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The full case
R v Rooney
COURT OF APPEAL (CRIMINAL DIVISION)
[2006] EWCA Crim 1841.
HEARING-DATES: 12 JULY 2006
12 JULY 2006
CATCHWORDS:
Criminal law - Data protection - Unlawful disclosure of personal data - Unlawful obtaining of personal data - Defendant being employed in human resources department - Defendant accessing personal records for purposes unconnected to work - Defendant disclosing location in which employee living - Whether amounting to address - Whether address material averment in indictment - Data Protection Act 1998, s 55(1), (2)
COUNSEL:
K Hegarty for the Appellant/Defendant; J Wood for the Crown; Registrar of Criminal Appeals; Crown Prosecution Service
PANEL: GAGE LJ, BEAN J, JUDGE GOLDSACK QC (sitting as a judge of the CACD)
JUDGMENTBY-1: BEAN J:
JUDGMENT-1:
BEAN J:
(reading the judgment of the court)
[1] On 4 October 2005 at the Crown Court at Birmingham, before Mr Recorder Sanghera and a jury, the Appellant was convicted on the last three counts of an eleven count indictment charging breaches of the Data Protection Act 1998, namely two counts of unlawful obtaining of personal data and one count of unlawful disclosure of personal data, contrary to s 55(1) of the Act. She was fined £ 200 on each of the two counts of unlawful obtaining (counts 9 and 10) and £ 300 on the count of unlawful disclosure (count 11), and was ordered to pay £ 1,000 towards the costs of the prosecution. The jury were unable to agree on counts 1 to 8, were discharged and the prosecution subsequently offered no evidence. She appeals against conviction with the leave of the single judge.
[2] The Appellant was employed by the Staffordshire Police in the human resources department. As part of her duties she was authorised to access and view personal information about employees, for staff and work policing related purposes. The Appellant's sister Angela Rooney had a relationship with a serving police officer, Adam Syred, and together they had a child. That relationship broke down in March or April 2003 and the wedding that had been arranged between the couple was cancelled.
[3] Shortly thereafter PC Syred started a new relationship with Tracey Booth, another employee of the Staffordshire Police, and in June 2003 they set up home together. Within days of their doing so, unwanted mail addressed to Miss Booth started to arrive and there was no dispute that it originated from Angela Rooney.
[4] At that time it was not possible to conduct an audit trail of the computer system in the human resources department, so the Appellant was not spoken to about it.
[5] About a year later, PC Syred and Miss Booth moved to an address in Tunstall and another member of staff updated their details on the database. On 16 July 2004 another colleague, PC Hayle, told the Appellant that PC Syred had moved to an address in Tunstall. On 19 July 2004 the Appellant accessed the personal data of PC Syred and Miss Booth, including their new address. The next day she told her sister Angela that the couple had moved to a new address in Tunstall. She did not specify the address. Angela Rooney then telephoned PC Syred and informed him that she had been told by her sister (the Appellant) that he had moved to Tunstall.
[6] The result was that an audit check was conducted on the Appellant's use of the database. The check disclosed that she had accessed personal information relating to PC Syred and Miss Booth on the following dates (among others): 9 June 2003, 23 June 2003, 4 July 2003, 4 June 2004 and 19 July 2004. The last date was, as we have said, the subject of counts 9 and 10. The previous four dates were the subject of counts 1 to 8.
[7] The prosecution case quite simply was that the Appellant had abused her position and (as to counts 1 to 10) contravened the Act by accessing the information by non-work-related purposes and as to count 11 had disclosed that information without consent.
[8] The defence did not dispute that she had accessed the information. Indeed, it might have been impossible to dispute that given the audit trail left by the computer. The defence was that Miss Rooney was simply doing her duty, checking to see whether the records had been updated since it was part of her responsibility in the human resources department to make sure that records were accurate and up-to-date. She relied on the statutory defence in s 55(2) of the Act.
[9] Sections 55(1) and (2) so far as material provide as follows:
"(1) A person must not knowingly or recklessly, without the consent of the data controller -
(a) obtain or disclose personal data or the information contained in personal data . . .
(2) Subsection (1) does not apply to a person who shows . . .
(b) that he acted in the reasonable belief that he had in law the right to obtain or disclose the data or information or, as the case may be, to procure the disclosure of the information to the other person.
(c) that he acted in the reasonable belief that he would have had the consent of the data controller if the data controller had known of the obtaining, disclosing or procuring and the circumstances of it . . . [Sub-paragraphs (a) and (d) are not material]."
[10] The Appellant was interviewed and in the course of her interview she gave the following explanation at p 172:
"What I would like to say is that I didn't obtain any information from the Peoplesoft, Human Resource Management System and pass it on to my sister. So I deny that I've disclosed any details or information to my sister that I've obtained from either of the systems that are mentioned in the first allegation."
She was then asked if there was anything she would like to say in relation to the second allegation and she replied:
"I would like to say that I didn't inappropriately access the Peoplesoft database system. I . . . accessed it . . . in accordance with my role as Human Resources Officer which I did so appropriately in my view because it was in connection with the function that I perform as a Human Resources Officer."
Later in interview she said that she had to ensure wherever possible that the addresses on the database were kept up-to-date.
[11] Mr Hegarty on her behalf has a point in relation to count 11 which makes it necessary to read the statement and particulars of the offence from the indictment in full:
"STATEMENT OF OFFENCE
UNLAWFUL DISCLOSING OF PERSONAL DATA, contrary to section 55(1) of the Data Protection Act 1998.
