Data Protection Abuse in Jersey Courts?

"The Data Protection Act  is increasingly being deployed as part of a claimant's arsenal in defamation claims." (Robin Hopkins)
 
A recent Court case concerning Stuart Syvret raises a number of concerns.  The case centred on his blog, and accusations which were considered defamatory. The usual course of action, you might imagine, in cases of defamation is to sue. That is, after all, the action that was taken by Senator Frank Walker when various accusations were being made about him regarding allegations of wife-beating. The Telegraph reported the story:
 
"Frank Walker - a senator of the island's governing body and, as president of its powerful Finance and Economics Committee, its equivalent of Gordon Brown - was, the rumour went, a serial wife-beater. Now a full-page public apology in the local newspaper announces that two prominent local men are sorry they ever suggested such an untruth. One of them is Leslie Norman, a successful accountant. The other, Francis Amy, chairman of the island's Constables Committee which runs its volunteer police system, has apologised further, for falsely alleging that Senator Walker abused his office by taking "improper and corrupt inducements". (1)
 
Frank Walker took legal action, because this kind of untruth would be considered slander or libel (if in print) and that was the legal avenue to pursue when people were defamed. Although they lost their action, the same due process of law was followed by Trevor Pitman and his wife when they considered themselves defamed.

In this case, the Court Judgment noted:
 
"Mr Syvret set up the Blog in January 2008.  The four representors are amongst those who have been repeatedly identified by name on the Blog as having, amongst other things, engaged in criminal behaviour." (2)
 
So the cause of libel for defamation would have been the same. But in this case, none of the people involved pursued that kind of claim. Instead, they side-stepped that route by getting the Data Commissioner to treat the accusations as violations of the Data Protection Law. The result was that the tax payer stepped in to pursue the case on their behalf.
 
"The case for the representors is that Mr Syvret is a "data controller" within the meaning of the DPL and that he has processed their personal data by uploading, publishing and storing false and offensive posts on the Blog.  The representors contend that the allegations made about them on the Blog are untrue and unjustified." (2)
 
The critical argument was as follows, following Carter-Ruck:
 
"It appears to us that Jersey law should give a wide meaning to the term "data".  Since posts on the Blog are disseminated to others by computers and/or the internet, we consider that posts on blogsites fall within the scope of the DPL."
 
While Stuart Syvret has certainly made hostile opinions about individuals, matters of opinion as well as matters of fact are now being drawn into the scope of data under the Data Protection Law:
 
"It is to be noted that data includes "any expression of opinion about an individual".  We have noted the hostile and abusive opinions expressed by Mr Syvret on the Blog."
 
This would certain run counter to the UK where the information commissioner takes a very different initial view regarding opinions given on the "Solicitors from Hell" website:
 
"The Information Commissioner responded that the DPA was not designed to deal with such issues and that it was "not the purpose of the DPA to regulate an individual right to freedom of expression - even where the individual uses a third party website, rather than his own facilities, to exercise this.""((4)
 
What makes matters worse is that the whole case was shrouded in secrecy. You have only to look at libel cases in the past - Olga Johnson against Donald Lucas, or that or Mr and Mrs Pitman against the JEP - to see that the treatment of the case is conducted in public, with witnesses, documentation, etc all presented in a transparent manner. Justice could be seen to be done.
 
But in this case, justice is enfolded in secrecy. According to the Court records which are available,
 
"This was a case where we are quite satisfied that if any publicity were to be given to facts of the case (including the nature of the relief sought, the evidence given and the terms of the present judgment), the object of the application would be defeated.  This means that no reporting of any part of the proceedings is permissible".
 
But this was a judgement given on  13th June, 2013, yet on 18 Sep 2012, John Hemming spoke about the matter in the House of Commons, where it is a matter of public record, protected by Parliamentary Privilege. This should have been known to those involved, including the judge.

It should be noted that the House of Commons Hansard cannot be subsequently redacted to remove names, as can happen here after recent changes in Jersey law. Hemmings stated:
 
"Bloggers are being threatened to stop them talking about people. Decisions by the state not to prosecute cannot be challenged, nor is private prosecution allowed. The country is Jersey. The journalist is Leah McGrath Goodman, who is an American. The chief of police was Graham Power. Furthermore, [names redacted by myself] have, with the assistance of the Jersey Government, obtained a super-injunction against ex-Senator Stuart Syvret-under the Data Protection Act of all things-to prevent from him saying things about them on his blog that are true. Mr Syvret has evidence that criminal offences are being swept under the carpet, but nothing is being done."
 
