s77 of the FoIA

Section 77 FOIA 2000 and Regulation 19 Environmental Information Regulations 2004: Legislative options for extending the time limit for prosecution

  • Background

Section 77 creates a criminal offence for a public authority, employee, officer or person subject to the direction thereof, to alter, deface, block, erase, destroy or conceal any record held to which the applicant is entitled, with the intention of preventing that disclosure.
Regulation 19 of EIRs creates an equivalent offence for environmental information requests. The remainder of this paper will refer to section 77 but the principles are equally applicable to regulation 19 offences.
Section 77(3) provides that upon summary conviction the sentencing power of the court is limited to a fine not exceeding level 5, which is currently É5,000. The absence of a statutory provision for the conviction and sentencing in the Crown Court has the effect of making s77 a summary only offence, i.e. triable only in the magistrates’ court.
By virtue of The Magistrates’ Court Act 1980, section 127 (1) a magistrates’ court may not try an accused for a summary offence unless the information was laid (prosecution commenced) within six months of the time when the offence was allegedly committed. This time limit provision does not apply to indictable (only triable in the crown court) or either-way offences (triable in the magistrates’ or crown court).
The six month time limit begins to run from the date when the offence is committed. In relation to section 77 offences these are committed on the date that the records are altered, defaced, blocked, erased, destroyed or concealed.

  • The issue for the ICO

A six month time limit to commence prosecutions is very restrictive for the ICO bearing in mind that section 77 offences, by their very nature being an offence of concealment, do not readily come to light. They are also often alleged in complex FOI cases, which may have progressed through months of correspondence and appeals, between the requestor and the authority, before an offence is suspected. This has the result that frequently a case is referred to the ICO already out of time for a prosecution or with limited time remaining for a criminal investigation to be carried out,

  • Legislative options to remedy the issue

In broad terms there are two options, both of which would require a new statutory provision:

1) Making the offence triable either way
2) Keeping the offence summary only but extending the time limit

Making the offence triable either way

Advantages:

  • There would be in effect no time limit, as long as prosecutions are brought within a reasonable time (as unreasonable delay can result in abuse of process arguments)
  • s77 would then be on a par with the majority of other offences that the ICO prosecutes (all DPA offences are triable either way apart from offences under paragraph 12 of Schedule 9, obstructing in the execution of a search warrant)
  • It would increase the sentencing powers of the court from a £5,000 fine to an unlimited fine (although in our experience the majority of cases are concluded in the Magistrates’ court, with fines under £5,000)
  • It may be difficult to gain support for increasing the seriousness of the offence from summary only to either way simply to remedy the problems with time limits, (although it could be argued that in terms of seriousness denying access to information under section 77 can be equivalent, if not more serious than some data protection offences* , which are either way, and that section 77 being summary only was always an anomaly)

*This all depends on the facts of particular cases, however the man on the street would be likely to say that a section 77 offence of data being destroyed is as serious, if not more so, than a section 17 DPA 1998 notification offence, where a notification has elapsed. The importance and status of information rights (and therefore the seriousness of them being deliberately flouted) is also reflected in being enshrined by article 10 of the Human Rights Act
1998.

  • It would allow defendants to elect crown court trial which is considerably more costly and resource intensive for all parties than a magistrates’ trial

How it could be achieved:

  • In drafting terms it is simpler than the alternative option of extending the time limit (see below)
  • Section 77(3) could be amended to reflect the wording in section 60(2) of the DPA:
    “A person guilty of an offence under this section is liable (a) on summary conviction, to a fine not exceeding the statutory maximum, or
    (b) on conviction on indictment, to a fine.”

Keeping the offence summary only but extending the time limit

Advantages:

  • It keeps the seriousness/status of the offence the same, so likely to have more support than upgrading to an either way offence
  • There are several legislative precedents for other offences that are summary only but have an extended time limit (see below)

Disadvantages:

  • We would still have to work to a time limit of 6 months (although there is a precedent for this extension period being one year, see appendix) once evidence justifying a prosecution came to the prosecutors attention but in the majority of cases this should not be a problem
  • It is the usual convention for there to be a restriction for older offences e.g. prosecution must still be brought within X years (typically 2 or 3 years) of the offence being committed, which is not the case with either way offences

How it could be achieved:

A well established example of where a statute has extended the usual six month time limit from the date of offence, which could be adopted, is section 6 of the Road Traffic Offenders Act 1988, which provides that for a schedule of road traffic offences under the Act:

“6(1) Subject to subsection (2), summary proceedings for an offence to which this section applies may be brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge.

6(2) No such proceedings must be brought by virtue of this section more than three years after the commission of the offence,”

Section 6(3) and (4) of the Road Traffic Offenders Act 1988 require the prosecutor to sign a certificate stating the date that sufficient evidence to warrant the proceedings came to his knowledge, from which date the six months starts to run.

It should be noted that the courts have construed the wording “evidence sufficient in the opinion of the prosecutor to warrant the proceedings” to mean a description of the evidence rather than a requirement that the prosecutor have formed an opinion on the evidence before time begins to run, as otherwise a prosecutor could delay the clock from running simply by not applying his mind to the case.

