Category Archives: Rehabilitation of offenders

July 15, 2013 · 5:18 pm

Mere assertions are not enough, my lord

In which I take on the President of the Queen’s Bench Division (over a meaningless throwaway assertion)

The law does not like mere assertions. Evidence is normally sought, or pleaded, upon which to base an assertion. So, when describing the taking and retention of handwritten notes by its member, the Parole Board apparently says, in something called the Parole Board Handbook (which I can’t find online anywhere)

Personal notes held by members in handwritten from in notebooks and retained by them do not constitute personal data as defined in the [Data Protection Act] and will not be subject to it or the Freedom of Information Act.

one is tempted to ask “why not?”

The temptation only increases when the President of the Queen’s Bench Division, who quotes the above handbook, in a judicial review case about the taking of and making available a record of the Parole Board’s proceedings, says

…notes taken by the chair for his or her own use or notes made by a judge or chair where there is an audio or visual recording of the proceedings…do not constitute the record. Nor do they constitute personal data

[emphasis added]

I am not concerned with the judge’s first assertion, which is supported by citation of previous authority, but with his second. Why do handwritten notes, taken by a member of the Parole Board, not constitute personal data?

At this point we need to navigate our way through section 1(1) of the Data Protection Act 1998 (DPA) which defines what personal data means. And before we consider what “personal data” means, we have to know what “data” means:

“data” means information which—

(a) is being processed by means of equipment operating automatically in response to instructions given for that purpose,

(b) is recorded with the intention that it should be processed by means of such equipment,

(c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system,

(d) does not fall within paragraph (a), (b) or (c) but forms part of an accessible record as defined by section 68; or

(e) is recorded information held by a public authority and does not fall within any of paragraphs (a) to (d)

It seems to me that handwritten notes of a Parole Board member are not being processed, and not intended to be so processed, by means of “equipment operating automatically etc”, so (a) and (b) are out. Nor, I am willing to assume, are they recorded (or intended to be recorded) as part of a filing system, so (c) is out. Nor are they a health, education or publicly accessible record as defined by section 68, so out goes (d).

However, we then come to (e). The notes are recorded information. And the question as to whether they are held by a public authority is answered by reference to Schedule One of the Freedom of Information Act 2000 (FOIA) (because, as the DPA says, “‘public authority’ means a public authority as defined by the Freedom of Information Act 2000″). And there, nestling comfortably in part VI of Schedule One (the list of public authorities) are the words “The Parole Board”.

So, a Parole Board member’s handwritten notes of a hearing are, I submit, “data” for the purposes of section 1(1)(e) of the DPA. And as a hearing of the Parole Board is convened to consider a person’s liberty, or lack thereof, the notes are certainly going to be “data which relate to a living individual who can be identified…from those data”.

Bingo! The notes are, despite what the learned judge, and the Parole Board themselves (apparently) say, “personal data”. If I’m right, they are subject to the DPA (which is not of course to say that there might not be exemptions to disclosure). Moreover, as the board members in a very real sense are the Parole Board, I find it difficult to see how the notes are also not information held by a public authority for the purposes of FOIA (again, which is not to say that there might not be very obvious exemptions to disclosure under FOIA).

In the case itself, the Chairman’s notes from the applicant’s hearing turned out to have been destroyed, in line with a policy of destruction after nine months. (In a rather obvious indication that at least some people applying their minds to the subject thought that DPA was engaged, the reason for this was given as that Parole Board felt “there was an obligation under Data Protection legislation not to keep personal data longer than was necessary”). The court declined to grant an order, because the Parole Board had already begun a review of its retention and disposal policy prior to the instant hearing, but it did declare that the policy of destruction after nine months could not be lawful.

I hope I’m never in a position of having been a prisoner at an unsuccesful Parole Board hearing, but in the unlikely event that I am, I will make a subject access request under section 7 of the DPA, because I will argue that the members’ handwritten notes are my personal data, to which I am entitled.

p.s.

I’ve wondered if I’m missing something here. I would honestly be very pleased to be corrected if so.

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Filed under Data Protection, Freedom of Information, Rehabilitation of offenders

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February 21, 2013 · 12:59 pm

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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Filed under Confidentiality, court lists, Data Protection, Open Justice, Privacy, Rehabilitation of offenders

February 7, 2013 · 9:36 am

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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Filed under Breach Notification, court lists, Data Protection, Open Justice, Rehabilitation of offenders