Weekly Digest: 21 January 2018

In March 2018 the Appellant was convicted of three counts of unlawfully obtaining personal data contrary to s.55. He had worked for a tenancy management organisation in Islington. The London Borough of Islington had concerns about the organisation’s safeguarding of children and vulnerable young people in the area, and commissioned an investigation. The report arising out of this investigation was disclosed by the appellant to 83 individuals, including his local MPs. The report included personal data.

At trial, the Appellant contended under s.55(2)(b), (c) and (d) of the DPA 1998 that he had acted in the reasonable belief that he had the right to disclose the data, that he had the consent of the Council, and that disclosure was justified as being in the public interest. The judge at first instance held that the plain wording of s.55(2) conferred a legal burden on the defence. He declined to “read down” the subsection so as to attain an evidential burden.

The Appellant now argued that (i) ordinary principles of statutory construction led to the imposition of a legal burden; and (ii) if the position was uncertain, the ambiguity should be resolved in his favour, this being a criminal case. There was also well-established House of Lords authority that the section should be read-down to ensure a Convention-compliant outcome.

The court held that, as there was no decided case directly on this point, it could derive only limited assistance from jurisprudence. The correct construction must turn primarily on close linguistic analysis of the provision which, as a criminal statute, must be narrowly interpreted in the interests of a defendant. The court allowed the appeal on a number of different grounds, including: (i) Parliament had chosen an unusual wording in s.55(2) – “subsection (1) does not apply to a person who shows” rather than the more usual “it is a defence to prove that”; (ii) the matters set out in the different defences are not always constituent elements of the offence, and so they only come into play if a defendant raises them (Parliament clearly intended that, once raised, it is then for the Information Commissioner to disprove that matter to the criminal standard); (iii) there are strong policy reasons against legal burdens of proof, as an accused may be convicted where a reasonable doubt may exist; and (iv) this is not an archetypal regulatory offence involving strict liability. Mens rea is an essential elements of the offence, which suggests that Parliament did not intent to impose criminal consequences unless a defendant proved on the balance of probabilities facts which can be judged objectively.

The appeal was allowed. As a matter of statutory construction, s.55(2) imposed only an evidential burden on the defendant to prove to the probabilistic standard the facts comprising defence. It was therefore not necessary to consider whether the provision had to be “read down” to comply with article 6 ECHR.

Under Article 10 ECHR freedom of expression enjoys a privileged status in a democratic society, and freedom of political expression particularly so. It extends to protect activity that others may find shocking, disturbing or offensive. Section 5 of the 1986 Act has to be read in the context of Article 10. While there is not and cannot be any universal test for resolving when speech goes beyond legitimate protest, any interference with freedom of expression on the grounds of a threat to public order must be strictly justified.

The DPP is empowered by sections 6 and 23 of the Prosecution of Offences Act 1985 to take over and discontinue private prosecutions at his discretion. He should do so if the usual two stage Full Code test, set out at section 4 of the Code for Prosecutors, is not met. His decision to take over and discontinue is amenable to challenge by judicial review but only on conventional public law grounds. These will succeed only in “exceptionally rare circumstances”.

In June 2017, four days after the fire at Grenfell Tower, Mr Ali had addressed a rally at a pro-Palestinian protest. He repeatedly suggested that Israel was a “terrorist state responsible for the murders of Palestinian men, women and children”. He also stated that Zionists were responsible for the murder of the people in Grenfell. The Metropolitan Police decided that there was insufficient evidence to offer a realistic prospect of success with a prosecution, the CAA brought a private prosecution, and in June 2018 the CPS wrote to the CAA to say that they were taking over the trial and discontinuing the prosecution.

The court agreed with the CPS that some of the words Mr Ali used with respect to the fire at Grenfell Tower may well have caused distress to some of those who heard them, but that alone did not meet the threshold of section 5. Similarly, his accusations that the Rabbis on the Board of Deputies had “blood on their hands” and that they “agree with the killing of British soldiers” were not abusive within the meaning of section 5. The court held that the conclusion of the CPS that a section 5 charge would probably not succeed was perfectly rational and, therefore, lawful.

Factual background

Mr El Sheik is believed to be detained by Kurdish forces in northern Syria. He is accused of terrorist activities as a member of ISIS. He is one of the so-called Beatles. The US authorities are contemplating seeking his surrender from Syria to America for prosecution for offences that might carry the death penalty. There has been a UK police investigation. The Home Secretary decided to provide MLA to the US authorities which might be used in such a prosecution, without requiring an assurance that the death penalty would not be imposed in the event of conviction.

Submissions

The claimant advanced five grounds in support of the argument that the decision of the Home Secretary was unlawful: (i) it is unlawful under a combination of the common law, the 1998 Human Rights Act, and customary international law for the Home Secretary to exercise his powers under the royal prerogative to provide MLA which might facilitate the imposition of the death penalty or substantially contribute to the risk of its imposition; (ii) the decision is flawed by a series of misdirections and failures to have regard to relevant conditions; (iii) the decision is inconsistent with the Government’s policy of unequivocal opposition to the death penalty, and thus unlawful; (iv) the decision violates the Claimant’s rights under the ECHR (not her son’s rights, it being recognised that he is outside the jurisdiction of the ECHR); and (v) the provision of MLA breaches the Data Protection Act 2018.

Conclusion

The court dismissed the claim. On ground (i), the Home Secretary was exercising powers under the royal prerogative, but the common law has not evolved to recognise the rights and duties set out in the 1998 Act but without the limitations expressed therein. Further, Article 16 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment does not necessarily prohibit the death penalty. On ground (ii), the Home Secretary did not misdirect himself. He was under no obligation to accept any of the partial assurances offered by the USA. On ground (iii), there was nothing unlawful in the Government adopting a policy which permits an exception to seeking assurances. On ground (iv), the Claimant’s rights under Articles 3 and 8 are not violated by the provision of MLA to the US authorities. On ground (v), to the extent that the provision of MLA includes “personal data” relating to the Claimant’s son, the Data Protection Act 2018 does not prohibit its transfer to the US.

He replaces Lord Sumption, who retired from the Supreme Court on 9 December 2018.

The full piece can be found here.

Ministers argue that short jail terms are less effective at cutting reoffending than community penalties. Prisons minister Rory Stewart stated that such sentences were “long enough to damage you and not long enough to heal you”.

The full piece can be found here.