R v Dixion in 1997 Analysis - Essay Example

LEGAL ENVIRONMENT WORK Part Question What were the material facts in the case? In the case of R v. Dixion (1997) , Defendant -former Constable of Nottingham Jack Michael- was accused of unauthiorized use of regestered data on two counts. Breif of the case are as under: Jack Micheal was emplyeed in Constabilry in Nottingham where a protected data base was being maintained. Chief Constable was authorized to use the data so stored in terms of Data Protection Act 1984. His subordinates as his agents, including the defendant were having access to the computer and the database so maintained in the course of their official business. Mr. English was a friend of the defendant who was running his debt collection business by the name of Best Investigation Ltd., and he used to act as recovery agent for bad debts and loans. Being friendly and having an access to the defendant in his office, he had the opportunity to use police national computer to trace registration number of two vehicles, one on each count apparently for the purpose of his business and to get registration information about the said vehicles from the data available on line for this purpose. In one instance out of two, there was no access to data base as the vehicle for which search was made was owned by a company and not by an individual and on the other there was an activation of database as the record of the person so required was available in the data base and hence, it was seen. Mr. English, being the outsider was not authorized to access the database and the defendant in this case was accused of unauthorized use of the information contained in the database as per the provisions of aforementioned Act 1984. It is, however, established that there was no subsequent use of that data from any quarter concerned. Defendant took the plea that there was neither unauthorized use of the data in terms of the provisions of the Act 1984 nor any act in contravention of the law is committed by the defendant and hence pleaded non guilty. Court of first instance pronounced him guilty on both of the accounts whereas the court of appeal overruled the decision of trial court. Question 2: Explain, in your own words, the legal issue(s) in the case. In the case of R v. Dixion, defendant was charged with an offence under Data Protection Act 1984 on two accounts. First charge was that he tried to use the National police data for which he was unauthorized. Second charge was that he actually used the data for which he was not authorized. The court of first instance found him guilty on both the above mentioned instances. The defendant went into appeal against the decision and as the result of the appeal following legal questions were raised and discussed by the court. 1 Definition of Data: It was debated that what constitute data in terms of the Act of 1984. The language of the Act 1984 Section 1(2) describes the data as information recorded which can be processed through the equipment on command automatically. It is pertinent to note that in both the instances, that data was actually retrieved. It is also important to note that in second instance there was no intention on the part of defendant to retrieve the data. 2 “Use” of the Data: The other question which was raised was about the nature of the use of the data. It was contested that in term of law, even though the data was processed but it was never used or intended to be used by any person. Here the court looked deeply into the legal presumption about the term ‘use’ implied in the Act 1984. It was discussed that whether simply an access to data constitute its use or some actual work on the information so gathered amounts to the use of the same. Although in court of first instance, use was equated with the mere retrieval of data form the system but in both the appellate courts the common view of the use was upheld and it was decided that until an actual work or process is done on the basis of this information, it can not be termed as use of the data. 3. Is data retrieval amounts to disclosure of the same or not? Another related issue which was discussed in the court of appeal was about the nature of disclosure pleaded by the prosecution in the trial court. It was emphasized that the data retrieved from the database of the national police was the actual disclosure to a person who was not authorized to have it. This question was again looked into with reference to legal provisions and it was found that mere retrieval of the data cannot be termed as disclosure as the same need some process over it to make it useful information for the purpose of investigation or any other purpose. Furthermore, there was no evidence as to the user of this information therefore the intention to commit any misuse of data was also found to be absent in this particular case. Question 3: Which technique(s) of statutory interpretation, presumptions and/or ‘rules of language’ did Lord Goff employ in the case? Give reasons for your answer. In my opinion, Lord Goff has applied the rule of presumption in this regard. Lord Goff has used the words in their true context and tried to define the words much closer to the wish of the legislature. He looked at the whole text in the light of the usual use of the verb which was otherwise absent in the text of the Act. This situation is evident from the use of words in the text of the Act, especially in case of defining the term ‘use’. My opinion is so because, while discussing about the meaning of the term ‘use’, lower court interpreted it as provided in the text which provides that simple retrieval of the data constitute ‘use’. On the contrary, Lord Goff interpreted it in light of its reference to historical meaning and presumptions. His opined that the legislature was also intended to say the same. Similar principle is applied while interpreting the clauses like section 5(2) and others. Question 4: To what aids to statutory interpretation did Lord Goff refer? Your answer should indicate whether such aids are ‘intrinsic’ or ‘extrinsic’? Lord Goff referred to historical use of the word ‘use’ in his interpretation which is an extrinsic aid to interpret the legal provisions. It was because of the fact that no help was available in the text, preamble or body of the Act about the same and in such a case common law refers to the original meaning of a term in the common parlance. Had there been a direct reference in the Act regarding the proposed meaning of the words then mere historical meaning would not have been the prime source of interpretation. Question 5 Explain, in your own words, the ratio decidendi of R v Dixon. The