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Criminal Justice Act 2003 sections 103 and 108(2)
930. These sections concern previous convictions that can be taken into account in establishing a person’s “bad character”. Changes have been made to this Act only to clarify the ambit of the existing provisions for the purposes of implementation, rather than to alter them.
931. Courts already are able to have regard to previous EU convictions (R v Kordasinski [2006] EWCA Crim 2984). Because the Government considers that these changes only clarify the Act, rather than amend it substantively, there should be no ECHR issues arising. In matters of evidence generally, the ECtHR has adopted the principle that the rules for admissibility of evidence are primarily a matter for domestic law and that the question is whether the trial as a whole has been fair as required by Article 6. There are existing safeguards in the 2003 Act for the courts to exclude evidence of a defendant’s bad character if the interests of justice so require.
Criminal Justice and Public Order Act 1994 section 25
932. This section places a limitation on the general right to bail in respect of those both charged with and previously convicted of certain offences. The existing section limits the previous convictions to those in the UK. Paragraph 3(2) of the Schedule extends the provision to equivalent convictions elsewhere in the European Union. Article 5 is engaged, but the present changes do not affect the pre-existing position in
domestic law, which is that this provision is applied in a way which is consistent with Convention rights (O(FC) v Harrow Crown Court [2006] UKHL 42).
Retention of knives surrendered or seized
933. Part 4 of the Courts Act 2003 and Schedule 3 to the Justice (Northern Ireland) Act 2004 provide for items carried by individuals entering court to be seized by or surrendered to court security officers. Items are seized or surrendered on safety and security grounds but returned when the individual leaves court, unless the item may be evidence of, or in relation to, an offence. Clauses 125 and 126 amend those provisions by introducing a new scheme that will enable court security officers to retain knives that have been surrendered or seized (clause 127 enables like provisions to those contained in Part 4 of the Courts Act 2003, as amended, to be made in respect of tribunal buildings). The Lord Chancellor is required by regulations to make provision for the procedures to be followed when retaining a knife; the procedure for requesting the return of a knife and the procedure for returning a retained knife. Regulations setting out the period for which unclaimed knives need to be kept before being disposed of and the procedure for disposal can be made under the Courts Act 2003 and Justice (Northern Ireland) Act 2004.
934. Under the new regulations, knives that may be evidence of, or in relation to, an offence, will continue to be brought to the attention of the police who may seize it. A knife that is not seized by the police will remain in the possession of the court until a request for return which complies with the regulatory requirements is received, as will knives that are not unlawful to carry (referred to here as “lawful knives”).The scheme which will be set out in regulations, will require that lawful knives are returned within a short period of time of a valid request for return being received, a maximum of 28 days from receipt of the request, thus minimising the period of time that a person is unable to use their knife.
935. Clauses 125 and 126 engage A1P1 since they enable court security officers to retain a person’s knife unless and until a request for the return of the knife is received. Since this scheme will enable individuals to retrieve lawful knives that have been retained, it constitutes a “control of use” rather than deprivation. In Handyside v United Kingdom 9 the ECtHR held that:
“The seizure complained of was provisional. It did no more than prevent the applicant, for a period, from enjoying and using as he pleased possessions of which he remained the owner and which he would have recovered had the proceedings against him resulted in an acquittal.
In these circumstances, the Court thinks that the second sentence of the first paragraph of Article 1 does not come into play in this case. Admittedly the expression ‘deprived of his possessions’, in the English text, could lead one to think otherwise but the structure of Article 1 shows that the sentence, which originated moreover in a Belgian amendment drafted in French, applies only to someone who is ‘deprived of ownership’..”.
936. A control of use is justifiable if it is done in accordance with law, for the “general interest”, and in a way which is proportionate to that policy objective. The Government’s view is that the proposals are justified.
937. The policy objective arises from the significant government, public and media concern about knife crime. The core legal policies for tackling knife crime involve policing and sentencing. It is inconsistent with that concern, and with the protection of the public and discouragement of carrying knives and knife crime, for the carrying of knives in an around premises used for the purposes of the criminal justice system to go unregulated. A substantial number of knives are seized or surrendered at courts and the Government wants to discourage people from carrying them when they come to court in whatever capacity.
