Author: Robin Hopkins

RIPA: hacked voicemails and undercover officers

Posted on | by Robin Hopkins

The Regulation of Investigatory Powers Act 2000 (RIPA) has featured prominently in the news in recent weeks, both as regards undercover police officers/“covert human intelligence sources” and as regards the phone-hacking scandal.

Hacked voicemails

This morning, the Court of Appeal gave judgment in Edmonson, Weatherup, Brooks, Coulson & Kuttner v R [2013] EWCA Crim 1026. As is well known, the appellants face charges arising out of the News of the World phone-hacking controversy – specifically, conspiring unlawfully to intercept communications in the course of their transmission without lawful authority contrary to section 1(1) of the Criminal Law Act 1977.

The communications in question are voicemails. Under section 1(1)(b) of RIPA, it is an offence intentionally to intercept, without lawful authority, any communication in the course of its transmission by means of a public telecommunications system (my emphasis). The central provision is section 2(7) of RIPA:

“(7) For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.”

The appellants applied to have the charges dismissed on the grounds that the words “in the course of transmission” in section 1(1) of RIPA do not extend to voicemail messages once they have been listened to (by the intended recipient, that is, rather than by any alleged phone-hacker). They argued that the ordinary meaning of “transmission” is conveyance from one person or place to another and that section 2(7) is intended to extend the concept of “transmission” only so as to cover periods of transient storage that arising through modern phone and email usage, and when the intended recipient is not immediately available. Thus, once the message has been listened to, it can no longer be “in the course of transmission”.

The point had previously been decided against the appellant. The Court of Appeal (the Lord Chief Justice, Lloyd Jones LJ, Openshaw J) took a similar view. While it accepted that the application of section 2(7) may differ as between, for example, voicemails and emails, “there is nothing in the language of the statute to indicate that section 2(7) should be read in such a limited way” (as the appellants had contended) (paragraph 23). Further, the words “has been transmitted” in section 2(7) “make entirely clear that the course of transmission may continue notwithstanding that the voicemail message has already been received and read by the intended recipient” (paragraph 26).

The same conclusion was reached by focusing on the mischief which section 2(7) is intended to remedy, “namely unauthorized access to communications, whether oral or text, whilst they remain on the system by which they were transmitted. As the prosecution submits, unlawful access and intrusion is not somehow less objectionable because the message has been read or listened to by the intended recipient before the unauthorized access takes place” (paragraph 28, quoting an earlier judgment in this matter from Fulford LJ).

The Court accepted that section 2(7) went further than the prohibitions imposed by Directive 97/66/EC concerning the processing of personal data and the protection of privacy in the telecommunications sector (which RIPA sought to implement) and its successor, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (which postdates RIPA).  The Court found, however, that the Directives imposed minimum harmonisation; Parliament was entitled to go further and to set higher standards for the protection of privacy of electronic communications, provided that those additional obligations are compatible with EU law (paragraph 42).

Both the Data Protection Act 1998 and the Computer Misuse Act 1990 also raised their heads. The DPA, for example, contains a public interest defence which is not available under RIPA. It was argued that this risked creation parallel offences without parallel defences, violating the principle of legal certainty. This submission too was rejected (paragraphs 44-45).

The cases will now proceed to trial, apparently to commence in September.

Undercover officers

As regards the activities of undercover police officers, the major issue this week has concerned the alleged smearing of the family and friends of Stephen Lawrence: see for example The Guardian’s Q&A session with undercover-officer-turned-whistleblower Peter Francis.

The other major ongoing case regarding a former undercover officer concerns Mark Kennedy, who (together with others) infiltrated political and environmental activists over a period of years. Claims were commenced in the High Court, with part of the conduct complained of involving ensuing sexual relations between activists/their partners and undercover officers.

