Kerry Underwood

DATA PROTECTION AND LEGAL PROCEEDINGS: IMPORTANT COURT OF APPEAL DECISION

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Underwoods Solicitors specialize in Data Protection issues and were the solicitors in the Cambridge Analytica case.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Johnson v Secretary of State for the Home Department [2020] EWCA Civ 1032

the Court of Appeal was dealing with five issues concerning the application of the Data Protection Act 2018, and the General Data Protection Regulations, in the context of the lawfulness of the transfer of data from the Home Office in the United Kingdom to the British High Commission in Jamaica for the purposes of an out of country appeal, in circumstances where the appellant, the subject of the data, had refused to consent to the transfer of the data.

The appeal was from a decision of the Upper Tribunal (Immigration and Asylum Chamber) (Mr Justice Lane, President; Upper Tribunal Judge Wikeley; and Upper Tribunal Judge O’Connor) dated 12 March 2019. The Upper Tribunal dismissed an appeal from the decision of the First Tier Tribunal (“FTT”) (Judge Clements President; Designated FTT Judge McCarthy; and FTT Judge Carter) which had heard on 17 July 2018 an appeal by the appellant against the decision of the respondent Secretary of State to refuse his human rights claim.

When the appeal was heard the appellant was at the High Commission in Kingston, Jamaica, and the FTT was sitting in Birmingham, UK. They were linked by video-link. The appellant gave evidence by video-link. The appellant did not object to the fact that the proceedings were by video-link (and this appeal, heard under restrictions imposed by the COVID-19 pandemic, was heard remotely by video-link) but objected to the fact that giving live evidence from Jamaica involved a breach of both EU and domestic data protection laws. The appellant also contended that he was the victim of unlawful discrimination.

It is not necessary to recite the facts of the case for the purposes of the data protection issues, but paragraphs 5 to 13 of the judgment show an extraordinary litany of the failure to deport the appellant who had been in the United Kingdom illegally since 26 June 2002 and committed a number of serious offences.

 

Issue One

Whether the Appellant Could Object to The Processing of His Sensitive Personal Data

Article 21 of the GDPR sets out the right to object to the processing of personal data. The data subject has the right to object and the controller shall no longer process the data “unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims”

Here the Court of Appeal held that the proceedings in the First Tier Tribunal were covered by the words “the establishment, exercise or defence of legal claims”.

Consequently, the appellant had no right to object to the processing of his data for the purposes of hearing the appeal.

Article 3 of the Regulations allows Member States to restrict Article 21 rights so long as the restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to safeguard, amongst other things, the protection of judicial independence and judicial proceedings and the enforcement of civil claims.

The relevant restrictions are set out in the Data Protection Act 2018 at Section 15 and Schedule 2.

Here the Court of Appeal said:

 

“45. Paragraph 5 of schedule 2 of the DPA 2018 is headed “information required to be disclosed by law etc or in connection with legal proceedings”. Paragraph 5(3) provides that the “the listed GDPR provisions do not apply to personal data where disclosure of data- (a) is necessary for the purpose of, or in connection with, legal proceedings … (c) is otherwise necessary for the purposes of establishing, exercising or defending legal rights” to the extent that the application of those provisions would prevent the controller from making disclosure. In my judgment the transfer and disclosure of the data was necessary for the legal proceedings, being the appeal to the FTT. Further the transfer and disclosure of the data in the bundle was necessary for the purpose of establishing the appellant’s human rights claim and for the respondent’s defence of that claim.”

“48. Further paragraph 14(3) of schedule 2 provides “as regards personal data … the listed GDPR provisions do not apply to the extent that the application of those provisions would be likely to prejudice … judicial proceedings”. In my judgment preventing the hearing of the appeal would prejudice judicial proceedings, and the restriction of the right to object is necessary and proportionate for the same reasons. Therefore, in my judgment, the appellant is not entitled to object to the processing of his data in the use of video link, and by transferring a bundle to the British High Commission.”

 

Issue Two

The Arrangement for Erasure of Personal Data

Article 17 of the GDPR provides a right to erasure of personal data, which is sometimes known as the right to be forgotten.

There must be proper protection of personal data, see generally the discussion at paragraph 122 of C-2013/15

Tele2 Sverige AB v Post-och telestyrelsen [2017] QB 771,

in the context of data retained by providers of electronic communications services.

