Category Archives: Open Justice

FOIA’s not the only route

News emerges of a potential judicial review attempt to force disclosure of government Brexit papers not under FOI but under common law and human rights to information

More than three years ago the Supreme Court handed down judgment in a long-running piece of litigation under the Freedom of Information Act 2000 (FOIA). Journalist Dominic Kennedy had attempted to get disclosure from the Charity Commission of information relating to inquiries into George Galloway’s “Mariam Appeal”. The Commission said, in effect, that the absolute exemption to disclosure at section 32(2) of FOIA was the end of the story, while Kennedy argued that Article 10 of the European Convention on Human Rights imposed a positive obligation of disclosure on public authorities, particularly when the requester was a “public watchdog” like the press, and that s32(2) should be read down accordingly to require disclosure in the circumstances (I paraphrase). In his leading opinion Lord Mance gave this stirring introduction:

Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend upon it; likewise the press, NGOs and individuals concerned to report on issues of public interest. Unwillingness to disclose information may arise through habits of secrecy or reasons of self-protection. But information can be genuinely private, confidential or sensitive, and these interests merit respect in their own right and, in the case of those who depend on information to fulfil their functions, because this may not otherwise be forthcoming. These competing considerations, and the balance between them, lie behind the issues on this appeal.

What was most interesting about the judgment in Kennedy, and, again, I disrespectfully heavily paraphrase, was that the Supreme Court basically said (as it has been wont to do in recent years) – “why harp on about your rights at European law, don’t you realise that our dear old domestic friend the common law gives you similar rights?”

the route by which [Mr Kennedy] may, after an appropriate balancing exercise, be entitled to disclosure, is not under or by virtue of some process of remodelling of section 32, but is under the Charities Act construed in the light of common law principles and/or in the light of article 10 of the Human Rights Convention, if and so far as that article may be engaged

This greatly excited those in the information rights field at the time, but since then, there has been little of prominence to advance the proposition that FOIA rights are not the only route [Ed. there’s a great/awful pun in there somewhere] but it did get a positive airing in R (Privacy International) v HMRC [2014] EWHC 1475 (Admin) (on which see Panopticon post here).

Yesterday (12 October) barrister Jolyon Maugham announced that his Good Law Project was seeking donors towards a judicial review application if the government refused to publish information and reports comparing the predicted economic harm of Brexit with the predicted economic benefits of alternative free trade agreements. Keen followers of information rights litigation will note that Tim Pitt-Payne  and Robin Hopkins are instructed: the potential respondents should quake in their boots.

Well worth watching this, and well worth – in my opinion – donating towards the cause.

The views in this post (and indeed all 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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FOI, data protection and rogue landlords 

On 23rd July the Chartered Institute of Environmental Health (CIEH), in conjunction with the Guardian, published a database of landlords who have been convicted of offences under the Housing Act 2004. This showed, for example, that one landlord has been prosecuted seven times for issues relating to disrepair and poor state of properties rented out. It also showed apparent regional discrepancies regarding prosecutions, with some councils carrying out only one prosecution since 2006.

This public interest investigative journalism was, however not achieved without a fight: in September last year the information Commissioners office (ICO) issued a decision notice finding that the journalists request for this information had been correctly refused by the Ministry of Justice on the grounds that the information was sensitive personal data and disclosure under the Freedom of Information Act 2000 (FOIA) would contravene the MoJ’s obligations under the Data Protection Act 1998 (DPA). Section 40(2) of FOIA provides that information is exempt from disclosure under FOIA if disclosure would contravene any of the data protection principles in Schedule One of the DPA (it also provides that it would be exempt if disclosure would contravene section 10 of the DPA, but this is rarely invoked). The key data protection principle is the first, which says that personal data must be processed fairly and lawfully, and in particular that the processing must meet one of the conditions in Schedule Two, and also – for sensitive personal data – one of the conditions in Schedule Three.

The ICO, in its decision notice, after correctly determining that information about identifiable individuals (as opposed to companies) within the scope of the request was sensitive personal data (because it was about offences committed by those individuals) did not accept the requester’s submission that a Schedule Three condition existed which permitted disclosure. The only ones which could potentially apply – condition 1 (explicit consent) or condition 5 (information already made public by the individual) – were not engaged.

