R v. Brown 1996

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Analyse how the House of Lords interpreted the word “use” in 5(2)(b) of the Data Interpretation Act 1984 in the case of R v Brown (1996) 1 ALL ER 545 Introduction The case of R v Brown, 1996, concerned two uses of a police force Computer by an officer, for the purpose of obtaining registration numbers of cars owned by the debtors of a collection company that was run by a friend of the officer. The police officer was a registered data user[1] and as such, he was prohibited under the Data Protection Act 1984 to ‘hold personal data’[2]. The charge was for the criminal offence[3] under s 5(2)(b) of the1984 Act, which stated that: “A person in respect of whom such an entry (an entry pertaining to the identity of registered data user) is contained in the registrar shall not…(b) hold any such data, or use any such data held by him, for any purpose other than the purpose or purpose descried in the entry…” In the original trial, the judge directed to jury to consider that the act of simple retrieval from the computer, coupled with the intention of utilizing the information for a purpose that had not been registered was enough to satisfy a conviction. The Court of Appeal[4] rejected the initial convictions of attempt on the first count, and full commission of the crime on the second count. It was held that the term, “use” when interpreted with sole reference to its ordinary, everyday meaning, required that the offence could only be committed when more than mere retrieval of data had been done. It was therefore necessary to “do something to the data…” which meant that the case was decided entirely on the appropriate answer to the legal question, which was: “Whether the word ‘use’ in section 5 of the Data Protection Act 1984 should be construed so as to include processing the data so as to gain access to information stored within a computer without doing any further act with the information…” This paper analyses the decision reached by the House of Lords with regard to the interpretation of the word ‘use’. An account of both the decision of the court, as espoused by Lord Goff of Chieveley and Lord Hoffman and the dissenting ratio decidendi, as stated by Lord Griffith is given 1.The decision of the court (a)Lord Goff of Chieveley Lord Goff followed the line of reasoning of the Court of Appeal and stated that: “...since the word, ‘use’ is not defined in the Act, it must be given its natural and ordinary meaning. Synonyms of the verb ‘use’ are ‘to make use of’ or to ‘employ for a purpose’.[5] He then analysed the context of the word in relation to the specific item that was purported to have been used by ascertaining the sort of activities that would be regarded as ‘use’ of ‘data’. He ascertained from this analysis that the act of retrieval therefore did not constitute ‘use’ of the computer information but was a mere prerequisite[6] to that use. Further to this, with reference to the meaning of the word ‘disclosing’[7], which also has no definition within the statute, Lord Goff made the crucial observation that: “…if the purpose of this provision had been to provide that, exceptionally, disclosure may occur after the information has been retrieved from the database, it would surely have been drafted in a different form; and a similar provision would have been made in respect of use…[8] This statement directs towards an acceptance that the statute is clear on the matter of the intentions of parliament and Lord Goff arrived at this decision by referring exclusively to the ordinary and everyday definition of ‘use’ within the context of the provision within the statute. As well as analysing the equivalent provisions for the word ‘disclosing’, he also referred to other provisions within the 1984 Act, including part I of the Schedule, which stated that: “Personal data held for any purpose or purposes shall not be used or disclosed in any manner incompatible with that purpose or those purposes.[9] This provision clearly shows the word ‘use’ within a provision where there is clear protection by the law of data outside its electronic form, thereby showing the intention of parliament to criminalise subsequent ‘use’ of data after retrieval and inevitable transfer from the electronic format. This reasoning is based on the linear timescale of the criminal act of ‘use’ of personal data. There is first retrieval, followed by transfer from electronic form, analysis and application. If criminality were to be established exclusively at the point of retrieval prior to the transfer of the subject matter from data into information, it would therefore mean that all other subsequent steps would be irrelevant for the criminal law and Lord Goff pointed out that all unregistered retrieval by a registered data enterer would constitute a criminal act, whereas completion of all four steps by someone who is not registered, would not be criminal at all[10]. This in itself would lead to a great injustice of the law. In his analysis, Lord Goff referred to no other issues as, since there was no ambiguity following this literal interpretation, the analysis of other sources, such as Parliamentary Hansard, was wholly unnecessary. This is very much an embodiment of the literal approach to the interpretation of statutes, which has proved to be utterly essential for the purposes of ascertaining the meaning of words, as shown in the far earlier case of Fisher v Bell[11]which concerned the meaning of ‘offers for sale’ under s 1(1) of the Restriction of Offensive Weapons Act 1959. Here it was held that an offer could not be anything other than a binding contractual proposal to which an unqualified acceptance would constitute an obligation for the offeror to fulfil the offer. This therefore distinguished the ‘offer’ from the far more general ‘invitation to treat’ and, had the court stretched the meaning of ‘offer’ to include non binding invitations, the law of contract would have been badly distorted. (b)Lord Hoffman Unlike Lord Goff, Lord Hoffman rejected the arguments of the Crown in relation to the identification of retrieval as external to the application of acts within the meaning of use but instead stated that the acts of this particular case were in relation to use of the computer as opposed to the data. However, this was not the crucial point of his argument as he did state that this in itself would not preclude ‘retrieval’ being an acceptable element of the meaning of ‘use’. Lord Hoffman’s argument instead hinged crucially on the belief that the acts of the defendant fell in line with the definition of ‘processing’, which, under s 1(7) of the 1984 Act includes: “…extracting the information constituting the data…[12] Lord Hoffman then stated that processing is entirely different from ‘using’ as there was no reference to it within the prohibitions of the 1984 Act, which means that the act of processing, as protected under principle 1 of the Schedule, did not constitute