CROOK V CHIEF CONSTABLE OF ESSEX POLICE [2015] EWHC 988 (QB)
FACTS:-
The Claimant brought a claim for damages against the Defendant, the Chief Constable of Essex Police in respect of breach of confidence, breach of the principles of the Data Protection Act 1998 and for breach of his rights to private and family life under art 8 of the European Convention on Human Rights pursuant to the Human Rights Act 1998 arising from a press release by Essex Police on 3 August of 2010. The claims were brought against the Defendant as the Chief Officer of Essex Police having responsibility for the conduct of his officers by virtue of s 88 of the Police Act 1996 and as vicariously liable for their acts and omissions.
An allegation of rape was made against the Claimant at a time when he was in Dubai. The police made an unsuccessful attempt to contact him, and ascertained that he was out in Dubai. They then authorised a press release, which included the Claimant's photograph. That photograph had been obtained from the Claimant in circumstances when he had been in custody previously for fare evasion. Underneath the photograph, there was a general heading "Most Wanted", with the Claimant's name, his age, his last known address and the words:- "Wanted for alleged rape in Little Clacton". Eventually no further action was taken against him. He made a complaint to the police and received a limited apology.
JUDGMENT:-
Judge Taylor said that the Claimant relied upon three causes of action, breach of confidence, breaches of the Data Protection Act 1998 and breach of art 8 of the Convention. The question was – was the release of the information reasonably necessary and proportionate in all the circumstances of this case?
The claim for breach of confidence related only to the release of the photograph. It was conceded by the Defendants that the three conditions for liability and breach of confidence were present in this case where the photograph was taken in custody, namely that it had the necessary quality of confidence about it, that it was taken in circumstances importing obligation of confidence and that there was an unauthorised disclosure of the photograph.
Taylor J referred to the decision in Hellewell v Chief Constable for Derbyshire [1995] 4 All ER 473, [1995] 1 WLR 804. It was accepted by both parties that the decision must be considered in the light of both statutes which imposed duties on public authorities. It was also common ground that the position under the Data Protection Act 1998 was the same as that under art 8 because of the combined effect of section 29 and Schedules 2 and 3 of the Act which made exempt the processing of personal data for the prevention or detection of crime when the processing was necessary for the exercise of any functions conferred by or under any enactment. It was accepted by the Defendant that the information about the Claimant provided to the press was sensitive, personal data by virtue of s 2(f) or (g) but the Defendant submitted that in relation to Schedule 1, para 3 of the Data Protection (Processing of Sensitive Personal Data) Order 2000/417, the disclosure was in the substantial public interest and that the police reasonably believed that it would be in the public interest.
Article 8 of the Convention provided:
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
By virtue of Article 8 being incorporated into domestic law, what had to be considered in relation to both the Data Protection Act 1998 and Article 8 was not only whether the release of information was in the public interest but whether it was proportionate (South Lanarkshire Council v Scottish Information Commissioner [2013] UKSC 55)
There was no dispute in relation to the claim under Article 8 that the information was such that there was a reasonable expectation of privacy. The issue was whether there was justification under any of the three conditions in Article 8.2.
Taylor J referred to the following cases:-
The principles were as follows:-
(1) No more than reasonable use must be made of a photograph of a suspect in support of the legitimate aim of crime prevention: Hellewell.
(2) Disclosure of information likely to be damaging to a suspect in support of a legitimate aim must be the minimum necessary to achieve that aim: South Lanarkshire, Thorpe.
(3) Disclosure only to those who have reasonable need of it is legitimate: Hellewell, Ellis and Thorpe.
(4) That the interest of the suspects must be considered and balanced against the public inter-est or the interests of others: Thorpe, Stanley and Keegan.
(5) Where the use in question is decided upon by the honest judgment of professional police officers that will of itself go a long way to establish its reasonableness: Hellewell.
(6) Care must be taken in the decision to release information: Hellewell, Thorpe and Ellis.
(7) That in coming to a careful judgment, the police should have as much information available as reasonably practicable: Thorpe and Keegan.
Taylor J found in any event that had a proper balancing exercise been carried out on all the information that could reasonably practicably have been taken into account, the decision to use the Claimant's photograph and provide the details that were provided, and in the manner they were provided, was not reasonable and proportionate in the circumstances of this case. There was a breach of confidence in relation to the photograph and a breach of Data Protection Act 1998 and art 8. A proportionate approach would have been to release only the Claimant's name and a notification the police wanted to contact him.
The Claimant had adduced psychiatric evidence. Taylor J had taken into account the evidence as to the psychiatric illness and had regard to the Judicial Studies Board Guidelines, Twelfth Edition. Taking into account the length of time which the Claimant suffered from psychiatric injury, he would award £5,000.
In addition, he would award £2,000 for basic damages for the disclosure and £3,000 for aggravated damages. He would not award exemplary damages. He would also award £57,750 special damages for loss of earnings.
