GDP-ARgggghhhh! (The Legal Aid Agency’s guide to the GDPR)

headinhands by Alex Proimos on Flickr creative commons - thanks.

I know. A blog post in which the twin joys of legal aid and GDPR are combined in one glorious cluster of hideousness. I'm sorry. Two parallel universes collide and rip a hole in the fabric of reality, or at any rate in the carefully drawn timetable set by the judge.

What am I blithering on about?

So, the LAA have refreshed their guidance on all the essential stuff they won't pay for. On the revamped list is a post-GDPR special : because GDPR saw the abolition of fees for Subject Access Requests the LAA will no longer be paying for fees charged by police forces arising from orders for police disclosure.

Say whut?

I know. I know that an order for police disclosure is NOT. A. SUBJECT. ACCESS. REQUEST. It's an order of the court. It's not a request. And its not made by the subject of the data. It covers more than the data relating to the single subject in question - it will typically cover at least two subjects (two adult parties to litigation, say two parents) - but will often cover third parties who may not be the subject of or party to litigation. They may be ex partners, neighbours, informants, children, extended family members who are the victims or perpetrators (alleged or actual) of abuse or criminal behaviour.

Here it is in all its wrongheaded glory :

(page 58 of the Civil Finance Electronic Handbook (issue 2.7 effective 26 Mar 19), attributed at page 69 as all the fault of the GDPR)

An order for police disclosure may cover material which will take the police many hours to collate, burn, transcribe or otherwise organise and for which they are quite justified in charging an administrative fee (although a number of people have told me in the last month or so that these charges have become wildly varied in recent years, with some forces apparently using this as a bit of a money making exercise and charging top whack for carrying out such work).

So, you might say this is just a mini-cash generator for the police and we should just switch to SARs and make do. But they won't 'do' (at least in most cases they won't). Anyone who has ever made a SAR or seen the product of one will know that the material produced will be incomplete and rendered practically useless by the level of redaction. If Mrs Smith (the alleged victim let's say) made a SAR for all records relating to her she would receive everything about her but with all the information relating to Mr Smith, the alleged perpetrator of domestic abuse against her, blacked out or removed. She would receive potentially all sorts of information that wasn't needed, for example about that time ten years ago when she was robbed at the supermarket. To get the information about the Mr Smith side of the equation he'd have to make a SAR - and his would be missing everything about Mrs Smith. Marrying the two sets of documents up would be impossible, time consuming and frankly pointless. Although a SAR now has to be complied with in 30 days, which is comparable to the sort of time usually given to the police to comply with a disclosure order (usually 28 days), the end product would be either useless or would generate unpaid work and cause built in delay before anything meaningful could be made of the information produced (even assuming there are any unpaid lawyers on board to do it). If we were to operate on that basis one organisation would be paying its staff to pointlessly redact stuff so that others could spend time piecing the jigsaw back together again. Like trying to glue the stuff in the bottom of the shredding machine back together. And even if you pieced it together again you'd find that the witness statement of the third party that is crucial to working out whether the data subject (your litigant) is telling the truth is not included. And you are not entitled to it. Excellent.

What's more, if the hard pressed overworked and underfunded police have a bag full of court orders for police disclosure which attract a fee, and a bag full of SARs which don't - which do you think they are going to prioritise?

And another thing (I know, I'm getting out of breath now), what if the subject doesn't WANT to play ball because s/he knows that the information might in fact not be all that helpful to them? Can the court effectively compel a data subject to make a request? And then to disclose whatever comes back? And even if it can what should it do if the litigant sticks the preverbial two fingers up?

This does actually really matter. Because if the LAA won't pay the fee, the solicitors won't do the work of gathering the police disclosure because they can't pay the fee. It means that cases will stall. Hearings will be wasted. Decisions for children will be delayed. Costs will be run up (including ironically, costs which will be paid by the LAA as everyone has to troop back to court to formulate plan B and generally bemoan the brokenness of everything ... Steam will come out of many ears. Maybe in some cases the court will decide it must forge ahead with information that really is quite important. That's a worry too.

And it's worse, because the guidance is backdated and not everyone has yet spotted that this is a thing. So courts and solicitors are probably still happily drafting police disclosure orders and may later find that they have no way of claiming back the sometimes quite hefty fees charged by the police. That is a big problem for some firms who run on very very slender margins and cannot absorb this stuff.