Earlier this year, J and others v Commissioner of Police for the Metropolis [2013] EWHC 32 (QB) saw part of the claims struck out. The Court held that the Investigatory Powers Tribunal had exclusive jurisdiction over the claims under the Human Rights Act 1998; it struck out these parts accordingly. It observed that conduct breaching Article 3 (inhuman and degrading treatment) – which included the claims relating to sexual activity – could not be authorised under RIPA, but conduct breaching Article 8 (privacy) could be authorised. Sexual activity with undercover officers did not necessarily engage Article 3.

Those parts of the claims which did not concern the Human Rights Act 1998 (actions at common law and for alleged breaches of statutory duties) were not exclusively within the Investigatory Powers Tribunal’s jurisdiction and were thus not struck out as an abuse of process, notwithstanding the police’s difficulties in presenting its case due to the ‘neither confirm nor deny’ approach to covert sources.

Unlike with the phone-hacking cases, it is not clear when this case will resume before the Court/Tribunal.

Robin Hopkins

New CCTV Code of Practice: surveillance and the protection of freedoms

Posted on | by Robin Hopkins

Surveillance of the covert and digital variety has been dominating the news of late. The legal contours of the practices leaked by Edward Snowden (the NSA’s obtaining of internet metadata) and covered by The Guardian (most recently, GCHQ’s monitoring of certain communications of ‘friendly’ foreign allies) may be matters of some debate.

In the meantime, the legal contours of a more overt and physical variety of surveillance – CCTV – have been somewhat clarified.

Panopticon indeed.

As its name suggests, the Protection of Freedoms Act 2012 expressed the incoming Coalition Government’s commitment to keeping in check the state’s surveillance of ordinary citizens. By that Act (sections 29-36), the Home Secretary was to present to Parliament a Code of Practice governing the use of surveillance camera systems including CCTV and Automatic Number Plate Recognition (ANPR). Following a consultation exercise – the response to which can be read here – the Home Secretary has now done so. The Code was laid before Parliament on 4 June 2013. A draft order (the Protection of Freedoms Act 2012 (Code of Practice for Surveillance Camera Systems and Specification of Relevant Authorities) Order 2013) is currently being considered by Parliament’s Joint Committee on Statutory Instruments.

Pending its coming into force, Panopticon summarises the key features of the new Code.

To whom does the Code apply?

The Code imposes duties on ‘relevant authorities’, which are those listed at section 33(5) of the Protection of Freedoms Act 2012 – in the main, local authorities and policing authorities.

The draft order proposes to add the following to the list of relevant authorities:

(a) The chief constable of the British Transport Police;

(b) The Serious Organised Crime Agency;

(c) The chief constable of the Civil Nuclear Constabulary; and

(d) The chief constable of the Ministry of Defence Police.

The Code recognises that concern about the use of surveillance cameras often extends beyond these sorts of full-blooded ‘public’ authorities. It recognises that the list of relevant authorities may need to be expanded in future to encompass shopping centres, sports grounds, schools, transport centres and the like.

For now, however, only those listed as ‘relevant authorities’ are subject to the duties imposed by the Code. Others who use such surveillance systems are ‘encouraged’ to abide by the Code.

What duty is imposed by the Code?

The Code imposes a ‘have regard to’ duty. In other words, relevant authorities are required to have regard to the Code when exercising any of the functions to which the Code relates. As regards its legal effects:

“A failure on the part of any person to act in accordance with any provision of this code does not of itself make that person liable to criminal or civil proceedings. This code is, however, admissible in evidence in criminal or civil proceedings, and a court or tribunal may take into account a failure by a relevant authority to have regard to the code in determining a question in any such proceedings” (paragraph 1.16).

It may well be that the Code also weighs heavily with the ICO in its consideration of any complaints about the use of surveillance cameras breaching the DPA 1998.

Remember that the Home Office Code sits alongside and does not replace the ICO’s CCTV Code of Practice.

What types of activity are covered by the new Code?

Relevant authorities must have regard to the Code ‘when exercising any of the functions to which the Code relates’. This encompasses the operation and use of and the processing data derived from surveillance camera systems in public places in England and Wales, regardless of whether there is any live viewing or recording of images and associated data.

The Code does not apply to covert surveillance, as defined under the Regulation of Investigatory Powers Act 2000.

