§ 5.59 p.m.
§ Lord Craig of Radley rose to move, That this House take note of the reports of the Science and Technology Committee on Digital Images as Evidence (5th Report, HL Paper 64), and Digital Images as Evidence: Government Response (8th Report, HL Paper 121).
§ The noble and gallant Lord said: My Lords, it is a privilege to open this debate. The subject of our report, Digital Images as Evidence, led us into a far broader spectrum of topics than a purely scientific or technological scrutiny of digital systems might reveal. We therefore co-opted to our subcommittee a wide range of skills and expertise. We were most ably supported by a former Law Lord, the noble and learned Lord, Lord Ackner; by a Bishop, the right reverend Prelate the Bishop of Leicester; and by the noble Lord, Lord Brain, who has a remarkable wealth of knowledge of imaging and photography. They and our other co-opted member, the noble Lord, Lord Nathan, who is no stranger to our committee, brought knowledge and insight which were of the greatest value to us. I should like to put on record my appreciation and heartfelt thanks for the help, support and guidance which I enjoyed from them and all committee members.
§ As always, the Committee Office, and in particular Dr. Rolt, our Clerk, and Dr. Bradshaw, our special assistant, contributed greatly to the preparation and finalising of our report. As specialist adviser we had Mr. Chris Reed, Reader in Information Technology Law at Queen Mary and Westfield College. As his title suggests, he was most ably qualified, and we are grateful for his many contributions to our work.
§ Our meetings started in late October 1997. We set ourselves a tight timetable. We took all our evidence and considered our report in just over three months, which included the Christmas Recess. It was published in early February of this year.
§ One of the important drivers to getting our report completed was the new Data Protection Bill. We knew that the Government would be introducing it in the course of this Session, and in fact it appeared here on 16th January, as our report was being finalised. It cannot often happen that a Select Committee report will coincide with the early stages of an important Bill to which it is so closely related. The Data Protection Bill has to become law by October this year to give effect to the 1995 EC data protection directive. Our recommendations are therefore timely.391
§ It is unfortunate that the very short notice of the date of this debate has precluded a number of committee members from participating tonight. I know that they regret this, as do I. In their absence, I shall do my best to highlight the main thrust of our recommendations.
§ We received an excellent response to our call for evidence and are most grateful to all those who, either orally or in writing, or both, provided us with the evidence we needed. We were also able to see for ourselves examples of some of the new technologies in use. Our visits to the City of London police, the Greater Manchester police and the Forensic Science Service, for example, were most ably organised and informative.
§ I do not propose to go through all of our report and recommendations in detail. Suffice it to say that they have been welcomed and generally supported by the Government. In only a couple of instances has there been some variation between us, and in the time available I shall concentrate on those. I should add that the committee is grateful for the way in which the Government have responded. In particular, we appreciate the trouble taken by the noble Lord, Lord Williams of Mostyn, at a very busy time for him, in replying in greater detail to those points which we felt had an impact on the new Data Protection Bill.
§ To appreciate the thrust of our recommendations, it is perhaps necessary to know why a digital image can be different from other captured and stored information. We have set out the facts in Chapter 2 of our report. The key point is that digital technology allows repetitive and identical replicas of text, still and motion pictures, and even sound to be generated from digitally stored information.
§ It is also becoming increasingly easy to modify or "doctor" such stored information. Without a comprehensive audit trail, it may not be possible to determine whether information captured at the start is the same as that which is being presented as evidence. We were interested in exploring whether this feature of digital technology would alter or affect the reliability and credibility of evidence which had been collected and/or held in digital format. We decided that our study should be centred on photographic-like images and bounded on one side by documents and on the other by closed circuit television (CCTV) and video. We also wished to explore how familiar those who used and relied on digital evidence were with the unique features of this relatively new technology. We have made a number of recommendations, which we hope the appropriate legal authorities will follow up.
§ One of the many implications of the use of digitally recorded images is that the erstwhile reliance in court on paper and photographic originals, or authenticated copies of these, will no longer always be feasible. For example, the national automated fingerprint identification system has no original paper source to retrieve as best evidence. Nor will there always be a digital original which recorded the scene or event. The digital camera which records a red traffic light infringement, for example, will download from its temporary store into a computer. The original captured 392 image in the camera's memory will be overwritten when a subsequent infringement is recorded. No visible or readable information will be available from it thereafter once it is overwritten.
