EU Data Protection

'Fundamentally Off Balance: European Union Data Protection Law and Media Expression' (University of Cambridge Faculty of Law Research Paper No. 42/2014) by David Erdos argues

The European Data Protection Directive 95/46/EC requires all European Economic Area (EEA) jurisdictions to provide an equivalent regime protecting the privacy and other fundamental rights and freedoms of natural persons in relation to personal data processing, whilst also shielding media expression from the default substantive requirements as necessary to ensure a balance between fundamental rights. Through a comprehensive coding of the derogations set out in each jurisdiction’s data protection laws, this paper provides the first systematic analysis whether this has in fact been achieved. It is demonstrated that there is a total lack of even minimal harmonization in this area, with many laws providing for patently unbalanced results especially as regards the publication of sensitive information, including criminal convictions and political opinion, and the collection of information without notice direct from the data subject. This reality radically undermines European data protection’s twin purposes of ensuring the free flow of personal data and protecting fundamental rights, an outcome which remains unaddressed by the current proposed new Data Protection Regulation. Practical suggestions are made to ameliorate these troubling inconsistencies within the current process of reform.

Security Creep in the UK?

The UK Independent Reviewer of Terrorism Legislation - a counterpart of Australia's INSLM - has released his annual report [PDF] on the operation of the Terrorism Act 2000 and Terrorism Act 2006.

The 134 page report provides a point of reference in considering Australia's national security Bill noted here. It highlights concerns regarding regulatory creep and the potential to inappropriately cover legitimate media or other activity.

The report states that

Public-facing independent review is of particular benefit where potential conflicts between state powers and civil liberties are acute, but information is tightly rationed. The function of the Independent Reviewer, as it was explained when reviews were first placed on an annual basis, is to “look at the use made of the statutory powers relating to terrorism”, and “consider whether, for example, any change in the pattern of their use needed to be drawn to the attention of Parliament”. For more than 35 years, successive Independent Reviewers have used their reports to ask whether special powers continue to be necessary for fighting terrorism, and to make recommendations for reform.

The essence of independent review lies in the combination of three concepts not often seen together: complete independence from Government; unrestricted access to classified documents and national security personnel; and a statutory obligation on Government promptly to lay the Independent Reviewer’s reports before Parliament. Successive Independent Reviewers have aimed neither to torment the Government nor to defend it. The purpose of our reports has been, rather, to inform – so far as is possible within the necessary constraints of secrecy – the public and parliamentary debate over anti-terrorism powers in the UK.

My three previous annual reports into the Terrorism Acts, shorn of their annexes, occupied more than 370 pages of text. I sought in each of them to explain the operation of the Acts from first principles and on the basis of first-hand observation. I attempted also to avoid repetition – an increasingly difficult task.

Those reports continue to serve as what I hope is a useful introduction to the scheme and current operation of the Terrorism Acts. They describe the changes – many of them in a liberalising direction – that characterised the first three years of the Parliament, and make 33 further recommendations. Because the need or otherwise for terrorism laws can only be judged against some knowledge of the threat, last year’s report also contains a thorough account of the terrorist threat to the UK and its nationals, closely informed by classified materials and with particular reference to the period 2010-2013.

As the 2010-2015 Parliament draws to a close and my second three-year mandate begins, I have opted this year for a different approach. Students seeking a comprehensive account of the Terrorism Acts and how they function are referred to my previous reports. My aim has been to bring the reader up to date with the year’s developments, to highlight two particular issues (the definition of terrorism and the role of the Independent Reviewer), and to refresh and recall some past recommendations. By taking this course I hope to discharge my statutory responsibility to review the Acts as a whole, while keeping the report to a manageable size.

Statistics

Statistics on the operation of the Terrorism Acts are to be found in three principal publications:

a) The Home Office’s annual and quarterly releases, which report on the operation of police powers under TA 2000 and TA 2006 in Great Britain.

b) The bulletin produced for the same purpose by the Northern Ireland Office [NIO]; and

c) The Police Recorded Security Situation Statistics, published by the Police Service of Northern Ireland [PSNI] on an annual basis, with monthly updates.

As noted above, this year has seen a significant improvement in relation to Home Office statistics. The most comprehensive annual figures have previously been published only on a year-to-March basis, which did not mesh well with my statutory obligation to report on a calendar year basis. For the first time in 2014, the figures published in June now give the same degree of detail for the previous calendar year. In this report, a wider range of statistics has thus been given on a calendar year basis.

Work is in progress which should eventually lead to the publication of data regarding warrants for further detention and refusals of access to solicitors in Great Britain, as I have recommended.

On a less happy note, ACPO (citing significant implications in terms of training and information technology) has not yet endorsed the collection of ethnicity data based on the 2011 Census categories.

