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Body worn cameras: The all-seeing eye?

Body worn cameras: The  all-seeing eye?

By Jeremy King and Peggy Lee

Police 

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Body worn cameras were introduced to increase transparency with Victoria Police, but the laws dealing with their use, storage and disclosure remain opaque.

Snapshot
  • The idea that BWCs promote transparency and accountability in the police force is undermined by the restrictive framework and secrecy provisions.
  • Unfettered discretion given to police officers and the use of ambiguous policy documents have made the effectiveness of this device questionable.
  • Government must take steps to enact laws that will ensure BWCs are used as a meaningful accountability tool.

We are currently living with an unprecedented, increased police presence in our everyday lives. The flashing blue and red lights dominate our roads, come to our houses and even accost us walking down the streets. The emergency laws and powers in the era of COVID-19 have meant that potentially even leaving the house for an unauthorised reason can be considered a crime. You may notice that each time you are stopped and questioned by police, there is a large red glowing light, what Tolkein enthusiasts might have called an “eye of Sauron”, affixed to their chests. This glowing red eye is a body-worn camera (BWC).

A BWC is a small camera for capturing video and audio content which is mounted to the police member’s vest. They were introduced by the Victorian government in 2017 in a purported move to increase accountability of police members. To date, Victoria Police has rolled out more than 8000 BWCs to members across the state.1 Although touted as an alleged accountability tool, it is worth noting that police members also rely on BWC footage to obtain evidence and convictions. 

The swift introduction of BWCs by the Victorian government occurred with a raft of rushed legislative changes. Before some practitioners even became aware of their existence, BWC footage was suddenly being referred to in criminal briefs and affidavits of documents. Despite BWCs having now been in widespread use for several years, the laws dealing with their use, storage and disclosure remain mysterious and difficult to negotiate. Further, the use of BWCs, including when they are turned off and on, has largely been left in the control of Victoria Police which has developed several somewhat ambiguous policy documents in this area. Accordingly, for a device that is supposed to promote transparency, the law surrounding BWCs is unfortunately anything but clear. In a world dominated by COVID-19, where police powers, presence and interaction with members of the community are at their highest, it has become even more crucial to ensure that how these powers are wielded are kept in check. However, significant questions remain about whether BWCs are the answer. 

BWCs in operation

The use of cameras by police is hardly novel. Over the past 20 years cameras have been gradually placed in divisional vans, police station cells and even the reception areas of police stations. BWC use is also accompanied by the stark rise of the use of CCTV in society and the increasing use of mobile phones to capture incidents of police misconduct. 

Even when they have not technically been turned on, BWCs are continuously recording visual footage in 30-second loops. On formal activation, BWCs immediately start recording both sound and vision. Further, once they are activated, the previous 30-second visual loop is also preserved, meaning that all saved BWC footage technically starts 30 seconds before the member has formally turned it on. A visible red light will flash during operation and the recording of audio can be turned off by pushing the big round button which will then continue to only record 30-second visual loops. 

Legislative framework

BWCs were ostensibly introduced in Victoria as part of reforms set to combat family violence issues and to assist with evidence-gathering in this space. Further, when BWCs were introduced, Parliament specifically noted that it was critical BWCs were worn openly and were readily observable by members of the public interacting with police.2 However, despite this acknowledgement by Parliament that BWCs should be seen by the public, the legislation subsequently enacted arguably buries the footage obtained by them deep within layers of secrecy provisions. Further, it is important to note that the use of BWCs is almost solely governed by policy documents such as such as the “Body-Worn Camera Activation Framework” (the Framework) and Victoria Police Manual, as opposed to legislation.

The legislative provisions dealing with BWCs are contained in the Surveillance Devices Act 1999 (Vic)4 and Criminal Procedure Act 2009 (Vic),5 both of which were amended by the Justice Legislation (Body-worn Cameras and Other Matters) Bill 2017 (Vic) and the Justice Legislation Amendment (Family Violence Protection and Other Matters) Bill 2018 (Vic). The Criminal Procedure Act 2009 (Vic) in particular had to be specifically amended to allow statements recorded by the BWCs to be used as evidence-in-chief in proceedings concerning family violence-related offences.