It may seem that the case of Stuart Syvret is an extreme case, where the Data Protection Commissioner was right to pursue the matter, although having no evidence available - as for instance in Olga Johnson versus Donald Lucas - we have no way to know, apart from general arguments that bloggers may be considered processors of personal data under the Jersey Data Protection Law.
 
We also have no idea of the costs involved, but this route, which circumvents traditional approaches for libel, is obviously very useful for those who consider themselves - perhaps rightly - to be maligned because they no longer have to pursue matters at their own expense, but can expect the State to pick up the tab.
 
Ominously, the judgment also notes that:
 
"I understand that in the present case the Data Protection Commissioner has indicated that she considers it to be likely that similar cases to the present may arise in future and that guidance from the Court as to the approach to be adopted would be welcome."
 
Returning to the UK, The "Solicitors from Hell" website, despite the judgement of the information commissioner was taken to court. The court judgment was that:
 
"The court held that the Defendant was a data controller of personal data (including sensitive personal data) relating to the solicitors in question and had processed this data "in a grossly unfair and unlawful way by, in particular, [.] publishing highly offensive defamatory allegations about these solicitors and other individuals on the Website.""
 
As lawyers Ashley Hurst and Jack Gilbert note (on The International Forum for Responsible Media Blog):

"The ruling in the Solicitors from Hell case is potentially very significant, as it leaves the door open to potential defamation complaints dressed up as complaints under the DPA being made directly to the ICO."
 
It appears that the same practice is now being followed in Jersey Courts.
 
And Hurst and Gilbert note the potential advantages of this in gaining silence before claims have been tested in the courts:
 
"Ordinarily, a claim brought under the DPA alone will not be cost effective. Whilst such claims can be more straightforward than libel claims, awards for damages are usually small when compared to a successful claim for libel and a complaint to the ICO will not result in an award of damages at all. The real advantage of bringing a claim under the DPA lies instead in the alternative remedies that it can offer to claimants seeking alternative relief"
 
"Perhaps the most useful remedy that a claim under the DPA can provide, however, is the ability to obtain an interim injunction. It is a long-established rule in defamation law, dating back to 1891 (in the case of Bonnard v Perryman [1891] 2 Ch 269), that a court will not grant a claimant an interim injunction where the defendant expresses a bona fide intention to defend the claim."
 
"For claims brought under the DPA, however, quite the opposite is true. Indeed in many circumstances it will be of the utmost importance that a defendant is prohibited as soon as possible from continuing to process data in a way that is inconsistent with the DPA. Employing such a remedy in a defamation context can therefore provide a claimant with a powerful remedy that would not be available under traditional libel proceedings."

While we all want protection for our reputations online, should it be at the expense of tax payer funded and secret court proceedings, where matters of opinion as well as matters of fact can be silenced?
 
Links
(1)   http://www.telegraph.co.uk/news/worldnews/northamerica/usa/1335453/Cream-of-Jersey-society-whips-up-scandal.html
(2)   http://www.jerseylaw.je/judgments/unreportedjudgments/documents/display.aspx?url=2013/13-09-04_AB_and_Others-v-Syvret_170.htm
(3)   http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm120918/debtext/120918-0003.htm
(4)   http://inforrm.wordpress.com/2013/04/02/protecting-reputation-how-the-data-protection-act-is-being-used-and-abused-ashley-hurst-and-jack-gilbert/

Stuart Syvret Verdict and Data Protection

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.

Links
(1) http://www.publications.parliament.uk/pa/cm200910/cmhansrd/cm091118/debtext/91118-0015.htm
(2) http://www.thisisjersey.com/2004/01/29/data-protection-housing-may-have-to-pay-out/
(3) http://www.recordsmanagement.ed.ac.uk/InfoStaff/DPstaff/PDDefinition.htm

Le Main Law

Terry Le Main said...