What about third party contractors?

Where a relevant authority instructs or authorises a third party to use surveillance cameras, that third party is not under the ‘have regard to’ duty imposed by the Code. That duty does, however, apply to the relevant authority’s arrangements.

By paragraph 1.11:

“The duty to have regard to this code also applies when a relevant authority uses a third party to discharge relevant functions covered by this code and where it enters into partnership arrangements. Contractual provisions agreed after this code comes into effect with such third party service providers or partners must ensure that contractors are obliged by the terms of the contract to have regard to the code when exercising functions to which the code relates.”

The approach

The guiding philosophy of the Code is one of surveillance by consent:

 “The government considers that wherever overt surveillance in public places is in pursuit of a legitimate aim and meets a pressing need, any such surveillance should be characterised as surveillance by consent, and such consent on the part of the community must be informed consent and not assumed by a system operator…. [legitimacy] in the eyes of the public is based upon a general consensus of support that follows from transparency about their powers, demonstrating integrity in exercising those powers and their accountability for doing so” (paragraph 1.5).

In a nutshell, the expectation is this:

“The decision to use any surveillance camera technology must, therefore, be consistent with a legitimate aim and a pressing need. Such a legitimate aim and pressing need must be articulated clearly and documented as the stated purpose for any deployment. The technical design solution for such a deployment should be proportionate to the stated purpose rather than driven by the availability of funding or technological innovation. Decisions over the most appropriate technology should always take into account its potential to meet the stated purpose without unnecessary interference with the right to privacy and family life. Furthermore, any deployment should not continue for longer than necessary” (paragraph 2.4).

The guiding principles

The Code then sets out 12 guiding principles which systems operators should follow:

(1) Use of a surveillance camera system must always be for a specified purpose which is in pursuit of a legitimate aim and necessary to meet an identified pressing need.

(2) The use of a surveillance camera system must take into account its effect on individuals and their privacy, with regular reviews to ensure its use remains justified.

(3) There must be as much transparency in the use of a surveillance camera system as possible, including a published contact point for access to information and complaints.

(4) There must be clear responsibility and accountability for all surveillance camera system activities including images and information collected, held and used.

(5) Clear rules, policies and procedures must be in place before a surveillance camera system is used, and these must be communicated to all who need to comply with them.

(6) No more images and information should be stored than that which is strictly required for the stated purpose of a surveillance camera system, and such images and information should be deleted once their purposes have been discharged.

(7) Access to retained images and information should be restricted and there must be clearly defined rules on who can gain access and for what purpose such access is granted; the disclosure of images and information should only take place when it is necessary for such a purpose or for law enforcement purposes.

(8) Surveillance camera system operators should consider any approved operational, technical and competency standards relevant to a system and its purpose and work to meet and maintain those standards.

(9) Surveillance camera system images and information should be subject to appropriate security measures to safeguard against unauthorised access and use.

(10) There should be effective review and audit mechanisms to ensure legal requirements, policies and standards are complied with in practice, and regular reports should be published.

(11) When the use of a surveillance camera system is in pursuit of a legitimate aim, and there is a pressing need for its use, it should then be used in the most effective way to support public safety and law enforcement with the aim of processing images and information of evidential value.

(12) Any information used to support a surveillance camera system which compares against a reference database for matching purposes should be accurate and kept up to date.

Points to note

The Code then fleshes out those guiding principles in more detail. Here are some notable points:

Such systems “should not be used for other purposes that would not have justified its establishment in the first place” (paragraph 3.1.3).

“People do, however, have varying and subjective expectations of privacy with one of the variables being situational. Deploying surveillance camera systems in public places where there is a particularly high expectation of privacy, such as toilets or changing rooms, should only be done to address a particularly serious problem that cannot be addressed by less intrusive means” (paragraph 3.2.1).

“Any proposed deployment that includes audio recording in a public place is likely to require a strong justification of necessity to establish its proportionality. There is a strong presumption that a surveillance camera system must not be used to record conversations as this is highly intrusive and unlikely to be justified” (paragraph 3.2.2).