However, provided that appropriate verification and authentication measures of digital material are in place, paper originals will rarely be necessary. Yet we found that there may still be reluctance to come to terms with this development. For that reason we recommended that the Government should encourage the appropriate legal authorities to draw greater attention to the fact that paper originals were rarely necessary. Although the Government agreed with this recommendation, they went on to comment that retention of the original digital file, captured from the original paper or other source, is highly desirable, if not essential. It seems that we still have some way to go before we can escape from a presumption that there will always be such a thing as a unique, original digital file. As we say in the summary of our report:
many people think there will he difficulty in obtaining legal acceptance of digital images. And many who understand there is no legal problem fail to appreciate fully the potential for tampering that the technology creates. The perceived difficulties mean that opportunities are missed—a reluctance to use digital imaging technology or to dispose of paper records, for example—and the failure to understand fully the process means that too great a reliance can be placed on photographic or video evidence. The doubts and scepticism normally associated with unsubstantiated pieces of paper may be suspended when confronted with a very believable picture".
Yet that picture can be a fake, undetectable without an audit trail.
§ The other topic on which there was much agreement between the Select Committee and the Government, but some points of variance, was that of closed circuit television. We had not originally thought to widen our inquiry to issues of privacy and civil liberties—that is not normal for a committee considering science and technology—but the evidence we received made us realise the ubiquity of modern surveillance systems, and particularly closed circuit television. More and more of them cover our streets and other places to which the public has access. We were concerned to learn from some of our witnesses that public acceptance could be fragile. Approval for the use of surveillance in public places is important. It should be maintained and encouraged.
§ Systems which help to deter crime and assist the authorities to catch and prosecute criminals should be widely valued. But if the material which those systems record appears in the media, where it is often used to amuse and even titillate, public support for the intrusive nature of the systems may be lost. On that we are on all fours with the Government. However, they were reluctant to take up our recommendation to study the cost-effectiveness of the systems. Considerable sums of public money are being devoted to them. We should not be relying so much on anecdotal and subjective judgment to substantiate such expenditure. I do not feel that the Government's response to this recommendation, which we saw as part of the measures necessary to sustain and enhance public support for CCTV systems, was that convincing. Perhaps the Comptroller and Auditor General will agree with us.393
§ For the most part, it was clear that the Government and our committee were of the same mind about most of the steps we recommended to keep public support strong. We recommended a number of measures to control the installation of surveillance systems and their recordings. We envisaged some form of statutory enforcement code of practice. We were concerned about the control of data matching. That is where the new Data Protection Bill is so important.
§ In the course of the Committee stage of that Bill I, along with other members of the Select Committee, tabled a probing amendment to satisfy ourselves that the Bill as drafted would provide strong and effective safeguards for the public. I am no lawyer and recognise the drafting difficulties of using non-technology-specific language to achieve the desired results. Once again we must be grateful to the noble Lord, Lord Williams of Mostyn, and the noble and learned Lord, Lord Falconer of Thoroton, for the care with which they rehearsed their views and their confidence that the Bill as drafted would provide the safeguards that our Select Committee was seeking.
§ One of the difficulties is that the language of information technology is developing its own lexicon and dynamic; for example, extensive mark-up language—XML—will enable new software to be written which will select data and manipulate information in ways which had previously been impossible. Whether every new term and concept which is developed for information handling, matching and retrieval will be captured by the Bill, only time will tell. But it is encouraging that the strongly-held view of the committee on those intrusive aspects of the digital age find a close affinity in the Government's thinking and actions. I welcome that. I beg to move.
§ Moved, That this House take note of the reports of the Science and Technology Committee on Digital Images as Evidence (5th Report, HL Paper 64), and Digital Images as Evidence: Government Response (8th Report, HL Paper 121).—(Lord Craig of Radley.)
§ 6.14 p.m.
