Trustee in bankruptcy: FOI release

FOI reference: FOI/18/01337
Date received: 9 May 2018
Date responded: 24 May 2018

Information requested

1. Can you confirm the process that a trustee in bankruptcy (TIB) must follow if they wish to place a private investigator onto a debtor during his/her bankruptcy?

2. Can you confirm the overall remit a TIB can grant to a private investigator? For example, can it include covert surveillance such as phone tapping and email access?

3. Does the court have to grant such a request before the TIB can proceed with such an act?

4. What part does the AiB play in all of this i.e. in terms of preparing court papers etc?

5. Is the debtor entitled to see all of his personal information ingathered by the private investigator following his/her discharge from bankruptcy as per his/her legal rights as a data subject?

6. When constructing a Bankruptcy Restriction Order (BRO) can the AiB use police classified evidence for the purposes of supporting their allegations, and can this classified evidence be included in a court submitted document before it is heard in the case it was originally ingathered for?

Response

I will provide response to your questions in the order they were presented.

1. Surveillance - There are different procedures which are dependent on who is trustee in the bankruptcy:

Surveillance – AiB not trustee

The trustee's appointment is personal therefore, there is no requirement to request authority, from AiB, before undertaking surveillance.

Surveillance – AiB is trustee

The Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA) was brought into force to ensure that surveillance activities undertaken by certain public bodies in Scotland (or others acting as their agents) are properly regulated and fully compliant with human rights legislation, in particular the right to respect for private and family life guaranteed under Article 8 of the European Convention on Human Rights. Under the provisions of the RIPSA, The Accountant in Bankruptcy (the Accountant) is a relevant public authority.

The Act provides that in certain circumstances authorisation must be sought before activities can be carried out that may be regarded as infringing Article 8. The consequence of not obtaining an authorisation under the RIPSA may be that the outcome of the action is deemed inadmissible in a court of law by virtue of the fact that its collection was not fair and therefore, unfair to be presented as evidence in court.

For AiB, RIPSA authorisation can only be considered for three purposes:

• In the interests of public safety;

• For the purpose of protecting public health; and

• For the purpose of preventing or detecting crime or preventing disorder.

All requests for covert directed surveillance must approved by the Accountant.

2. I am not able to answer this question as it does not relate to a case where AiB is the trustee.

3. No. See point 1.

4. See point 1.

5. The Data Protection Act 1998 (DPA) gives data subjects the right to access their personal data, therefore a data subject can ask to see personal information ingathered about them by a private investigator following discharge. However, Part IV DPA 1998 makes provisions for information to be exempted from disclosure in certain circumstances. Without knowing the content of the information ingathered and where it originated from, whether or not the trustee is still in office and whether or not any investigation or other legal proceedings are on-going, we would be unable to say whether or not the data subject would be entitled to see all personal information ingathered by a private investigator.

6. AiB will ingather information and evidence, which will confirm or reject, that the behaviour of the debtor, either prior to and/or during their bankruptcy, has been such that a Bankruptcy Restriction Order should be made. AiB will then determine if there is sufficient information and evidence to support a decision by the Accountant to impose a BRO, or for an application for a BRO to be made to a sheriff.

A restriction for a period of between 2 and 5 years is imposed by the Accountant in Bankruptcy. A restriction for a period of over 5 years is imposed by a sheriff following an application to the relevant court.

If the decision is made to proceed with a BRO for 5 years or more, AiB will submit an application to court, along with relevant documents to support the application (productions). The court application and the productions are a matter of public record and can be viewed at the appropriate court.

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