For the people of Scotland; my challenge to Non Crime Hate Incidents
Harry Miller's article 10 challenge is available as a published Court of Appeal judgment - here are my arguments re article 8 and GDPR
As a public service, to the people of Scotland - or indeed any of us who might find our lawful protected speech via social media reported to Police Scotland by anyone who reads it on Scottish soil, here are the arguments that would have been made on my behalf, if the College of Policing hadn’t caved after Harry Miller’s Court of Appeal victory on article 10. Thanks again to all those who donated nearly £50K to my crowdfunder - you paid for this.
(I have had to delete the background in order to make this post short enough to publish here)
STATEMENT OF FACTS AND GROUNDS
References:
· In [bold] are to page numbers in the judicial review claim bundle
Essential reading:
· Authorised Professional Practice Guidance on Hate Crime [ref]
· Witness Statement of Sarah Phillimore [ref]
· Witness Statement of Harry Miller [ref]
Sarah Phillimore
17. Ms Phillimore sets out the background to her claim in detail in her witness statement [ref]. She is a practising barrister with expertise in family law. She holds a keen interest in the debate surrounding women’s sex-based rights and the political/ideological approach to gender re-assignment/identity. Ms Phillimore has acted as vocal critic of recent developments in relation to these issues both at public events and on social media. This has led to Ms Phillimore being vexatiously targeted and harassed by those on the opposing side of this debate, as Ms Phillimore describes in her statement [ref[BF1] ].
18. In June 2020, Ms Phillimore became aware that a person on Twitter was claiming that she had been reported to Wiltshire police for “hate”. Accordingly, on 1 July 2020, Ms Phillimore submitted a Data Subject Access Request (“DSAR”) for details of any purported “hate crimes” or “hate incidents” which had been recorded against her name.
19. Wiltshire Police responded to the DSAR on 6 July 2020, confirming that a “hate incident” report had been recorded in relation to social media postings made by Ms Phillimore (“the Record”). The Record contained Ms Phillimore’s full name, home address, date of birth, profession and Chambers email address: in other words her personal data. It described her as: “a barrister who is posting hate messages towards transgender and also religion” [ref]. Ms Phillimore was not provided with the name of the person who had reported her to Wiltshire Police. Indeed, she has never been provided with this information despite having requested it on multiple occasions. The Record was initially made pursuant to the HCOG, but is now being maintained pursuant to the Guidance. Ms Phillimore describes the existence of the Record as having “a profound negative effect on me”. She is anxious that it could affect her future career prospects and her ability to volunteer with charities serving vulnerable women – something that she is well qualified for and has been invited to do [ref[BF2] ].
20. As explained in her statement, Ms Phillimore is seeking to secure the deletion of the Record via a complaints process operated by Wiltshire Police. In pre-action correspondence (dated 20 November 2020 [ref], and 3 December 2020) [ref], Wiltshire Police has adopted the position that Ms Phillimore does not presently have a judicial review claim against it in respect of their non-deletion of the Record, because the complaints process, which could result in deletion of the Record, is ongoing. On that assurance, she does not at present seek a separate remedy from Wiltshire Police itself. However, she seeks judicial review of the Guidance, both because (a) it is the basis on which Wiltshire Police continues to hold the Record and so process her personal data; and (b) she wishes to continue to participate in the debate above without further records being made against her.
The greater likelihood of women being accused of hostility or prejudice during transgender debate
21. In her statement, Ms Phillimore explains how women who express gender critical views are regularly subjected to vilification, threats and prejudice. She provides a list of high-profile examples and states:
These examples serve to show that the national discourse on transgender rights and their tension with the sex-based rights of women has created a toxic and intimidating culture where women face extraordinary hostility. All of the examples cited are well known and should have alerted the Defendant to the additional risks women are facing in this new social, cultural and political conversation.
22. She goes on to discuss the exclusion of “sex” from the five monitored strands covered by the Guidance, and the College’s response to her pre-action letter on this issue [ref[BF3] ]. She states [ref]:
It is clear from the response of the Defendant that it has not considered the impact on women of the recent debate on transgenderism. This unfairly provides an incomplete assessment of incidents that can impact women’s mental and emotional health and also silence their views on issues of significant importance to them. This incompleteness causes one group to be ‘favoured’ over another.[BF4]
23. In short, Ms Phillimore is concerned that the Guidance means that women are more likely to be targeted by reports of NCHI; it also fails to protect women from hateful intimidation when they express gender critical opinions.