§ Lord Nathan
My Lords, I start by saying what a pleasure it was to sit under the chairmanship of my noble and gallant friend Lord Craig of Radley who kept us in order and particularly restrained some of us from straying beyond our terms of reference, which is extremely easy to do.
I propose to speak mainly about the civil liberties aspects of our inquiry and the Data Protection Bill, presently under consideration in another place. But, first, as the title of our report speaks of Digital Images as Evidence, it is important to emphasise the enormous benefits which have arisen from digital imaging in the conduct of litigation and arbitration, particularly in the commercial field, in the building and shipping industries and others involving heavy documentation.
In our inquiry we focused principally on criminal cases and the problems relating to evidence in the context of digital imaging. My noble gallant friend Lord Craig spoke of our conclusions and I shall therefore 394 refrain from doing so. But it would be a pity if, because of those problems, the enormous benefits of this technique were put in question.
Discovery—the disclosure to other parties of documents held by one—involves copying vast quantities of papers many times for solicitors, barristers and the court. It involves a great weight and volume of paper. Where the originals are paper documents, they can now be scanned and converted to digital images on computer. The exchange of documents, instead of involving the transfer of much paper, can be achieved by exchanging disks. In the proceedings a computer operator can throw up on request, on screen, the documents in question which are then available for all to read. That has the additional advantage that members of the public in court are able to see the documents under discussion which, hitherto, has not been practicable.
Exactly the same advantages arise in criminal cases, such as those involving fraud, where heavy documentation is involved. I am not aware of any problems or difficulties arising which offset the advantages of using digital imaging techniques in those contexts. So the matters on which we concentrated in our inquiry, important though we believe them to be, represent only one aspect of the use of digital imaging in legal proceedings.
The Government, in their response to our report, reacted affirmatively to our main concerns in relation to the use of CCTV in places to which the public have free access. Much of the burden of ensuring that the system is not misused will lie on the Data Protection Commissioner under the new Data Protection Act. Control over capturing images, secure storage and use of them, is essential, but not easily achieved.
Mr. John Burrow, Chief Constable of Essex and chairman of the Association of Chief Police Officers' Working Group on Data Protection, in his evidence to us, mentioned the strong public pressure for CCTV systems. He felt—and I agree—that at the moment there is confidence in its use, but he believed that that confidence is "fragile" and could be reversed. The effectiveness and confidence in CCTV would then be lost.
As we mentioned in our report, some have been used to raise money by selling to the media; the potential for making money out of their use is always there. It may be claimed that publication is in the public interest. By contrast, a picture may be used for blackmail and, in view of the ease of manipulating pictures, to create them for that purpose. Upon request it is possible on a screen to track someone walking alone to provide a measure of protection. It is therefore possible to track a suspect. It is possible for an operator to track someone he wishes to meet for legal or illegal purposes.
There was widespread concern at the publication on a television programme showing pictures captured on CCTV relating to the attempted suicide by Mr. Peck. If, as a result of celebrated court cases or for some other reason, the public become aware of the potential for misuse—for public entertainment or otherwise—of pictures captured on CCTV (and indeed of the ease with 395 which images can be modified to make them represent something which the original did not)—public confidence will be undermined. The present enthusiasm to see CCTV installed would then be converted to hostility and opposition.
A balance has to be struck between the right of the individual to the freedom of privacy and the right of an individual to go about his business free from molestation. CCTV inevitably represents an intrusion into privacy.
One of my main worries during our inquiry related to the increasing use of CCTV surveillance by private businesses engaging others to instal and operate the system. That presents a rather different situation from a system operated by the police who are accustomed to establishing surveillance systems appropriately controlled and operated by their own staff subject to the discipline of the force. It is not the directors of a retail shop who will be involved in operating the CCTV system, though no doubt they will have a responsibility for the installation of appropriate controls. It is therefore the system and those actually operating it to which any controls must directly apply. So the control of those operating the systems is crucial and far from easy.
