Case No: 199907727 Y4
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
AT WORCESTER (HH JUDGE CAVELL)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20 October 2000

B e f o r e :

LORD JUSTICE ROCH
MR. JUSTICE ROUGIER
and 
MR. JUSTICE GRAY

	R	Respondent	
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	BARRY REES	Appellant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2HD
Tel No: 020 7421 4040, Fax No: 020 7831 8838
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Mark George (instructed by The Registrar of Criminal Appeals for the Appellant) 
Michael Burrows (instructed by  The Crown Prosecution Service for the Respondent)

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Judgment
As Approved by the Court
Crown Copyright

Lord Justice Roch:

1.	This is the judgment of the Court.  On 7th May last year, at the Crown Court at Worcester, Edward Bottrill pleaded guilty to an offence of misconduct in a public office contrary to common law, and on 17th December of that year was sentenced to 3 months imprisonment.  Mr Bottrill was, until his retirement in 1998, a sergeant in the Warwickshire Constabulary and the misconduct, which by his plea he admitted, was improperly obtaining for the Appellant, Barry Rees, and disclosing to Barry Rees information held on the Police National Computer which enabled the Appellant to hold such information, Bottrill knowing that the Appellant was not a person authorised to request, receive or hold such information.  In the particulars of the offence with which Bottrill was charged it was alleged that the information he had obtained and disclosed was confidential.

2.	The Appellant was charged with 3 offences, the first of which was aiding and abetting Bottrill misconducting himself in a public office.  The particulars of offence contained in the indictment were: 

“Barry Rees on days between 1st January 1997 and 30th September 1997, Edward Bottrill having misconducted himself in a public office, namely that of an officer of the Warwickshire Constabulary, in that he: 

i  improperly obtained for and disclosed to Barry Rees confidential information held by the police, and; 

ii   improperly enabled Barry Rees to hold such confidential information knowing that the said Barry Rees was not a person authorised to request, receive or hold such confidential information, contrary to common law, the same Barry Rees did aid, abet, counsel or procure Edward Bottrill to commit that offence.”

3.	The Appellant also faced two further charges of procuring the disclosure of personal data, contrary to section 5(6) of the Data Protection Act 1984.  The Appellant was tried by His Honour Judge Cavell and a jury between 15th and 26th November 1999.  He was convicted of all three offences by majority verdicts of 11 to 1.  On 17th December he was sentenced to 9 months imprisonment for the offence of aiding and abetting misconduct in a public office.  No separate penalty was imposed with respect to either of the offences of procuring the disclosure of personal data contrary to section 5(6) of the Data Protection Act 1984.

4.	The Appellant appeals against conviction with leave of the single judge, who gave leave to appeal on two issues, namely:

first the judge’s direction on the meaning of “confidential information” and 
second, the judge’s direction on the mental element that the prosecution had to establish before they could prove the Appellant guilty.

Both those grounds relate to the offence of aiding abetting misconduct in a public office.  However, as the judge directed the jury that were they to acquit the Appellant of that count in the indictment, count 1, then they would be obliged to acquit the Appellant of the two charges of procuring the disclosure of personal data, counts 2 and 3 in the indictment.  The grounds of appeal relate to count 1, but if the appeal succeeds on count 1 the respondents would not seek to uphold the convictions on counts 2 and 3.

5.	The background to this case is that the Appellant was a Detective Inspector in the Warwickshire Constabulary until his retirement in 1996.  On his retirement he set up and ran a private investigation agency called ‘Protocol’.  The Appellant had many friends who were still in the police force, one of whom was Edward Bottrill, a Detective Sergeant.  It was a formal admission at the Defendant’s trial that:  

“At all material times Edward Bottrill was an officer of the Warwickshire Constabulary.  He has pleaded guilty to an offence of misconduct in a public office in identical terms to that set out within count 1 of the indictment.”

6.	The prosecution produced evidence of some 29 transactions, that is to say instances in which data had been obtained from the Police National Computer.  26 of those transactions were items of information obtained from the computer by Bottrill.  Those were transactions 1 to 26.  Transaction 27 was a case of data being obtained from the Police National Computer by Frederick Tebbs, a Detective Inspector in the Warwickshire Constabulary stationed at Leamington Spa, and transactions 28 and 29 were instances of data being obtained from the Police National Computer by Martin Boag, an investigation officer with the Audit Services of Warwick District Council.  Such persons have authority to make application through a police officer for data from the Police National Computer in relation to enquiries by local authorities into possible abuses of benefit schemes operated by local authorities, such as housing benefit.  The transactions in which Tebbs and Boag were involved were the basis of counts 2 and 3 in the indictment.