“Any use of facial recognition or other biometric characteristic recognition systems needs to be clearly justified and proportionate in meeting the stated purpose, and be suitably validated. It should always involve human intervention before decisions are taken that affect an individual adversely” (paragraph 3.3.3).

“This [the requirement to publicise as much as possible about the use of a system] is not to imply that the exact location of surveillance cameras should always be disclosed if to do so would be contrary to the interests of law enforcement or national security” (paragraph 3.3.6).

“It is important that there are effective safeguards in place to ensure the forensic integrity of recorded images and information and its usefulness for the purpose for which it is intended to be used. Recorded material should be stored in a way that maintains the integrity of the image and information, with particular importance attached to ensuring that meta data (e.g. time, date and location) is recorded reliably, and compression of data does not reduce its quality” (paragraph 4.12.2).

Enforcement

The Surveillance Camera Commissioner is a statutory appointment made by the Home Secretary under section 34 of the Protection of Freedoms Act 2012. The Commissioner has no enforcement or inspection powers. However, in encouraging compliance with the Code, he “should consider how best to ensure that relevant authorities are aware of their duty to have regard for the Code and how best to encourage its voluntary adoption by other operators of surveillance camera systems” (paragraph 5.3). The Commissioner is/is to be assisted by a non-statutory Advisory Council with its own specialist subgroups.

Given the limited remit of the Surveillance Camera Commissioner, it may be that the Code shows its teeth more effectively in complaints to the ICO and/or the courts.

Robin Hopkins

Surveillance: RIPA and the Communications Data Bill

Posted on | by Robin Hopkins

The Communications Data Bill, shelved amid political heavy weather, is back on the agenda in the wake of last week’s Woolwich murder. Today for example, Conservative MP and former policing minister Nick Herbert wrote an article in The Times in support of the Bill and responding to those who have called it a ‘snooper’s charter’.

One of the more detailed critiques of Mr Herbert’s article came from Big Brother Watch. Part of its argument was that the Regulation of Investigatory Powers Act 2000 (RIPA) already provides for necessary surveillance – indeed, RIPA goes further because, unlike the Communications Data Bill, it allows for the actual content of communications to be intercepted in appropriate circumstances

Big Brother Watch’s article noted, however, problems with the use of intercept evidence in criminal trials. As regards the admissibility of surveillance resulting in the recording of conversations however, a very recent Court of Appeal judgment brings good news.

Turner v R [2013] EWCA Crim 642 concerned an appeal against a murder conviction. The evidence included extracts from some 300 hours’ worth of conversations which had been recorded as part of an intrusive surveillance operation authorised under RIPA.

The single ground of appeal against conviction arose from the rejection by Dobbs J of the submission that the indictment should be stayed as an abuse of process arising from the use of intrusive covert surveillance in the appellant’s home; alternatively, that the evidence derived from that surveillance was unfairly admitted in evidence, when it should have been excluded under s.78 of the Police and Criminal Evidence Act 1984.

The Court of Appeal dismissed these arguments. It had particular regard to the importance of respecting legal professional privilege when gathering evidence through covert means.

The Lord Chief Jusitce concluded that (paragraph 28):

“The surveillance was lawful. The relevant disclosure took place. The record of incriminating conversations was unchallenged. We understand that there may be extreme cases in which the prosecuting authorities (using the words in a comprehensive way) may interfere so significantly with the legal privilege of a defendant that the very integrity of the administration of justice may be undermined. That, however, did not happen here. Lawful covert surveillance produced damaging evidence against all three defendants. The process worked lawfully: any flaws were minor and short, and inconsequential”.

As to admissibility, he said this (paragraph 30):

“The only unfairness was that the appellant chose to say the things that he did because he did not realise that they were being recorded. The object of covert surveillance of the kind deployed in this case was to discover the truth, and, the evidence of what the appellant said about the death of the deceased was put before the jury while anything containing even a whisper of conversations protected by legal privilege was excluded. That was not unfair.”

