Copyright (c) 1999 Stanford Technology Law Review. All Rights Reserved.
SUMMARY:
... This is a scheme at the forefront of an explosion in the use of visual
surveillance equipment throughout Britain over the past decade. ... Bulos and
Sarno recorded a twenty per cent reduction in crime in Sutton town centre in
1994 following the introduction of CCTV. ... The first survey in April 1993
found that ninety-five per cent of those interviewed were in favour of a CCTV
scheme. ... The basis of an operator's suspicion was based on a person's
behaviour in twenty five per cent of cases, but the largest category of
suspicion was based simply on a person's social or subcultural group. ...
However, must it be that when one enters a traditionally regarded public space,
such as the city, any claims to privacy are automatically lost? Certainly this
appears to be the case in regard to CCTV as the law stands. ... It may also
provide remedies for those who feel that they are unreasonably subjected to
surveillance, for example, when a camera is permanently trained on the house or
front garden. ...
http://stlr.stanford.edu/STLR/Symposia/Privacy/99_VS_11/
TEXT:
P1 In October 1998, police in the London Borough of Newham unveiled their state
of the art closed circuit television system with the capability to recognise
individual faces. This is a scheme at the forefront of an explosion in the use
of visual surveillance equipment throughout Britain over the past decade.
Indeed, Closed Circuit Television (CCTV) cameras are now a common feature of
Britain's urban landscape. In August 1985 the first public CCTV system was
launched as a pilot scheme in the seaside resort of Bournemouth n1 to combat
vandalism. A survey of a sample of local councils, metropolitan authorities and
London boroughs found that by 1987 just two had followed the Bournemouth example
and installed public CCTV schemes. A similar survey in 1993 found that the
figure had risen to thirty-nine. n2 By mid 1996 the figure was well over ninety
with all of Britain's major cities covered by the omnipresent gaze. n3 The
cameras have also moved beyond the city, into villages, schools, hospitals and
even, in Bournemouth, covering a coastal path. It is suggested that Britain
currently has more public CCTV schemes than any other advanced capitalist
nation. n4
n1 Moran, J., A Brief Chronology of Photographic and Video Surveillance, in
SURVEILLANCE, CLOSED CIRCUIT TELEVISION AND SOCIAL CONTROL 280 (C. Norris et.
al. eds., 1998). CCTV designed for traffic control has, however, been in use in
Greater London for over twenty-five years. Id.
n2 M. BULOS & C. SARNO, CLOSED CIRCUIT TELEVISION AND LOCAL AUTHORITY
INITIATIVES: THE FIRST NATIONAL SURVEY (School of Land Management and Urban
Policy, South Bank University, London, 1994).
n3 THE GUARDIAN (London), March 22, 1995.
n4 S. Graham, J. Brooks, & D. Heery, Towns on Television: Closed Circuit
Television in British Towns and Cities, 22 LOCAL GOV'T STUD. 3 (1996).
P2 The aim of this short paper is to give a brief account of Britain's
experience of CCTV to date. Does the public welcome the gaze of the all-seeing
eye? Has CCTV proved successful in cutting crime? In order to do this it is
necessary to consider a number of the evaluation schemes that have been
undertaken to date. This paper also seeks to look further at the wider
implications of CCTV, such as who are the people being surveilled and has this
changed their relationship with public space and authority. In addition to this,
however, it will also be instructive to analyse why CCTV is seen as the panacea
to rising crime, and what, in practice, the technology is actually being used
for.
I. Conditions for the Growth of CCTV
P3 Over the last twenty years the British criminal justice 'system' has
undergone considerable change in response to the perceived mounting crisis over
ever-escalating crime statistics and heightened public anxiety. Whilst the
recorded crime rate has increased virtually year on year since the end of the
Second World War, the recorded increase in the 1980's was marked, with 2.4
million crimes recorded in 1979 compared to over 5 million currently. n5 In that
same period there has been a 130 per cent increase in emergency calls per
officer with just an eight per cent increase in the number of officers. n6 It is
also generally accepted, however, that officially recorded crime underestimates
the 'real' crime figure. The British Crime Survey n7 is perhaps a more accurate
gauge of the level of crime and of the six surveys carried out to date it is
suggested that the recorded rate underestimates crime by up to as many as four
times. The statistics also tell us that the majority of crimes are committed
against property, and that crime in general tends to occur more frequently in
lower-income, inner-city areas. Nonetheless, opinion polls suggest that the fear
of crime and victimisation continues to grow and adversely affect the behaviour
of individuals wherever they live through, for example, a reluctance to venture
out at night or enter certain areas even in daylight.
n5 Since 1993 a general decrease in the general crime level has been recorded
though the perception remains of a country beseiged by crime.
n6 M. Bulos & C. Sarno, Caught on Camera, POLICING TODAY 42 (1996).
n7 The latest British Crime Survey can be seen at:
http://www.homeoffice.gov.uk/rds/pdfs/hosb2198.pdf (visited May 18, 1999).
P4 Despite enormous investment in law and order by successive governments the
failure to have any significant impact upon the level of crime (or fear of it)
has necessitated constant changes of direction in an attempt to find a solution.
The Conservative Party Manifesto of 1979 chastised the record of the previous
Labour Government over the rising crime statistics and promised to "spend more
on fighting crime even while we economise elsewhere . . . ." This they did, but
it had little effect upon the sharp incline in crime figures. It soon became
apparent to the Government that increased police funding and a tough stance
would of itself not be enough. A new approach was adopted. Whilst some would
argue simply that a change of direction was essential in the effort to reduce
crime, cynics suggested that the steps taken by the Government were aimed not
solely at reducing crime but in taking the problem away from being a purely
political one and placing it "into the realms of individual morality and
pathology." n8 The rising crime figures were increasingly blamed on the media,
schools and the family rather than police inefficacy. The way forward was seen
to be in a 'partnership approach' to crime prevention. A Home Office Circular in
1984 declared:
A primary objective of the police has always been the prevention of crime.
