Fellow thinkers,

 

You may recall that some time before Christmas I posed the question as to whether a company could use the information obtained

Under section 29 exemptions for the purpose of a civil action. I received a number of responses for which I am grateful. Unfortunately they did not address the question which I probably could have explained better. So here goes.

 

What some of you may not know is that a number of private companies conduct their own criminal investigations for the purpose of  a private prosecution or handing over the evidence obtained to the police for them to conduct the prosecution via the Crown Prosecution Service.(CPS) It is these circumstances that I am trying to research.

 

The scenario is: ABC plc has conducted a criminal investigation. During that investigation they made a number of requests for information under section 29. A number of data controllers provided information in response to these section 29 requests.

 

ABC plc hands the evidence to the police/CPS who for reasons best known to themselves decide not to prosecute. ABC plc now decide to go for a civil action. Can ABC plc use the information that they gathered using the exemptions provided by section 29  to support their civil action? It would seem that they could make a request to the police/CPS under section 35 for the evidence that ABC plc had originally provided to the police/CPS. But if they don’t make that request and use the information gathered under section 29 would that be a breach of 2^nd principle ..processing information for a purpose other than was intended and subsequently article 6 Human Rights Act 1998..right to a fair trial. Many data controllers are happy to provide information under a section 29 request but are loathe to respond to a section 35 request. The telecom companies fall into this category.

 

An alternative to this scenario is that ABC plc has gathered evidence relying to some extent on sect 29 and then find themselves in a position of not having the standard of proof for a criminal prosecution….beyond reasonable doubt…but do feel that they have sufficient evidence to satisfy the standard of proof for a civil action..in all probability. A situation often faced by insurance companies. Can they use the evidence for this civil action that was obtained using section 29?

 

Interestingly enough this was a question posed by Lord Norton, who represented the Association of British Insurers and the Institute of Loss Adjusters, to Lord Williams of Mostyn(RIP) when the bill was progressing through the committee stage in the House of Lords. Lord Williams did not know the answer and said that he would come back with one. My research has failed to find that answer if it exists.

 

This is part of a research project that I am conducting for a paper that I am preparing for the Fraud Advisory Panel (FAP) www.fraudadvisorypanel.org.uk.

 

This particular scenario is one faced on a regular basis by companies that conduct their own criminal investigations and came to the forefront after a research project commissioned by FAP, the results of which can be found on their website, into problems faced with regard to the impact of the Data Protection Act 1998 on the investigation of fraud .

 

Your comments would be greatly appreciated.

 

Chris Brogan MA LLM

Managing Director 

Security International Ltd

130 St Johns Road, Isleworth, Middlesex TW7 6PL, UK

Tel:  +44 20 8847 2111  Fax:  +44 20 8847 1852

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