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Abstract
A number of recent prosecutions against police officers for misuse of confidential material are considered. They show that the Crown Prosecution Service is relying in more serious cases on the offence of misconduct in public office rather than prosecuting the specialist computer misuse offences. This article considers reasons for that approach, and its implications.
Keywords:
Notes
1. Organisations with full access include all territorial police forces of Great Britain, HM Revenue & Customs, the National Identification Service, the Serious Organised Crime Agency and the Service Police Crime Bureau. Organisations having restricted access include HM Court Service, the National Probation Service and the Criminal Records Bureau.
2. See further ‘PCs Gave Computer Secrets to Private Detectives, QC Says’, The Times, 5 January 1989; ‘The Confidential Police Files that are Open to Hundreds’, The Times, 3 February 1989. An earlier reference to prosecution under the Official Secrets Act is ‘Detective on Computer Secrets Charge’, The Times, 9 September 1986.
3. It is not mentioned, for example, in Ian Walden, Computer Crimes and Digital Investigations (Oxford: Oxford University Press, 2007), which may now be regarded as the leading text.
4. The section has since been amended by the Police and Justice Act 2006. See further p. 136 of this article.
5. Provisions in the Criminal Justice Act 2003 to increase magistrates' courts' sentencing powers to a maximum of 12 months have not been brought into force.
6. Subject to the Criminal Justice Act 1988, s.41.
7. http://register.consilium.eu.int/pdf/en/04/st15010.en04.pdf (last accessed 28 July 2007).
8. Unreported, Newcastle-under-Lyme magistrates' court, 3 November 1995. The defendant claimed that he did not know that accessing the PNC for a private purpose was illegal but, even if this was accepted, such ignorance of the law could not found a defence to the charge.
9. Unreported, Bow Street magistrates court, 10 October 1991.
10. Unreported, Coventry magistrates court. See http://www.computerevidence.co.uk (last accessed 11 March 2008) and see further R (on the application of Begley) v Chief Constable of the West Midlands [2001] EWCA Civ 1571 (judicial review of her dismissal for misconduct).
11. [1998] 1 Cr App R 1.
12. See, by analogy, the burglary case of Jones and Smith [1976] 1 WLR 672 where the householder gave permission to the defendant to enter his home to keep an eye on it while the householder was way on holiday. The defendant abused this permission to steal property from the house. The fact that he had been authorised to enter the house for a legitimate purpose did not prevent the court finding that he had entered as a trespasser in order to steal and was thus guilty of burglary. For further discussion see Walden, Computer Crimes, 164–7.
13. Bow Street Magistrate and Allison (AP), ex parte US Government [1999] 4 All ER 1.
14. [2003] 2 Cr App R (S) 474.
15. Martin Wasik, ‘Dealing in the Information Market: Procuring, Selling and Offering to Sell Personal Data’, International Yearbook of Law, Computers and Technology 9 (1995): 193–202.
16. Information Commissioner, ‘What Price Privacy? The Unlawful Trade in Confidential Personal Information’, 10 May 2006, presented to Parliament pursuant to Data Protection Act 1998, s.52(2).
17. Department for Constitutional Affairs, ‘Increasing Penalties for Deliberate and Wilful Misuse of Personal Data’, Consultation Paper, CP 9/06, 24 July 2006.
18. Department for Constitutional Affairs, ‘Tougher Penalties for Misuse of Personal Data’, available at http://www.gnn.gov.uk/environment/fullDetail.asp?ReleaseID=262486&NewsAreaID (last accessed 11 March 2008).
19. Walden, Computer Crimes, 104.
20. [1996] 2 Cr App R 72.
21. See the 1993 unreported Scottish case cited in I. Lloyd, Information Technology Law (London: Butterworths, 1993), 164.
22. [2006] EWCA Crim 1841.
23. See generally C. Nicholls, T. Daniel, M. Polaine and J. Hatchard, Corruption and Misuse of Public Office (Oxford: Oxford University Press, 2006). There is also a tort of misconduct in public office (see Three Rivers District Council and Others v Governor and Company of the Bank of England (No. 3) [2003] 2 AC 1) but the possibility of civil liability in this context lies outside the scope of this article.