However, since some of the factors affecting crime lie outside the control or
direct influence of the police, crime prevention cannot be left to them alone.
Every individual citizen and all those agencies whose policies and practices
can influence the extent of crime should make their contribution. Preventing
crime is a task for the whole community.
As Brake and Hale suggested, "this . . . implicitly suggested that not much
could be done about the fact that people commit crimes, but focused instead on
reducing the opportunity to do so." n9 CCTV would ultimately become a key plank
in this strategy.
n8 M. BRAKE & C. HALE, PUBLIC ORDER AND PRIVATE LIVES: THE POLITICS OF LAW AND
ORDER 9 (1992).
n9 Id. at 10.
P5 In addition to the failures of central government public concerns have also
undoubtedly been fueled by well publicised criminal events which appear to
reflect a more general malaise within British society over the past twenty
years. These events included, for example, the murders carried out by the
so-called 'Yorkshire Ripper' in the late seventies and early eighties, the
shootings in Hungerford, Oxfordshire, in the late 1980's, the Dunblane massacre,
and the murder of James Bulgar by two young children in Liverpool in the early
1990's. In addition were a litany of public order crises throughout British
cities. n10
n10 See, e.g., the inquiry by Lord Scarman in THE BRIXTON DISORDERS 8427 (1981).
P6 These incidents may be very rare but become etched into the public
consciousness. As James and Raine suggest, such events reinforce a much deeper
sense of endemic lawlessness. "They connected with the range of personal
experiences of having been a victim of (petty) crime and played into personal
fears of attack and a deep sense of insecurity." n11 Thus, they argue that
public attitudes to crime shifted. This was not only as a result of escalating
crime rates and the apparent failure of the criminal justice system to contain
it, but also as a result of experiencing crime, albeit minor, reinforced by an
often media-led public perception of the scale of crime in Britain. Hale n12
concluded that fear of crime is often brought about or significantly increased
by indirect information about incidents by word of mouth or through the local
media which may involve people or places recognisable to the recipient for whom
the possibility of crime then becomes a reality. Equally, visible indications of
potential criminality, such as graffiti or broken windows, can also heighten the
fear of crime within a particular locality.
n11 A. JAMES & J. RAINE, THE NEW POLITICS OF CRIMINAL JUSTICE 24 (1998).
n12 C. Hale, Fear of Crime: A Review of the Literature, INT'L REV. OF
VICTIMOLOGY 79-150 (1996).
P7 A common public response to provide a solution to these problems is to call
for a greater police presence on the streets -- more bobbies on the beat. This
early form of policing could be effective when the local policeman knew his
community well and the villains in it. Indeed, the development of the modern
police force in Britain has developed from the 'watchmen' -- the most basic form
of visual surveillance. However, as Mainwaring-White recognises, "this type of
policing relies on a static and reasonably small population." n13 Home Office
research in 1984 indicated, however, that police foot patrols were no longer an
effective means of crime prevention. The study by Clarke and Hough concluded
that on average, a patrol officer in London could expect to pass within one
hundred yards of a burglary in progress once every eight years and even then he
or she would probably be unaware that it was taking place. Hough later commented
that "the weight of research evidence is that further expenditure on
conventional deterrent strategies will secure only small gains at the margins."
n14 Thus, an additional strategy was required. Despite all the evidence about
inefficacy the public are still very attached to visible patrolling and, because
of its effect of reassurance and reduction of the fear of crime it still forms
part of the national police objectives. CCTV could be seen as the additional
strategy. It would promote crime prevention and detection by introducing a
permanent 'patrol' faithfully recording all that happens at all times.
n13 S. MAINWARING-WHITE, THE POLICING REVOLUTION 53 (1983).
n14 M. Hough, Thinking About Effectiveness, 27 BRIT. J. CRIM. 70, 73 (1987).
II. The Growth of CCTV
P8 In 1975 CCTV cameras were introduced to monitor parts of the Northern and
Victoria lines on the London Underground tube service to combat staff assaults
and theft. In the early eighties cameras were becoming a common feature in
shops, and by 1985 the Football Trust n15 gave grants to all football league
clubs to help them to establish CCTV schemes in their stadia to combat the
rising tide of football hooliganism. n16 CCTV cameras were also used by the
police during the 1984-85 Miners' Strike to identify and aid the prosecution of
demonstrators. The use of CCTV was growing, albeit at a rather sedate pace.
n15 A charitable body funded by the Pools companies.
n16 See G. Armstrong & R. Giulianotti, Chapter 6, in SURVEILLANCE, CLOSED
CIRCUIT TELEVISION AND SOCIAL CONTROL (C. Norris et. al. eds., 1998).
P9 The screening of the first series of 'Crimewatch UK' in 1984 was a
significant event in the promotion of visual surveillance. The 'Crimewatch UK'
series, which drew impressive viewing figures, illustrated just how useful the
cameras could be in identifying and capturing suspects. CCTV footage, often of a
rather poor quality, was shown followed by requests for the public to telephone
the police with the names of the suspects. The following edition would report on
just how successful the 'rogues gallery' had been.