Independent Reviewer Working methods

Like my predecessors, I believe that effective review requires the perusal of secret and unrestricted material from the civil service, intelligence agencies and the police; interviews with key personnel; and time spent observing, among other things, police procedures and operational meetings concerning executive measures such as proscription. For confidential reading and interviews, I am provided with a room in the Home Office which I use for about a day a week. My diary is kept by my clerks in Chambers, which remains my principal base and from which I continue to practise at the Bar.

I do not hold formal evidence sessions, but benefit from large numbers of informal meetings and conversations. My interlocutors range from senior judges, intelligence chiefs, civil servants, watchdogs, prosecutors and police officers of all ranks to people who have been stopped at ports, arrested on suspicion of terrorism, imprisoned, placed in immigration detention or subjected to asset freezes, control orders and similar measures. I communicate with NGOs, academics, human rights organisations and lawyers, both in person and via material that they share on twitter. I listen to mosque and community groups, forensic medical examiners and Prevent co-ordinators; and address security conferences and (in my own time) universities and schools. I attend, and contribute to, the training of police and independent custody visitors. When requested, I brief journalists by referring them to my own reports or other opensource materials, and give occasional interviews to mainstream and minority media outlets in the interests of informing the public debate. ...

 The reviewer comments that

The Independent Reviewer of Terrorism Legislation has the potential to influence the evolution of anti-terrorism law and practice, both directly by making recommendations to the authorities and more indirectly through Parliament and the courts. I have recently attempted to explain some of the ways in which this may happen in practice.

Nonetheless I believe that the time has come to look broadly at the functions of the Independent Reviewer, to see whether they could be directed in a more effective manner than the current statutory regime allows. I have shared my thoughts with the Government, which very recently made a proposal of its own.

He goes on to summarize recent developments as follows -

In 2013 (and to date) the official assessment of the threat to the UK: o from international terrorism was substantial o from Northern Ireland-related terrorism was severe in Northern Ireland and moderate in Great Britain o from far-right and domestic extremist groups was low (Chapter 2).

Two cases argued in 2013 (Gul and Miranda) highlighted the extraordinarily broad definition of terrorism under UK law, and the heavy reliance that is placed on the wise exercise of discretions by Ministers, prosecutors and police (Chapter 4).

Two new organisations were proscribed in 2013, and two namechange orders made. Procedures for deproscription remain unsatisfactory (Chapter 5).

The first authorisation was made (in Northern Ireland, and in unusual circumstances) for use of the TA 2000 section 47A suspicionless stop and search power. Fewer people were stopped under the TA 2000 section 43 reasonable suspicion power, at least in London and in Northern Ireland (Chapter 6).

The decline in the use of TA 2000 Schedule 7 port powers continued, and the conditions for its use were tightened by statute. Further aspects of the power need attention, and may receive it in cases pending before a number of senior courts (Chapter 7).

Arrests and detentions under TA 2000 were roughly in line with practice in recent years. The charging rate fell in Northern Ireland. The European Court of Human Rights is to revisit issues including the non-availability of police bail, the covert surveillance of detained persons and the procedure for extending detention (Chapter 8).

England and Wales in particular saw a high conviction rate, with a number of guilty pleas to significant plots. Apparent differences in sentencing policy, and difficulties said to be caused by UK antiterrorism law for the delivery of humanitarian and peacebuilding efforts by international NGOs, are topics worthy of further consideration.

In discussing the role of the reviewer the report states

In a healthy parliamentary democracy it is Parliament and the courts which should be primarily responsible for reviewing the operation of the law.

More is however required in the national security field, where potential conflicts between state power and civil liberties are acute, and yet information is tightly rationed. The courts are confined to issues of lawfulness and to the cases that are brought to them, while few parliamentarians will be privy to the national security information that could enable them to make a fully-informed judgement on matters of policy.

In those circumstances, there is a place for respected independent persons who see the classified information to which Ministers, police and others are privy, and report openly on the operation of the law. That place is occupied in the field of intelligence supervision by the Intelligence Commissioners, and in the field of counter-terrorism law by the Independent Reviewer of Terrorism Legislation. Successive Independent Reviewers have for over 35 years influenced policy and the operation of the laws within their remit, both directly (by formal or informal recommendations) or via parliamentary and court processes. They have also been a source of reassurance to a wary public.

Topics for debate

It is generally acknowledged that the office of Independent Reviewer is a useful one. But it does not follow that the current system, as it has rather haphazardly developed over the years, is optimal. The following topics require consideration:

a) Status of the Independent Reviewer

b) Scope and frequency of independent review

c) Powers and functions of the Independent Reviewer. My thoughts on each of those topics are set out below.

Status of the Independent Reviewer

It has been suggested at various times since 1984 that the Independent Reviewer should be either a committee of persons with different expertise or at least an individual working full-time. As his workload rose after the 7/7 attacks, Lord Carlile was offered (and declined) the opportunity to do the job on a full-time basis.

