|The Campaign for Freedom of Information|
29 January 2010
Time limit for prosecution of offences under section 77 of the FOI Act
In a statement on the University of East Anglia case, the Deputy Information Commissioner Graham Smith said:
This problem came to the Campaign for Freedom of Information's attention last year. It was clear that the offence could rarely be detected in time for a prosecution to be brought. It can take several months before an authority responds to a request and carries out the internal review which is necessary before a complaint can be made to the ICO. Once complaints were made, it took on average 8 months before the ICO investigation even began, according to a report we published in July 2009. This means it would usually be impossible for the ICO to detect an offence within 6 months of it occurring.
The Campaign therefore drafted a proposed amendment to section 77 to extend the time limit for prosecutions. The amendment was identical to provisions already found in several other statues, such as the Animal Welfare Act 2006 and the Theft Act (as amended by the Vehicles (Crime) Act 2001), where the government itself had decided to extend the 6 month limit for prosecutions. More recently, in 2008, the Building Regulations were amended following a public consultation, as local authorities had maintained that the 6 month period did not allow prosecutions to be brought where a breach of the regulations only came to light after completion of the building work or where remediation of the work had been promised but not carried out.
The proposed amendment would have allowed a prosecution to be brought within 6 months of the evidence of the offence coming to the Commissioner's knowledge, rather than within 6 months of the offence being committed. The amendment was tabled to the Coroners and Justice Bill by Lord Dubs. However, the government rejected this opportunity to close the obvious loophole - though it was clear then that if an authority deliberately shredded records it would almost certainly avoid punishment.
Responding to the amendment, the minister Lord Bach said:
You can read the full debate on the amendment is here (debate on amendment 205, starts column 1569)
UPDATE below added on 2 February 2010:
A number of comments on other websites have suggested that a prosecution could be brought under section 77 of the FOI Act even if it was more than 6 months after the offence had been committed.
Section 127(1) of the Magistrates Court Act states that "“a magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose."
The question is: does this mean that a prosecuting authority can initiate a prosecution either within 6 months of the offence occurring or within 6 months of a "complaint" about this matter being made?
Section 127(1) of the Magistrates Court Act appears to be referring to two different types of proceedings, proceedings for an offence and proceedings which involve the making of a complaint to the court. We do not think they should be seen as two different ways of referring to the same potential prosecution.
An example of proceedings for a “complaint” can be found in section 82 of the Environmental Protection Act 1990 which states:
This type of proceeding would have to be brought within 6 months from the date when “the matter of the complaint arose”.
The “date on which the matter of the complaint arose” does not seem to refer to the date on which the complaint was made, but to the date of the events which led to the complaint.
This seems clear if you strip out the references to an “offence” in section 127(1) but keep those which refer to a complaint. The section then reads:
That is not saying that the court must hear the complaint within 6 months of the complaint being made but within 6 months of the matter complained about occurring. In relation to a complaint about statutory nuisance under the Environmental Protection Act, the court would have to deal with the matter within 6 months of the nuisance occurring.
This suggests that what section 127(1) means is that (a) where proceedings for an offence are brought, they must take place within 6 months of the offence occurring and (b) where proceedings relating to a complaint are brought, they must take place within 6 months of the events which are complained about.
Many laws other than the FOI Act have been amended to extend this 6 month limit. None of those amendments would have been necessary if section 127(1) of the Magistrates Court Act already allowed a prosecution to be brought either within 6 months of the offence occurring or within 6 months of it coming to light.
One recent example are the Building Regulations. In July 2007, the Department of Communities and Local Government issued a consultation paper seeking views on whether the 6 month limit should be extended in relation to these regulations. The paper, entitled “Longer time limits for prosecution of breaches of Building Regulations” said:
Later the consultation paper says:
Following this consultation, the Building Regulations were amended by The Building (Amendment) Regulations 2008. The new regulations allow a prosecution to be brought within 2 years of the offence being committed, provided this was within 6 months of the prosecuting authority learning about the offence. Clearly, this change would not have been needed if section 127(1) already had the wider meaning that some have suggested.
In July 2009 the Campaign for Freedom of Information drafted an amendment, which Lord Dubs attempted to make to the Coroners and Justice Bill. This would have amended the Freedom of Information Act to allow a section 77 prosecution to be brought within 3 years of the offence being committed, provided it was within 6 months of the ICO obtaining evidence of the offence. The Information Commissioners Office supported this amendment.
The government did not accept the amendment because - it claimed - there was no evidence that the 6 month limit was causing systemic problems. It did say that if such evidence arose, it would look for ways to put the matter right, and if necessary amend the FOI Act. If the government accepted that the 6 month limit only ran from the time when the ICO became aware of the offence, it would have said the amendment was unnecessary for that reason.
That has also tended to confirm that section 127(1) does not at present allow a prosecution to be brought more than 6 months after the offence itself has occurred, and that the FOI Act should be amended so that prosecutions can be brought after that 6 month period is over.
In the Sunday Telegraph on January 30 2010, Christopher Booker suggested that a prosecution for conspiracy to commit an offence under s 77 of the FOI Act could be brought under the Criminal Law Act 1977, even if the 6 month period had expired.
However, it appears that any proceedings for conspiracy to commit an offence would be subject to the same time limits as those applying to the offence itself. Section 4(4) of the 1977 Act states:
This suggests that, even if a conspiracy charge were possible, it would not provide a way round the problem created by the 6 month limit on prosecutions in the Magistrates Court Act.
|Freedom of Information & Open Government.|