Those arguing that RIPA is a fit-for-purpose surveillance tool will no doubt find support in this judgment.

Robin Hopkins

T v Manchester goes to the Supreme Court

Posted on | by Robin Hopkins

One of the most important privacy judgments of the year thus far has been that of the Court of Appeal in R (T & others) v Chief Constable of Greater Manchester & others [2013] EWCA Civ 25, on which Chris Knight blogged in January. In a nutshell, the Court of Appeal held that the criminal records disclosure regime (including the exceptions to the Rehabilitation of Offenders Act 1974) violated Article 8 ECHR.

Permission has been granted for a further appeal to the Supreme Court, which will hear the case on 24 and 25 July of this year. Watch this space.

Robin Hopkins

Closed material and closed proceedings in FOIA litigation: authoritative guidance from the Upper Tribunal

Posted on | by Robin Hopkins

Closed material and closed proceedings are commonplace in FOIA litigation. As regards the disputed information itself, the need is self-explanatory. But what about closed material other than the disputed information, such as evidence in support of a public authority’s reliance on exemptions? To what extent is it appropriate for FOIA proceedings to be determined by reference to such material which the requester is unable to see and challenge? Also, if the public authority’s concern is with public disclosure of such material, is the solution to be found in a readiness to bring the requester’s legal representatives into a ‘confidentiality ring’? In other words, do natural and open justice demand that requesters’ legal representatives be allowed to attend the closed part of the hearing and see the closed material?

These questions are fundamental to the fair and thorough determination of disputes about the rights conferred by FOIA. In a very important recent decision, the Upper Tribunal has given its answers.

The case

Browning v IC and Department for Business, Innovation & Skills (GIA 25/12) was heard by Mr Justice Charles, Mr Justice Mitting and Upper Tribunal (UT) Judge Andrew Bartlett QC. The decision is available here: Browning GIA 25 12.

The case concerned a request from a Bloomberg journalist for information from the Export Control Organisation (for which DBIS is the relevant public authority) in connection with licences issued for the exporting to Iran of “controlled goods” – explained as “mainly military, dual use (potentially military), equipment designed for torture or repression or sources of radio-activity”. DBIS relied on sections 41 and 43 FOIA. The IC found for the requester but, upon sight of further evidence, supported DBIS’ appeal before the First-Tier Tribunal (FTT). In decision EA/2011/0044, the FTT allowed DBIS’ appeal. In reaching its decision the FTT considered closed material and part of the hearing was closed.

The closed material comprised not only the disputed information, but DBIS’ evidence supporting its reliance on the exemptions. In particular, DBIS had written to applicants for such licences to obtain their views about disclosure, and it relied on their (confidential) responses in closed. Four or five of the 92 responses had been provided to Mr Browning in an anonymised, re-typed and redacted form prior to the hearing before the FTT, so as to illuminate to a degree the nature of the closed evidence being relied upon.

Mr Browning had not asked for more of the closed evidence to be made available to him in that way. Rather, a without-notice application was made at the FTT hearing for his legal representative(s) to see the closed material and attend the closed hearing in order to put the case on his behalf. The FTT refused the application. It summarised the approach taken in other FTT decisions, whereby such applications “will succeed only if there are exceptional circumstances specific to the appeal… The use of special counsel, as an alternative, is likewise exceptional.”

Mr Browning’s first ground of appeal before the UT was against the FTT’s refusal of that application.

Reliance on closed material

Mr Browning understandably contended that “the principles of open and natural justice and of fairness require, or strongly support the conclusion, that their application in the context of adversarial civil litigation should be departed from to the least extent possible… in the determination of an appeal to the FTT under FOIA” (para 48).