case under study was decided by the appellate court on the following grounds: Firstly, the contention of the prosecution was unfounded about the unauthorized access of the data as the defendant was an authorized agent for the purpose of the investigation on behalf of the chief constable. He was holding that data for the purpose of official business and under valid authority to do so. There was no plea as to unauthorized access of data by a third person. Secondly, the term ‘use’ of the data remains undefined in the Act and any presumption to define it equal to an access would be uncalled for and it must be seen in its historical perspective. In the case of prosecution, the term use was applied as access of data itself either through electronic medium or through print outs of the same. Therefore, in the light of interpretation by the Lord Goff, the term use comes to be synonymous to ‘do something to the data and not merely to access it’. As processing of data is not found or established by the prosecution in the case, it is therefore inferred that the purpose of the law is not fulfilled. Mere coming across a classified data does not itself constitute the crime of unauthorized use of it and as the prosecution was not able to make this point, verdict of the trial court was overruled by this court. Thirdly, law provides that Personal data held for any purpose or purposes shall not be used or disclosed in any manner incompatible with that purpose or those purposes’. To prosecution data disclosure was assumed synonymous to the retrieval of it which was also not deliberate on part of the defendant, therefore, no disclosure to this effect was established. Lastly, Lord Goff opined in last lines of the decisions that the case was arguable, perhaps if the jury was well directed on law which in this case could not be found. These comments are based upon the principle of legal procedure that an issue not raised in the court of first instance can not be subsequently raised or decided upon in an appeal. PART 2 Question 1: What court(s) would Frances have appeared before during the course of her prosecution to date? How, if at all, would your answer differ if Frances had originally been charged with an offence contrary to section 47 of the Offences against the Person Act 1861? What factors would the court(s) have taken into account when reaching these decisions? Opinion: It is a case of inflicted injury by a wife upon her husband with a kitchen knife, a weapon not made for the purpose of killing somebody. There are conflicting views about the occurrence from the both side and prosecution has found the version of the husband more promising in the absence of any proof provided by the wife in her favor. The case is yet to be presented before the trial judge for hearing. It has been learnt that the prosecution is inclined on plea bargain. How many courts Frances has appeared before: It appears form the whole text that Frances has to appear before the court of first instance in the county and prior to it she has not appeared before any court to date. What if the accused were charged under section 47 of the Act instead of section 20: Section 20 provides for an act in which accused has unlawfully and maliciously wounded or inflicted any grievous bodily harm upon any other person and it carries the amaximum punishment of five years. Whereas under section 47, matters of common assulat are dealt with. In case of any registration of case under section 47 of the Act, there would be a more lieneint clause to defend with and it was possible to gain maximum advantage from the same. In that case, we may not be offered any plea bargain from the prosecution on the ground that the case is already placed in lienent clause of the Act and defence of the case might not be as difficult as in the case of section 20. In my opinion, in that case it was a defendable case in wake of weak provision of the Act and wrong prosecution case. But in this circumstances when there is a case under proper clause duly supported by the evidences, we might have both the options available, eithor to defend the case or to accept the plea bargain by placing the case under section 47 of the Act. What considerations court may likely to make while deciding the case: In the case, as it is, the court would consider the following aspects of the case; One under what circumstances the actual incident took place. (Onus of proof on prosecution) Two, whether there was any contributory action on part of Gary to aggravate the situation if his assertion is right or not? (Onus of proof on prosecution) Three, whether was it really a case of self defense or not. (Onus of proof on defense) Should there be any leniency while awarding sentence on any ground? Question 2: Gary wants compensation for his injuries. If he does decide to sue Frances how might he finance his action and what are the factors that he would need to take into consideration in respect of his options? In which court would Gary commence such civil proceedings? Opinion: Gary wants to go for a suit for compensation for his injuries inflicted by her wife by stabbing him. He has the following question before him to answer: 1- Finances for the suit 2- Factors to consider regarding his options 3- And which court to approach for his proceedings. Finances for the suit: It is apparent that Gary wants to go for a suit for compensation but he might not have the finances to support the same. Law does not provide any restriction to approach it without a legal consultant if the party thinks that he can pursue his case in the befitting manner and therefore no question as to finances arises. However, there might be question as to hiring a legal consultant for initiating a case for him. There might be two possible situations in the regard: one he may go for putting his savings or belongings as a source of finance for the said suit. Second, he may enter into a sharing contract with the solicitors for his case in which both the parties will share the compensation amount in case of a victory and in case of a lose Gray has will pay nothing for the case. Gray has to decide depending upon his situation best known to him. Factors to consider regarding his options: Gray has to decide that whether he wants to go for a suit for compensation or not. There are certain factors which a person might consider before going for such an action. Financing issue has already been discussed in above lines. It is evident that his marriage is ended up till now and there is no point to go back. He might additionally think about getting divorced from his wife. Apparently case of the prosecution is in his favor and