A question arises as to whether the purpose of the surveillance is to be closely defined and the images used only for that defined purpose. For instance, for the avoidance of terrorist attacks, a system was installed to great effect in the City of London. Only eight entries to the controlled area were open and so many streets giving access were made one-way. Surveillance showed a number of delivery vans reversing up them. I saw them on the surveillance screens! They were caught for this traffic offence. Of course it may be said that this was all part of the security regime and the vans might have been trying to defeat the purpose of the ban on entry. But by use of number plate identification stolen cars were identified together with their occupants, and car theft was therefore brought within the scope of the system. So what started as an entirely acceptable system created in special circumstances has turned into general crime prevention. All this demonstrates the need for close supervision of the operators of CCTV systems with a view to ensuring that the public have confidence in them.
The Commissioner of Data Protection will need all the support of government they can give. With further advances in technology—and perhaps its misuse—government must be ready to intervene speedily. I hope the noble Lord the Minister will confirm that that would be the Government's intention should those circumstances arise.
In their response to our report and in the accompanying letter from the noble Lord, Lord Williams of Mostyn, published with it, the Government have been very supportive of most of the conclusions we reached. But the additional duties of the Commissioner of Data Protection, which I greatly welcome, will impose great burdens upon her. She must promote good practice, issue codes of practice and encourage others to do so. She may get involved in assessing processing of personal data for compliance. 396 Processing includes capture, storage and use of data, as well as destruction. She can require information if she suspects breach of the data protection principles and may enter premises to carry out inspections and indeed seizures.
These are all most welcome and will go far to satisfy and forestall public worries about digital imaging and CCTV. But the staff which the commissioner will require to carry out these new duties—additional to those of the registrar under the 1984 Act—would seem to be substantial and their effectiveness will depend on their high quality. The cost is likely to be substantial. Yet the Explanatory and Financial Memorandum to the Bill, under Financial Effects, says:The costs in a full year of the Data Protection Commissioner and his office, together with the Tribunal, are estimated to be £3.7 million at current prices".Can this be right?
My concern is that the excellent arrangements set out in the Bill will work effectively. I have seen in other contexts excellent arrangements being stultified by inadequate funding. I hope the noble Lord the Minister may reassure us that that will not happen in this case.
§ 6.23 p.m.
§ Lord Brain
My Lords, there seems to be a strange phalanx from the Cross-Benches speaking in this debate. I am very grateful to the noble and gallant Lord, Lord Craig of Radley, for introducing the debate, for co-opting me onto the committee and for the words he said about my assistance to the committee. I at once declare an interest in that I am a member of the Royal Photographic Society and of the British Photographers Liaison Committee. I had assistance and guidance from both those bodies while I was working on the committee, but I am in no way personally affected by anything that is mentioned in the report. As I am talking about photography, perhaps I may say that I found it helpful that, in addition to our two major assistants, the Clerk had a knowledge of photography and he and I understood some of the technical terms I brought forward to the committee. I believed that that helped him in the preparation of the report.
I shall not follow the noble Lord, Lord Nathan, with regard to closed circuit television. I shall look at the question of the audit trail and draw on the fact that I attended a medical and forensic imaging symposium in Bath at the beginning of April which looked at digital imaging in the presentation of evidence from and in digital form and the management of evidence digitally. I shall conclude with a question to the Minister to the effect that to do what I am suggesting will require equipping the courts with a number of devices, either permanently or on hire, for particular trials.
In paragraph 3.24 of the report we quote Lord Taylor, who said that,as technology develops, evidential practice will need to be evolved to accommodate it. Whilst the Courts must be vigilant to ensure that no unfairness results, they should not block steps which enable the jury to gain full assistance from the technology".I believe that the jury should be given this full assistance so that the court itself can see the evidence on a screen. At the conference I mentioned there were about 150 of 397 us in a room. There were two screens, a computer projector, two slide projectors and a video projector, all of which were visible to the 150 people. This meant that the presentation could be understood clearly.
Going back to the need for an audit trail, even with photography some 40 years ago images could be manipulated just as they can now be manipulated digitally. The only difference was that it took time. You had to get the exposure right and you had to develop the print, but it had an advantage because you were doing it in this way. You noted down what you had done and therefore you had a written audit trail. A computer can do exactly the same thing at the movement of a mouse or at the click of a button. Although you have a record on the screen, if you do not save it you do not know what you have done; and you certainly do not record how it has been adjusted. However, as I shall explain in a moment, if you then recall the various series of images in front of a jury, you can show the audit trail.