I continue to see quite ridiculous payments of taxpayers monies to cases that quite honestly would make you quite ill..especially if you are a hard working ordinary Jersey resident...paying your taxes etc...its something that this awful " Data Protection legislation " precludes me from disclosing cases...one recent case I queried...the response from the Minister...I cannot speak to you because of Data Protection, nothing but an excuse ...years ago the likes of the then Senator Dick Shenton and I could discuss issues with family etc...not now..those commonsense days are gone...please let me give you a case when I was Housing Minister... a lady came home to see me ..she said I have come to thank you for the way and manner that you are helping and assisting my daughter and grandchild....I knew this lady and her daughter...I listened to this lady but after she had left I then realised the position with her daughter was that during that week I had signed a Ministerial decision to evict the daughter because she refused to comply with her tenancy agreement, did not pay her rent, yet received rental assistance...well what do you think this good lady thought of me when she found out about the eviction...she knew nothing about her daughters behaviour...the true position was that in the past prior to this " Data Protection Legislation " the Dick Shentons and Terry le Mains of this world would have been able to assist by going to the mother, telling her the issues with her daughter and all of us together assisting to resolve the daughters problems thus allowing her to remain housed...but although this legislation protects peoples personal and intimate information, it just goes too far when in this case we really could have assisted this poor girl...in fact because she had not given permission she was evicted...everybody was a loser..it is a joke that in an Island of 90k people we are spending £86M on benefits...yes far too many claimants are in fact playing the system and many local GP's have a lot to answer for in the way and manner that they give out " medical certificates" i have several very bad cases that I am unable to investigate etc...due to this legislation etc..(1)

There is a posting on another blog which I reproduce above which allegedly comes from Senator Terry Le Main. I say allegedly, because although it comes in his style, it is of course easy to impersonate another individual on a blog. However, stylistically, the " steam of consciousness" in which the thoughts flow freely without reference to punctuation apart from a characteristic repetition of three fullstops, are the same as those of the Senator, and the content certainly referred to a case in which Terry Le Main was in breach of the Data Protection Laws.

What becomes clear upon reading this entry and indeed his defiance of a previous breach of the law is that he simply cannot understand how the law works, how as Housing president and then as Housing Minister he was in a position of privilege, and why there are a very good reasons for Data Protection Law. The case referred to occurred in 2004, and was more serious because it was the second time in which the law had been broken. It was reported in the Jersey Evening Post as follows:

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. Data Protection Registrar Michael Smith is on the verge of issuing another enforcement order on the Housing Committee because the president had acted 'knowingly and recklessly' when Deputy Terry Le Main released the details. His decision comes despite the Attorney General's decision not to prosecute the committee for the infraction. Mr Smith has also decided to publish his report into the tenant's complaint on his website. The complaint was made almost 12 months ago after Deputy Le Main contacted the mother of a States tenant, claiming that she had abandoned her accommodation in a 'terrible' state and that he had concerns for the welfare of her grandchildren. Mr Smith told the JEP: "As an enforcement notice was issued in the previous case, this second breach could be deemed as being knowing and reckless under the law and therefore justified a further review by the Attorney General for a possible offence." He says that the committee's previous infraction means that "mitigation may be difficult to uphold in this case" (2)

The case in point was curious as far as evidence was concerned because while Deputy Le Main (as he was then) was handing out photographs displaying the appalling state that the property had been left in, Deputy Southern was producing photographs of the same property after the tenant had tidied up and redecorated. Moreover, Deputy Southern had a contrary report from the Children's Service which said that there was no evidence that the woman or her children had lived in it in the state depicted by Senator Le Main and which found his worst claims "unsubstantiated".

Before I go on to examine this in more detail, I would mention that the first case in which the Data Protection Law was breached by Terry Le Main, in his capacity as Housing president was when he released of the tenant in a letter to the JEP. In that instance, the committee were forced to pay her compensation. In this particular case, Mr Le Main was using the details of the rent as part of an argument against criticism that he had faced on rents in State Housing, and to prove his point, he had cited a singular example giving the rent details and the name of the tenant. As president of housing, he was in a privileged position of having confidential information. If a civil servant had disclosed that information to the public domain, they would certainly have been breaking their oath of office. As a politician, he was not bound by this, and that is where the Data Protection Law comes into play because it is designed to protect individual data from such cases as this. Without the law, any criticism of a Housing president could be met in this way, which can be seen as a form of political bullying -- if you dare to attack me, I will give out all sorts of details that I know about you to undermine your case regardless of the fact that this is privileged information.

