Police Cautions (Data Protection)

– in the House of Commons at 2:10 pm on 14th October 2005.

Alert me about debates like this

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Watson.]

Photo of Grant Shapps Grant Shapps Co-Chair, Conservative Party 2:31 pm, 14th October 2005

I am most grateful for the opportunity to present this matter, which relates to one of my constituents but has wider ramifications across the nation.

On 12 March, a constituent in Welwyn, Mr. Rodney Bailey, was woken at 3 am when his car window was smashed by a youth who had thrown a rock through it. Fortunately, Mr. Bailey lives in the same street as a police officer who was off duty and immediately jumped out of bed and managed to capture the youth involved. The police were called and the youth was taken to Hatfield police station, whereupon he confessed.

Following Home Office guidelines, the police decided that as there was no previous record they would issue a caution to that individual. Mr. Bailey, who lives, appropriately, in Robbery Bottom lane, thought that acceptable as long as he could take some form of civil action to recover the moneys due as a result of the damage to his windscreen. Not unreasonably, he asked for the name, address and details of the offender, who had, after all, admitted to the crime. The police said that would be fine but that he would have to apply in writing. He did so, but the police then told him that they could not in fact release the information as it would contravene the Data Protection Act 1998.

In my view and, I am sure, that of many other people, the police should never protect a criminal against a victim whose rights have clearly been contravened. To stand in the way and prevent civil proceedings from being taken must be wrong, but such, it seems, is the law. There is a loophole in the legislation.

There are a number of exemptions to the Act, one of which comes close to the type of exemption required in this case—disclosure to courts in legal proceedings. One might think that would help the police in releasing the necessary information, yet it transpires that it applies when legal proceedings have already begun. If one does not know who committed the crime, how on earth is one supposed to take out a summons? That exemption would not work in this case. We must reframe the law to enable an individual to take action where the police know who committed the crime and the individual has admitted it but where the police are prevented from allowing the action to be taken.

The police eventually agreed to release the information. When Mr. Speaker was kind enough to grant me this debate, which resulted in full-page stories in the Daily Mail, the Sunday People, local television and other media outlets, the police decided that it would be appropriate to release the information. However, the chief constable, Mr. Frank Whiteley, did so against the specific advice of his own legal team. It must be wrong that, in order that an individual can take a case to court, the police force involved should be expected to go against its own legal advice. Surely there must be a problem in law.

There are, as I said, some exemptions, but none is satisfactory in this type of case. I strongly believe that a provision should be made for this type of case. One can imagine a number of scenarios. Perhaps it would be appropriate for a summons to be issued but for the person issuing the summons simply to refer the court to the police station and the reference number, so that the police can link up the numbers. I fully accept that there is a danger about which the police are nervous: they are concerned that the victim might take individual retribution—that they might go round to the person's house and take it upon themselves to take immediate action, and of course none of us wants that to happen. It does not take a great deal of imagination to envisage ways around that problem. One way could simply be to send the form for a summons to the court, for the court to apply to the police, and for the police to provide the name and address of the defendant direct to the court, so that at that stage, before the case comes to court, there is no need for the plaintiff—the victim in the case that I am talking about—to access the information.

You see, Mr. Deputy Speaker, there is a dichotomy here. Had the individual been charged—had the individual admitted to the crime, as he did, and had the case been taken to a criminal court in the normal way—the information would be public, and it would be simple for Rodney Bailey to issue a civil action and recover the money. The difficulty arises because of the dancing-on-a-pinhead issue of the caution being issued. As I understand it—I shall be interested if the Minister can tell me otherwise—a caution remains on a person's police record, so I see no reason why the victim in a case such as this should not be able to seek recompense.

I am sure that there are other, perhaps more creative, solutions. The police are in a very unsatisfactory position. Perhaps you might think, Mr. Deputy Speaker, that the police should be prepared to issue a caution as opposed to prosecuting, but only if the individual has already agreed to repay the money.

I understand that police forces up and down the country will be concerned about such a proposition. They do not want to put themselves in the position of debt collectors. I hesitate to call this plea bargaining because it brings with it all sorts of other connotations, but I do think that there should be a system in place so that if the individual is going to get off relatively lightly, with a caution rather than a full prosecution, it should perhaps be incumbent on the police to ensure that the victim is in some way in a position to seek compensation. It seems fair; it seems just.

