Disclosing child protection information: make sure you ask the right questions first

June 1st, 2015 by Robin Hopkins

High-profile revelations in recent years illustrate the importance of public authorities sharing information on individuals who are of concern in relation to child protection matters. When inaccurate information is shared, however, the consequences for the individual can be calamitous.

AB v Chief Constable of Hampshire Constabulary [2015] EWHC 1238 (Admin) is a recent High Court judgment (Jeremy Baker J) which explores the implications of such inaccurate disclosures. The case is not only about inaccuracies per se, but about why those inaccuracies were not picked up before the disclosure was made.

Perhaps the most notable point from the judgment is this: if such a disclosure is to be necessary, then the data controller must take care to ask themselves reasonable questions about that information, check it against other obvious sources, and make necessary enquiries before disclosure takes place.

In other words, failure to ask the right questions can lead to the wrong course of action in privacy terms. Here is how that principle played out in the AB case.

Background

In 2010, AB was summarily dismissed from his job as a science teacher for inappropriate comments and conduct with potential sexual undertones, as well as a failure to maintain an appropriately professional boundary with students. His appeal against dismissal failed. The Independent Safeguarding Authority, however, decided not to include AB on its barred lists. The General Teaching Council also investigated AB, but it did not find that the allegations of improper conduct were made out.

AB’s dismissal, however, came to the attention of a member of the child abuse investigation public protection unit of the Hampshire Constabulary. Enquiries were made of the college, and certain email correspondence and records were generated and retained on police systems.

Later the following year, AB was offered a teaching job elsewhere. This came to the police’s attention in 2013. There was internal discussion within the police about this. One officer said in an email that, among other things (i) AB had also been dismissed from another school, and (ii) AB’s 2010 dismissal had involved inappropriate touching between himself and pupils. There was no evidence that either of those points was true. That email concluded “From What I’ve been told he should be nowhere near female students. I will put an intel report in on [AB]”.

The above information was passed to the Local Authority Designated Officer (‘LADO’) and in turn to the school, who terminated AB’s employment. He then made a subject access request under the DPA, by which he learnt of the above communication, and also the source of that information, which was said to be a notebook containing a police officer’s notes from 2010 (which did not in fact record either (i) or (ii) above). AB complained of the disclosure and also of the relevant officer’s failures to follow the requisite safeguarding procedures. The police dismissed his complaint.

The Court’s judgment

AB sought judicial review of both the disclosure of the inaccurate email in the email, and of the dismissal of his complaint about the police officer’s conduct in his reporting of the matter.

The Court (Jeremy Baker J) granted the application on both issues. I focus here on the first, namely the lawfulness of the disclosure in terms of Article 8 ECHR.

Was the disclosure “in accordance with the law” for Article 8 purposes?

The Court considered the key authorities in this – by now quite well-developed – area of law (Article 8 in the context of disclosures by the police), notably:

MM v United Kingdom [2010] ECHR 1588 (the retention and disclosure of information relating to an individual by a public authority engages Article 8, and must therefore be justified under Article 8(2));

Tysiac v Poland (2007) 45 EHRR 42, where the ECtHR stressed the importance of procedural safeguards to protecting individuals’ Article 8 rights from unlawful interference by public bodies;

R v Chief Constable of North Wales Ex. Parte Thorpe [1999] QB 396: a decision about whether or not to disclose the identity of paedophiles to members of the public, is a highly sensitive one. “Disclosure should only be made when there is a pressing need for that disclosure”);

R (L) v Commissioner of Police for the Metropolis [2010] 1 AC 410: such cases are essentially about proportionality;

R (A) v Chief Constable of Kent [2013] EWCA Civ 1706: such a disclosure is often “in practice the end of any opportunity for the individual to be employed in an area for which an [Enhanced Criminal Record Certificate] is required. Balancing the risks of non-disclosure to the interests of the members of the vulnerable group against the right of the individual concerned to respect for his or her private life is a particularly sensitive and difficult exercise where the allegations have not been substantiated and are strongly denied”;

R (T) v Chief Constable of Greater Manchester Police & others [2015] AC 49 and R (Catt) v ACPO [2015] 2 WLR 664 on whether disclosures by police were in accordance with the law and proportionate.

The Court concluded that, in light of the above authorities, the disclosure made in AB’s case was “in accordance with the law”. It was made under the disclosure regime made up of: Part V of the Police Act 1997, the Home Office’s Statutory Disclosure Guidance on enhanced criminal records certificates, section 10 of the Children Act 2004 and the Data Protection Act 1998.

