EW: The Data Retention and Investigatory Powers Act is inconsistent with the right to privacy and protection of personal data in the absence of a national access regime protecting those rights under the EU Charter of Fundamental Rights

The Divisional Court of the High Court has ruled that section 1 of the Data Retention and Investigatory Powers Act 2014 is inconsistent with Articles 7 and 8 of the Charter of Fundamental Rights of the European Union.

David Davis MP and Tom Watson MP, among others, challenged the validity of section 1  of the Act and the Data Retention Regulations 2014 as being contrary to Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and, or, Article 8 of the European Convention on Human Rights.

Article 7 of the Charter protects the right to respect for private and family life. This right is also covered by Article 8 of the Convention. Article 8 of the Charter provides for the right to the protection of personal data.

The Act was a response to the Digital Rights Ireland judgment. The invalidation of the Data Retention Directive put the legal foundation for requiring retention of communications data in doubt. Some communications service providers expressed the view that there was no legal foundation to keep communications data and indicated that any data retained under the 2009 Regulations would be deleted.

The Court found that legislation providing a general data retention regime for communications data infringes Article 7 and 8 of the Charter, unless the legislation is accompanied by an access regime on a national level that provides adequate protection for the rights under the respective articles:

The solution to the conundrum, in our view, and the ratio of Digital Rights Ireland, is that legislation establishing a general retention regime for communications data infringes on Article 7 and 8 of the EU Charter unless it is accompanied by an access regime (laid down at national level) which provides adequate safeguards for those rights.

The Court awarded a Declaration stating that section 1 of the Act is inconsistent with the Charter for two reasons. One, the Act does not lay down clear and precise rules providing for access to, and use of, communications data. Two, access to the data is not made dependent on a prior review by a court or an independent administrative body.

However the Court disapplied section 1 of the Act, suspending the Order until March 31st, 2016. The Order disapplying section 1 applies to the extent that it permits access to retained data in the two respects set out in the Declaration.

EW: Absconder policy inconsistent with Directions to Parole Board

The Divisional Court of the High Court has ruled the prisoner "absconder policy" is inconsistent with the Secretary of State's Directions to the Parole Board of England and Wales. 

The case challenging the policy was taken by John Gilbert. Mr. Gilbert pleaded guilty to wounding with intent to cause grievously bodily harm in April 2008. He received the maximum term of four years and six months minus the time spent on remand.

The policy was introduced by the Secretary of State in May 2014 with immediate effect. Published in August 2014, the policy was an interim amendment to the PSO 6300 Release on Temporary Licence. This came in response to three serious incidents of offences committed by prisoners on release on temporary licence in the summer of 2013, and high profile prisoner absconds in 2014.

In November 2012 the Parole Board recommended the transfer of Mr. Gilbert to open conditions. Following the recommendation Mr. Gilbert was transferred to HMP Stanford Hill prison in January 2013. His sentence plan included gradual progression to 'release on temporary licence'.

After a successful period in open conditions, including being released on temporary licence on three separate days, Mr. Gilbert failed to return to prison after missing the train on June 2nd, 2013, by 7pm. The following morning Mr. Gilbert surrendered to Eastbourne police station.

As a consequence of the policy Mr. Gilbert was ineligible for transfer to open conditions. On August 15th, 2014, Mr. Gilbert was refused a transfer to open conditions.

Rejecting the "absconder policy" as inconsistent, the Court reasoned:

It is irrational to say in two policy documents in force at the same time (a) in most cases phased release via open conditions will be necessary to test whether the prisoner can be safely released into the community but (b) if the prisoner has failed on one occasion to return from [release on temporary licence], only in exceptional circumstances will it be necessary (or "absolutely necessary") to operate a phased release via open conditions to test whether the prisoner can be safely released into the community.

The Court granted the Secretary of State permission to appeal against the judgment. However the Court rejected an application for a stay pending the outcome of an appeal.