However, the ICO did not at the time consider the secondary legislation made under condition 10: the Data Protection (Processing of Sensitive Personal Data) Order 2000 provides further bases for processing of sensitive personal data, and, as the the First-tier Tribunal (Information Rights) (FTT) accepted upon appeal by the applicant, part 3 of the Schedule to that Order permits processing where the processing is “in the substantial public interest”, is in connection with “the commission by any person of any unlawful act” and is for journalistic purposes and is done with a “view to the publication of those data by any person and the data controller reasonably believes that such publication would be in the public interest”. In fairness to the ICO, this further condition was identified by them in their response to the appeal.

In this case, the information was clearly sought with a view to the future publication in the CIEH’s Magazine, “Environmental Health News” and the requester was the digital editor of the latter. This, the FTT decided, taken with the (objective) substantial public interest in the publication of the information, was sufficient to make disclosure under FOIA fair and lawful. In a passage (paras 28-30) worth quoting in full the FTT said

Unfit housing is a matter of major public concern and has a significant impact on the health of tenants.  The Housing Act is a key mechanism for local authorities to improve housing standards and protect the health of vulnerable tenants.  One mechanism for doing this is by means of prosecution, another is licensing schemes for landlords.  Local authorities place vulnerable families in accommodation outside their areas tenants seek accommodation, The publication of information about convictions under the Housing Act would be of considerable value to local authorities in discharge of their functions and assist prospective tenants and those assisting them in avoiding landlords with a history of breaches of the Housing Act.

The sanctions under the Housing Act are comparatively small and the  opprobrium of a conviction may well not rank with other forms of criminal misbehaviour, however the potential for harm to others from such activity is very great, the potential for financial benefit from the misbehaviour is also substantial.  Breaches of the Housing Act are economically motivated and what is proposed is a method of advancing the policy objective of the Housing Act by increasing the availability of relevant information to key actors in the rented housing market – the local authorities as regulator and purchaser and the tenants themselves.  Any impact on the data subjects will overwhelmingly be on their commercial reputations rather than more personal matters.

The Tribunal is therefore satisfied that not only is the disclosure of this information in the substantial public interest, but also any reasonably informed data controller with  knowledge of the social needs and the impact of such disclosure would so conclude.

It is relatively rare that sensitive personal data will be disclosed, or ordered to be disclosed, under FOIA, but it is well worth remembering the 2000 Order, particularly when it comes to publication or proposed publication of such data under public interest journalism.

The views in this post (and indeed all 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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Naming and shaming the innocent

Around this time last year I wrote two blog posts about two separate police forces’ decision to tweet the names of drivers charged (but not – yet, at least – convicted) of drink driving offences. In the latter example Staffordshire police were actually using a hashtag #drinkdriversnamedontwitter, and I argued that

If someone has merely been charged with an offence, it is contrary to the ancient and fundamental presumption of innocence to shame them for that fact. Indeed, I struggle to understand how it doesn’t constitute contempt of court to do so, or to suggest that someone who has not been convicted of drink-driving is a drink driver. Being charged with an offence does not inevitably lead to conviction. I haven’t been able to find statistics relating to drink-driving acquittals, but in 2010 16% of all defendants dealt with by magistrates’ courts were either acquitted or not proceeded against

The Information Commissioner’s Office investigated whether there had been a breach of the first principle of Schedule One of the Data Protection Act 1998 (DPA), which requires that processing of personal data be “fair and lawful”, but decided to take no action after Staffs police agreed not to use the hashtag again, saying

Our concern was that naming people who have only been charged alongside the label ‘drink-driver’ strongly implies a presumption of guilt for the offence. We have received reassurances from Staffordshire Police the hashtag will no longer be used in this way and are happy with the procedures they have in place. As a result, we will be taking no further action.

But my first blog post had raised questions about whether the mere naming of those charged was in accordance with the same DPA principle. Newspaper articles talked of naming and “shaming”, but where is the shame in being charged with an offence? I wondered why Sussex police didn’t correct those newspapers who attributed the phrase to them.