938. In the Government’s view, the proposals would strike a fair balance between individuals’ rights and the general interest. This scheme will enable an individual to apply for and retrieve their knife within a short period of time, and so any interference with an individual’s property rights is both minor and considered justified since it would be prescribed by law and be proportionate in pursuit of legitimate aims.
939. It is HMCS policy that concealed kirpans (ceremonial swords or daggers worn by Sikhs) with an overall length of not more than 6 inches and a blade length of not more than 4 inches are not seized from individuals entering court. The Government does not consider therefore that Article 9 is engaged by these provisions.
Part 6: Legal Aid
940. Clause 128 widens the existing power to make pilot schemes in relation to the CLS. This engages Article 14 on discrimination when taken together with Article 6 on fair trial rights, because the effect of the clause is that legal aid may be available on a different basis in, for example, one area or type of court, or for people selected on a random sampling basis. However, the Government takes the view that the public interest in ensuring that a scheme works well for everyone justifies a pilot scheme which results in different people being treated differently, provided that the scheme is proportionate to the aims and that it lasts only for as long as is necessary to enable the new scheme to be tested and assessed. The Government will have regard to these considerations when making pilot schemes under the new power.
941. The Government also takes the view that although pilot schemes for the CDS are limited to an 18 month period, a 3 year period for CLS pilots is justified and proportionate; as such pilots may involve a wide range of civil cases, many of which will typically last for up to 3 years.
942. Clause 129 clarifies that matters arising from a proposal to establish a business, or a termination or transfer of a business, as well as those arising from the carrying on of a business, are excluded from the scope of funding as part of the CLS. This engages Article 6 in cases where legal assistance is regarded as necessary to a fair hearing. However the Government considers that whilst business cases should not be a priority for legal aid, the availability of exceptional funding for such cases is sufficient to satisfy any concerns.
943. Clause 130 amends the provisions on information requests in the Access to Justice Act 1999 under which the LSC may obtain information from other government departments for the purposes of applying the financial eligibility test for public funding in criminal cases in magistrates’ courts. Those provisions were inserted by section 57 of the 2008 Act and were similar to those in the 2007 Act. The clause extends the power to cases in which information is required for the purposes of contribution orders under section 17A of the Access to Justice Act 1999 and also makes minor amendments such as making it possible for requests to seek information about an individual's past benefit status and employment.
944. The Government takes the same position on this clause as on the similar provisions in the 2007 and 2008 Acts. Although the clause engages Article 8, the Government considers that the disclosure is in pursuit of a legitimate aim within Article 8(2), that is to say the right of the state, for the economic well-being of the country, to require people who can afford to contribute to the cost of legal services provided for them to do so. It also believes that the measure is proportionate by reason of the safeguard of the criminal sanction against using the information for purposes other than those permitted by the clause.
945. Clause 131 and Schedule 16 deal with the enforcement of orders requiring individuals to contribute to the legal aid costs of their Crown Court cases. There is one aspect of these provisions, the introduction of motor vehicle orders, which engages A1P1. A motor vehicle order is an additional method of enforcement under which a vehicle belonging to an individual who has failed to pay his contribution may be clamped and sold, with the proceeds of sale being applied to discharge his liability. The clamping and sale of a vehicle would amount to a control of the use of property and deprivation of property. The Government is of the view that a sale is a deprivation of property “in the public interest” under the first paragraph of A1P1 and that a clamping order is a control of use “in accordance with the general interest” under the second paragraph of A1P1, because they relate to the payment of a debt and because of the underlying policy justification of contribution orders, that those who are able to pay for or contribute towards the cost of their publicly funded representation should do so.
946. Further, the second paragraph of A1P1 also permits a state to enforce such laws as it considers necessary to secure the payment of taxes “or other contributions”. “Contributions” includes compulsory contributions to state benefits (Van Raalte v Netherlands [1997] 24 EHRR 503) and in the Government’s view it would be
reasonable to treat contributions towards the costs of a person’s legal aid in the same way.