The UT said, however, that those principles admit of some context-sensitive flexibility. FOIA appeals are materially dissimilar from criminal and adversarial civil litigation. At paras 59-60, it said that:

“FOIA and its underlying purposes mean that, when a disputed request for information reaches the First-tier Tribunal pursuant to the statutory scheme put in place by FOIA, the relevant background and landscape of rights, interests and duties is materially different from that which obtains in criminal and civil litigation in the courts… It follows from the points we have made about the purposes of FOIA that, in our view, to characterise the First–tier Tribunal’s function, within the statutory scheme established by FOIA, as or equating to ordinary civil and therefore adversarial litigation because it is deciding a dispute between the parties before it, or deciding whether to vindicate a right claimed by the applicant, is an inadequate and inaccurate description; rather, its function is investigatory and is to see that FOIA is properly applied to the circumstances. This involves consideration, in the manner provided by FOIA, of the right which is given by s. 1(1) in pursuance of the interests served by the release of information, together with the assessment of countervailing public and private interests in accordance with the terms of the exemptions.”

Closed proceedings are thus intrinsic to FOIA litigation. The UT has confirmed the right to rely on closed evidence other than the disputed information (though see below for procedural caveats). See paras 59-60:

“(i) it is clear that Parliament did not intend that there should be such a “back door” route to information in respect of which a FOIA exemption could be claimed.  It follows that there is a need to protect it from disclosure to a requester that is equivalent to that which exists in respect of the information he or she has requested, and

(ii) it is also apparent that Parliament did not intend to spawn disproportionate and satellite disputes on whether an exemption applies to information put forward to establish a claimed exemption, and this is a reason why it chose an investigatory appeal process to a tribunal comprising persons with relevant expertise.”

The UT concluded that (para 71):

“The exercise by the First-tier Tribunal of its discretion under the 2009 Rules to consider closed material and to hold a closed hearing is not governed directly, or by analogy, by the approach taken by the civil courts to the disclosure of relevant material and we therefore reject Mr Browning’s central argument that it should be exercised to achieve a result that departs to the least extent possible from the approach taken in adversarial civil litigation.”

Applications for representatives to see closed material/attend closed hearings

The UT reviewed the jurisprudence on this issue (which has not favoured the granting of such applications) and discussed the problems that would arise if such an application were granted. There is a risk of accidental disclosure. It can be difficult for the representative to police neat lines between what he can and cannot say to his client or in open session. More generally, there would be very problematic limitations on taking instructions, such that (para 76) “the value added of the approach over that of suggesting lines of enquiry to the First-tier Tribunal and the Information Commissioner is likely to be limited to what the representative knows of his client’s position before he takes part in the closed process.” In any event, what to do about unrepresented requesters?

At paras 80-81, the UT set outs its conclusions:

“… a First-tier Tribunal should not direct that a representative of an excluded party should see closed material or attend a closed hearing unless it has concluded that, if it does not does so: it cannot carry out its investigatory function of considering and testing the closed material and give appropriate reasons for its decision on a sufficiently informed basis and so fairly and effectively in the given case having regard to the competing rights and interests involved.

81.          We also acknowledge and confirm that this approach will lead to the result that it will only be in exceptional and so rare cases that a representative of a party seeking information under FOIA will be permitted to see closed material and attend at a closed part of the hearing.  Indeed, we have not been able to identify circumstances in which we think that this would be appropriate, but acknowledge that it cannot be said that this should never be done.”

It also considered that Article 6 ECHR was not engaged, and that its engagement would not dislodge the above conclusions in any event.

Mr Browning’s first ground of appeal therefore failed. The UT did, however, have more to say on how to approach reliance on closed material. All parties involved in FOIA litigation should pay careful attention to these points.

The Practice Note and other observations on the use of closed material

The UT had misgivings about the limited extent of the anonymised closed material which had been made available to Mr Browning on an open basis. It noted, however, that this limited disclosure had for a vigorous and partially successful challenging of the evidence by the requester’s counsel. “During the period leading up to the hearing and when it began Mr Browning and his legal representatives had ample opportunity to seek by way of agreement or further direction additional information about the extent, content and nature of the Closed Exemption Evidence and they did not do so”.

Strictly speaking, the UT has declined to issue general guidance on the approach to allowing reliance on closed material at FTT level, but it has made a number of important points.

