The Human Rights Act 1998 (the "Act") came into force on 2nd October 2000 and incorporates certain of the rights and freedoms guaranteed under the European Convention on Human Rights into UK law. Therefore, Convention rights ...
Background
The Human Rights Act 1998 (the "Act") came into force on 2nd October 2000 and incorporates certain of the rights and freedoms guaranteed under the European Convention on Human Rights into UK law. Therefore, Convention rights can be relied upon in UK court cases, which was not possible before 2nd October, 2000.
In this brief guide only the key features of the HRA that have particular relevance to CCTV will be highlighted. The guide is designed to provide information, not legal advice, about the Human Rights Act 1998, which is a complex piece of legislation. Legal advice should be sought before any action is undertaken as a result of the Act and a check should be made to see whether the law has changed since the time this guide was written.
Human Rights Act 1998
The Act sets out general principles rather than detailed legal rules. These rights fall, broadly speaking, into two categories:
Absolute rights – i.e. the right to life (Article 2); the right to freedom from torture, inhuman or degrading treatment or punishment (Article 3); the right to marry and found a family (Article 12). These rights are unqualified.
Qualified rights – these are rights which may be interfered with or restricted by the state, provided that this can be shown to be necessary for a specified purpose under the Convention. Although the specified purposes differ between the various rights protected, there are a number of common purposes that apply, i.e. to the right to privacy (Article 8), the right to freedom of expression (Article 10) and the right to freedom of association (Article 11). These rights may be restricted in the interests of
· national security; or
· public safety; or
· for the protection of health or morals; or
· for the prevention of disorder or crime.
Who is affected by the Act?
Individuals/groups of individuals
The Act protects individuals or groups of individuals and also extends protection to "non-governmental bodies", i.e. companies have enforceable human rights as well as individuals.
Public authorities
Section 6(1) of the Act makes all public authorities subject to the provisions of the Convention and makes it unlawful for a public authority to act in a way that is incompatible with a Convention right, unless legislation specifically requires it to do so. This section also includes a failure to act, thus placing public authorities under both negative and positive obligations. Therefore, it is not be enough for public authorities to refrain from violating the rights of individuals, they may have to take positive steps to protect rights from violation by others
During parliamentary debates, there two types of public authorities have been identified:
(i) obvious public authorities - those that are recognised as being plainly a public authority including, but not limited to:
· Central and local government
· the Police and military,
· the Prison Service
· Customs & Excise
· courts and tribunals and regulatory bodies such as Inland Revenue, Financial Services Authority, etc.
The Scottish Executive and Scottish Parliament are included in the definition of obvious public authorities but neither House in the Westminster Parliament is defined as an obvious public authority.
(ii) organisations that carry out both public and private functions - such as the Legal Aid Board, Railtrack and the Press Complaints Commission. This definition will undoubtedly involve arguments about the nature of the role being undertaken by a particular organisation. There are issues around CCTV itself, for example, where systems are owned and run by the police there is little doubt that the systems are controlled by a public authority and therefore subject to the new Act. On the other hand, where the system is owned and operated by, for example, a trade association it is not so clear. It could be argued that this is a private body that only undertakes private functions for itself but if the trade association is operating a system in a public place for crime prevention purposes, using public money, it is in fact carrying out a public function. It is not clear, at this stage, how the courts will define this dual role but good practice would be that organisations operating CCTV systems in public places should be aware of, and comply, with Article 8 requirements.
The Act primarily places a duty on public authorities as state players and not on private individuals or bodies. However, there has been legal argument as to how far private individuals and companies will be able to enforce their human rights against other private individuals or companies i.e. will private investigators carrying out surveillance activities be liable to challenge for unlawful conduct under Article 8?
It appears that, although initially, the courts will be reluctant to include private law actions within the remit of the Act, this will become inevitable in the longer term. In the end, the rights are going to affect all areas of our law.
Convention Rights
Set out below are some of the human rights covered by the HRA:
- Article 2 – right to life
- Article 3 – prohibition of torture
- Article 5 – right to liberty and security
- Article 6 – right to fair trial
- Article 7 – no Punishment without Lawful Authority
- Article 8 – right to respect for family and private life
- Article 9 – freedom of thought, conscience and religion
- Article 10 – freedom of expression:
- Article 11 – freedom of assembly and association
- Article 12 – right to marry
- Article 14 – prohibition on discrimination
- Protocol 1 – Article 1 – protection of property
Article 2 - Right to Life
Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
in defence of any person from unlawful violence;
in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
in action lawfully taken for the purpose of quelling a riot or insurrection.