The amendments to the Surveillance Devices Act 19997 have also meant that any information obtained from the use of a BWC is now classified as “protected information” as defined in s30D of the Act. Section 30E also limits the use of protected information and creates an indictable offence in relation to the unlawful use, communication or publication of protected information.8 Although, it is important to note s30E(4) does allow information from BWCs to be disclosed in open court or if the information has already entered the public domain. Additionally, s30F authorises the use of local protected information for various purposes including the investigation of an offence, the investigation of a complaint against the conduct of a public officer9 and the making of a decision in relation to the appointment, re-appointment, and term of appointment, termination or retirement of a public officer.10

The legislation that currently mandates use and disclosure of BWCs is quite restrictive. There are significant criminal sanctions associated with the unlawful disclosure or publication of footage from BWCs which tends to undermine the concept that they are designed to promote transparency of police operations.11 For example, a person other than the complainant, must not knowingly copy a recorded statement obtained by a BWC or supply a recorded statement to another person, and doing so may attract a maximum of two years’ imprisonment. However, s387L(4) does allow for the utilisation of BWC recorded statements for investigation purposes and also allows a person or practitioner to prepare for court proceedings where the statement may be used in evidence. 

When should BWCs be turned on?

Perhaps the most controversial element of the use of BWCs is the almost total discretion afforded to police members regarding their use and the lack of any specific penalty for misuse. 

Within the Framework, police officers are expected to wear a BWC and switch on the cameras when:

  1. “Police officers are exercising a legislated or common law power and the recording would assist in collecting evidence; or
  2. any other occasion when the police officer believes a recording necessary:
    1. to capture an incident occurring, likely to occur, which has occurred; or
    2. that would provide transparency of a public interaction or police activity”.12 

The Framework gives police officers significant discretion in choosing when and what to film using BWCs. When a recording has not been made, in circumstances where it arguably should have, or the recording is stopped prematurely, a police member is supposed to make a notation outlining the circumstances on Electronic Patrol Duty Return Form, Initial Action Pad, diary or on the recording itself prior to deactivation.13

As demonstrated by incidents in the United States, complete discretion over the use of BWCs can unfortunately undermine the value of BWCs. The Mesa Police Department in Arizona found that giving officers discretion on the issue resulted in a 42 per cent reduction in video files generated monthly.14 Multiple cases have already emerged in which police officers appear to deliberately stop recording during violent altercations with members of the public.15

A 2015 report on BWCs in Phoenix, Arizona noted that only about 20-29 per cent of incidents that should have been recorded by BWCs actually were.16 Similarly, Denver’s Office of the Independent Monitor found in 2014 that less than half of use-of-force incidents involving officers wearing BWCs were recorded because the cameras were either turned off or experienced technical problems.17 Further, an American study found that when officers could turn cameras on and off, use of force rates were 71 per cent higher compared to control conditions.18

While unlawful disclosure faces strict criminal sanctions, there are no similar legislative provisions governing police members who fail to turn on a BWC or turn it off midway through an encounter. The only recourse is an internal inquiry from a superior officer regarding the failure to activate the camera. Although, it is possible that s61 of Victoria Police Act 2013 (Vic) may also apply as this provision requires all police members to comply with the Chief Commissioner’s instructions which would conceivably include the Framework and the Victoria Police Manual. Non-compliance with the Chief Commissioner’s instructions can constitute a breach of discipline under s125(1)(c) of the Act.

Clear laws are required to ensure that officers do not interfere with cameras and that footage is not manipulated or deleted improperly. There must also be meaningful consequences for any officer who fails to record an interaction. The current lack of consequences for police members means there is little incentive for police to use the BWCs in a way that would make them meaningful accountability tools. 