My own preference is that the Independent Reviewer should continue to be an individual operating on a part-time basis, albeit with additional support. I would make the following points:

a) All four holders of the post since 1986 have been QCs, and whilst that could not be described as an essential requirement, it is an indicator of the core qualities that have (I would say rightly) been sought in the past. Selfemployed lawyers of the best quality may be attracted by a part-time post; but they are most unlikely to leave their profession for a full-time appointment of several years’ duration. Some might be tempted by a place on a committee or quango; but without sole responsibility for its output, there is a strong risk that they will focus their efforts elsewhere and leave much of the work to be done by the secretariat or by others.

b) A single occupant of the post has the chance to build personal relations with parliamentarians, media and others; and is accountable for every word written or spoken. This drives up the quality of the work, and lends immediacy and recognition to a post which could be faceless if performed by a committee.

c) The particular value of the Reviewer’s post comes from the remarkable degree of access that trusted individuals have since 1978 been given to secret Government papers and discussions. If the work were to be done by a committee, the same access would have to be given to each of its members, backed by watertight statutory guarantees and full institutional cooperation of agencies. Should either of these not be forthcoming, the effectiveness of review could be severely diminished.

d) Continued participation in professional life is the surest guarantee of independence. A Reviewer whose livelihood depended on re-appointment (or on appointment to another post within the gift of Ministers) would be difficult to describe as fully independent.

I therefore recommend no change to the status of the Independent Reviewer. If further capacity is required, it should be provided by the services of a security cleared assistant or junior, rather than by making the post full-time or replacing it by a committee.

I must record however that on 15 July 2014, after this Report had been submitted and very shortly before it went to press, the Government proposed that the Independent Reviewer be replaced by a committee, to be known as the Independent Privacy and Civil Liberties Board [IPCLB]. My rather equivocal thoughts on that proposal were published the following day on my website. In short, such a Board if properly constituted could bring advantages: but the wrong decisions could substantially diminish the value that is offered by the current arrangements, particularly if there were any reluctance to share classified information with a larger and more varied group. If the proposal is progressed, I would suggest that it requires the most careful scrutiny.

I recommend that the Government’s proposal to replace the Independent Reviewer of Terrorism Legislation by an Independent Privacy and Civil Liberties Board be subject to the widest possible consultation, including with the parliamentary Committees which are among the principal users of the Independent Reviewer’s reports.

Scope and frequency of independent review - Current functions

The three principal statutory functions of the Independent Reviewer are to review the operation on an annual basis of TPIMA 2011, the Terrorism Acts and TAFA 2010. Those three annual reports are substantial documents, time-consuming to produce and normally published in March, July and December. The assetfreezing function was new in 2011;  and the power to visit TA 2000 detainees nationwide with a view to considering whether relevant requirements had been complied with came into force in August 2012.

One-off reports may also be commissioned by the Home Secretary. Some of these have been major undertakings, notably Lord Carlile’s 2007 report on the definition of terrorism and my own pending report on deportation with assurances, due by the end of 2014.

It is well established that the Independent Reviewer may conduct reviews of his own initiative. Generally these have been snapshot reports into specific police operations (Operation Pathway 2009; Operation Gird 2011). It is conceivable that the Independent Reviewer might choose to review distinct policy areas, but the limits of this own-initiative power have not so far been tested.

The Independent Reviewer also needs from time to time to be acquainted with other topical subjects. For example, significant time in 2011-12 was occupied by the “secret evidence” proposals which led to the Justice and Security Act 2013, a debate to which I contributed at the invitation first of the Cabinet Office and then in repeated written and oral evidence to the JCHR. Appearances before parliamentary committees and media interviews tend to range widely, making it prudent to acquire at least basic knowledge of subjects not directly with the Independent Reviewer’s remit, such as the Prevent programme and issues relating to surveillance.

Even without the additional functions mooted below, the commitment of time is currently running at some 15 days per month: close to the limit of what can be managed within the constraints even of a much slimmed-down legal practice.

Suggested additional functions

Some additional functions are contingent on future developments. For example, the Independent Reviewer will have to report (or commission a report) on any person who is detained for more than 14 days, should the draft Bill permitting this ever be passed into law.

Further functions are suggested from time to time. In recent months:

a) Provision has been made in the Immigration Act 2014 for the periodic review of the new power to deprive naturalised British citizens of their citizenship, even when to do so would render them stateless. The Security Minister stated that “it may be appropriate to appoint the Independent Reviewer to take on this task”, so long as it was “not detrimental to his capacity to meet his existing important statutory reviews”.

b) The HASC recommended, also in May 2014, that the Independent Reviewer should conduct two further reviews, of: a. the policy of withdrawing passport facilities pursuant to the royal prerogative; and of b. the abuse of charitable status to support terrorist actions. The Independent Reviewer has also been suggested, including by members of the JCHR, as an appropriate person to conduct the 5-year review of closed material procedures that is provided for by the Justice and Security Act 2013.

c) The Home Secretary announced in Parliament on 10 July 2014 that the Independent Reviewer had been asked to conduct, by May 2015, a report into the interception and communications data powers that are needed, and the way in which those powers and capabilities are regulated. She undertook that he would have the necessary resources and support for this task.