In this case there were assurances that the data which was transferred to the British High Commission in Kingston, Jamaica would be destroyed after seven days.

The FTT considered these assurances and found them to be reliable. The Upper Tribunal noted that there was no serious challenge to these findings by the FTT.

The Court of Appeal could see no basis for finding that there is any infringement of the appellant’s rights to erasure. It appears from the evidence before the FTT that there was proper protection of the appellant’s data.

 

Issue Three

Whether the Appellant Could Object to The Transfer of His Personal Data to Jamaica

The Court of Appeal followed the example of the First Tier Tribunal and Upper Tribunal in leaving open the question of whether transfer of data to a British High Commission involved transfer to another country, the argument being that a High Commission is inviolable and protected by public international law and treaties and is not part of another country.

No decision was necessary on that point in this case as Article 49(e) of the Regulations allows transfer without consent if the transfer is necessary for the establishment, exercise or defence of legal claims, and here the Court of Appeal found that it was.

In

Routier and another v HMRC [2019] UKSC 43

the Supreme Court considered the issue of whether Jersey is a third country for the purposes of directly applicable provisions of European Union law dealing with the free movement of capital.

The Supreme Court decided that the question whether a country is a “third country” is context-specific and will depend on whether, under the relevant Treaty of Accession, the relevant provisions of EU law apply to that territory.

Here the relevant Treaty of Accession provided that provisions of EU law would not apply generally in Jersey.

Accordingly, Jersey was to be regarded as a “third country”.

 

Issue Four

Whether There Was Impermissible Discrimination Against the Appellant

Here the Court of Appeal found that as the appellant was not a European Economic Area national he was not in a similar position to the comparators on whom he sought to rely, that is EEA nationals who were allowed to take advantage of the regulations.

The European Union does not protect non-EU nationals against racial discriminations; indeed the whole basis of the European Union is that people of certain races and nationalities have advantages over and above other nationals, something not regularly picked up in debate as to whether the United Kingdom should, or should not, be in the European Union.

 

Issue Five

Whether There Was an Infringement of The Appellant’s Human Rights

On the facts, the Court of Appeal upheld the decision of the lower tribunals that the procedure and the result in this case were fair.

You might think that unsurprising if you have read Paragraphs 5 to 13.

In paragraphs 59 and 60 of the judgment the Court of Appeal dealt with other matters, and the inevitable tension between the deportee, the subject of the data transfer, and the controller of the data, the Secretary of State for the Home Department, who had deported him.

“59. For the reasons set out above in my judgment the FTT and the Home Office were entitled to transfer a bundle containing the appellant’s personal data to the British High Commission in Jamaica for the purpose of hearing the appellant’s out of country appeal. I note that the FTT specifically recorded in paragraph 146 of their judgment that they understood the appellant’s reluctance to trust or co-operate with the respondent, given that the appellant had been deported. It is obvious that in such circumstances the appellant is unlikely to be well-disposed to the respondent. The FTT also went on to find, in the circumstances of this particular appeal, that the appellant had good reason to object to the processing of his personal data. I say nothing more of the appellant’s situation in the light of that finding of fact by the FTT.

60. However even if there had been no lawful basis, in the absence of specific consent from an appellant, to transfer a bundle for the purposes of hearing an out of country appeal, it should not be thought that the inevitable remedy will be an adjournment of the appeal so that the appellant may apply for leave to enter the UK to take part in the appeal in person. This is because even if the appeal is heard in the UK, it will involve the processing of the appellant’s data. If an appellant objects to the processing of his data for the purposes of his appeal overseas it would be difficult to see why the appellant should not object to the processing of his data in the UK. In these circumstances it is not immediately apparent what would therefore be gained by adjourning the appeal so that the appellant could return to the UK. Further if an appellant objects to the processing of his data for the purposes of frustrating the appeal hearing and there is no lawful basis by which the appeal may otherwise be heard using the appellant’s data, the FTT may consider that the appellant is deliberately frustrating and therefore abusing the appeal process. The FTT may in those circumstances consider whether to continue with the hearing, making it as fair as the appellant permits it to be.”

 

Comment

A very useful and thorough examination of Data Protection law in the context of legal proceedings, and in my experience few lawyers realise that, for all intents and purposes, legal proceedings are exempt from the provisions of the Data Protection Act 2018 and the General Data Protection Regulations.

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