Retention of the footage

The time frame for retention of BWC footage differs greatly depending on the type of incident recorded. For example, where footage captures an alleged indictable offence it should be saved permanently.19 However, in most circumstances, according to Victorian Police policy but not legislation, footage is only retained for a minimum of 90 days.20 After the expiry of the 90-day time period, the footage will be queued for deletion.21 The member then has a further seven days to decide whether or not they will continue with the deletion of the footage or retain it for a further 90-day period.22 

Once the footage has been deleted, the video component and history is permanently removed and cannot be retrieved.23 However, the metadata surrounding that file is kept forever.24 The metadata contains information about the BWC, the identity of the person using the BWC, categories given to the BWC footage by the member, who the footage was shared with, how many times it was viewed and whether it was edited.25 However, once again, it is quite concerning that there are no laws in place to provide clarity regarding retention of the footage or consequences for police members who fail to abide with the proper retention of footage. 

The clock is always ticking for practitioners in respect to whether BWC footage will be preserved. This can obviously be critical evidence in either civil or criminal proceedings. The decision to either retain or delete the evidence is also often at the whim of individual police officers. Accordingly, it is suggested that, as soon as a practitioner is engaged by a client who has had an interaction with police, a letter is written to either the police officer, informant, police station, police member involved in the incident and/or opposing lawyer requesting that the footage be preserved. In this letter it should be noted in addition to Victoria Police policy regarding retention of BWC footage that it is also a criminal offence under s254 of the Crimes Act 1985 for a person to knowingly destroy evidence that may be required in subsequent legal proceedings. Further, it is recommended that this letter is sent even if the 90-day time period has expired, in the event that the footage has not yet been deleted. 

Who has access to BWC footage?

Outside of criminal or civil litigation, BWC footage is currently only directly accessible by Victoria Police members, unless the matter is referred to Professional Standards Command or the Independent Broad-based Anti-corruption Commission (IBAC) where it will be accessible to those agencies for investigation.26 According to Victoria Police’s website, complainants of police misconduct are allegedly able to view the footage at their local station, although there does not seem to be any law or policy document supporting this contention.27 

It is also worth noting that while s30F of the Surveillance Devices Act allows a police officer to utilise BWC footage in respect to the investigation of a complaint, and arguably provide this footage to a complainant, that s30E arguably prevents that complainant from showing anyone or utilising the BWC footage. This means that even in the rare situation of a police complaint being substantiated (with footage attached to the outcome letter) the complainant would still be heavily restricted in terms of what they could do with the footage. If the complaint and footage cannot be made public, even where there is a substantiated complaint, it raises the real question as to the level of public transparency actually provided by BWC footage. Further, we are not aware at this stage of any examples of BWC footage being provided to complainants by Victoria Police. 

A person who had their interaction recorded on a BWC could technically make an application for the footage under the current Freedom of Information regime. To date, there has only been one reported case in respect to the disclosure of BWC footage – Cheung v Commissioner of Police.28 In this decision, the NSW Civil and Administrative Tribunal refused access to BWC footage and stated that the Surveillance Devices Act establishes a strict regime, including criminal penalties, for the collection, use and disclosure of information gathered through the BWCs.29 

Considering the draconian provisions of Victoria’s Surveillance Act regarding the release of BWC footage, it is difficult to imagine that VCAT would allow the footage to be released, particularly given that BWC footage is also technically “protected information” pursuant to s30D of the Surveillance Devices Act. Accordingly, attempting to obtain BWC footage using our Freedom of Information legislation is likely to be a futile exercise. 

When does BWC footage have to be discovered and disclosed? 