This concerns the protection of human life and prohibits the taking of life and places on the state a positive duty to protect life. There are some exclusions for deaths arising from legitimate acts of war or where death has been caused by reasonable force when defending someone from unlawful violent.
Article 3 – Prohibition of Torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
This is an absolute right and is not subject to qualification.
Article 5 – Right to Liberty and Security
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, or persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest of detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
Everyone has the right to liberty and security of person. This is qualified in circumstances of conviction by a competent court, for non-compliance of a lawful court order and lawful arrest. Claims to date have been mainly related to the arrest or detention of criminals or those under investigation.
Article 6 – Right to Fair Trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal office has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
This article applies to both civil rights and criminal charges and entitles everyone to a fair and, in most cases public, hearing in a reasonable time by an independent and impartial tribunal.
Various areas of criminal law could be affected by this article such as covert surveillance, entrapment and issues of evidence such as the prosecution avoiding disclosure of evidence to the defence because of its sensitivity.
Article 7 – No Punishment without Lawful Authority
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.
This article is self-explanatory.
Article 8 – Right to Respect for Private and Family Life
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.
This provides for the right to a private and family life in a person’s home and in correspondence. Right to privacy in the home has been extended in some cases to business premises or the workplace where private and professional lives "overlap". This article has been invoked most frequently in relation to the use of CCTV cameras both in private and public places and confidentiality of personal data. There are a number of exceptions and limitations to this article so as to balance the individual's rights against the public interest. Limits can be justified if they are prescribed by law and they are necessary for the prevention of crime, protection of public health, national security and so on.
Article 9 – Freedom of Thought, Conscience and Religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Everyone has the right to freedom of religion but this can be limited. This covers all private and personal beliefs, religions, atheism etc. but not political or ideological beliefs. Churches and other religious associations are capable of enforcing rights under this article so long as the body in question is not associated with making profit (such as the Church of Scientology).
Article 10 – Freedom of Expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Everyone has the right to freedom of expression. “Expression” covers the imparting and receiving of information and need not be verbal (i.e. wearing badges or a particular dress code can amount to expression). This freedom is subject to protect the reputation and rights of others and to prevent disclosure of confidential information. It also requires special regard as to the disclosure of information in the journalistic sense particularly where such disclosure is in the public interest.
Article 11 – Freedom of Assembly and Association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forced, of the police or of the administration of the State.
This article extends to all peaceful meetings and demonstrations whether in a public or private place and the right to join a trade union and political parties. Restrictions allow police or the armed forces to enforce lawful restrictions on demonstrations in interests of national security, public safety, provocation of disorder and crime.
Article 12 - Right to Marry
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
This does not allow members of the same sex to marry each other and the Article is subject to a restriction on based on the national laws. This right is limited to marrying someone of the opposite sex and consequently transsexuals and gays have not established that this should extend to marriage between two person of the same biological sex. In the UK it is also limited by legislation to those aged 16 years and older.
Article 14 – Prohibition on Discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
This can only operate within the ambit of another convention right. It is not a general equal treatment guarantee.
Protocol 1 – Article 1 – Protection of Property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
This provides that every natural legal person is entitled to the peaceful enjoyment of his possessions.
Implications of the Human Rights Act 1998 on CCTV
Article 8 of the Human Rights law states that everyone has the right to respect for his private and family life, his home and his correspondence. Legal cases show that it has been interpreted widely and applied to a broad range of circumstances. It has, for instance, been used to cover telephone tapping and use of bugging devices; it has been applied to prisoners and their right to send and receive private communications; it covers sexual life, so that a prohibition on homosexual acts in private between consenting adult partners has been held to be an unjustified interference with the right to privacy. More recently, it has been successfully argued in several environmental cases including a case where a chemical factory created a health hazard to local people.
Although CCTV itself has yet to be the subject of a case coming before the European Court, it is generally accepted that it can give rise to privacy issues in two particular ways: (i) through its surveillance role; and (ii) through its information-gathering role.