P10 The growth of out of town shopping malls throughout the 1980's further
fueled the demand for CCTV. Reeve states, "Malls are instrumental places in
which users are treated as a means to the ends of consumption, employing a
number of socially controlling strategies in management, design, promotion and
policing to achieve this." n17 The success of out of town shopping malls has to
some extent been at the expense of traditional city centre sites. The response
of many city centre managers has therefore been not only to redefine and
repackage the city but to effectively bring the mall to the city. CCTV, and its
alleged successes in the mall in terms of reducing crime, anti-social behaviour
and the fear of crime and thus providing conditions favourable to consumption,
is thus seen as a key tool in the regeneration of the city centre. From this
point the expansion of CCTV was virtually inevitable. "CCTV is now seen as the
fashionable solution to everything. Councils are saying we need CCTV, either for
political reasons, or because the town next door has got it . . . ." n18
n17 A. Reeve, in SURVEILLANCE, CLOSED CIRCUIT TELEVISION AND SOCIAL CONTROL 75
(C. Norris et. al. eds., 1998).
n18 See M. Clarke, Blind Eye on the Street, POLICE REV., Aug. 5, 1994, at 28.
P11 The development of this form of social control which apparently cut crime
and provided the necessary conditions to allow the free market to flourish were
not lost on the Government. n19 In 1994 the Home Office distributed £ 5 million
amongst the successful bidders in their CCTV Challenge Competition. Three
further rounds of the competition have safely ensured that CCTV has become a
part of the street furniture in every major city in Britain. The speed of the
expansion has been nothing short of phenomenal. There has, however, been little
debate about the widespread use of this technology. How might this be explained?
n19 The success of CCTV as one of a number of measures providing a 'ring of
steel' around the City of London prompted by IRA bombs was also not lost on a
Government who also found it to have major beneficial impacts in regard to crime
in general as well as traffic control. These impacts were widely publicised.
See, e.g., O'Kelly, By All Means Necessary, POLICE REV., April 15, 1994, at 14;
M. Hill, Beating the Bombers, POLICE REV., Feb. 17, 1995, at 14; K. Potter, Lens
Support, POLICE REV., Sep. 8, 1995, at 18.
III. CCTV Works?
P12 Statements regarding the huge benefits that CCTV has brought to particular
areas are easy to find. The Government, the police, the security industry and
local councils are all too willing to sing the praises of the "friendly eye in
the sky." n20 "CCTV has become accepted as an extremely effective crime
detection and prevention tool." n21 Such a sentiment is based on information
such as the claim that following the installation of CCTV car thefts in King's
Lynn have been reduced by ninety-one per cent. The reduction in crime generally
in Bedford is fifty-five per cent, fifty-one per cent in Swansea and almost
forty per cent in Brentwood. In Newcastle there have been 800 arrests as a
result of CCTV and of those processed through the courts ninety-nine per cent
pleaded guilty, many due to the presumed strength of the visual evidence. In
1995, the then Home Secretary Michael Howard said, "CCTV catches criminals. It
spots crime, identifies law breakers and helps convict the guilty, and just as
importantly it makes people feel safer when they are out and about." n22
n20 A phrase coined by then Home Office Minister David Maclean.
n21 I. Dickinson, Roving Eyes, POLICE REV., Jan. 16, 1998, at 30.
n22 Bulos & Sarno, supra note 6, at 43.
P13 Given the impressive statistics quoted above it is hard to disagree with Mr.
Howard. However, the vast number of evaluation schemes that have been carried
out to date have been undertaken by those with an interest in promoting the
cameras and have been technically inadequate. Evaluation is often carried out
over too short a time for a realistic picture to be gained, and often the full
story remains untold. Different categories of crime need to be addressed in
order that an adequate evaluation of functional displacement can be made. To
simply conclude that a particular crime has been reduced or that crime has been
reduced overall is not, of itself, sufficient. For example, CCTV may ultimately
catch more offenders and improve the crime/clear up ratio which is important to
the police in the era of the audit, but many of these are minor offences which
previously may never have been reported at all. A simple look at the crime
statistics does not provide a full picture of CCTV's effectiveness and in many
cases, over-inflated statistics are simply misleading.
P14 Independent analysis tends to show a slightly less positive picture in
relation to crime reduction. Bulos and Sarno recorded a twenty per cent
reduction in crime in Sutton town centre in 1994 following the introduction of
CCTV. n23 Brown noted a similar reduction in burglaries in his study of
Newcastle. n24 Analysis by Ditton and Short on the Aidrie scheme n25 displayed a
twenty-one per cent reduction in crime, and further claimed that there was no
evidence of displacement. It is very difficult to obtain very much from the
wealth of statistics available other than an acknowledgment that CCTV can reduce
crime, and by a considerable amount. Nevertheless, its ability to do so will
depend much on the nature of the scheme, its objectives, local variations and
other complementary crime prevention measures.
n23 M. BULOS & C. SARNO, TOWARDS A SAFER SUTTON? IMPACT OF CLOSED CIRCUIT
TELEVISION CAMERAS ON SUTTON TOWN CENTRE (School of Land Management and Urban
Policy, South Bank University, London, 1994).
n24 It must be noted that other crime prevention measures were also introduced
alongside CCTV. See B. BROWN, CCTV IN TOWN CENTRES: THREE CASE STUDIES (Home
Office, Police Research Group, Crime Detection and Prevention Series Paper No.
68, 1995).
n25 J. DITTON & E. SHORT, DOES CLOSED CIRCUIT TELEVISION PREVENT CRIME? AN
EVALUATION OF THE USE OF CCTV SURVEILLANCE CAMERAS IN AIDRIE TOWN CENTRE (The
Scottish Office Central Research Unit, Crime and Criminal Justice Research
Findings No. 8, 1995).
