It would seem that the approach to be taken to the retention of DNA on the Police National Database is going to be a hot election issue. The Government has for some time been seeking to introduce onto the statute books new legislation which would enable the DNA of persons who have not been convicted of any offence to be stored for up to six years (see my November 2009 post on this issue). However, a report in yesterday’s Guardian suggests that the Government may scrap the 6 year retention provision in order to get the remainder of the Crime and Security Bill passed into law before the election. Meanwhile, the Conservatives have proposed that the period of retention of DNA relating to unconvicted persons should be three years. The Government has attacked these proposals on the basis that they amount to a criminals charter. Of course, even if particular party political proposals with respect to the DNA database are effective in attracting the popular vote, that is not to say that they would find favour before the Strasbourg Court on a challenge brought under Article 8 ECHR (see further on this issue the Marper judgment discussed in my May 2009 post).
Tag: article 8
Protecting the Anonymity of Parties – EAT Supplements Its Own Rules of Procedure
On 5 March 2010, the Employment Appeal Tribunal (President Underhill presiding) gave a judgment on the question of whether it had powers to protect the anonymity of a party in a case involving allegations of sexual offences – A v B (UKEAT/0206/09/SM). The background to the judgment was that a claimant had been granted permanent anonymity by the Employment Tribunal under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Sch.1 para.49. The anonymity order had been made in circumstances where the claimant, who was claiming unfair dismissal, had been dismissed in response to a disclosure by police that he had been involved in paedophile activity in Cambodia and was believed to represent a risk to children. The Claimant had in fact been acquitted in the Cambodian courts and there was no reason to believe he faced prosecution in the UK. On appeal against the tribunal’s judgment to the EAT, the question arose as to whether the EAT had power to maintain the anonymisation when dealing with the appeal. This was a difficult question to resolve because, on their face, the EAT Rules 1993 read together with the Employment Tribunals Act 1996 did not provide for such a power. In a judgment which reflects the overriding importance of human rights considerations, the EAT held that it did have such a power. In reaching this conclusion, the EAT took into account: (a) that the loss of the claimant’s anonymity would involve a serious breach of his convention rights, particularly the Article 8 right to privacy; (b) that, on the facts of the case, the need to protect the claimant’s privacy under Article 8 outweighed the imperative towards freedom of expression embodied in Article 10 of the Convention; and (c) that, in the circumstances, s. 6 of the Human Rights Act 1998 required the EAT to interpret its powers so as to include a power to protect the claimant’s anonymity.
In the course of its judgment, the EAT considered the very recent judgment of the Supreme Court in HM Treasury v Ahmed [2010] UKSC 1; [2010] 2 WLR 325. In that case, the Supreme Court held that the old common law rule that a party forfeited his right to privacy if he chose to bring proceedings (subject to certain limited statutory exceptions) required modification in the light of the Convention. It concluded that, in a case where full publication of the proceedings would have an impact on the Article 8 rights of a party, the court will have to conduct a balancing exercise between that right and the right to freedom of expression under Article 10 (see per Lord Roger, para. 43). This is precisely the balance which the EAT sought to strike in the Av B case.
Media Law and Practice – new book from OUP
Hot off the press is a new book from OUP on “Media Law and Practice”, edited by David Goldberg, Gavin Sutter, and Ian Walden.
This is a multi-author book, written by a team of practitioners and academics. It covers a wide range of media topics, including ownership, regulation, intellectual property, defamation, and commercial communications.
I contributed a chapter on Information Law: this discusses data protection, freedom of information, and human rights issues, including articles 8 and 10 of the Convention. One of the book’s features is that it deals with new forms of communication (including blogging), as well as traditional print or broadcast media. So I had to address questions such as, how would the “special purposes” defined in the DPA (ie artistic, journalistic and literary purposes) apply to web-based publications?
The impetus for the book comes from the Institute of Computer and Communications Law, based in the Centre for Commercial Law Studies, Queen Mary, University of London. All three editors are members of the Institute. It’s a major centre for research and teaching in areas related to information law, including intellectual property, telecoms regulation, computer law, and media law.
The book is available online from OUP’s website.