See Jeremy Baker J’s conclusion – and notes of caution – at [73]-[75]:

“73. In these circumstances it seems to me that not only does the common law empower the police to disclose relevant information to relevant parties, where it is necessary for one of these police purposes, but that the DPA 1998, together with the relevant statutory and administrative codes, provide a sufficiently clear, accessible and consistent set of rules, so as to prevent arbitrary or abusive interference with an individual’s Article 8 rights; such that the disclosure will be in accordance with law.

74. However, it will clearly be necessary in any case, and in particular in relation to a decision to disclose information to a third party, for the decision-maker to examine with care the context in which his/her decision is being made.

75. In the present case, although the disclosure of the information by the police was to a LADO in circumstances involving the safeguarding of children, it also took place in the context of the claimant’s employment. The relevance of this being, as DC Pain was clearly aware from the contents of his e-mail to PS Bennett dated 10th June 2013, that the disclosure of the information had the potential to adversely affect the continuation of the claimant’s employment at the school….”

Was the disclosure proportionate?

While the disclosure decision was in accordance with the law, this did not remove the need for the police carefully to consider whether disclosure was necessary and proportionate, particularly in light of the serious consequences of disclosure for AB’s employment.

The Court held that the disclosure failed these tests. The crucial factor was that if such information about AB was well founded, then it would have been contained in his Enhanced Criminal Record Certificate – and if it was not, this would have prompted enquiries about the cogency of the information (why, if it was correct, was such serious information omitted from the ECRC?) which would reasonably have been pursued to bottom the matter out before the disclosure was made. These questions had not been asked in this case. See [80]-[81]:

“… In these circumstances, it was in my judgment, a necessary procedural step for DC Pain to ascertain from the DBS unit as to, whether, and if so, what information it had already disclosed on any enhanced criminal record certificate, as clearly if the unit had already disclosed the information which DC Pain believed had been provided to him by the college, then it would not have been necessary for him to have made any further disclosure of that information.

81. If either DC Pain or PS Bennett had taken this basic procedural step, then not only would it have been immediately obvious that this information had not been provided to the school, but more importantly, in the context of this case, it would also have been obvious that further enquiries were required to be made: firstly as to why no such disclosure had been made by the DBS unit; and secondly, once it had been ascertained that the only information which was in the possession of the DBS unit was the exchange of e-mails on the defendant’s management system, as to the accuracy of the information with which DC Pain believed he had been provided by the college.”

Judicial reviews of disclosure decisions concerning personal data: the DPA as an alternative remedy?

Finally, the Court dealt with a submission that judicial review should not be granted as this case focused on what was essentially a data protection complaint, which could have been taken up with the ICO under the DPA (as was suggested in Lord Sumption’s comments in Catt). That submission was dismissed: AB had not simply ignored or overlooked that prospect, but had rather opted to pursue an alternative course of complaint; the DPA did not really help with the police conduct complaint, and the case raised important issues.

Robin Hopkins @hopkinsrobin

 

Important new privacy judgment: police retention of protestor’s data not an Article 8 infringement

June 1st, 2012 by Robin Hopkins

The Admin Court (Gross LJ and Irwin J) has handed down judgment this week in Catt v Association of Chief Police Officers and Commissioner of Police of the Metropolis [2012] EWHC 1471 (Admin). It is an extremely important judgment on Article 8 ECHR in the context of personal information retained for policing purposes. It is also notable for its analysis of protest as an inherently public activity.

The background

ACPO launched a National Domestic Extremism Database containing information provided by police forces. The Metropolitan Police subsequently assumed responsibility for the database. The database contained information relating to the attendance by the claimant (an 87-year old protestor of good character) at various political protests made by a group called “Smash EDO”. Smash EDO opposes a US arms manufacturer with a factory in Brighton; its activities have often involved violent disorder and criminality (though apparently not by the claimant), necessitating a substantial police presence. Police officers overtly gathered information (including photographic and video material) at those protests. They then compiled reports on the protests, identifying a number of individuals including the claimant. The information at issue in this case comprised those sorts of reports – they were about incidents rather than the claimant per se, although the claimant was identified in the reports. The defendants retained that information pursuant to the statutory Code of Practice on the Management of Police Information, made under the Police Acts 1996 and 1997, and associated Guidance on the Management of Police Information.

The issues

The overarching issue was whether this infringed Mr Catt’s rights under Article 8 ECHR, the right to respect for private life.

It is important (if not entirely surprising) to note how the parties and the Court saw Article 8 and the Data Protection Act 1998 interacting (see paragraph 6(iv)). All agreed that the DPA was theoretically in play, but added nothing: if the Article 8 claim succeeded then the DPA claim was not needed; if Article 8 was engaged, but the interference was justified, then the DPA claim would automatically fail; if Article 8 was not engaged, the prospects of success under the DPA were negligibly remote.

The issues were therefore: (i) whether there was an interference with the claimant’s rights under Article 8(1), and (ii) if so, whether this interference was justified. The Court said no on both counts, by application of the authorities to three crucial findings.