A specific case was demonstrated to us at the symposium. An expert showed us how bite marks could be identified from impressions of teeth. But he first showed us how to take an impression from the jaw and get a photograph of the teeth. He then showed us how a dentist, a forensic scientist and a "man in the street", using a felt-tip pen, tried to trace the bite marks on the screen on a piece of film. They achieved widely differing results. He then gave them exactly the same images with a computer program. All three of them got as near as maybe identical images. What is more, he then asked a computer literate member of the audience to come up, and he did exactly the same thing. So you can show the original image of the teeth and then show the zone which was the bite mark.
Then he showed us the image—I believe it was on a face, but it does not matter where on the body—of the bite that had occurred. He was then able to call back the file of the bite on the jaw, the "teeth marks"; move it round the screen; tilt it slightly and show how it matched. That was done almost within the time that I have been explaining it. The idea of having to produce these photographs to the jury, have them slide a film over the original photographic image of the bite mark and things like that, would take half to three-quarters of an hour as opposed to five minutes. I believe that this is a cost effective way of doing things.
There are other ways. As the noble and gallant Lord, Lord Craig, explained, we saw how the images could be constructed using a programme known as "Photo Shop". I saw exactly the same sort of thing. In America there was an original photograph where you could not see the number plate of the car; you could not see that there was another car in the hedge in the background and things like that. But, using digital imaging in front of us at that symposium, the contrast and the colours had been changed and the number could be identified. Exactly what had happened to the car in the background was clearly visible. That was using an ordinary film camera and then digitally imaging it. Again, it was done in front of us.
At this conference, besides the forensic scientists, there were also police officers. In conversation over lunch with them—again allied to my final request about 398 equipment—they complained that some of them had put highly sophisticated closed circuit and interviewing equipment in their interview rooms, but, unfortunately, when it came to presenting it in court, the standard of the equipment available was not adequate to get all the nuances.
What I am saying is this. The Government have already supported the major parts of our report. I ask them to find enough money to equip enough courts. It does not need to be every court. On some occasions it may be necessary just to hire the equipment for part of a trial. I can see it being highly cost effective in reducing the trial time enabling the Forensic Science Service, the Crown Prosecution Service and expert witnesses, who will have viewed it beforehand, to come to some agreement on the significant aspects of the case and, secondly, having had it presented clearly, the jury will understand the expert witness much better.
§ 6.33 p.m.
§ Lord Thomas of Gresford
My Lords, I thank the noble and gallant Lord, Lord Craig of Radley, for introducing this fascinating topic. I also congratulate those who preceded me for their report. It is very intimidating to face the wealth of experience and knowledge which has gone into producing a report of this nature. I can only speak from personal experience in the courts themselves.
It would be wrong for anyone to think that the courts do not keep up with technological developments. The general acceptance of DNA evidence has proved to be crucial and has led to safer and easier convictions in the courts. There are all sorts of experts. There is one gentleman, a very senior biologist, who can be seen at various courts around the country because of his expertise in maggots. His evidence is used to establish the time or date of death in certain cases. I was fascinated by the reference of the noble Lord, Lord Brain, to teeth marks. Perhaps the Rugby Football Union at Twickenham might be very interested in such proposals. I speak as a Welsh rugby referee.
However, the enhancement of images must be treated with some caution because there is a problem in differentiating between enhancement and manipulation. I have personal experience of a case involving the enhancement of a CCTV film covering a street scene not very far from where your Lordships are sitting. The camera recorded, at a distance, images of the attack on, and the death of, an individual. The kicking took place at some distance from the camera. The enhancement of the images was so effective it also enhanced the memory of the defendants who pleaded guilty to manslaughter without a trial being necessary. That is an example of where the enhancement of imaging led to convictions.
Since there is the danger of manipulation it is essential that there should be regulation. I go so far as to say that no evidence should be received in court in the form of an enhanced video or image, save one that has been produced by a licensed authority, whether it be the forensic services or one of the private firms which would apply for licences. The methods and controls 399 operated in the production of enhanced images of this nature would be investigated. That would go a long way to assisting in the problem of authentication.
