CASE STUDY 8/01
Victim Support – liaison with An Garda Síochána – disclosure of victims' details – issue of consent
Victim Support is a voluntary organisation which provides support, comfort and counselling to people who have been the victims of crime. The organisation receives funding from the Department of Justice, Equality and Law Reform to assist in its invaluable work; but, as an independent legal entity, it is not an agent of that Department or of An Garda Síochána.
Cooperation between Victim Support and An Garda Síochána has been close. In the past, An Garda Síochána, when investigating criminal offences, had adopted the practice of automatically passing victims' details on to Victim Support, as a means of ensuring that the organisation could contact the individuals affected, and offer their support. This practice worked well for a time, and many victims of crime benefited from the organisation's expert and much-needed assistance. In many cases, however, the victims were not made aware that An Garda Síochána was passing on their details in this way. In some instances, indeed, the victims in question may not have wanted their details made available to any third party, including Victim Support. While the procedure was being applied in good faith, nevertheless I indicated that some indication of informed consent from the victim was necessary, if the referral procedure was to be compliant with data protection law. Indeed, I indicated that, in the event of my receiving a complaint from an aggrieved victim, it would be likely that I would have to rule against An Garda Síochána for incompatible disclosure of personal data. I therefore asked for the position to be reviewed, so that this excellent service might continue on a more secure and legally-compliant basis.
Some time afterwards, I was contacted by Victim Support, which expressed concern that demand for its services had fallen by about 70% in the year since automatic referral ceased. It appeared that An Garda Síochána would only refer personal data to the organisation on the basis of written consent of the victim, and there were concerns that this position was unduly strict. The organisation asked for further clarification of the level of consent that needed to be obtained from victims, to allow the referral service to proceed.
I gave this matter high priority, as I was most anxious to correct any impression that data protection law was responsible for depriving victims of the benefits of the organisation's services.
At a meeting attended by representatives from Victim Support and from An Garda Síochána, this issue was discussed in some detail. I explained that consent, at the scene of a crime, need not necessarily involve the completion of a formal consent form by a victim. In the first place, there would be no difficulty with An Garda Síochána routinely informing victims about the useful support services available from Victim Support. Moreover, victims could be informed that it was Garda policy to refer them to this organisation, if the victims were happy to indicate – whether verbally or in writing – their consent to this. Reasonable steps would, of course, need to be taken to ensure that victims did not feel coerced or pressurised into availing of the service, if they did not want to. If these elements were incorporated into Garda practice, the difficulties in routinely referring people to Victim Support, on the basis of informed consent, could be overcome to a great extent. I also indicated that the relevant Garda file, or the relevant entry on the Garda "Pulse" computer system, should clearly indicate whether the type of consent received from the victim. Finally, I explained that if I were to receive a complaint from an aggrieved victim in the future, I would naturally be obliged to investigate it, and I would look for evidence that the necessary consent had been given, and that appropriate procedures were in place.
I am glad to report that revised procedures are now in place. I am very anxious that the victim support scheme can continue to operate in an efficient and helpful manner while at the same time respecting a vulnerable person's privacy rights. I was very heartened by and wish to place on record my appreciation of the manner in which An Garda Síochána and Victim Support responded to this delicate matter, which, I am sure, will only assist victims far better in the long run. Nevertheless, this case highlights that - even when acting in furtherance of 'good causes' – organisations must be sensitive to people's privacy rights, to ensure that inadvertent breaches of data protection law are averted.
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