Protection of Freedoms Bill

Memorandum submitted by the Deputy Chief Constable of Northamptonshire Police (PF 50)

1. I write to you as Chair of the ACPO - Covert Investigation (Legislation and Guidance) Peer Review Group (PRG). This committee was constituted as a result of the review of the Regulation of Investigatory Powers Act 2000 (RIPA) in 2004. The Group draws on the practical experience of all Covert Authority Bureaux and Authorising Officers within the Police Service and wider Law Enforcement Agencies (LEAs) through a national consultative structure. The PRG also draws expert advice form the National Police Improvement Agency (NPIA) Covert Advice Team and advises a Steering Group chaired by Trevor Pearce – Director of SOCA, on the technical implementation of covert legislation. I also chair the RIPA Strategic Liaison Group, which brings together experts on RIPA from the Home Office as well as representatives from the Office of the Surveillance Commissioners (OSC) and the Interception of Communications Commissioners Office (IOCCO).

2. My written evidence concerns two aspects of the Bill only - namely part two, chapter one - Regulation of CCTV and other surveillance camera technology and the appointment of a Surveillance Camera Commissioner.

3. Section 29 stipulates the preparation of a code of practice. The accompanying consultation on the code of practice relating to surveillance cameras makes it clear that the code will also cover the use of Automatic Number Plate Reading (ANPR). The consultation document states in its opening paragraphs that it is concerned with the overt use of systems such as CCTV and ANPR in public or semi public places where people can generally either see a camera or are informed about its presence. It does not cover covert surveillance techniques which are legislated for through the Regulation Of Investigatory Powers Act (RIPA) 2000.

4. ACPO welcome the intended demarcation between the use of overt CCTV linked to ANPR regulated by the proposed CCTV commissioner and conventional surveillance regulated by the Surveillance Commissioner. At the present time there is a divergence of view between ACPO and Surveillance Commissioners over the application of the Regulation of Investigatory Powers Act 2000 to this policing tactic.

5. The ANPR database is built using a range of overt CCTV cameras. Some cameras are specifically designed to solely capture number plates. Other installations include simple overt town centre CCTV cameras panned and zoomed to capture number plates when not in use for other purposes. According to how the cameras are zoomed they may also take pictures of the whole car and occasionally front seat passengers. Any views through the windscreen are momentary and haphazard. The view depends on the depression angle of the camera, reflections, state of the windscreen, use of sun-visors, height of the occupants, type of vehicle or obscurity caused by other traffic. Police cannot predict the type of CCTV which will capture the number plate read as it is of course dependent on where the vehicle goes.

6. The product of CCTV has for many years been regulated by the Information Commissioner who considers the images to be data, thus falling under the Data Protection Act. There are various principles within the Data Protection Act, chief of which are to keep the data secure and to only use it for certain purposes. One specific purpose is to prevent and detect crime. From this it can be seen that the use of ANPR data derived from CCTV presently falls to the regulation of the Information Commissioner.

7. The OSC have also taken an increasing interest in ANPR technology. Their current advice on this subject is as follows:

7.1. "Tracking the movements of a specific vehicle or person over a protracted period or distance, when no action is taken to stop the vehicle or individual when first sighted, is capable of being directed surveillance".

7.2. "The private life of a car driver is not interfered with because the registration number of his vehicle is recorded by ANPR while he is travelling on a public road. That is because the registration plate is a publicly displayed object. But it is not adequate to say that this is so because the occupants of the car are in a public place: they are but they are ignorant of the technology which is capable of identifying them and their movements or the extent to which the data may be retained and used. Because ANPR is now capable of producing clear images of the occupants of a car, as well as of its registration number, private life may be interfered with. If the occupant is in a private vehicle it may constitute intrusive surveillance if data that is recorded for potential later use is capable of identifying the occupants".

7.3. "Tracking the movements of a specific vehicle or person (persistently or intermittently over a protracted period or distance, when no action is taken to stop the vehicle or individual when first sighted, is capable of being directed surveillance and an authorisation should be obtained. If details of persons or vehicles are placed on a list requiring that an investigating officer be notified or a record is made of the location or movements of the person or vehicle or that vehicle or person is subjected to focused monitoring to build up a picture of the movements of the vehicle or person an authorisation would be expected".

7.4. This advice encourages the Police and other Law Enforcement Agencies to acquire a Directed Surveillance Authority under RIPA when intending to research the ANPR database to obtain a list of camera sites, which a specific car may pass, as part of a proactive intelligence gathering operation.

8. Finally the OSC give this advice on the review of historical data (which is applicable to the ANPR database.)

8.1. "Sections 48(2) of RIPA and s31(2) of RIP(S)A define surveillance as including ‘monitoring, observing or listening’ which all denote present activity; but present monitoring could be of past events. Pending judicial decision on this difficult point the Commissioner’s tentative view is that if there is a systematic trawl through recorded data (sometimes referred to as data-mining) of the movements of a particular individual with a view to establishing, for example, a lifestyle, pattern or relationships, it is processing personal data and therefore capable of being directed surveillance if it contributes to a planned operation or focused research for which the information was not originally obtained".

8.2. "The checking of CCTV cameras or databases simply to establish events leading to an incident or crime is not usually directed surveillance; nor is a general analysis of data by intelligence staffs for predictive purposes (e.g. identifying crime hotspots or analysing trends.) But research or analysis which is part of a focused monitoring or analysis of an individual or group of individuals is capable of being directed surveillance and authorisation may be considered appropriate".

9. The ACPO PRG would suggest that

9.1 No private information (within the meaning of Article 8 ECHR) is acquired by the acquisition of a series of number plates.

9.2 Other databases such as police intelligence or driver vehicle licensing need to be used to associate the number plate with a subject.

9.3 Such databases are already subject to the Data Protection Act.

9.4 The use of such data is currently within the purview of the Information Commissioner and covered by the Data Protection Principles.

9.5 The most important principle in this context is the accumulated data must be kept secure but can be used to prevent or detect crime.

9.6 The use of ANPR cannot be described as surveillance in any ordinary sense of the word as the logging of vehicle numbers is haphazard and could not be used to plot a route taken by a subject. Its use to accurately confirm who was travelling in the vehicle at any one time is by no means assured.

9.7 The requirement to use a directed surveillance authority or worse an intrusive surveillance authority under RIPA, to access the ANPR database is overly bureaucratic and will severely obstruct the use of a legitimate policing tool whilst providing no additional safeguards.

9.8 The Police service would welcome a code, which confirms that the use of this tool does not acquire private information and thus sits outside the scope of RIPA.

10. It can be seen that Police and LEAs use of CCTV and ANPR now exists in a confused regulatory landscape. The two existing laws, codes, advice and guidance – (RIPA & DPA) already overlap and are now to be joined by a third law, code, commissioner and regulatory framework.

11. The PRG are completely content for the Government to impose a regulatory regime, which balances intrusion into a citizen’s ECHR Article 8 rights against societies right to be protected from crime. Any oversight regime however must recognise and resource the bureaucratic burden which is imposed as a consequence. The RIPA review of 2004 estimated that there were 270 police officers and 165 Police staff permanently employed on the administration and authorisation of RIPA at a cost at that time of £40 million. During this period of austerity we are anxious not to add to this sum unnecessarily.

11.1 The PRG would ask for the law to provide absolute clarity between the responsibilities of the regulators mentioned OR as all three regulators are concerned with the State’s engagement with ECHR that consideration be given to their simple amalgamation into a Privacy Commission in the interests of efficiency.

April 2011