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DATA-PROTECTION  January 2007

DATA-PROTECTION January 2007

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Subject:

Re: Disclosure

From:

Alan Stead <[log in to unmask]>

Reply-To:

Alan Stead <[log in to unmask]>

Date:

Mon, 8 Jan 2007 09:31:57 -0000

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (146 lines)

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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