The noble Lord, Lord Brain, also referred to the importance of the audit trail. With a properly regulated body investigating matters of this sort, I am sure that courts could be satisfied that the proper procedures had been followed and the evidence was acceptable.
I turn to the issue of CCTV in public spaces. I do not doubt for a moment that crime is deterred by surveillance over public areas that such CCTV systems provide. I am quite sure that they induce a sense of security in the people who use town centres and public spaces. It is said—but as the report points out, without any concrete evidence—that crime may be displaced from the areas that are covered by such systems to other areas. In the absence of positive proof that that does occur, it seems to me that the advantages of the sense of security induced by CCTV systems outweigh that possibility. If advantages are to be gained from CCTV, again it is necessary to ensure that proper controls are in place.
I was particularly struck by the Local Government Information Unit code of practice, which was annexed to the report and which provides in terms that recorded material must not be sold or used for commercial purposes. In my view, it would be entirely wrong for CCTV films to be used for entertainment or even for educational purposes because the potential infringement of people's liberty is so great.
Although in paragraphs 4.11 and 4.14 of their response the Government seem to be satisfied that the new Data Protection Bill will provide a regulatory framework to some degree, I note that the introduction of statutory regulation for all operations involving CCTV systems is to be considered in the future. If such systems are to be widely used throughout the country, it seems to me that it is necessary now to develop the necessary controls. The national licensing scheme, which the Government say that they are considering as an option, is, in my view, essential if we are to ensure that the systems are used properly.
There is much in both the report and the response to be considered. I commend again the authors of the report for the comprehensive way in which they have dealt with a most serious problem.
§ 6.41 p.m.
My Lords, I too congratulate the noble and gallant Lord, Lord Craig of Radley, on his report. Thanks must also be offered to the Government for their considered response. I am, as it were, the first of the two laymen to speak in this debate. We have already heard from three speakers who were members of the Select Committee which produced the report and from a lawyer. The noble Lord, Lord Hoyle, and I are neither lawyers nor members of that committee.
The first time most of us come across cameras being used to provide evidence is when we are caught speeding. It has certainly happened to me. I got a letter one day which was a notice of intention to prosecute 400 and which stated that I had been driving at 40-something miles per hour in a 30 mph zone and asking me whether that was the case. I wrote back saying that it could easily be the case, but that I had absolutely no idea of whether or not it was the case and I asked whether the police could kindly send me a copy of the photograph so that I would at least be likely to know. I received back a very nice letter saying, "It is far too expensive to send a copy of the picture", but that I could call in at a police station to see the photograph. I wrote back, saying that perhaps the police would let me know when it was convenient to do so. I duly went to the police station, and there was a photograph of me in my car travelling at 47 mph, or whatever, and I said, "Thank you very much".
That brought home to me the fact that in such circumstances we are confronted by the fact that we are guilty—one is probably guilty—without having known about it. The installation of digital technology has the advantage that when the prosecuting authorities decide to send one a notice of intention to prosecute, they could presumably also send one something showing one that one is guilty. If one drives up and down the same stretch of road every day, it is confusing two-and-half or three months later to be asked whether on any particular day one was driving at more than 30 mph.
I read the report with great interest. Various themes arise from it. One concern about digital technology is that it is a fairly new technology. There is not necessarily an original. I noted that in the report Abbey National said that alterations could not be made to the digital copy, but that annotations could be added in the form of overlays. However, later in the report (paragraph 2.6) it is stated that there is concern because such changes can be made and are almost impossible to detect. I have asked a few computer wizards about what is possible and, as far as I understand it, one can do almost anything with a computer and it is almost impossible for anybody to know what has been done. The report states that the timing mechanisms used are often inaccurate. The noble Lord, Lord Brain, referred to the audit trail. Such developments are vital before the public and the courts can feel satisfied about this new technology. Presumably, fingerprints can be stored digitally, but the question is: should the original also be kept?
One must always remember not to be bowled over by scientific evidence. There have been some quite famous trials in recent British legal history in which, as a result of the scientific evidence, people were sent to prison for conspiracy to cause explosions. A number of years later, that evidence was shown to be wrong and the courts threw it out. I repeat that it was supposed to be clear scientific evidence.