947. Although the whole of A1P1 has to be read in the light of the principle of fair balance and proportionality, in the Government’s view the restriction to cases in which a court has to be satisfied that the individual has wilfully refused to pay or been culpably negligent in not paying renders the provisions proportionate (see the relevance of the fault of the owner of the property in cases of seizure of property referred to in AGOSI v UK [1987] 9 EHRR 1). Motor vehicle orders may only be made by a court, which has a discretion whether or not to make an order in the light of the defendant’s circumstances. It would also be possible to seek judicial review of the court’s decision or to appeal by way of case stated. Similar provisions are contained in the Courts Act 2003 in respect of the non-payment of fines.
Part 7: Criminal memoirs etc
948. Part 7 empowers an enforcement agency to apply to the High Court for an “exploitation proceeds order” in respect of qualifying offenders who have obtained any benefit from the exploitation of material pertaining to a relevant criminal offence. The provisions also apply to Scotland and Northern Ireland. In the case of Scotland an application for an Order would be made to the Court of Session. In Northern Ireland, the application is made to the High Court in Northern Ireland. If made, an Order would require the offender to pay such benefits to the enforcement agency, which must pay the sum into the Consolidated Fund. Interest is payable on sums not received by the required date. These proposals are likely to engage Article 10 and A1P1.
949. A qualifying offender is a person who has been convicted of an offence by a UK court or has been found not guilty by reason of insanity or found to be under a disability when committing the offence. A UK national or resident convicted of an offence abroad where that offence would have been an offence in the UK both at the time it was committed and when the application for the order is made is also included, as are convictions for a UK service offence and their foreign equivalents.
950. A relevant offence is (a) the offence by which the person is a qualifying offender, (b) an offence which was taken into consideration by a court in determining the sentence of an offence within (a), or (c) an offence committed by another person which is associated (in a prescribed way) with an offence within (a) or (b).
951. The exploitation of material pertaining to a relevant offence may be by any means, including publication of any material in written or electronic form, the use of any media from which visual images, words or sounds can be produced and live entertainment, representation or interview. The person is to be regarded as having derived a benefit if they secure the benefit either for themselves directly, or for another person.
952. If it makes an order, the court has a discretion as to the “recoverable amount”. But this must not exceed the lesser of the total value of the benefits identified and the “available amount”. The latter is the aggregate value of the respondent’s relevant assets, any benefits secured for third parties and the value of such relevant gifts made by the respondent as the court considers it just and reasonable to take account of. The recoverable amount may be nominal.
953. In deciding whether to make an order and in setting the recoverable amount, the court must consider certain specified matters and may take account of any other matters that it considers relevant. The former include the nature and purpose of the exploitation, the degree to which the relevant material was integral or of central importance to the activity or product, the extent to which the activity or product is in the public interest, any social, cultural or educational value, the seriousness of the offence in question and the extent to which the victim of the offence, their family or the general public is offended by the exploitation.
954. Existing powers of investigation under Part 8 of POCA will apply. The enforcement agency will be able to use production orders, search and seizure warrants, disclosure orders, customer information orders and account monitoring orders. The scheme also allows the court making an exploitation proceeds order to make an additional proceeds reporting order if the likelihood of the respondent obtaining further exploitation proceeds from a relevant offence is sufficiently high to justify it.
955. It is arguable that Article 10 could be engaged because the scheme might deter people from writing or speaking etc about their offences, thus limiting that person’s freedom to impart information and the rights of others to receive it. If Article 10 is engaged, the Government considers that any interference is justified. Article 10 is a qualified right and may be subject to restrictions that are prescribed by law and necessary in a democratic society in pursuance of a legitimate aim.
956. These proposals will be prescribed by law with precision in primary legislation. Preventing criminals from profiting from their crimes by receiving benefits for, for example, writing books has the legitimate aim of protecting the rights of others (including the victims of those crimes and their families) and protecting morals. They meet the pressing social need to allay public concern about criminals profiting from their criminal behaviour, and are both necessary to achieve that aim and proportionate in doing so. The scheme only relates to those who have committed crimes and would not prevent publication of relevant material but provide for a means for the benefit of publication to be recovered. Only the High Court can make an order and determine the amount payable under an order on an application. In doing so it must not only act in a way which is consistent with Convention rights, but will be expressly required to consider factors including any public interest in the publication and any social, cultural or educational value, and may also consider other relevant factors.