Crucial findings

First, the Court accepted the need for such information to be retained by the police. Gross LJ said this at paragraph 19:

“… the use of intelligence is a fundamental policing tool.  Investigators need the ability to identify relationships within protest groups. Likewise, they need to be able to identify individuals associated with the use of particular tactics, together with those with a propensity to violence, disorderly behaviour and organised coordinated actions.  Although Mr. Catt has not been convicted of any offence, the evidence, which again I accept, is that his close association with violent members of Smash EDO and knowledge of this association is of intelligence value.  Such knowledge forms part of a “far wider picture of information”… needed by the police, inter alia, to investigate incidents of criminality and to assist the policing of future events.”

Secondly, “the essential nature of such activity [protesting] is that it is of a public nature. Indeed, its very object is to make others aware of his views and the causes to which he lends his support” (paragraph 36).

Thirdly, given the violent disorder which characterised Smash EDO’s activities, it was reasonable to expect the police to gather and retain such information. This was especially so as this information had been gathered by over rather than covert policing.

Issue 1: Article 8(1) neither engaged nor infringed

Given those findings, the Court concluded that the claimant’s rights under Article 8(1) were not engaged at all. The claimant’s reliance on R (Wood) v Commr of Police of the Metropolis [2009] EWCA Civ 414 did not assist: the facts were different, and it would be “unreal and unreasonable” to find an infringement of Article 8(1) in the present case.

Issue 2: interference would in any event be justified

The Court went on to conclude that even if there had been an interference with Article 8(1), this would be justified. The claimant had argued inter alia that he was not personally suspected of criminality and that there was no democratic oversight of the database system. The defendant argued inter alia that, given Smash EDO’s activities, the retention of this sort of information – police reports as opposed, for example, to photos or video material – was reasonably necessary and proportionate.

Gross LJ (with whom Irwin J agreed) had “no hesitation in concluding that any interference with Mr. Catt’s rights was amply justified under Art. 8.2”.

His reasons included the following (paragraph 64):

“Any interference with Mr. Catt’s Art. 8.1 rights was at the margins. The reports, the product of overt policing, did no more than record Mr. Catt’s public activities, the very object of which was to convey his views to as wide an audience as possible.  The reports were compiled and retained for intelligence purposes, in accordance with the Code and the Guidance, with a view to an appropriate police response to a campaign marred by serious, persistent criminality and posing a significant public order problem.”

Irwin J agreed that there was no expectation of privacy here, applying the approach in Campbell v MGN [2004] UKHL 22.

At paragraph 70 he added that it was not easy to see “… how it can affect the engagement of Art 8.1 that the material is recorded by police officers as opposed, say, to journalists; or collated and held within the National Extremism Database, as opposed to a local history archive in the town where the demonstrations have been held.  The latter distinction was advanced by Mr Owen (“the entries were not recorded on any database…”).  The issue is not whether the individual concerned likes or dislikes the thought of the data being held by this or that body: the issue is whether a reasonable expectation of privacy arises.  In my judgment, it does not arise in respect of any of the information in this case.”

Irwin J did, however, add this observation at paragraph 70, which might give rise to interesting arguments in future cases on such issues:

“Different questions might arise if material recorded in that context were collated with material which was private in its nature.  That does not arise in this case.”

What about ongoing retention of this information?

Gross LJ thought it sensible for the police to review its retention of this sort of information when the Smash EDO campaign concludes, but he agreed with Irwin J’s comments at paragraph that 73:

“… even when the Smash EDO campaign ends, it may yet be justifiable to retain some or all of this information.  The picture here is that there are connections between this group and parts of the animal rights movement, active before this group was formed.  It may be a legitimate function of intelligence to keep records of this group after it has ceased to be active, the better to understand the risks associated with after-coming groups with overlapping membership.  To my mind, there is no expectation that a review at a suitable point in the future will conclude otherwise.”

Robin Hopkins

 

TRIBUNAL ORDERS DISCLOSURE OF POLICING CAMERA LOCATIONS

April 16th, 2011 by Robin Hopkins

Those interested in information law in the context of policing will wish to note the very recent Tribunal decision in Mathieson v IC and Devon and Cornwall Constabulary (EA/2010/0174).

Automated Number Plate Recognition (ANPR) cameras are strategic policing tools used by a number of forces.  Mr Mathieson asked Devon and Cornwall Constabulary to provide him with the locations of its ANPR cameras. It refused, relying on the prejudice-based qualified exemptions at s. 31(1)(a) (prevention or detection of crime) and s. 31(1)(b) (apprehension or prosecution of offenders). The Commissioner considered that the public interest arguments – though finely balanced – favoured the maintenance of these exemptions.