For criminal cases, given the recent decision of Roberts v the Crown, there must be little doubt that something as significant as footage of an incident, or even leading up to an incident, would fall within the obligation of disclosure.30 Further, s41 of Criminal Procedure Act 2009 (Vic) also provides that camera footage relevant to the alleged offence is required to be included in the prosecution brief. However, it is still important for legal practitioners to check the exhibits and request a copy if one is missing. In family violence matters, if the accused is represented, the accused’s legal representative must be given an audio-visual copy of digitally recorded evidence-in-chief (DREC).31 If the accused is unrepresented, the accused must be given an audio copy of DREC.32 

If there are multiple police attending a particular scene, a practitioner should request all footage, noting that Evidence.com allows a multidimensional view of footage. A practitioner can also request the retention of the entirety of the footage for a further period of time pending further discussions, disclosure and further negotiations. It is important to make this request as early as practicable and to check if you have received an edited copy of the recording as opposed to a master copy. 

In accordance with its discovery obligations, Victoria Police should also discover the BWC footage in any civil litigation. It is possible that Victoria Police may rely on s30E of the Surveillance Devices Act to claim privilege over the footage or argue that they are statutorily constrained from providing it. Whether this will be upheld by a court remains untested at this stage. 

It is also worth noting that the use, access and disclosure of BWC footage is also governed by Part 13 of the Victoria Police Act 2013 (Vic). Under these legislative provisions it is a criminal offence for police personnel, members and former members to use, access or disclose confidential police information. These are the provisions that will undoubtedly come into play where a police member unlawfully leaks confidential information, such as in the case of Dean Laidley where the pictures of him in custody were leaked to the general public.33 These provisions are also no doubt in the back of police members' minds when choosing how to deal with BWC footage and, in turn, provide further disincentives for police to hand over the footage. These provisions provide a further conflict of policy and law regarding the disclosure of BWC footage and a further barrier to the footage potentially being utilised in a meaningful way or escaping the clutches of the organisation that it seeks to hold to account. 

This is the insidious nature of the laws that surround BWCs. They give almost unfettered access and control of the device to members of the organisation that they seek to make accountable. The community is supposed to have greater faith that police will be held to account by objective video evidence that monitors their ever-increasing interactions with the public. Yet, at the same time, the government has given that organisation almost absolute control over the footage. Accordingly, as for any organisation that retains complete control over their accountable mechanisms, the risks for misuse, conflict in terms of disclosure and self-interest reigning supreme are ever present. A member of the public can make a complaint to IBAC if they believe there has been serious police misconduct. Arguably, the deletion of BWC footage may in the right context fall into this category. However, given the public resources that have been poured into this little device, it remains open whether a separate independent organisation should be created or developed to oversee the use of this alleged accountability tool. The community could then have confidence that if BWCs were misused, there would at least be independent oversight of any misuse. 

Conclusion

Despite the significant roll out of BWCs by the Victorian government, their use, disclosure and retention remain controversial. Further, the question of the actual value of filming police as a means of discouraging misconduct must be asked, especially in light of the recent incidents involving Eric Garner34 and George Floyd.35 We are also living in times where there are powerful calls for the government to stop providing police with endless funding and equipment, noting that this has unilaterally failed to either make police accountable or reduce crime. Such commentators instead call for funding to be re-appropriated to social and welfare programs that actually combat the root causes of crime and therefore reduce the need for policing, good or bad, altogether.36 

Given the government’s investment, however, and the police’s enthusiasm for the devices, it seems that BWCs are here to stay. Accordingly, the government needs to take drastic steps to enact laws that will ensure they are used as a real and meaningful accountability tool. It also needs to ensure that control over the device is not solely within the hands of the very people that the device seeks to hold to account. Without legislative change, the cameras will remain a device for police purposes only and any alleged transparency gains will unfortunately remain opaque. So next time you forget to wear a face mask and are stopped on the way to the shops by a police member with the glowing red eye, and something goes awry, don’t feel safe that the incident is being captured on footage. Given the current state of the law, you might never actually see it. ■


Jeremy King is principal at Robinson Gill Lawyers and an LIV accredited specialist in personal injury law. Peggy Lee is a lawyer at Robinson Gill Lawyers