It observed (para 42) that “the need to avoid disclosure of the requested information is an obvious and good reason for there being closed material and a closed hearing, but in some cases this may not be the only reason that justifies a First-tier Tribunal considering closed material and holding a closed hearing”.

The FTT’s Practice Note on Closed Material in Information Rights Cases (issued in May 2012) was also considered. The UT said this (para 17):

“This does not have the force of a rule of law or a practice direction, and this judgment should not be taken as comprehensively endorsing it, but we do consider that it is something that First-tier Tribunals should take into account and, if they do not apply it in a given case, they should explain why they have not done so.  In particular, in our judgment, if no written and reasoned application for there to be closed material and a closed hearing has been made pursuant to that Practice Note, First–tier Tribunals should explain why they have proceeded without one.”

It added this on the FTT’s approach to closed material in general (para 18):

“More generally, we comment that First-tier Tribunals should consider and give appropriately detailed directions and reasons (i) setting out the nature and subject matter of any closed material and hearing, (ii) why they have accepted that they should consider evidence advanced by a public authority (or anyone else) and argument on a closed basis, and (iii) why further information relating to their content has not been provided.  If this is done it will provide clarity as to what will be, and has been, considered on a closed basis and why, for example, evidence provided to support an exemption has been so considered and more of it, or about it, has not been disclosed.”

Finally, the UT was clear as to the ongoing nature of these duties (para 39): “throughout the proceedings a tribunal carrying out its investigatory function must keep under review whether information about closed material should be provided to an excluded party in, for example, an anonymised form”.

Clearly, all FTT proceedings involving closed should be conducted in light of the points made above.

Other grounds of appeal: sections 41 and 43 of FOIA

Mr Browning’s other grounds of appeal also failed before the UT. Some of those grounds concerned the FTT’s findings on section 41 of FOIA (actionable breach of confidence). Mr Browning that the disputed information had not been “obtained” from outside the public authority, that the name of a licence applicant does not have the necessary quality of confidence, and that applicants had not imparted licence information in circumstances importing an obligation of confidence. All of those grounds of appeal were dismissed.

More broadly, on the approach to section 41 of FOIA, the UT has said this (para 30):

“It was also common ground before the FTT, and not an issue that was raised or argued before us, that the consideration of whether disclosure would constitute a breach of confidence that is “actionable” incorporates all parts of the breach of confidence action, including the absence of a public interest defence.  This accords with existing First-tier Tribunal decisions (see for example, Gurry on Breach of Confidence 2nd edit para 13.130 and in particular HCFC v IC & Guardian News and Media EA 2009/0036).  On that approach, the point that s. 41 is an absolute exemption is not as significant as it might first appear because within it there is a need to weigh the competing public interests, and as pointed out in a footnote to that paragraph in Gurry, the reverse approach to weighing the public interest in respect of a breach of confidence to that set out in s. 2 of FOIA in respect of a qualified exemption, if anything, makes it easier to establish the s. 41 exemption but is unlikely to become a determinative factor.”

Mr Browning also challenged the FTT’s conclusions on the detriment likely to arise from disclosure and argued that it had not identified the prejudice to commercial interests or the likelihood of that prejudice (for section 43(2) FOIA purposes).

The UT did have misgivings about the FTT’s comments about ‘chilling effect’ arguments on the evidence, but found that it there had been an error of law, it was at most a makeweight finding which did not suffice to overturn the FTT’s decision.

Ben Hooper acted for the Information Commissioner.

Robin Hopkins

Damages under section 13 DPA: Court of Appeal’s judgment in Halliday

Posted on | by Robin Hopkins

I blogged a while ago about the ex tempore judgment from the Court of Appeal in a potentially groundbreaking case on damages under section 13 of the DPA, namely Halliday v Creation Consumer Finance [2013] EWCA Civ 333. The point of potential importance was that ‘nominal damages’ appeared to suffice for the purposes of section 13(1), thereby opening up section 13(2). In short, the point is that claimants under the DPA cannot be compensated for distress unless they have also suffered financial harm. A ‘nominal damages’ approach to the concept of financial harm threatened to make the DPA’s compensation regime dramatically more claimant-friendly.

