Information Sharing
Reducing Crime & Disorder: general legal framework for information sharing
The following is a report of a presentation given by Dr Kate Paradine, National Police Training College, Bramshill at the inaugural Information Sharing Network Conference, 10 September 2001.
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Dr Paradine began by putting the legal framework into the context of national policy and explaining how it fitted in with various policy strands. The law was too often seen as a weapon or threat and looked at in isolation from the world within which it operated.
The legal framework enabled audits to be moved to strategies and, most importantly, to action in reducing crime and disorder through the sharing of information. The impact of the legal framework differed according to the particular information to be shared and the purpose of it.
The national policy context in which the law operated in this area was because of the Government emphasis on the need for partnerships to reduce crime and disorder, and the foundation on which those partnerships rested was the foundation of human rights. The relationship between citizens and the public sector in terms of the fact that the Human Rights Act gave citizens the right to expect a minimum standard of service from the public sector. Linked with that was the importance attached to consultation and empowerment, a crucial strand in reducing crime and disorder in relation to communities and how to involve them in work to reduce crime and disorder.
Information sharing was crucial in the area of problem oriented partnerships and the need to look at crime and disorder not in terms of reacting to the final impact of it, but in terms of preventing problems before they occurred, and taking a problem solving approach to reducing crime and disorder. Reassurance policing and quality of life issues were taking an increasingly high profile in the area of crime and disorder by looking at information sharing as a way to enhance the quality of life in communities generally, not just in relation to the fairly high level of crime and disorder.
The two other crucial policy strands to take note of in relation to information sharing were the issues of managing diversity; the Race Relations Amendment Act was particularly important and also managing risk which was something which the probation service had made quite an important aspect of policy development recently. The idea of managing risk was becoming some part of all of the public sector’s work; the need to balance the need to manage risk with the rights of both victims and offenders.
Finally, no national policy context would be complete without mentioning the framework of best value which was intended to be a framework of measuring and highlighting some of these other national policy strands.
Section 115 of the Crime and Disorder Act gave the power to disclose information if necessary or expedient for the purposes of the Act. Generally, the Crime and Disorder Act was associated with high profile aspects of it such as anti-social behaviour orders. The power to share information in relation to section 115 was actually much wider than just specific aspects of the Act; it was never going to be complete unless it was read in combination with section 17, which imposed a statutory duty on local and police authorities to exercise their functions with due regard to the likely effect of the exercise of those functions, and the need to do all that it reasonably could to prevent crime and disorder. This section was widely recognised as having central importance in the Crime and Disorder Act. It was a statutory duty to do all that could reasonably be done to prevent crime and disorder. It did not make sense without the information sharing aspects of those actions which were required to prevent crime and disorder.
There were three main levels of use to which section 17 could be put. Firstly it was a section which was used to direct the minds of all those working in crime and disorder reduction to the need to do all that they reasonably could to prevent crime and disorder. Secondly it might need to be used as a lever from one partner to another to force or encourage action. The lever idea did not only operate between statutory partners; it was used by local communities to encourage both the police and local authorities to take action which they might not otherwise be taking/have taken. Lastly, it could lead to a formal challenge which claimed that either a police or local authority had failed in its duty to do all that it reasonably could to prevent crime and disorder.
The definition of preventing crime and disorder when it came before the judiciary could be given a fairly wide definition that might cover issues such as community consultation and empowerment. Under sections 5 and 6 of the Crime and Disorder Act there were ways in which consultation with communities was encouraged. But the only way that crime and disorder could be prevented was if the problems of communities were known; that was where community consultation and the involvement of communities in the actions taken to prevent crime and disorder were crucial.
Section 17 might involve some challenge on the failure to consult and involve communities in action. The layout, location and maintenance of all sorts of public amenities, buildings, car parks, town centres, bus stops and telephone kiosks all impacted on crime and disorder. The way that town centres were planned was crucial in the prevention of crime and disorder. The speedy repair of vandalised and burgled property, CCTV and lighting went some way to preventing further vandalism.
Racial harassment and domestic violence were highlighted in the vast majority of audits conducted originally under the Crime and Disorder Act. Measures taken to prevent repeat victimisation were crucial in complying with section 17. Some local areas had created “wish lists” for actions that they would like to take, for instance regarding domestic violence, and none of these were acted upon. It was very important when strategies and information sharing protocols were created that everything reasonably possible was being done to prevent those categories of crime.