You will be interested to hear, Mr. Deputy Speaker—I hope that the Minister will respond—the words of my own chief constable in Hertfordshire:

"This legislation puts the police in a difficult position."

In this case, the chief constable had to go against the explicit advice of his own solicitors. It seems to me that after 15 years of Data Protection Act training, staff are now in a position where the idea that information cannot be released under such circumstances has become so bred in the bone that they fear for their job—their livelihood—if they release the information. It is easier not to release the information—to play safe—even when justice is clearly denied by so doing. We must get to the bottom of this situation.

I should be very interested to hear whether the Minister can propose some solutions. I suspect that he may well refer to some Home Office circulars on the subject. I am familiar with them. Home Office circular 55/1998, which repeats circular 20/1988, says that the police can release information to the courts in the event of legal proceedings, but those circulars are overridden by the Data Protection Act and, indeed, by the Human Rights Act 1998. Again, they are only advisory, so the guidance can be trumped by all sorts of other laws and legislation.

We must get this case clarified so that the situation does not continue to arise. I am sure that the Minister will be interested to hear that, since I raised this matter in the national media, I have been inundated from people throughout the land who are in exactly the same position and have found it impossible to seek justice because the police feel that they would break the law by releasing information on whom the criminal was in any instance. Surely, that must be wrong. I call on the Minister to look again at the situation, perhaps to consider amending legislation very much with the idea that it should be formed on the basis of protecting the victims, not of putting the police in the position of defending the criminals.

P

Fridays are usually interesting.

Submitted by Paul Mitchell

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office 2:42 pm, 14th October 2005

I congratulate Grant Shapps on securing this debate, which it has given him an opportunity to speak about the understandable concerns of his constituent, Mr. Bailey, and a chance for me to explain how the Data Protection Act 1998 was applied in this case and to outline the overall policy on police cautions and data protection.

The offender in this instance was a juvenile, as we have heard, and it might be helpful in setting the context for this case if I say a little about the principles underpinning the youth justice system and the many factors that need to be taken into consideration before determining how best to deal with a young person who has broken the law. Those factors include the circumstances of the offence and the juvenile's offending history. A young first-time offender with no previous convictions is usually eligible for a reprimand. With a second offence, he can be given a final warning. With a third offence, he is likely to be charged. Of course, depending on the seriousness of the offence, the young person may be finally warned without receiving a reprimand, or even charged without first receiving a reprimand or a warning.

The system of dealing with young offenders by way of pre-court intervention was established by the Crime and Disorder Act 1998, which made it clear that the main purpose of the youth justice system is to prevent offending by children and young persons. In deciding how to proceed under the scheme, the police are guided by a system drawn up by the Association of Chief Police Officers and the Crown Prosecution Service which classifies offences according to their seriousness, thus helping consistency in decision making.

I want to make it clear to the House and, in particular, to the hon. Member for Welwyn Hatfield and his constituents that, although the final warning scheme involves a pre-court intervention, it is most certainly not a soft option. To be eligible for the scheme, the young person must first admit guilt, which can be quite a step for a very young person. He must accept personal responsibility for what he did. He must know why it was wrong and the effect that it had on the victim. In most cases, he must do all that with his parents present in a meeting run by a police officer. It can, therefore, be a real challenge and it would be wrong to underestimate the impact of this approach. Indeed, in many cases, it is sufficient to prevent further offending, which, as I said earlier, is the main aim of the 1998 Act. It provides an opportunity for the young offender to learn from their mistake and gives them an opportunity to keep out of trouble. Of course, if they continue to offend, they will quite rightly be subject to heavier sanctions.

The reprimand and final warning scheme does not provide for compensation for criminal damage, as a warning is not a criminal conviction. When a criminal conviction is handed down by the courts, the victim is entitled to make a request for compensation and the court can make out a compensation order against the young offender. Section 130(3) of the Powers of Criminal Courts (Sentencing) Act 2000 requires the courts to give reasons when they do not make a compensation order in any case where personal loss, damage or injury has resulted from the offence.