Omissions from the scope of independent review

The intention of independent review was always that it should extend to all antiterrorism laws. That was the case from the beginning in 1977 until 2001.

As laws have proliferated since that date, significant omissions from the statutory remit have arisen. These include, in particular, the Anti-Terrorism Crime and Security Act 2001 and the Counter-Terrorism Act 2008, now largely in force. There is no regular review of the Prevent programme, though Lord Carlile was invited to review it in 2010. Nor (save when invited to do so, as in the case of deportation with assurances) does the Independent Reviewer look at immigration law as an aspect of counter-terrorism policy.

Somewhat patchy coverage has resulted. Thus, for example:

a) Terrorist asset-freezing and sanctions must be reviewed annually, to the extent that they fall within TAFA 2010: but there is no coverage of the regimes in Part II of ATCSA 2001, the Regulations which implement UNSCR 1267 or part 5 and Schedule 7 of the Counter-Terrorism Act 2008. An overall appraisal of the Government’s approach to terrorist financing is therefore not possible, at least within the constraints of the Independent Reviewer’s statutory powers, let alone a broader review such as that recommended by the HASC concerning the misuse of charitable status.

b) TPIMs are subject to annual review, whereas measures liable to have some similar effects – notably, the use of the royal prerogative to withdraw passport facilities – are not.

c) There is no review at all of such important matters as post-charge questioning, notification requirements and the use of Diplock courts. I do not suggest that matters which are currently unreviewed would require review on an annual basis. It is anomalous however that they are not reviewed at all.

The Home Secretary stated in March 2013, responding to my report of June 2012, that “the scope of the Independent Reviewer’s responsibilities should keep pace with changes to primary legislation”, and accepted in principle my recommendation that the 2001 and 2008 Acts “should be examined with a view to extending your statutory functions to include the review of relevant sections of those Acts”. This was to be considered as part of the post-legislative scrutiny of the 2008 Act, which is now complete.

This principle was given effect when the Government announced its intention of establishing an IPCLB, as noted below.

The problem

The problem, in summary, is threefold.

First, significant parts of the law as it relates to counter-terrorism are going unreviewed. This is unsatisfactory, not least because it makes it difficult for the Independent Reviewer to assure Parliament or the public that all is as it should be. More than one person of a suspicious cast of mind has suggested to me that the unreviewed powers (for example, the use of the Royal Prerogative to withdraw passport facilities) are likely to be used for the purposes of doing the Government’s “dirty work”.

Secondly, the remaining powers must be reviewed to an inflexible annual schedule. This is the legacy of the days, now gone, when anti-terrorism legislation was subject to annual parliamentary renewal, and a report was called for to inform the renewal debate. In some cases (for example the initial two years of the TPIM regime), annual review may be entirely appropriate. In others, it might be considered unnecessary and excessive, or at any rate a relatively low priority.

Thirdly, and partly as a consequence of the second point, the Independent Reviewer is currently operating at the limit of his capacity. Yet it has been acknowledged that his statutory functions should in principle be extended to the 2001 and/or 2008 Acts; other provisions are deserving of review; further reports are from time to time requested by Ministers or parliamentary committees; and a measure of flexibility is needed to deal with one-off requests, own-initiative reviews and the unexpected.

The solution

Something needs to change. For the reasons given above, I suggest that to make the job full-time, or to replace it by a committee, is not the best answer.

I do however make two recommendations, the first of which (like the Government’s alternative proposal for an IPCLB) would require statutory change.

First, I recommend that the current system (fixed annual review of four statutes, with the remainder left unreviewed save in the event of a one-off request) be replaced by a more flexible arrangement whereby the Reviewer or reviewing body, having consulted the relevant Ministers and Parliamentary committees, sets out an annual work programme which will allow him to cover those aspects of the law relating to terrorism that he considers most in need of review.

Analogies for this way of working are:

a) the Independent Chief Inspector of Borders and Immigration (UK Borders Act 2007, section 51); and

b) the INSLM in Australia, a post modelled on that of the Independent Reviewer, who has worked methodically through the entirety of his statutory remit in his four reports of 2011-2014.

It is for consideration how the category of reviewable laws and the nature of review should be expressed. A useful starting point would be the statutory remit of the INSLM, which requires the Monitor to review the operation, effectiveness and implications of counter-terrorism and national security legislation, and any other law to the extent that it relates to counter-terrorism and national security legislation; and to consider whether such legislation contains appropriate safeguards, is proportionate and remains necessary.

The proposed terms of reference of the IPCLB make some progress in this direction, in that they specify a wider range of anti-terrorism statutes for review. The flexibility conferred by the Australian statute still seems to me preferable, however. If mirrored in the UK, it would be clear that the power of review extended for example to immigration law or the royal prerogative, when used for the purposes of countering terrorism.