P15 In an attempt to bypass simple comparisons of crime figures or victimization
rates before and after the introduction of CCTV to a particular locality, Short
and Ditton attempted an alternative approach by asking offenders themselves what
their attitude to the cameras was. n26 The results were varied and complex with
few consistent themes. It affected the behaviour of some and not others. Some
remained aware of the gaze, others forgot the cameras were there. Some claimed
to have reduced their criminal activity, others to have simply changed their
modus operandi. This survey reinforces the message that the success of CCTV is
not guaranteed as the 'self interested practitioners' would have us believe.
CCTV is not a universal remedy but must be well targeted and sensitive to the
particular needs of an area. Groombridge and Murji noted n27 how the CCTV scheme
they considered was not being publicised for successes in relation to its
originally stated objective of reducing robberies, but was seen to be useful for
traffic management purposes. One might question whether an expensive state of
the art system was therefore necessary. CCTV does not affect crime alone, hence
we need to look beyond the inflated rhetoric of CCTV's crime prevention
successes towards its wider implications.
n26 E. Short & J. Ditton, Seen And Now Heard: Talking to the Targets of Open
Street CCTV, 38 BRIT. J. CRIMINOLOGY 404 (1998).
n27 N. Groombridge & K. Murji, As Easy as AB and CCTV?, 10 POLICING 283, 286
(1994).
IV. Do the Public Support CCTV?
P16 In July 1998 Peter French, an inspector with Essex Police and a qualified
national instructor in surveillance techniques, wrote:
A cultural change has developed within Britain where most people are not
averse to being watched by the electronic eye as they go about their daily
business if it is in the interests of community safety. Politicians and
members of the public have seized upon the 'feel safe factor' of CCTV and have
put pressure on local authorities (and police authorities) to install CCTV
cameras in many of Britain's town centres. n28
Again, there are statistics which can be used to justify this claim. For
example, ninety-six per cent of people polled in King's Lynn are 'happy with the
cameras,' followed by ninety per cent in Harlow. n29 Below the surface, however,
there is slightly more concern. Jason Ditton has questioned why the popular
mantra of 'ninety per cent in favour' is higher than the sixty to seventy per
cent figure recorded consistently by professional researchers, and has further
looked at which is nearer the truth. n30 Two separate evaluations of Glasgow's
CCTV scheme had been carried out. The first survey in April 1993 found that
ninety-five per cent of those interviewed were in favour of a CCTV scheme. A
further evaluation in January 1994 suggested that sixty-nine per cent were in
favour of open street CCTV. Though both schemes had recorded a positive return,
why was there a difference of twenty-six per cent?
n28 P. French, Video Nation, POLICE REV., Jul. 3, 1998, at 22.
n29 J. Ditton, Public Support for Town Centre CCTV Schemes: Myth or Reality?, in
SURVEILLANCE, CLOSED CIRCUIT TELEVISION AND SOCIAL CONTROL, Ch. 12 (C. Norris
et. al. eds., 1998).
n30 Id.
P17 Comparing the two surveys Ditton found that in both a series of
contextualising questions had been asked prior to asking if people favoured the
use of CCTV. The nature of these contextualising questions could strongly affect
the result. This was illustrated by a further survey by Ditton which compared
three groups of respondents. The first group were asked a series of pro-CCTV
questions followed by the question were they 'in favour of or against CCTV
video-taping people's movements in the street'. Ninety-one per cent responded
positively. A second group were asked anti-CCTV questions followed by the
question were they in favour of or against CCTV. This time fifty-six per cent
gave a positive response. A neutral third group were simply asked whether or not
they were in favour of CCTV. Seventy-one per cent responded positively.
P18 What should perhaps be noted initially is that all the results displayed a
majority in favour of the use of CCTV. However, there is a difference of twenty
per cent between those who were asked pro-CCTV contextualising questions first
and the neutral group. If that twenty per cent is subtracted from the initial
ninety-five per cent in favour found in the first Glasgow survey, the approval
rating is then seventy-five per cent -- more realistic in light of the
seventy-one per cent in Ditton's 'neutral group'. The second Glasgow survey
which measured an approval rating of sixty-nine per cent was based on people who
actually used the street (the first survey was based on residential samples). To
subract twenty per cent from this would leave forty-nine per cent -- a minority
in favour of CCTV!
P19 These figures are not precise but do suggest that many of the recorded
approval ratings for CCTV schemes could be wildly optimistic, and also go to
prove what can be done with statistics! This is very important when one
considers that the demand for CCTV by, for example, politicians, is often based
around these inflated surveys. Further still, there is a tendency to rely on
this figure alone and not look beyond for more detailed reactions to CCTV.
P20 In 1992 Honess and Charman n31 recorded public anxiety in relation to issues
such as the potential for controllers to abuse the system, n32 or look for
incidents to justify the existence of the cameras. There was a sense that some
people felt a general unease at being watched and that a gradual erosion of
civil liberties was taking place. A further survey by Bennett and Gelsthorpe n33
at a different time and location revealed a number of similar concerns and,
additionally, a concern that marginal groups would be targeted. Thus, there are
a number of common concerns when it comes to the introduction and use of CCTV,
but these concerns have been given little consideration.
n31 T. HONESS & E. CHARMAN, CLOSED CIRCUIT TELEVISION IN PUBLIC PLACES; ITS
ACCEPTABILITY AND PERCEIVED EFFECTIVENESS (Home Office, Police Research Group,
Crime Detection and Prevention Series Paper No.35, 1992).
n32 An example of this was provided in South Wales in 1996. A CCTV operator made
379 obscene telephone calls to women passing by a public telephone box which he
could see on the monitor. See THE DAILY TELEGRAPH (London), Jun. 7, 1996.
n33 T. Bennett & L. Gelsthorpe, Public Attitudes Towards CCTV in Public Places,
5 STUDIES ON CRIME AND CRIME PREVENTION 72 (1996).
P21 Arguments in defence of civil liberties tend to hold little weight in the
face of moral panics over the rising level of crime. Over the past twenty-five
years the statute books have been littered with illiberal legislation passed in
response to the particular bete-noire of the day by vote-hungry politicians. n34
In a country that has eschewed a written constitution or a domestic Bill of
Rights, civil liberties are always at risk of creeping incursion. n35 Anxiety
caused by the fear of crime and the argument that if you have nothing to hide
you have nothing to fear has ensured that there has been virtually no debate on
the civil liberties implications of CCTV. The 1995 British Social Attitudes
Survey revealed that "increased support existed for police surveillance
measures, that concern for civil liberties was declining and that the fear of
crime was rising." n36 John Major when Prime Minister commented, "Closed Circuit
Cameras have proved they can work, so we need more of them where crime is high .
