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."