The noble Lord, Lord Thomas of Gresford, referred to manipulation and to enhancement. Enhancement is, in effect, a form of alteration. Although it is carried out for a perfectly respectable purpose, it is nevertheless alteration. I agree totally with the noble Lord that perhaps there should be a licensing authority. It is important that if an image is enhanced, at the very least everybody should know that it was enhanced, how it was enhanced, and who enhanced it.
401 Scientific evidence, whether based on digital technology or DNA, is constantly moving forward. Science can now produce evidence that was never available to us in the past. As the noble Lord, Lord Thomas, said, the courts are used to this and they deal with it all the time. However, we must remember not to be misled and not to assume that because a scientist says, "This is it", he is necessarily right. Science is often wrong, so there must be safeguards.
I turn now to CCTV in public areas and to the concerns about invasion of privacy. The previous government encouraged the use of CCTV in public places and its use has, indeed, returned public places to the public for their benefit. That is clear. The use of CCTV has worked. I am not sure of the evidence about it displacing crime, but it has certainly made many town centres safer places. However, that has created separate problems, such as the questions of how we deal with the images and who is responsible for them.
I sat through the Committee stage of the Data Protection Bill, which is shortly to return to your Lordships' House, as did the noble and gallant Lord in part. The Government clearly said that CCTV is covered by the Data Protection Act. It must be right that the images that are held are not used for gain or sold to be shown on television without some form of control, whether by health authorities, councils or local authorities. Someone must take responsibility for that.
There was one area of the report on which the Government disagreed somewhat with the Select Committee. That concerned the encouragement of legal bodies to draw greater attention to changes. I support the Government's response to the recommendation of the Select Committee that evidence should not necessarily be inadmissible because it does not conform to some specific technological requirement. I believe that great care must be taken in this area, and I agree with the Government's response.
To return to the Data Protection Bill, that measure will provide a statutory code that will be extremely important. Noble Lords are aware that it will be possible to have data matching in a way that affects our private lives. We do not know how the advances will be used. The Data Protection Bill is an important element in that. This report is an important addition to the debate on the Data Protection Bill. The report is a very good one and I congratulate all members of the committee. Thanks should go to the Government for their considered reply to the report. I welcome both documents.
§ 6.51 p.m.
§ Lord Hoyle
My Lords, as was said by the noble and gallant Lord, Lord Craig, the Government greatly welcome the report of the Select Committee. It has helped to clarify the key issues on the use of digital images as evidence. The Government are most grateful to the noble and gallant Lord for the work that his committee has undertaken. The committee's recommendations have been largely accepted by the Government, in particular that consideration be given to removing the uncertainty surrounding the use of digital images as evidence.
402 The Government also support the use of CCTV surveillance in public places to help tackle crime and disorder. However, the Government share the committee's view that to be successful CCTV schemes must command the confidence and support of the local community. These systems must be deployed and operated with integrity and respect for personal privacy and civil liberties. The Government also share the view of the committee that CCTV material should be used for the detection of crime and the prosecution of offenders. I say to the noble Viscount that the Government deplore the sale of CCTV material for entertainment purposes.
Until now CCTV has been subject to voluntary regulation through locally adopted codes of practice. While model codes such as those developed by the Local Government Information Service are now widely accepted, the Government accept that there is a need to underpin good practice in law. The Government believe that the controls available under the Data Protection Bill will be able to address the Select Committee's main concerns in relation to CCTV systems. Noble Lords will be aware that the Bill gives effect, among other things, to the 1995 EC Directive on Data Protection. It also builds on the tried and tested regime established under the Data Protection Act 1984. However, one of the problems with the 1984 Act is that because of the limitations in some of its key definitions, many CCTV systems fall outside the scope of its control. We believe that the far wider definitions in the Data Protection Bill are sufficiently broad to encompass not only the sophisticated types of CCTV systems, as did the 1984 Act, but much simpler equipment that merely projects images of identifiable individuals passing a shop window without actually recording.