PARTICULARS OF OFFENCE
JACQUELINE MARY ROONEY on 20 July 2004, knowingly or recklessly, without the consent of the data controller, disclosed personal data or the information contained in personal data, namely the address of Tracey BOOTH and Adam SYRED."
At the trial Mr Hegarty submitted unsuccessfully to the recorder, and repeats the submission before us, that to say that Miss Booth and Mr Syred lived "in Tunstall" was not to disclose their address; and, therefore, the charge as particularised was simply not made out. But in our view the words "namely the address of Tracey Booth and Adam Syred" were not material averments essential to the count. The charge was unlawful disclosure of personal data or the information contained in the personal data. The fact recorded on the database that PC Syred and Miss Booth lived in Tunstall was alleged to be "information contained in personal data". The particulars could equally well have read in their concluding words "namely the whereabouts of Tracey Booth and Adam Syred", or "namely part of the address of Tracey Booth and Adam Syred". The Defendant knew very well the case which she had to meet. She was not in any way misled by the reference to an address and in our judgment there is nothing in this point.
[12] Before us Mr Hegarty developed a new point, or perhaps it is putting a similar point in a different way. He argues that to say that Tracey Booth and Adam Syred lived in Tunstall was simply not "personal data" or "the information contained in personal data" as required by s 55(1). He refers to the definition section of the Act, s 1(1), which defines personal data as meaning data:
". . . which relate to a living individual who can be identified:
(a) from those data, or
(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller
and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual."
He submits that to say that the couple lived in Tunstall does not sufficiently identify them and accordingly cannot amount to personal data.
[13] Mr Wood for the Crown says that it is sufficient that the reference to Tunstall should have been "information contained in personal data". In our view that is correct. The total sum of the information (at least as to identity and place of residence) contained on the database about PC Syred and/or Miss Booth was personal data. The information that they lived in Tunstall was part of "the information contained in personal data". Mr Hegarty does not submit that, and it would be absurd if, an offence was only committed if the whole of the information contained in personal data was improperly obtained or improperly disclosed. The town or village (whichever it was) in which they lived was quite clearly "information contained in personal data" capable of constituting the offence. The information itself does not have to include the identity of the individual, particularly since in the present case the recipient of the information knew very well who was being talked about. Accordingly, there is, in our judgment, no basis for saying that the conviction on count 11 was in any way flawed in law or unsafe or unsatisfactory.
[14] Turning to counts 9 and 10, Mr Hegarty submits that the convictions on counts 9 and 10 were inconsistent with the jury's failure to agree and the consequent formal acquittal of counts 1 to 8 inclusive; because the defence of acting in reasonable belief that the Appellant had in law the right to obtain or disclose the information (s 55(2)(b)) or the reasonable belief that she would have had the consent of her employers if they had known (s 55(2)(C)) was the same in respect of all counts.
[15] It is well established that in order for an appeal on the grounds of inconsistent verdicts to succeed it must be shown that the verdicts are logically incompatible, see for example R v Bell [1997] EWCA Crim 1200. The jury did not acquit on counts 1 to 8 but a failure to agree may be sufficient. Assuming for a moment that the failure to agree is equivalent to an acquittal on each of counts 1 to 8, we consider that the jury may well have been influenced by the fact that on counts 1 to 8 there was no evidence that the Defendant having obtained the information passed it on: so the jury may have been prepared to accept that the accessing of the information on the dates set out in counts 1 to 8, the last one being 4 June 2004, was so that the Appellant could fulfil her duty of checking the accuracy of the records. But on 20 July, having accessed the information from the previous day, she informed her sister that Miss Booth and Mr Syred were living in Tunstall. The jury were entitled in the light of that to be satisfied that the accessing of the information on 19 July 2004 (which was the subject of counts 9 and 10) was indeed for an improper purpose; that the Appellant knew very well on 19 July 2004 that she would not have had the consent of her employers if they had known of the obtaining, disclosing or procuring and the circumstances of it; and that she did not have a reasonable belief that she had in law the right to obtain and disclose the data or information. These were matters for the jury. No submission was made at trial that counts 1 to 10 should stand or fall together and no attempt was made to persuade the judge that it would be wrong to give the usual direction, which he did with some care, emphasising that each count must be considered separately. He said at p 9G of the transcript:
"The Defendant faces a number of charges - eleven in total - and you must consider each of the separately, because you are required to return verdicts on each individual count. So you have an all important obligation to consider each count separately on its merits from the others, but that does not mean that you should ignore all the other evidence of the background circumstances. There may be evidence which assists you in reaching a verdict. There may be evidence that assists you in reaching a verdict on one which informs your decision on another, and that is of particular relevance to counts 9, 10 and 11, and I will deal with those somewhat later, because your decision on counts 9 and 10 may logically affect your decision on count 11.
Nevertheless, you must reach, as I say, separate verdicts on each count having focused on each separately and having formed separate decision about it."
That direction was in our judgment entirely correct and accordingly the submission based on alleged inconsistency of verdicts cannot succeed.
[16] The single judge in granting leave observed that this case was, in his view, a storm in a teacup. In a sense it was: for example, we consider that on the face of it the case could perfectly well have been tried summarily. But there is no basis for criticising the prosecuting authorities for bringing the prosecution. The police are entitled to regard unlawful use of the information contained in personal data on police computers as a serious matter. On the verdict of the jury it would appear, sadly, that the Appellant did abuse her position and then told lies about it both in interview and in the witness box. The appeal must be dismissed.
DISPOSITION:
Appeal dismissed.
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