With the second breach of the Data Protection Law, we have the cosy uncle Terry meeting the family and sorting out all their problems. This scenario, iddylic though it sounds, could still take place. All that Terry would have needed to do to comply with the law would have been to ask the daughter if he could put her mother in the picture and try to work out a resolution. The critical factor is asking the daughter. Without that, the cosy scenario might in fact have worked very differently.

We can see this in play very well in fiction, because that often draws upon the way things were done. In a number of episodes of "Upstairs Downstairs", for example, the erring daughter or the straying son would have matters sorted out by the father, Richard Bellamy, and the family lawyer, and also possibly the mother. They would take it upon themselves to decide what was best for the daughter or the son, and put pressure upon the said child to agree to this. On watching this, I am often struck by how often the values of the parents and professionals feed into their idea of "what was best", and how as a viewer coming from outside, and not sharing all the Edwardian values, the resolution often seems unjust, calculated to preserve appearances, and an exercise of power by those in positions of power to bully others into agreeing with their opinions. This is easy to see because the programme is a period drama, and the society and values which it depicts clearly differ in some marked respects (about preserving appearances and public decorum) from those of the late 20th century and 21st century.

In the case of the second breach of data protection, Mr Le Main presents himself as the champion of the girls best interests in disclosing privileged information to her mother. But as we have seen, the evidence upon which he set so much store was certainly at least disputable if not incorrect. By giving this information to the girl's mother, we can see the same kind of scenario about " what is best" being played out, which was why the girl's consent or so important. Of course, we have no idea of how good the relationship between the girl and her mother was, and neither did Mr Le Main. He was therefore revealing confidential information which might have led to a breakdown of that relationship, or if there was a damaged relationship, something that the mother could complain about to her daughter. In deciding to play the part of the benign and kindly politician, Terry Le Main could in effect be tossing a psychological hand grenade into the room.

In fact he also did more than this, he also named her in an e-mail to States members as "not a fit person to be looking after children". And yet it is clear from Deputy Southern's report from the children's service that this was that this was not the case or at the very least was questionable. Was she guilty of cruelty to children? Had she neglected then? Senator Le Main seems to have cited very little in the way of substantial evidence to support his case apart from the debatable condition of the house and yet he felt free, without getting any checks from the children's service - which would be the first place to support his assessment of the girl - to shred her reputation as a parent toward the States members. If the Data Protection Law does anything, it must be to prevent lone individuals, with no substantial evidence, making defamatory claims. It is ironic that Senator Le Main criticises Stuart Syvret for doing precisely this, and yet seems to feel that he is completely immune from the due process of the law himself.

The Attorney-General, giving a generous interpretation of his evidential rule decided that even if this was the second offence, there was not a substantial case to answer. One can only hope that Stuart Syvret will benefit from this lax approach when he is tried on similar breaches.

The fact is were these. Deputy Le Main had broken the Data Protection Law. The Deputy Registrar had written a report and recommended prosecution. The report showed that personal data of a data subject which was the privileged knowledge of the Deputy in his capacity as P

President of Housing had been disclosed to another party without consent. Had it been a matter regarding the electoral law and assisting people with the completion of applications to allow them to receive postal votes, such evidence would have produced a heavy fine, as indeed it did in the case of Deputies Southern and Pitman. In this case further, a further investigation was requested and the Attorney General decided, on the basis of this information, which was not placed in the public domain, that there was insufficient evidence for a prosecution. The Attorney General also declined to make clear his grounds for making this decision as it would involve "disclosing material parts of the evidence" and would lead to public controversy.

"Having considered the report, I referred it to the Chief Officer of the States police in order that a full investigation might be carried out and evidence gathered in a form which could be used, if a prosecution were to be brought. I received a full file of that investigation later last year and resolved that no prosecution would be brought, as there was insufficient evidence to justify doing so. Deputy Le Main claimed that the data protection registrar had not properly considered the evidence before reaching his conclusions. 'He wrongly listened to one side of the story'"

I can only assume that this report by the Jersey Evening Post is incomplete in some respects as it seems, in my opinion, to make no sense at all. Whether a decision to prosecute an individual would lead to public controversy seems a bizarre ground for not doing so. And one wonders what the other side of the story could have been. Either the girl in question had given her consent or otherwise placed information about her rent in the public domain, or Deputy Le Main was not himself responsible for breaching the law, or perhaps had done so accidentally. There is no evidence whatsoever that the first is correct, and the attitude of Deputy Le Main suggests that this was a deliberate act. The only one side of the story that is not clear is whether Deputy Le Main understood the Data Protection Law. The grounds would therefore seem to be that while ignorance of the law excuses no one, incomprehension of the law excuses politicians.