C. grounds
24. The Guidance is unlawful on the following grounds.
Ground 1: The requirement to record NCHI as set out in the Guidance would lead to, or permits or encourages, or gives rise to an unacceptable risk of, unlawful conduct, namely breach by the police of the General Data Protection Regulation and/or the Data Protection Act 2018 (“the DPA 2018”), and/or Article 8 of the European Convention on Human Rights (“ECHR”)
Legal framework
The data protection legislation
25. The police’s common law power to obtain and store information for policing purposes is subject to the statutory scheme for the processing of personal data: see R (Bridges) v Chief Constable of South Wales [2020] 1 WLR 5037 at §§104. This scheme comprises the UK General Data Protection Regulation (EU) 2016/679 (“GDPR”)[5] and the Data Protection Act 2018 (“DPA 2018”).
26. Article 2 of the UK GDPR states that it will not apply to the processing of personal data for “the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.” Processing for these purposes is governed by Part 3 of the DPA 2018 (see ss.1, 29 & 31). In its Pre-Action letter, dated 27 November 2020, the College has stated that it considers the recording of NCHI pursuant to the Guidance to fall under Part 3 DPA 2018 [ref].
27. “Personal data” is defined in s.3(2) DPA 2018 as “any information relating to an identified or identifiable living individual”. “Processing” is broadly defined in s.3(4) as an operation of set of operations which is performed in information or sets of information, such as collection, recording, organisation, structuring, storage and disclosure of dissemination.
28. Sections 35-40 of the DPA 2018 require that the processing of personal data for law enforcement purposes must comply with all of the six data protection principles, which are set out in those provisions. Of these, the first is of particular relevance to this claim. The third and fifth are also relevant.
29. As to the first, section 35 states as follows (with emphasis added):
35 The first data protection principle
(1) The first data protection principle is that the processing of personal data for any of the law enforcement purposes must be lawful and fair.
(2) The processing of personal data for any of the law enforcement purposes is lawful only if and to the extent that it is based on law and either—
(a) the data subject has given consent to the processing for that purpose, or
(b) the processing is necessary for the performance of a task carried out for that purpose by a competent authority.
(3) In addition, where the processing for any of the law enforcement purposes is sensitive processing, the processing is permitted only in the two cases set out in subsections (4) and (5).
(4) The first case is where—
(a) the data subject has given consent to the processing for the law enforcement purpose as mentioned in subsection (2)(a), and
(b) at the time when the processing is carried out, the controller has an appropriate policy document in place (see section 42).
(5) The second case is where—
(a) the processing is strictly necessary for the law enforcement purpose,
(b) the processing meets at least one of the conditions in Schedule 8, and
(c) at the time when the processing is carried out, the controller has an appropriate policy document in place (see section 42).
[…]
(8) In this section, "sensitive processing" means—
(a) the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership;
(b) the processing of genetic data, or of biometric data, for the purpose of uniquely identifying an individual;
(c) the processing of data concerning health;
(d) the processing of data concerning an individual's sex life or sexual orientation.
30. It is likely that any NCHI recorded in respect of a person’s views about transgender issues will contain details of a person’s political opinions and / or philosophical beliefs relating to issues of sex and gender. Therefore its processing will fall within the definition of “sensitive processing” set out in s.35(8).
31. The concepts of “necessity” and (in the case of sensitive processing) “strict necessity” import a test of proportionality: see South Lanarkshire v Scottish ICO [2013] UKSC 55 at §27; R (II) v Commissioner of Police of the Metropolis [2020] EWHC 2528 (Admin) at §85. In relation to “strict necessity”, in R (Bridges) v CC South Wales Police [2020] 1 WLR 672, the Divisional Court endorsed, at §136, the comment of the art 29 Working Party on the Law Enforcement Directive[6] (from which section 35 is derived), that:
“strictly necessary … has to be understood as a call to pay particular attention to the necessity principle in the context of processing special categories of data, as well as to foresee precise and particularly solid justifications for the processing of such data.” (emphasis added)
32. It is also widely accepted (including in the cases cited above) that consideration of necessity will require consideration of the extent of any interference with Article 8 ECHR (see below).
