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DATA-PROTECTION  January 2007

DATA-PROTECTION January 2007

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Subject:

Re: Disclosure

From:

Nigel Roberts <[log in to unmask]>

Reply-To:

Nigel Roberts <[log in to unmask]>

Date:

Mon, 8 Jan 2007 10:39:43 +0000

Content-Type:

text/plain

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text/plain (226 lines)

Interesting case, and I'm grateful for you bringing it to our attention.

I think it was entirely correctly decided, and is consistent with the 
approach I was suggesting.

Tim Turner wrote:
> I doubt that the current situation is the same as this case - releasing
> pictures of the escapees could reasonably be said to be proportionate, in
> the sense that they have committed an offence (escaping from prison), and
> one way in which their crime can be resolved is if they are recognised by a
> member of the public after their photograph has been released. It isn't a
> matter of further punishment, but practical need.
> 
> On first reading, the problem with the Essex case appears to be that they
> could have done a similar campaign emphasising the sentences received for
> certain crimes without identifying the individuals. There was no actual need
> to identify the individuals - not the same as the situation with the
> escapees, continuing to commit a crime purely by virtue of the fact that
> they aren't in prison where the court says that they should be.
> 
> Tim Turner
> Data Protection / FOI Officer
> Legal and Property Services
> Wigan Council
> 
> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]] On Behalf Of Alan Stead
> Sent: Mon 08 January 2007 09:32
> To: [log in to unmask]
> Subject: Re: [data-protection] Disclosure
> 
> Sorry to prolong the discussion but you may find the attached Case
> interesting:
> 
> R (On the application of ELLIS) v THE CHIEF CONSTABLE OF ESSEX POLICE (2003)
> [2003] EWHC 1321 (Admin) QBD (Lord Woolf of Barnes LCJ, Goldring J)
> 12/6/2003 HUMAN RIGHTS - CRIMINAL LAW - CRIMINAL PROCEDURE - POLICE OFFENDER
> NAMING SCHEMES : PUBLIC INTEREST : REDUCTION OF CRIME : PREVENTION OF CRIME
> : DETECTION OF CRIME : PROTECTION OF RIGHTS OF OTHERS : PUBLICATION OF
> PHOTOGRAPHS : DISPLAY OF POSTERS : DISCLOSURES OF IDENTITY : CONVICTED
> PERSONS : NAMING AND SHAMING : PROBATION SERVICES : SOCIAL SERVICES : LOCAL
> AUTHORITIES : CIRCUMSTANCES OF OFFENDERS : RISK ASSESSMENTS : REHABILITATION
> OF OFFENDERS : RISK OF REOFFENDING : RISK OF HOMELESSNESS : RISK OF HARM TO
> FAMILY : PROTECTION OF CHILDREN : UNFAIRNESS : DISCRIMINATION : ART.8 :
> RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE : PRESUMPTION OF INNOCENCE :
> EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL
> FREEDOMS 1950 : EUROPEAN CONVENTION ON HUMAN RIGHTS : ECHR : CRIME AND
> DISORDER ACT 1998 In terms of the right to respect for private and family
> life under Art.8 European Convention on Human Rights, the legality of an
> "offender naming scheme" operated by police could not be determined in
> principle and would depend on how the scheme was operated in practice in
> relation to each particular offender.
> Application concerning the lawfulness of an "offender naming scheme"
> operated by the defendant ('Essex police'). The scheme was introduced with a
> view to reducing burglary and car crime in the Brentwood area, and was
> implemented in an attempt by Essex police to perform its duties under the
> Crime and Disorder Act 1998 to implement strategies for reducing crime. It
> involved displaying posters at some 40 sites showing the name and face of a
> selected offender, the nature of his offence and the sentence he was
> serving. Essex police's protocol governing the scheme required that only
> offenders serving at least 12 months in prison would be selected for
> inclusion in the scheme and that the offender and his legal representative
> were to be given written notice on the day of sentencing and given seven
> days in which to register an objection. The selection would then require
> approval from a senior officer after a risk assessment carried out in
> consultation with the probation service and social services. The probation
> service had expressed reservations about the Brentwood scheme, the local
> authority had expressly disapproved of it, and NACRO had stated that it
> would interfere with the rehabilitation of offenders and would be
> ineffective in reducing the reoffending rate. The claimant ('E') was
