Senator Stuart Syvret was fined a total of £4,200 and ordered to pay £10,000 in prosecution costs for the data protection breach. Not mentioned quite so prominently, certainly not on the early part of today's BBC Radio Jersey, was that he was also given one week to remove and/or destroy all data concerning Nurse-M, although quite how he will manage that with no internet access from the prison remains to be seen! It will also demonstrate whether he has, in fact, given other administrators control of his blog, and who could therefore now bar him from access (as he stated on his blog), or whether that was just a calculated bluff.
It is not perhaps surprising that he lost his case. When the focus of the Data Protection breach was not on any of the other people he had named on his blog, and accused of varying kinds of child abuse, he was clearly on a very weak position. If the breach had been about other people, he might have been able to summon the victims of the abuse to state their case, but in the case of Nurse M, where frail elderly patients had allegedly been murdered, it was always going to be impossible to find enough evidence. There were no witnesses to call, other than the investigating officers, such as Mr Faudemer, who would be unlikely to concur with Mr Syvret's assessment of the situation.
In fact, Crown Advocate Baker noted that: "An extremely experienced police officer Mr. Faudemer led that investigation for the police, and the investigation concluded that there was insufficient evidence against X******, and X****** was never charged."
That doesn't mean that there might not have been a case - clearly there had been a rise in the number of deaths in that wing of the hospital, but that could have also been attributed to natural causes - deaths of elderly patients, who already are expected to die sooner rather than later, do not follow regular patterns, and the likelihood is that they might follow a Poisson distribution (which is ironic in this instance, because it first came to light in Siméon-Denis Poisson's paper entitled "Recherches sur la probabilité des jugements en matière criminelle et en matière civile"). The Poisson distribution can be applied to systems with a large number of possible events, each of which is rare.
- The number of phone calls at a call centre per minute.
- The number of light bulbs blowing per month.
Clearly the death rate in the ward also followed a Poisson distribution, which meant that, like the old light bulbs (rather than the energy saving ones), one month might have very few deaths, then many might occur at once. The only case Stuart Syvret could have made was a statistical one, to show that the deaths were significantly higher than even a Poisson distribution would suggest, but the small numbers involved, and the need for accurate statistics over a long time scale, suggest that would be impossible.
It is also clear from what has been reported both on Stuart's blog, and in the public domain, that the Nurse in question certainly had serious issues, with theft of drugs, possession of cannabis, illegal firearms, a police radio, and a knuckle duster, and had several affairs with either patients or relatives of patients. This testimony under interview suggests that on those grounds alone, the nurse was not a suitable person to be employed as a nurse, and the naming of individuals, not just the nurse, but also police and witnesses, could have put them at jeopardy, especially as an expert witness said that the nurse "possessed the hallmarks of a serial killer and that he was an extremely dangerous man". But that is just an opinion, and not proof.
What interviews with Nurse M did not do was to provide any confession of murdering elderly patients, and it is clear that - whatever suspicions the police may have had - they could provide no more than circumstantial evidence which just was not enough. By publishing the name on his website, Stuart Syvret was essentially acting as a judge in a case which had not come to Court.
But the removal of the material required, if that is true, is shutting the door after the internet horse has bolted. A search for the named nurse reveals that the report, with names, has already been reposted on a number of blogs by individuals who do not live in Jersey, and even more pertinently the nurse in question has been named in the UK Hansard by John Hemmings. Unlike Jersey, where names of individuals can be expunged from the record, that is not possible with Hansard, and it would be interesting to see how any requests for editing out names are met. . Here is the section (where I have removed the name - the original is still there).
Another area about which I am concerned is the lack of action by the Ministry of Justice on the Crown dependencies. Because I undertake work in the family division, many people contact me. I currently have two cases relating to the Isle of Man, and I have a senator living in my flat in London. Senator Stuart Syvret was elected by the whole island of Jersey. He revealed on his web log that a nurse, XXXX, had been found to have probably murdered a number of patients. He was then prosecuted under the Data Protection Act by Jersey. He was not allowed to adduce as evidence the case to which he referred on his web log, which is a public interest defence-that he needed to reveal the failures of the judicial system in Jersey.(1)
Given the seriousness of the breach of Data Protection, it was not surprising that a large fine was levied. It is however, a matter of concern that no fine, and indeed no action, was ever taken against Terry Le Main (as a Deputy) for allegedly breaching the Data Protection Law for a second time, and flagrantly saying he "would do the same again". If that isn't some kind of contempt for the law, I don't know what is! What is more, although the Housing Department had to pay out for the first breach of the law, it was the individual in charge who breached the law, and whom, in the interests of justice, should have been liable for any fine rather than the taxpayer.
HOUSING president Deputy Terry Le Main has defiantly said he would 'do the same again' after he was told that he would not be prosecuted for breaking the Data Protection Law. The Attorney General, William Bailhache, concluded that there was insufficient evidence to proceed despite receiving a report from the data protection registrar which criticised Deputy Le Main. (2)
A STATES tenant whose rent arrears were disclosed by the Housing president will be eligible for compensation from the committee. If she does claim it, it will be the second time they have had to pay out for breaching the Data Protection Law. (2)
I'm not of the opinion that this occasion was of the same level as Stuart Syvret's breach of the law, but it does seem odd that the case was just dropped. "Insufficient evidence" seems a poor excuse - either the confidential data was illegally disclosed by Terry Le Main to a third party without permission, or it was not. As Mr le Main admitted doing so and said he would "do the same again", it is extremely difficult to understand the judgment of the Attorney-General in this matter.
It does seem the case that the judiciary has behaved inconsistently in this matter - although not, it must be said, the office of the Data Protection Registrar where there was a clear recommendation that a breach had been committed. However, that does not work in Stuart Syvret's favour, because if anything it would be Terry Le Main who should have been fined, rather than Stuart Syvret let off.
The Data Protection Commissioner, Emma Martins, was on BBC Radio Jersey today, speaking of any implications regarding publication of confidential data on blogs. It highlighted what I have been saying for some time, that if an email, for example, was to be published, the blogger should obtain permission from the sender to place it on the blog. It is also clear that if the email discloses personal data about other individuals, who are named, and which is not in the public domain, then they should have to authorise its publication as well. So what would apply, for example (locally):
- Mr Ogley's salary, which is not public - although the salary range, and his placement among the top 10 UK civil servants is public knowledge and can be mentioned.
- Mr Izzat's salary, which is public domain, in the published and publically available accounts of WEB, available to viewers worldwide.
Obviously also if a leak (and there are a number of those!) appears in the JEP or on the BBC, or Private Eye, then it can be reported on by the blogger, although it would be wise to identify the source, so that if the news organisation has to retract the information, so will the blogger.
Moreover, protection is for a living, identifiable individuals. Dead people, or corporations (such as limited companies) do not have the same protections.
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