33. The third data protection principle in Part 3 of the DPA, contained in s.37, provides that “personal data processed for any of the law enforcement purposes must be adequate, relevant and not excessive in relation to the purpose for which it is processed."
34. The fifth principle, in s.39, “is that personal data processed for any of the law enforcement purposes must be kept for no longer than is necessary for the purpose for which it is processed”; and that “appropriate time limits must be established for the periodic review of the need for the continued storage of personal data for any of the law enforcement purposes”.
35. If or to the extent that the police’s recording of NCHI is not governed by Part 3 of the DPA (as the College has said it is), it must, pursuant to s.2 of the DPA, comply with the GDPR. A summary of the relevant provisions of the GDPR is provided in Annex 1 to these Grounds.
Article 8 ECHR
36. When it records an NCHI, the police is required, by section 6 of the Human Rights Act 1998 (“HRA”) not to act incompatibly with Article 8 ECHR. This provides:
(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 interests 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.
37. An interference will be in accordance with the law if it is accessible to the person concerned, and if that person can foresee its consequences for him: Kruslin v France 12 E.H.R.R. 547, §17. In R (Gillan) v Comr of Police of Metropolis [2006] AC 307, Lord Bingham held (§34):
The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality.
Submissions
Data protection
38. Given the College’s stated position that it is Part 3 DPA which applies to police processing in the present context, the Grounds below proceed on that premise.
39. The Guidance leads to, or permits or encourages, or gives rise to an unacceptable risk of, a breach by the police of Part 3 DPA. That is because it advises, permits, encourages, or gives rise to an unacceptable risk that the police will record NCHIs, and so process personal data or engage in sensitive processing, in breach of that legislation.
40. The effect of Part 3 is that NCHIs cannot be recorded, in any case, unless the recording is in accordance with the conditions it contains. In very many if not all cases, recording will not be permitted by the data protection legislation, because:
(a) even if the processing is for a legitimate identified “law enforcement purpose”, it will not be “based on law” for the purposes of section 35(2) DPA; and /or
(b) it will not “necessary” (see section 35(2)(b)) or “strictly necessary” (section 35(5)(a)) for that purpose; and / or
(c) it will not be “fair” (see section 35(1)).
(a) Not “based on law”
41. Section 35(1) is derived from Article 8(1) of the Law Enforcement Directive. Recital 32 to this directive explains that for something to be “based on law” the relevant measure should be “clear and precise and its application foreseeable for those subject to it, as required by the case-law of the Court of Justice and the European Court of Human Rights”.
42. The question is whether the circumstances in which an NCHI may be recorded against Ms Phillimore are sufficiently foreseeable to her. The answer is that they are not. The recording of the NCHI is, as explained above, not dependent on the assessment of the police, which might have been performed by reference to some known criteria, as to whether an incident constitutes ‘hate’. Rather, it is dependent on whether or not the reporter (who need not be the ‘victim’) states that they perceived an incident to be motivated by ‘hostility’ or ‘prejudice’ – however mistakenly or unfairly, and irrespective of whether there is any evidence to support the claimed perception. The circumstances in which an unknown third party may perceive something to be motivated by hostility or prejudice are not sufficiently foreseeable.
43. An argument that any interference with Article 10 ECHR occasioned by HCOG would not be “in accordance with the law” for the purpose of that Article was dismissed in Miller. However, the argument here is based on the different, exacting, provision in section 35(2) of the DPA, which was not considered in Miller at all. Further, the above finding is subject to appeal in Miller. Its arguability has already been recognised.
(b) Proportionality
44. The effect of Part 3 of the DPA is that:
(a) in every instance where a NCHI is recorded, the recording must be “necessary for the performance of a task carried out for [a law enforcement purpose] by [the police]”; and
(b) in every instance where an NCHI recording constitutes “sensitive processing” (such as in the case of Ms Phillimore’s Record), the recording must be “strictly necessary” for the law enforcement purpose.
45. This requires the police to conduct a balancing exercise, in every case, between the protection of privacy of the data subject which underlies data protection law and the need to make and thereafter hold the record for the relevant purpose.
