England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Wednesday, 12 July 2006

1. MR JUSTICE BEAN: On 4th October 2005 at the Crown Court at Birmingham, before Mr Recorder Sanghera and a jury, the appellant was convicted on the last three counts of an eleven count indictment charging breaches of the Data Protection Act 1998, namely two counts of unlawful obtaining of personal data and one count of unlawful disclosure of personal data, contrary to section 55(1) of the Act. She was fined £200 on each of the two counts of unlawful obtaining (counts 9 and 10) and £300 on the count of unlawful disclosure (count 11), and was ordered to pay £1,000 towards the costs of the prosecution. The jury were unable to agree on counts 1 to 8, were discharged and the prosecution subsequently offered no evidence. She appeals against conviction with the leave of the single judge.
2. The appellant was employed by the Staffordshire Police in the human resources department. As part of her duties she was authorised to access and view personal information about employees, for staff and work policing related purposes. The appellant's sister Angela Rooney had a relationship with a serving police officer, Adam Syred, and together they had a child. That relationship broke down in March or April 2003 and the wedding that had been arranged between the couple was cancelled.
3. Shortly thereafter P.C. Syred started a new relationship with Tracey Booth, another employee of the Staffordshire Police, and in June 2003 they set up home together. Within days of their doing so, unwanted mail addressed to Miss Booth started to arrive and there was no dispute that it originated from Angela Rooney.
4. At that time it was not possible to conduct an audit trail of the computer system in the human resources department, so the appellant was not spoken to about it.
5. About a year later, P.C. Syred and Miss Booth moved to an address in Tunstall and another member of staff updated their details on the database. On 16th July 2004 another colleague, P.C. Hayle, told the appellant that P.C. Syred had moved to an address in Tunstall. On 19th July 2004 the appellant accessed the personal data of P.C. Syred and Miss Booth, including their new address. The next day she told her sister Angela that the couple had moved to a new address in Tunstall. She did not specify the address. Angela Rooney then telephoned P.C. Syred and informed him that she had been told by her sister (the appellant) that he had moved to Tunstall.
6. The result was that an audit check was conducted on the appellant's use of the database. The check disclosed that she had accessed personal information relating to P.C. Syred and Miss Booth on the following dates (among others): 9th June 2003, 23rd June 2003, 4th July 2003, 4th June 2004 and 19th July 2004. The last date was, as we have said, the subject of counts 9 and 10. The previous four dates were the subject of counts 1 to 8.
7. The prosecution case quite simply was that the appellant had abused her position and (as to counts 1 to 10) contravened the Act by accessing the information by non-work-related purposes and as to count 11 had disclosed that information without consent.
8. The defence did not dispute that she had accessed the information. Indeed, it might have been impossible to dispute that given the audit trail left by the computer. The defence was that Miss Rooney was simply doing her duty, checking to see whether the records had been updated since it was part of her responsibility in the human resources department to make sure that records were accurate and up-to-date. She relied on the statutory defence in section 55(2) of the Act.
9. Sections 55(1) and (2) so far as material provide as follows:

"(1) A person must not knowingly or recklessly, without the consent of the data controller-

(a) obtain or disclose personal data or the information contained in personal data ...

(2) Subsection (1) does not apply to a person who shows...

(b) that he acted in the reasonable belief that he had in law the right to obtain or disclose the data or information or, as the case may be, to procure the disclosure of the information to the other person.

(c) that he acted in the reasonable belief that he would have had the consent of the data controller if the data controller had known of the obtaining, disclosing or procuring and the circumstances of it ... [Sub-paragraphs (a) and (d) are not material]"

10. The appellant was interviewed and in the course of her interview she gave the following explanation at page 172:

"What I would like to say is that I didn't obtain any information from the Peoplesoft, Human Resource Management System and pass it on to my sister. So I deny that I've disclosed any details or information to my sister that I've obtained from either of the systems that are mentioned in the first allegation."

She was then asked if there was anything she would like to say in relation to the second allegation and she replied:

"I would like to say that I didn't inappropriately access the Peoplesoft database system. I ... accessed it ... in accordance with my role as Human Resources Officer which I did so appropriately in my view because it was in connection with the function that I perform as a Human Resources Officer."

Later in interview she said that she had to ensure wherever possible that the addresses on the database were kept up-to-date.

11. Mr Hegarty on her behalf has a point in relation to count 11 which makes it necessary to read the statement and particulars of the offence from the indictment in full:

"

STATEMENT OF OFFENCE

UNLAWFUL DISCLOSING OF PERSONAL DATA, contrary to section 55(1) of the Data Protection Act 1998.

PARTICULARS OF OFFENCE

JACQUELINE MARY ROONEY on the 20th day of July 2004, knowingly or recklessly, without the consent of the data controller, disclosed personal data or the information contained in personal data, namely the address of Tracey BOOTH and Adam SYRED."

