In Byrne v DPP (2010) 1 EHC 382 the Irish High Court held that it was not part of the function of the DPP to surf the internet in order to find and deal with any information on an accused facing a criminal trial. The material on the applicant did not suggest he was guilty of the crime with which he was charged and there was no risk of an unfair trial.  His application that the DPP should seek out and have removed information on him published on the internet was refused. 

The applicant is a former Securicor employee, facing charges in connection with the extortion of money from a Securicor employee through the kidnapping of his family in March 2005. In April 2009, a jury was empanelled to try the applicant along with others.  There was a lot of media coverage of the crime and the subsequent trial.  In May, the trial judge had his attention drawn to material on newspaper websites relating to the bail hearings concerning some of the accused men, and he ordered this material to be removed.  However, the Judge said that it was not the duty of the DPP to sweep the internet and engage in correspondence with local and foreign internet service providers with a view to cleansing cyberspace of any potential reference to an accused person.  Judges should warn jurors that they should not surf the internet in relation to any participant in a case.

James Goudie QC

The Data Retention Directive (Directive 2006/24/EC) requires public electronic communications providers (telephone companies, mobile telecoms, Internet service providers) to retain traffic, location and subscriber data for the purpose of the investigation, detection and prosecution of serious crime. The Directive has been undergoing an evaluation process that seeks to assess its application by Member States, and its impact on businesses and consumers. The aim is also to establish whether the Directive is proportionate in relation to the law enforcement benefits it yields, the costs for the market, and the impact on fundamental rights, in particular the rights to privacy and the protection of personal data.

The Commission held a Conference on the Directive in Brussels on 3 December 2010.  Cecilia Malmström, the Member of the Commission responsible for Home Affairs, made four points: (1) the retention of data is useful for fighting crime; (2) the Directive is implemented in different ways in the Member States, especially as regards retention periods; (3) clearer rules are needed, including in relation to compensation for costs; and (4) there is no evidence of serious abuse.

At the Conference Peter Hustinx, the European Data Protection Supervisor (EDPS), strongly argued in favour of seizing the opportunity of the ongoing evaluation process to demonstrate the necessity and justification for the Directive. The EDPS emphasised once again that the retention of traffic and location data of all persons in the EU, whenever they use the telephone or the Internet, is a huge interference with the right to privacy of all citizens. As such, the EDPS regards the Directive as the most privacy invasive instrument ever adopted by the EU in terms of scale and the number of people it affects. Such a massive invasion of privacy needs profound justification. The EDPS therefore called on the Commission to use the evaluation exercise to prove the necessity for the Directive and its proportionality. The EDPS further insisted on the fact that the Directive clearly failed to harmonise national legislation. Significant discrepancies between the implementing laws of the EU Member States have led to legal uncertainty for citizens. It has also resulted in a situation where the use of the retained data is not strictly limited to the combat of really serious crimes. According to the EDPS, a new or modified EU instrument on data retention should be clear about its scope and create legal certainty for citizens. This means that it should also regulate the possibilities for access and further use by law enforcement authorities and leave no room for the Member States to use the data for additional purposes.

James Goudie QC

EU Justice Ministers have approved the start of talks between the EU and the US on a personal data protection agreement when cooperating to fight terrorism or crime. The stated aim is to ensure a high level of protection of personal information like passenger data or financial information that is transferred as part of transatlantic cooperation in criminal matters. Once in place, the agreement would enhance citizens’ right to access, rectify or delete data when it is processed with the aim to prevent, investigate, detect or prosecute criminal offences, including terrorism. Vice-President Viviane Reding, the EU’s Justice Commissioner, said: “Today’s decision gives us the green light to negotiate a solid and coherent agreement with the United States which balances enforceable rights for individuals with the strong cooperation we need to prevent terrorism and organised crime. I look forward to meeting my US counterparts in Washington next week to kick start these important negotiations.” The EU and US have different approaches in protecting personal data, leading to some controversy in the past when negotiating information exchange agreements (such as the Terrorist Finance Tracking Programme or Passenger Name Records). The purpose of the negotiations is also to address and overcome these differences.  The mandate aims to achieve an agreement which provides for a coherent and harmonised set of data protection standards including essential principles such as proportionality, data minimisation, minimal retention periods and purpose limitation; contains all the necessary data protection standards in line with the EU’s existing data protection rules, such as enforceable rights of individuals, administrative and judicial redress or a non-discrimination clause; and ensures the effective application of data protection standards and their control by independent public authorities.

The agreement would not provide the legal basis for any specific transfers of personal data between the EU and the US. A specific legal basis for such data transfers would always be required. The new EU-US data protection agreement would then apply to these data transfers.

James Goudie QC

EU Justice Ministers have agreed on a “Letter of Rights” proposed by the Commission.  Once voted upon by the European Parliament, this will provide that suspects will have to be informed in writing of their rights in a language they understand.  Anyone arrested, or the subject of a European Arrest Warrant, will have to be given, whether they ask for it or not, and translated if necessary, the Letter of Rights, listing their basic rights, in simple, everyday language, ie their rights to a lawyer, to be informed of the charge, to interpretation and translation, and to be brought promptly before a Court following arrest, and giving practical details. The Lisbon Treaty enables the EU to adopt measures to strengthen the rights of EU citizens, in line with the EU Charter of Fundamental Rights, particularly the rights of individuals in criminal procedures. The right to a fair trial and defence are set out in Articles 47 and 48 of the EU Charter of Fundamental Rights; as well as in Article 6 of the ECHR.