46. The Guidance encourages breach of the proportionality requirement, both because (1) it fails to identify even that a balancing exercise must be carried out; and (2) proceeds on the basis that records should be made in the circumstances it describes, even though that will often if not always be in breach of Part 3 of the DPA.
47. The particular importance of the protection of the privacy of the data subject has been consistently recognised in a line of cases concerning the recording of information about people’s criminal history: Marper v UK [2008] ECHR 1581, §67; MM v UK [2012] ECHR 1906, §206; R (T) v Chief Constable of Greater Manchester [2015] AC 49, §§16-18; R (Catt) v Association of Chief Police Officers [2015] AC 1065, §§4-6; R (SD) v Chief Constable of North Yorkshire [2017] EWCA Civ 1838, §7. That applies in the present case a fortiori. What is at issue, here, unlike in the criminal record cases, is the recording and retention by the police of people’s:
i. non-criminal activity;
ii. which need not have any ‘victim’;
iii. which need not have been motivated by hostility or prejudice in fact (so long as the reporter ‘perceived’ it to be so motivated, irrespective of the evidence).
48. The intrusion into a data subject’s privacy represented by recording an NCHI can only be justified where it is a proportionate means of advancing a “law enforcement purpose”. Section 31 DPA defines “the law enforcement purposes” as “the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security”. As to that:
i. These are conspicuously narrower than the “reasons why the police service would make a record of a non-crime hate incident” identified in the Guidance. Those reasons include the building of intelligence on non-criminal behaviour, and the building of statistical analysis of non-criminal behaviour. The Guidance is therefore encouraging police to process data on bases wider than those identified as permissible in s.31.
ii. Insofar as the College’s position is that the recording of a NCHI for the reasons identified in the Guidance may to some extent further one of the law enforcement purposes, that can be no justification for the general approach of recording NCHIs which is contained in the Guidance. Put another way: whether the recording of a NCHI accords with Part 3 of the DPA must depend on the degree to which it would further the crime-related purposes in the particular case. A generic or blanket approach, such as that encouraged by the Guidance, cannot be consistent with the DPA 2018.
iii. That is all the more so where, as in the case of Ms Phillimore’s Record, it constitutes “sensitive processing”. In those cases, it will always be unlawful for the police to record an NCHI save where “strictly” necessary for the crime-related law enforcement purposes: that is to say where it has a “precise and particularly solid justification”. In many if not all cases this will not be so.
49. In its pre-action letter, in relation to the issue of proportionality, the College has relied extensively on the finding by Knowles J in Miller. But, as explained at the outset, that case was concerned exclusively with the different issue of whether the predecessor to the Guidance would lead forces to breach the Article 10 rights of someone in Mr Miller’s position. It was not concerned with whether the requirement to record NCHI as set out in the Guidance encourages breach of the data protection legislation (or Article 8). Different rights were at issue.
50. In any event, the conclusion of Knowles J was in large part predicated on his finding that in the case of Mr Miller’s speech (in the form of his tweets), “the mere recording” of non-crime hate speech pursuant to HCOG did not even interfere with freedom of expression within the meaning of Article 10 (§175-177). This was because, so he found in that case, “the mere recording—and I emphasise mere—of an incident of itself has no real consequence for the individual such as the claimant” (emphasis by underlining added). This approach does not apply to data protection rights: under data protection law, the recording of personal data has to be justified without more.
51. For the purposes of the present claim, it is only necessary for the Claimant to satisfy the Court that there is a real risk of more than a minimal number of NHCI being recorded unlawfully: see Miller at §219, applying Suppiah. That is plainly the consequence of the guidance, for the reasons above.
(c) Fair processing
52. Even if the Guidance did not encourage data processing which was not “lawful”, it encourages data processing which would not be “fair”. This is a freestanding requirement of Part 3 of the DPA 2018. Fairness is not defined in the DPA 2018, the Law Enforcement Directive or the GDPR. However, if it is not to be redundant, the concept must add to the requirement of “lawfulness”.