957. Any order would engage the A1P1 rights of the person against whom it is made. However, the Government considers that the interference would not infringe those rights. States have a broad margin of appreciation in determining the balance between an individual’s peaceful enjoyment of his possessions and the interests of society generally. For the reasons given above, the Government considers that the proposals strike a fair balance between the right of the individual and the general principle that a criminal should not profit from his or her own crime.
958. These provisions are therefore consistent with Convention rights.
Part 8: Data Protection Act 1998
959. Clause 151 amends the 1998 Act to confer power on the Information Commissioner to conduct mandatory assessments of compliance with the data protection principles. Only public bodies can be the subject of such assessments and that term covers ministerial and non-ministerial government departments, local authorities, certain NHS bodies and certain police bodies. There is also an order-making power to add executive non-departmental bodies sponsored by a ministerial government department. All of the bodies that will be covered by the new powers are public authorities within the meaning of the HRA, as such they do not enjoy human rights.
960. The clause requires the Information Commissioner to issue guidance, that must be approved by the Secretary of State, on how he will exercise these new powers. It is likely that the Information Commissioner’s new powers will involve the employees of a public authority having to provide information or answer questions. As those employees act as the agents of the public authority, who itself does not enjoy human rights, it is unlikely that the human rights of the employee will be engaged. No employee will be required to answer questions and so there is no risk of infringing the privilege against self-incrimination. However, if an employee is asked questions about or asked to provide information about his or her work within the public authority this may in rare cases engage Article 8. If Article 8 is engaged it is considered that any interference can be justified under Article 8(2). The provisions will appear in the 1998 Act and so this will satisfy the requirement of being in accordance with the law. The Government further considers that any interference that did occur would solely be the result of the pursuit of the legitimate aim to provide the most comprehensive protection of the data rights of others as the Information Commissioner will be considering whether there has been compliance with the data protection principles by the public authority. The data protection principles are compulsory rules on the handling of personal data that are essentially aimed at the protection of the Article 8 rights of individuals. Finally, it is considered that the powers are necessary in a democratic society, in that they are a proportionate response to a legitimate aim. The reasons for this are as follows. First, the Information Commissioner’s powers will be limited: he will not be able to force entry to premises, search premises, take material or equipment away or retain it. Secondly, employees will be asked questions and to provide information in their role as an employee of the public authorities rather than personally. Thirdly, employees will not be obliged to answer questions or provide information. Fourthly, the Information Commissioner is a public authority that must act in accordance with the HRA.
961. Clause 152 provides ministers with a specific power to authorise the sharing of data between two or more persons. Under current legislation data controllers may share personal data where they are not barred by statute (or by the effect of Article 8 of the ECHR, the common law, or the law of confidence) from doing so and where it is not prohibited by the various provisions of the 1998 Act. 10 Where one of the controllers is a body governed by administrative law there are likely to be restrictions upon what actions it has the power to carry out within the governing framework of public law. Statutory bodies in particular are only able to act as is provided for by statute.
962. Under the existing legal framework such difficulties can only be countered through primary legislation specifically authorising the bodies concerned to share data. This clause creates a free-standing power for ministers to enact secondary legislation which will have the effect of removing all barriers to data-sharing between two or more persons, where the sharing concerns at least in part the sharing of personal data, where such sharing is necessary to achieve a policy objective, where to do so is proportionate, and where this strikes a fair balance between the public interest and the rights of any individual effected by the data-sharing.
963. This clause engages Article 8 because it provides a means by which the further processing of an individual’s personal data can be expressly authorised where it would otherwise have been prevented. Thus an order under this clause will allow information relating to the private and family life of individuals to be processed in ways and by persons that it would not have been were it not for this clause. Even where Article 8 is engaged, exercise of this power is, in the Government’s view, justified as being in accordance with the law, necessary in a democratic society and in pursuit of a legitimate aim.
