Custodial offence for deliberate invasion of data protection? Forget it!

You had your chance, Labour

The lack of evidence meant that all the Information Commissioner could do was to summarise his findings (in 2009):

The main case was Operation Motorman. This was a case where a private investigator had been supplying personal information to some 305 journalists. The personal information included details of criminal records, registered keepers of vehicles, driving licence details, ex-directory telephone numbers, itemised telephone billing and mobile phone records. Documentation seized at the home of the private investigator included reports, invoices, settlement of bills between the detective and many of the better known national newspapers – tabloid and broadsheet.

The Labour Government had greeted the What Price Privacy reports by conceding the need for custodial sentences. However in 2008, it backed down over its plans to introduce jail sentences of up to two years for those who obtained personal data by underhand methods. Although, it tabled two amendments to the Criminal Justice and Immigration Act 2008 signifying the custodial offence was coming, the actual implementation of the custodial sentence needed the Minister to exercise his powers and lay an order before Parliament.

As there was no use of these powers, the effect of the amendments was to maintain the status quo of the current Section 55 offence and further delay any custodial element. The changes also created a new defence for journalists to the Section 55 offence which is operational.

Eighteen months of New Labour inaction followed. In the Autumn of 2009, the Ministry of Justice tabled a consultation document on The knowing or reckless misuse of personal data. This consultation ended in January 2009 and since the General Election was looming, the product of that consultation was quietly dropped. The reason for this can be found in my blog of 12th Feb 2010, where I wrote:

The sticking point (of commencing the custodial offence) I suspect is the application of the offence to the special purposes and in particular journalism. It has dawned on the Government that embracing legislation which could imprison journalists has very little to commend it when a General Election is looming. One can also imagine the fuss if this measure was actually passed by a Parliament full of MPs whose credibility is about zero, thanks the expenses scandal.

However, with the new coalition government elected, penal policy has changed and there is an emphasis on not creating new custodial sentences. Kenneth Clarke now wants to reduce prison numbers – not increase them. That is why I think there will be no new custodial sentences for some time – even though the purpose of the custodial sentence is more symbolic than being an actual offence that will increase the jail population.

However, back to the main point. When ex-Labour Ministers claim invasion of privacy on our TV screens in the next few days, remember, they had their chance to do something about it - and blew it.

This story originally appeared at HAWKTALK, the blog of Amberhawk Training Ltd.