7.	With regard to the 26 transactions in which data was obtained from the Police National Computer by Bottrill, the prosecution could establish phone calls between telephones of the Appellant and Bottrill shortly before and shortly after the obtaining of data from the Police National Computer by Bottrill; in some of the transactions the prosecution were able to produce copies of computer print-outs containing data obtained from the Police National Computer relating to that transaction which had been found at the home of the Appellant, his home also being his business address.  The Appellant did not admit that in respect to every one of the 26 transactions that the data had been obtained from the Police National Computer at his request.  Nevertheless, he did admit in respect of a substantial number of the transactions that the data was obtained by Bottrill from the Police National Computer at the Appellant’s request or instigation.  Moreover the Appellant, when giving evidence, admitted that he had asked Bottrill to assist him in obtaining information which he, the Appellant, required for the purposes of his business and that he knew that the probability was that Bottrill would check the Police National Computer.   As an example, the Appellant gave evidence to that effect with regard to transactions 2 and 3 and in relation to transactions 4 and 5.  In a number of other cases, such as transactions 17 and 18, copy print-outs from the Police National Computer were recovered from the Appellant’s home.  The print-out would have the number of the officer who had accessed the computer and in these instances the print-outs had on them Mr Bottrill’s number.

8.	Consequently it was not an issue at the Appellant’s trial that he had asked Bottrill to obtain information for him for the purposes of his agency and that he knew that Bottrill would obtain the information by accessing the Police National Computer. 

9.	Two points were raised by the defence at the Appellant’s trial.  First, that the information obtained was not confidential.  Second, that the Appellant did not know that he was not a person authorised to request, receive or hold such confidential information.  The Appellant’s evidence was to the effect that he thought there was nothing wrong in what he and Bottrill were doing.  When he asked for and received information from the Police National Computer he did not consider that he was doing anything wrong.  He believed that Bottrill, as a police officer, had a discretion to give out the information he, the Appellant, had requested if Bottrill thought it right to do so.  The information he had been seeking through Bottrill was information which was a matter of public record and which he, the Appellant, could have obtained from other sources.

10.	The prosecution led evidence which they maintained showed that the Appellant knew that what he and Bottrill were doing was unlawful and in breach of police regulations and the Data Protection Act of 1984.  The prosecution started by calling Chief Inspector Thompson to explain how the Police National Computer worked.  All people with a conviction and all people who were wanted or who were missing were on the Police National Computer and had a unique Police National Computer number.  In addition those with convictions would have a Criminal Record Office number.  A computer check could reveal an individual’s arrest and remand history, a summary of his or her convictions, sentences, nicknames, descriptions, addresses, known associates, photograph, locations and occupations.  There was a password to log on so each search on the computer was logged and could be reproduced over 12 months after the search had been made.  The log of the search would show the terminal used, the police force which had access to the computer, the number of the officer making the search, the start and end time of the search and what was seen on the search.

11.	Inspector Poole, who was the Computer Manager for the Warwickshire Police Force, was called next.  He gave evidence that the Police National Computer was only for authorised users.  After February 1997 officers signed the Data Protection Act but that was only to show their awareness of the Act which confirmed an existing system.  The police had Force Operating Rules which were available to all officers and to which officers were introduced during training.  Police Officers can only access the computer and use the data obtained from the computer for normal policing.  Passing information to a former police officer acting as a private investigator would not be permitted.  Local authority fraud offices do have access but they, like any outside agency, would have to complete an application form before gaining access.  Mr Poole said that there had been a tightening up of access levels since 1997 when there had been some concern about access to the Police National Computer.

12.	The prosecution called a witness, PC Saville, who had known the Appellant since the early 1980s.  The Appellant had been the witness’s supervisor and had also been his best man.  The Appellant had phoned him at work 2 or 3 times and asked for checks to be made against vehicles.  He had told the Appellant that it was not possible because of Data Protection.  He had seen a former colleague dismissed for using the Police National Computer.  (We observe at this stage that that former colleague was a Mr Hines and that at least two other witnesses gave evidence about Mr Hines’ dismissal from the force and also said that that event must have been known to the Appellant).  PC Saville said that the Appellant had asked him if he should go to another officer and he told the Appellant that it was his decision.  In cross-examination PC Saville said that he trusted the Appellant implicitly and that the Appellant had been an excellent officer in his opinion.  The Appellant had, since leaving the force, given information about criminals on a number of occasions.  There was no other way of getting the information the Appellant asked for without accessing the Police National Computer.  There was no paper system. 