And this year, Sussex police, as well as neighbouring Surrey, and Somerset and Avon are doing the same thing: naming drivers charged with drink driving offences on twitter or elsewhere online. The media happily describe this as a “naming and shaming” tactic, and I have not seen the police disabusing them, although Sussex police did at least enter into a dialogue with me and others on twitter, in which they assured us that their actions were in pursuit of open justice, and that they were not intending to shame people. However, this doesn’t appear to tally with the understanding of the Sussex Police and Crime Commissioner who said earlier this year

I am keen to find out if the naming and shaming tactic that Sussex Police has adopted is actually working

But I also continue to question whether the practice is in accordance with police forces’ obligations under the DPA. Information relating to the commission or alleged commission by a person of an offence is that person’s sensitive personal data, and for processing to be fair and lawful a condition in both of Schedule Two and, particularly, Schedule Three must be met. And I struggle to see which Schedule Three condition applies – the closest is probably

The processing is necessary…for the administration of justice
But “necessary”, in the DPA, imports a proportionality test of the kind required by human rights jurisprudence. The High Court, in the MPs’ expenses case cited the European Court of Human Rights, in The Sunday Times v United Kingdom (1979) 2 EHRR 245  to the effect that

while the adjective “necessary”, within the meaning of article 10(2) [of the European Convention on Human Rights] is not synonymous with “indispensable”, neither has it the flexibility of such expressions as “admissible”, “ordinary”, “useful”, “reasonable” or “desirable” and that it implies the existence of a “pressing social need.”
and went on to hold, therefore that “necessary” in the DPA

should reflect the meaning attributed to it by the European Court of Human Rights when justifying an interference with a recognised right, namely that there should be a pressing social need and that the interference was both proportionate as to means and fairly balanced as to ends
So is there a pressing social need to interfere with the rights of people charged with (and not convicted of) an offence, in circumstances where the media and others portray the charge as a source of shame? Is it proportionate and fairly balanced to do so? One consideration might be whether the same police forces name all people charged with an offence. If the intent is to promote open justice, then it is difficult to see why one charging decision should merit online naming, and others not.But is the intent really to promote open justice? Or is it to dissuade others from drink-driving? Supt Richard Corrigan of Avon and Somerset police says

This is another tool in our campaign to stop people driving while under the influence of drink or drugs. If just one person is persuaded not to take to the road as a result, then it is worthwhile as far as we are concerned.

and Sussex police’s Chief Inspector Natalie Moloney says

I hope identifying all those who are to appear in court because of drink or drug driving will act as a deterrent and make Sussex safer for all road users

which firstly fails to use the word “alleged” before “drink or drug driving”, and secondly – as Supt Corrigan – suggests the purpose of naming is not to promote open justice, but rather to deter drink drivers.

Deterring drink driving is certainly a worthy public aim (and I stress that I have no sympathy whatsoever with those convicted of such offences) but should the sensitive personal data of who have not been convicted of any offence be used to their detriment in pursuance of that aim?

I worry that unless such naming practices are scrutinised, and challenged when they are unlawful and unfair, the practice will spread, and social “shame” will be encouraged to be visited on the innocent. I hope the Information Commissioner investigates.

The views in this post (and indeed all 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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Leveson, LJ – defender of the press

Lord Justice Leveson, new President of the Queen’s Bench Division, is not the most popular judge amongst journalists and press barons.

So, in the week before the Privy Council meets to decide which system of press regulation will prevail, his detractors might take a moment to read a recent judgment of his in the Court of Appeal (Jolleys, R. v [2013] EWCA Crim 1135).

The appeal, by the Press Association, represented by the formidable Mike Dodd, was from a decision of a Recorder in Swindon Crown Court, purporting to have been made under section 39 of the Children and Young Persons Act 1933 preventing media reporting of information relating to the youngest (15-year-old) child of the defendant in the case (despite the fact that some of the information had been in the public domain prior to the making of the order). It was said that the court specifically prevented a reporter present from making representations prior to its making:

the order was put into place until it would be “properly argued” by counsel and “by somebody from the press if need be” [para 4]

This was, as Leveson LJ identified, in breach of rule 16 of the Criminal Procedure Rules, which provides that the court must not impose a rerporting restriction “unless each party and any other person affected…is present; or has had an opportunity (i) to attend, or (ii) to make representations”:

It cannot be suggested that the press were not affected by the order; indeed, it was specifically to restrict what could be reported that the order was made. This failure to allow representations at that stage represented a serious inroad into the respect owed to the press concerned to report criminal proceedings. [para 6]

Section 39 of the Children and Young Persons Act 1933 provides that

In relation to any proceedings in any court the court may direct that –

a. no newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either, as being the person by or against, or in respect of whom proceedings are taken, or as being a witness therein;

b. no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;

except in so far (if at all) as may be permitted by the court.

