Data Protection, the Refugee and Fundamental Rights

In Trushin v the National Crime Agency [2014] EWHC 3551 (Admin) the Administrative Court had to consider the claim by a Russian who had claimed political asylum following the decline and fall of Yukos Oil, with which he had been prominently involved.

The claimant’s concern was the manner in which his personal and sensitive personal data is (and is likely to be) processed by the National Crime Agency (‘NCA’), and how it was previously processed by the Serious Organised Crime Agency. The Russian authorities wanted Mr Trushin to return to Russia to face the consequences of criminal proceedings relating to Yukos. He had been tried and convicted in absentia on various charges of embezzlement and money laundering and then sentenced to nine years’ imprisonment. Essentially, Mr Trushin’s claim was that the processing of his personal data by the NCA whilst he is protected from extradition to Russia by reason of his refugee status is unnecessary and unlawful and should cease. His claim cited the Data Protection Act 1998, s 10 and his rights under the Human Rights Act 1998 and the EU Charter.

The latest hearing was upon the NCA’s application to have those proceedings struck out and/or obtain summary judgment. That context therefore required only that Foskett J consider whether the claimant had an arguable case.

The practical concern was that, in its role within Interpol, the NCA would respond to requests from the Russian authorities by providing information that might cause Mr Trushin substantial harm. The NCA’s principal argument was that the Data Protection Act 1998, s. 29 exempted its disclosure activities insofar as they were carried out (on these facts) in pursuance of its powers (or duties) under the Crime and Courts Act 2013, s 7. Section 29 of the DPA exempts a body from the general non-disclosure principle where disclosure is for the prevention or detection of crime or the apprehension or prosecution of offenders. But that exemption is limited and applies only where non-disclosure prejudices those aims. The NCA also claimed that it was protected by sch. 2 to the DPA.

On a close examination of the NCA’s procedures, it became clear that it was not a ‘mere conduit’ in supplying information to Interpol and that it was subject to, and applied the principles of, the duties of a public authority under the ECHR, Article 8.

Foskett J did not consider that the grounds for striking out the claim were made out or that summary judgment was appropriate. He concluded that it was not certain that the claim would fail – indeed he considered that it raised an issue of some importance in relation to the NCA’s general responsibilities for processing personal data going beyond the circumstances of Mr Tushin’s case.

 

The judgment can be read in full here.