Jane Clift Case Highlights
This case is great. She was placed on a list. She used the Data Protection Act and Human Rights Act to sue and win her case.
6# The words complained of contain personal information relating to Ms Clift. That is data which is subject to the Data Protection Act 1998 ("DPA"). This Act implemented in English law some of the rights recognised by Article 8 of the European Convention on Human Rights ("the Convention"). Later those rights were more fully incorporated into English law by the Human Rights Act 1998 ("HRA"). The Council is a public authority. HRA s.6 (1) provides:
"It is unlawful for a public authority to act in a way which is incompatible with a Convention Right".
Physical Contact. This is an area that some targets might be able to build a case on, in regards to who was given access to their data.
Data Protection Act. Human Rights Act. These are the two acts that she was able to use to file her case.
8# The question in this case is whether, and if so how, the Council must demonstrate that it has complied with its public law duties under HRA (and incidentally DPA) if it is to be able to assert that it has the interest or duty required at common law for there to be a defence of qualified privilege.
This is what the case came down to. The same would likely be true for the Acts in other countries.
EVENTS LEADING TO THIS ACTION
9# As a responsible employer the Council has a policy to protect its employees from violence at work. The policy is set out in a document headed "Safe System of Work (Codes of Practice) H&NS/COP/1.14 Version 1.0 date issued 11/3/03 Violence at Work (Inc Potentially Violent Persons)" ("the Policy").
This also fell under Violence at Work
15# Mr Kelleher then conducted a number of other interviews. One was with Mr Gulfraz, a friend of Ms Clift. She was accustomed to helping him in making telephone calls and filling out official forms. She was at the time also helping him in a complaint he was making against the Council on a housing matter. He was present at the time Ms Clift made her call to Ms Rashid on 11 August. He heard the whole conversation over the speaker phone. Other witnesses were fellow employees of Ms Rashid. Ms Rashid did not have the phone on loud speaker but her colleagues sitting near her heard her side of the conversation. It was sufficiently unusual to attract their attention.
Witness close to Jane Clift were interviewed. Just like witnesses, family, friends, would be interviewed.
21# Also on 1 December 2005 Mr Kelleher filled out a standard form prepared in accordance with the Policy. It is known as a Violent Incident Report Form.
Same type of reporting form used in other countries as well to document incidents.
22# Mr Satterthwaite is the author of the Policy and the officer of the Council responsible for compliance with Data Protection and other related matters. He maintains the Register. It is a document prepared on Excel spreadsheet software. It contained ten columns and, at the relevant time, about 150 rows. Each row related to a person identified by name and address given in the first two columns. Ms Clift's name was entered on the Register by Mr Satterthwaite upon information provided by Mr Kelleher. Details of the incident are given in column 5 as "threatening behaviour on several occasions". The duration for which the person is to remain on the register is given in column 8 and in respect of Ms Clift the period is 18 months. The ninth column contains a title "Risk Rating VH, H, M and L" the entry for Ms Clift is M for medium. Two entries are admittedly inaccurate. The location of the incident is given at column 4 as "via correspondence". The date of the incident is given in column 6 as "30/11/2005".
All your information get's documented.
24# The precise means by which the Register was circulated did not emerge clearly in evidence. Ms Clift protested immediately at her inclusion on the Register and asked if there was a right of appeal. She was informed there was not. In a letter dated 13 December 2005 Mr Satterthwaite (signing himself as Data Protection/ Health and Safety Co-ordinator) explained his decision in terms which implied that the Register had already been circulated by that date, as might be expected. Some information as to whom the Register had been shared with was given in that letter. More detailed information as to the publishees is not recorded in the form of an email before one that has survived dated 27 January 2006.
Health and Safety Co-ordinator did not give her the chance to appeal, so she took it to court.
30# The letter dated 13 December 2005 from Mr Satterthwaite to Ms Clift includes the following:
"Re – your letter dated 10 December 2005 – PVP Marker
A request for information that you sent to the Council, has been passed to me to answer, as I am the Data Controller for the PVP register.
