans Forum” of the group, of which she was also a member, and of what she felt was a failure by the LGBT+Labour group to inform members of the Forum of what had happened.

She reported this to the ICO as potential offences under sections 170 and 173 of the Data Protection Act 2018 (it’s not entirely clear what specific offences would have been committed), and she asked whether she was “able to discuss matters relating to potential data breaches with the individuals involved”. The ICO ultimately declined to prosecute, and also informed her that disclosing information to the individuals could in itself “potentially be a section 170 offence”.

The application for judicial review was i) in respect of the “warning” about a potential prosecution in the event she disclosed information to those data subjects, and her subsequent rejected request for a commitment that she would not be prosecuted, and ii) in respect of the decision not to prosecute LGBT+Labour.

Neither application for permission succeeded. In the first case, there was no decision capable of being challenged: it was an uncontroversial statement by the ICO about a hypothetical and fact-sensitive future situation, and in any event she was out of time in bringing the application. In the second case, there were no “highly exceptional circumstances” that would enable the court “to consider there was a realistic prospect of showing that the ICO had acted outside the wide range of its discretion when deciding not to prosecute”.

One often sees suggestions that the ICO should be JRd over its failure to take action (often in a civil context). This case illustrates the deference that the courts will give to its status and expertise both as regulator and prosecutor. Outside the most exceptional of cases, such challenges are highly unlikely to succeed.

Peto v Information Commissioner [2025] EWHC 146 (Admin)

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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September 12, 2023 · 8:49 am

Arbitrary criminality and data protection

It shouldn’t be too controversial to state that to commit a criminal offence is a serious matter: although there are – obviously – different levels of severity, certain acts or omissions are so injurious to society as a whole that they warrant prosecution.

The majority of infringements of data protection law are not criminal offences, but, rather, contravention of civil law. But there are a few offences in the statutory scheme. Section 132 of the Data Protection Act 2018 (DPA) is one such. It says that it is an offence for the Information Commissioner, or a member of his staff, to disclose information

which—

(a)has been obtained by, or provided to, the Commissioner in the course of, or for the purposes of, the discharging of the Commissioner’s functions,

(b)relates to an identified or identifiable individual or business, and

(c)is not available to the public from other sources at the time of the disclosure and has not previously been available to the public from other sources,

However, it will not be an offence if the disclosure is made with “lawful authority”, and a disclosure is made with lawful authority only if and to the extent that

(a)the disclosure was made with the consent of the individual or of the person for the time being carrying on the business,

(b)the information was obtained or provided as described in subsection (1)(a) for the purpose of its being made available to the public (in whatever manner),

(c)the disclosure was made for the purposes of, and is necessary for, the discharge of one or more of the Commissioner’s functions,

(d)the disclosure was made for the purposes of, and is necessary for, the discharge of an EU obligation,

(e)the disclosure was made for the purposes of criminal or civil proceedings, however arising, or

(f)having regard to the rights, freedoms and legitimate interests of any person, the disclosure was necessary in the public interest.

This means that, for instance, if an individual or a business has given (willingly or under compulsion) information to the Commissioner for the purposes of a regulatory investigation, and the information is not already public, then the Commissioner must not disclose it, unless he has lawful authority to do so.

Where, also for instance, the Commissioner publishes a legal decision notice, or monetary penalty notice, or the like, this will ordinarily contain information of this kind, but the Commissioner can point to the lawful authority he has under section 132(2)(c) – namely that the disclosure was made for the purposes of, and is necessary for, the discharge of one or more of the Commissioner’s functions. No offence committed.

But section 132 is why the Commissioner’s Office might refuse, under the Freedom of Information Act 2000 (FOIA), to disclose information it has received from an individual or business. For instance, a notification report a controller has submitted pursuant to its “personal data breach” obligations under Article 33 UK GDPR. Here is an example. The ICO withholds the “breach report” in question, citing the exemption at section 44, because of the offence provisions at section 132 DPA.

Whether this is an over-cautious stance is one thing, but it is understandable.

What puzzles me, though, is the inconsistency, because elsewhere, in very similar circumstances, in response to a FOIA request, the ICO has disclosed a personal data report (albeit with redactions). Here, also.

If the Commissioner’s staff in the first example feel that they would commit an offence by disclosing the report, do the staff dealing with the second or third examples not feel that they would also?

One thing that should certainly not happen is claiming exemptions because it is easier to do so than not. I am not saying that has happened here, but there certainly seems to be inconsistency. And inconsistency, or uncertainty, about whether a regulator and his staff might commit a criminal offence is not a good situation.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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August 22, 2023 · 8:55 pm

“Text pests” and data protection criminal offences

The modern digital economy allows us to order goods (and have them delivered) with a few taps on our phones. But the infrastructure behind locating, packaging and delivering those goods necessitates that a chain of people have access to the specific of our orders, and, in some cases, our contact details. A consequence of this appears to be an extraordinary prevalence of customers receiving unwanted contact as a result: research commissioned by the Information Commissioner’s Office (ICO) indicates that 29% of 18-34-year-olds have received unwanted contact after giving their personal details to a business.

