CCTV IN LICENSED PREMISES? LICENSING CONDITIONS IN RELATION TO ALCOHOL LICENCES, HUMAN RIGHTS AND THE DATA PROTECTION ACT 1998
CCTV in licensed premises is an issue about which people are rarely neutral. As a licensee you may encounter police representations to the licensing sub-committee that installation is required. Once installed you may face concerns about privacy issues from customers.
Here some of the more frequently asked topics are addressed.
The Police Want Me To Install CCTV On My Licensed Premises. Can The Licensing Authority Require Me To Do So?
The simple answer to this question is ‘yes’. However, you have a right of appeal to the Magistrates Court if you think the licensing authority are wrong to accept the validity of the representations.
The issue can arises in many situations. When applying for a premises license the police may make representations that the licensing authority impose CCTV as a licensing condition. Alternatively, upon an application for a review of a premises licence the police might argue that the installation of CCTV should be added as a licensing condition of actual or perceived ‘problem premises’ in order to promote the licensing objective of prevention of crime.
Can CCTV Licensing Conditions Be Imposed As A Matter Of Course Or Must The Police Justify Their Inclusion?
Until relatively recently many licensing authorities included almost as a matter of course a licensing condition requiring CCTV installation, data retention and cooperation with requests for disclosure without reference to any reasons offered for such requests.
In 2009 the Information Commissioner (‘ICO’), expressed criticism of local authorities which adopt as a ‘blanket’ policy licensing conditions relating to the installation of CCTV. On 22 September 2009 it published the ICO view on CCTV installation being made a condition of an alcohol licence by the licensing authorityin response to complaints from landlords, privacy activists and journalists stating that licensing authorities were making CCTV a condition of a licence as a matter of course. If you would like to access this ICO publication for free, click here .
The ICO view is that whether CCTV should be a condition of a premises licence is a matter that should be considered on a case – by – case basis:
|“CCTV installation and use should not be made a condition of an alcohol licence unless there is a justification for doing so. If there has been no history of crime or antisocial behaviour associated with your premises and no likelihood of future trouble, it is difficult to see how the installation of CCTV can be justified as a licensing condition to prevent crime or antisocial behaviour. …”|
Licensing authorities are public bodies. Consequently, they are obliged to ensure that they act in accordance with the provisions of the Human Rights Act 1998 which provides for remedies in the event of infringement of rights conferred by the European Convention on Human Rights such as the qualified right to respect for a person’s private and family life. This in turn means that the imposition of a licensing condition that entails processing of CCTV must be shown to be necessary and proportionate to meet a legitimate aim such as the prevention of crime and disorder. Additionally, any retention, use or disclosing of personal information caught on CCTV must be carried out in line with the data protection principles as set out in Schedule 1 of the Data Protection Act 1998 . This obligation is set out at section 4 of the DPA, which under section 13 confers in some circumstances a right to compensation for people whose personal data has not been processed in accordance with the Data Protection Act principles.
Precisely because the privacy implications of ‘blanket’ policies on installation of CCTV were widely debated, few if any licensing authorities now openly have such policies. However, in other respects there are policies on CCTV that remain questionable.
For example, Richmond Upon Thames London Borough Council in its licensing policy Achieving The Right Balance (2012) at paragraph 5.1 still states that as a ‘typical’ CCTV condition its licensing sub – committee might require is that:
“CCTV shall be maintained in good order and recordings shall be retained for at least 31 days and be made available for inspection by authorised officers of the Licensing Authority and the Police upon request. Recorded images shall not be blurred or indistinct”
However, the ICO view is that where a licensing condition provides for CCTV images to be provided to the local police “on request” this wording “does not fit in with the provisions of the Data Protection Act 1998 (which requires a prejudice test) and could be seen as contradicting the UK’s obligations to implement the provision of the European Data Protection Directive.”
Other licensing authorities albeit they might formally suggest in their licensing policies that CCTV conditions are considered on a case – by – case basis in fact still encourage licensees to observe ‘blanket’ policies.
For example, Colchester Borough Council in its Statement of Licensing Policy (17 June 2013) states that it:
|“… recommends as best practice, the use of high quality digital CCTV cameras with codec facility to cover the whole of the premises, including the male and female toilets, all public access areas, entrance and exit doors to deter drug dealing, assault and other incidents of crime, in accordance with Section 17 of the Crime and Disorder Act 1998.” (para 3.32)|
On the other hand, the policy also states (paragraphs 5.10 – 5.11):
“5.10 The Licensing Authority considers the effective and responsible management of the premises, the instruction, training and supervision of staff and the adoption of best practice to be amongst the most essential measures for the positive promotion of the four licensing objectives.
5.11 Where reasonable and proportionate, the issues listed in Appendices 17, 18, 19, 20 and 21 should be specifically considered and properly addressed as necessary within the applicant’s operating schedule.”
