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What do we need to consider if personal information is processed by a court for law enforcement purposes?

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Does someone have a right to access personal information created by a court?

A person does not have a right to access their personal information by making a SAR if it is contained in:

  • a judicial decision; or
  • in another document created by or on behalf of a court or other judicial authority in connection with:
    • a criminal investigation; or
    • criminal proceedings, including proceedings for the sentencing of an offender.

The DPA 2018 describes this information as “relevant personal data”, and it is an exception from the right of access requirements. This means that you could automatically refuse to provide information that meets this definition.

The ICO does not regulate the processing of personal information by a person, court or tribunal acting in a judicial capacity. Such processing is overseen by other bodies with regulatory remit over those acting in a judicial capacity.

What does “by or on behalf of a court or other judicial authority” mean?

The terms “judge”, “judicial authority”, and “court” are often used interchangeably. As this exception only applies in the context of criminal proceedings, you should narrowly interpret the term “by or on behalf of a court or other judicial authority”.

The term “court or other judicial authority” includes any person or organisation acting in a judicial capacity. In general, this exception to the right of access only applies if the controller is a judge, magistrate, or other judicial authority and they are processing the information for a criminal case, including sentencing proceedings. As a general rule, this exception applies to judges or judicial authorities presiding over criminal cases or appeals, either alone or as part of a panel. However, it may also apply to independent judicial commissioners, if they are performing a judicial function in respect of a criminal matter. It may also include sheriffs and summary sheriffs presiding over criminal cases in Scotland.

In England, Wales, and Northern Ireland, this includes judges or judicial authorities presiding over:

  • Magistrates’ Courts;
  • Crown Courts;
  • the Court of Appeal;
  • the County Court (in Northern Ireland only);
  • the High Court; and
  • the UK Supreme Court.

In Scotland, this includes:

  • the High Court of Justiciary;
  • Sheriff Courts hearing a criminal matter;
  • Justice of the Peace Courts; and
  • Sheriff Appeal Courts.

It does not apply to organisations with powers to issue out of court disposals. For example, police or local authorities issuing fines, cautions or conditional discharges.

This exception does not just apply to documents created by a judge, for example notes made by the judge in the course of a criminal trial. It can also cover any documents commissioned by the judge or within the exclusive jurisdiction of the court. This includes documents created by non-judicial organisations on behalf of the court.

Example

The judge asks the Probation Service to prepare a pre-sentence report on its behalf. The judge will then use the report to determine an appropriate sentence for the convicted offender.

In these circumstances, the Probation Service is acting on behalf of the judge. The report has been commissioned by the judge, and has therefore been prepared “by or on behalf of the court”.

The provision limits the circumstances when you can use the exception. It generally only applies to judicial functions (ie matters within the exclusive jurisdiction), and under the express instruction of the court.

The term “on behalf of” does not mean the same as processor in this context. If a non-judicial organisation (eg the Probation Service) acts on behalf of the court or other judicial authority, it is carrying out a delegated activity to enable the judge to carry out their judicial function (eg where it prepares a report on behalf of the judge). However, the non-judicial organisation is likely to be acting as a controller in its own right, in relation to the information it processes about the person. If it has prepared a document on behalf of the court, that document belongs to the court, and only the court may authorise its disclosure.

While the court service often acts as a processor for the judge, this exception does not apply to the administrative functions of the court, or to documents created by court staff. This is because they are not judicial functions.

What is a “judicial decision”?

In this context the term “judicial decision” means the judgment of a court in written form. However, it is not restricted to the judgment itself. It may cover any ruling or decision made by the court in the course of, or at the end of, proceedings, including:

  • decisions about sentencing; or
  • applications made by either prosecution or defence.

It may also include any notes, or early drafts prepared by the judge or magistrate for any of these purposes. If someone cannot make a SAR for their personal information contained in the judicial decision, where relevant, the judgment itself may be published at the conclusion of proceedings (eg following an appeal).

What information is created by or on behalf of a court for a criminal investigation?

The criminal court or other judicial authority is generally an independent decision-maker. Therefore, it does not conduct criminal investigations.

However in some circumstances, other organisations require specific approval from the court to conduct certain types of investigations. For example, judicial approval is often needed if police, or a local authority, want to conduct intrusive covert surveillance to investigate a crime.

The following are deemed to be relevant personal information:

  • any decision made by the court in such cases; or
  • any documents created by the judge in the course of hearing such matters (eg an application for a search warrant).

Therefore, the information does not need to be disclosed as a result of a SAR. However, this information can only be an exception from the right of access for a certain period of time. For example, until the warrant has been executed.

Example

The police are investigating a drug cartel, and suspect the involvement of a number of people. However, they do not have enough evidence to arrest anyone.

In order to investigate the crime, they want to deploy a specially trained officer to plant eavesdropping devices at the residential homes and private vehicles of the identified suspects.

However, the police require judicial approval under the relevant laws to carry out these operations. They make an application to the appropriate court. Any documents containing personal information that the judge creates in the course of hearing these proceedings is relevant personal information and does not have to be disclosed if it is subject to a SAR. However, any personal information created by the police, and lodged with the court, or used by the judge in reaching a decision, is not covered by the exception.

The DPA 2018 does not specify that this exception to the right of access only applies in the context of certain legislation. However, it is likely to be relevant if you make applications to a court to obtain judicial approval for carrying out surveillance or monitoring. For example under:

  • the Regulation of Investigatory Powers Act 2000 (RIPA);
  • the Regulation of Investigatory Powers (Scotland) Act 2000 (RIP(S)A 2000);
  • the Protection of Freedoms Act 2012; or
  • for search warrants under the Police and Criminal Evidence Act 1984, the Police and Criminal Evidence (NI) Order 1989, or the Police, Public Order and Criminal Justice (Scotland) Act 2006.