Blogger’s Identity Not Private Information
Yesterday, the High Court handed down an important judgment on the application of the law of privacy to anonymous bloggers. The case involved a detective constable, Mr Horton, whose anonymous blog, ‘Night Jack’, gave a behind-the-scenes insight into modern policing. The prize-winning blog attracted a huge following. When a journalist at the time discovered Mr Horton’s identity by carrying out his own detective work, Mr Horton sought and was granted an injunction restraining the Times from revealing his identity. However, that injunction was lifted in a judgment handed down on 16 June 2009 by Eady J: The Author of a Blog v Times Newspapers Ltd [2009] EWHC 1358 (QB).
The central issue in the case was whether the developing law of privacy entitled Mr Horton to retain anonymity in respect of the blog. Eady J held that the injunction should be lifted because Mr Horton had failed to demonstrate that there was a legally enforceable right to maintain anonymity in respect of his identity. In reaching this conclusion, Eady J applied a two stage test: first, he considered whether Mr Horton had established that he had a reasonable expectation of privacy in respect of his blogging activities; second, he considered whether, if there was a reasonable expectation of privacy, that expectation was nonetheless overridden by the public interest in disclosure. Eady J found that Mr Horton lost on the first limb of the test because the essentially public nature of his blogging activity meant that, judged objectively, Mr Horton could not reasonably expect that his identity would be treated as private information. Having decided the case against Mr Horton on this basis, Eady J nonetheless went on to consider the public interest arguments. With respect to those arguments, he held that there was in any event an overwhelming public interest in disclosure of the information. This was the case particularly given the public interest in revealing that the person making critical and politically controversial comments about the force through the blog was himself a particular serving police officer. In reaching these conclusions, Eady J rejected arguments to the effect that the injunction should be maintained given the risk that disclosure of his identity would increase the risk that Mr Horton would face disciplinary action.
High Court Judgment on Inspection of Personal Data
The High Court has recently handed down an interesting judgment on the extent to which redacted personal data contained in documents disclosed in the course of litigation was vulnerable to inspection. The judgment also highlights some of the limits which may be placed on parties seeking inspection of databases containing personal data. In Webster & Ors v Ridgeway Foundation School Governors [2009] EWHC 1140 (QB), the claimants had brought claims against the governors of a school on the basis that they had suffered racially motivated assaults on school property. They alleged that the governors had caused or contributed to the injury by negligently failing to maintain proper disciplinary standards or otherwise taking proper care with respect to pupil security, particularly by allowing racial tensions to develop. During the course of standard disclosure, the governors disclosed a log of investigations into racist incidents, bullying and aggression in the school. Moreover, one of their witness statements disclosed the existence of a computerized system used to record pupil behaviour. The governors allowed inspection of the disclosed documents but redacted the names of purported victims of racism, bullying and aggression. The claimants sought disclosure of the redacted names and, further, of the computerized system. They argued that they needed to access this information in order to assess whether there were other pupils who might be able to provide useful evidence and that they had a right to inspect that information given that its existence had been disclosed by the governors.
Nicol J refused the claimants’ application for inspection of the redacted information and the computerized system. He held that that the mere fact that a document had been disclosed did not mean that there was an automatic right of inspection in respect of all of the information it contained, not least this was because some of the information in the disclosed document may not be relevant to the matters in issue. On the facts of the instant case, Nicol J found that inspection of the redacted names could and should be refused on the basis that: (a) it would amount to an interference with the privacy rights of the individual children named in the documents; and (b) that interference was not necessary in the instant case as the claimants did not need to know the identities of the purported victims in order to have a fair trial or for the fair disposal of the litigation (Science Research Council v Nasse [1980] AC 1028 HL applied). With respect to the computerized system, Nicol J accepted that mention of a document in a witness statement could be equated with inclusion of a document in a disclosure list and, hence, prima facie it would give rise to an obligation to permit inspection. However, he also held that that general proposition was subject to the qualifications contained in CPR 31.3, which included the right to object to disclosure on grounds of proportionality. Nicol J went on to find that permitting inspection of the computerized database would be disproportionate, particularly because: (a) the governors would have to redact the entire database to ensure that any private information relating to individual pupils and, further, any irrelevant information was not disclosed, which was a very substantial task and (b) undertaking this task was disproportionate having regard to any possible benefit for the claimants and the issues in the case.
Privacy and the Police – Important Court of Appeal Judgment
By a two to one majority, the Court of Appeal decided yesterday, in Wood v Commissioner for Police of the Metropolis [2009] EWCA Civ 414, that the Metropolitan Police had acted unlawfully when it retained photographs which it had taken of an anti-arms trade campaigner as he was leaving the AGM of Reed Elsevier Plc (“REP”). This is an important judgment on the scope of the Article 8(1) right to privacy and on the scope of the justification defence available under Article 8(2).