There is already a significant strain on family courts caused by the numbers of litigants in person who are involved in private children matters. In a significant proportion there is no single solicitor to pass the buck to, and in those cases either the court will have to take a punt on a litigant being capable and trustworthy enough to liaise with the police disclosure unit, sort the fee with their ex, obtain the disclosure and faithfully distribute it all to the court and other side - or it will have to coordinate the gathering of disclosure itself. And deal with the ensuing chaos when one party, too broke to afford a lawyer, also can't pay their half of the eyewatering disclosure order (also a problem for a represented party where disclosure is partly paid for by the LAA if the unrepresented party can't make up their half).

The legal framework, for anyone who cares to delve into it (can't say I ever have before now), is that by means of FPR 28.2, CPR 46 has effect when considering costs in the Family Court. That rule makes clear that third parties (here, the relevant police force) should usually be indemnified as to their costs when ordered to make disclosure. Most police forces I know simply don't comply with orders until a fee is paid - they usually write to the court if they are unable to comply because no fee has been paid, asking for more time and hopefully nudging someone into paying, the court having already indicated in its order that the fee (whatever it is) should be split (usually equally). At some point the court may well have to determine this issue under the framework of CPR 46 in order to break the deadlock if the police won't disclose and the solicitors feel unable to pay out fees that they know won't be reimbursed.

But it really would be better for all if that could be avoided. So. Please. Could somebody tell the LAA that when the police are ordered by the court to make disclosure that is not work that is exempt from a fee on the basis that it's a SAR? Because it isn't a flipping SAR. And because this guidance is going to cause even bigger problems than we've already got. Perhaps everybody could tell the LAA about this by issuing a C2 to bring their cases back to court to sort it out, and the ensuing disbursements and advocacy fees might focus minds. I don't know what to suggest, there are so many small pointless battles to choose from. It's all a bit despair-making really...

Perhaps the LAA could revise their guidance and then encourage dialogue between police forces and family courts to try and provoke some transparent benchmarking of reasonable administrative fees so that at least when family judges are making orders they can give a realistic idea to the litigants how much they are likely to have to fork out (on top of court fees, hair strand test fees and all the rest), and can tailor disclosure orders to what is really a necessary expense and what is more dispensable? And so that the overall costs to the Legal Aid pot can be kept to a sensible minimum that does not interfere with the doing of justice?

 

Feature pic : head in hands by Alex Proimos on Flickr creative commons - thanks.

Police Disclosure into Family Court cases – including sometimes phone and device downloads

Below follows a blog post I wrote on the train back from a trial in Plymouth, highly stressed, badly fed and sleep deprived. It may be a little jumbled but I wanted to get it out before the moment passes, and I don't have the time or energy to polish it, so please be forgiving...

 

I expect many people who have been victims of rape or sexual violence will have been worried by headlines in the press about being required to hand over their phones in order to ensure their case is actually prosecuted. The coverage in the mainstream media and comments from some politicians haven’t been especially helpful, and many legal commentators (many of whom are specialist criminal lawyers and therefore far better informed than I am) have patiently explained that this will all be done on a case by case basis, does not mean that everything on the phone is up for grabs to the defendant or general public scrutiny and is for the greater good (i.e. securing convictions when they are justified, ensuring the innocent are not the subject of a miscarriage and avoiding hopeless or wrong prosecutions).

 

What can I add as a family lawyer? Well, I’m not going to tread on anyone’s toes here by talking about criminal law where I'm not at all knowledgeable, but I can add a couple of things to the general debate about this :

 

The first is general observation as someone who often represents those same people who are involved in criminal proceedings when they appear in the family court – in proceedings concerning their child. Sometimes this child will be the product of the alleged rape. Sometimes they will be the product of a relationship which has at one time involved consensual sex, but later is said to have involved rape within the relationship. It’s rare for the parties to a ‘stranger rape’ or ‘date rape’ type case to be involved in proceedings about a child, but a parent who has been groomed as a vulnerable teenager may well end up in proceedings concerning a child who has been conceived as part of that abusive relationship.

 

I’ve represented a number of clients who have relied upon diaries, photographs, exchanges of texts or imessages or whatsapp messages to prove the abusive behaviour of an ex partner. I’ve represented a number of clients who have relied upon similar material to prove that such allegations are in this instance untrue. This type of material is valuable, sometimes determinative. In family cases (for reasons I explain below) the material often comes in the form of screenshots rather than digital download, and as such would often not pass muster for admission into criminal proceedings – but the principle is the same (there are obvious forensic risks with relying on screenshots or selected highlights of a longer thread but that is for another post). These records sometimes have the power to show you are telling the truth and sometimes have the power to show you are telling a lie. More often they are vaguely supportive of one person’s version of events, or have potential to be recruited to either account – but sometimes they mean game over for one of the people involved. Caught in a lie.