What information is created by or on behalf of a court for criminal proceedings?

Any documents created by or on behalf of the court or other judicial authority may be exceptions from the right of access requirements. This includes those created either before, during or after the criminal proceedings. However, some information may only be excepted for a certain period of time. There may also be alternative routes for obtaining access to the information.

Therefore, you are not required to disclose records made by the court or on its behalf in the course of criminal proceedings, in order to comply with a SAR. This may include judges’ notes or documents prepared in the course of a trial. For example, if the defence makes an application for some evidence to be declared inadmissible, on the basis it is not relevant to the criminal case.

Example

Counsel for the defence is acting for a person charged with possession of cannabis with intent to supply. The prosecution wants to submit evidence that the defendant has previous convictions for burglary and common assault.

The defence counsel makes an application to the court to have this evidence excluded on the basis it is irrelevant and prejudicial to the person’s defence.

Any notes or other documents created by or on behalf of the court while hearing the applications made by both prosecution and defence, or in reaching its final decision, are not disclosable further to a SAR.

The exception can also cover documents commissioned by the judicial authority and created by a non-judicial organisation on behalf of the judge. This includes circumstances where a court is required by law to obtain a specific document, or the judge has exercised their discretion and orders that such a document is prepared. For example, a pre-sentence report prepared by a probation officer.

Example

In making a decision about sentencing someone who was found guilty by a jury of dangerous driving, the court commissions the probation officer to prepare a pre-sentence report on its behalf. The pre-sentence report will assist the court in determining the most suitable sentence for the defendant.

In advance of the sentencing proceedings, the person makes a SAR to the court office for their pre-sentence report. However, the court office refuses to provide the information under a SAR as it is excepted from the right of access requirements. However, it is able to provide them  with a copy under other legislation.

Access to court documents is generally covered by different rules. So even if information may not be disclosed under a SAR, there will usually be another way for someone to access the information.

For example, the defendant may be able to access their personal information under legislation that governs the disclosure of information in criminal proceedings. In England, Wales, and Northern Ireland, this is the Criminal Procedure and Investigations Act 1996. In Scotland, this is the Criminal Justice and Licensing (Scotland) Act 2010.

The personal information used to inform the document is potentially disclosable under a SAR, even if the report is not.

Example

A person is aware that a probation officer is preparing a pre-sentence report about them, in advance of sentencing proceedings. They make a SAR to the Probation Service, asking it to provide them with access to their personal information.

The Probation Service is processing information about the person that it will use to prepare the pre-sentence report. As the judge has commissioned the report, this means the report itself contains relevant personal information and is therefore excepted from the right of access requirements. However, the information used by the Probation Service to inform the report is potentially disclosable under the SAR, even though the report itself is not. Although the report may not be provided in response to the SAR, the person is entitled to see a copy of the report in the course of the proceedings.

What does “relating to” mean?

You should interpret the term “relating to” broadly. It is generally used to refer to information about, or linked to the proceedings. It does not just include admissible evidence, or information relevant to the outcome of the case. It can apply to most information created by, or on behalf of, a court in the course of the proceedings. This includes information that is not really relevant.

Example

During a Crown Court criminal trial, the judge makes a note of the names of prosecution and defence counsel, instructing solicitors, defendant, witnesses, the complainant, and other people present.

The judge also notes that the defence counsel is not wearing appropriate court dress for Crown Court proceedings and reprimands them, before making an adjournment.

The defence counsel makes a SAR for a copy of the judge’s notes. However, the notes were made during the course of criminal proceedings. Therefore, the court can rely on the exception and refuse to disclose the note.

What does “for the purpose of executing a criminal penalty” mean?

The term “for the purpose of executing a criminal penalty” is not specifically defined, but you should interpret it in the general context and meaning of sections 43(3) and (4) of the DPA 2018. Since the exception typically only applies to judges or magistrates who process information in the course of a criminal trial, it generally means any sentence handed down by the court. For example, documents created by or on behalf of a court in issuing a discharge, fine, community sentence, or custodial sentence. It may also apply to courts with powers to hear appeals, for example about the length of a sentence.

It does not apply to other organisations with powers to issue out of court disposals, such as fines or cautions. Any documents created by these authorities for these purposes are potentially disclosable under a SAR.

Does the exception cover documents filed or placed in the custody of the court?

No. This exception does not cover documents filed or placed in the custody of the court.

In a criminal trial, the prosecution and defence produce and test evidence, by examining and cross-examining witnesses in order to make their case to the court. Any documents or other evidence they submit to the court is for the purpose of advancing their case. For example, witness statements, medical or forensic reports, or skeleton arguments. Although the legal representatives are duty bound not to mislead the court, they are not carrying out any judicial functions.

However, any notes or documents created by the judge during the course of the criminal proceedings will be excepted from the right of access provisions.

Does the exception apply if the court has shared the information with another organisation?

It depends. This exception does not usually apply to information the court or other judicial authority has shared with another organisation, or the parties to the case. The person may make a SAR to the organisations that received copies of the information, unless the judge disclosed it in confidence or caveated the disclosure with certain conditions. If so, you must take account of any court order or specific judicial instructions about the information.

Is this exception time-bound?

There is nothing in the legislation to suggest that the exception only applies until the criminal proceedings have concluded. It depends on the circumstances and the nature of the information.

For example, information may be excepted from the right of access in the following circumstances:

  • until it has been disclosed under statutory or common law procedures;
  • during the course of proceedings; or
  • at the conclusion of proceedings (eg the pre-sentence report, and the judicial decision).

However, it is likely that certain information will be excepted from the right of access indefinitely, for example judges’ notes.

Further reading – ICO guidance