53. Guidance issued by the Information Commissioner’s Office (“the ICO Guidance”) states that “‘Fairness’ generally requires you to be, where appropriate, clear and open with individuals about how you use their information, in keeping with their reasonable expectations” [ref[BF5] ]. This is consistent with Sch.1, Pt.2, para. 2 of the Data Protection Act 1998[7], the requirements of which have not been diluted in the successor legislation. Paragraph 2 provided that data were not processed fairly unless:
(a) in the case of data obtained from the data subject, the data controller ensures so far as practicable that the data subject has, is provided with, or has made readily available to him, the information specified in sub-paragraph (3), and
(b) in any other case, the data controller ensures so far as practicable that, before the relevant time or as soon as practicable after that time, the data subject has, is provided with, or has made readily available to him, the information specified in sub-paragraph (3).
54. For the purpose of NCHI, the “relevant time” would be “the time when the data controller first processes the data” (sub-para. 2). The information which should be made readily available to the data subject is set out in sub-para.3:
(a) the identity of the data controller,
(b) if he has nominated a representative for the purposes of this Act, the identity of that representative,
(c) the purpose or purposes for which the data are intended to be processed, and
(d) any further information which is necessary, having regard to the specific circumstances in which the data are or are to be processed, to enable processing in respect of the data subject to be fair.
55. The Guidance encourages data processing which would not be “fair” on an application of the above principles:
a. The Guidance does not advise officers to make ‘readily available’ to the data subjects the information above. It is unsurprising that, in Ms Phillimore’s case, she was given no such information. Indeed she only found out about the Record at all after she received abusive messages referring to it on social media, following which she had to submit a subject access request. The extraordinary result is that, until she has sought to stop them, the police were processing her sensitive data in secret.
b. The safeguard of fairness must be all the more important given that an NCHI will be recorded on the basis of the complaint’s alleged perception, however mistaken or unfair, and without any requirement for evidence. The requirement must be to provide not merely basic information, but sufficient information to someone whose data is being kept to be able to object to it in accordance with basic principles of natural justice and fairness.
Article 8
56. The Guidance encourages recording which is:
(a) Not “in accordance with the law” within the meaning of Article 8(2) and / or
(b) Not a proportionate means of meeting one of the aims identified in Article 8(2).
(a) Not “in accordance with the law”
57. The submissions at paragraphs 41-43 above are repeated.
(b) Proportionality
58. Recording NCHIs plainly interferes with Article 8 rights. In Marper v UK [2008] ECHR 1581, the ECtHR found that (§67) “the mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8”. In R (Butt) v SSHD [2019] 1 WLR 3873, the Court of Appeal added the caveat that (§75):
The information in question must be of a kind which, in the context, falls within “private life” protected by art.8(1) : there must in all the circumstances be a legitimate expectation of privacy in respect of it. Further, if the information is publicly available, art.8(1) will only be engaged if the public authority has systematically collected and stored it.
59. Information recorded as part of an NHCI will engender a legitimate expectation of privacy; and where it is already publicly available, Article 8 will be engaged on the basis that it is information which the policy is systematically collecting and storing.
60. Furthermore, the recording of a NCHI will often amount to a significant interference with that right. A subject will have a police record created in their name, describing them as a perpetrator of hate. The record may cause damage to employment prospects at least insofar as it compelled obtaining an ECRC.
61. An interference with Article 8 will only be justified where the State demonstrates that it is a proportionate means of meeting one of the aims set out in Article 8(2). The College is understood to rely on “the prevention of … crime”. But, for the reasons above, this will seldom if ever justify the interference in the present circumstances.
Ground 2: The requirement to record NCHI as set out in the Guidance would lead to, or permits or encourages, or gives rise to an unacceptable risk of, unlawful conduct, namely breach by the police of Article 10 of the ECHR
62. An Article 10 argument failed in Miller. For present purposes, the finding of Knowles J on this issue is acknowledged. However, the judgment is subject to appeal (and indeed was the subject of a leapfrog certificate to the Supreme Court); permission having been granted precisely because it is arguable. In the circumstances, it is not possible to regard the contention as unarguable. Permission is sought.
Ground 3: In publishing the Guidance, the College failed to comply with the PSED contrary to s.149 of the EA 2010
Legal framework
63. Public authorities are subject to the public sector equality duty contained within s.149 of the EA 2010
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
64. The “protected characteristics” are listed at s.4 EA 2010 and defined thereafter. They include: age (s.5), disability (s.6) and sex (s.11).