And the Press Association successfully argued that “concerned in the proceedings” in section 39(a) could not be extended to a child who was merely the son of a defendant, but otherwise unconnected:

In relation to criminal proceedings, this can only include a child or young person who is the victim of an alleged offence, or the defendant or a witness; in civil proceedings, it could also include a child or young person on behalf of whom an action was being brought, for example, in relation to a road traffic accident or medical negligence. [para 12]

and this was supported by the unanimous view of the House of Lords in Re S (A Child) (Identification: Restrictions on Publication) [2005] AC 593  and the Court of Appeal in Re Trinity Mirror and others (A and another intervening) [2008] EWCA Crim 50 in which latter case the court had also rejected the proposition that a court’s inherent jurisdiction justified the making of an order to similar effect on Article 8 grounds

We must however add that we respectfully disagree with the judge’s further conclusion that the proper balance between the rights of these children under Article 8 and the freedom of the media and public under article 10 should be resolved in favour of the interests of the children. In our judgment, it is impossible to over emphasise the importance to be attached to the ability of the media to report criminal trials…If the court were to uphold this ruling so as to protect the rights of the defendant’s children under article 8, it would be countenancing a substantial erosion of the principle of open justice to the overwhelming disadvantage of public confidence in the criminal justice system, the free reporting of criminal trials and the proper identification of those convicted and sentenced in them [paras 32 and 33 of Re Trinity Mirror and others]

Leveson LJ identified other problems with the Recorder’s approach

he [also] approached the issue from the wrong direction. It was for anyone seeking to derogate from open justice to justify that derogation by clear and cogent evidence…The order was made when defence counsel asserted the likelihood of the defendant’s son suffering “the most extraordinary stigma through no fault of his own” which caused the Recorder to ask the reporter what the need for identifying the son was, rather than whether it was necessary to restrict his identification. [para 16]

and the point was made that a section 39 order, although generally obeyed in spirit as well as letter by the press, may not be the most appropriate form of order, applying as it does only to reports in newspapers, and in sound and television broadcasts: social media are not caught by it (“any further developments in this area of the law must be for Parliament”). This purported order had been “loosely” made, and Leveson LJ stressed that

Where such orders are made, they should be restricted to the language of the legislation

Mike Dodd had stated that the problems identified by this case were not uncommon, and the appeal was brought to

highlight what he contends is a continuing problem for journalists and the media, namely the willingness of courts to make unnecessary orders or to assume powers that they do not have. He submits that the courts all too often seem unaware of the guidance that is available and leave it to individual reporters (who will not be as versed in the law as the court, with the assistance of counsel, should be) to attempt to challenge the approach.

This concern was recognised

The requirements of open justice demand that judges are fully mindful of the underlying principles which this judgment has sought to elucidate

and Leveson LJ calls for – in those cases where “there is the slightest doubt, or any novel approach is suggested” regarding the appropriateness of a section 39 order being made – notice to be given in good time but also (without prejudice to the right of the press to advance its own arguments) for counsel “to research and develop the arguments to assist the court in a balanced way”.

Who said Leveson was an enemy of the press?

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We still have judgment here

Mr Justice Tugendhat makes very interesting observations about reserved judgments and open justice,  in a judgment on whether a defendant is in breach of prior undertakings relating to tawdry publications about the parents of Madeline McCann:

The decision not to identify in a reserved judgment a fact or person that has been identified in open court is not a reporting restriction, nor any other derogation from open justice. The hearing of this committal application was in public in the usual way. The decision not to set out everything in a judgment is simply a decision as to how the judge chooses to frame the judgment (¶86)

I have previously written about discussions taking place about the privacy and data protection implications of electronic publication of lists from magistrates’ courts, and I also wrote a thesis (NEVER to see the light of day thank you very much) which attempted in part to deal with the difficulties of anonymisation in court documents. These seem to me to be very urgent, and tremendously difficult, considerations for the subject of open justice in the digital era (the title of the initiative, led by Judith Townend, to “make recommendations for the way judicial information and legal data are communicated in a digital era”).

