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Record, Retain and Review

• Aug 24, 2023
• Latest Journal

Disclosure of digital recordings for police custody of a detainee, from the point of incident, arrest and throughout the custody unit detention.
By Joanne Caffrey, Expert witness for police custody, use of force and ligature deaths

When a death in custody occurs there are standard procedures which occur, and these include seizure of all digital recordings from point of initial contact – body worn footage, vehicle CCTV, and custody unit CCTV. It is automatically accepted that these recordings may be relevant to the investigation, and may have a bearing on any issue in the case. However, the same principles are not always considered for cases which do not involve a death. This means evidence can be lost, and issues cannot be confirmed or refuted.

In this paper I will discuss some of the reasons why such digital recordings, which have been recorded, should be reviewed and retained and listed on the disclosure schedules.
When a person is arrested they may, or may not, be prosecuted. Likewise, a member of the public may lodge a complaint or case against the police officer. The officer may find themselves as either part of the prosecution or as a defendant.

Any digital recording may be capable of having a bearing on any issue raised with the case. At the point of charging, or releasing without charge, the prosecution are unlikely to know what the defence may be. This will be raised with the defence statement in due course, which identifies the line of defence. These lines of defence may have never been considered by the officer in the case/disclosure officer, at the time.

For example, the defence could state:
• Legal entitlements were not complied with making some key evidence inadmissible;
• That some recorded information will undermine the prosecution case and/or indicate new lines of investigation for another suspect;
• That due to recorded behaviours it was reasonable to believe the detainee was suffering from a condition which made their consent/lack of consent invalid;
• That due to behaviours it was reasonable to believe the detainee needed to be afforded the safeguards which the law allows them to have access to, which they were not afforded.

From an officer point of view, if such allegations are made by the defence how do you dispute such lines of enquiry?
As an expert witness, the best evidence for me to review are the digital recordings. The written custody record is not always an accurate record of what was said, done, or experienced. The digital footage allows for the context to be considered.

So why in so many cases, which do not involve death in custody, is the digital recording not listed on the used/unused schedule of material for disclosure? In some cases when the disclosure officer is asked such a question it simply boils down to the fact they did not realise that the custody BWV/CCTV may be part of the ‘relevance test’. Custody CCTV has become so ‘normal’ that officers simply do not consider it being relevant to the event(s) which occurred outside of the unit.

Let us take a look at the law and guidance concerning recordings, retention and review.

Legislation wise, the key legislation (see comparable for Scotland and Northern Ireland) involving digital recordings includes:
The Criminal Procedure & Investigations Act (CPIA) 1996 and Codes of Practice;
• The Freedom of Information Act 2000
• The Data Protection Act and GDPR
• The Protection of Freedoms Act 2012 and the Surveillance Camera Code of Practice

Guidance exists concerning the use of body worn video (BWV). All recordings should be treated as ‘subject to investigation’ until it is confirmed otherwise. Unless force policy states otherwise, there should be a tendency towards capturing audio/visual evidence when deciding whether to record. Prior to disposal, officers are required to take all reasonable steps to ensure that the images are not required as evidence in any case or complaint under investigation.

Disclosure officers and/or investigators must inspect, view, listen to, or search all relevant material. The disclosure officer must provide a personal declaration that this task has been completed. In some cases, a detailed examination of every item of material seized would be disproportionate. In these cases, the disclosure officer can apply search techniques.

The prosecution duty is:
to take all proper care to preserve the exhibits safe from loss or damage;
to co-operate with the defence in order to allow them reasonable access to the exhibits for the purpose of inspection and examination;
to produce the exhibits at trial

BWV footage will be potentially disclosable as unused material if it is not being used as evidence.
Relevant material may be relevant to an investigation if it appears to an investigator, or to the officer in charge of an investigation, or to the disclosure officer, that it has some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case.