13.	The police called Chief Inspector Hayward who supervised the search of the Appellant’s home and office.  There was no dispute about the documents found or about the phone calls that had been made to and from the phone at the Appellant’s premises.  One of the documents found at the Appellant’s home was a Holmes Training Manual.  Another witness called by the prosecution was a Detective Superintendent Hussey who was the man in charge of the investigation.  That witness told the jury of the warnings on the screen of the Police National Computer when an officer logged on to the computer to obtain data.  The warning was repeated on the computer printouts. The witness also told the jury about green cards which had been issued to all police officers prohibiting the communication of data obtained from the computer to unauthorised persons.  Detective Superintendent Hussey told the jury that the Appellant had been a Holmes trainer and that it was “inconceivable that an experienced Detective Inspector would not be aware of the Data Protection Act requirements”.

14.	The conclusion of the prosecution case were interviews that the police had had with the Appellant.  In one of those interviews the Appellant made the concession that he could not see a legitimate reason for him to have paper work from the Police National Computer.

15.	We have already outlined the evidence of the Appellant above, namely that he considered that the police operating rules, with which he had familiarised himself to a degree whilst still in the police force, applied only to confidential information; that none of the information he sought could be described as confidential.  He said that he had never seen the green cards referred to by Detective Superintendent Hussey; and that he believed a police officer had an absolute discretion in using the Police National Computer when it came to giving out data.  He did not think what he and Bottrill had done was unlawful.  He had never made payment for such information.  He had never put such information to unlawful use.  

16.	The first point raised on the Appellant’s behalf in this appeal is that the judge by his directions removed the issue whether the information disclosed to the Appellant was confidential from the jury.  Mr George, for the Appellant, in his skeleton argument puts the point bluntly by saying that the judge usurped the clear function of the jury which was to decide whether the information was confidential, that being one of the issues for the jury.  Mr George submits that at no point did the judge direct the jury that this matter was an issue for them to decide as opposed to their following the directions given by the judge.  Moreover, when at page 7B to C the judge contrasted the Crown’s case with that of the Defence, it was in terms that must have made it clear to the jury that the Crown’s contention that this was confidential information was correct as a matter of law.  Mr George claims that the character of the information obtained was very much a live issue because of the evidence that the information obtained was already in the public domain and was obtainable without great effort from various public agencies.  For example, details of previous convictions and sentences could be obtained from the clerks to the various courts.  As convictions and sentences are pronounced in open court, such information is in the public domain.  Details about vehicles can be obtained from the Vehicle Licensing Authority at Swansea.

17.	We do not consider that the criticisms made by Mr George of the summing-up are sustainable.  The judge started his directions in relation to count 1 with these words:

“What do the Crown have to prove?  First of all, they have to prove that the information that Mr Bottrill obtained for and disclosed to Mr Rees, this defendant, and enabled him to hold, was indeed confidential information.  In other words, that it was information the police held in confidence.  Not secret information, quite a different thing.  Held in confidence.  And they held it in confidence if they held it subject to either an express or an implied obligation to hold it in confidence or subject to a restriction on disclosure contained in any Act of Parliament.  Such an implied obligation might arise where a person has a reasonable expectation that such information might not be disclosed to other people.

In so far as the information was personal data (that is, information relating to a living individual who can be identified from that information), then, as a matter of law, it was held subject to a restriction on disclosure under the provisions of the Data Protection Act 1984.  It was therefore held in confidence and was indeed confidential information.

In so far as the information was not personal data (for instance, relating to a vehicle or a business and not to any living individual), then the prosecution case is that the police held that information subject to an express or implied obligation to hold it in confidence.

The defendant’s case is that this information was not held in confidence; it was in fact readily available information.  The Crown accept that it is possible to apply to a court for the details of previous convictions, if you know which court to apply to and you fill out the appropriate forms and pay the fee.  The Crown also accept that you can apply to the DVLA, the licensing authority for motor vehicles, with which I am sure we are all familiar, for details about the ownership of another car.  If you have good reason to, you fill out the appropriate form and pay the fee.  But, of course, here, members of the jury, the Crown say that the defendant was obtaining name, date of birth, address, descriptions and other personal data, information not in the public domain.”

18.	The Data protection Act 1984 defines ‘data’ in section 1(2) as:

 “information recorded in a form in which it can be processed by equipment operating automatically in response to instructions given for that purpose.”

Section 1(3) defines “personal data” as:

“data consisting of information which relates to a living individual who can be identified from that information (or from that and other information in 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.”

