This exemption relates to all criminal offences except offences under the
data protection act.  A controller can withhold information if it would
expose the controller to proceedings for any offence.

Also, any information that is released by a data controller under section 7
cannot be used in any criminal proceedings against that data controller for
an offence under the 1998 Act.  (Schedule 7, para 11)(Taken from Carey, 2000
page 105.)

Jenny Grodzicka
Information Officer
Wiltshire County Council

Jenny Grodzicka
Information Officer
Wiltshire County Council


-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Ian Welton
Sent: 05 August 2004 12:00
To: [log in to unmask]
Subject: [data-protection] Bemused - Assistance requested

DPA 1998, Schedule 7, para 11(1) & 11(2) cover the long established legal
concept of self-incrimination and provide the exemption from SAR for
information which may reveal any offence.

Having categorically given this paragraph a thorough and vigorous test
during the last two years I am somewhat bemused that not once has it been
used to take me to task.

As puzzling is:-

+ No relevant case that I am aware of has quoted this paragraph, although
some explicitly refer to the DPA and evidential matters;
+ Organisations appear to resist SAR requests where they feel vulnerable to
DPA offences, seemingly totally missing the possible DPA defence provided by
this section.

Looking at this from an individual perspective:

+ Organisational DPO's could either not be aware of that schedule entry due
to a lack of training, or be in such a position they are unable to advise
their organisation effectively, or be fully cognisant of all the issues
involved in this point, and taking advantage of that paragraph so few
problems come to light by that route;
+ s.7 requestors could be being placated by open disclosure and not moving
to legal action;
+ The IC - Could possibly not be very interested in promoting an area which
could effectively neuter many of the actions they may take.
+ The courts stance that they should determine the legitimacy of evidence,
rather than have the political sphere interfering in justice, could have
undermined the perceived rigour of that part of the act.
+ The interests involved in pursuing various matters could see little
benefit in a wide awareness of this section, and so may use a whispers in
the night type of technique, as a method of suppression or gaining some
access to material which they may not otherwise get without greater expense.
+ I could have completely misinterpreted the meaning and scope of that
section.
+ People may have originally perceived my cause or just been kind in not
taking me to task

I would be grateful for any views which may clarify my understanding of this
paragraph of the DPA 1998.
As many will be aware my interest is, and remains, privacy based, as such I
perceive this as one facet of a greater whole.

Ian W

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