At the trial Mr Hegarty submitted unsuccessfully to the recorder, and repeats the submission before us, that to say that Miss Booth and Mr Syred lived "in Tunstall" was not to disclose their address; and, therefore, the charge as particularised was simply not made out. But in our view the words "namely the address of Tracey Booth and Adam Syred" were not material averments essential to the count. The charge was unlawful disclosure of personal data or the information contained in the personal data. The fact recorded on the database that P.C. Syred and Miss Booth lived in Tunstall was alleged to be "information contained in personal data". The particulars could equally well have read in their concluding words "namely the whereabouts of Tracey Booth and Adam Syred", or "namely part of the address of Tracey Booth and Adam Syred." The defendant knew very well the case which she had to meet. She was not in any way misled by the reference to an address and in our judgment there is nothing in this point.

12. Before us Mr Hegarty developed a new point, or perhaps it is putting a similar point in a different way. He argues that to say that Tracey Booth and Adam Syred lived in Tunstall was simply not "personal data" or "the information contained in personal data" as required by section 55(1). He refers to the definition section of the Act, section 1(1), which defines personal data as meaning data:

"... which relate to a living individual who can be identified

(a) from those data, or

(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller

and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual."

He submits that to say that the couple lived in Tunstall does not sufficiently identify them and accordingly cannot amount to personal data.

13. Mr Wood for the Crown says that it is sufficient that the reference to Tunstall should have been "information contained in personal data". In our view that is correct. The total sum of the information (at least as to identity and place of residence) contained on the database about P.C. Syred and/or Miss Booth was personal data. The information that they lived in Tunstall was part of "the information contained in personal data". Mr Hegarty does not submit that, and it would be absurd if, an offence was only committed if the whole of the information contained in personal data was improperly obtained or improperly disclosed. The town or village (whichever it was) in which they lived was quite clearly "information contained in personal data" capable of constituting the offence. The information itself does not have to include the identity of the individual, particularly since in the present case the recipient of the information knew very well who was being talked about. Accordingly, there is, in our judgment, no basis for saying that the conviction on count 11 was in any way flawed in law or unsafe or unsatisfactory.
14. Turning to counts 9 and 10, Mr Hegarty submits that the convictions on counts 9 and 10 were inconsistent with the jury's failure to agree and the consequent formal acquittal of counts 1 to 8 inclusive; because the defence of acting in reasonable belief that the appellant had in law the right to obtain or disclose the information (section 55(2)(b)) or the reasonable belief that she would have had the consent of her employers if they had known (section 55(2)(C)) was the same in respect of all counts.
15. It is well established that in order for an appeal on the grounds of inconsistent verdicts to succeed it must be shown that the verdicts are logically incompatible, see for example R v Bell [1997] EWCA Crim 1200. The jury did not acquit on counts 1 to 8 but a failure to agree may be sufficient. Assuming for a moment that the failure to agree is equivalent to an acquittal on each of counts 1 to 8, we consider that the jury may well have been influenced by the fact that on counts 1 to 8 there was no evidence that the defendant having obtained the information passed it on: so the jury may have been prepared to accept that the accessing of the information on the dates set out in counts 1 to 8, the last one being 4th June 2004, was so that the appellant could fulfil her duty of checking the accuracy of the records. But on 20th July, having accessed the information from the previous day, she informed her sister that Miss Booth and Mr Syred were living in Tunstall. The jury were entitled in the light of that to be satisfied that the accessing of the information on 19th July 2004 (which was the subject of counts 9 and 10) was indeed for an improper purpose; that the appellant knew very well on 19th July 2004 that she would not have had the consent of her employers if they had known of the obtaining, disclosing or procuring and the circumstances of it; and that she did not have a reasonable belief that she had in law the right to obtain and disclose the data or information. These were matters for the jury. No submission was made at trial that counts 1 to 10 should stand or fall together and no attempt was made to persuade the judge that it would be wrong to give the usual direction, which he did with some care, emphasising that each count must be considered separately. He said at page 9G of the transcript:

"The defendant faces a number of charges -- eleven in total -- and you must consider each of the separately, because you are required to return verdicts on each individual count. So you have an all important obligation to consider each count separately on its merits from the others, but that does not mean that you should ignore all the other evidence of the background circumstances. There may be evidence which assists you in reaching a verdict. There may be evidence that assists you in reaching a verdict on one which informs your decision on another, and that is of particular relevance to counts 9, 10 and 11, and I will deal with those somewhat later, because your decision on counts 9 and 10 may logically affect your decision on count 11.

Nevertheless, you must reach, as I say, separate verdicts on each count having focused on each separately and having formed separate decision about it."

That direction was in our judgment entirely correct and accordingly the submission based on alleged inconsistency of verdicts cannot succeed.

