Merry van Woodenberg’s client acquitted in ICO prosecution for unlawful obtaining of private data

Merry van Woodenberg acted for the first defendant in an ICO prosecution for the unlawful obtaining and disclosure of data, contrary to the Data Protection Act.

Merry was instructed in January 2018 to represent an employee of a claims management company, who was alleged to have passed on unlawfully obtained data contained in a ‘lifestyle report’. The report had been commissioned by a pharmaceutical company, in order to investigate whether one of its employees had committed fraud on the company. The ICO’s case was that the data that had been unlawfully obtained by a private investigator ‘blagging’ banks to disclose financial information about its customers. Importantly, the employee for whom the report was commissioned, did in fact commit large-scale fraud on the company.

Merry successfully applied to extend the brief to Anu Mohindru, who then led her in the case. The case was unusual in that a corporate defendant, a multi-national pharmaceutical company, was co-charged, as was a director alleged to be a ‘directing mind’ of the company.

The case proceeded to trial at Warwick Crown Court. There was disagreement between the prosecution and the defence as to the true construction of section 55 (a) and (d) in the Act: namely, whether the obtaining of said data was necessary for the detection or prevention of crime, or was in the public interest. The defence bar mounted a legal argument that the construction of a statutory ‘defence’ in section 55 of the Act must be an objective, not subjective, test.

The judge held that the test was indeed objective. This led to the ICO offering no evidence against all defendants on the second day of trial.

Merry was instructed by Leona Roberts of Slater & Gordon Solicitors.