Secondly, if the office of Independent Reviewer is retained, I recommend that the Reviewer be enabled to appoint an assistant or junior. This would be in addition to the invaluable research and advice work that since 2011 has been performed by my special adviser, Professor Clive Walker. I would expect to take the decision as to who should be appointed, on the basis of an open competition. Possible candidates might be a lawyer already cleared as a special advocate, an academic or a civil servant, though I would not wish to appoint anyone who was associated with the machine that it is my duty to review. An additional skilled pair of hands (even if only on a part-time basis) would increase the range and flexibility of the Independent Reviewer and could even pay for itself if a trusted assistant were able substantially to reduce the time spent on the job by the Independent Reviewer.

Powers and functions of the Independent Reviewer

There have been few practical difficulties in securing access to classified information or personnel; such problems as Lord Carlile and I have experienced have been relatively simply resolved. The excision of national security sensitive information from our respective reports, where that is really necessary, has been achieved by sensible negotiation between the Independent Reviewer and departments or agencies. Reports have also been laid before Parliament, as a rule, with reasonable promptness; though on one occasion it was necessary to refer to an undertaking given in Parliament for this result to be achieved. All that said, there would be advantages in an express delineation of the powers as well as the duties of the Independent Reviewer, and of the duties of the Secretary of State particularly as regards the prompt publication of his reports.

I recommend that consideration should be given to making express statutory provision for:

a) access to classified information; b) information gathering powers; c) the exclusion of sensitive information from reports; and d) the time limit within which the report must be laid before Parliament.

Statutory guarantees will be of particular importance if plans go forward to replace the Independent Reviewer by an IPCLB.

Conclusion

I have floated these ideas in summary form on my website (attracting some supportive comments), and on a fuller basis with the Home Office and also with the HASC, JCHR, the Security Minister and other parliamentarians. The recommendations are aimed at improving the usefulness and cost-effectiveness of the Independent Reviewer’s work, and for that reason I attach great importance to them.

Some of my ideas are reflected in the proposal for the replacement of the Independent Reviewer by an IPCLB. Should that proposal go ahead, others will assume even greater importance, as reflected in my recommendations.  

Disability and Justice

The 159 page Victorian Equal Opportunity and Human Rights Commission Beyond doubt: the experiences of people with disabilities reporting crime report comments that

Access to justice and safety are basic human rights, however, people with disabilities in Victoria are routinely denied these because police and other parts of our criminal justice system are ill equipped to meet their needs. 

In Victoria, the right to equality before the law is set out in the Charter of Human Rights and Responsibilities and the Equal Opportunity Act 2010. The Equal Opportunity Act also describes the legal obligations requiring duty holders to make reasonable adjustments to accommodate people with disabilities and to take reasonable steps to prevent discrimination.

People with disabilities face significant and complex barriers when reporting crime to police. We heard that a lack of access to information means that some victims do not know how or where to report a crime. Some may not know that what happened to them is a crime.

Feelings of shame and embarrassment, as well as fear of retribution from the alleged perpetrator, can prevent people from reporting crime. Many participants also said that negative attitudes of police towards their disability made a significant difference to their experience of reporting. Further, people with communication disabilities face considerable hurdles at all points in the criminal justice system. Families and carers of people with disabilities also told us about the challenges of reporting crime, especially the fear of negative consequences for the victim if they made a complaint.

One of the strongest messages in this study is that people with disabilities fear that they will not be believed or will be seen as lacking credibility when they report a crime to police.

Of particular concern to the Commission are the participants who spoke of police refusing to take reports. This can amount to unlawful discrimination under Victorian and federal anti-discrimination laws.

When police have a good understanding of disability, when they believe victims and they take their reports seriously, victims report higher levels of satisfaction with police practice and the justice system.

The majority of police members aim to deliver the best possible service and the Victoria Police leadership is keenly committed to human rights and non-discriminatory practice. There are numerous examples of good work taking place, backed up by sound policies. However, on the ground, performance is mixed.

What makes the difference is the quality of that very first interaction between people with disabilities and police, and consistent follow-up by police members. This is largely informed by the skill and attitude of individual police members. However it is also determined by the overall culture of what is a very large and complex organisation. 

Obligations under Victorian equal opportunity and human rights laws 

Victoria Police Under the Equal Opportunity Act Victoria Police have obligations not to discriminate and to make reasonable adjustments when taking a report. Charter rights to equality before the law and freedom of expression, including the right to receive information, also apply when police take a report. When police investigate crimes, they are generally not delivering a service under the Equal Opportunity Act. However, they are still required by Victorian law and Victoria Police policy to adjust their practices to meet the diverse needs of victims. Ongoing police communication with victims continues to be a service and Victoria Police’s obligations to make reasonable adjustments under the Equal Opportunity Act apply. 

Service providers 

All disability, mental health services and Supported Residential Services, are bound by the Equal Opportunity Act. This applies to unfavourable treatment because of a person’s disability and to systems, policies and practices that are not reasonable and which may disadvantage people with disabilities. This can include policies that fail to appropriately respond to crimes because they happen to people with disabilities. Service providers also have legal obligations under the Charter to provide an abuse-free environment and to observe human rights when responding to allegations and conducting investigations. 