The reasons why Police use BWV might include:
continuing to record will safeguard the BWV user against any potential allegations from either party
continuing to record will safeguard both parties as it is a true and accurate recording of any significant statement made by either party and of the scene
BWV should be used when attending a mental health related police incident. The National Police Chiefs Council (NPCC) agreed definition of a Mental Health Incident is: “Any police incident thought to relate to someone’s mental health where their vulnerability is at the center of the incident or where the police have had to do something additionally or differently because of it.”

BWV material is required to be disclosed to the defence.
A ‘policing purpose’ covers all situations where a user exercises a police power, where they would have ordinarily made a record in their pocket notebook, or there is a strong and reasonable presumption towards collecting/capturing evidence.

Officers should begin recordings at the start of any deployment to an incident and continue uninterrupted until the incident is concluded, for example, at the resumption of normal patrolling or because recording has commenced through another video system at a custody centre.

This means that digital footage has been recorded concerning not only the incident but also the transportation of the detainee, until handed over to the custody officer. This footage is therefore all subject to the requirement to review and retain and disclose it within the used/unused schedules.

Once at custody, typically the cameras will cover from the vehicle dock area with visual recordings. College of Policing recommends that the custody officer’s desk area and the intoxilyser room are both covered with visual and audio recordings. These will also be recordings which require review and retention and listing on the schedules. These recordings may be relevant to the defence to establish if they are capable of having a bearing on any issue raised within their defence statement.

When the prosecution receive any updated defence statement(s) they are required to review the material again. The overriding principle being if there is any doubt retain the footage and disclose on the schedules.
Handover procedures between custody staff, concerning a detainee, are recommended to be conducted within sight and sound of the CCTV system. The information covered should include the risks, disabilities, medical needs, vulnerabilities, emerging issues, control strategies and welfare needs of each detainee. It should also cover the status of each investigation, including the actions required to achieve effective and lawful resolution of the matter for which the person has been detained. The incoming shift of custody officers and staff must ensure that they are aware of all of this information. The recording will demonstrate what the custody staff were aware of, and/or what was passed on.

CCTV can be used to record activity in many areas, including:
the vehicle docking area
entrance to the custody suite
access corridors to and from the rest of the police station
holding areas
the charge room area
the custody officer’s desk in the charge room (it should provide separate images showing the officer’s face/body, detainee’s face/body and property transfer on desk)
detainees’ property store or entry to this area
cell corridors
entry to the interview rooms
the fingerprinting area
the evidential breath analysis device room
exercise yard
the custody office CCTV equipment cabinet
the custody CCTV viewing area
cell interiors (including detention rooms)

CCTV may visually cover the following areas but, because of the need to protect legal privilege, should not have audio-recording or audio-monitoring facilities:
rooms set aside for private legal consultation
general interview rooms

The CCTV for the custody officer’s desk and the evidential breath analysis device room must contain audio.
Forces should use cells with CCTV for the safety and welfare of all detainees and not only those who pose specific risks. The requirements of continual observation cannot be replicated by relying on the existence of CCTV.

The officer or member of staff appointed to monitor detainees continuously via CCTV must not be expected to view more than four cells simultaneously on a split screen display, or to carry out additional duties that may distract them from continuously viewing the CCTV.

People whose images are recorded on custody CCTV systems are, however, entitled under data protection legislation to request access to the CCTV recordings via a subject access request.
Retention periods for images seized under the CPIA are the same as for all unused material.

Concerning the purpose of this article, it is essential that officers recognise the digital records of a person’s custody (from incident to release) is recorded information which requires a review and retention decision. It needs to be subjected to the ‘relevance test’ to consider if there is any recorded data which is capable of having a bearing on any issue raised in this case. Subject to defence statements this review needs to be further considered, to ensure that relevant digital recordings are not unnecessarily disposed of. Where there is doubt, the recordings should be listed on the unused material schedule. Remember, that a person can always apply to access the data regardless of whether a prosecution continues.

Ms. Joanne Caffrey

 

 

 

 

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