Under the Management of Health and Safety at Work Regulations (1992), we have a duty of care to ensure that we do not put our employees into situations that may cause them physical or mental harm…
This register is shared between the Council's Health and Safety co-ordinators to distribute on a need to know basis to managers, (especially those services that interface with our customers) so they can take the appropriate actions to protect their staff. This register is also sent to our partner organisations that may provide a service on our behalf (i.e. Slough Accord, Interserve, NHS Primary Care Trust and The Community Safety Partnership). Once the time limit has expired, using the same communication chain, a request is made that all traces of the warning marker is removed from the individual's name.
This is what get's distributed, and this is the same wording in most of the documents that I have been reading up on.
31# That letter reflects guidance from two sources. Whether it does so correctly is another matter. The first source is the Policy. This includes what, in another context, would be called sentencing guidelines, listing the activities that may render a person liable to have a violent person marker placed on their file and the "set period" said to be commensurate with the activity. The second document is one issued by the Information Commissioner covering five pages, entitled "Data Protection Act 1998 Compliance advice Violent Warning Markers: used in the public sector" ("the Compliance Advice").
32# Ms Clift pursued her rights of access and sought further information under the Data Protection Act. By a letter dated 11 January 2006 Mr Satterthwaite wrote as follows:…..
Mainly social services related activities – Supporting People, Community Mental Health Team and Community Nursing
– Community Safety Partnership
Disclosure was made to the above organisations as they may all have cause to visit your address, for face to face contact. A good example of this is one of the many satisfaction surveys carried out.
She wrote the request under the Data Protection Act. Note her file was shared and distributed to quite a few people.
42# After further submissions on the questions to be asked of the jury counsel agreed that I should direct them as follows:
"If you assess damages, then you take into account circulation to 30 people for the e-mail and 150 for the Register. You leave out of account the remainder of the 66 to whom the e-mail was addressed unless you answer question 2 yes [in other words unless they find malice].
If you answer yes to question 2, you take into account all 66 people to whom the e-mail was sent and 150 for the Register".
THE DATA PROTECTION ACT AND THE HUMAN RIGHTS ACT
These two acts played heavily into her defense.
43# The first proceedings brought by Ms Clift were in the County Court under the DPA. She commenced those proceedings on 13 January 2006 alleging that the Register was inaccurate. Those proceedings have been stayed to await the outcome of this libel action.
This is what Jane Clift had to do to clear her record.
(a) The widespread publication of information that a person is 'violent' and their inclusion on a register of 'violent persons' is a serious interference with that persons Article 8 rights which requires cogent justification.
(b) Ms Clift had never used violence towards the First Defendant's employees and had never threatened any such employee with violence. No employee had complained about Ms Clift's conduct and no contemporaneous 'Violent Incident Report' relating to Ms Clift had been completed by any person.
Point 46. interference with a persons Article 8 rights.
47# There followed a plea of malice which is summarised in para 2 above. The plea of publication set out the facts I have already recited in relation to the circulation of the e-mail with the Register as an attachment on 27 January 2006. The next paragraph material to be cited reads as follows:
"10 The Register entry and the e-mail were distributed excessively widely to persons and bodies with whom [Ms Clift] had no contact and had no interest in [Ms Clift].
When I have no contact with individuals across boarders, why is my information shared with them? Clients or associates in other countries should not have this information disseminated, but they are.
50# Nevertheless, it is appropriate to set out the terms of the draft amendment as follows:
"12A Further by publishing the e-mail and the Register Entry the [Council] has interfered with [Ms Clift]'s rights under Article 8 (1) of the European Convention on Human Rights without such interference being justified under Article 8 (2) and as a result its actions were unlawful under Section 6 of the Human Rights Act 1998.
The targets in European countries could start to look into this via data protection and Human Rights Conventions, Articles 8 and 6. See a lawyer first.
66# It is understandable that Mr Beggs should have ordered his arguments as he did. The Council has policies on both health and safety, and on data protection. Mr Kelleher and Mr Satterthwaite made the decisions they did make after considering these policies. Mr Satterthwaite directed himself on the law of health and safety at work, and on data protection, as set out in the Policy and the Compliance Advice. He did not mention the law of libel. Whether or not Mr Satterthwaite directed himself correctly is an issue for the court. But it is understandable that the Defendants should wish to be judged by the law which they understood to be applicable. Mr Beggs may also have taken the view that the course I adopted in the Westminster case at para 151 would be difficult to support. If so, he did not say that.
Health and Safety at work.