James Goudie QC

The Police Reform and Social Responsibility Bill (the Bill), introduced in the House of Commons on 30 November 2010, is replete with requirements for the provision of information.  The Bill is primarily, but by no means exclusively, concerned with police reform.  Part 1 of the Bill contains provisions to abolish police authorities (excluding the City of London) and replace them with directly elected Police and Crime Commissioners for each police force outside London, and the Mayor’s Office for Policing and Crime for the Metropolitan Police.  Police and Crime Commissioners will be responsible for holding the chief constable of their police force to account for the full range of their responsibilities. The chief constable will retain responsibility for the direction and control of the police force. Part 1also contains provisions for establishing Police and Crime Panels for each police area. The role of the Police and Crime Panel will be to advise and scrutinise the work of the police and crime commissioner.

Part 1 states the basic duties of a police and crime commissioner. These include publishing a police and crime plan, setting the local police and crime objectives, and setting the local precept and annual force budget (including contingency reserves) in discussion with the chief constable. Provisions are also included in Part 1 for police and crime commissioners to appoint, suspend and dismiss the chief constable of their police force. The appointment of all other officers will remain a matter for the chief constable. Part 1 also contains provisions for the first and subsequent elections of police and crime commissioners.  Police and crime commissioners will hold office for four years and can only hold office for a maximum of two terms. The two terms need not be consecutive.

Clause 11 of the Bill imposes obligations on a police and crime commissioner and the Mayor’s Office for Policing and Crime in relation to the publication of information. Subsections (1) and (6) allow the Secretary of State to specify by order information which a police and crime commissioner and the Mayor’s Office for Policing and Crime must publish, and also to specify the time and manner of publication. It is anticipated that this power will be used to ensure the publication of standard information as to numbers of staff and the rates of their pay, items of expenditure above a specified monetary limit, and any gifts or loans received. Subsection (2) requires a police and crime commissioner and the Mayor’s Office for Policing and Crime to publish such further information as is necessary to allow local people to assess the performance of the body itself and also that of the chief officer of police for the police area (either the chief constable or, in the metropolitan police district, the Commissioner).

Clause 12 requires a police and crime commissioner and the Mayor’s Office for Policing and Crime to produce an annual report.  Subsection (1) requires an annual report to show, in respect of the financial year in question, how the police and crime commissioner or the Mayor’s Office for Policing and Crime has carried out his functions and the progress made in meeting the objectives in the police and crime plan. Subsections (2) to (5) make provision for the police and crime panel to scrutinise the annual report. Subsections (6) and (7) require a police and crime commissioner and the Mayor’s Office for Policing and Crime to publish each annual report in such manner as he thinks fit. Subsection (8) allows a police and crime commissioner and the Mayor’s Office for Policing and Crime to produce reports other than the annual report.

Clause 13 allows a police and crime panel to require its police and crime commissioner or (in the case of the metropolitan police district, the Mayor’s Office for Policing and Crime) to provide it with information.  Subsection (1) requires a police and crime commissioner or the Mayor’s Office for Policing and Crime to provide the police and crime panel with any information they reasonably require in order to carry out their duties. Subsection (2) excludes from the requirement under subsection (1) information which, in the view of the chief constable it would be harmful to disclose for various reasons set out in the subsection. This does not prevent the disclosure of the information to the police and crime panel; it means that the police and crime commissioner or the Mayor’s Office for Policing and Crime is not required to disclose it.

Clause 88 makes the chief inspector of constabulary (and thus the inspectors) subject to the duties under the Freedom of Information Act 2000 to confirm that requested information is held, and to provide it.

James Goudie QC

In KJH v HGF [2010] EWHC 3064 (QB) Sharp J held that it was appropriate to continue an interim injunction and grant anonymity to protect the victim of blackmail which involved the threat of the revelation of stolen private and confidential information.  The evidence established to a high degree of probability that H was the victim of blackmail involving the threat of the revelation of stolen private and confidential information.  H was therefore likely to establish at trial that publication of the information should not be allowed.  There had also been no waiver of H’s privacy rights and there was no public interest justification for the publication of the information. The privacy interests engaged and the claim in breach of confidence were strong.  There was also a continuing risk that the private and confidential information stolen from H would be made public.  Strong public policy considerations which justified the protection of the identity of victims of blackmail arose in criminal and civil proceedings: such persons should not be deterred from seeking the courts’ protection for fear that the information which the blackmailer had threatened to reveal would be exposed or that their identity as the victim of blackmail would be made known.  A final determination of the matter had to await trial, granting anonymity at the interim stage served the interest of such an applicant in protecting his or her rights under ECHR Art 8 and the public interest in promoting the prevention and punishment of blackmail.  As a result it had also been necessary to derogate from the principle of open justice by holding the hearing in private and to anonymise the names of H and F.

James Goudie QC