Courts 

Under the Equal Opportunity Act a court hearing is considered a public activity rather than a service to a particular individual. However, people with disabilities have a right to equal access to courts. Courts are bound by the Charter to act compatibly with human rights and to give proper consideration to human rights when they are exercising their administrative functions.

In addition, the courts have functions under Part 2 of the Charter, which sets out all of the rights. While courts are not always obliged to take into account all of the human rights in the Charter, they have a clear role and obligation to ensure that people with disabilities have equal protection before the law. This right can only be realised through the work of the courts and other bodies in the justice system. It is important to remember that the court is impartial. This is a central tenet of our legal system. This long standing legal principle is complemented by the right to a fair trial provisions in the Charter. 

Promoting good practice within Victoria Police 

To assist people with disabilities to report crime, police need to be able to identify and understand different forms of disability, and then determine what reasonable adjustments are required to meet different access needs.

Police members, advocates, victims, families and carers all told us this was a major challenge and a key area of need for future professional development.

Participants also told us that communication was a major barrier in their dealings with police. This was the case for people with mild or moderate communication disabilities through to people who are non-verbal.

For those who do make a report, the ability to communicate becomes crucial to giving a complete and accurate interview, as well as to understanding what is happening as the investigation proceeds.

For police, a lack of information and the ad hoc nature of various support services can hamper their ability to promote good communication for people with disabilities at the reporting and interview stages. This can also have a profound impact on the effectiveness of their investigations and, therefore, on the likelihood of a successful prosecution.

Improving accessibility within Victorian courts

While our focus was mainly on police practice, the Commission’s study confirmed that other key parts of Victoria’s criminal justice system are not built for accessibility.

We found that while some progress has been made, basic adjustments are not always made to adapt court practices and facilities to meet the access needs of witnesses with sensory, physical, learning or communication disabilities.

A successful prosecution remains the exception rather than the rule when the victim has a disability. Police members we interviewed consistently identified challenges in presenting evidence to the court as the biggest barrier to gaining a conviction. Some felt the Evidence Act 2008 (Vic) tied their hands and was not flexible enough to meet the requirements of people with disabilities, particularly those with communication disability. Others felt that defence lawyers would vigorously pursue the argument that the victim lacked credibility. Prosecutions can and do succeed when agencies adjust their practices to meet the access needs of people with disabilities, assess these needs prior to the hearing and ensure the court is aware of them.

However, for many people with disabilities, getting a ‘win’ is as much about the right to participate in court as it is about the court outcome. To maximise their participation, more effort is needed to address negative attitudes among legal practitioners and court personnel and to ensure that appropriate standards of conduct are met at all times.

Improving safeguarding in services

People with disabilities may live in environments that leave them socially isolated. As a result, they can face very specific barriers to justice because the crime they experience happens behind closed doors.

It is important to remember that most disability services are delivered in a way that does not put people at risk of violence. However, as recent high-profile cases have shown, abuse can occur.

People in some services can experience violence and abuse at the hands of staff or another resident. In some services, this violence may become normalised because it happens frequently or because staff justify their actions as an appropriate way to manage challenging behaviour. Further, people with disabilities can also be subjected to unnecessary restrictive practices, if communication assessments and behaviour supports have not been put in place by staff or when they are not effectively implemented or monitored.

The Commission heard that services where violence and abuse is normalised are more likely to treat crimes involving people with disabilities as ‘incidents’ requiring an internal investigation, rather than as matters to be reported to the police. Where a crime is reported, we were told that police may be unlikely to investigate and may refer the matter back to the service for internal review.

It is crucial that service investigations are robust, comprehensive and conducted by skilled investigators and do not occur in place of police investigations. While there is policy and procedure developed by the Department of Human Services on these matters, some participants identified serious shortcomings in these systems and actual investigations. This highlights the importance of bolstering workforce capability across the service system and taking a comprehensive approach to safeguarding in both policy and practice, and in prevention and response.

People with disabilities must be empowered to report and make choices about what happens when they report. Rights-based knowledge and practice is essential to ensuring people experience justice and safety. The Commission recognised some important work being done in the self-advocacy sector and by services in educating people about their rights. People with disabilities should be involved in the development and delivery of training to people working with them, to share expertise and build respect for the perspective and knowledge of people with lived experience. Peer-led education, advocacy and self-advocacy should be a priority of service delivery.

Making justice for all a reality

Victims of crime with disabilities must be able to access consistent support, when they need it and for as long as they need it, across the justice process.

Most of the Commission’s recommendations (see page 18) are designed to support Victoria Police to fulfil its commitment to better meet the needs of people with disabilities reporting crime.

A central recommendation is for Victoria Police to develop a Code of Practice for responding to victims and witnesses with disabilities. There are currently two Codes of Practice for Victoria Police – Code of Practice for the Investigation of Family Violence and Code of Practice for the Investigation of Sexual Assault. The development and implementation of these codes has resulted in significant cultural change within police and increased confidence of victims to report crime.

