David Lyons V. Stephen House, Qpm+chief Constable Of Strathclyde Police
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lord Brodie,Lord Menzies |
| Neutral Citation | [2013] CSIH 46 |
| Docket Number | A681/10 |
| Published date | 05 June 2013 |
| Date | 05 June 2013 |
| Court | Court of Session |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Eassie Lord Menzies Lord Brodie | [2013] CSIH 46 A681/10 OPINION OF THE COURT delivered by LORD BRODIE in the reclaiming motion of DAVID LYONS Pursuer and Reclaimer; against STEPHEN HOUSE, QPM, CHIEF CONSTABLE OF STRATHCLYDE POLICE Defender and Respondent: _______________ |
Alt: Maguire QC, Dawson; Simpson & Marwick
5 June 2013
Introduction
[1] The pursuer is a sole trader who runs a garage business trading as Applerow Motors. The defender is the Chief Constable of Strathclyde Police.
[2] On two occasions the defender has advised regulatory bodies that intelligence held by Strathclyde Police indicated that the pursuer was involved in serious and organised crime, including drug trafficking.
[3] The first occasion was on 17 October 2007 when a police officer acting on behalf of the defender wrote to the clerk City of Glasgow Council Licensing Committee objecting to an application, in terms of section 24 of the Civic Government (Scotland) Act 1982, by one M for the grant of a second-hand dealer's licence in respect of premises at 730 Balmore Road, Glasgow. The letter of 17 October 2007 stated that M had advised an officer of the Strathclyde Police Licensing Branch that "the business was leased for free" from the pursuer who was described as "a close associate" of M and M's father who had previously applied for a licence. The letter continued by stating inter alia, that the pursuer "is involved in serious and organised crime including the trafficking and supply of class A drugs."
[4] The second occasion was on 8 March 2010 when a police officer acting on behalf of the defender wrote to the Director of Intelligence of the Vehicle and Operator Services Agency in the following terms:
"Intelligence
4. Strathclyde Police operate the Scottish Intelligence Database (SID) which contains information and intelligence from a wide variety of sources, some of whom cannot be more fully described, which spans a considerable period of time.
...
David Lyons is documented on the Scottish Intelligence Database as being involved in Serious and Organised Crime and has many criminal associates who are involved in violence, money laundering and the acquisition and distribution of controlled drugs.
Intelligence provides that David Lyons has come to prominence through his criminal associations and an ongoing feud between rival criminal families. Current intelligence suggests that after the recent murder of a rival in the Glasgow area, David Lyons is fearful of a revenge attack which may take place at Applerow Garage. As a result of this information Strathclyde Police have increased patrols at the premises and surrounding area.
It is the opinion of Strathclyde Police that David Lyons, who is currently licensed under the Vehicle and Operator Services agency and holds an operator's licence under the Ministry of Transport, is not fit and proper persons (sic) to hold such a licence and is a danger to public safety due to his links with Serious and Organised Crime."
The pursuer's case
[5] The pursuer, while accepting that he is from a family various members of which have serious criminal records, denies that he is involved in serious organised crime. He avers that he has "led a straight life."
[6] In this action the pursuer has sued the defender for damages at common law for defamation and, by virtue of section 13 of the Data Protection Act 1998, in respect of contravention by the defender of the requirements of that Act. He seeks declarator that "any assertion to the effect that the pursuer is involved in serious and organised crime including the trafficking and supply of class A drugs is false." He also seeks interdict of the defender or others on his behalf "from representing that the pursuer is involved in serious and organised crime including the trafficking and supply of class A drugs".
[7] The pursuer's pleadings include averments to the effect that the defender had no power to process the information complained of and, separately, that processing the information was in breach of the pursuer's rights to privacy and confidentiality at common law. However, these averments are not related to any plea-in-law and nothing was made of them in argument. Mr Bovey expressly accepted on behalf of the pursuer that the defender was not acting ultra vires in communicating with the regulatory bodies. We therefore do not take these averments on powers, privacy and confidentiality to be part of the pursuer's case.
Decision by the Lord Ordinary
[8] The action was discussed on procedure roll. For reasons given in her opinion, the Lord Ordinary concluded that the pursuer had not averred a relevant case of actionable defamation. She found the pursuer's case under the Data Protection Act 1998 to be wholly misconceived. In any event, in her opinion, the Court of Session could not competently pronounce a declarator that the pursuer was not involved in criminal activity. She dismissed the action.
[9] The pursuer has reclaimed.
[10] "1.‒ Basic interpretative provisions.
(1) In this Act, unless the context otherwise requires‒
'data' means information which‒
(a) is being processed by means of equipment operating automatically in response to instructions given for that purpose,
(b) is recorded with the intention that it should be processed by means of such equipment,
(c) is recorded as part of a relevant filing system of with the intention that it should form part of a relevant filing system, [...]
(d) does not fall within paragraph (a), (b) or (c) but forms part of an accessible record as defined by section 68; [or]
[(e) is recorded information held by public authority and does not fall within any or paragraphs (a) to (d);]
'data controller' means, subject to subsection (4), a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed;
'data processor', in relation to personal data, means any person (other than an employee of the data controller) who processes the data on behalf of the data controller;
'data subject' means an individual who is the subject of personal data;
'personal data' means data which relate to a living individual who can be identified‒
(a) from those data, or
(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,
and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual;
'processing', in relation to information or data, means obtaining recording or holding the information or data or carrying out any operation or set of operations on the information or data, including‒
(a) organisation, adaptation or alteration of the information or data,
(b) retrieval, consultation or use of the information or data,
(c) disclosure of the information or data by transmission, dissemination or otherwise making available, or
(d) alignment, combinations, blocking, erasure or destruction of the information or data;
...
2. ‒ Sensitive personal data.
In this Act 'sensitive data' means personal data consisting of information as to‒
...
(g) the commission or alleged commission by him of any offence,
...
4. ‒ The data protection principles.
(1) References in this Act to the data protection principles are to the principles set out in Part I of Schedule 1.
(2) Those principles are to be interpreted in accordance with Part II of Schedule 1.
(3) Schedule 2 (which applies to all personal data) and Schedule 3 (which applies only to sensitive personal data) set out conditions applying for the purposes of the first principle; and Schedule 4 sets out cases in which the eighth principle does not apply.
(4) Subject to section 27(1), it shall be the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller.
...
7. ‒ Right of access to personal data.
(1) Subject to the following provisions of this section and to [sections 8, 9 and 9A], an individual is entitled‒
(a) to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller,
(b) if that is the case, to be given by the data controller a description of‒
(i) the personal data of which that individual is the data subject,
(ii) the purposes for which they are being or are to be processed, and
(iii) the recipients or classes of recipients to whom they are or may be disclosed,
(c) to have communicated to him in an intelligible form‒
(i) the information constituting any personal data of which that individual is the data subject, and
(ii) any information available to the data controller as to the source of those data, and
(d) where the processing by automatic means of personal data of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his credit worthiness, his reliability or his conduct, has constituted or is likely to constitute the sole basis for any decision significantly affecting him, to be informed by the data controller of the logic involved in that decision-taking.
...
(4) Where a data controller cannot comply with the request without disclosing information relating to another individual who can be identified from that information, he is not obliged to comply with the request unless‒
(a) the other individual has consented to the disclosure of the information to the person making the request, or
(b) it is reasonable in all the circumstances to comply with the request without the consent of the other individual.
(5) In subsection (4) the...
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