 

It isn’t always comfortable to be asked to disclose a device which contains not just your intentional or incidental record about a traumatic event, but also other private material about your life generally. It isn’t quite right to compare a phone to a diary of yore – one chooses what to put into even a private diary. A digital device gathers and stores ‘live’ conversations that in times past would have been spoken rather than typed and which would have been lost to all but the participants’ memories, and a digital device will invariably hold information that its owner may not appreciate is there, or may not appreciate is retained or still recoverable even after deletion. A digital device is a jigsaw receptacle of many aspects of our daily movements and actions (considered and otherwise), and that data it holds is both intensely private and profoundly powerful.

 

The second point is this. When you hand over your phone (or if you are a suspect / defendant when your phone is seized) the Family Court can, and increasingly does, order disclosure of that material into the family proceedings to help it determine the facts.

 

I should say that whilst allegations of domestic abuse in the general sense are a feature in a majority of cases that come through the Family Court, it is a far lower proportion that involve allegations specifically of rape (partly because parents of a child have usually been in a consensual sexual relationship at some point and even where there has been rape they may not even recognise that unwanted sex as rape) - and very many of the cases that raise domestic or sexual abuse matters will not have been the subject of any police report or investigation, let alone a charge or conviction (for all sorts of reasons). But here I'm talking about those cases where the police have been involved and where as a result they hold some information that might help build up a picture of events between two parents - but there hasn't been a conviction.

 

The uninitiated may ask why it is necessary to hold a trial in the family court where there is a going to be a criminal trial. The answer is twofold : there may be an investigation but no charge and therefore no criminal trial, or there may be a prosecution leading to an acquittal – in either scenario if its relevant the Family Court may try the facts in order to form a platform for making decisions about a connected child. More often though (and what an indictment of the criminal system this is) the criminal process is too sluggish for the Family Court to wait, meaning the Family Court has to crack on with its own trial rather than allow delay to prejudice the welfare of a child. In truth there seems to be a silent policy on the part fo the police  / CPS to wait and see what the Family Court turns up before making a charging decision. The upshot is that often there are two trials where really it would be fairer and more efficient to hold just one - where the criminal court convicts the family court will just adopt that conviction as fact and need not re-run the whole thing. Where a trial in the Family Court is necessary, it will be conducted on the balance of probabilities (rather than beyond reasonable doubt), and the rules of evidence and what can be admitted and relied upon are far more flexible (some would say lax) than in the criminal court. Thus it is possible to be found to have done something in the family court even if the criminal court acquitted you (i.e. its more likely than not you did it even if it isn't beyond reasonable doubt).

 

Into these fact finding hearings then, is dumped the data download from a phone. In my experience we see this sort of disclosure into family proceedings being ordered more often in cases of suspected non accidental injury of a child where the police have seized devices from suspects suspected of collusion to conceal an assault (in a typical domestic abuse case the order usually won't specify devices or downloads and the police won't give that up without a specific order). But the police do (sometimes) seize the devices of suspects in cases of physical or sexual abuse or rape or obtain the data from the devices of complainants - and they also might seize devices in harassment, stalking, revenge porn or malicious comms type cases.

 

I doubt that many victims of abuse who have a child (or are expecting a child) with their abuser would appreciate that their phone data might not only be used for the purpose of a criminal prosecution but might also be used in family proceedings. I doubt also that many suspects would appreciate the issue (not that they have a choice).

 

Family lawyers will tell you that because of the lower standard of proof (more likely than not), these records can be hugely helpful (or unhelpful depending on your perspective). Once disclosed they may not only be helpful in respect of the subject matter of a specific police investigation – they may provide all sorts of unexpected (or entirely unsurprising) information about drug use or dealing, verbal abuse, links with risky adults, harassment of an ex partner who is the other parent of a child, or the whereabouts of an adult at any given time. They may show that an account given to the family court is very obviously untrue (for example if cell site data shows a person wasn’t where they say they were). They may show a person is still in touch with that schedule one offender. They may show that a person is back on the booze or the crack or that a bruise was not present on a child on the day a particular timestamped photo was taken. They may show contact obstruction or unwarranted hostility in communications between parents or that somebody did really know about that court order that they broke.