964. Each order will be drafted to serve its own unique purpose, it is therefore not possible to say in advance the specific aim each such order will pursue. However the clause provides that such orders can only be made where it is necessary to achieve a policy objective of the relevant minister. Because the order must be necessary to achieve a policy objective of a minister then reading it in light of the ECHR, combined with the fact that Ministers are bound to act in accordance with the provisions of the HRA, all such orders will be in pursuit of a legitimate aim as per Article 8(2).
965. The clause also provides that an order can only be made where the order is proportionate to the policy objective, and where the order strikes a fair balance between the interests of the data subjects concerned and the public interest as a whole. Additionally the orders concerned here are subject to the affirmative resolution procedure, thus they will be subject to particular Parliamentary scrutiny before they can come into effect. When these combined factors are taken into consideration the Government is satisfied that any interference of Article 8 will be capable of being justified under the provisions of Article 8(2).
966. The 1998 Act as it is currently in force provides the Information Commissioner with a power to apply for warrants of entry and inspection relating to places where there are reasonable grounds for suspicion that either; a data controller has contravened or is contravening any of the data protection principles, or that an offence under the 1998 Act has been or is being committed; and that evidence of the contravention or of commission of the offence is to be found at the place specified in the warrant.
967. Clause 154 and Part 3 of Schedule 18 provide for the amendment of the Information Commissioner’s powers to serve “Information Notices” and “Special Information Notices” under sections 43 and 44 of the 1998 Act respectively.
968. Under the 1998 Act as currently enacted the Information Commissioner can require data controllers to provide him or her with certain specified information as a part of the Information Commissioner’s role of enforcement of the 1998 Act. The provisions of this bill set out above modify these powers.
969. Sections 43 and 44 of the 1998 Act currently restrict the Information Commissioner to requiring information of a type the Information Commissioner has “specified” in an Information Notice. Thus whilst the Information Commissioner could request that the information is provided orally, the current mechanics of the system are such that any oral answers given are likely to be scripted replies to the “specific” information requested in the notice. This proposal allows the Information Commissioner in the Information Notice to request either that specific information is provided to him, or that the data controller is to furnish the Information Commissioner with information falling within a category of information specified or described in the information notice.
970. Secondly the current powers do not give the Information Commissioner explicit power to specify the time or the place that the information requested must be given. The Information Commissioner can only request that an Information Notice be satisfied before the expiry of a certain period. This amendment will allow the Information Commissioner to specify a time or a place in addition to the existing power that the Information Commissioner can require that an information notice should be satisfied within a specific period of time.
971. Article 8 is arguably engaged in relation to these amendments to the 1998 Act. The powers being amended apply to data controllers as a group. Some data controllers are natural persons, and so the ability to require information to be provided by those persons at a specific time and place could impinge upon a person’s right to a private and family life because it requires the presence, participation and answering of questions by that person 11. Even where the data controller is not a natural person, it is still arguable that Article 8 is engaged because it is the employees of the data controller who will be obliged to actually satisfy the requests for information. They benefit from Article 8 in their own right and so it is arguable that Article 8 is engaged, not because of the effect of the provision on the data controller but because of the effect upon his or her employees.
972. Because the powers provided by sections 43 and 44 will continue to be exercisable only when the Office of the Information Commissioner is either acting upon a request to investigate particular processing or is investigating compliance with the data protection principles, the Government considers that any interference with an individuals’ private and family life is proportionate and necessary in the interests of the protection of the rights and freedoms of others because it is a necessary part of the data protection regulatory and enforcement regime.
973. As is clear, the power to request information in the circumstances described is already in existence. The effect of the clause here is limited to altering the manner in which the power can be used. Though Article 8 is engaged by the fact that potentially the satisfying of the request involves interfering with the right to a private and family life, such interference will be in accordance with the law.