In common with the existing codes, our recommended code would respond to victims of crime that require a specialist response. Further, experience shows that the consultation and cooperative effort in the development of a Code of Practice utilises existing expertise, builds important community relationships and works to build consistent support and referral pathways, all of which enhance police capability and build trust in the system.

The Commission acknowledges the important role that police play in upholding the rights of people with disabilities and the commitment shown by the leadership of Victoria Police and frontline police in improving their services to this group. We appreciate the cooperation and support provided by Victoria Police throughout this project and look forward to working with it to implement this report’s recommendations. However, the Commission also recognises that Victoria Police is just one part of a complex system. To ensure that people with disabilities are able to access justice on an equal footing requires a coordinated, whole of government commitment to improving responses throughout Victoria’s broader justice and human services and health systems.

Accordingly, this report makes recommendations regarding those areas where we have established a clear link with issues relating to the incidence and reporting of crimes against people with disabilities.

Our goal is to ensure that Victoria has an accessible, consistent and comprehensive system to respond to the experience of crime, which considers the preferences and needs of victims and empowers them to participate more fully in the process. Access to justice for people with disabilities should not be a matter of luck. It is a basic right for everyone.

The Commission makes the following recommendations

Victoria Police 

Victoria Police should demonstrate its commitment to ending disability discrimination by including the following actions in the Victoria Police Disability Action Plan (due for release in 2014). 

Victoria Police should: 

1. Develop a Code of Practice for responding to victims and witnesses with disabilities, and amend the Victoria Police Manual to put the code’s standards into operation. The code should specify legal obligations for reasonable adjustments, guidance on how to make adjustments, as well as support options, including access to services and information, and referral pathways. 

2. Modelled on the existing Victoria Police Family Violence Adviser role, Victoria Police should develop a complementary network of Disability Advisers and work with people with disabilities and relevant organisations to build and share practice knowledge, and strengthen community partnerships across the state among all police members. 

3. Under the Victoria Police Education Master Plan, develop a comprehensive, career-long, learning strategy for all police members to equip them to deliver equitable services to Victorians with disabilities. This should focus on capacity to identify and understand disability, and make adjustments. This should include police at all levels of the organisation throughout their careers, including at points of recruitment, advancement and across the range of roles, including as duty officers, Sexual Offences and Child Abuse Investigation Teams, prosecutors and in leadership. 

4. Develop a bystander response for police members who witness discrimination. This should include training for senior sergeants, and local area commanders on a proactive approach to challenging discriminatory stereotypes and language. 

5. Gain and maintain Communication Access accreditation according to the advice of Scope. Using a staged approach, Victoria Police should achieve accreditation across the state by 31 December 2017. In the first instance, Easy English versions of Victoria Police standard forms and written information for victims should be made available. These should also be made available in Auslan video on the Victoria Police website. This work should commence immediately. 

Victoria Police and the Office of the Public Advocate 

6. Update the Independent Third Person ready reckoner to improve the identification of people who have disabilities and uptake of Independent Third Persons for victims of crime. All police members should be required to complete compulsory online learning and testing on use of Independent Third Persons by June 2015, and then on an ongoing basis at least every three years. 

Victoria Police and Department of Justice 

7. Establish a centralised booking system for Augmentative and Alternative Communication for use by Victoria Police, Office of Public Prosecutions, Victorian Legal Aid, Victorian Courts and tribunals, Victims Support Agency and other justice agencies. This model should be developed in a way that ensures it is adaptable to other systems. 

Department of Justice 

8. In cooperation with other departments, statutory agencies and Victoria Police, undertake trend analysis of the prevalence of crime against people with disabilities in Victoria to inform improvements to responses, including early intervention and prevention, and to assist in improving and streamlining cross-sectoral supports. 

9. Examine options for amending the Criminal Procedure Act 2009 (Vic) to: a) provide for special hearings for indictable offences involving an assault, injury or threat of injury b) extend special hearings to people with communication disabilities c) consult with relevant stakeholders including judicial members and the legal profession on options for reform. 

Judicial College of Victoria 

10. Amend the Uniform Evidence Manual to clarify that people with communication disabilities are included in the definition of a vulnerable witness contained in section 41(4) of the Evidence Act 2008 (Vic) and that Augmentative and Alternative Communication may be used by the courts under section 31 (2) the Act. 

11. Collaborate with the Victorian Equal Opportunity and Human Rights Commission to develop educative resources that specifically address making adjustments for people with disabilities. Over time, this should form part of a broader suite of resources to assist the courts to meet the diverse needs of people across all attribute groups. 

Court Services Victoria 

12. Prioritise disability accessibility and drive implementation consistently across jurisdictions. Priorities include hearing loops and space for mobility aides in court rooms across jurisdictions. 