75# Mr Beggs submitted that the Council owed a duty to ensure the safety of their staff. He cited Health and Safety at Work Act 1974 ss.2 and 3 and the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242), in particular regulations 3-5 and Schedule 1.
Health and Safety consistently cited throughout this whole case, used for justification.
90# The absence of a system of monitoring to whom the Register was published means that the Claimant may not be able to prove the full extent of the publication. The onus of proof is upon her, and if she is unable to discharge it, that cannot be relevant to the defence of qualified privilege that might be available in respect of other publications which she can prove.
A disgraceful lack of oversight is what I like to call it.
94# Para 16 provides that:
"Data controllers should ensure that only those members of staff who are likely to come into physical contact with a potentially violent individual, through visits or by meeting in open plan reception areas, or who can otherwise demonstrate a need to know, have access to violent warning marker information. So for example where a member of staff is required to visit a potentially violent individual, at this point they should be advised of this fact".
Physical contact. There is that word again.
98# The Compliance Advice does not assist on the definition of violence or violent behaviour. The Policy gives what it states are "Examples of violent behaviour covered by the Code of Practice". They include: "Shouting, Swearing, Racial / Sexual Abuse, Threats, Pushing, Spitting, Object Thrown, Damage, Hostage and Actual Violence". These are all things which an employee should expect to be protected from. But to refer to them all as examples of violence, or even potential violence, gives an extended definition of that word. It normally connotes at least a threat of physical force, and one which is meant seriously.
An expanded definition of violence. So shouting by someone's standards could get you and did help to get Jane Clift on the list. You have to be so very careful with these individuals.
109# Documents are now normally held and communicated electronically. It is easy and common to circulate by e-mail to very large numbers of people, within (and outside) an organisation, information which, in the past, would have been addressed in a letter or memo to very few. It is therefore much more likely than in the past that information will be communicated to persons to whom no duty is owed, or who do not have a legally sufficient interest in receiving the information. It was in order to address this change in practice that the data protection legislation was introduced, first in a limited form in 1984, and then as it is now in DPA. HRA was not specifically targeted at this issue, but it undoubtedly applies to it.
How far and wide is information getting shared? This is going to be an interesting question to look into. I get the feeling with limited oversight, they are using this to smear targets left, right and center.
112# The historical cases show that the values set down in the Convention in 1950 as rights under Articles 8 (including the right to reputation) and Article 10 (including the right of freedom of expression in the giving of references and warnings) were not invented in 1950. These and some other Convention rights can be traced back, not only to the American Bill of Rights and the French Declaration in the eighteenth century, but also to the very beginnings of English law. So one thing that HRA has achieved is to provide a means through which the courts can review the relative priority that the common law gave to those rights (which it already recognised), and adjust those priorities to meet contemporary needs.
This case was very interesting. Lot's of good points, targets might be able to use. Check with a legal expert.
On the one hand looms the probability, often amounting to a certainty, of damage to the individual, which in some cases will be serious and may indeed be irreparable. The entire future prosperity and happiness of someone who is the subject of a damaging reference which is given carelessly but in perfectly good faith may be irretrievably blighted. Against this prospect is set the possibility that some referees will be deterred from giving frank references or indeed any references."
Yes slander can ruin your life.
120# The DPA has created new statutory rights which are in no way related to employment or other relationships, although they affect such relationships. That Act requires attention to be focussed on the rights of those who are the subjects of references and warnings, as well as on the rights of those to whom the references and warnings are addressed. Personal data must be processed (which includes disclosed) "fairly and lawfully", and it must be accurate: see Sch I. There are extensive provisions on the interpretation of these and other principles and a number of statutory instruments containing further provisions. I shall not consider these further, because Mr Tomlinson made no submission based upon them. He confined his submissions to the new rights and duties created by the HRA, which apply to the defendant council, but would not apply directly to a private sector employer.
Wow you mean people can't just create fake incidents, data must be accurate? Guess it's time to start reviewing some files and see what is actually out there. What has been said, attributed to individual files vs what is accurate. There has to be a way to do a class action for inaccurate information, especially if there is a systemic practice that is occurring.
128# The jury answered No to each of the first three questions: they rejected the defence of justification and the allegation of malice. They awarded damages of £12,000 to Ms Clift. So, Ms Clift left court with her reputation vindicated and Mr Kelleher left court without a stain on his reputation.