Fog in Channel; Continent Cut Off

Whilst the headline “Fog in Channel; Continent Cut Off” may be apocryphal, there are certainly a number of examples of “they do things differently over there” that arise out of European law.

The most recent is the way the Lisbon Treaty has amended the numbering of all the continuing articles from the Treaty of Rome (creating the European Economic Community (EEC)) or the Maastricht Treaty (creating the European Community (EC)) from its effective date, 1 December 2009.  Almost all references to the EEC or EC are replaced by references to the European Union (EU), which now has its own legal identity.

In the UK a statute, unless it is consolidated, survives for as long as it contains provisions that are not repealed.  Provisions that are not amended can therefore continue with their original numbering.  New clauses inserted into statutes are given supplementary numbers (e.g. section 55A to 55E of the Data Protection Act 1998 discussed in out last post).  This can mean that a statute can survive with only one clause in force (e.g. Statute of Frauds 1677)

In Europe, however, each major treaty consolidates and amends former treaties.  Provisions that have not been amended since their introduction in the Treaty of Rome signed in 1957 have therefore regularly been renumbered, to the annoyance of practitioners.  However, for competition and regulatory lawyers and fans of George Orwell, there is at least the consolation that the article dealing with anti-competitive agreements that was formerly Article 85 EEC then Article 81 EC is now Article 101 TFEU (Treaty for the Functioning of the European Union).  The abuse of dominance article becomes Article 102 TFEU.

Disputes will also now be heard first by the General Court (formerly Court of First Instance) or by the Court of Justice  (formerly the European Court of Justice or ECJ).  References to the Court of Justice will be made under Article 267 TFEU (formerly Article 177 EEC or Article 234 EC).

Expect a certain amount of confusion until everyone gets used to the new numbering.

Monetary Penalties under the Data Protection Act 1998

It has been a long time coming, but finally the Information Commissioner is about to get fining powers to enforce the Data Protection Act 1998.  Not all the required orders and regulations required to bring the relevant sections of the Act into effect (ss. 55A to 55E) are in place, but yesterday two important steps were made.

The first was that maximum penalty has now been set: £500,000. (See Data Protection (Monetary Penalties)(Maximum Penalty and Notices) Regulations 2010).

The second was that certain procedural steps regarding the issue of a monetary penalty following a notice of intent have been prescribed. (See Data Protection (Montery Penalties) Order 2010).

Both these instruments are stated to come into force on the same date, which must be the intended date when monetary penalties will be brought into effect.  This date for your diary is:

6 April 2010

Dumb or Dumber Prize Competitions

If you need evidence that prosecuting authorities consider that the general public in the UK is intellectually challenged, then consider the application of the skill and judgment test in the law governing prize competitions.  This test is currently in the Gambling Act 2005 (s.14(5)), but existed in its predecessor, the Lotteries and Amusements Act 1976 (s.14(1)(b)).

The law on prize competitions is that persons operating a prize competition are not regulated by the Gambling Commission and do not need an operating licence under the Gambling Act 2005 if the prize competition is not a lottery.  To be a lottery, the competition must allocate one or more prizes wholly by chance and participants are required to pay to take part.  This covers competitions where there is an indirect payment, such as a charge in addition to the network costs of sending a text message in a competition with entry by mobile phone or entering a competition by phone with a premium rate number.

However, if there is an element in the competition that requires participants to exercise a degree of skill or judgement or display knowledge, then the competition will not be a lottery.  The degree of skill, judgement or knowledge required is that which can “reasonably be expected to prevent a significant proportion of persons” from participating or winning a prize.

The Gambling Commission has published revised guidance on prize competitions and free draws.  In the guidance it makes clear that only a court can definitively interpret the skill and judgement test.  In its guidance, however, the Commission points out that “competitions that ask one simple question, the answer to which is widely and commonly known or is blatantly obvious from the material accompanying the competition” do not in its opinion pass the test.  Yet these competitions appear to be everywhere.

So is the proliferation of these one-question competitions evidence that:

1. the Commission is avoiding using its prosecution powers for some undisclosed internal policy reason (such as to preserve limited resources)?
2. the Commission is unwilling or unable to use its prosecution powers for a lack of certainty about how a court would interpret the skill and judgment test? or
3. prize competition organisers have been able to prove to the Commission’s satisfaction that significant proportions of participants are unable to answer simple questions?

Once bitten; twice shy?

Humberside Police will forever be remembered in data protection circles for being the police force that blamed the Data Protection Act 1998 for its policy of deleting information relating to allegations about the commission of criminal offences, including those of the Soham murderer Ian Huntley (aka Ian Nixon).  Huntley was thus able to secure a position as a school caretaker despite the fact that he had been investigated in the past for sexual offences (one act of indecent assault, four acts or underage sex and three rapes – he had even been charged with rape, but the case was dropped by the Crown Prosecution Service for lack of evidence) and burglary.  His only recorded conviction was for riding a motorcycle without a licence or insurance.

The pendulum has clearly swung the other way, as Humberside and four other constabularies were the subject of separate enforcement notices from the Information Commissioner for retaining records of convictions that were spent under the terms of the Rehabilitation of Offenders Act 1974.  The constabularies appealed to the Information Tribunal.  The decision of the Information Tribunal was to uphold the Information Commissioner’s enforcement notices.  The constabularies appealed to the Court of Appeal, where they were successful. The Court of Appeal judgement has recently been published.

The Court of Appeal decided that the Information Commissioner and Information Tribunal had misconstrued the data protection principles to determine that as the records were not necessary for the “core” police purpose of the detection of crime, they should be deleted.  It was for the data controller to determine the purposes for which personal data was processed, including determining the necessary retention period for data to meet those purposes.  The only restriction in the Data Protection Act 1998 was that those purposes had to be fair and lawful, which included being communicated to the data subject (and included on the data controller’s notification/registration).

It is clear that there is continuing unease about retention of criminal records or other information by police forces, which first became evident in the cases involving indefinite retention of DNA and fingerprint information on persons who have not been charged.  This practice has been ruled to be against an individual’s right to privacy under Article 8 of the European Convention on Human Rights by the European Court of Human Rights in Strasburg (see the S and Marper -v- United Kingdom).

Whilst the constabularies are correct to apply their own judgement to the appropriate retention period for criminal records, this is a sensitive area that calls for legislative intervention. After a consultation on the retention of DNA database records, the Home Office reported in November 2009 that it is considering a limit of six years for the retention of DNA data for innocent persons, but there has been no Home Office response to the Court of Appeal case on the retention of other police records.