It is to the ICO’s credit that it is looking at this issue, and calling for evidence of what it correctly calls this “illegal behaviour”. But I found it surprising that the ICO did not explain, in its communications, that if someone obtains a customer’s contact details from a business, and uses it for personal purposes which are different from (and not approved by) the business, they are very likely to be committing the criminal offence of unlawfully obtaining personal data without the consent of the controller, under section 170(1)(a) of the Data Protection Act 2018 (DPA).

The ICO says it will be contacting

some of the major customer-facing employers in the country to emphasise their legal responsibilities as well as to learn more about what safeguards they have in place

Which is all fine, but maybe a quicker and more effective action would be to remind those employers in turn to make their staff aware that using customer data for such purposes may well see them ending up with a criminal record.

Under section 197 of the DPA prosecutions for section 170 offences can only be brought, in England, Wales and Northern Ireland at least, by the ICO itself (or with the permission of the Director of Public Prosecutions or equivalent). One wonders if the sheer numbers of incidents where customer data is being obtained and misused in this way means that the ICO’s criminal prosecution team simply doesn’t have the capacity to deal with it. If so, maybe Parliament needs to look at giving the CPS a role, or even whether private prosecutions could be allowed.

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August 9, 2022 · 8:41 am

ICO secures court-awarded compensation

ICO often say they can’t award compensation, but what they can do is – in criminal cases – make an application for the court to make an award (separate to any fines or costs). But as far as I know, until this case last week, they’d never done so:

https://www.mishcon.com/news/ico-recommends-compensation-awards-in-criminal-prosecution-case

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December 24, 2021 · 11:15 am

Reporter uses FOI to lift anonymity order

Here’s a remarkable example of good use of Freedom of Information (FOI) law. Tanya Fowles, a reporter covering courts in Northern Ireland, has successfully applied to lift a reporting restriction order, originally made in the magistrates’ court, which prevented her naming a person convicted of causing a child to engage in sexual activity.

The court appears to have imposed the original order because of a perceived risk to the defendant’s safety, based on evidence given by a police officer, who is reported to have told the court that

It’s a small, rural community. The family would be well-known. I think he would be easily identified. I know of incidents recently where paedophile hunters have gone to houses and attacked individuals. I am aware that is prevalent within the area, or certainly was last year. They have turned up at houses and one was arrested for assault. After that there was a bit of a lull, but I believe they are still active in the area.

However, Fowles then made an FOI request to the Police Service of Northern Ireland, which revealed that, far from such incidents being prevalent, police had only attended seven incidents in the entire County Armagh area during 2019/20, resulting in a single report of assault but zero prosecutions. This evidence was accepted in the county court (to which the case had been transferred) and the reporting restriction order was lifted.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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February 6, 2021 · 7:36 am

Dashcams and domestic purposes

What do people use dashcams and cameras on cycle helmets for? I’m sure that some (especially in the latter group) use them to capture footage of interesting journeys they have made. But a considerable proportion of users – surely – use them in the event that the user is involved in a road traffic incident. Indeed the “National Dash Cam Safety Portal”, although provided by a commercial organisation selling cameras, is operated in partnership with, and enables upload of footage to, police forces in England and Wales, and its FAQ clearly inform people of the evidential nature and implications of such footage. And a recent piece on the “Honest John” website suggests that one in four dashcam submissions result in a prosecution. Whatever the intentions were of the people who used those dashcams to record that footage, it is undeniable that the outcome of the processing of personal data involved had a significant effect on the rights of those whose data was processed.

Article 2 of the UK GDPR says that the law’s scope does not extend to processing of personal data “by a natural person in the course of a purely personal or household activity”, and the case law of the Court of Justice of the European Union (at least insofar as such case law decided before 1 January 2021 is retained domestic law – unless departed from by the Court of Appeal or the Supreme Court) makes clear that use of recording cameras which capture footage containing personal data outwith the orbit of one’s property cannot claim this “purely personal or household activity” exemption (see, in particular the Ryneš case).

Yet the position taken by the authorities in the UK (primarily by the Information Commissioner’s Office (ICO)) largely fails to address the difficult issues arising. Because if the use of dashcams and helmet cams, when they result in the processing of personal data which is not exempt under under the “purely personal and household exemption, is subject to data protection law, then those operating them are, in principle at least, obliged to comply with all the relevant provisions of the UK GDPR, including: compliance with the Article 5 principles; providing Article 13 notices to data subjects; complying with data subject request for access, erasure, etc. (under Articles 15, 17).

But the ICO, whose CCTV guidance deals well with the issues to the extent that domestic CCTV is in issue, implies that use of dashcams etc, except in a work context, is not subject to the UK GDPR. For instance, its FAQs on registering as a data protection fee payer say “the use of the dashcam in or on your vehicle for work purposes will not be considered as ‘domestic’ and therefore not exempt from data protection laws”. It is very difficult to reconcile the ICO’s position here with the case law as exemplified in Ryneš.