FACTS:-
The Claimant brought a claim for damages against the Defendant, the Chief Constable of Essex Police in respect of breach of confidence, breach of the principles of the Data Protection Act 1998 and for breach of his rights to private and family life under art 8 of the European Convention on Human Rights pursuant to the Human Rights Act 1998 arising from a press release by Essex Police on 3 August of 2010. The claims were brought against the Defendant as the Chief Officer of Essex Police having responsibility for the conduct of his officers by virtue of s 88 of the Police Act 1996 and as vicariously liable for their acts and omissions.
An allegation of rape was made against the Claimant at a time when he was in Dubai. The police made an unsuccessful attempt to contact him, and ascertained that he was out in Dubai. They then authorised a press release, which included the Claimant's photograph. That photograph had been obtained from the Claimant in circumstances when he had been in custody previously for fare evasion. Underneath the photograph, there was a general heading "Most Wanted", with the Claimant's name, his age, his last known address and the words:- "Wanted for alleged rape in Little Clacton". Eventually no further action was taken against him. He made a complaint to the police and received a limited apology.
JUDGMENT:-
Judge Taylor said that the Claimant relied upon three causes of action, breach of confidence, breaches of the Data Protection Act 1998 and breach of art 8 of the Convention. The question was – was the release of the information reasonably necessary and proportionate in all the circumstances of this case?
The claim for breach of confidence related only to the release of the photograph. It was conceded by the Defendants that the three conditions for liability and breach of confidence were present in this case where the photograph was taken in custody, namely that it had the necessary quality of confidence about it, that it was taken in circumstances importing obligation of confidence and that there was an unauthorised disclosure of the photograph.
Taylor J referred to the decision in Hellewell v Chief Constable for Derbyshire [1995] 4 All ER 473, [1995] 1 WLR 804. It was accepted by both parties that the decision must be considered in the light of both statutes which imposed duties on public authorities. It was also common ground that the position under the Data Protection Act 1998 was the same as that under art 8 because of the combined effect of section 29 and Schedules 2 and 3 of the Act which made exempt the processing of personal data for the prevention or detection of crime when the processing was necessary for the exercise of any functions conferred by or under any enactment. It was accepted by the Defendant that the information about the Claimant provided to the press was sensitive, personal data by virtue of s 2(f) or (g) but the Defendant submitted that in relation to Schedule 1, para 3 of the Data Protection (Processing of Sensitive Personal Data) Order 2000/417, the disclosure was in the substantial public interest and that the police reasonably believed that it would be in the public interest.
Article 8 of the Convention provided:
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
By virtue of Article 8 being incorporated into domestic law, what had to be considered in relation to both the Data Protection Act 1998 and Article 8 was not only whether the release of information was in the public interest but whether it was proportionate (South Lanarkshire Council v Scottish Information Commissioner [2013] UKSC 55)
There was no dispute in relation to the claim under Article 8 that the information was such that there was a reasonable expectation of privacy. The issue was whether there was justification under any of the three conditions in Article 8.2.
Taylor J referred to the following cases:-
- Ellis v The Chief Constable of Essex [2003] EWHC 1321 (Admin), [2003] 2 FLR 566, [2003] Fam Law 726
- R v The Chief Constable of North Wales and others ex parte Thorpe and another [1999] QB 396, [1998] 3 All ER 310, [1998] 3 WLR 57
- R (Daly) v Secretary of State for the Home Department [2001] UKHL 26,
- R (Stanley, Marshall and Kelly) v Metropolitan Police Commissioner [2005] EMLR 3
- Keegan v United Kingdom [2007] 44 EHRR 33
The principles were as follows:-
(1) No more than reasonable use must be made of a photograph of a suspect in support of the legitimate aim of crime prevention: Hellewell.
(2) Disclosure of information likely to be damaging to a suspect in support of a legitimate aim must be the minimum necessary to achieve that aim: South Lanarkshire, Thorpe.
(3) Disclosure only to those who have reasonable need of it is legitimate: Hellewell, Ellis and Thorpe.
(4) That the interest of the suspects must be considered and balanced against the public inter-est or the interests of others: Thorpe, Stanley and Keegan.
(5) Where the use in question is decided upon by the honest judgment of professional police officers that will of itself go a long way to establish its reasonableness: Hellewell.
(6) Care must be taken in the decision to release information: Hellewell, Thorpe and Ellis.
(7) That in coming to a careful judgment, the police should have as much information available as reasonably practicable: Thorpe and Keegan.
Taylor J found in any event that had a proper balancing exercise been carried out on all the information that could reasonably practicably have been taken into account, the decision to use the Claimant's photograph and provide the details that were provided, and in the manner they were provided, was not reasonable and proportionate in the circumstances of this case. There was a breach of confidence in relation to the photograph and a breach of Data Protection Act 1998 and art 8. A proportionate approach would have been to release only the Claimant's name and a notification the police wanted to contact him.
The Claimant had adduced psychiatric evidence. Taylor J had taken into account the evidence as to the psychiatric illness and had regard to the Judicial Studies Board Guidelines, Twelfth Edition. Taking into account the length of time which the Claimant suffered from psychiatric injury, he would award £5,000.
In addition, he would award £2,000 for basic damages for the disclosure and £3,000 for aggravated damages. He would not award exemplary damages. He would also award £57,750 special damages for loss of earnings.