Smile, you could be on 'body worn camera'

Take a closer look at all the gadgets and equipment worn by your local police officer and you might notice a small vest-mounted video camera attached to his or her lapel.  The camera,  called a body worn camera (BWC), records police interactions with the public and they may soon be worn by front line officers across the country.

According to news reports, BWCs are popular and have been trialled in every Australian state. For example:

• In the Northern Territory a reported 40 front line officers are officially trialling the equipment, and the Northern Territory Police Association estimates that three-quarters of their force have already bought and are using personal cameras;
• In Queensland, the Palaszczuk government reportedly has committed significant funds for BWCs;  
• In Victoria, Frankston police trialled 22 BWCs in 2013-2014, and Victoria Police is currently evaluating the project in anticipation of expansion.  

Even in the US, President Obama has reportedly asked Congress for $263 million over three years for 50,000 BWCs across the country following the tragic events in Ferguson, Missouri. It wouldn't be surprising to see the use of BWC's extend beyond policing to other areas of enforcement - perhaps parking inspectors, park rangers or fisheries officers keen to document their encounters on duty.

What are their key advantages?

1. Potential reduction in violence.

There is little data on the efficacy of BWCs, but what exists is positive.  The most widely cited study tracked their use by police in Rialto, California.  There, Cambridge researchers found that the use of BWCs decreased incidents of the use of force by 59% and complaints against police by 87%.

Although limited, the study suggests that people are less willing to resort to violence and that police behaviour improves when both parties know they are being recorded, and it also appears to deter members of the public from bringing spurious complaints.

2. Use as an evidentiary tool.

For investigating and prosecuting agencies, the BWC is no doubt appealing as an evidentiary tool.  Clear, verifiable footage captured by BWCs could reduce hours in court examining and verifying the veracity of oral accounts.  This in turn would reduce the public resources spent on each trial and enable courts to hear more cases in less time.

However, investigating agencies using or considering using BWC footage as evidence will need to take into account a range of factors including:

• Admissibility requirements. The admissibility of footage captured by body worn cameras will generally be governed by the principles which apply to the admissibility of evidence in general.  In Victoria these principles are set out in the Evidence Act 2008, which generally provides that evidence is admissible if it is relevant to the issues in dispute between the parties and either is not hearsay or, if hearsay, falls within an exception to the hearsay rule.  However, depending on the jurisdiction in which the dispute is brought, other provisions may be applicable: see for example s 98(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998.
• Pre-trial disclosure requirements. Agencies will need to be equipped to hand over relevant footage, or at least have facilities for defence lawyers to view the footage in a secure setting.  Whether interested parties, including the media, can access footage when no prosecution is on foot will be another matter for determination.

Other legal considerations

Privacy 

To date, no specific Victorian legislation removes the statutory privacy obligations of police and other agencies using BWCs.  Agencies intending to use BWCs should therefore ensure that their use complies with legislation regulating the collection, use and disclosure of personal and health information, and in particular the Charter of Human Rights and Responsibilities Act 2006, the Privacy and Data Protection Act 2014 (PDP Act) and the Health Records Act 2001. Notably, the law enforcement exemption to the PDP Act, if applicable, would allow Victoria Police to collect, use, disclose and restrict access to information recorded by BWCs when reasonably necessary to carry out law enforcement functions. In some circumstances the Surveillance Devices Act 1999 may also apply. Amendments to privacy notices are likely to be required.

The law also restricts publication of personal and sensitive information including details of sexual assault, family violence victims and children involved in court proceedings, and information that could prejudice the fairness of any pending or in progress trials.  Agencies will need to be especially careful to identify and appropriately deal with personal information of third parties that is captured in background events and peripheral conversations.

Data retention

Information collected via BWCs must be securely stored and otherwise dealt with in accordance with legislation, including the Public Records Act 1973 and the PDP Act Parts 4 and 5 as applicable.  From a practical perspective, continuous recording could mean enormous data storage costs, so agencies will need to develop policies on when to turn the cameras on and off. For example, it has been reported that the practice in the Northern Territory is to turn on the BWC only when police exercise their powers or 'make customer contact or custody'.

For further information on these issues please contact members of our Policing Practice Group or Technology and Data Protection Practice Group:

Louise Jarrett
Managing Principal Solicitor
t 9247 6798
louise.jarrett@vgso.vic.gov.au

Grahame Best
Solicitor
t 9247 6425
grahame.best@vgso.vic.gov.au

Deidre Missingham
Senior Solicitor
t 8684 0483
deidre.missingham@vgso.vic.gov.au