Victoria Police, Department of Health and Department of Human Services 

13. In order to improve consistency of response when a crime against a person with disability occurs in a service setting, and to reflect the standards in the Victims of Crime Operating Procedures and the recommended Code of Practice, local arrangements such as Standard Operating Procedures should be enhanced to provide for stronger, minimum standards around response times, communication on progress and status of matters. These should be reflected in associated protocols with the Department of Human Services and Department of Health and in practice directions to service staff. 

Department of Human Services and Department of Health 

14. Building on existing efforts, and as part of a comprehensive approach to safeguarding, the Department of Human Services and Department of Health should: a) Issue comprehensive practice guidelines on when and how to report to police, how to effectively and pro-actively engage with police, navigating the criminal justice system, services and referral pathways, empowering victims to make choices about the process, appeal and review options, and minimum standards for conducting service investigations. b) Deliver training for departmental and funded services staff on preventing, recognising, responding to, and reporting violence, abuse and family violence, including focused efforts to support management to strengthen supervision and recruitment processes. c) Promote prevention, rights awareness and improved response by continuing to support peer-led education, advocacy and self-advocacy by people with disabilities. 

Victorian Government 

15. The Victorian Government should prohibit persons who have been found to have abused, assaulted or neglected a client of a disability, mental health and other service for people with disabilities from working or volunteering in such services by placing them on a register of unsuitable persons. This scheme should include an independent mechanism to determine the suitability of persons to continue to work with adults with disabilities. Subject to evaluation, it should be the first step in the development of a more comprehensive registration scheme for those delivering services to adults with disabilities. 

16. Consistent with the Charter of Human Rights and Responsibilities Act, and recognising that a lack of communication supports may lead to the unnecessary use of restrictive interventions, the Department of Human Services and Department of Health should ensure all service users who require a communication assessment and plan have one, and that this is implemented and monitored. To achieve this, the Victorian Government should ensure that this is resourced and priority should be given in the first instance to people subject to restrictive interventions.

Fakes

The SMH reports another controversy regarding authenticity, gatekeepers and alleged fraud in the Australian fine art market.

The article leads off with the tantalising "Up to 30 per cent of the artworks offered in the Australian art market could be forgeries, the Supreme Court has been told in a case that threatens to lift the lid on dubious practices in the art world" and goes on to report on litigation in progress involving Sydney barrister Louise McBride, Christies, dealer Alex Holland and art consultant Vivienne Sharpe.

McBride acquired what was claimed to be Faun and Parrot by Albert Tucker for $86,000. She reportedly relied on the description in the Christies catalogue and advice from Ms Sharpe. Francis Douglas QC, for McBride, is reported as stating that there was "no doubt that Christies had expressed an opinion" that the work was by Tucker and signed by him, with no question mark attached to the item – the usual convention used by Christies to signal some doubt.

McBride reportedly decided to litigate after she tried to sell the work and was informed by Sotheby's that the painting was probably a fake.

McBride has reportedly discovered that

Christies had two conflicting provenances for the painting, listing different galleries as its original source. The one referred to in the catalogue said it had been bought by a Mr Ivan O'Sullivan at the Tolarno Gallery in Melbourne in 1969 and inherited by his son, Barry.

Mr Douglas said Christies did nothing to check the provenance, and there were doubts about whether any of Christies' experts even inspected the painting before the auction.

But soon after the sale, Christies received another version of events from Mr O'Sullivan: that it was purchased from Dominion Galleries in Sydney by his father.

Christies then consulted Melbourne University art experts after the May auction about Ms McBride's painting and another painting after concerns were raised about whether there were several Tucker fakes on the market.

Confidentiality

'A Critical Evaluation of the Proposed EU Trade Secrets Directive' by Tanya Aplin comments that

The European Commission issued a proposed Trade Secrets Directive on 28 November 2013, with the aim of tackling the legal fragmentation in the protection of trade secrets that currently exists in the European Union. Key divergences between Member States include: the legal mechanism used to regulate trade secrets (criminal or civil law and within civil law, whether unfair competition, tort, contract or labour law); the definition of trade secrets; whether trade secrets are classified as intellectual property (thus affecting the application of the Enforcement Directive); criminal penalties and the procedural mechanisms for protecting the confidentiality of trade secrets during litigation. Such legal fragmentation is seen as problematic, because it apparently makes enforcement opaque and expensive and also leads to sub-optimal investment in cross-border innovation activities within the EU. This paper undertakes an evaluation of the proposed Directive, along with the 'General Approach' put forward by the General Secretariat of the European Council to the Council on 26 May 2014. It argues that we should be skeptical of claims that harmonization will bring substantial economic gains and that only a modest amount of harmonization is likely to ensue from implementation of this Directive, should it be adopted. This is because several of the obligations contain uncertainties and Member States will have the freedom to implement these obligations according to whichever mechanisms they prefer. As a result, we are likely to see a patchwork of laws continuing to regulate the protection of trade secrets in the EU and a series of references to the European Court of Justice for many years to come.