Fletch stirred in his bunk as the middle-aged balding man beneath sobbed yet again. ‘What’s things coming to? A lag like me banged up with a fish what can’t do his bird! Hoy, ding, stop bawling a minute and tell me what you’ve been banged up for?’
‘I am here because I recklessly misused personal data – waaah’, wailed the semi-deranged sniveller below.
‘Not another one’, said Fletch – ‘it’s got so you can’t get a seat in the bog for a pony for all the life jolters down for milk tray jobs*. Would you Adam and Eve it’
I offer my major apologies to Clement and La Frenais. I offer minor apologies to the Information Commissioner for I appreciate he is not in favour of life sentences for data protection offences and that he does not actually want Dartmoor’s E-wing to be filled with such offenders.
But I offer only {i}minor{/i} apologies to the Commissioner because he really does think that introducing prison sentences for offences under the Data Protection Act, s 55 is a good idea. And so it seems does the Ministry of Justice according to their latest {consultation paper: http://www.justice.gov.uk/consultations/docs/data-misuse-increased-penalties.pdf}. The motives may be good, at least in the case of the Commissioner, but I don’t think much of the idea. Most of the reasons given for introducing custodial sentences in this context collapse under the pressure of a hard look and even the one half decent reason does not really stand up to rational assault.
The Foreword to the proposals from Minister of Justice Michael Wills dabbles with public concerns about data security as part of the foundation for the introduction of more severe sentences. But those concerns centre mainly around government’s failures, commerce’s cock-ups and the mainstream criminals involved in ID theft and the like. True some of the public’s concerns are indeed about reckless misuse of personal data but few think that the stupid fool who sends out an unencrypted CD with millions of child benefit records on it needs to go to prison. It’s misrepresentation 1 – and it is a particularly nasty red herring because there probably was a moment in the post-HMRC hysteria when such a fool might well have got sent to prison by a populist magistrate.
The proposals also tell us that the government favours giving a magistrates’ court the power to send someone convicted under s 55 to prison for up to 12 months. This rather overlooks the fact that the government increased the maximum sentence in a magistrates’ court in 2003, from six months to 12 months, but have not seen fit to implement the provision. So the 12 months in the proposal is really 6 months – and still will be in April 2010 when it is suggested that these changes should be implemented. The reason they have not implemented the increase is that they are confident that the effect will be to substantially increase the prison population – and prisons are full. That’s misrepresentation 2.
Then we get to a contradiction – so I am not quite sure which bit is the misrepresentation. On the one hand we are told in the proposals that illegal dealing in data is back on the increase and is a serious threat. On the other hand we are told in the impact assessment that the cost per year is likely to be £20,000 (legal aid and prison costs), based on two prosecutions a year and one person serving a custodial sentence. So this pernicious and pervasive evil is so prevalent that we will need to prosecute just the leading two perpetrators each year (count them on your fingers) and send just the really bad one to the big house – and that will make it better. As I say, I am not sure which part of this is misrepresentation, probably all of it (especially the £20,000 – the consultation exercise will cost more than that), but I’ll let you decide.
My next problem is with the idea that those who engage in the serious data blagging and data theft that is mentioned in the proposals – the people who seriously profit from it and who are a social menace – cannot be convicted of a criminal offence. When one listens to descriptions of what they do, misuse of data (whether imprisonable or not) is not the crime that shrieks out at you. What about obtaining a fraudulent advantage by deception, fraud, theft, handling stolen goods and, if all else fails, the prosecutor’s friend conspiracy? These are all serious offences and in cases of the kind under discussion they are much more appropriate. Section 55 covers types of behaviour which is not of a kind that demands imprisonment, it is when it is allied to other types of criminal behaviour that it is rightly seen as a serious social ill.
There’s much more wrong but I will turn to the one justification that I consider to be respectable. Essentially, we are told that making offences under s 55 will underline the message that these are serious offences and discourage traders in illegally gathered information. I think there’s a decent argument here but sadly my impression is that the dealers are not the kind who are so easily put off. These are duckers and divers and do not look to get caught. And even if they are, they are not all that likely to be the unlucky {i}one a year{/i} who gets sent down.
There’s one delicious part of the proposals which I must share. The defence for investigative journalists and the like is going to be implemented at the same time. Now nobody would want (or dare) to speak against investigative journalists but the reality is that some of that investigative journalism will be probing the deeper recesses of Kerry Katona’s sex life not human rights abuses in the Congo. You may well think that it is often ‘investigative journalism’ that feeds the hands that steal the data, but I could not possibly say so. So we have the delightful prospect of a proposal that is tough on the crime and soft on the causes of crime. An ideal election slogan?
I do have a positive suggestion. Add s 55 to the list of specified offences under the Proceeds of Crime Act. That will remove the need to prove criminal lifestyle when pursuing the assets of those few who really do trade in data and hit them hard where it really hurts them.
But above all, improve enforcement – increased penalties are no substitute for an enforcement regime that can be laughed at by the dealers in personal data.
* Like much other prison slang, the derivation of ‘milk tray’ as shorthand for data protection is disputed. Some commentators claim that it derives from a simple rhyming slang ‘chocolate selection’ but others claim it is a reference to the use by blaggers of incentives such as chocolate to obtain personal data.