The issues that affected so many communities: drug dealing and perhaps lower level disorder issues such as noise and neighbour complaints, were all implicated in section 17. One of the most difficult areas in relation to section 17 was activities for socially excluded young people, those who were homeless, those who were seeking asylum in this country. These were all very pertinent issues for local communities. When section 17 was being used as a lever, there was a danger that quite powerful sections of the community would use it to prevent the development of some of these activities. Section 17 could be misused. Activities for socially excluded people, whilst being very effective crime and disorder reduction measures, also had the potential to be wrongly assumed by local communities to be initiatives which created crime.
There had not been any decided cases in relation to section 17. There had been a couple of opportunities for judges to make comment on it but they had not actually done so. One place in which it had been discussed was in regard to planning, but the planning inspectorate was not covered by section 17 and that presented some problems in relation to planning decisions. It was known from the decisions coming from the planning inspectorate that there seemed to be some evidence that they were increasingly looking at crime and disorder reduction which was core to its work. There was quite an old planning circular that looked at planning out crime, but it was quite clear that needed to be strengthened and all planners needed to see crime and disorder reduction as central to their work. Section 17 might be used to encourage that change.
The second way in which section 17 could be used to challenge either inappropriate information sharing or a lack of it, could be through a private action for damages where an individual or group of individuals claimed that they had been damaged by the failure on the part of the local or police authority to fulfil the duty under section 17. There had been many changes recently and there was some discussion, particularly in the context of policing, of a blame culture and a need always to have someone or some organisation to blame when things went wrong.
The case of Hill vs the Chief Constable of West Yorkshire was one which established what was thought to be an immunity from claims for negligence for certain aspects of the police service. Gradually that immunity had been undermined and the present position was that everyone had to be aware of the potential for claims for damages in the context of crime and disorder reduction.
Judicial review was the final way in which section 17 could be used to challenge the decisions or the process of decisions of either a local or police authority. A judge had yet to say what was expected of local and police authorities within section 17.
Linked and underlying all of those legal challenges was the Human Rights Act. It was not seen very often in the context of victims of crime, partly because of the way the media had portrayed the Act, and for a number of other complex reasons it was usually seen in the context of defendants or alleged offenders. The Human Rights Act did not prevent action against those who committed crime, and could enable action and the sharing of information in an attempt to reduce crime and disorder.
The European Convention of Human Rights was implemented by the Human Rights Act into the domestic legal system of this country. It made it possible for citizens to claim in a domestic court that their human rights had been challenged.
Articles 2, 3 and 8 were important in relation to sharing information on crime and disorder. Article 2 gave a right to life; that did not only mean that it was a right not to be killed by a state act or a police or army officer, it was also a right to have life preserved in certain circumstances by the state. Article 3 gave a right to be protected from torture and inhuman and degrading treatment, not just treatment at the hands of public actors but also by others. Article 8 gave the right to respect for private and family life
In relation to enabling the sharing of information, there were two cases which discussed those three articles that had some very important lessons for everyone in terms of positive obligations to protect victims of crime. Osman vs UK was a case of a teacher who was harassing a 14 year old pupil. The final result of the campaign of harassment was that the pupil and his father were shot. The father was killed as well as the son of the headmaster at the school the boy was attending. The claim was made by the Osman family that the police had failed to protect them against deprivation of life; they had failed to protect them under Article 2. Whilst the Osman case was not successful against the police in those particular circumstances because of the knowledge that was available to the police at the time, the court made it very clear that there would be circumstances where public bodies, including the police, would be under a positive obligation to protect life where there was a serious and immediate risk, and if that arose they could be held liable for failing to take reasonable action in order to protect life.
Article 3, the right be protected from torture and inhumane and degrading treatment, was discussed in the case of Z vs UK, which was taken against Bedfordshire County Council for a failure to protect four children from abuse and neglect at the hands of their parents.