The Court of Appeal’s full judgment is now available. As pointed out on Jon Baines’ blog, ground has not been broken: the ‘nominal damages’ point was a concession by the defendant rather than a determination by the Court. See paragraph 3 of the judgment of Lady Justice Arden:

“… this issue, which was the main issue of the proposed appeal to this court, is now academic as the respondent, CCF, concedes an award of nominal damages is “damage” for the purposes of the Directive and for the purposes of section 13(2) of the Data Protection Act 1998.”

Other potentially important points have also fallen somewhat flat. The question of whether UK law provided an adequate remedy for a breach of a right conferred by a European Directive fell away on the facts (“proof fell short in relation to the question of damage to reputation and credit”), while the provision for sanctions under Article 24 of Directive 95/46/EC was neither directly enforceable to Mr Halliday nor of assistance to him.

Still, the judgment is not without its notable points.

One is the recognition that compensation for harm suffered is a distinct matter from penalties for wrongdoing; the former is a matter for the courts in the DPA context, the latter a matter for the Information Commissioner and his monetary penalty powers. Such was the implication of paragraph 11:

“… it is not the function of the civil court, unless specifically provided for, to impose sanctions. That is done in other parts of the judicial system.”

Another point worth noting is Lady Justice Arden’s analysis of distress and the causation thereof. The distress must be caused by the breach, not by other factors such as (in this case) a failure to comply with a court order. See paragraph 20:

“Focusing on subsection (2), it is clear that the claimant has to be an individual, that he has to have suffered distress, and that the distress has to have been caused by contravention by a data controller of any of the requirements of the Act. In other words, this is a remedy which is not for distress at large but only for contravention of the data processing requirements. It also has to be distress suffered by the complainant and therefore would not include distress suffered by family members unless it was also suffered by him. When I say that it has to be caused by breach of the requirements of the Act, the distress which I accept Mr Halliday would have felt at the non-compliance of the order is not, at least directly, relevant because that is not distress by reason of the contravention by a data controller of the requirements of this Act. If the sole cause of the distress had been non-compliance with a court order, then that would have lain outside the Act unless it could be shown that it was in substance about the non-compliance with the Data Protection Act.”

The claimant had sought to draw an analogy with guidelines and banding for discrimination awards as set by Vento v Chief Constable of West Yorkshire Police [2013] 1 ICR 31. The Court of Appeal was not attracted. See paragraph 26:

“In answer to that point, the field of discrimination is, it seems to me, not a helpful guide for the purposes of data protection. Discrimination is generally accompanied by loss of equality of opportunity with far-reaching effects and is liable to cause distinct and well-known distress to the complainant.”

Finally, Lady Justice Arden commented as follows concerning the level of the compensation to be awarded on the facts of this case: “in my judgment the sum to be awarded should be of a relatively modest nature since it is not the intention of the legislation to produce some kind of substantial award. It is intended to be compensation, and thus I would consider it sufficient to render an award in the sum of £750” (paragraph 36).

Lord Justice Lloyd (who, along with Mr Justice Ryder agreed with Lady Justice Arden) did pause to think about a submission on this question ‘if you were so distressed, why did you not complain immediately?’, but concluded that (paragraph 47):

“I confess that I was somewhat impressed at one point by Mr Capon’s submission that it was a surprise, if Mr Halliday was so distressed by this contravention, that he did not immediately protest upon discovering, in response to his first credit reference enquiry, the fact of the contravention, and indeed he did not protest until about a month after the second report had been obtained. But I bear in mind, in response to that, Mr Halliday’s comment that he had had such difficulty in getting any sensible response, or indeed any response, out of CCF at the earlier stage, that it is perhaps less surprising that he did not immediately protest. In any event, the period in question is not a very lengthy one between his discovery of the contravention by his first reference request and his taking action in July. Accordingly, it does not seem to me that that is a matter that should be taken to reduce my assessment of the degree of distress that he suffered.”

Robin Hopkins