Also the courts have interpreted ‘prosecutor’ widely as including ‘anyone who is actively instrumental in making or prosecuting a charge” (Morgans v DPP [1999] 1 WLR 968 DC). This could include anyone investigating the offence, therefore once sufficient evidence to commence a prosecution is before the ICO Investigators, time would begin to run even though the evidence may not have yet been reviewed by the prosecuting lawyer.

There are many further examples of extension provisions in legislation, which vary in how they are drafted, both in style and in the detail as to how long the cut off period is etc, which are outlined in the appendix.

More recently drafted provisions include section 31 of the Animal Welfare Act 2006 and section 64A of the Public Health (Control of Disease) Act 1984 (inserted by paragraph 22 of Schedule 11 of the Health and Social Care Act 2008), which are drafted as follows:

“Time limits for prosecutions
(1) Notwithstanding anything in section 127(1) of the Magistrates’ Courts Act 1980, a magistrates’ court may try an information (or written charge) relating to an offence created by or under this Act if the information is laid (or the charge is issued)—
(a) before the end of the period of 3 years beginning with the date of the commission of the offence, and
(b) before the end of the period of 6 months beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to the prosecutor’s knowledge.
(2) For the purposes of subsection (l)(b)—
(a) a certificate signed by or on behalf of the prosecutor and stating the date on which such evidence came to the prosecutor’s knowledge is conclusive evidence of that fact, and
(b) a certificate stating that matter and purporting to be so signed is to be treated as so signed unless the contrary is proved.”

Offences to be prosecuted in Scotland and Northern Ireland

We will need to consider including clauses to cover prosecutions in
Scotland and Northern Ireland, as section 136 of the Criminal
Procedure (Scotland) Act 1995 and Article 19 of the Magistrates’ Courts (Northern Ireland) Order 1981 both create a time limit of six months after the contravention occurred for summary offences 2**.

*For examples see Section 174(7) of the Communications Act 2003 which refers to
Article 19 of the Magistrates’ Courts (Northern Ireland) Order 1981 and section
1 IA of the Employment Agencies Act 1973 (inserted by paragraph 5 of Schedule 7 of the Employment Relations Act 1999) refers to section 136 of the Criminal Procedure (Scotland) Act 1995.

Conclusion

Making section 77 triable either way would be the preferred option as there would be no time limit, the fine would be unlimited and it would then be on a par with data protection offences, Being either way does not necessarily mean that prosecutions would result in being routinely dealt with in the crown court with fines over É5,000, the current maximum, as our experience with data protection prosecutions js that case are usually disposed of by magistrates’ disposals, with fines under 5,000. However, by having the option of committing the case up to the crown court, it allows for the court to deal appropriately with very serious concealments, where if it was kept as summary only, the magistrates may with the more serious cases be of the view that the current level of fine is inappropriate.

Appendix 1

Further legislative examples, including variations in draftinq style:
Section 11 of the Computer Misuse Act 1990 and section 51 of the Goods Vehicles (Licensing of Operators) Act 1995 have extension of time provisions that mirror the Road Traffic Offenders Act 1988/ as set out above. Both require the prosecutor to sign a certificate of knowledge to state the date on which sufficient evidence to warrant the proceedings came to his knowledge.
Section 47 of the Vehicle Excise & Registration Act 1994 extends the time limit in terms similar to the above but provides for the certificate stating the date of knowledge to be signed by the Secretary of State or constable, rather than prosecutor.
Section 12(4A) of the Theft Act 1968 (as inserted by section 37 Vehicles (Crime) Act 2001) has the same effect as the Road Traffic Offenders Act 1988 but varies in the drafting style, as it refers to a prosecution being commenced within six months beginning with the ‘relevant day’, which is then defined as the day on which sufficient evidence to justify proceedings came to the knowledge of ‘any person responsible for deciding whether to commence any such prosecution’. This Act also requires a certificate of knowledge to be signed and restricts prosecutions after three years from when the offence is committed.
Section 20(2) of the Wildlife and Countryside Act 1981 is in similar terms to the above extensions of time but restricts prosecutions being brought after two years following the commission of the offence, rather than three years which is often the case.
Section 20A(3) of the Criminal Justice Act 1991, for the offence of making false statements as to financial circumstances, has similar effect but is more succinctly drafted providing that:
“Proceedings in respect of an offence under this section may, notwithstanding anything in section 127(1) of the 1980 Act (limitation of time), be commenced at any time within two years from the date of the commission of the offence or within six months from its discovery by the prosecutor, whichever period expires the earlier.”
Section 107(1) of the Friendly Societies Act 1992 has a longer extension period in that it provides that a prosecution under this legislation be commenced … at any time within the period of one year beginning with the date on which evidence sufficient in the opinion of the Commission to justify a prosecution for the offence, comes to his knowledge’. Section 107(2) prohibits any proceedings for an offence more than three years after the offence was committed. Again, a certificate of knowledge is required to be signed on or behalf of the Commission (section 107(3). This is the only example that I have come across so far that extends the period to one year rather than six months, which is most commonly used.