65. A summary of the relevant law on the application of the PSED was recently given by the Court of Appeal in Bridges (§175):
(1) The PSED must be fulfilled before and at the time when a particular policy is being considered.
(2) The duty must be exercised in substance, with rigour, and with an open mind. It is not a question of ticking boxes.
(3) The duty is non-delegable.
(4) The duty is a continuing one.
(5) If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required.
(6) Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then it is for the decision-maker to decide how much weight should be given to the various factors informing the decision.
66. Whilst the PSED imposes no obligation to carry out an Equalities Impact Assessment (“EIA”), if such an assessment is not carried out, it may be more difficult for a public authority to demonstrate compliance with the duty: Luton Community Housing Trust v Durdana [2020] EWCA Civ 445 at §§17-18.
Submissions
67. The Claimants wrote to the College on 8 December 2020 asking it to provide copies of any EIA conducted prior to the publication of the Guidance. None has been provided and it is assumed that none was undertaken. In publishing the Guidance, the College breached the PSED in the following way.
68. In her evidence, Ms Phillimore explains how women who express gender critical views are regularly subjected to vilification, threats and prejudice. The examples she provided give the strong impression that women are disproportionately likely to be affected by this. She suggests that the impact of this has become apparent fairly recently. As a consequence of this, it is clear that the College should have considered the possibility the Guidance is being used to disproportionately target women with gender-critical views with NCHI reports and also that, by continuing to exclude sex as a monitored strand, the Guidance fails to protect women from hateful intimidation when they express gender critical opinions. The College’s apparent failure to consider these matters is a breach of the PSED.
D. conclusion
69. For the reasons given above, the Claimant respectfully asks the court to grant permission and order the relief sought.
AND the Claimant claims
(1) A Costs Capping order on the terms set out in Annex 2 below;
(2) A declaration that the Guidance is unlawful as set out above;
(3) An order quashing the Guidance so far as unlawful as set out above;
(4) Further or other relief;
(5) Costs
[1] See e.g. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; R (Letts) v Lord Chancellor [2015] EWHC 402 (Admin) at §118; R (Suppiah) v SSHD [2011] EWHC 2 (admin), per Wyn Williams J at §137.
[2] This is broader than the protected characteristic of “gender reassignment”, defined in s.7 EA 2010 as existing where a “person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex”.
[3] See the witness statement of Harry Miller, provided in support of this claim at [ref]
[4] The link does not appear to function at all on the html version of the Guidance
[5] Retained and converted into UK law by virtue of s.3 of the European Union (Withdrawal) Act 2018
[6] Parliament and Council Directive (EU) 2016/680 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ 2008 L350)
[7] Section 4(2) of the Data Protection Act 1998 provided that the data protection principles (which included a requirement to process data fairly) were to interpreted in accordance with Pt.2 of Sch.1. The Data Protection Act 1998 has now been repealed.
[BF1]Ref to SP statement
[BF2]From SP’s statement v.3 §§38-41
[BF3]Ref to GLD PAP from December
[BF4]§58 of SP v3. Check against final version
[BF5]https://ico.org.uk/media/for-organisations/guide-to-data-protection/guide-to-law-enforcement-processing-1-1.pdf
At present there is clearly, as your argument demonstrates, a fundamental conflict between the privacy rights we enjoy pursuant to DPA / GDPR and the practice of recording NCHIs. The emphasis being on the word non.
Will this conflict go away in Scotland when these so called hate incidents become actual crimes rather than non crimes on 1 April, since the Police will be able to argue that they are putting you on the record in the course of investigating an *actual* crime and thus properly able to use the related DPA basis for processing?
I would hope that some test of reasonableness must apply to any processing of one’s personal data which the Police do in the course of investigating any crime, not just this weird new flavour of pseudo crime. Ie they can’t keep you on a suspects’ database forever based on a random and groundless accusation.
Not sure I really understand the above, but I do think that 'hate', being an emotion, should have nothing to do with the police, even if it was quantifiable. And likewise, recording the details of a 'non-crime' should NOT be the job of the police. Or is it just to stop them getting bored? After all, they have completely eliminated all real crime from this country, violent and non-violent, and we of course don't need to lock our doors or chain our bikes or take our laptops to the Costa Coffee toilet anymore! Yes, crime is a thing of the past so the boys and girls in blue must get bored. Jon.