 

The Family Court itself has no obvious realistic mechanism at its disposal to seize, download and analyse the contents of a digital device such as a smartphone in the absence of a criminal investigation in the course of which the police decide to (and are able to) secure a device for download. The Family Court’s powers are simply powers of disclosure of material already obtained by the police. This does mean that in many cases where a data download of a phone would be obviously very useful none is available because the police have not seized a device, or because the device is in a queue for download and analysis and no data is able to be produced (and I have to say on a number of occasions in my experience because the police object or drag heels). From the perspective of those trying to ensure justice without delay for adults and children in the family court this arbitrariness is a source of some frustration. There is no easy solution to it – although the High Court has a power to order seizure of a device or records, there would inevitably all sorts of logistical problems with securing orders before data was destroyed or ‘lost’, identifying the person responsible for seizure of the device and persuading the legal aid agency to fund the download and analysis of the data. Realistically this is unachievable - if the police haven't already done the legwork it ain't gonna happen. And in most private law cases the legal aid rates are already unsustainably low (they are far lower than care cases), making the idea of an advocate trawling through tens of thousands of pages on the off chance for no fee very unappealing - and arguably even more unattractive for a privately paying client. Even in care cases there is no fee for this work, but the hearing fees are less awful than in private law cases.

 

I don’t argue that this information should not be available for family courts to use – undoubtedly in many cases it enables the family court to make better more reliable decisions for vulnerable children, by exposing the lies that adults often tell with objective evidence that has a date, time and location marker that cannot be quibbled with – and by filling the gaps in a timeline where memory may fail. But I do wonder if steps should be taken to ensure a higher general awareness of the prospect of information sharing with a court that has the power not to send people to prison, but to remove their children forever. It’s not quite as simple as saying that if you are telling the truth you have nothing to hide, or that the material won’t be used if irrelevant to the investigation at hand. Although there is a process through which the police or any individual concerned could object to the disclosure of a data download that contains material of interest to the Family Court but which is wider than the purpose for which it was originally harvested, there Family Court does make orders for disclosure of the entire contents of a device, which is not only burdensome on the advocate who is professionally obliged to read the material (without any extra recompense) but which can be devastating for their client – and that data might well have been quite irrelevant to the original police investigation, but very relevant to a subsequent, broader child protection enquiry.

 

 

A post script about RIPA

pic courtesy of Flood G. on flickr (creative commons - thanks)

A short while ago I wrote a post about social workers carrying out surveillance of families that they work with, which has attracted a certain amount of attention. You can read that post here : Social work spies? (Yes, you over there I'm talking to you...).

I've had an email from a data protection officer at a local authority expressing concern that the article isn't correct, so I thought I'd better address it. I'm confident that I haven't in fact got the law wrong, but I thought it would be useful to explain why - and where I think wires have got crossed.

The DP Officer says this :

RIPA only applies to criminal investigations. She could never get an authorisation as it has to amount to a criminal offence for 12 months or tobacco or licensing.

For non- criminal matters you could do a RIPA type proportionality and necessity test but it falls outside the ambit of the RIPA regime as the Inspectors have previously confirmed. 

Lets break that down.

RIPA only applies to criminal investigations?

RIPA isn’t just about criminal matters at all. It defines what surveillance is and how it can be rendered lawful. An authorisation acts as a shield against civil liability (see s27 RIPA). Such potential civil liability might be framed in a number of ways, but might for example arise from the interference with Article 8 rights that covert surveillance would undoubtedly represent.

An authorisation can only be granted if it is necessary on specific grounds. Those include but are not limited to criminal matters :

in the interests of national security;

for the purpose of preventing or detecting crime or of preventing disorder;

in the interests of the economic well-being of the United Kingdom;

in the interests of public safety;

for the purpose of protecting public health;

for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or

for any purpose (not falling within [the above] which is specified for the purposes of this subsection by an order made by the Secretary of State.

A narrower list applies to intrusive as opposed to directed surveillance, but the point is RIPA is about the lawfulness of surveillance in general - not about surveillance only for the purpose of a criminal investigation. If further proof of that were needed, see the Home Office Code of Practice which I quoted extensively from in the original post : whilst much of it relates to police activity, there is substantial coverage of surveillance by local authorities.

Ok, next part :

Could a local authority get an authorisation?

