OUT-LAW has also discovered that the Association of Chief Police Officers (ACPO) advises forces that warnings about the use of the cameras can be placed further down a road than the cameras themselves and still comply with legislation. This could breach the 'fair processing' principle of the Data Protection Act which requires visible warnings to be placed before the camera location.
In his annual report, Chief Surveillance Commissioner Sir Andrew Leggatt has warned that automatic number plate recognition (ANPR) cameras could qualify as covert surveillance, and be illegal. "The unanimous view of the Commissioners is that the existing legislation is not apt to deal with the fundamental problems to which the deployment of ANPR cameras gives rise," he wrote in his report to the Prime Minister and to Scottish Ministers.
"The Commissioners are of the view that legislation is likely to be required to establish a satisfactory framework to allow for the latest technological advances," he wrote.
The Home Office has confirmed to OUT-LAW that it is investigating the situation. "We are examining whether primary legislation is required in this area," said a Home Office spokesman. "This is under consideration."
The Commissioner warns of human rights and privacy issues with the use of the cameras, which record number plates and images of people inside cars for police purposes. Leggatt says that the use of the cameras, could be categorised as covert surveillance under the controversial Regulation of Investigatory Powers Act (RIPA). The questionable legal status of the covert cameras could impact on prosecutions, he warned.
"The admissibility at trial of evidence obtained in this way would probably depend on whether its admission would have an adverse effect on the fairness of the proceedings," he wrote.
However, one privacy expert said that data protection law requires such cameras to be visible. Dr Chris Pounder, a data protection specialist with Pinsent Masons, the law firm behind OUT-LAW.COM, said that "as these cameras collect personal data on every car that passes, they are subject to the fair processing obligations under the Data Protection Act. This in turn means that there should be transparency of data collection and drivers and people in cars should thus know that there are cameras in use, and that if this is the case, the cameras cannot be covert."
But an ACPO document uncovered by OUT-LAW has this to say on what forces need to do in order to notify drivers: "the Act does not specify where the signs are to be placed in relation to the camera site. Indeed nothing in the Act would prevent the signs being displayed at or even after the camera site."
The document, from 2004, was produced by ACPO's National ANPR User Group. When contacted by OUT-LAW, ACPO did not comment on the document or confirm or deny its authenticity. The issue of signage is vital because without proper signs the use of cameras would breach Data Protection legislation. OUT-LAW understands that ACPO is revising the document.
The Information Commissioner's Office said that the use of cameras is covered by data protection legislation. "Anyone operating cameras must work within our CCTV code of practice on it," said a spokesman for the ICO. The ICO would deal with complaints on the basis of data protection breaches, while the Surveillance Commissioner would deal with issues of criminality and RIPA, he said.
The ICO believes that for cameras to obey its fair processing obligations, anyone being recorded would have to be notified by signs, but that in the case of moving vehicles this becomes a complicated issue.
"Our guidelines say that for any CCTV system there has to be clear and appropriate signage to alert people to their use," said the spokesman. "This is more complicated in relation to fast moving vehicles and safety and the amount of signs on stretches of road." He said that the ICO was soon to produce new guidelines on all CCTV use, including ANPR.
The Surveillance Commissioner said that even the obvious signposting of the existence of cameras was not enough to make their use legally watertight. "It is arguable that even if the presence of an ANPR camera is apparent, surveillance nevertheless remains covert if occupants of vehicles are unaware that the camera may make and record identifiable images of them," he wrote. "It is not possible to lay down rules as to what will amount to adequate notice of the presence of the camera and of its function."
Footnote: Dr Chris Pounder was a consultant with Pinsent Masons until September 2008. He now runs a new training business, Amberhawk.