In its surveillance role, CCTV will usually be operated overtly with the cameras being sited in public places or in places where the public have free access, such as a shopping mall. The European Court has made it clear that people are entitled to rely upon a degree of expectation of privacy even in public places, although this is clearly less than private.
In its information-gathering role, CCTV has direct implications for what is referred to as "informational privacy rights". The implications of data gathering are discussed in further detail under the Data Protection Act 1998 discussion paper available on this website.
Once it is established then that technology such as CCTV has the potential to interfere with privacy rights Article 8 (as a qualified right) requires that three tests have to be applied if the interference is to be lawful.
(1) First, the interference must be undertaken "in accordance with the law". In other words, there must be a statutory legal basis for allowing the state to interfere in the particular way alleged; it is not good enough merely to follow a voluntary code of practice or internal guidelines.
(2) Second, the aim of the interference must fall within one of the exceptions to Article 8 if it is to be lawful. These are the exceptions that allow the right of privacy to be restricted i.e. to protect national security, public safety, public health and morals, the rights of others or prevent public disorder or crime.
(3) The third test is that the restriction fulfils a pressing social need and is proportionate in how it responds to that need. This means that it cannot just be asserted that the interference is necessary to protect public safety, for example; there has to be concrete evidence that there is a genuine threat to public safety and this is an appropriate way of responding.
There are two broad areas where CCTV may be vulnerable to a legal challenge when applying the three Article 8 tests:
First, is the fact that the setting up of CCTV systems is not subject to any statutory regulations. Many argue that a correct interpretation of Article 8 requires that the state has a positive obligation to regulate all CCTV systems both public and private because of their potential to interfere with privacy rights. A number of European countries have recently introduced such regulations; for example, in Denmark all CCTV systems are subject to a licence being granted which must take account of people’s right to privacy. Also, conditions may be attached such as where the camera is placed, how it is monitored and whether, for example, it can ever be combined with an auditory facility. A special licence is required if video recordings are to be retained particularly for crime purposes.
The 5th report from the House of Lords’ Select Committee on Science & Technology, published on 03 February 1998, strongly supported the need for a regulatory scheme for CCTV.
Second, the 1998 Data Protection Act may be unable to provide sufficient safeguards to cover some of the more advanced technologies that can be used in combination with CCTV. Technological developments are likely to introduce new and more intrusive uses for CCTV material, i.e. when CCTV is used, not just as a tool to prevent crime, but instead to detect it. An example of this is when CCTV footage is combined with facial recognition systems to identify people. This is already in use in other situations, such as football grounds. Perhaps equally important are the moves to create pictorial databases by way of the new driver’s licence (which has an attached photograph) and passport photographs. These will provide huge databases against which CCTV images can be compared. This suggests that high-street CCTV systems potentially offer unique surveillance opportunities which could be in breach of the Human Rights Act.
Another area of concern for CCTV users, arising out of Article 8, is that of employee surveillance. Many employers routinely, or as part of a specific investigation into an employee’s activities, monitor employees’ use of e-mail or Internet and tape/listen into employees’ phone calls. Employees may also be filmed by way of CCTV. Article 8 has been held by the European Court of Human Rights to cover activities in the workplace and that employees have a reasonable expectation of privacy in relation to personal matters, notwithstanding that they are at work or using work facilities. Therefore if employers wish to carry out this type of monitoring they should take should make it absolutely clear to employees that surveillance is conducted and inform employees of what constitutes authorised use of their systems and that use may be monitored, thus minimising the expectation of privacy. The following points should be considered.
- consideration should be given to the location of CCTV cameras.
- provisions of the Data Protection Act must be complied with. The Data Protection Commission has published a code of practice on the use of CCTV but the use of surveillance by employers to monitor employee compliance with their contracts of employment is expressly excluded from its scope.
Conclusion
It is clear that the Human Rights Act, by incorporating a right to privacy into UK domestic law, does have important implications for CCTV systems especially those run by public authorities. There can be no dispute that surveillance (at least where it is secret) constitutes an interference with an individual’s right to private life and in some cases, his home, thus breaching Article 8. In the longer term, Article 8 will mean that the UK government is obliged to introduce specific statutory regulations and controls over CCTV. In the meantime, until statutory regulations are in place, organisations operating CCTV systems in public places should be aware of, and comply, with the requirements of the 1998 Human Rights Act.