It is quite right that a LA could probably not get an authorisation for the sort of social work snooping I’ve described. Although it is possible to see how the sort of covert surveillance we're talking about might fit under a number of the non-crime headings above, the effect of RIPA insofar as it related to local authorities was adjusted in 2012 :

  • firstly via the Protection of Freedoms Act 2012, which prevented LAs from granting their own authorisations (they now have to go via a JP),
  • and secondly via the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2012, which limits the types of local authority investigation that can be authorised - as our correspondent suggests to serious crime and (somewhat randomly) tobacco and licensing. So as far as local authorities post 2012 goes, the list of potential authorisation grounds is considerably narrowed.

So, whilst it might have been possible to obtain a RIPA authorisation for this stuff up until 2012, it doesn't seem to be possible now.

In my original post I identified all of this, saying :

Since 2012 there are heavy restrictions on what authorisations local authorities are allowed to grant/ apply for (as far as I understand it they are only permitted to authorise directed surveillance where it is for the purpose of preventing or detecting crime or of preventing disorder, and even then only in relation to certain specified types of crime), which is not going to apply for much of what we are looking at. Any authorisation is likely to need judicial approval (from a JP), and it needs to be in place BEFORE you start snooping (see 4.42)...

I did not say in terms that no social worker could ever get an authorisation for this sort of surveillance, but I did say that it was pretty unlikely / challenging and nobody who read my post carefully should have been under any illusion that they could simply grab an authorisation off the shelf and carry on as they were. Having sketched some of the potential difficulties, I made clear I wasn't going to get in to the detail of the authorisation regime, and that was because the primary purpose of the original post was to encourage professionals to appreciate and confront the fact that what many are doing (and apparently normalising) is in fact covert surveillance, and it is an interference with Article 8 right to privacy of private individuals. Which may have no lawful basis in the absence of a RIPA authorisation.

For the avoidance of doubt I don't think one can simply say that because RIPA no longer offers a route to authorisation a local authority 'isn't covered by RIPA' and can do whatever it likes with impunity. Whilst Article 8 arguments are unlikely to render the product of covert surveillance inadmissible in children proceedings, because of the countervailing Article 8 and other rights of the child, that does not mean that a civil claim for an interference of Article 8 might not be brought against a local authority if the facts were right. RIPA may not provide the answer, but a discussion of its definitions seemed like a useful framework for raising awareness of the intrusive, contentious and potentially risky conduct that some social workers are engaging in.

So how can we do this stuff lawfully?

My correspondent mentions in her email that I am not a criminal lawyer. I'm not. Nor am I a data protection lawyer. This is not my specific field, but it is an area of crossover, and family lawyers (as well as social workers) need to develop their knowledge in these areas. I don't hold myself out as any particular expert in the area, but I have taken care writing this and the previous post and have cross checked my view with others on the issues above, who have greater expertise than I and who concur.

In my day job I am in the happy position of being able to frown sternly when social workers describe what sounds like covert surveillance, and then sending them off with a flea in their ear to discuss with the legal department before taking another step. I don't usually have to deal with what follows but i do know I don't much like the idea of receiving a brief for a case that is dependent upon covert surveillance of a family by a social worker. It makes things very murky and is a distraction. My view from the perspective of the one who has to run the trial and try and protect a client against Human Rights Act claims, is : spell out in words of one syllable at the start that you are going to be checking up on the family so there is an expectation and an understanding that there is a necessary level of intrusion for a specified purpose. My broader advice to social workers was to go the legal department or relevant designated officers within the local authority to seek guidance before carrying out surveillance. That advice stands.

I'd be interested to know from those who work in local authority legal departments what their experience is of claims and complaints being made arising from covert surveillance by social workers (I'm not aware of any but guess there must be at least some and if there aren't it must be only a matter of time), and whether anyone else can think of any mechanism by which the risk of such a claim can be removed or reduced (is there any other framework for rendering this type of Article 8 interference lawful that I am missing? for example the police can use PACE to do some things and those don't need a RIPA authorisation). Quite apart from civil claims under the Human Rights Act I wonder whether there is a risk of adverse Ombudsman decisions, or of regulatory issues for social workers with reference to the HCPC code. There are also potentially significant issues in terms of GDPR / data protection. Thoughts welcome.

A footnote for parents

Parents should also understand that the fact that evidence has been obtained through covert surveillance does not necessarily mean that the court will disregard it, or that a claim can be brought under the Human Rights Act. As with cases where parents make covert recordings of social workers, the court when presented with such material will have to balance the relevance, strength and importance of the material as against any fairness issues that are raised. Ultimately, if it is likely to be evidence that is going to help the court make sound decisions for a child it may well be considered.

 

Feature pic courtesy of Flood G. on flickr (creative commons - thanks)