  1. Farrah Tomazin, “Call for overhaul: Police can deactivate body cameras, edit footage”, The Age (online, 10 November 2019), https://www.theage.com.au/national/victoria/call-for-overhaul-police-can-deactivate-body-cameras-edit-footage-20191108-p538vg.html.
  2. Explanatory Memorandum, Justice Legislation Amendment (Body-worn Cameras and Other Matters) Bill 2017 (Vic) 5.
  3. Victoria Police, Chief Commissioner’s Instruction, “CCI02/18 Body worn camera deployment” (2018).
  4. Justice Legislation Amendment (Body-worn Cameras and Other Matters) Act 2017 (Vic) s1 Body-worn Cameras and Other Matters Act.
  5. Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018 (Vic) s1 Family Violence Protection and Other Matters Act.
  6. Note 5 above, s1(f).
  7. Note 4 above.
  8. Note 2 above, 6.
  9. Surveillance Devices Act 1999 (Vic) s30F(d).
  10. Note 9 above, s30F(e).
  11. Note 9 above, s30E(2).
  12. Note 3 above.
  13. Note 3 above.
  14. Nancy La Vigne, “Five Myths about Body Cameras”, The Washington Post, 29 May 2015.
  15. Emmeline Taylor, “Body-worn cameras are not a panacea for poor policing”, The Conversation, 27 October 2016.
  16. Note 15 above.
  17. Note 15 above.
  18. Note 15 above.
  19. Victoria Police, “Criminal Connections: Body worn cameras” (recorded lecture, Victoria Legal Aid, 22 November 2019) (Criminal Connections: Body worn cameras).
  20. Criminal Connections: Body worn cameras. Chief Commissioner’s Instruction. Victoria Police, BWC Operational Guidelines. Victoria Police, ‘Body worn cameras’ (Web Page, 3 December 2019), < https://www.police.vic.gov.au/body-worn-cameras>.
  21. Criminal Connections: Body worn cameras. BWC Operational Guidelines.
  22. Note 21 above.
  23. Note 21 above.
  24. Note 21 above.
  25. Note 21 above.
  26. “Information use, handling and storage”, Victoria Police Manual – Policy Rules; “Complaint management and investigations”, and “Management of complaint investigation files”, Victoria Police Manual – Procedures and Guidelines.
  27. Victoria Police, ‘Body worn cameras’ (Web Page, 3 December 2019), <https://www.police.vic.gov.au/body-worn-cameras>.
  28. Cheung v Commissioner of Police [2019] NSWCATAD 249.
  29. Note 28 above, at [55].
  30. Roberts v R [2020] VSCA 58, [55]-[64].
  31. Criminal Procedure Act 2009 (Vic) s387H(1)(a).
  32. Note 30 above.
  33. Michael McGowan, “Dean Laidley: second Victorian police officer may be charged over leaked photos of ex-AFL coach”, The Guardian (online, 6 May 2020) https://www.theguardian.com/australia-news/2020/may/06/dean-laidley-second-victorian-police-officer-may-be-charged-over-leaked-photos-of-ex-afl-coach.
  34. Eliott C McLaughlin, “After Eric Garner: What's point of police body cameras?”, CNN (online, 8 December 2014), http://edition.cnn.com/2014/12/04/us/eric-garner-ferguson-body-cameras-debate/index.html.
  35. Omar Jimenez, “New police body camera footage reveals George Floyd's last words were ‘I can't breathe’”, CNN (online, 15 July 2020), https://edition.cnn.com/2020/07/15/us/george-floyd-body-cam-footage/index.html.
  36. Alex S Vitale, “The answer to police violence is not 'reform'. It's defunding. Here's why”, The Guardian (online, 31 May 2020) https://www.theguardian.com/commentisfree/2020/may/31/the-answer-to-police-violence-is-not-reform-its-defunding-heres-why?CMP=Share_iOSApp_Other.

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