| Data Protection Act 1998 |
| 1998 Chapter 29 - continued |
| PART V, ENFORCEMENT - continued |
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| back to previous text |
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| Restriction on enforcement in case of processing for the special purposes. |
46. - (1) The Commissioner may not at any time serve an enforcement notice on a data controller with respect to the processing of personal data for the special purposes unless-
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(a) a determination under section 45(1) with respect to those data has taken effect, and |
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(b) the court has granted leave for the notice to be served. |
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(2) The court shall not grant leave for the purposes of subsection (1)(b) unless it is satisfied-
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(a) that the Commissioner has reason to suspect a contravention of the data protection principles which is of substantial public importance, and |
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(b) except where the case is one of urgency, that the data controller has been given notice, in accordance with rules of court, of the application for leave. |
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(3) The Commissioner may not serve an information notice on a data controller with respect to the processing of personal data for the special purposes unless a determination under section 45(1) with respect to those data has taken effect.
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| Failure to comply with notice. |
47. - (1) A person who fails to comply with an enforcement notice, an information notice or a special information notice is guilty of an offence.
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(2) A person who, in purported compliance with an information notice or a special information notice-
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(a) makes a statement which he knows to be false in a material respect, or |
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(b) recklessly makes a statement which is false in a material respect, |
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is guilty of an offence.
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(3) It is a defence for a person charged with an offence under subsection (1) to prove that he exercised all due diligence to comply with the notice in question.
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| Rights of appeal. |
48. - (1) A person on whom an enforcement notice, an information notice or a special information notice has been served may appeal to the Tribunal against the notice.
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(2) A person on whom an enforcement notice has been served may appeal to the Tribunal against the refusal of an application under section 41(2) for cancellation or variation of the notice.
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(3) Where an enforcement notice, an information notice or a special information notice contains a statement by the Commissioner in accordance with section 40(8), 43(5) or 44(6) then, whether or not the person appeals against the notice, he may appeal against-
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(a) the Commissioner's decision to include the statement in the notice, or |
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(b) the effect of the inclusion of the statement as respects any part of the notice. |
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(4) A data controller in respect of whom a determination has been made under section 45 may appeal to the Tribunal against the determination.
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(5) Schedule 6 has effect in relation to appeals under this section and the proceedings of the Tribunal in respect of any such appeal.
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| Determination of appeals. |
49. - (1) If on an appeal under section 48(1) the Tribunal considers-
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(a) that the notice against which the appeal is brought is not in accordance with the law, or |
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(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, |
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the Tribunal shall allow the appeal or substitute such other notice or decision as could have been served or made by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.
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(2) On such an appeal, the Tribunal may review any determination of fact on which the notice in question was based.
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(3) If on an appeal under section 48(2) the Tribunal considers that the enforcement notice ought to be cancelled or varied by reason of a change in circumstances, the Tribunal shall cancel or vary the notice.
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(4) On an appeal under subsection (3) of section 48 the Tribunal may direct-
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(a) that the notice in question shall have effect as if it did not contain any such statement as is mentioned in that subsection, or |
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(b) that the inclusion of the statement shall not have effect in relation to any part of the notice, |
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and may make such modifications in the notice as may be required for giving effect to the direction.
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(5) On an appeal under section 48(4), the Tribunal may cancel the determination of the Commissioner.
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(6) Any party to an appeal to the Tribunal under section 48 may appeal from the decision of the Tribunal on a point of law to the appropriate court; and that court shall be-
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(a) the High Court of Justice in England if the address of the person who was the appellant before the Tribunal is in England or Wales, |
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(b) the Court of Session if that address is in Scotland, and |
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(c) the High Court of Justice in Northern Ireland if that address is in Northern Ireland. |
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(7) For the purposes of subsection (6)-
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(a) the address of a registered company is that of its registered office, and |
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(b) the address of a person (other than a registered company) carrying on a business is that of his principal place of business in the United Kingdom. |
| Powers of entry and inspection. |
50. Schedule 9 (powers of entry and inspection) has effect.
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