24. Bembridge (1783) 3 Doug KB 32; Hedges (1803) 28 St Tr 1315.
25. Dytham [1979] 1 QB 723.
26. W [2003] EWCA Crim 1632.
27. Gellion [2006] 2 Cr App R (S) 464.
28. Nazir [2003] 2 Cr App R (S) 671.
29. Witcher and Lang, unreported, Guildford Crown Court, March 2005. See also ‘Ex-PCs Found Not Guilty of Rape’, available at http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2005/03/07urape (last accessed 28 July 2008).
30. See ‘PC Sacked for having Sex in Car’, Manchester Evening News, available at http://www.manchestereveningnews.co.uk/news/s/199/199118 (Waring) (last accessed 29 July 2007). Also ‘Ex PC Pleads Guilty to Misconduct in Public Office’, Independent Police Complaints Commission Release, 10 February 2006, available at http://www.ipcc.gov.uk/news/pr100206_miah.htm (Miah) (last accessed 28 July 2007).
31. See A. Whittam-Smith, ‘The Newest Way to Hold Politicians to Account’, The Independent, 8 May 2006.
32. A slightly different sort of case is Lund-Lack (unreported, June 2007), where a civilian police employee working in the counter-terrorism branch disclosed details of an intelligence report on terrorism to a newspaper. He pleaded guilty to misconduct in public office. See http://www.thisislomdon.co.uk/news/article-23401036-details (last accessed 29 July 2007).
33. Unreported, Southwark Crown Court, June and July 2007. See ‘Ex-Cop to be Sentenced for Police Leaks’, at http://www.yourlocalguardian.co.uk/mostpopular.var.1524706 (last accessed 29 July 2007). Also ‘Corrupt Cop Jailed for 15 Months’, at http://www.lse.co.uk/ShowStory.asp?story=MJ39426E&news (last accessed 29 July 2007).
34. And acquitted on a further three such counts.
35. Unreported. See ‘Ex-Police Officer Jailed for Corruption and Drug Offences’, at http://www.miltonkeynes.co.uk/news?articleeid=3041453 (last accessed 29 July 2007).
36. See ‘Corrupt Officers Jailed for Leaks’, at http://www.newssniffer.co.uk/articles/8459/diff/9/10 (last accessed 29 July 2007).
37. [2006] 1 Cr App R (S) 12.
38. [1998] 2 Cr App R (S) 165 (December 1997, case 97/5011/25).
39. [2007] EWCA Crim 186, [2007] 2 Cr App R (S) 51.
40. [2007] EWCA Crim 760.
41. Under the Criminal Justice Act 1988, s.36.
42. Since the defendant had already completed the 300 hours of unpaid work, and had suffered the anxiety of being re-sentenced, the Court of Appeal revoked the original sentence and substituted a prison term of 9 months.
43. In Attorney-General's Reference (No. 3 of 2003) [2004] 2 Cr App R 23, where it was stated that ‘the offence should be strictly confined but we do not propose to develop the point or to consider [the matter] further ….’
44. Law Commission, Consultation Paper on Corruption.
45. Committee on Standards in Public Life, Consultation Paper on ‘Misuse of Public Office’, 8 July 1997. See http://www.archive.official-documents.co.uk/document/parliament/nolan3/misuse-1.htm (last accessed 28 July 2007).
46. See Ben Emmerson, Andrew Ashworth and Alison Macdonald, Human Rights and Criminal Justice, 2nd ed. (London: Sweet & Maxwell, 2007), 382–94.
47. Despite the Law Commission's conclusion that conspiracy to defraud is ‘so wide that it offers little guidance on the difference between fraudulent and lawful conduct’ (Law Com Report No. 276, Fraud (2002), para. 1.6), the offence has been specifically retained in the Fraud Act 2007.
48. Magistrates Courts Act 1980, s.44(1).
49. Criminal Law Act 1977, s.1(1).
50. Criminal Attempts Act 1981, s.1(1) and (4).
51. Magistrates' Courts Act 1980, s.45.
52. [2004] EWCA Crim 2400 (August 18, 2004, case 92/00283).
53. The Court of Appeal said that the correct sentence would have been a community punishment order (formerly known as community service), but that a conditional discharge was now appropriate because Pike-Williams had already served most of her custodial sentence by the time the appeal was allowed.
54. Crown Prosecution Service, ‘Misconduct in Public Office’, CPS, London, available at http://www.cps.gov.uk/legal/section22/chapter_c.html (last accessed 28 July 2007).