Crime Reduction - Helping to Reduce Crime in Your Area

1.1.

The key role that the volunteer has to play in community safety partnerships is well acknowledged. However, there are a number of issues which need to be considered such as the Chief Constable’s/Volunteer’s legal relationship.

1.2.

Under the Data Protection Act 1998, volunteers may be criminally liable if they obtain or disclose personal data held by the Chief Constable without his or her authority. This means that if a volunteer discloses, to a third party, information about an individual that they have learned about during the course of their work for the Chief Constable, they may be prosecuted for a criminal offence. Section 55 (1) of the Act, states that:

'A person must not knowingly or recklessly, without the consent of the data controller
a)    obtain or disclose personal data, or the information contained in personal data, or
b)    procure the disclosure to another person of the information contained in personal data'.

1.3.

Whilst this places criminal liability with 'any person', the Office of the Information Commissioner are of the opinion that Chief Officers who are not able to prove in sufficient depth the mens rea of individuals committing offences under the Act, will themselves be personally liable. If a Chief Constable sets up his or her relationship with volunteers as advised, it is more likely that these elements of the offence can be made out. This means that the volunteer may be prosecuted rather than the Chief Constable receiving an enforcement notice from the Commissioner for a breach of one or more of the Data Protection principles.

1.4.

In view of the difficulties in fulfilling all of our legal obligations in respect of data protection, duty of confidence and sub judice issues, it is the recommendation of the ACPO Data Protection Portfolio Group that Chief Officers do not allow persons to operate police information systems unless they can be deemed his/her 'servants or agents'. This requires a legally binding contract between the Chief Constable and the volunteer.

2.1.

There is a wide diversity of systems used by police forces to collect information in connection with the detection and prevention of crime. Much information is available for use by other agencies in the fight against crime and to ensure the safety of the public.

2.2.

The partnership between police and public through organisations such as 'Watch' schemes and Community Safety schemes can be exploited and made more effective. In many cases Police forces are increasingly using volunteers in a number of roles.

2.3.

The risk of harm to individuals from a breach of security must be considered and appropriate preventative measures put in place:

• Appropriate measures should be taken to prevent unauthorised access to or unauthorised disclosure of personal data to comply with the Data Protection Act 1998.

• Regard shall be had to the risk of harm to individuals from a breach of security and appropriate measures put in place to prevent this.

The following paragraphs should be regarded as 'best practice’.

2.4.

In the interest of security Chief Constables may wish to satisfy themselves that a volunteer working in police premises is a suitable person. Hence the need to carry out adequate vetting.

2.5.

To become a servant of a Chief Constable it is necessary to establish a legally binding agreement in order to create a contractual relationship between the Chief Constable and the community volunteer.

2.6.

Chief Constables should be aware that if a written agreement is entered into with a community volunteer then this may not be binding for two reasons:

• The written agreement may not be a legally binding agreement because no consideration has been given by either party. Although consideration is an essential element of a legally binding contract in English law, it is not limited to money. However, consideration must be something more than mutual benefit. The absence of payment of wages points to a lack of consideration.

• In case of dispute, a court or tribunal will look to the facts of the relationship - the parties cannot alter the truth of their relationship by putting a different label on it.

2.9.

There are some points which a Court or tribunal may ask in a disputed case:

1. Are wages paid?

2. Does the data controller (i.e. Police) have the right to suspend or dismiss the individual?

3. Does the data controller have the right to exclusive service from the individual?

4. Does the data controller have the right to require the work to be carried out on their own premises?

5. Does the data controller own the tools or the means of production?

6. Does the data controller bear the risk of loss?

7. Is the individual's work an integral part of the data controllers business?

8. Have the intentions of the parties been put into a formal written agreement or contract?

2.10.

Should a Chief Constable consider that there is a legally binding agreement with a community volunteer then the following points will need to be addressed.

2.11.

In most cases depersonalised information will be given by Police personnel for use by volunteers. However, should a volunteer be used to extract personal information from police information systems, typically to enable this information to be passed to 'Watch’ and Community Safety Groups then:

1. their access to such systems must be limited to that which is necessary to enable them to carry out the task;

2. they must be given training in the use of such information, appropriate to their use of that system;

3. they must be given training in the data protection implications;

4. they must be given written guidelines on disclosure matters;

5. a line-manager must be appointed with specific responsibility for such volunteer to ensure that the Police Service manages its responsibility for the security of the personal information and the training needs of the volunteer;

6. there should be an understanding that the personal information involved is confidential and that any breach of confidentiality will immediately lead to the termination of the individual volunteers attachment and the suspension of agreement to take further volunteers from that group.