a criminal offence. Instead it was a civil breach that constituted a ground for removal from the registrar of authorised data processors[13]. Lord Hoffman therefore identified the intentions of Parliament as the creation of separate treatment for ‘processing’ and ‘using’ whereby the former was principle 1 (Sched) enforcement of data protection and the latter, as a ‘more extreme form of data processing’[14] was a criminal offence. This was therefore a clear departure from the difficulty of having to ascertain that something more than retrieval had to have been done to the information in order to constitute the criminal offence and is a simpler finding than that of Lord Goff as it denied existence of a gap in the law and established the differing treatment of the non-criminal punishments inherent in ‘processing’ 2.The dissenters[15] Lord Griffith Lord Griffith began in concurrence with Lord Goff by rejecting the submission of the prosecution in the Court of Appeal, who had made a crucial distinction between the concept of data as ‘electronically readable’ subject matter that, when translated into text on the screen, became the wholly distinguishable ‘information’ that was intelligible to the human mind. The result of this shift in the designation of the subject matter from ‘data’ to ‘information’ is that it is not protected by the 1984 Act[16]. His departure from the Lords who dismissed the appeal was simply that the word ‘use’ should be given a ‘broad construction’ and he rationalised this finding by pointing out the clear weakening of the protective powers of the 1984 Act. His reasoning was that the enactment of the 1984 Act was for the primary intention of ratifying the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.[17] With reference to Article 1 of the Convention, Lord Griffith stated that the retrieval of information, to be displayed in a screen, constituted an invasion of privacy as the display was illegitimate. He further believed that extension of the meaning of ‘use’ to illegitimate display and retention for potential dissemination in the future would by no means constitute a stretch of the definition of ‘use’ but also accepted the difficulty that prosecution would face in having to prove the actual way in which information would be utilised following retrieval. 3.Feedback (a)The approach of the court As regards the methodology of the House of Lords in its interpretation of the word “use” there were two distinct poles of thought. The first was seen in the opinions of Lord Goff and Lord Hoffman who both realised that questions of law that pertain to verbal meaning must be approached from the point of view of establishing an answer based on statutory definitions or, in absence of such guidance, the nearest possible definition that will ensure the fundamental requirement of certainty in the law. For vocabulary, this certainty is maintained by utilizing the ordinary and everyday meaning of words. The second pole of thought, as utilised by Lord Chieveley, looked towards the teleological side of statutory interpretation and ascertained that the intentions of parliament, as to the meaning of a statute, was the key method for assurance of the legal goal of equity and Lord Chieveley used the very reason for enactment of the 1984 as the embodiment of the Parliamentary intention to create a right of privacy against illegitimate displays of data under the European Convention. (b)Was the decision correct? This case is a primary example of an obvious disparity between the common sense approach of the layman and the judicial predicament of verbal anomalies that force the wrong decision as far as justice is concerned. The question to therefore ask is, was the House of Lords simply over literal in its interpretation of the word “use” or were they right and, as a result of their correct actions, revealed a gap in the law that had been created by careless wording of the statute? It is this latter notion of the ‘gap in the law’ which Earl Russel refers to in his parliamentary feedback to the case[18]. The appropriateness of the House of Lords cannot be blamed for finding itself forced to follow bad law. Statutory interpretation, for the purpose of obtaining the correct decision as required under current law is the primary role of the judge, regardless of the construction of that law. Their job is most certainly not the task of interpreting the law in order to meet the most equitable decision[19] unless of course the area of law has no governing statute and there are no clear precedents from which to draw the correct answer. As for Lord Hoffman, it is clear the same priority of statutory analysis was utilised in his decision but his more favourable reasoning denied a gap in the law for a jurisdiction such as the United Kingdom that, at that time, did not possess any Human Rights legislation and was therefore under no national obligation to interpret legislation in light of concepts of privacy[20], as was done in the teleological approach of Lord Chieveley. Conclusion The approach of Lord Hoffman was the correct interpretation of the statutory provisions at the time in which the case was decided but Human Rights Law has now fundamentally changed the approach of the courts whereby affected legislation can now no longer be decided on the basis of verbal distinctions. Bibliography Legislation Restriction of Offensive Weapons Act 1959 Data Protection Act 1984 Human Rights Act 1998 European Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981 European Convention of Human Rights and Fundamental Freedoms 1951 (As contained in the schedule of the Human Rights Act 1998) Case Law R v Brown [1996] 1 ALL ER 545 Fisher v Bell [1960] 1 QB 394 and Others v Woolwich Building Society (Thompson) [1997] SC (HL) 66 Governmental Publications Parliamentary Hansard, 13 Mar 1997 : Column 438

Footnotes

[1] As described under s 1(2) of the 1984 Act [2] s 5(1) [3] The offence is deemed to be criminal under s 5(5) [4] R v Brown [1994] QB 547 [5] R v Brown [1996] 1 ALL ER 545 at p 548g [6] ibid at p 549a [7] Which appears under s 1(9) of the 1994 Act [8] ibid per Lord Goff at p 549h [9] Referred to by Lord Goff at p 550b [10] ibid at p 550f-h [11] [1960] 1 QB 394 [12] Referred to by Lord Hoffman at p 560h of the judgement. [13] Per Lord Hoffman at p 560j [14] Per Lord Hoffman at p 561b [15] Lord Januncey of Tullichettle also dissented but merely concurred with Lord Chieveley. See the judgement at p 555h [16] All the judges of the House of Lords rejected this premise, see also ibid per Lord Hoffman, at p 558h [17] Cmnd 8535, Annex A [18] Parliamentary Hansard, 13 Mar 1997 : Column 438 [19] See the bad result in the case of Sharp and Others v Woolwich Building Society [`997] SC (HL) 66 [20] Since enactment of the Human Rights Act 1998, it is now the duty of judges to interpret legislation in line with the rights set out under the European Convention of Human Rights
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