CRIM 1/5466 Niven Sinclair

Cathy Fox made this Freedom of Information request to National Archives

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Dear National Archives,
Re CRIM 1/5466
[Name withheld]. Charge: Buggery, indecent assault on a male person and possessing a..
http://discovery.nationalarchives.gov.uk...

I have been told that the individual concerned is Niven James Sinclair and indeed the information appears to fit the information I have. https://cathyfox.wordpress.com/2016/07/0...

I am not sure how it was known that his record was his, but I am assuming that you have previously published the information and then withdrawn it. When was the name withdrawn and why? Under what circumstances are names withdrawn /redacted?

Why has the whole record been hidden for 82 years?

As you can see not only the details in the article above are public but also the court appeals, redacted by myself.

[17] 2016 July 7 Cathy Fox Blog Court Appeal 1 Niven James Sinclair Appeal 1 16 Oct 1967 Court of Appeal https://cathyfox.wordpress.com/2016/07/0...

[18] 2016 Jul 7 Cathy Fox Blog Appeal 2 Niven James Sinclair 6 Feb 1973 Court of Appeal https://cathyfox.wordpress.com/2016/07/0...

[19] 2016 Cathy Fox Blog Appeal 3 Niven James Sinclair 24 Jul 1973 Court of Appeal https://cathyfox.wordpress.com/2016/07/0... Police interviewed and arrested the Appellant on the 3rd September, 1970

Please could the record be reviewed and be released except for sensitive data redacted regarding the victim.

Yours faithfully,

Cathy Fox

foienquiry, National Archives

Dear Cathy Fox,

Thank you for your enquiry of 19 July 2016 regarding a review of:

CRIM 1/5466 Central Criminal Court: Depositions [Name withheld]. Charge:
Buggery, indecent assault on a male person and possessing a firearm
without a certificate. Orderable at item level (parts 1 and 2). With
photographs. Session year: 1970

We are handling your request under the Freedom of Information Act 2000.

We have not yet decided if this document can be opened.  We will respond
to you by 31 August 2016.

The National Archives has to consult other government departments in
relation to this request.  

The FOI Act allows us an extra 10 working days to do so. See section 4(2)
in the following link for details of this extension.

[1]http://www.legislation.gov.uk/uksi/2004/...

Ideally we would wish to respond to FOI requests within 20 working days
but in this case it was not possible.

Yours sincerely,

FOI Assessor
Freedom of Information Centre
Transfer and Access Department
The National Archives

If you would like to contact us again regarding
this request, please contact the helpdesk:

via e-mail: By replying to this e-mail
or (020 8876 3444)
Remember to quote your call reference number: F0046422 in any
correspondence, as this will assist us in providing you with a
quick response.

[2]www.nationalarchives.gov.uk

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2. http://www.nationalarchives.gov.uk/

foienquiry, National Archives

Freedom of Information Request: Reference F0046422

Dear Ms Fox

Thank you for your enquiry of 19 July 2016 regarding a review of:

CRIM 1/5466 Central Criminal Court: Depositions [Name withheld]. Charge:
Buggery, indecent assault on a male person and possessing a firearm
without a certificate. Orderable at item level (parts 1 and 2). With
photographs. Session year: 1970

I am writing to inform you that we are required to conduct a public
interest test in relation to your request and we will let you know the
result of this by 28 September 2016.

This is because some of the information which you are looking for is
covered by section 38 of the Freedom of Information Act 2000.

The FOI Act gives you the right to know whether we hold the information
you want and to have it communicated to you, subject to any exemptions
which may apply.

Section 38 of the Act exempts information that, if it was released, would
endanger the physical or mental health or safety of any individual.

When this exemption applies we are required to consider whether it is in
the public interest to release the information.  However, if it is decided
that the public interest would not be served by releasing the information
we will explain the reasons for this.

Some of the information within the document is also covered by the
exemption at section 40 of the Act.  This exempts personal information
about a third party (someone other than the requester), if revealing it
would break the terms of the Data Protection Act (DPA) 1998.  The DPA
prevents personal information from release if it would be unfair or at
odds with the reason why it was collected, or where the subject had
officially served notice that releasing it would cause them damage or
distress.

We will let you know the outcome of the public interest test as explained
above.  In the meantime if you have any queries regarding this email
please do not hesitate to contact us.  Remember to quote the reference
number above in any future communications.