The facts – REP is the parent company of a company which organises trade fairs for the arms industry, Spearhead Exhibitions Limited. As a result of its association with Spearhead, REP’s offices have been subject to demonstrations, some involving criminal damage. In April 2005, Mr Wood attended REP’s AGM at the Millenium hotel in London in his capacity as shareholder. At the time, Mr Wood was a media co-ordinator for Campaign Against the Arms Trade (“CAAT”). It was not in dispute that Mr Wood was of good character, had no criminal convictions and had never been arrested. Moreover, his behaviour at the AGM had been entirely unobjectionable. However, as he was leaving the hotel, Mr Wood was overtly photographed by a photographer acting on behalf of the police. He was then questioned by police but declined to confirm his identity or answer their questions. The police claimed that, upon leaving the AGM, Mr Wood had been joined by a former member of CAAT with a history of unlawful activity against organisations involved in the arms industry. That assertion was disputed by Mr Wood. The police also claimed that it had taken the photographs in order to be able to identify offenders if offences were or had been committed at the AGM or if they were subsequently committed at the arms fair.
The High Court judgment – The High Court dismissed Mr Wood’s judicial review claim that the police’s actions had breached his Article 8 right to privacy. It did so on the basis that the police’s actions had not interfered with Mr Wood’s Article 8(1) right to private life (Wood v Commissioner of the Police for the Metropolis [2008] EWHC 1105 (Admin)).
The Court of Appeal judgment – The Court of appeal disagreed with the High Court’s conclusion that there was no interference with Mr Wood’s Article 8(1) right to privacy. It held that the mere taking of photographs in a public place was not itself capable of engaging Article 8. However, having regard to the particular circumstances of the case, Mr Wood’s Article 8 right to privacy had been interfered with. In particular, this was so because the photographs had been taken by an organ of the State, the police action was unexplained at the time it happened and, further, it carried with it the implication that the images would be kept and used in the future. On the question of whether the police was able to establish that interference was justified, and hence lawful under Article 8(2), the Court of Appeal unanimously agreed that the taking and retention of photographs of Mr Wood pursued legitimate aims, namely the prevention of disorder or crime and in the interests of public safety or the protection of the rights and freedoms of others. However, they disagreed on the question of whether the measures used by the police to pursue those legitimate aims were proportionate in all the circumstances. The majority (Lord Collins and Dyson LJ) held that, whereas retaining the photographs for a few days after the meeting was permissible, once it had become clear that Mr Wood had not committed any offence at the meeting, it was unreasonable and, hence, disproportionate for the photographs to be retained pending the trade fair. This was because there was no reasonable basis in the circumstances for fearing that Mr Wood might commit an offence at the trade fair. It is apparent from Lord Collins’ judgment that he was particularly concerned as to the potential ‘chilling effect’ which similar police actions would have on future potentially peaceful campaigners (see paragraph 92). Laws LJ dissented on the question of whether the interference was proportionate. He held that the interference was not disproportionate particularly because: ‘The taking of the pictures was in no sense aggressively done. The retention of the pictures was carefully and tightly controlled. The appellant’s image was not placed on any searchable database, far less a nationwide database indefinitely retained. But for the commencement of these proceedings the images of the appellant would have been destroyed after the DSEi exhibition’ (paragraph 58). The judges did however agree that the instant case was wholly distinguishable from Marper (ECtHR decides retention policy in respect of police DNA database gave rise to unjustified interferences with right to privacy – see my earlier post on the Home Office response to Marper and also Tim Pitt Payne’s NLJ article on the judgment itself).
It is important to note that the result of the Court of Appeal’s judgment is that the taking of the photographs did not per se constitute a unlawful interference with Mr Wood’s right to privacy. Rather what was unlawful was the excessive retention of the photographs beyond a time when there was any reasonable basis for supposing that Mr Wood may engage in criminal conduct at the arms fair. On the question of whether this judgment sets a precedent on the question of whether the police can generally take photographs of ostensibly law-abiding citizens, it is worth noting Lord Collins’ concluding comments: ‘it is plain that the last word has yet to be said on the implications for civil liberties on the taking and retention of images in the modern surveillance society. This is not the case for the exploration of the wider, and very serious, human rights issues which arise when the State obtains and retains the images of persons who have committed no offence and are not suspected of having committed any offence’ (paragraph 100).