OTS p20 Legal Jun09.qxp 28/05/2009 11:21 Page 20
business building · legal
Keeping an eye on things
With every late night premises now required to have CCTV fitted under the Licensing
Conditions (Late Opening) (Scotland) Regulations 2007, Stephen McGowan from Tods
Murray argues that CCTV could actually be seen by some as illegal.
A couple of people in the trade have asked me about controller is subject”. In my view, this provision can
the legality of CCTV in pubs recently. There has been an easily be interpreted to include the legal obligation to
interesting statement from the Information provide CCTV on late night premises as a mandatory
Commissioner (IC) in relation to the use of CCTV in late night condition. In researching the point, I contacted
pubs which no doubt sparked their queries. On 16 the assistant information commissioner for Scotland who
March, an IC spokesman said: “Hardwiring surveillance agreed with this interpretation.
into UK pubs raises serious privacy concerns… installing It should also be noted that the quote at the top of
surveillance in a particular pub to combat specific this article is in relation to a blanket approach taken in
Stephen McGowan is a
problems of rowdiness and bad behaviour may be Islington, London – our mandatory late night conditions
trainee solicitor with Tods
lawful, but hardwiring in blanket measures across entire are much more focused, and certain tests have to be
Murray LLP. He can be
areas and including pubs where there has been no met before the CCTV condition is applicable.
reached on 0141 275 4771.
history of criminal activity is likely to breach data Moving aside from this debate, those who have
protection requirements”. installed CCTV already must ask themselves if they have
This comment was made in response to the English done so “to the satisfaction of the police”. If you are
Policing and Crime Bill, in which it is proposed that a such an operator, have you invited the police to your
“A mandatory
mandatory condition of the English premises licences premises to show them your facilities? If not, do so now.
CCTV condition
should be the enforced installation of CCTV. Those of us The police will be appreciative that you are showing
for late night
dealing in the late night trade north of the border will interest and impetus. Whether or not they have the time
premises in
realise that this proposed new English condition already or resources to check every CCTV facility between now
Scotland could
has a ‘kilted’ equivalent north of the border – under the and 1 September is another matter.
well be in
Licensing Conditions (Late Opening) (Scotland) Finally, CCTV operators should be aware that, aside
Regulations 2007, every new premises licence granted from licensing concerns, you also have general duties
breach of the
in Scotland which has operating hours after 1am (and under the 1998 Act as to how the video feed is
Data Protection
meets certain other tests; such as having a capacity of at processed and obtained. The rules are laid down in the
Act 1998.”
least 250) now has a mandatory ‘late night’ condition in 2008 CCTV Code of Practice which can be downloaded
the following terms: “A CCTV system must be installed from the Information Commissioner’s website:
on the premises to the satisfaction of the appropriate www.ico.gov.uk. An example of the rules you need
chief constable and must be kept in good working to adhere to is signage: ensure you have
order”. adequate signage in the premises to
Now, just let that sink in for a minute. If what the confirm that CCTV is in operation.
Information Commissioner is saying is right, then a What happens if a customer
mandatory CCTV condition for late night premises in demands a copy of footage
Scotland could well be in breach of the Data Protection of an incident in which he is
Act 1998. The Information Commissioner’s Code of involved? Individuals do
Practice for CCTV advises against glibly installing CCTV have the right to request
unless a full impact assessment has been carried out; this, which must be
and states: “the fact it is possible, affordable or has provided within 40 days
public support should not be the primary motivating of asking and you may
factor”. The key thing here is that there is a balance to charge a fee of up to £10.
be struck between the use of images and the invasion You may also be asked for
of privacy (remember, for example, Google’s recent copies of the recording by
back-down over its ‘Streetview’ facility). the police; who certainly have
I’m not entirely convinced, however, that this legal the right to access it for crime
doubt has force. The 1998 Act is based on several prevention and enforcement
“protection principles” which are found in Schedule 1 to reasons. Note that Licensing Standards
the Act. The rules regarding the protection principles are Officers have a power under the
expansive and beyond replication here; but include new Act to request sight of
The advice offered on this page is
provisions that “personal data” (which includes images information as they may
published for information only. No
captured by CCTV) shall be processed “fairly and reasonably require.
responsibility for loss occasioned
lawfully”; and can be obtained only for “one or more “Information” is not defined in
by persons acting or refraining
specified and lawful purposes”. The Act also states that the Act but it is suggested that
from action as a result of the
whether the images are processed fairly and lawfully the chances are this may include
material contained on this page can be
includes where the “processing is necessary for digital information including CCTV
accepted by the author or the publishers.
compliance with any legal obligation to which the data footage.
· 20 · ots · june 2009 · www.55north.com
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