The judgment continues with Tugendhat J observing that, in previous cases where he has referred to parties by initials in reserved judgments this has sometimes been misinterpreted as his having made an anonymity order. Not true: the proceedings themselves were in open court, but

what happens in court, if not reported at the time, may be ephemeral, and may soon be forgotten and become difficult to recover, whereas a reserved judgment may appear in law reports, or on the internet, indefinitely (¶87)

This is a crucial point. My concern has always been about the permanence of information published on the internet, and the potential for it to be used, and abused, in ways and under jurisdictions, which would make a mockery of, for instance, the Rehabilitation of Offenders Act 1974, and the Data Protection Act 1998.

I haven’t noted the judge’s comments for any particular reason, other than I think they helpfully illustrate some important points, and might provoke some discussion.

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Courts, Contempt and Data Protection

Can it be possible for HM Courts and Tribunals Service – who have responsibility for publishing court lists – to publish those same lists in an unlawful way?

Richard Taylor, a blogger and mySociety volunteer uploaded an intriguing blog post recently. Entitled Cambridge Magistrates Court Lists Obtained via Freedom of Information Request it described Richard’s request to HM Courts and Tribunals Service (HMCTS) for

 …the information which would be expected to appear on the full copy of the court list in relation to appearances, hearings, trials etc. currently scheduled to be held in Cambridge Magistrate’s Court [five specified days]

HMCTS, commendably, in Richard’s words (amazingly, in mine), responded to him within six days. The disclosure was, by any standards, extraordinary. Richard had made the request using the whatdotheyknow.com portal. This service means that any disclosure made by a public authority is by default uploaded to the internet for anyone to see. What was uploaded by HMCTS included

 …the identity of victims of crimes people were being charged with, including a girl under 14 who was named in relation to an indecent assault charge

As Richard points out, the anonymity of victims of alleged sexual offences is protected by law. Section 1 of the Sexual Offences (Amendment) Act 1992 (SO(A)A) provides that

neither the name nor address, and no still or moving picture, of [a victim of an alleged sexual offence] shall during that person’s lifetime…be published in England and Wales in a written publication available to the public

These necessary derogations from the principles of open justice cannot extend to complete anonymity. For obvious reasons, the name of a victim of an alleged sexual offence will need to be before a court in the event of a trial. So, the meaning of a “written publication available to the public” does not include (per s6 SO(A)A)).

an indictment or other document prepared for use in particular legal proceedings

It appears that the lists disclosed to Richard would fall into this category. However disclosure of such a document under FOIA, which is taken to be disclosure to the world at large (and, in the case of whatdotheyknow.com effectively is) would extend its “use” so far beyond those particular legal proceedings that it would undermine the whole intention of section of SO(A)A. It seems that HMCTS recognised this, because they subsequently contacted Richard and confirmed that the information was disclosed in error.

We believe the majority of the information in the Court Lists is exempt from disclosure under Section 32 (Court Records) and Section 40 (Personal Information) of the Freedom of Information Act. We also believe provision and publication of sensitive personal data may also breach The Data Protection Act.

Well, I hate to be a tell-tale, but this seems to be a tacit admission that the disclosure to Richard was an extremely serious breach of the Data Protection Act 1998 (DPA). It was also potentially in breach of SO(A)A and potentially an act of contempt under the Magistrates’ Courts Act 1980 (MCA), section 8(4) of which permits publication only of certain information relating to commital proceedings, before a trial, and the names of alleged victims certainly does not fall under that sub-section. But can a court (or at least, a court service) be in contempt of itself by digitally disclosing (publishing) to the world information which it is required otherwise to disclose publicly?

While distinction should be drawn between a “full” list, such as was inadvertently disclosed to Richard, and “noticeboard” lists, habitually stuck up outside the court room, the points raised by this incident exemplify some crucial considerations for the development of the justice system in a digital era. It seems clear that, even if a court were permitted to  this or similar information, the re-publication by others would infringe one or all of the SO(A)A, DPA and MCA. What this means for the advancement of open justice, the protection of privacy rights and indeed the rehabilitation of offenders is something I hope to try to grapple with in a future post (or posts).

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