Photo of Grant Shapps Grant Shapps Co-Chair, Conservative Party

This is interesting stuff and, in particular, I understand the Minister's point about it being a difficult step for a young offender to admit to a crime and to be issued with a warning when their parents are in the room. I do not know whether they were in this case. However, the point does not deal in any way, shape or form with the fundamental point that criminal damage was done and it will cost the victim money to repair it. I note that the Minister has jumped from that missing point to the way in which the courts operate if the case goes to court. I hope that I described in sufficient detail the problem of getting the case to court in the first place. Will he be kind enough to address that point as well?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I am coming on to that, but the hon. Gentleman would expect me to give a full answer to the points that he has raised. I am about to come to the point in my speech where I deal directly with some of the issues that he has raised.

The hon. Gentleman may ask—indeed, initially Mr Bailey himself may well have asked—how victims are expected to recoup financial compensation from juvenile offenders and their parents or carers when the matter does not come to court. Victims of property crime may look to their own insurance arrangements to make good any losses, but justice demands that, wherever it is appropriate and possible, the offender should make good the damage that has been done.

This approach is increasingly reflected in the emphasis placed on the use of the restorative approach within pre-court interventions that I have described. In some cases, this can involve acts of reparation and even a face-to-face meeting between the victim and the offender and his parents at which the offender is made to face up to the consequences of his behaviour and to offer an apology.

Whatever the outcome of criminal proceedings, victims can sue their offenders for damages in the civil courts, although they cannot get compensation twice for the same offence. Of course, the ability of the victim to pursue civil action depends on his knowing who the offender is, which brings us to the particular case raised by the hon. Gentleman.

As we have heard, on 12 March this year, a young person was given a reprimand by Hertfordshire police for smashing the rear windscreen of Mr. Bailey's car while it was parked on the driveway at his home address. In deciding on the appropriate way to deal with this case, the police used the system that I outlined before to take account of the circumstances of the offence and the offender. Of course, it is not for me or for any of us in this place to offer any comment on that decision; it was a decision for the police.

Mr. Bailey made a written request to Hertfordshire police asking for the details of the offender, information that in law is protected data under the Data Protection Act 1998. At first, the request was refused and, to be fair, the police have a responsibility to satisfy themselves that the information is to be used for an appropriate purpose. The hon. Gentleman acknowledged in his speech that care had to be taken on that issue. From the initial information that the police received, they felt that they could not be absolutely certain that this was the case and so made the decision not to disclose the information to Mr. Bailey.

In recognition of the fact that Mr. Bailey had a legitimate interest in recovering the cost of repairs to his vehicle, the police wrote to him and informed him that they were prepared to disclose the young offender's details to his insurance company in accordance with the memorandum of understanding between ACPO and the Association of British Insurers. They anticipated that disclosure to the insurer would provide an adequate solution to the matter. However, at the time of the offence Mr. Bailey's vehicle was off the road and not insured, so that course of action was simply not available.

Photo of Grant Shapps Grant Shapps Co-Chair, Conservative Party

It is important not to be disingenuous about the facts of the case, although I appreciate that you will have received a brief from the force involved.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. The Minister will have received a brief, not me.

Photo of Grant Shapps Grant Shapps Co-Chair, Conservative Party

Indeed. I apologise, Mr. Deputy Speaker.

The version of the case that the Minister presents is rather sketchy because he has entirely removed several facts: first, my constituent had to write to me; secondly, I then had to approach the police; and, thirdly, the police rejected several further requests to release the evidence, although I would have thought by that stage that it was becoming fairly apparent that it was going to be used for proper reasons, namely, to take the case to a civil court. The case only really started to get moving, with the decision being overturned, when this debate on the Floor of the House was organised. That sparked media interest in the Daily Mail and the Sunday People and on regional television and several radio stations—the Minister will get the message.

At that point, the police did a quick rethink—perhaps the whole thing escalated, although one does not know—and all of a sudden the information was released. I know from further conversations with the police constable, with whom I have every sympathy because he has been placed in a difficult situation, that his problem is one of not contravening the law. It is important to cite all those facts because the Minister is making it sound like one other letter was sent and the whole thing was resolved.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. It is also important that the hon. Gentleman should not make a second speech.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

Thank you, Mr. Deputy Speaker. I ask the hon. Gentleman to show a little patience, because I am about to deal with many of the points that he just made in great detail.