he might be able to win the same if all goes right, therefore, chances to win the suit for compensation, though not necessary also increase. In such a condition he may go for a suit for compensation against his wife besides a suit for divorce in the family court. Additionally he may also claim the custody of his children. Which court to approach for his proceedings? Being a civil matter, it is the jurisdiction of the civil court to hear this case. It would be appropriate to approach civil court of his county in this regard in consultation with his legal council. However, it is important to mention that matter of pecuniary jurisdiction depends upon the amount of claim made in this regard. Question 3: What would you advise Frances to do regarding the offer made by the prosecution as to the section 47 offence? The judge in the case has refused to give an advance indication of sentence - is he entitled to do so? What arguments might be made for, and against, the judge indicating what sentence he would have in mind if Frances were to plead guilty to the section 47 offences? Opinion: In order to give any opinion in this regard I would like to go to the actual text of both the section and their implications too. Section 20 of the Act 1861 goes as,” Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor, and, being convicted thereof shall be liable ... to be kept in penal servitude ...." and this section carries a maximam penalty of five years imprisonment. Whereas section 47 of the same Act goes as under,” a person who is convicted on indictment of common assault is liable to imprisonment for a term not exceeding two years”. Here the maximum penalty in section 47 is two years whereas in section 20 it is five year. In case of pleading guilty the accused is considered sympthethically and major punishment is avoided. However, as it seems that an act of assulat has been committed by the defendant and there is no evidence to support her versio , she might lost her case to the prosecution. In such a case offer by ther prosecution is a good bargain where in case of most sever sentence it is even less than the most lienent in case of section 20 of the Act. Judge’s refusal to give an advance indictment: It is informed that in this case judge has refused to give an advance indictation about the sentence to be imposed. Normally, judge in open court does not refuse to give an advance indication to make the accussed an informed person about his or her decision as to plead guilty. But it is not binding upon him to always give an indication especially when there is a plea bargain is in offing between the accussed and the prosecution. (R v Goodyear, 2005) Case for and against if the judge indicates what is in his mind about sentence: In case judge gives an advance indication about the punishment in his mind. Following benefoits are percieved: 1- It will result in early guilty pleas resulting in early disposal of cases. In this case too, if the Frances takes a guilty plea, the decision will be made here and no further appeals will be preferred. 2- It makes the accused more informed about his decision as to go for a plea of guilty or not guilty. 3- Leniency may be shown by the judge while awarding the sentence. 4- It is the duty of the judge to ensure that the accused is not under pressure to plead guilty. In such a case, he may refuse to give an advance indication. However, in result of plea of guilty, the client would loss all the defense in this court as well as in all the subsequent forums of appeal. In such a case the punishment so awarded will gain finality in the eye of law and the accused will not be allowed to deny his or her statement of guilt in any circumstances. It is therefore, advised that any plea of guilty be made only when there is no room available in the law for leniency or where the accused is convinced of his own guilt to an extent that he does not want to contest the case any more. The other reason for the same would be a plea bargain in which prosecution press the court for the lesser punishment in the wake of pleaded guilt by the accused. (R v Turner, 1970) Question 4: Frances is incensed that the Crown Prosecution Service refuses to prosecute Gary for both the indecent assaults committed again Holly and Ivy and the videotaping of the incident. On what basis might the Crown Prosecution Service have made this decision? In this case Frances alleged that on the day of incident Gary was sexually abusing her daughters and two other women were videotaping the same. But on her arrival both of them fled. Her plea was not taken into consideration by the Crown Prosecution Service and she had been advised to plead guilty in order to avoid the maximum punishment. There might be different points considered by the Crown Prosecution Service while deciding not to prosecute Gary for both the incidents. Some of those might be as under: 1- Absence of videotape from the scene of occurrence: As alleged there was an event of videotaping on the time of alleged abuse but the prosecution was unable to find any videotape from the site of incident which gives an impression that there was no such incident as narrated. 2- Women alleged to be present at time of this incident are unidentified: Frances told the prosecution that there were two unidentified women who were shooting the alleged scenes of sexual abuse. No identification was offered to the prosecution to testify the truthfulness of the claim. On the other hand, Gary has mentioned about his new girlfriend, Carla, who was in bed with him and her testimony may be obtained to that effect. In this way, prosecution might have come to the conclusion that no such incident as alleged by Frances ever happened and the lady is making an excuse for her action to avoid penalty. 3- Statement of Carla may also be obtained: Although it is not clear from the facts reproduced above that if any statement was obtained from Carla or not but we may assume -keeping in view the prosecution methodology provided in the books- which provides for such statement from the witnesses. It is therefore assumed that this statement must have been recorded and probably, Carla had denied the occurrence of any such abuse. That is why prosecution is not taking any action as against Gary. It is therefore, opined that due to all these facts we may assumes that in absence of any supporting evidence in favor of her statement, prosecution might have decided not to in initiate case against Gary. References Offences against the Person Act 1861 of 1861 (24 and 25 Vict. C. 100) R v Goodyear [2005] 3 All E R 117 R v Turner [1970] 2 QB 321 R v. Dixion [1997] 1 All ER 999 Read More