> selected by Essex Police to be the first offender used in the scheme. The
> probation service concluded that to use E would, on his release from prison,
> increase his risk of homelessness, drug misuse, re-offending and
> non-compliance on licence, and was likely to increase the risk of harm to
> the public. They also concluded that there was a risk of harm to E's
> parents, ex-partner and young daughter who all lived in the locality. Essex
> police took the view that there would be no such adverse consequences of
> including E in the scheme, as his conduct on release was unlikely to be
> affected, his crimes had already been reported in the press, his ex-partner
> and daughter had changed their names, and E had indicated that he intended
> to move away from Essex. However, Essex police subsequently decided to
> withdraw E from the scheme and the court was left to rule on the lawfulness
> of the scheme in principle rather than E's case in particular. It was not
> disputed that the scheme involved an interference with private and family
> life contrary to Art.8(1) European Convention on Human Rights but Essex
> police argued that any interference was justified under Art.8(2) as being
> necessary in the interests of the prevention or detection of crime or the
> protection of the rights and freedoms of others.
> 
> HELD: (1) There was a general presumption that information should not be
> disclosed by the police, in view of the potentially serious effect on the
> ability of convicted people to live normal lives and the risk of violence
> towards such people, but there was a public interest in favour of disclosure
> where necessary for the prevention or detection of crime or the protection
> of vulnerable people, and each case must be considered on its particular
> facts. There should only be disclosure where there was a pressing need, and
> the police must first obtain as much information as reasonably practicable,
> including from other agencies. It was a principle of law that the police
> were not entitled to punish and that they should not seek to do so by
> "naming and shaming" offenders. It was also a principle of law that a
> convicted person retained all his rights that were not expressly taken away
> by law. Hellewell v Chief Constable of Derbyshire (1995) 1 WLR 804 and R v
> Chief Constable of North Wales Police & Ors, ex parte Thorpe & Anor (1999)
> QB 396 applied. (2) Had it been necessary to rule on E's individual case,
> the court would have done so in E's favour. There was concern as to Essex
> police's superficial reaction to the risk factors identified by the
> probation service. Damage could have been done to E's family and child
> despite their change of name, and they also had rights under Art.8. It was
> particularly important to safeguard the rights of E's child and there was a
> real question as to whether it could ever be appropriate to nominate the
> father of a young child for inclusion in the scheme. The scheme also
> involved a degree of unfairness in that it discriminated between those
> offenders who were included and those who were not, and the former would see
> inclusion as a form of additional punishment. (3) However, it was not
> desirable in this case to rule that the scheme in principle was either
> lawful or unlawful, because its legality depended on the particular
> circumstances of each offender included in it and how the scheme was
> operated in practice. Accordingly, the court would not grant a declaration
> that the scheme was incapable of being operated lawfully. Notwithstanding
> this, there was at least a doubt whether the possible benefits of the scheme
> were proportionate to the intrusion into an offender's Art.8 rights, and the
> police would have to undertake considerable care in the investigation of a
> selected offender's circumstances, and in the operation of the scheme, if it
> were to be lawful. Until that happened, however, the legality of the scheme
> remained uncertain.
> 
> No order.
> Tim Owen QC & Paul Mylvaganam instructed by Sanders Witherspoon for the
> claimant. Anne Stud instructed by the Solicitor for the Police Force (Essex)
> for the defendant.
>  LTL 16/6/2003 : (2003) 2 FLR 566 : (2003) ACD 350 : Times, June 17, 2003
> 
>  
> I hope this helps a bit
> 
> Alan	 
> 
> 
> Alan Stead
> Service Manager-Information Governance
> Nottingham City Council
> Guildhall
> Burton Street
> Nottingham NG1 4BT
> Tel 0115.9154943
> 
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