Section 1(9) defines “discloses” in relation to data as:

 “including disclosing information extracted from the data”.  

The First Schedule of the Act sets out the Data Protection principles.  The second principle is that:

 “Personal data should be held only for one or more specified and lawful purposes”.

The third principle is that:

“Personal data held for any purpose or purposes should not be used or disclosed in any manner incompatible with that purpose or purposes.”

The eighth principle is that:

 “Appropriate security measures should be taken against unauthorised access to ....personal data....”.

19.	Section 5 of the Act limits the holding of personal data to those in respect of whom there is an entry in the Register of Data Users and Computer Bureaux.  Section 5(2)(d) provides that:

“a person in respect of whom such an entry is contained in the Register shall not disclose such data held by him to any person who is not described in the entry.”

In the case of the Police, the Chief Constables of the various police forces are entered in the Register as Data users. 

 Section 5(3) provides that:

“a servant or agent of a data user shall, as respects personal data held by the data user, be subject to the same restrictions on the use, disclosure or transfer of the data as those to which that person is subject under sub-section 2(d).”

  Section 5(6) reads:

“A person who procures the disclosure to him of personal data the disclosure of which to him is in contravention of sub-section (2) or (3) above, knowing or having reason to believe that the disclosure constitutes such a contravention, shall be guilty of an offence.”

20.	Many of the transactions involved the obtaining of information relating to a living individual, that is to say the obtaining of “personal data” within the meaning of the 1984 Act.  In the light of the provisions in the 1984 Act which we have identified, it is not in our judgment arguable that the judge’s directions to the jury that information relating to a living individual who can be identified from that information is, as a matter of law, held subject to a restriction against disclosure was a misdirection.  It was data which was held by the police subject to restrictions on disclosure.  Indeed, the judge’s direction to the jury that the police held information in confidence “if they held it subject to an express or implied undertaking to hold it in confidence or subject to a restriction or disclosure contained in any Act of Parliament” was based on a suggested direction drafted by Prosecuting Counsel, Mr Burrows, which was discussed by the judge and counsel in the absence of the jury, prior to counsel’s speeches and the summing up.  In relation to that part of the suggested direction, Mr George said:

 “I don’t disagree with anything that is said there, but it seems to me with respect that it would be helpful to the jury to give them some assistance as to the circumstances in which there might be an implied undertaking to hold such material in confidence...”

21.	The judge’s direction with regard to “details held by the Police National Computer which did not come within the definition of  personal data”, was that such information would be confidential if subject to any express or implied obligation to hold it in confidence. The judge went on to remind the jury that even where what was being sought was the registration number of a car, the Crown’s case was that in addition the Appellant was obtaining the name, date of birth, address, descriptions and other personal data of the car owner or user.  If the jury accepted as a matter of fact that that was so, then again the information obtained would have been confidential.

22.	In considering this ground of appeal, we would begin by observing that the inclusion of the word “confidential” to qualify the word “information” in the particulars of offence was quite unnecessary.  Bottrill’s misconduct in a public office consisted of obtaining information from the Police National Computer at the Appellant’s request and disclosing it to the Appellant, in breach of the Police Force’s Operating Rules and in breach of section 5(6) of the Data Protection Act 1984 where the information consisted of “personal data”.  The inclusion of the word “confidential” was otiose and, in our judgment, meant no more in the context of this case than that this was information access to which by Bottrill and disclosure of which by Bottrill was restricted; the restriction being that Bottrill could only obtain information from the Police National Computer for police purposes and could only disclose such information to other police officers for police purposes.  The personal data which Bottrill extracted from the Police National Computer was confidential in this sense.  He had been acting in breach of the statute and in breach of Force Operating Rules in obtaining this data for the Appellant.  The Appellant, in effect, accepted that this was the case in the formal admission which the Appellant made at his trial which we have set out above.  Although technically, the admission of Bottrill’s plea is not an admission that the offence to which Bottrill pleaded guilty had in fact been committed by Bottrill, it was never suggested that Bottrill had not in fact committed the offence of misconduct in a public office by obtaining information from the Police National Computer at the Appellant’s request and disclosing such information to him.  The issue raised by the Appellant’s defence was whether he had aided, abetted, counselled or procured Bottrill to commit that offence.  

23.	As there was no dispute that information was obtained through Mr Bottrill which came within the definition of “personal data” in the 1984 Act, we cannot see how it can be argued on the Appellant’s behalf that his conviction on count 1 is unsafe on this first ground of appeal.  Consequently, in our judgment, that ground fails.