The important issue in the case against Bedfordshire County Council was that it was held liable for failing to protect the children against a breach of their Article 3 rights, and was held liable for several hundred thousand pounds in damages. The lessons to be learned were that there were duties not only to protect Articles 2 and 3 rights but also Article 8. Whilst individuals had a right not to have their private and family life interfered with by public bodies, they also had a right to protection of their private and family life from interference by others.
What was it reasonable to expect people to do in particular circumstances? In relation to the police, it might be reasonable to expect them to take certain actions within their powers to protect, for example, victims of domestic violence against breaches of Articles 2, 3 and 8.
The Race Relations (Amendment) Act 2000 was another piece of legislation which gave individuals the right to expect certain minimum levels of service on the part of the public sector. Under this Act, which came into force this year, it was unlawful for public authorities to discriminate in any aspect of their work. It had important implications for the actions taken in relation to crime and disorder, and in addition to that was the statutory duty on public authorities to have due regard to the need to eliminate unlawful racial discrimination and promote equality. An important difference between the duties in the Crime and Disorder Act and the Race Relations (Amendment) Act was that in some circumstances the Commission for Racial Equality had powers to investigate public bodies and take enforcement action.
Particular examples of crime and disorder, such as racial harassment at football games or racial graffiti, might require special policies because of the statutory duty that existed. What it meant to everyday work was that public authorities had to consider the race equality implications of all policies and practices.
The Race Relations (Amendment) Act did have very important implications for information sharing. There were a number of pieces of legislation coming forward which had implications in terms of information sharing. The Criminal Justice and Court Services Act gave certain duties to manage risk in relation to violent and sexual offenders which had particular implications for information sharing with other agencies. The Local Government Act gave a particular power to safeguard the environmental, social and economic welfare of a particular area which enhanced and supported the section 17 duty that existed. The Criminal Justice and Police Act gave a number of new powers in relation to child curfews and alcohol related disorder which highlighted the crucial need to share information in relation to these crimes. The Proceeds of Crime Bill would also give implications in terms of the private sector and the need to share information about certain financial transactions.
In terms of using the law, section 17 and other aspects of the legislation, gave a tool with which to encourage a change of culture which meant that information should be shared in a way which had a positive impact on crime and disorder reduction. Mainstreaming the idea of crime and disorder reduction was crucial, so that at all levels of organisations the reduction of crime and sharing of information was seen as a positive strand in the work. Linked to that was the need to educate and train people at all levels to consult and involve local communities in the way that legislation encouraged, and also to share ownership of both decisions and processes. Documentation was crucial in terms of ensuring compliance with all the legislation. Problem solving and creative thinking went back to the policy framework within which all of this existed, and the need to take a problem solving approach to all crime and disorder reduction issues.
Finally, the dangers of litigation had to be recognised in terms of data protection, the Human Rights Act and the Race Relations Act, but also to see the opportunities for action that new legislation gave.
In discussion the following points were raised:
Dr Paradine said that the planning done by local authorities when considering applications for entertainment licences and drinking licence extensions was very complex. Recent analysis of some of the case law indicated that section 17 should apply to local authorities in making those decisions but it did not appear to apply to the planning inspectorate. Some clarity was needed; if decisions made at local authority level were challenged the planning inspectorate could say that it was not bound by section 17. One of the ways ahead in relation to planning had been the education of those making planning decisions, because often people did not understand why they were asked to do certain things, or what implications their work had for crime and disorder.
It was agreed that section 17 was a heavy-handed way of committing social services to engage with community safety partnerships. One of the dangers of the law being used to overcome problems with agencies was that it could undermine relationships. Agencies that presented problems included social services and the health sector as they had a different background and culture to that of policing, and crime and disorder reduction was not at the heart of their work. One way ahead was to educate social services about what the police actually did along with their partners. A new approach to reducing crime and disorder was about tackling people’s problems from a holistic point of view, and was a way ahead in terms of educating them about the opportunities for drug treatment and other ways in which the police could link individuals into services.
On the question of whether there was an obligation to make data publicly available in terms of quality of life, the danger of data overload had to be considered. Information sharing required care to ensure that only necessary information was shared with the public. In consultation, the public was asked for answers to questions but they were not provided with shared information in return. People were encouraged to believe that feedback from the consultation process indicated that their views would be acted upon. The issue of sharing information on dangerous offenders became particularly problematic when it related to sex offences.
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