As one might expect, Terry came forward with his traditional defiance:

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.(3)

Of course, Senator Le Main has recently come under fire for misguidedly sending a letter of support in defence of an individual being prosecuted for breach of housing regulations as something he happened to believe was wrong and should receive more lenient sentence. He said that he would have behaved the same way for any of his constituents that the individual in question was merely a business acquaintance and not a friend with whom he would have socialised. The fact that this business acquaintance had helped his political campaign costs for many years did not seem to suggest to him that perhaps it was not the wisest thing to pitch in to the defence of someone with whom he had a close political connection, and in respect of the law that the Minister was responsible for upholding. Senator Le Sueur took the view that it was a case of his heart getting the better of his head and that, while Senator Le Main resigned, provided he accepted that he had breached the State's code of conduct, he could become a Minister once more; all he needed was a little better "education" in the code. This was beautifully summed up by Ben Queree, in one of the best appreciations of how Teflon like Terry Le Main was with respect to the kind of behaviour that might have led to a political graveyard for any other politician.

SO that's sorted then. In case anyone was in any doubt, it's essentially fine for a minister to pester the Law Officers to drop a prosecution against someone who has donated to his campaign costs for decades, and then to plead with the Royal Court to go easy when it comes to sentencing. And if this campaign contributor - not 'friend', dear me no - happens to have been caught breaking the law that the politician is meant to enforce as a minister, that's not a big deal either. These things are good to know. And it's probably good to know too that 'essentially fine' means that the rules were broken, but that it doesn't really matter - that the whole thing can be dealt with by a little 'training and education'. Try that one out next time you get a parking fine. Exactly what kind of 'training and education' Chief Minister Terry Le Sueur has in mind for his erstwhile Housing Minister Terry Le Main was left tantalisingly hanging in the report, released last week, into the whole sordid mess. Pointing out that the code of conduct exists might be a start. Or perhaps a slide show of some kind, or maybe using glove puppets to represent the distinction between the executive and judicial branches of government. Or possibly just sitting down in a little room while someone reads the ministerial code of conduct out loud. Very . slowly.'(4)

Just as with the Data Protection Law, Senator Le Main's stance was to say that he had done nothing wrong and was entirely justified in his actions. One has to conclude therefore, that he has shown no contrition, no appreciation that he has behaved in any manner that is inappropriate for a States member under the State's code of conduct, and no recognition that Senator Le Sueur's dropping of the matter and not bringing any disciplinary measures was conditional upon him not doing it again. Instead, what we have is self-justification, complete confidence in his own rightness, and nostalgia for a fairytale past in which he could resolve matters by bypassing all the protections against defamation and political bullying, but which were never quite as rosy tinted as the portrait he paints.

I look with interest to his election campaign, should he decide to stand for election next year. It would be extremely interesting to see a pamphlet consisting of the un-punctuated "Thoughts of Chairman Terry", and what the public would make if that was unleashed upon them in an expurgated form. I wonder if it will still be printed by the same publisher that he went to great lengths to disassociate himself from, and who probably not just printed but also edited the final version of the manifesto into something resembling English far better. I personally believe that while laws must be unjust, politicians must have extremely good grounds of conscience for breaking them with such impunity and he should certainly be asked if he would still be prepared as he stated in 2004 to break the law again.

And finally, I would just like to comment, that despite my strictures against Senator Le Main regarding his infractions and contempt for laws, he has undoubtably helped a number of Islanders, particularly in his earlier days in the States, and without breaking any laws (or even breaking future laws that would have been broken had they been on the statute books). I know personally some of the people whom he helped as a States member, and it was disinterestly, in the best kind of public service. He was one of the members voting for a women's refuge, and certainly his past votes from the 1980s show a record for social concern (I simply have not examined the 1990s or later). It just seems a shame that he should now spoil his own record by a belligerent defiance of laws and codes of conduct, and behave in a manner which he sees fit to ignore these when it suits him, or not ask for advice from his colleagues when it would be prudent to do so.