The Tribunal agreed that these exemptions were engaged, but disagreed on the public interest, and ordered disclosure.  It considered that the Commissioner had overlooked a number of relevant factors.

First, this is a privacy issue: ANPR cameras capture vast amounts of personal data; there is therefore substantial public interest in scrutiny of their use (further illustrated by parliamentary questions on the subject). Secondly, location data alone would not undermine policing – information on factors such as policing tactics, data and analytical capabilities were equally necessary.

Furthermore, the Constabulary had put forward weak arguments: the Tribunal was unimpressed by its attempt to rely on reports by other police forces on their use of ANPR cameras, and by its focus on issues such as the potential for vandalism – which is not sufficiently connected to the interests protected by ss. 31(1)(a) and (b).

 

DNA Database – A Controversial Behemoth

November 24th, 2009 by Anya Proops QC

The police DNA database for England and Wales is currently the largest DNA database in the world. It has in excess of 5 million profiles, including the profiles of many individuals who have been found to be innocent of any charges made against them. The rapid development of this vast database has inevitably fuelled debates about the rise of the Surveillance ‘Big Brother’ State. Most notably, concerns have been expressed that the database unjustifiably interferes with the individual’s right to privacy, particularly having regard to the retention of records relating to people who have not been convicted of any offence (there are at least 850,000 profiles of such persons on the DNA Database). Earlier this year, these concerns resulted in a judgment by the European Court of Human Rights that the existing approach to the retention of DNA data relating to unconvicted individuals was unlawful (Marper v UK see also my earlier post on the Marper case). Concerns have also been expressed as to the disproportionate presence of individuals from ethnic minorities on the database, particularly young black men, and as to the resulting discriminatory potential which is effectively built into the system.

Two recent important developments suggest that the controversies surrounding the database are only likely to intensify in the coming months. First, the government has opted to use the Queen’s Speech to lay before Parliament a bill which contains a number of inevitably controversial provisions relating to the database (the Crime and Security Bill). Second, a government backed commission, the Human Genetics Commission (HGC) has today issued a report entitled Nothing to Hide, Nothing to Fear?’ which criticises a number of aspects of the existing database system.

The following aspects of the Bill are particularly worthy of note:

·         The Bill contains provisions aimed at giving the police additional powers to take DNA samples from individuals who have been previously arrested for crimes but whose biometric has yet to be obtained. The effect of the provisions is that the police will be entitled to take biometric data from someone who may have been arrested some time ago and before the new provisions came into force (clause 2(1)). The provisions also afford the police new powers to take DNA samples from UK nationals or residents who have been convicted overseas of serious sexual and violent offences (clause 3(1)). These powers would equally apply to convictions occurring prior to the coming into force of the new provisions.

 

·         The bill also sets out a statutory framework for the retention and destruction of biometric material (including DNA samples, DNA profiles and fingerprints) that has been taken from an individual as part of the investigation of a recordable offence (clause 14). These powers were consulted upon in the Keeping the Right People on the DNA Database paper published in May 2009. In effect, the provisions envisage a somewhat more nuanced approach to the retention of data with retention periods for the various categories of data depending on a number of factors including the age of the individual concerned, the seriousness of the offence or alleged offence, whether the individual has been convicted, and if so whether it is a first conviction. Most notably:

 

o   the fingerprints and DNA of adults who are arrested but unconvicted will prima facie be retained for a period of 6 years

 

o   the fingerprints and DNA of adults who are convicted will be retained indefinitely

 

o   lesser retention periods apply to persons under the ages of 18 and 16 and, in respect of such minors the gravity of the offence will be in issue

 

o   chief constables are however afforded a power to determine that any retention period may be extended by up to two years for reasons of national security

 

o   all DNA samples must be destroyed six months after being taken.

 

·         The Secretary of State will be afforded powers to make a statutory instrument prescribing the manner, timing and other procedures in respect of destroying relevant biometric material already in existence at the point the legislation comes into force. This will enable the Secretary of State to ensure that the retention and destruction regime set out in this Bill is applied to existing material (clause 19).

 

·         The National DNA Strategy Board which already exists to oversee the operation of the database will be put on a statutory footing (clause 20).

It remains uncertain whether any of these provisions will make it onto the statute books in advance of the forthcoming general election. However, it must be said that the growth in police powers which would be afforded under the Bill does not sit particularly comfortably with the serious concerns as to the existing system identified in the report from the HGC. Those concerns include, not least, concerns about the disproportionate representation of members of ethnic minorities; the retention of data relating to unconvicted persons for any period of time and, further, the problems of function creep.

 

Privacy and the Police – Important Court of Appeal Judgment

May 22nd, 2009 by Anya Proops QC

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 factsREP 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).