Appendix 19 concerns CCTV installation. However, by reason of the reference to requirements of reasonableness and proportionality as to whether the issues at Appendix 19 need to be addressed an applicant might consider that every case is determined on its own merits and that no blanket CCTV policy applies. Especially in light of the fact that the statement of licensing policy also states at 5.14:
“The following examples of best practice measures are only provided to assist and guide applicants, who may need to take account of them in their operating schedule after having due regard to their relevance in relation to their particular type of premises and/or activities. It should be noted that these examples are not intended as an exhaustive checklist and will not be used by the Licensing Authority to create standard conditions. All applications are considered in their own individual right and on their own individual merit. Where no representations are received a licence must be granted.
However, if one then looks at Schedule 19 to the statement of policy extracts of which are set out below it is stated (see in particular ’13. Note …’):
Recommended ‘Minimum’ Requirements for CCTV Systems within Colchester Borough
The Licensing Authority recommends that you read and understand the aide memoire for effective CCT systems produced by the Association of Chief Police Officers (ACPO). Essex Police working in partnership with Colchester Borough Council also recommend that all premises within Colchester adopt the following standards.
2. A high quality, preferably digital. CCTV system is installed and maintained in the premises by a NACOSS (NSI) approved company, with cameras covering the whole of the premises including the male and female toilets in order to deter any possible drug dealing, assaults or other incidents, in accordance with the Colchester Crime and Disorder Reduction Strategy and Section 17 of the Crime and Disorder Act 1998.
13. Note – Where it is shown that the identified risks are greatly reduced, the Licensing Authority may agree alternative requirements in consultation with the Colchester Crime Reduction Unit and / or Essex Police.”
Implicit in such a policy statement is an approach that is contrary to the view of the ICO. The onus is put on an applicant to establish that his premises are an exception to a rule that CCTV installation / policy compliance is required. The policy appears to start from the opposite of the premise that the licensing authority must justify on a case – by – case basis that CCTV licensing conditions are actually necessary to promote aims of the prevention of crime and disorder, and that they are also a proportionate interference with right to privacy of customers and licensees.
Unfortunately, as a Guardian newspaper article shows, it is not only licensees in Essex who routinely face police objections unless CCTV is installed as a matter of course.
Sound – Recording And Areas Where There Is A Heightened Expectation Of Privacy
The ICO’s CCTV Code Of Practice (2008) specifically warns with respect to CCTV and areas where there exists a heightened expectation of privacy:
“In areas where people have a heightened expectation of privacy, such as changing rooms or toilet areas, cameras should only be used in the most exceptional circumstances where it is necessary to deal with very serious concerns. In these cases, you should make extra effort to ensure that those under surveillance are aware.” (p. 9)
Clearly, the suggestion that CCTV in such circumstances should be used only exceptionally can place licensees in difficulties. However, where a licensee has serious concerns that illegal activity might take place in such areas, for example, drug dealing or consumption, the use of CCTV is likely to be justified as necessary to the aim of preventing crime and as a proportionate interference with a customer’s right to privacy. However, as the Code makes clear, customers should be made aware that there is CCTV surveillance in such areas by the display of appropriate signs.
With respect to recording sound this is rarely justifiable. The ICO CCTV Code Of Practice states:
|“CCTV must not be used to record conversations between members of the public as this is highly intrusive and unlikely to be justified. You should choose a system without this facility if possible. If your system comes equipped with a sound recording facility then you should turn this off or disable it in some other way. There are limited circumstances in which audio recording may be justified, subject to sufficient safeguards. These could include:
In the limited circumstances where audio recording is justified, signs must make it very clear that audio recording is being or may be carried out.” (p. 10)
If you would like free access to the ICO CCTV Code Of Practice (2008), click here .
What Should I Do If The Police Or A Customer Want To Access The CCTV Recordings?
Disclosure of personal data to the police involves ‘processing’ therefore as a licensee you are required to comply with the Data Protection Act principles to the extent that they have application.
The first principle requires personal data not to be processed unless it is done fairly and lawfully. This in turn requires one or more of the conditions specified in Schedule 2 to be met. This will not be a problem in circumstances where the licensing authority has imposed CCTV licensing conditions because Schedule 2 (paragraph 3) provides that processing is lawful when it is necessary for compliance with any legal obligation (such as licensing conditions) to which the data controller is subject, other than an obligation imposed by contract.
Disclosure to the police is also not a breach of the 1998 Act provided it is done for one or more of the purposes specified at section 29 (1) and non – disclosure is likely to prejudice any of those purposes. These purposes are the prevention or detection of crime, the apprehension or prosecution of offenders and the assessment or collection of any tax or duty or imposition of a similar nature (section 29). The licensee has power to refuse disclosure under the 1998 Act albeit if a licensing CCTV condition specifies that disclosure is required “on request” (without more) this imports a legal obligation with which he must in any case comply.
With respect to proving that the processing (i.e. disclosure to the police) is for such lawful purposes some data controllers require the police when they make a request to view or copy CCTV to complete a pro – forma which includes some detail of the particular lawful purpose. If the licensee is in receipt of such written information, it provides him with evidence that his processing (i.e. his disclosure) of the information is lawful.
As for when customers request copies of such CCTV footage a licensee is normally required to comply with such request provided that the comply with requirements for the making of a subject access request.
If you are a licensee and you would like further assistance in relation to matters related to this article, please contact the licensing team. Call us in strict confidence and without obligation to see how we can assist you, on: 08454 903 567