24.	The second ground of appeal is that the judge’s direction as to the mental element of the offence was deficient.  

25.	Before directing the jury on the law, the judge consulted both counsel with regard to the directions he should give relating to the intention that the prosecution had to establish.  During those submissions Mr George urged on the judge that he should direct the jury that they should not convict unless the Appellant knew that he was obtaining through Mr Bottrill confidential information to which he was not entitled rather than directing the jury that they might convict if they were sure that the Appellant realised that the information might well be confidential.  The judge accepted that submission in which Mr Burrows, for the prosecution, concurred as a way of resolving the issue in a manner favourable to the Appellant.  The direction that the judge gave is at page 7C of the summing-up:

“The Crown have to prove that Mr Rees aided, abetted, counselled or procured Mr Bottrill to commit the offence.  What does that mean?  They have to make you sure that he, Mr Rees, asked Mr Bottrill to obtain and disclose to him and enable him to hold information which he, Mr Rees, knew might well be confidential in this case because it might well have come from the Police National Computer.

Finally, they must prove that the defendant knew that he was not authorised to request, receive or hold such confidential information.  The defendant’s case, as I say, is that the information (a) was not held in confidence and (b) therefore he was not doing anything wrong.”

Mr George, for the Appellant, submits that the judge gave the jury no assistance as to how they were to decide this issue in the case.  The jury should have been directed that the mere fact that they themselves felt the Appellant had not been entitled to receive this information should not lead them to the conclusion that he had known that he was not entitled to receive it.  In the absence of such a direction there was a real danger that the jury concluded that, because they did not think the Appellant was entitled to this information, he could not have believed that he was entitled to it and therefore he must have known that he was not entitled to it, and consequently was guilty. Mr George refers to a question asked by the jury, namely:

 “If he believed that he was entitled to the information at the time of the offence is he then innocent of the charge?”

as evidence that the judge’s direction to the jury on this issue had not been clear.  Mr George went on to submit that the further directions given to the jury as an answer to this question was still inadequate in that they did no more repeat the earlier direction at page 7E to F of the summing-up.  

26.	In fact the further direction given by the judge to the jury in answer to that question was:

“The first question you ask is this: “ ‘Did aid, abet, counsel or procure Edward Bottrill to commit that offence’ - question: if he believed that he was entitled to the information at the time of the offence is he then innocent of the charge?

The answer is yes, because the ingredients or the elements of the offence in count 1 that I explained to you, having explained to you what confidential information meant and what aiding and abetting, counsel or procuring meant, I then told you this (and I will repeat it): the prosecution finally have to prove that the defendant, Mr Rees, knew that he was not authorised to request, receive or hold such confidential information.  I will repeat that: the prosecution must also prove that the defendant knew that he was not authorised to request, receive or hold such confidential information.”

27.	We find it difficult to conceive a clearer direction on the mental element the prosecution had to establish than the direction the judge gave.  That direction was the most favourable the Appellant could have asked for; indeed it was the direction that counsel had argued should be given.  The jury’s question made it clear that the jury understood that they were concerned with the Appellant’s knowledge and state of mind.

28.	On this aspect of the case the jury had very strong evidence indeed that the Appellant knew that he was not entitled to this information and was not entitled to ask Mr Bottrill to obtain it for him.  There was the evidence of Inspector Poole as to the Force operating rules and the training given to police officers relating  to the Force operating rules.  There was the evidence of the finding of the Holmes Manual in the Appellant’s premises.  There was the evidence of Mr Bradshaw, the local intelligence officer, that the Appellant would have been familiar with the Police National Computer in the course of his work and would have seen the screen message when he accessed the Police National Computer which was repeated on the print out from the computer.  That witness gave evidence that the Appellant would have known of the dismissal of Mr Hinds for misuse of the computer, that dismissal having appeared in the weekly Force Orders distributed to every officer in the force.  The Warwickshire Constabulary was one of the smallest police forces, having only approximately 900 officers.  There was also the evidence of Detective Superintendent Hussey that the Appellant used to be a Holmes trainer and that the Appellant would have dealt with confidential information from the Police National Computer and it was inconceivable that an experienced Detective Inspector would not be aware of the Data Protection Act requirements.  Finally, there was the evidence of PC Saville, a friend of the Appellant, that the Appellant had approached him for data from the computer and he had told the Appellant that it was not possible to provide the Appellant with such information.

29.	In the light of that evidence, we can see nothing unsafe about the Appellant’s conviction and this appeal will be dismissed.