974. Any interference would also only be the result of the pursuit of the legitimate aim to provide the most comprehensive protection of the data rights of others and the prevention of data crimes such as the wrongful disclosure of confidential information. First, we believe that the amended section is necessary in a democratic society for the purpose of the protection of the rights and freedoms of others. It is only by ensuring that the Information Commissioner has a sufficient range of enforcement powers that the public can be sure that the personal data of individuals within our society is sufficiently protected from and safeguarded against the negligent and/or the malicious use of that information to the detriment of the public. This is part of a package of enhancements to the enforcement and compliance powers of the Information Commissioner that were assessed as being both desirable and necessary in a recent public consultation. 12 Secondly we consider this extension to be necessary in a democratic society for the purposes of preventing and prosecuting crime. The power to ask un-scripted questions that must be answered gives the Information Commissioner a powerful investigatory tool, that can act both as a deterrent as well as a practical mechanism supporting enforcement actions and prosecutions (whilst restricted to only directly providing evidence for a very limited category of prosecutions).
975. This enhancement to the powers of the Information Commissioner is necessary and proportionate for a number of reasons. First, it remains the case that these powers can only be used by the Information Commissioner in the limited circumstances where he has either received a request to investigate or where he has reasonable requirement to determine whether there has been a breach of the data protection principles. Consequently the extended powers are equally restrained in application to these limited scenarios, where their use is entirely appropriate.
976. Secondly, because the amendments do not alter the governing structure of these powers their exercise by the Information Commissioner is subject to appeal to the Information Tribunal. The third reason that this matter can be considered proportionate, is that the Information Commissioner is a public authority and so his actions (including the exercise of these new extended powers) are subject to the usual public law scrutiny of the HRA and the process of Judicial Review. Thus the use of these powers is properly scrutinised by both the Tribunal and the Courts, thus ensuring that they are only used appropriately. Fourthly, the Bill specifically recognises these provisions raise issues in relation to the privilege against self-incrimination, by making explicit statutory safeguards for this principle. Lastly, this particular amendment can be considered to be both proportionate and necessary because of the fundamental obligation upon the Information Commissioner to protect the privacy rights of the public generally. Therefore when balancing the potential infringement of the Article 8 rights of the limited number of individuals who will be subjected to this new power, against the public interest in ensuring that the Information Commissioner is provided with sufficient and appropriate tools so that he is able to properly protect personal data, it is clear that this clause represents a proportionate and necessary amendment to the 1998 Act.
977. Therefore the Government considers that the extension of these existing powers is proportionate and necessary in order to bring the Information Commissioner’s powers in line with that of other regulators and to provide him with the proper tools to enforce the data protection regime.
978. A1P1 is also engaged. It is established legal principle that items of intellectual property such as licences 13 and trademarks 14 can be considered property in relation to this right. Therefore it is possible for specific types of information to amount to property within the meaning of the ECHR. As the Information Commissioner under the provisions can request the provision of “information”, it is possible depending on the nature of the information that A1P1 would be engaged. Because the 1998 Act requires the Information Commissioner to be “furnished” with the information requested it is possible (particularly if there is only one copy of the information or if it is of particular significance) that satisfying the Information Commissioner’s request could amount to an interference with the owners right to peaceful enjoyment of his possessions. In the majority of cases the Information Commissioner will be provided with a copy of the information and no issue is likely to arise. However where an interference has arisen, we argue that the interference would be justified as the enforcement of a law deemed “necessary to control the use of property in accordance with the general interest”. The amendment to this section does not in anyway expand the effect this section already has on the A1P1 rights of individuals; additionally it can be considered a proportional measure under that Article in relation to the provisions of Article 8. Therefore the Government considers that the amended section remains compatible with A1P1.
979. Clause 154 and Part 4 of Schedule 18 make various amendments to the 1998 Act. These include necessary consequential amendments relating to the expanded questioning powers granted to the Information Commissioner. They are all aimed at protecting the Article 6 rights of individuals who are questioned by the Information Commissioner under his extended powers. Using those extended powers a person could be required by the Information Commissioner to provide written or oral information that could incriminate themselves.
