The Criminal Justice and Immigration Act has now received royal assent. Section 77 provides that the Secretary of State by Order may introduce custodial sentences for Data Protection Act offences. The section came into effect on the day the Act was passed, 8 May 2008. Still, it seems there is a further step before we see custodial sentences for s55 unfair obtaining or disclosure offences especially as the commencement provisions for the Act require an Order under section 77 to go before both Houses in draft form before introduction.

The Information Commissioner's Office welcomed other enhanced powers under the CJIA 2008. There is provision for increased fines for deliberate or reckless breaches of the Data Protection Principles which they are hoping will act as a deterrent. Section 144 amends section 55. The penalty is levied by the Commissioner in cases where he feels there has been a serious contravention of section 55 of a kind likely to cause substantial harm or substantial distress. The necessary mental intent to commit the offence is either deliberate or if the perpetrator –

• knew or ought to have known
• that there was a risk that the contravention would occur, and
• that such a contravention would be of a kind likely to cause substantial damage or substantial distress, but
• failed to take reasonable steps to prevent the contravention.

The section is not yet in force, it will be brought in by Order of the Secretary of State, probably a Commencement Order along with other sections.

The Information Commissioner did not comment on the section 77 power to introduce custodial sentences for some data protection offences, a sign that the section will not be brought into force any time soon.

Mandy P Webster