Yours sincerely,

FOI Assessor
Freedom of Information Centre
Information Management and Practice Department
The National Archives

If you would like to contact us again regarding
this request, please contact the helpdesk:

via e-mail: By replying to this e-mail
or (020 8876 3444)
Remember to quote your call reference number: F0046422 in any
correspondence, as this will assist us in providing you with a
quick response.

www.nationalarchives.gov.uk

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Dear foienquiry,
Reference F0046422
Please could you tell me what is happening re my request?
The request is way overdue, and even taking into account extra time for the public interest test, I believe the time period is beyond any guidance and the National Archives are not complying with the statutes

Yours sincerely,

Cathy Fox

foienquiry, National Archives

Freedom of Information Request: Reference F0046422

Dear Ms Fox

Thank you for your email received yesterday regarding a review of:

CRIM 1/5466 Central Criminal Court: Depositions [Name withheld]. Charge:
Buggery, indecent assault on a male person and possessing a firearm
without a certificate. Orderable at item level (parts 1 and 2). With
photographs. Session year: 1970

We wrote to you on 31st August 2016 to inform you that some of the
information in this document is covered by a qualified exemption under the
Freedom of Information Act 2000.  This requires us to carry out a public
interest test to determine whether the information can be released.

The test is still being considered and we hope to have reached a decision
by 26/10/16.

We hoped it would have been completed by this time but unfortunately a
decision has not yet been reached.  Under the FOI Act we are allowed a
reasonable period of time to conduct the test, and where a case raises
complex public interest considerations we are permitted to extend the time
allowed to reach a decision. Owing to how this procedure works, it can
sometimes be a lengthy process to finalise such cases. The National
Archives has worked hard to be transparent about the time taken for FOIA
requests for historical information and we have published the lifecycle of
our processes on line. You can look at them here:
www.nationalarchives.gov.uk/foi/requests....

Unfortunately on occasions, despite our best efforts this process can go
beyond the initial 20 or indeed 40 day extension. We fully understand that
this can be frustrating for requesters and apologise for any inconvenience
that results from this delay.  However I would like to assure you that
your request is being actively progressed and is currently at Stage 5 of
the lifecycle process.

To remind you, the exemption being considered is section 38 and it exempts
information that, if it was released, would endanger the physical or
mental health or safety of any individual.

Some of the information within the document is also covered by the
exemption at section 40 of the Act.  This exempts personal information
about a third party (someone other than the requester), if revealing it
would break the terms of the Data Protection Act (DPA) 1998.  The DPA
prevents personal information from release if it would be unfair or at
odds with the reason why it was collected, or where the subject had
officially served notice that releasing it would cause them damage or
distress.

I would like to thank you for your continued patience in this matter.  In
the meantime if you have any queries regarding this email please do not
hesitate to contact us.  Remember to quote the reference number above in
any future communications.

Yours sincerely,

FOI Assessor
Freedom of Information Centre
Transfer and Access Department
The National Archives

If you would like to contact us again regarding
this request, please contact the helpdesk:

via e-mail: By replying to this e-mail
or (020 8876 3444)
Remember to quote your call reference number: F0046422 in any
correspondence, as this will assist us in providing you with a
quick response.

www.nationalarchives.gov.uk

Please don't print this e-mail unless you really need to.

show quoted sections

foienquiry, National Archives

Freedom of Information Request: Reference F0046422

Dear Ms Fox,

Thank you for your enquiry of 19 July 2016 regarding a review of:

CRIM 1/5466 Central Criminal Court: Depositions [Name withheld]. Charge:
Buggery, indecent assault on a male person and possessing a firearm
without a certificate. Orderable at item level (parts 1 and 2). With
photographs. Session year: 1970

Having considered the public interest test we have decided that this
information should be withheld.  I regret to say this means we cannot make
this document open to you or to the public in general.

Some of the information in the document is covered by section 38 of the
Freedom of Information Act 2000.  Section 38 of the Act exempts
information that, if it was released, would endanger the physical or
mental health or safety of any individual.

A public interest test was conducted in consultation with the Ministry of
Justice which concluded the following:

Arguments made in favour of the release of the information requested:
There is a presumption running through the Freedom of Information Act that
openness is, in itself, is to be regarded as something which is in the
public interest.

Public authorities should meet peoples requests unless there is a good
reason within the Act not to and organisations must be aware that they do
not have to withhold information even if an exemption applies.

Organisations should not fear setting precedents. All decisions should be
made on their own merits and on a case by case basis at the time of the
request.

Openness furthers the understanding of and participation in the public
debate of issues of the day and allows a more informed debate of issues
under consideration by the Government. It promotes accountability and
transparency by public authorities for decisions taken by them and places
an obligation on authorities and officials to provide reasoned
explanations for decisions made thereby improving the quality of decisions
and administration therefore greater transparency is good for the public
and democracy.