. .. I have no doubt we will hear some protest about a threat to civil
liberties. Well, I have no sympathy whatsoever for so-called liberties of that
kind." n37 In the short term then one can expect the politically motivated rush
to adopt this silver bullet of crime prevention to continue. But to simply
ignore the civil liberties implications of CCTV is to store trouble for the
future. In the remainder of this paper I wish to concentrate on two particular
issues, namely, who are the watchers watching and what are the implications of
CCTV for rights to privacy in public.
n34 See, e.g., K.D. EWING, & C. GEARTY, FREEDOM UNDER THATCHER (1992).
n35 November 1998 saw the passage of the Human Rights Act 1998 which has the
effect of giving Britain a Bill of Rights in the shape of the European
Convention on Human Rights. The current interpretation of this document leaves
much to be desired however.
n36 R. Coleman & J. Sim, From the Dockyards to the Disney Store: Surveillance,
Risk and Security in Liverpool City Centre, 12 INT'L REV. L., COMPUTERS & TECH.,
27, 28 (1998).
n37 Groombridge & Murji, supra note 27, at 283.
V. Who and What are the Watchers Watching?
P22 The use of public space CCTV has been shown to be very effective in the
right conditions in reducing levels of crime. The short term explosion in the
use of such schemes, however, has failed to address the possible longer term
effects of CCTV in the increased marginalisation of groups already pushed to the
fringes of society, and the effects of the exclusion of difference from
previously vibrant cities. These two issues and their implications are largely
dependent upon who the CCTV operators are targeting and, in some cases,
introducing to the police.
P23 In addition to targeting those committing criminal offences or exhibiting
suspicious behaviour, CCTV operators regard lost children, traffic incidents and
potential suicides as falling within their remit. This self-appointed remit
provides arguably a general public benefit. There is further evidence to suggest
that the gaze goes wider still, however, to take in so-called 'anti-social'
behaviour -- littering the street, urinating in public and the like.
'Anti-social' behaviour, further appears to equate to any behaviour that does
not reflect the 'norms' of consumer citizenship. n38 This includes, for example,
loitering, busking and begging. The introduction of CCTV in Wolverhampton was,
amongst other things, designed to deter "large groups, usually young single
people [whose] mere presence is a nuisance to people who want to use the streets
and shopping centres in more conventional ways." n39 Shopping malls and city
centres are becoming increasingly purified and privatised to the extent that the
limits of acceptable behaviour are being driven by the forces of consumerism.
Public spaces are becoming increasingly less public.
n38 J. Bannister, N.R. Fyfe, & A. Kearns, Closed Circuit Television and the
City, in SURVEILLANCE, CLOSED CIRCUIT TELEVISION AND SOCIAL CONTROL Ch. 2 (C.
Norris et. al. eds., 1998).
n39 LIBERTY: WHO'S WATCHING YOU? VIDEO SURVEILLANCE IN PUBLIC PLACES 1 (London
Briefing Paper No. 16, 1989).
P24 A detailed study by Norris n40 has confirmed that CCTV operators do
over-scrutinise marginal groups. In an attempt to maximise their effectiveness
in terms of targeting potential criminals, CCTV operators select those people
whom they consider most likely to be deviant. This leads, in particular, to an
over-representation of young black men. Drawing on over six hundred hours of
data from three different CCTV control rooms Norris discovered that nine out of
ten CCTV targets were men and almost half were teenagers. Black people were
between one and a half and two and a half times more likely to be targeted than
one would expect when compared to their percentage in the overall population.
n40 C. NORRIS & G. ARMSTRONG, THE UNFORGIVING EYE: CCTV SURVEILLANCE IN PUBLIC
SPACE (1997).
P25 Not surprisingly many people were surveilled for crime related matters --
around three out of ten, though a larger category, four out of ten, were
surveilled for 'no obvious reason'. The basis of an operator's suspicion was
based on a person's behaviour in twenty five per cent of cases, but the largest
category of suspicion was based simply on a person's social or subcultural
group. Those disproportionately subjected to surveillance for 'no obvious
reason' were the young, the male and the black. If older people or women became
the target of suspicion it was far more likely to be because of a crime-related
issue or their overt behaviour.
P26 The intensity of surveillance was not influenced by gender though race and
age did have an influence. Three out of ten surveillances of black people lasted
nine minutes or more (one in nine on whites). Around one quarter of
surveillances on teenagers lasted nine minutes or more compared to an eighth of
surveillances on twenty and thirty year olds.
P27 It was possible to draw from these statistics a number of working rules that
operators had developed in response to their task. Norris initially outlines
three primary rules to show how suspicion is triggered by stereotypical
assumptions as to the distribution of criminality, behaviour, and prior
knowledge of a person's criminal record. The first of these was seen to be the
most important with suspicion being generated by the operator's negative
attitude towards male youth, and black male youth in particular. Suspicion was
also seen to be based on a person's clothing and posture. Overt disorderly
behaviour obviously led to surveillance but so did running and loitering though
these rarely led to any criminal activity.
