We can’t disclose because of the Human Rights Act

It used to be the Data Protection Act, but now it appears that the Human Rights Act has caught the disease described by the statement: “we can’t do anything because of the Human Rights Act”.

Dominic Grieve, Shadow Minister of Justice, has just contracted the infection. He said yesterday at the Conservative Party Conference: “How many times have we seen police or probation officers say they can’t disclose the identity of a criminal because of his privacy under the Human Rights Act?”. For example, the “Police in Derbyshire refused to disclose photos of fugitive murderers” and “the Serious Organised Crime Agency say they can’t name gangsters”.

He added that the position was a “complete nonsense” and announced that a future “Conservative government will change the rules for people charged with protecting the public on the frontline. Why?  So it’s clear crystal clear that protecting the public takes precedence over the privacy of criminals”.

In practice the law is not a barrier and the publishing of criminal personal data is bounded by two human rights cases. The first one is the Gary Ellis case. He contested Essex Constabulary’s decision to feature his photograph, name and conviction details on posters in his home town. His successful human rights argument was based on the fact that he was currently serving a three-and-a-half year sentence for theft offences, and the use of posters would unfairly stigmatise him and his family especially his young children (e.g. who might become targets of bullying at school or other forms of ostracism).

The Ellis ruling specifically referred to the "inappropriateness" of using any offender in the scheme who was a parent. This implies that if Essex Constabulary had chosen a criminal who did not have children, the outcome could have been different; in fact, I think that the position of the children was the pivotal in the case.

The other bound to the act of publishing criminal details is the judgment surrounding the naming of teenagers by the London Borough of Brent. A gang of seven youths had created mayhem over two years and the Council gained an Anti-Social Behaviour Order (ASBO) in September 2003.  The Council wanted to publish their photographs to enforce the ASBO. However the youths argued that publishing personal details and photographs in this manner had been unnecessary, especially if the information ended up on the internet, gaining worldwide exposure.

In this case, the Court decided that there was no breach of Article 8 and the publicity was a proportionate response to target enforcement of a punishment on those responsible for the anti-social activity. This is in contrast to Gary Ellis, where the target of the publicity was to target individuals other than Gary Ellis.

Such publicity is not contrary to the Data Protection Act 1998, as section 29 of the Act permits the disclosure of personal data where failure to disclose would prejudice to a criminal inquiry. This means that personal data can be published with a view to compliance with a statutory function that is necessary for the “apprehension of offenders”. That is why the police can publish details of sex-offenders who have gone missing.

So if details can be published to enforce an ASBO, I see no barrier in publishing the details of “fugitive murderers” and violent criminals where this is necessary to protect the public or apprehend the offender. Note that “necessary” is a limitation, it does not mean “useful”.

There are problems with the Conservative approach to more general publicity. In the UK, we have the presumption of innocence and the willy-nilly activity of publicising individual photos in relation to criminal activities has to be weighed the context of jeopardising the criminal trial itself. In addition, what would publicity do to an offender who has a history of violence and mental illness; could any publicity cause the offender to panic in a way that harms the public? If the police publish the details of any offender, will that encourage identity theft or more crime if the individual concerned goes underground?

In short, publishing details of criminals or suspects needs to be considered on a case-by-case basis and care is needed as to the possible consequences. The current statutory framework allows publishing but also requires such due care and deliberation.

So what advice do I give to patient Dominic Grieve to treat his infection? How about “Please do the analysis before you speak and not afterwards”.

 

Comments

[Martin]

In another case, did not the killers of Jamie Bulger successfully argue that publication of their adult identities (i.e. photos of them) lead to them being attacked and thus breach their right to life under Article 2? Or did I dream that?

[Chris Pounder - Amberhawk]

Correct. The issue was that the press wanted to publish updated details of Venables and Thomson; the judge decided that Article 2 (right to life) trumped Article 10 (free press related matters). The judgment did not consider A.8 (which was in the two cases in the blog).