980. Paragraphs 8(1) to (3), 9(1) to (3) and 10 of Schedule 18 provide for additional specific exceptions to be made to the general rule against self incrimination. Under the existing legislation a data controller served with a information notice, a special information notice, and/or a subject access request is not obliged to provide information to satisfy the notice or request if the revelation of that information would potentially incriminate the data controller. However, under the existing legislation the data controller cannot withhold the information under this section if the potential incrimination relates to an offence under the 1998 Act. The paragraphs of the Bill set out above widen this exception to also include the offence of false statements made otherwise than on oath (as well as the Scottish and Northern Irish equivalent offences). The extension of the exception is necessary because were such information excluded from being evidence it would necessarily be impossible to prosecute this offence where the offence came to light as a result of the use of the Information Commissioner’s powers. The false statement offences can be committed by a Data Controller making a false declaration on his registration form. If this is suspected the Information Commissioner could issue an Information Notice requesting information as to the Data Controllers processing activities to discover the true situation. Were the Data Controller able refuse to comply with the Information Notice, it would be largely impossible for the offence to ever be successfully prosecuted. The reason being that the information concerned is an essential part of the offence, without that information being available the offence could not exist. It is therefore proportionate and strictly necessary that in such cases the information concerned is capable of being used as evidence in prosecuting these limited offences.
981. The other paragraphs in Part 4 of Schedule 18 provide that any statement provided to the Information Commissioner under the amended powers in sections 43 and 44 of the 1998 Act to require the provision of information under coercion, cannot be used as evidence in prosecuting the maker of that statement for any offence under the 1998 Act 15 unless the maker gives evidence inconsistent with the statement and evidence is either adduced or a question is asked relating to it by or on behalf of the maker of the statement. The paragraphs are therefore aimed at protecting a person’s privilege against self-incrimination, by placing restrictions upon the use of information obtained under this power. There is a line of domestic case law that suggests that the privilege against self incrimination is only brought into play at the point when evidence might be used in a criminal trial, 16 however the Government takes the view that having proper regard to the case law of the ECtHR 17 this is incorrect and the privilege in fact exists prior to that point.
5 Except for the section 47 offence of failing to comply with a notice requiring the provision of information.
6 See R v Herefordshire County Council ex parte Green Environmental Industries [2000] 1 All ER 773 HL
7 In particular the previously cited case of Funke v France 1993, and Shannon v UK 6563/03 4th January 2006
982. The protection afforded by those paragraphs is restricted to statements made by individuals directly questioned by the persons executing the power. This avoids undermining the principle that certain evidence obtained from the defendant, that has an existence independent of the defendant, does not engage the privilege against self incrimination at all. 18
983. The statements concerned here are also allowed under the operation of this clause to be used in evidence where the individual concerned seeks in proceedings to give evidence inconsistent with that of the statement and that person or others acting on his behalf also adduce evidence or ask a question relating to that statement. The exception essentially provides that a defendant loses his or her privilege if he or she, or his or her agents, seek to mislead the court as to the nature of his or her initial statement. 19 This is an equitable provision that seeks to ensure that a defendant is unable to misuse this ‘shield’ to benefit himself or herself in such a way that he can assert that he made an entirely different and exculpatory statement. The clause here is almost identical to that found in operation in a number of other pieces of legislation currently in force. 20
984. Clause 154 and Part 6 of Schedule 18 expand the Information Commissioner’s existing warrant power so that in addition to the existing powers to enter, search, inspect, examine, operate and seize; the Information Commissioner would also be enabled “to require any person on the premises to provide an explanation of any document or other material found on the premises” and “to require any person on the premises to provide such other information as may reasonably be required for the purpose of determining whether the data controller has contravened or is contravening the data protection principles”.
985. This limited expansion specifically empowers the Information Commissioner to ask questions of those present at the site of the search. Article 8 is engaged by the fact that the compulsory questioning of individuals can involve interfering with their right to a private and family life, by requiring them to provide information they would otherwise be at liberty to keep confidential. However, such an interference will be in accordance with the law and, in any event, the majority of such questioning would be unlikely to engage the right to a private and family life, considering that the questioning will almost always be of employees about the business practices of their employer who will usually be a legal rather than a natural person that does not benefit from the protection afforded by the right to a private and family life.