16. The single judge in granting leave observed that this case was, in his view, a storm in a teacup. In a sense it was: for example, we consider that on the face of it the case could perfectly well have been tried summarily. But there is no basis for criticising the prosecuting authorities for bringing the prosecution. The police are entitled to regard unlawful use of the information contained in personal data on police computers as a serious matter. On the verdict of the jury it would appear, sadly, that the appellant did abuse her position and then told lies about it both in interview and in the witness box. The appeal must be dismissed.
17. LORD JUSTICE GAGE: We would like to know please, Mr Hegarty, why it took seven days to try, as appears from your advice, and why it was tried in the Crown Court and not the Magistrates Court.
18. MR HEGARTY: As to the second of those I will need to consult briefly with the appellant, if I may. As to the length of the trial, there was a great deal of live evidence from the people who worked within the Staffordshire Police.
19. LORD JUSTICE GAGE: It strikes me, at any rate, as astonishing that an issue like this should have taken seven days to try at the Crown Court.
20. MR HEGARTY: We had anticipated it would last four days with the jury going out on the fifth.
21. LORD JUSTICE GAGE: Even four days is a hugely long period of time for a matter such as this to take.
22. MR HEGARTY: The defendant called a number of witnesses, if my memory serves me right.
23. LORD JUSTICE GAGE: There is a purpose behind these questions. We have to consider a Recovery of Defence Costs Order. I have a schedule in front of me from your client. Her income from employment is stated at £24,000 pro rata of agency work. What does that mean?
24. MR HEGARTY: My Lord, I will need a few moments.
25. LORD JUSTICE GAGE: We will rise for five minutes. Could you also please find out what her current income is and whether she was dismissed from her employment with the police because of these offences.
26. MR HEGARTY: My Lord, yes.
(The court rose for a short while)
27. LORD JUSTICE GAGE: What are the answers?
28. MR HEGARTY: My Lord the Magistrates Court declined jurisdiction in the case.
29. LORD JUSTICE GAGE: That answers that one. That is very surprising.
30. MR HEGARTY: As to her employment, she resigned from her job with the Staffordshire Police on 15th November having been told that it was likely she was going to be dismissed following a disciplinary hearing. She then remained out of work until she got some agency work in December, where she had been earning £11 per hour, and so the pro rata figure is on the basis that she would have been working, I think, 40 hours a week for a complete year. So that is where the figure of £24,000 comes from.
31. LORD JUSTICE GAGE: I see and she is self-employed presumably on that basis.
32. MR HEGARTY: She left the agency work in June and started a new job on 12th June earning a gross income of £30,000, but that is a one year contract.
33. MR JUSTICE BEAN: June of this year?
34. MR HEGARTY: Yes. My Lord, I also make the point that two other posts that she had applied for in her line of work in human resources, once they had been offered to her their offers were then withdrawn when they read all the details about her convictions. Her current job, which she has recently taking on, whilst her employer knows of her convictions he also knows she has an appeal waiting to be heard, which of course now has been dismissed, how that may affect her job she does not know.
35. LORD JUSTICE GAGE: How long has she been working there?
36. MR HEGARTY: Since 12th June, so three weeks.
37. LORD JUSTICE GAGE: What do you say about a Recovery of Defence Costs Order?
38. MR HEGARTY: My Lord.
39. LORD JUSTICE GAGE: You have not yet faced an application for an order for costs from the prosecution, but you may not be going to face that.
40. MR WOOD: My Lord, I have no specific details in relation to an application concerning costs.
41. LORD JUSTICE GAGE: If you have not got instructions then that is that. Thank you.
42. MR HEGARTY: My Lord, the regulation appears in the current edition of Archbold.
43. LORD JUSTICE GAGE: I am taking it really from the form which says that income from employment anything £24,000 and under must not be taken into account, unless in exceptional circumstances. Where there is a gross income of £24,000 all income may be considered when making an RDCO. Capital £100,000 net may not be taken into account. So that does not qualify.
44. MR HEGARTY: Yes. Well the points I was going to make simply relate to the figures that my Lord has already alighted upon.
45. LORD JUSTICE GAGE: This is all premised on the basis that she has legal aid, she has an order for defence costs.
46. MR HEGARTY: She has had the benefit of a legal representation order, yes. My Lord, the only other point I make is that she has already paid the fine and costs. She did not await the outcome of the appeal.
47. LORD JUSTICE GAGE: Good.
48. MR HEGARTY: And that is to her credit, in my submission.
49. LORD JUSTICE GAGE: Yes, indeed.
50. MR HEGARTY: And her employment position is uncertain and handicapped.
51. LORD JUSTICE GAGE: Yes. Thank you. (Pause)
52. In the circumstances we shall make a very modest order for a Recovery of Defence Costs Order in the sum of £250. Thank you both.