Arguments made against the release of the information requested:
MoJs duty to openness and transparency under the Freedom of Information
Act must not be fulfilled in such a way as to undermine public confidence
that victims right to privacy will be upheld, and must be balanced against
its parallel duties to protect victims and their families from further
harm, shock and distress.

Victims and their families need the reassurance of knowing that FOI Act
access rights will not be allowed to be exercised to their detriment and
will not have the effect of placing in the public domain, personal,
intimate and detailed accounts of the crimes of which they were victims,
forcing them to confront the events in inappropriate circumstances and
causing them further distress in the knowledge that this information can
be accessed freely by the general public.  

Release of information after a considerable period can be considered to
have a similar effect to placing it in the public domain for the first
time.

Outcome of the public interest test:
This file contains material which is likely to be extremely upsetting to
the victim and their family.

Also it is likely that the knowledge that this information had been made
freely accessible would in itself cause them significant mental anguish,
given its very personal and distressing nature.  

Further, as any possible long term effects are unknown, it is considered
inappropriate to risk causing additional harm by making details public and
forcing them to confront them again at a time when they will have
hopefully come to terms with what happened and moved on with their lives.

As noted above, releasing the information after this length of time can be
considered to have the same effect as putting the information into the
public domain for the first time.

It is for these reasons that MoJ find that Section 38 is applicable to the
information as not being appropriate for release.

Most of the information within the document is also covered by the
exemption at section 40 of the Act.  This exempts personal information
about a third party (someone other than the requester), if revealing it
would break the terms of the Data Protection Act (DPA) 1998.  The DPA
prevents personal information from release if it would be unfair or at
odds with the reason why it was collected, or where the subject had
officially served notice that releasing it would cause them damage or
distress.

In this case the exemption applies because the document contains the
personal and the sensitive personal information of a number of identified
individuals assumed to be still living, including the names and addresses
of witnesses and details of personal family life, prior offences and
medical information of named individuals. These individuals would have no
expectation that this information would be made available in the public
domain during their lifetimes; to do so would be unfair and would risk
causing damage and distress, which would contravene the first data
protection principle.

Please find below some further information which I hope will address the
other questions that you raised in your request:-

Personal details in Catalogue descriptions:
A prerequisite for inspecting and obtaining copies of records, and indeed
for finding information within the records, is knowing what records are
held, and that is the purpose of our catalogue.  Sometimes that requires
details like personal names to be included in catalogue entries,
especially if the files are about specific individuals.

Having said that, we do exercise discretion in deciding what personal
details to include in the catalogue.  For example, we would never include
the names of victims of rape or other types of sexual offences, and we try
to ensure that a name in conjunction with other personal details would not
interfere with someones right to a private and family life or put them at
risk of identity theft.

The following link to The National Archives website gives further
information about circumstances in which material, including file titles,
is taken down from our websites, and/or information previously available
in transferred public records is reclosed.

[1]http://www.nationalarchives.gov.uk/legal...

Closure period:
Please find a link below to The National Archives website which gives
information on calculating closure periods for sensitive material:

[2]http://www.nationalarchives.gov.uk/infor...

Redaction:
Redaction is always given very careful consideration when we are reviewing
any file.  However, in some cases, such as this one, it is simply
not possible because of the effect it would have on the ability to
understand the remaining information within the file.  Furthermore, where
the requested file is a case file, their very nature details the specifics
of a case and/or an investigation.  This is in contrast to a policy file
which may only make a passing reference to a case, and may allow for the
redaction of personal details, leaving the main substance of the
information intact and comprehensible.

If you are dissatisfied with the handling of your request or the decision
which has been reached, you have the right to ask for an internal
review.  Internal review requests must be submitted within two months of
the date of this response and should be addressed to:

Quality Manager
Public Services Development Unit
The National Archives
Kew
Richmond
Surrey
TW9 4DU
[email address]

Please mark your complaint clearly.  You have the right to ask the
Information Commissioner (ICO) to investigate any aspect of your
complaint.  However, please note that the ICO is likely to expect internal
complaints procedures to have been exhausted before beginning his
investigation.

Yours sincerely,

FOI Assessor
Freedom of Information Centre
Transfer and Access Department
The National Archives

If you would like to contact us again regarding
this request, please contact the helpdesk:

via e-mail: By replying to this e-mail
or (020 8876 3444)
Remember to quote your call reference number: F0046422 in any
correspondence, as this will assist us in providing you with a
quick response.

www.nationalarchives.gov.uk

Please don't print this e-mail unless you really need to.

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References

Visible links
1. http://www.nationalarchives.gov.uk/legal...
2. http://www.nationalarchives.gov.uk/infor...