P28 In addition to these primary rules other rules could be identified. For
example, people and their behaviour were also classified by their location in
time and space. This is similar to what Sacks called the 'incongruity
procedure': "Police officers are encouraged to learn, as a fundamental part of
their professional skills, to see the world as divisible into the normal and
abnormal." n41
n41 D. Dixon et. al., Reality and Rules in the Construction and Regulation of
Police Suspicion, 17 INT'L J. SOC. OF L. 185, 186 (1989).
P29 It appears that CCTV operators are developing similar professional skills.
This temporal and spatial classification is essentially responsible for the
intensive surveillance of beggars, the homeless and the like who are considered
to be out of place in the new image of the city. This also partially explains
the surveillance of those who appeared uneasy, or appeared lost and confused, in
addition to those who backtracked or suddenly changed direction. Such behaviour
is deemed to be out of place and to be indicative of criminal intent.
P30 Whilst those who are being targeted will often be unaware of the fact it may
soon become apparent to marginal groups that they may be the subject of
increased attention from the authorities and further stigmatisation. The working
rules of the CCTV operators could become self-fulfilling prophecies. As Norris
concludes, if this is the case then "rather than contributing to social justice
through the reduction of victimisation, CCTV will merely become a tool of
injustice through the amplification of differential and discriminatory
policing."
P31 Britain has been here before. In 1976 the Metropolitan Police gave evidence
to the All Party Select Committee on Race and Immigration n42 to the effect that
there was a significant involvement of black youth in crime. The alternative
argument was that the police were operating discriminatory practices. By 1980 a
relationship between crime and black people had become established in the minds
of the police and the subsequent over use of, for example, stop and search
powers and the so-called 'sus' law n43 on black people served to ensure that
policing by consent in largely black areas became, in some instances,
impossible. The CCTV net is constantly being widened in Britain and now includes
a number of residential areas, such as Chapeltown in Leeds and Newham in London.
These are areas that have large black populations. If CCTV is to work in such
areas as a community crime prevention measure it is essential that the cameras
are sensitive to the individual needs of that community and ensure that policing
by consent is maintained. In Newcastle's West End, the site of the first
residential CCTV scheme in Britain, there have been fears that the introduction
of the scheme might have damaged already fragile police-community relations.
Soon after its installation local residents attacked the community centre
believing it to be the location of the monitoring room. n44 In 1991 the Home
Secretary commented: "The local element in policing is the heart of our policing
system and its desire to strengthen the local identity of policing, building on
the reciprocal responsibilities of a community and its police." n45
n42 THE WEST INDIAN COMMUNITY (HMSO Select Committee on Race Relations and
Immigration, 1976-77).
n43 'Sus law' was the name given to a police power to arrest people loitering in
a public place to commit an offence. There was considerable concern about its
use against black people.
n44 S. Graham, J. Brooks, & D. Heery, supra note 4, at 10.
n45 L. Smith, Keeping Control of the Streets, 10 POLICING 175, 177 (1994).
P32 One can only hope that the local element in policing is not replaced by
cameras on poles to the detriment of community relations. n46 Michael Howard,
when Home Secretary, said that cameras "do not replace officers but boost their
effectiveness," n47 but the evidence in Bingley, Yorkshire, is quite the
opposite. Following the introduction of CCTV the number of officers based in the
town was reduced from twenty four to just three. n48 The deployment of CCTV must
become an issue of public debate before the cameras damage the often fragile but
vital bond between a community and its police force.
n46 The positioning of cameras in areas of high crime and economic deprivation
may not regenerate the area as intended but merely reinforce its problems in the
eyes of the public generally.
n47 UK Government Press Release, March 27, 1995, quoted in S. J. Fay, Tough on
Crime, Tough on Civil Liberties: Some Negative Aspects of Britain's Wholesale
Adoption of CCTV Surveillance During the 1990's, 12 INT'L REV. OF L., COMPUTERS
& TECH. 315, 320 (1998).
n48 See KDIS Online at http://merlin.legend.org.uk/brs/index.html (visited May
4, 1999).
P33 Bannister, Fyfe and Kearns argue that the indiscriminate use of CCTV in city
centres as a strategy to manage out different forms of behaviour and conduct
could have further long-term negative repercussions. Encountering difference
within city life has "been identified as nurturing public sociability." n49 The
convergence of unpredictable behaviour can and does lead to crime but it is the
ability to manage this difference that enables it to be confronted. Jacobs said
of the streets:
Their bordering uses, and their users, are active participants in the drama of
civilisation versus barbarism in cities. To keep the city safe is a
fundamental task of a city's streets and its sidewalks . . . . The first thing
to understand is that the public peace . . . of cities is not kept primarily
by the police, necessary as police are. It is kept primarily by an intricate,
almost unconscious, network of voluntary controls and standards among the
people themselves, and enforced by the people themselves. n50
If the difference found in the city is effectively managed out by the action of
CCTV operators then so too will be the ability to tolerate it. Sennett concludes
that any conflicts which do then arise are likely to be all the more extreme and
disturbing.
So little tolerance of disorder in their own lives, and having shut themselves
off so that they have little experience of disorder as well, the eruption of
social tension becomes a situation in which the ultimate methods of
aggression, violent force and reprisal, seem to become not only justified, but
life preserving. n51
n49 Bannister, supra note 38, at 24-25.
n50 J. Jacobs, The Uses of Sidewalks: Safety, from THE DEATH AND LIFE OF GREAT
AMERICAN CITIES (1961), reproduced in THE CITY READER 104-05 (R. T. LeGates & F.
