The Government has decided not to commence the custodial element of the Section 55 offence of the Data Protection Act until the Leveson’s recommendations in relation to the press regulation are done and dusted. Indeed, I now suspect that the Government does not want to commence a custodial S.55 offence at all.
In addition, one can expect that data protection, phone hacking and blagging will continue to be in the headlines over the next few months. This is because the tabloids that were pilloried for phone hacking during the Leveson Inquiry have a score to settle and have a target in sight..
After all, why should a list of 100 plus organisations given to MPs by the police on a confidential basis (including 20 plus law firms) remain unpublished, when the firms on the list used convicted private investigators to obtain personal details in possibly the same dodgy circumstances as the press.
These are the conclusions, I have reached given the Government’s response to the Home Affairs Select Committee report into the use of Private Investigators (see reference).
Why Government is now opposed to the S.55 custodial offence
The Government’s argument against the custodial element of the S.55 offence can be summarised as follows:
(a) one does not need another custodial offence if there is a one-off misuse of personal data (e.g. someone looking up details about an ex-partner or a neighbour); and
(b) a custodial element is found in other legislation when more serious misuse occur.
I shall now provide evidence for the two bullet-paragraphs above.
The Government in its response to the Committee recognises that “the misuse of personal data needs to be treated very seriously” and that “the fines handed down by the Courts for offences committed under section 55 of the Data Protection Act (DPA) are relatively low”.
However, the Government then state that “the first principle in relation to fines is that they should reflect the seriousness of the offence” and “it is important to emphasise.…that these fines must take account of defendants’ means; many of the cases cited as resulting in low fines relate to one-off, opportunistic actions, rather than the persistent, systemic illegal activity which appears to be the subject of the Committee’s report”.
In other words, the Government are saying that any custodial element of the S.55 offence should focus on “systemic illegal activity”.
The Government then state that in relation to this “more organised activity” (e.g. carried out by unscrupulous private investigators) there are a number of custodial options available; these are:
“The Regulation of Investigatory Powers Act 2000, which would apply to a private individual who had unlawfully intercepted communications”.
“Unauthorised access to computer material under the Computer Misuse Act 1990 is also relevant to this activity” (both RIPA and CMA offences carry a maximum penalty of a two year prison sentence).
“Under the Fraud Act 2006, it is an offence to dishonestly make a false representation (including as to identity) with a view to financial gain, which could cover the activity of “blagging”, depending on the circumstances of the case”.
“The maximum sentence is ten years’ imprisonment. Bribing another (or being bribed), contrary to the Bribery Act 2010, is an offence which carries a maximum penalty of ten years’ imprisonment”.
“Further, a custodial sentence can be imposed for the common law offence of misconduct in public office, which could apply where public officials, such as police officers, were complicit in releasing information illegally to private investigators”.
In addition, the financial gains made by private investigators can be recovered. The Government state that “the use of the Proceeds of Crime Act 2002 is an effective way of depriving offenders of the financial benefits obtained from their criminal conduct”.
Finally, “the Committee will also be aware that the fines available to Magistrates for these offences will be unlimited in the future (as they are currently in the Crown Court) after commencement of section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012”. Note that this extension of the fines available to Magistrates will apply to notification fines as well.
I think the above is pretty conclusive that, despite several recommendations from a number of Parliamentary Committees (and innumerable pleadings from the ICO), the Government now think a custodial S.55 offence is unnecessary: fines for minor transgressions (which can be now unlimited once S.85 is commenced) and other laws to deal with the custodial element.
There is political advantage in "waiting for Leveson"
Let’s be honest; parts of the Government want Leveson to simply “go away”. It knows that any implementation of Leveson, other than the adoption of the version of the Press Royal Charter proposed by the “PressBof” (a group of proprietors led of the Daily Mail), is likely to result in a range of negative headlines. This is especially problematic for political parties if such tabloid headlines were to appear as a backdrop to the General Election hustings in 2015.
Cynics who see recent Government decisions re dropping the minimum pricing for alcohol, or discarding the idea for plain tobacco products packaging, or the Home Office van that trails a “go home now” poster, or the mooted selling of Lloyds TSB shares early etc as being motivated by party political advantage (rather than the public interest), could possibly add the tactical implementation of Leveson to their list. For instance, one can postulate that Conservative acceptance of the “PressBof position” towards press regulation at the end of next year could leave other political parties at a disadvantage.
Officially, however, the decision relating to a custodial element to the S.55 offence has to wait for ALL of Leveson’s recommendations with respect to data protection to be discussed in a round of public consultation. This is shown by the following quotes:
“In his report, published on 29 November 2012, Lord Justice Leveson made a number of recommendations in relation to the existing data protection framework, including a recommendation to introduce custodial sentences for s55 offences and the enhanced public interest defence”.
“Given the potentially far-reaching nature of Lord Justice Leveson’s proposals in relation to data protection, in particular for the conduct of responsible investigative journalism, it is the Government’s view that the recommendations require careful consideration by a wide audience”.
“It is therefore our intention to conduct a public consultation on the full range of data protection proposals, including the introduction of custodial penalties, which will seek views on their impact and how they might be approached”.
So when will this public consultation occur? Well let’s assume it is started in October/November this year, with 3 months to get responses from the public, with 3 months to consider responses from the public, and finally 4 months to publish some kind of response, we conveniently find ourselves in the run up to the next election.
Just the right time for a political party, as an election tactic, to announce agreement with “Pressbof” position re Leveson. A step that would guarantee good headlines for the duration of the campaign.
References
The Government Response to the Fourth Report from the Home Affairs Committee (Session 2012-13: HC 100): http://www.parliament.uk/documents/commons-committees/home-affairs/32420_Cm%208691%20v0.1.pdf
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