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Disclosure: the importance of complying with the Surveillance Camera Code of Practice.

We thought it timely to remind all Local Authorities and Police services ('Relevant Authorities' within the Code) that it is possible that a savvy defence Counsel could discredit their CCTV evidence in Court if they are not compliant with the Code of Practice.

The Surveillance Camera Code of Practice (the Code) is prepared by the Secretary of State by virtue of Section 29(1) Protection of Freedoms Act 2012. Its purpose being to drive up standards in the operation of surveillance camera systems in public spaces so that the public may derive trust and confidence in the transparent, lawful ethical and proportionate use of those systems.

Regular followers of my blog will, I hope, have seen the commitment of my Office to promoting the Code. Indeed part of my statutory responsibilities arising from Section 34(2)( a) PoFA is to encourage compliance with the Code by all operators of surveillance camera systems, not just those operated by ‘relevant authorities’ as defined by the Act, a point sometimes lost on some commentators.

Of course, as a matter of law, relevant authorities must have regard to the Code when operating surveillance camera systems overtly in public places. Having launched the National Surveillance Camera Strategy last year and implemented an independent certification scheme supported by industry accreditation bodies, 93% of local authorities report compliance with the Code in respect of their use of CCTV and police forces in England and Wales are working towards 100% compliance. This must improve.

These are increasingly challenging times for system operators and the public alike as the use of facial recognition and expansion of Automated Number Plate Recognition (ANPR) networks in particular coupled with increasingly complex relationships between law enforcement and business bring both opportunities and threats for society. The importance of the Code has therefore never been greater in my view.

‘But what is the point of the Code if there is no sanction for a relevant authority if they don’t have regard to it?’ Not an unfamiliar gauntlet thrown my way, and so I pick it up thus!

Section 33(3) and 33(4) respectively provide that the Code is admissible in evidence in any proceedings, and any court or tribunal may in particular take into account a failure by a relevant authority to have regard to the Code in determining a question in any such proceedings. I will leave it to you to additionally consider paragraph 1.16 of the Code to avoid turning this blog in to a dreary law dissertation.

The point being, that if as a relevant authority you do not wish to risk undermining the evidential integrity of anything derived from your surveillance camera system (or systems operated by other relevant authorities) which is to be adduced in judicial proceedings, if you do not wish to risk undermining the trust and confidence of your communities by tendering images in prosecution cases which are vulnerable to challenge, then have regard to the Code as the law requires.

Imagine the time invested by officials securing surveillance camera evidence submitted for serious and organised crime prosecutions, ANPR transactions, excellent work conducted between local authorities and police in targeting criminals – all potentially undermined for failing to have regard to the simple principles within the Code.

The Crown Prosecution Service (CPS) agree that where any evidence is to be adduced in judicial proceedings which is derived from a surveillance camera system to which the Act applies, any failure on the part of the relevant authority to comply with Section 33(1) PoFA and the Surveillance Camera Code of Practice in respect of that system should be disclosed to a CPS prosecutor so that the CPS may apply a disclosure test. I am delighted to learn that the CPS is reminding their prosecutors to ensure proper disclosure from the police wherever images are presented to them as part of a prosecution file. The CPS Disclosure Manual will be updated accordingly in due course.

‘The point’ of the Code is therefore pointed and very sharp!

I maintain a ‘whole system’ approach to the regulation of surveillance camera technology, the intrusive capabilities of which go beyond privacy and impact wider civil liberties.

The law, the Code, they are there for a reason.

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