Links
(1) http://thehautdelagarennefarce.blogspot.com/2010/08/child-abuse-some-real-issues-in-jersey.html
(2) http://www.thisisjersey.com/2004/01/29/data-protection-housing-may-have-to-pay-out/
(3) http://www.thisisjersey.com/2004/02/04/gloves-are-off-in-feud-over-damage-to-house/
(4) http://www.thisisjersey.com/2010/07/27/will-senator-le-mains-training-and-education-involve-a-slide-show-or-mayby-glove-puppets/#ixzz0xwcG6nbb

Jersey Police contravene Data Protection Law ?

"This is an operational matter and not a policy matter. It would be quite wrong for me to make a public statement relating to an individual case. Apart from any other considerations, that could prejudice any future trial. Senator Syvret should not be treated differently to any other member of the public." - Ian Le Marquand, Home Affairs Minister.

Presumably any member of the public suspected of infringing the Data Protection Law can expect to be arrested when they step out their front door, kept in custody for over six hours, and have their house ransacked - without the authorisation needed under Schedule 9, Article 50 of the Data Protection Law? Certainly Senator Syvret should not be treated differently to any other member of the public, but should any member of the public be treated like this? Ian Le Marquand seems to imply that they would be!

As an anonymous  poster noted on Stuart's blog, the Data Protection Law is quite specific in these circumstances! I do hope someone asks Emma Martins how most of the details required below seem to have been completely ignored by the police. Part of the good operation of the police is to follow the law themselves, not become a law unto themselves. Somehow Ian Le Marquand seems to have forgotten this. Perhaps he should read the relevant law?

SCHEDULE 9
(Article 50)
ENTRY AND SEARCH OF PREMISES, OBTAINING INFORMATION
PART 1

ENTRY AND SEARCH
1 Interpretation
In this Part -
"occupier" of premises includes a person in charge of a vessel, vehicle, aircraft or hovercraft;

"premises" includes a vessel, vehicle, aircraft or hovercraft;

"warrant" means warrant issued under this Schedule.

2 Entry and search

(1) If the Bailiff or a Jurat is satisfied by information on oath supplied by the Commissioner that there are reasonable grounds for suspecting -

(a) that a data controller has contravened or is contravening any of the data protection principles; or

(b) that an offence under this Law has been or is being committed,

and that evidence of the contravention or of the commission of the offence is to be found on any premises specified in the information, the Bailiff or Jurat may issue a warrant to the Commissioner.

(2) The Bailiff or a Jurat shall not issue a warrant in respect of any personal data processed for the special purposes unless a determination by the Commissioner under Article 45 with respect to those data has taken effect.

(3) A warrant may authorize the Commissioner or any of the Commissioner's staff at any time within 7 days of the date of the warrant to enter the premises, to search them, to inspect, examine, operate and test any equipment found there which is used or intended to be used for the processing of personal data and to inspect and seize any documents or other material found there which may be such evidence as is mentioned in sub-paragraph (1).

3 Additional conditions for issue of warrant

(1) The Bailiff or a Jurat shall not issue a warrant unless satisfied -

(a) that the Commissioner has given 7 days' notice in writing to the occupier of the premises in question demanding access to the premises;

(b) that either access was demanded at a reasonable hour and was unreasonably refused or although entry to the premises was granted, the occupier unreasonably refused to comply with a request by the Commissioner or any of the Commissioner's staff to permit the Commissioner or the member of staff to do any of the things referred to in paragraph 2(3); and

(c) that the occupier, has, after the refusal, been notified by the Commissioner of the application for the warrant and has had an opportunity of being heard by the Bailiff or Jurat on the question whether or not it should be issued.

(2) Sub-paragraph (1) shall not apply if the Bailiff or Jurat is satisfied that the case is one of urgency or that compliance with that sub-paragraph would defeat the object of the entry.

4 Force

A person executing a warrant issued under this Schedule may use such reasonable force as may be necessary.

5 Police officer may accompany

A person executing a warrant issued under this Schedule may be accompanied by a police officer during its execution.

6 Hour

A warrant shall be executed at a reasonable hour unless it appears to the person executing it that there are grounds for suspecting that the evidence in question would not be found if it were so executed.

7 Warrant to be shown

(1) If the person who occupies the premises in respect of which a warrant is issued is present when the warrant is executed, the person executing it shall show the warrant to that person and supply him or her with a copy of it.

(2) If that person is not present, the person executing it shall leave a copy of it in a prominent place on the premises.

