The Act Commentary on Sections Part 8 - Data Protection Act 1998 Warrant for entry and inspection
782.Paragraph 14 of Schedule 20 amends Schedule 9 to the 1998 Act to give broader inspection powers to the Information Commissioner in relation to warrants obtained under Schedule 9 to the 1998 Act.
783.Paragraph 14(2) amends paragraph 1 of Schedule 9 to give a circuit judge or a District Judge (Magistrates’ Courts) the power to grant a warrant to the Information Commissioner on the grounds that a data controller has failed to comply with the requirements of an assessment notice.
784.Paragraph 14(3) broadens the range of activities the Information Commissioner can engage in when executing a warrant granted under Schedule 9. In particular, it gives the Information Commissioner the power to require any person on the premises to provide an explanation of any document or other material found on the premises (new paragraph 1(3)(e)) and to require such a person to provide information that is reasonably required to determine whether there has been any contravention of the data protection principles (new paragraph 1(3)(f)).
785.Paragraph 14(4) and 14(5) provide for amendments to Schedule 9 to the 1998 Act that are consequential on the introduction of warrants for failure to comply with an assessment notice. Under the amendments in paragraph 14(4) the requirement in paragraph 2(1)(a) of Schedule 9 to the Data Protection Act 1998, that before a warrant can be issued the Information Commissioner must give seven days’ notice in writing to the data controller demanding access to the premises, cannot be satisfied by serving a data controller with an assessment notice. The amendment in paragraph 14(5) reflects the fact that the new test for granting a warrant would not be dependent on the Information Commissioner finding evidence on the premises to be searched.
786.Paragraph 14(6) makes amendments to paragraph 12 of Schedule 9 to the 1998 Act, which provides a criminal offence for the obstruction of, or failure to assist, a person executing a warrant under that Schedule. The additional text extends the offence to cover deliberately or recklessly making false statements in response to the new powers to require information created in paragraph 14(3) detailed above.
787.Paragraph 14(7) provides protection against self-incrimination for any person required to provide information under the extended powers created under paragraph 14(3) above. In particular, any information provided by that person in response to these new powers under a warrant cannot be used as evidence in criminal proceedings against that person. However, this protection is not absolute, and the response given can be used in evidence if the offence concerned is either the offence of obstructing or failing to assist a person executing a Schedule 9 warrant or is one of a specific group of perjury offences. Furthermore the response can be used in evidence for the prosecution of any criminal offence if the accused acts in such a way as to forfeit this particular protection. In those circumstances evidence of the original statement becomes admissible in order to rebut the false assertions made by the accused.