Stout eds., 1996).
n51 Bannister, supra note 38, at 34-35.
P34 The London Borough of Newham has recently introduced CCTV cameras equipped
with Computerised Facial Recognition. CCTV operators in this area are now not
only alerted by abnormal behaviour or cultural difference but by identity
itself. The final part of this paper seeks to consider the legal concept of
privacy in public spaces and the impact of CCTV.
VI. The Future of Public Privacy
P35 The use of public space visual surveillance in Britain remains largely
outside of the law. n52 Given this lack of regulation it is of little surprise
that CCTV technology raises a number of civil liberties concerns, not least of
which is its potential effect on rights to privacy. This is especially pertinent
in Britain which fails to recognise a legally enforceable right to privacy. But
when operating in public is it reasonable to assume that a level of privacy
exists?
n52 There is an element of regulation in regard to the storage of data provided
by the Data Protection Act 1998, and disclosure of data may also be regulated by
the law of confidence.
P36 There is an argument to suggest that once one enters the semi-public arena,
such as a shopping mall, there is, in effect, a trade-off: the citizen gives up
his claim not to be surveilled in return for increased security whilst in that
location. There is, at least, an element of individual choice. However, must it
be that when one enters a traditionally regarded public space, such as the city,
any claims to privacy are automatically lost? Certainly this appears to be the
case in regard to CCTV as the law stands. But the simple fact that privacy has
not been positively expressed in Britain until the passage of the Human Rights
Act 1998 does not mean that it has not existed. For example, s. 2(9)(a) of the
Police and Criminal Evidence Act 1984 prohibits a constable, when carrying out a
search of a person in public, from removing anything other than an outer coat,
jacket or gloves. The Code of Practice further states that every reasonable
effort must be made to minimise the level of embarrassment caused. One could
argue that the difference between this superficial public search and a thorough
search in the police station must be related to a respect for that person's
dignity or privacy. n53 In the U.S., judicial interpretation of the Fourth
Amendment ensures that searches of cars on the street are less stringently
controlled than searches of homes. n54 These examples suggest that although the
weight given to privacy when in public is much reduced when compared to privacy
in a private setting, there is nonetheless a right to a degree of privacy that
must be respected.
n53 The core elements of privacy can obviously differ from author to author
though giving weight to personal autonomy, dignity or moral integrity is seen as
central to liberalism.
n54 See California v. Carny, 471 U.S. 386 (1985); New York v. Class, 475 U.S.
106 (1986).
P37 Feldman argues that overt surveillance
carries with it a clearly implied threat that the fruits of the surveillance
may be used for purposes adverse to the interests of the person being watched.
This is calculated to undermine people's commitments to their own plans and
values. It thus represents a failure of respect for people's dignity and
autonomy. n55
Such a failure to respect privacy can be justified but the justification must
come from the watcher. The fact that a person is suspected of a criminal offence
may provide that justification. But privacy rights are not a single concept.
Whilst there may be a justification for targeting an individual through
surveillance, that individual will still retain other privacy related rights
such as the right to ensure the material gained is not used for an unauthorised
purpose.
n55 D. Feldman, Secrecy, Dignity or Autonomy? Views of Privacy as a Civil
Liberty, 47 C.L.P. 41, 61 (1994).
P38 The case of R. v Brentwood Borough Council ex parte Peck n56 emphasises the
need for legislation in this area. In August 1995 Peck was suffering from
depression and attempted to kill himself by cutting his wrists with a kitchen
knife. He had walked through the centre of Brentwood with a kitchen knife in his
hand and the incident was picked up by the CCTV operator. The police were
alerted and Mr. Peck was detained under the Mental Health Act 1983. This
incident was later included by the Council in a press release about its CCTV
system. Subsequently, a regional television company obtained a copy of the
footage for broadcast. Although Mr. Peck's face was masked by the television
company at the Council's request, a number of viewers still recognised him.
Following a complaint by Mr. Peck the Independent Television Commission decided
that the footage breached their privacy requirements. An unmasked photograph of
the incident later appeared in a local newspaper, and the footage was also shown
on national television by the BBC (again unmasked -- an error for which the BBC
apologised). The Broadcasting Standards Commission also held that an unwarranted
infringement of privacy had occurred. Mr. Peck made an application for a
judicial review of the Council's original decision to release the footage. The
application was dismissed as it was held to be within the Council's power.
Harrison, J., stated, however.
I have some sympathy with the applicant who has suffered an invasion of his
privacy . . . . Unless and until there is a general right of privacy
recognised by English law . . . reliance must be placed on effective guidance
being issued by Codes of Practice or otherwise, in order to try and avoid such
undesirable invasions of a person's privacy.
Home Office Minister Alun Michael admitted, "If people get the impression that
[CCTV] is not being used to help the police and is being abused it could
undermine public confidence." n57
n56 R. v. Brentwood Borough Council ex parte Peck (1997) available on LEXIS
(ENGGEN file).
n57 THE INDEPENDENT (London), Feb. 23, 1998.
P39 The potential of Computerised Facial Recognition to invade privacy is even
greater still and reliance cannot be placed on non-legal guidelines to ensure
abuse of the process does not occur. The ability of the system to match
centrally held digital photographs to images captured by the cameras could prove
invaluable to the police in the detection of those wanted for serious criminal
offences. Privacy cannot be seen as a cloak for protecting the criminal. The
Newham scheme is directed at more than serious criminal behaviour however.
Newham Council's Environment Director, Malcolm Smith, said, "We have pushed this
technology further than anyone else. Our fundamental objective is to reduce a
whole range of crime and anti-social behaviour in the borough." n58
n58 THE TIMES (London), Oct. 15, 1998.