986. The Government further considers that any interference that did occur would solely be the result of the pursuit of the legitimate aim to provide the most comprehensive protection of the data rights of others and the prevention of data crimes such as the wrongful disclosure of confidential information. The expanded warrant power to include the ability to compulsorily question individuals is necessary in a democratic society for the purpose of the protection of the rights and freedoms of others. The Information Commissioner’s range of statutory powers needs expanding in order that the Information Commissioner can ensure that the personal data of individuals is sufficiently safeguarded against misuse. By enlarging the search powers to specifically include questioning powers the Information Commissioner is provided with a practical investigatory and enforcement tool, that together with the other enhancements to his powers provided in this bill guarantee that the Information Commissioner is properly empowered to protect the data rights of the public. Because the misuse of personal data can result in the causing of substantial damage to individuals, the Government considers that this limited measure to improve the effectiveness of the Information Commissioner’s enforcement powers is proportionate to the aim of protecting the rights of others.
987. As set out above, it is established legal principle that items of intellectual property can be considered property for the purposes of A1P1. The Schedule 9 warrant power allows for seizure of items which would clearly engage that Article. However this element of the power remains unchanged.
988. The new element introduced in this Bill are that the Information Commissioner, will be able to require the explanation of any document or require the provision of such other information as may reasonably be required. As discussed above, it is possible depending on the nature of the information that A1P1 would be engaged. It is also possible that satisfying the IC’s request could amount to an interference with the owner’s right to peaceful enjoyment of his possessions, for example, because the information’s value was based on it being confidential. In the majority of cases it is unlikely that an issue will arise. However where an interference has arisen, the Government’s view is that the interference would be justified as the enforcement of a law deemed “necessary to control the use of property in accordance with the general interest”. The amendment to this section does not in anyway expand the general effect this section already has. In fact the provision of answers to specific questions is likely to be the element of a search least likely to impact upon the property rights of individuals. Therefore the Government considers that the section amended as proposed, remains compatible with A1P1.
989. Article 6 is also engaged. The questions asked of persons present at the scene of the search are compulsory in that intentional obstruction of and failing to give reasonable assistance to the persons executing the search are existing offences under paragraph 12 of Schedule 9 to the 1998 Act. This Part further adds that in relation to this particular extension of the warrant power, it is also an offence if a person deliberately or recklessly makes a statement in response to such questioning which they know to be false or misleading in a material way. 21 Consequently the individuals concerned are obliged under threat of criminal sanction to answer the questions put to them This engages the Article 6 right already discussed against self-incrimination, and so new paragraph 16 of Schedule 9 to the 1998 Act (inserted by paragraph 12(4) of Schedule 18 to the Bill) is included to safeguard this right by providing that any statement provided to the Information Commissioner under the amended warrant powers, cannot be used as evidence in prosecuting the maker of that statement unless one of the following exceptions apply.
990. The information obtained can be used for a prosecution for the offence provided at paragraph 12 of Schedule 9 to the 1998 Act. This is because were the contents of the statement made by the individual excluded from being evidence it would necessarily be impossible to prosecute this offence. The reason being that what was or was not said in answer to the request is an essential part of the offence, without that information being available the offence could not exist. It is therefore proportionate and strictly necessary that in such cases the statements are capable of being used as evidence.
991. The information obtained can also be used in relation to the offence under section 5 of the Perjury Act 1911 (and the parallel offences in Scotland and Northern Ireland)) of making false statements otherwise than on oath. The reason for this exception is identical to that set out above for the paragraph 12 of Schedule 9 offence.
992. Lastly such information can be used as evidence against the maker of the statement where the maker gives evidence inconsistent with the statement and evidence is either adduced or a question is asked relating to it by or on behalf of the maker of the statement. As set out above, this exception is of a standard form that essentially provides that a defendant loses his privilege against self-incrimination if he or his agents seek to mislead the court as to the nature of his initial statement. This is an equitable provision that seeks to ensure that a defendant is unable to misuse this ‘shield’ to benefit himself in such a way that he can assert that he made an entirely different and exculpatory statement to the one he in fact did, and thereby seek to profit from his malfeasance. Because of its very specific purpose limitation and application the Government considers that this exception to the privilege against self-incrimination is both proportionate and necessary in a democratic society.
993. Therefore the Government considers that this specific and limited extension of this existing power is proportionate and necessary in order to provide him with the proper tools to enforce the data protection regime, thus protecting the rights of others.
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