And what raises interesting questions for me is the evidential status of this dashcam and helmet cam footage, when used in prosecutions. Although English law has traditionally tended to take the approach that evidence should be admitted where it is relevant, rather than excluding it on the grounds that it has been improperly obtained (the latter being a species of the US “fruit of the poisoned tree” doctrine), it is surely better for a court not to be faced with a situation where evidence may have been obtained in circumstances involving illegality.

If this was a passing issue, perhaps there would not need to be too much concern. However, it is clear that use of mobile video recording devices (and use of footage in criminal, and indeed civil, proceedings) is increasing and will continue to do so, at the same time as access to such devices, and the possibility for their covert or surreptitious use, also increases. It is, no doubt, a tremendously tricky area to regulate, or event to contemplate regulating, but that is no reason for the ICO to duck the issue.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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December 4, 2019 · 4:42 pm

First prosecution under DPA 2018?

The Information Commissioner has successfully prosecuted a former Social Services Support Officer at Dorset County Council for an offence under section 170 of the Data Protection Act 2018 – I think that this is the first such prosecution under the 2018 Act. Section 170 is in broadly similar terms to section 55 of the Data Protection Act 1998, under which any number of prosecutions were brought for unlawfully obtaining (etc) personal data without the consent of the controller.

Just as the 1998 Act did, the 2018 Act reserves such prosecutions to the Commissioner (except that they may also be brought by or with the consent of the Director of Public Prosecutions – see s197 of the 2018 Act).

What we have not yet seen is a prosecution of the “new” offence at section 170(1)(c) of retaining personal data (after obtaining it) without the consent of the person who was the controller when it was obtained. This is a most interesting provision – I have wondered whether the mischief it aims to address is that which arises when someone inadvertently obtains personal data (perhaps as a result of a mistake by the controller) but then refuses to hand it back. This is not an infrequent occurrence, and powers at civil law to address the issue are potentially complex and expensive to exercise. It will be interesting to see whether prosecutions in this regard emerge in due course.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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September 9, 2014 · 5:19 pm

You can’t take it with you

A paralegal has been convicted for taking client data with him when he left his role. Douglas Carswell MP denies taking Tory Party data, but what of his civil obligations with the data he has retained?

I blogged recently about the data protection implications of the news that Douglas Carswell MP was resigning his seat and seeking re-election as a UKIP MP. I mused on the fact that UKIP were reported to be “purring” over the data he was bringing with him, and I questioned whether, if this was personal data of constituents, his processing was compliant with his obligations under the Data Protection Act 1998. Paul Bernal blogged as well, and Paul was quoted in a subsequent article in The Times (which now seems to have been moved, or removed), in which Carswell defended himself against allegations of illegality

“Any data that the Conservative Party gathered while I was a member of the Conservative party is, was and must remain the property of the Conservative party.” He said that the suggestion that he had taken such information was “desperate briefing from within the Tory machine” and was extremely regrettable. The former MP did say, however, that he planned to use his own private data gathered during nine years as a Conservative MP. He insisted that he would not be sharing this with UKIP

With respect to Mr Carswell, this still doesn’t convince me that no data protection concerns exist. If by his “own private data”, he means information about constituents which is their personal data, then I would still argue that such use could potentially be in contravention of his civil obligations under the first and second principles in Schedule One to the Data Protection Act 1998. As I said previously

If constituents have given Carswell their details on the basis that it would be processed as part of his constituency work as a Conservative MP they might rightly be aggrieved if that personal data were then used by him in pursuit of his campaign as a UKIP candidate

Even if he didn’t share such data with UKIP, data protection obligations would clearly be engaged.

It seems to me that his quote to The Times was perhaps to refute any possible allegations that his use of data was criminal. A recent prosecution by the Information Commissioner’s Office (ICO) illustrates how taking personal data from one job, or one role, to another, without the consent of the data controller, can be a criminal offence. The offender was a paralegal at a Yorkshire solicitor’s practice who, before he left the firm, emailed himself (presumably to a private address) information, in the form of workload lists, file notes and template documents. However, the information also contained the personal data of over 100 clients of the firm. Accordingly, he was convicted of the offence at section 55 of the DPA, of (in terms) unlawfully obtaining personal data without the consent of the data controller. The fine was, as they tend to be for section 55 offences, small – £300, plus a £30 victim surcharge and £438.63 prosecution costs – but the offender’s future job prospects in the legal sector might be adversely affected.

The ICO’s Head of Enforcement Steve Eckersley is quoted, and though he talks in terms of “employees”, his words might well be equally applicable to people leaving elected posts

Employees may think work related documents that they have produced or worked on belong to them and so they are entitled to take them when they leave. But if they include people’s details, then taking them without permission is breaking the law

Mr Carswell was wise not to retain data for which the Conservative Party was data controller. But I’m still not sure about the (non-criminal) implications of his use of data for which he is data controller.

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