P40 Does this mean that if a person is identified by the computer (rightly or
wrongly) as being worthy of surveillance they will be monitored throughout their
visit to the centre of Newham and will be brought to book for a minor
transgression such as dropping litter? Or will they be effectively banished from
the area? Coleman and Sim have already noted that in Liverpool "known
shoplifters and people who are banned cannot walk around the city centre with
impunity." n59 Where they are supposed to go is presumably anywhere outside of
Liverpool! How can this satisfy due process standards of fair treatment for all?
n59 Coleman & Sim, supra note 36, at 51.
P41 Furthermore, how far can facial recognition be trusted? The computer may not
always get a correct match whereupon someone is wrongfully the target of
intensive surveillance. Computers may not always get it right and neither do
humans. Identification evidence is notoriously unreliable yet juries may be
seduced by the stunning technology that CCTV has become. Research carried out at
the University of Stirling involved participants matching high quality studio
photographs to broadcast quality footage. Of the ten photographs used, one was
of the target with a slightly different expression. Twenty per cent of
participants failed to recognise him. Professor Vicki Bruce said, "We have to be
worried about the evidence of our own eyes. We have to be very cautious indeed
that we don't think a resemblance between two images of a person means that they
are the same person." n60
n60 THE INDEPENDENT (London), Mar. 27, 1998.
P42 Legislation is essential to ensure that the technology is only used in
prescribed circumstances, is for legitimate ends, is a proportionate response to
the apparent problem, and provides a remedy in cases of abuse.
P43 The British Government's imminent implementation of the EU Data Protection
Directive will impact upon the use of CCTV. The Data Protection Act 1984 places
obligations and responsibilities on people and organisations who hold and use
personal data in order to balance personal privacy and the wider advantages for
society of information technology. CCTV remains largely outside this Act but the
increasing sophistication of the technology and the provisions of the EU
Directive will mean that CCTV operators will, in future, have to register
themselves with the Office of the Data Protection Registrar, failure to do so
being a criminal offence. Users must then comply with a number of data
protection principles. n61 These include the requirement that data shall be
processed fairly and lawfully which has been interpreted such that for public
CCTV schemes people should be made aware that they are being filmed. Further,
data should not be held for longer than is necessary for the purpose for which
it is to be used, and it must be adequate for and relevant to that purpose. It
is almost certain that those operating public CCTV schemes will register, but
Davies suggests that the data protection legislation and the Registrar are
"paper tigers." n62 The issue of data collection in regard to digital images is
a very serious one that demands direct regulation through the law, rather than
indirect regulation via increased bureaucracy.
n61 These can be seen at http://www.open.gov.uk/dpr/principl.htm (visited May 4,
1999).
n62 S. DAVIES, BIG BROTHER: BRITAIN'S WEB OF SURVEILLANCE AND THE NEW
TECHNOLOGICAL ORDER 104 (1996).
P44 In February 1998 the House of Lords Select Committee on Science and
Technology n63 recognised some of the concerns. For example, digital images are
easily manipulated without trace. It is vital that adequate security of
recordings is ensured and that image enhancement techniques are not portrayed as
an objective science. Courts must be aware that the camera can lie after all.
Wherever possible, images used in evidence should have proof of authenticity.
These essential issues cannot be adequately guaranteed by the use of non-legal
guidelines or the Data Protection Registrar. Legislation is essential.
n63 House of Lords Select Committee on Science and Technology, EIGHTH REPORT, HL
121 (1998).
P45 A promising prompt for legislation is the potential provided by the passage
of the Human Rights Act 1998 whereupon much of the European Convention on Human
Rights will become enforceable directly in the British courts. This will include
Article 8, which states:
1. Everyone has the right to respect for his private and family life, his home
and his correspondence.
2. There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety, or
the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others.
P46 The Convention insists that infringements of privacy must be "in accordance
with the law" and "necessary in a democratic society." This would require that
CCTV be governed by clear and predictable legal regulation. Any apparent
infringements of privacy could be legally challenged. Whilst the routine
operation of CCTV would be justified as being "for the prevention of disorder or
crime" or "for the protection of the rights . . . of others" this must also be a
proportionate response. This, at least, may prevent abuses such as Computerised
Facial Recognition schemes comparing images of anyone in the street against a
centralised bank of digital passport photographs. Without exciting suspicion
surely one retains the right to remain anonymous in public. It may also provide
remedies for those who feel that they are unreasonably subjected to
surveillance, for example, when a camera is permanently trained on the house or
front garden.
P47 David Brin has argued that formalising privacy protections is not enough:
"We might agitate, demonstrate, legislate. But in rushing to pass so-called
privacy laws we will not succeed in preventing hidden eyes from peering into our
lives." n64
n64 A. Funt, Eye of the Beholder, Buildings Online (visited May 4, 1999)
http://208.16.54.139/smarter/beholder.html.
P48 This reminds us of the wider issues. Perhaps one should not solely focus on
the issue of privacy but on the wider fact that all crime investigation
techniques should be under effective control. n65 This initially requires that
all CCTV schemes have proper authorisation. Public CCTV systems should be
subjected to a form of licensing which could ensure, following periodic review,
that the scheme had been implemented for a legitimate purpose and that that
purpose was being met. Further, it could provide regulation as to the quality of
the systems and staff. The public should be made clearly aware of where such
schemes are in operation so as to give them some choice as to whether or not
they wish to be surveilled. These types of issues are in urgent need of public
debate. CCTV might prove to be successful in the prevention and detection of
crime but it does come at a cost to civil liberties. The nature of that cost
must be debated now before people's relationships with authority, public space
and each other are irrevocably changed.
n65 See Teixeira De Castro v. Portugal (1997).