I have enjoyed reading this Parliamentary report, which
says little that is new and contains recommendations that are likely to be mostly
ignored duly noted with care and concern by the Government. There may well
be one significant recommendation that the Government will strongly support
though – which is to ignore a recommendation in the Leveson Report that the ICO be reconstituted it as an Information Commission, led by a
Board of Commissioners with suitably broad expertise. Evidently, the current
model is still fit for purpose – although it ought to be accountable directly
to (and funded by) Parliament, rather than be funded by the Ministry of
Justice.
Two key issues struck me as I read it.
First, funding for the
ICO’s Freedom of Information work has been slashed with severity that would shame even Quentin Tarantino.
That budget has been cut by
23% from £5.5 million in 2011–12 to £4.25 million in 2012–13. In line with
public spending targets, there will be a further cut of 6% in
2013–14, and the Ministry of Justice has
asked for a business case showing how the work would be impacted by a further
5% cut in that year.
The message to those who fancy exercising their FOI rights
in future is that they should be prepared to dig deep into their own pockets to
fund the civil litigation that could be necessary to help enforce their statutory rights. The ICO is unlikely to be able to intervene to a significant extent on their
behalf. Public authorities are hardly likely to be able to fund many FOI posts, either. The message to public authorities who fancy ignoring an FOI request in
future is that such temptation may be even harder to resist.
Second, the public concern at unlawful data handling practices
has not been reflected by the penalties that the courts impose.
Accordingly, it may not really matter if the maximum fine levels are dramatically
increased – current evidence is that the actual level of fines will continue to
remain at the bottom end. The reason for this is clear – the level of the fine
depends on the means of the defendant, and in most cases, prosecutions are
launched against people who are involved in domestic disputes and who have very
few savings anyway.
Behaviours might well change, though, if Section 55 offences
became “recordable offences”. These are the offences that are recorded on the
Police National Computer, and where those who are prosecuted also have their fingerprints
and DNA samples recorded for whatever period the police currently set. That
might focus a few minds as to the severity of such offences.
The Government continues to refuse to allow custodial
sentences for DPA offences because other charges are capable of being made
against defendants that do permit custodial sentences to be imposed (paragraph
43). These charges include:
·
Unlawful
interception of communications: Regulation of Investigatory Powers Act 2000
·
Unauthorised
access to computer material: Computer Misuse Act 1990
·
Dishonestly
making a false representation: Fraud Act 2006
·
Bribing
another or being bribed: Bribery Act 2010
·
Unauthorised
access to computer material: Contrary to section 1 of the Computer Misuse Act
1990
·
Unauthorised
access to computer material with intent to commit another offence: Contrary to
section 2 of the Computer Misuse Act 1990
·
Phone
hacking: Regulation of Investigatory Powers Act 2000
·
Misconduct
in public office: common law offence
·
Inchoate
and accessory offences including attempt and conspiracy
This is an interesting point, and I would love an academic to set his students the research task of identifying how these offences have been prosecuted over the past few years (should the CPS also have been able to have charged the defendant with a Section 55 offence), what penalties have been imposed and whether they really have served as an effective deterrent.
If you have not already done so, you might like to read the
report this weekend.
Source:
http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/962/962.pdf
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