Laws J. gave the following judgment of the court. This appeal received consideration by the single judge who took the view that the first ground which we shall comment on involves a point of law alone, so leave was not required.
The appellant was a police officer. He faced his trial at the Crown Court at Maidstone before Judge Waley Q.C. and a jury. On 10 March 1992 he was found not guilty of - what we will call for present purposes - improper use of personal data, but guilty of attempted improper use of personal data and improper use of personal data. He was fined £500 on each count and was ordered to pay £1,750 prosecution costs. There was also a count on the indictment which also related to improper use of personal data, and at the time the judge ordered a not guilty verdict to be entered.
The case concerns the construction of a provision in the Data Protection Act 1984 and before coming to the brief facts it will be convenient to look at the relevant provisions:
"1(2) 'Data' means information recorded in a form in which it can be processed by equipment operating automatically in response to instructions given for that purpose. (3) 'Personal data' means data consisting of information which relates to a living individual who can be identified from that information (or from that and other information in the possession of the data user), including any expression of opinion about the individual but not any indication of the intentions of the data user in respect of that individual."
The "user" is defined in subsection (5). One can go at once to section 5(1) of the statute, which provides certain prohibitions, breaches of which attract a criminal penalty.
"5(1) A person shall not hold personal data unless an entry in respect of that person as a data user, or as a data user who also carries on a computer bureau, is for the time being contained in the register. (2) A person in respect of whom such an entry is contained in the register shall not - (a) hold personal data of any description other than that specified in the entry; (b) hold any such data, or use any such data held by him, for any purpose other than the purpose or purposes described in the entry; (c) obtain such data, or information to be contained in such data, to be held by him from any source which is not described in the entry; (d) disclose such data held by him to any person who is not described in the entry; or (e) directly or indirectly transfer such data held by him to any country or territory outside the United Kingdom other than one named or described in the entry. (3) A servant or agent of a person to whom subsection (2) above applies shall, as respects personal data held by that person, be subject to the same restrictions on the use, disclosure or transfer of the data as those to which that person is subject under paragraphs (b), (d) and (e) of that subsection and, as respects personal data to be held by that person, to the same restrictions as those to which he is subject under paragraph (c) of that subsection. . . . (5) Any person who contravenes subsection (1) above or knowingly or recklessly contravenes any of the other provisions of this section shall be guilty of an offence."
The appellant has a friend who is a debt collector. It was the prosecution case that they were working together in a company known as Capital Investigations and that the appellant used or attempted to use data stored in the police national computer for the purposes of that business. Police officers are plainly only entitled to use the police computer data for policing purposes. As we understand it, the person in respect of whom there is an entry on the register as a data user will be the Chief Constable of the Kent Constabulary, and a policeman such as the appellant will be a servant or agent of the Chief Constable. It is the principal to whom section 5(1) refers.
Capital Investigations was engaged by a third party, a Mr. Wyles, to recover a debt owed to him after he obtained a county court judgment against A. J. Finch & Co., owners of a vehicle. There was evidence before the court that the appellant caused a computer check on the vehicle to be carried out via the police computer on or about 21 January 1990. It was accepted that these short facts did not disclose evidence of any actual use of the personal data by the appellant, because no personal data emerged as a result of this check on the concerned company and the vehicle. That is why at a late stage in this case, the judge put it to the jury, that although the appellant could not, under count 1, be guilty of improper use of personal data, they should decide whether he was guilty of attempting to use; the case being made was that in seeking to run a computer check, he was obtaining data concerning individuals which might be useful to enforce Capital Investigations' clients' debts. That is count 1.
Count 3 also concerned a client of Capital Investigations who had engaged the firm to recover money owed by a Mr. Bailey, who gave evidence. Mr. Bailey owned a Lada motor car registration number HKT 55N which was properly taxed. He did not think that the disc had ever fallen down. The appellant said in evidence that he was sitting outside Mr. Bailey's house while Mr. English went in. He noticed a car with no tax disc, made a note and caused an inquiry to be made on the vehicle. Various documents of Capital Investigations were recovered by the police from the home of the appellant's wife - with whom he said he was not living. There was also evidence from a Mr. Waghorn who said he was given the appellant's name when he dealt with Capital Investigations. This was with regard to count 3 - the count of improper use.
The case being made was that the appellant had simply accessed the computer to obtain information about the debtor. It was the defendant's case that he was not in contravention of the statute. He did not at any time use or seek to access the police computer for any other purpose than for policing purposes.
The judge was faced with the argument which has been canvassed before us today as to the meaning of the term "use" in the statute. He held, to put it shortly, that a person uses personal data if he holds it, at least in the sense of bringing it to the screen of the machine. That engages the single point of the appeal that has come before this court, which has been upon this question: does a person's use of data come within the meaning of section 5(2)(b), if he does no more than to access that data by obtaining the information so that he can view it on the screen? At one stage, there was a suggestion that the appellant had done more than that. Mr. Kark, for the Crown, has before us very frankly accepted that it forms no part of the Crown's case on this appeal.
We have, then, the stark question of construction. Mr. Kark submitted that the very act of bringing information on to the screen is enough for the person to commit an offence of use within section 5(2)(b). He stated that the purpose of the statute is to protect the interests of private individuals against the possibility of dissemination of information which concerns them, one way or another, without proper authority. If the appellant's argument here is right, he says, it would mean that any police officer who is a servant of his chief constable would be free from possible criminal action if he proposed to view information held on the police computer about any individual simply, as it were, for his own amusement. The Act protects the individual from information being disclosed in that way.
The argument for the appellant has been a short and simple one: since the term "used" is not defined in the Data Protection Act 1984 - a statute which is at pains to set out many definitions of other terms -the ordinary meaning of the word "use" is the one to be taken in construing the Act. As a proposition that is not disputed by Mr. Kark.
What is the ordinary sense of the word "use" as we see it in section 5(2)(b)? In our judgment, it is one thing to access the computer and view what is contained in it and it is another thing then to use the information itself. Section 5 speaks of the use of data, and this enables Mr. Johnson to submit that it is necessary to do something to the data, not merely to access it, before it is "used" within the statute. That would have arisen if the appellant, having accessed the information, then proceeded in the ordinary sense of the term, to make some use of it, so as for example in his own business affairs to deploy the information obtained against the interests of somebody else. Since, on the facts here, it is in effect accepted that Mr. Brown did no such thing, it seems that the appeal must succeed on that short point alone. The conviction will be quashed.
ORDER
Appeal allowed.
Conviction quashed.
Certificate under section 33(2) of the Criminal Appeal Act 1968 that point of law of general public importance involved in the decision, namely: "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 the computer without doing any further act with the information."
Leave to appeal refused.
SOLICITORS
Solicitors: Crown Prosecution Service, London.
Crown Copyright acknowledged
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