8 Receipt

(1) A person seizing anything in pursuance of a warrant shall give a receipt for it to the person in occupation of the premises if the latter asks for it.

(2) Anything so seized may be retained for so long as is necessary in all the circumstances but the person in occupation of the premises in question shall be given a copy of anything that is seized if the person so requests and the person executing the warrant considers that it can be done without undue delay.

Data Protection - A Comparative View of Jersey and the UK

http://stuartsyvret.blogspot.com/2009/04/arrested.html

"Well, they let me go in the end - after 7 hours in a police HQ cell. To those of you who don't know what I'm speaking of - I was arrested in a raid on my home this morning. Apparently - alleged breaches of the data protection law merited me being seized as I stepped out of my home - with 4 unmarked police cars and at least 8 police officers proceeding to turn over my home."

http://news.bbc.co.uk/1/hi/world/europe/jersey/7985878.stm
The senator and former health minister is thought to have spent six hours in custody helping police with inquiries

http://www.channelonline.tv/channelonline/
It's believed he could face charges under article 55 - 'unlawfully obtaining documents and unlawfully disclosing them

Apart from two cases in the UK, I cannot find any other cases of anyone being held in custody for breaking the Act. Seven hours to be held for this offense seems an extremely long time, and could be seen as a form of duress.

The two cases in question are Andrew Broom, who was a police officer in the UK found guilty of breaking the Data Protection Act; he obtained personal information from the police database and harassed a woman (who can not be named for legal reasons). Andrew Broom admitted three offences of breaching the Data Protection Act by obtaining personal information, and pleaded guilty to putting a person in fear of violence by harassment. It is clear that the latter offense led to his remand in custody, rather than the breach of the Act.

The other case is also a policeman, Graham Pryce-Jones, who had obtained the criminal records of his partners son and given her a print out. He was sentenced to a 12-month conditional discharge and made to pay costs. While he was not actually sent to prison, rather a conditional discharge, it shows that the courts are starting to take the offence more seriously.

Other breaches by Orange (the mobile phone company) and Littlewoods have resulted in formal undertakings, rather than fines. Following its investigation, the ICO found that Orange was not keeping its customers' personal information secure and therefore was in breach of the Data Protection Act. In a separate investigation the ICO ruled that Littlewoods Home Shopping had failed to process customers' data in line with the Data Protection Act. This follows a customer's attempt to stop the company using her personal data for direct marketing purposes. Despite her requests Littlewoods continued to send her marketing materials. The ICO has now required each company to sign a formal undertaking to comply with the Principles of the Data Protection Act. The story reports that:

Dr Chris Pounder of Pinsent Masons, and Editor of Data Protection and Privacy Practice, said: "This action is evidence that the Information Commissioner is using undertakings as a way of increasing his leverage against data controllers. Where an assessment by him concludes that a data controller has failed in a key obligation under the Act, then the Commissioner is asking for an undertaking that 'it won't happen again'. This ensures that if something were to happen again, the Commissioner can proceed to immediately to enforcement. It is only when there is a further failure will criminal prosecution occur." "In other words, the Information Commissioner is trying to establish the data protection equivalent of the 'three strikes and you're out' rule," he said.

In Jersey, of course, the other well-known States Member known to have breached the Data Protection Act is Senator Terry Le Main. In an e-mail sent to several States Members in February 2003 he named the woman and described her as 'not a fit person to be looking after children' after she vacated her house. An officer from Housing, and one from the Children's Service found this to be completely unsubstantiated. After visiting the tenant's property Deputy Le Main had telephoned the tenant's mother and disclosed details of her rent arrears. In doing so he breached the Data Protection Law for a second time. 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. Defiantly, in 2004, 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, especially given Le Main's statement (in the JEP) that - rather than giving an undertaking that he would comply in future - instead he defiantly said that he would flout the law again.

It will be interesting to see how any grounds for prosecuting Stuart Syvret differ from those for dropping the case against Terry Le Main.

Links:
http://www.whereisyourdata.co.uk/whereismydata/2008/06/20/police-officer-pleads-guilty-to-breach-of-data-protection-law/
http://www.theregister.co.uk/2007/06/22/orange_littlewoods_dpa_breach/
http://www.whereisyourdata.co.uk/whereismydata/2008/06/20/data-protection-act-12-month-sentance/
http://www.thisisjersey.com/2004/01/16/data-law-case-against-deputy-dropped/