Let me pick up the story where I left it off, with Mr. Bailey having been refused the information that he had been requesting and it being found that the issue regarding the insurance company was not relevant. Mr. Bailey then repeated his request for the information to be disclosed to him and the police had to decide whether or not to disclose the offender's details directly to the victim. The police understood that the Data Protection Act 1998 allowed the release of information to enable civil proceedings to be taken by Mr. Bailey against the offender. I am assured that they carefully considered the relevant provisions of the Act, but still had some concerns about how the information might be used and remained reluctant to disclose the details requested.

By late August, Mr. Bailey's case had received widespread media coverage and, indeed, the hon. Gentleman had secured parliamentary time for today's debate, as he made clear. To obtain greater clarity on the operation of the Data Protection Act 1998 in such a case, Hertfordshire police decided to approach the Information Commissioner, who referred the police to Home Office circulars 20/1988 and 55/1998. I am pleased that the hon. Gentleman is familiar with those circulars. I can confirm that I, too, am now familiar with them, thanks to his prompting.

Circular 20/1988 includes at paragraph 8(b) guidance about releasing the name and address of a cautioned offender to the victim for the purpose of instituting civil proceedings. It says:

"The name and address of a cautioned offender should be disclosed if the victim requests it for the purposes of instituting civil proceedings, unless there is good reason to believe that the information might be used for an unlawful or improper purpose e.g. to take retaliatory action against the offender".

On 5 September, on his return from annual leave, the chief constable of Hertfordshire police was made aware of the situation and, after further consideration, he made a decision to release the information under the provisions of the Data Protection Act 1998 to assist the instigation of civil proceedings, provided that Mr. Bailey was prepared to give an undertaking not to use the information for other purposes. The undertaking was duly given and the information was thus released. Although that may have taken a little longer than many might have wished, it was, I think, a very sensible outcome.

The clear purpose of the law on data protection is, of course, to provide necessary safeguards, and there is, rightly, a presumption against releasing personal data. Generally speaking, personal data may be disclosed only with the consent of the data subject. However, as the hon. Gentleman said, there are a number of exemptions to this general principle, which include preventing and detecting crime, and investigating and prosecuting offences or taking civil proceedings.

It took a long time for Mr. Bailey to receive the information that he had requested. Although I think that the advice of the Information Commissioner and the Home Office circulars are both accurate and adequate, clearly there are lessons to be learned so that decisions in such cases can be concluded more speedily than was the case here. In the end, of course, decisions have to be taken on a case-by-case basis after full consideration of all the circumstances.

The Data Protection Act 1998 should not be seen as a barrier to disclosure. It permits disclosures where they are required for legitimate purposes, but does not permit those which would be an unwarranted invasion of privacy. The Act is complex and requires careful judgements to be made, but the starting point should always be to look for reasons to enable information to be shared rather than blocked.

The hon. Gentleman will, I am sure, be interested to know that the Department for Constitutional Affairs, working with the office of the Information Commissioner, is planning new ways to promote a better understanding of the law relating to data protection. The statutory role of publicising and encouraging a proper understanding of and compliance with the Data Protection Act lies with the Information Commissioner, the independent regulator for the Act.

I understand that the Information Commissioner has already replied to the original press article highlighting Mr Bailey's case, to correct any misunderstanding of the legal position. The Information Commissioner's website also contains valuable information on the application of the Act in a wide variety of circumstances.

In conclusion, the Data Protection Act would therefore in general prevent the disclosure of personal data to a third party only where to do so would in all the circumstances of a particular case be unfair. This judgment must balance the interests of all the parties involved. It does not prevent disclosure of relevant information for legitimate reasons. In the particular case at issue in this debate, the Act actually contains a specific provision which allows disclosure where it is necessary for the purpose of any impending or prospective legal proceedings.

Once again I congratulate the hon. Gentleman on raising this issue, and I hope that I have been able to clarify the position to his and his constituent's satisfaction.

Question put and agreed to.

Adjourned accordingly at three minutes to Three o'clock.

J

Mike Freeman

Submitted by John Greenwood