Bearing a Burden: Prosecuting under the DPA

A rare foray into the Criminal Division of the Court of Appeal for the Data Protection Act 1998 recently, as the Court considered the nature of the reverse burden imposed by the section 55 offence in Shepherd v Information Commissioner [2019] EWCA Crim 2. In short, Jay J held that section 55, properly construed, imposed only an evidential burden on a defendant rather than a legal burden.He reached that view – which aligned with the usual criminal law scepticism of legal reverse burdens – having commented that the form of section 55 appeared unique, and that the terms of section 55(2) did not form a defence, but were rather conditions to the offence being made out if raised by the defendant. Mens rea still had to be proved, but the points raised in section 55(2) were objective ones unconcerned with the subjective state of mind of the defendant. Two of the matters in section 55(2) were purely objective; two involved consideration of reasonable belief. Parliament was to be taken to have intended an evidential burden only. The conviction was overturned.

Interestingly, the Court noted that the directions given by the Judge were based on ones formulated in July 2017 on the assumption that there was a reverse legal burden. There may be other section 55 convictions which require re-examination as a result of this judgment.

The Court also commented in passing on the materially different terms of section 170 of the DPA 2018, which is the successor to section 55. There, the Court agreed that Parliament clearly had imposed a legal reverse burden on the defendant, although it refrained from commenting on whether such a provision was consistent with Article 6 ECHR.

Christopher Knight