Getting the picture on CCTV

Lastly, of course, the police may request that you do so — in which case they often have a lengthy condition they want to see imposed on the licence detailing the retention period of footage, staff capable of downloading relevant footage, and quality of footage.

Subject to issues of proportionality and relevance (a small restaurant with no history of crime and disorder does not need 32 cameras), the question of CCTV is often one of the less contentious issues in negotiations with the police.

However, there is a particular phrase we have seen on many premises licences which causes some concern and is usually written along the following lines: “…and CCTV footage shall be made available to the police immediately upon request”.

It sounds like an innocuous requirement, effectively summarising the obvious: if you have CCTV then if the police need it, they should be able to get it quickly. However, this wording masks a rather difficult legal conundrum that can put the licensee in an invidious and possibly unlawful position.

The complicating factor is the Data Protection Act 1998. We have written about data protection principles in the past, however the Act places a legal responsibility on the “data controller” (usually the licensee or authorised deputy) to hold personal information in accordance with the data protection principles, and not to disclose this personal information unless it falls within one of the exemptions in the Act.

We are not just talking about sanitised or blurred images, but pictures (moving or still) of perfectly innocent members of the public who have a legal right not to have their new hairdo, Ted Baker jeans, or simply their face, pored over, copied, distributed or otherwise manhandled by anyone (including the police) unless it is justified.

Such justification would include needing the images to identify an individual for the prevention or detection of crime, the prosecution or apprehension of offenders, or where the disclosure is required by law, for example, to check that CCTV is being used in accordance with conditions on a
particular licence.

This is a difficult right to defend on your innocent customers’ behalf when a police officer turns up unannounced demanding all the footage from last Friday night. It is also a difficult legal duty to uphold when the question of whether your licence may or may not be reviewed in the light of an incident depends to a certain degree on your perceived co-operation or otherwise with the police in assisting them with their enquiries.

However, if the police do not give any legal justification under the 1998 Act for their request for hours’ worth of footage (in other words, they are “fishing”) and you simply comply with that request, you are in danger of breaching the 1998 Act. This is where the dangers of the condition requiring immediate compliance become evident.

If you do not immediately comply you could conceivably be accused of breaching a condition and, therefore, committing a criminal offence under the Licensing Act 2003. If you do comply, you may be subject to enforcement action under data protection laws.

I have seen this exact situation occur where a licensee, well-versed in his obligations under the 1998 Act, refused to download all the footage from “last weekend” but requested a more time-specific formal request from the police. This elicited a somewhat annoyed response, but it was both the legally correct thing to do and resulted in a more specific request, which the licensee immediately complied with.

Nobody wants to unnecessarily rile the police. Nevertheless, there is an inherent flaw in a condition which requires immediate compliance with a police request for CCTV. The best solution I can see is that either such a condition is amended to add “in accordance with the principles of the Data Protection Act 1998”, or at least that there is a written understanding that requests for CCTV be made with those principles in mind.