22 September 2015
Lord Ken MacDonald QC, the former DPP, was on the Today programme this morning talking about the separation of powers in relation to criminal prosecutions. The police investigate, the Crown decides whether to prosecute, the jury decides on guilt or innocence and the Judge decides on the sentence.
However if we look at the monetary penalties, or fines, imposed by the ICO in relation to serious breaches of the DPA, the ICO is the investigator, the prosecutor, the jury and the judge. In terms of compliance with Article 6 ECHR to have your civil and criminal rights determined by an independent and impartial tribunal, this is cured by the right of a full appeal to the Information Rights Tribunal. But it still sits uncomfortably with me for several reasons. I spoke about this last week at the NADPO Conference that BTO hosted in Scotland last week and was pleased to hear murmurings of support from the distinguished audience.
The ICO (supported admittedly by the Upper Tribunal) takes a slightly odd approach to the discount it provides in relation to these fines. It allows an organisation who pays the fine within 28 days a 20% discount. Given that the fines can be up to £500,000 that can be a saving of up to £100,000. However if you want to exercise your Article 6 right to an independent and impartial tribunal then you are not entitled to the discount. So your right of access is fettered somewhat by what could effectively be seen as a fee of £100,000.
I am not sure how this can be compliant with Article 6 or indeed fair!