In practice it means that the controllers of CCTV systems have to notify details of their processing to the Data Protection Commissioner (as the Data Protection Registrar will henceforth be known) and comply with eight enforceable data protection principles. Among other things, the principles require personal data to be processed—a term that encompasses obtaining, holding, use and disclosure—fairly and lawfully and not to be further processed in a way incompatible with those purposes.
The Bill gives the commissioner wider enforcement powers. I believe that that has been sought in the debate tonight. In particular, I single out the fact that the commissioner will no longer have to wait for a complaint before beginning an investigation. She will also have power to issue codes of practice and encourage other bodies to do so. There will also be a duty placed on the commissioner to advise on the adequacy of codes submitted to her for consideration and power will be given to the Secretary of State to direct the commissioner by order to prepare codes of practice.
I welcome the speech of the noble and gallant Lord. There are few differences between the approach of the Government and the comments of the noble and gallant Lord. He drew attention to the recommendation that appropriate legal bodies should be encouraged to draw greater attention to the changes in digital processing and to widen public awareness that paper originals are rarely 403 necessary. Although we agree with the proposal, we stress that while paper originals may rarely be necessary, retention of the original digital file, captured from the original paper or other source, is considered highly desirable, even essential. It is very important that we proceed with this matter.
The noble and gallant Lord asked about the recommendation of the committee that the Government should commission a substantial, rigorous and independent study of the costs and effectiveness of a publicly funded surveillance system. The Government recognise that there are already a number of professionally conducted case studies which indicate that CCTV can have a real impact on crime and disorder. All of the schemes funded by the Home Office are required to conduct an independent evaluation. But if we are to proceed with an evaluation at national level it will be a very significant task to undertake. The Government believe that it is better to focus limited resources on particular schemes.
The noble Lord, Lord Nathan, was quite rightly concerned about the aspect of civil liberties. It is right to take account of CCTV operated by private companies. We shall introduce legislation to regulate the private security industry. That will be done as soon as parliamentary time is available. I hope that that satisfies the noble Lord. He has raised a very important matter.
The noble Lord, Lord Brain, was very concerned that full assistance should be given to the audit trail. He said that if it was necessary the equipment could be hired. I am quite sure that if a good case has been made out, that can be provided. Of course, the CPS will also meet the costs of its equipment. All of that in itself was very important.
In relation to funds and fears that progress might be stifled, we believe that it is possible that the existing staff will be able to deal with matters but, if needed, extra funds will be made available to meet the cost. I hope that that meets the demand that has been made.
Also, in relation to the equipment in courts, of course the courts are keeping the developments under close review. Currently, as was said, there is no bar to the use of technology in criminal proceedings providing the evidence is otherwise admissible. For example, both computers and CCTV material, as has been said tonight, have been used in proceedings. Of course, it is now true that CCTV links which use standard VHS technology are available in nearly all Crown Court centres. As I said earlier, if there is a good case made out, they would be used, but there is nothing to stop anyone who wants to use more sophisticated equipment applying to the court to bring along their own specialist equipment as well in relation to these cases. The Crown Court service is aware of the need to ensure that the quality of playback of VHS video recording is to an acceptable standard. That is also being taken into account.
In relation to the points raised by the noble Lord, Lord Thomas of Gresford, of course I cannot enter into the needs of Welsh referees and the question of biting, but I can imagine it and I can sympathise with him over the fact that as there are now playbacks in television, 404 referees need every aid they can get. I believe that I have covered most of the points he raised. We are concerned, as he is, that the public must have confidence that there is no tampering with any of the evidence that is produced in court.
I was very sorry to hear that the noble Viscount, Lord Astor, fell on the wrong side of the law and that he was not, in effect, able to prove his innocence. However, we believe that it is very necessary indeed to prevent the use of CCTV footage, which he was concerned about, for entertainment or other purposes. Any such use of that material will, we believe, be caught under the Data Protection Bill when it becomes an Act. It will need to comply with data protection principles' requirement for personal data to be processed fairly and lawfully and not further processed in any manner incompatible with the purpose or purposes for which they were obtained. In practice this will prevent those who operate security cameras from passing on for entertainment purposes footage in which individuals can be recognised without the consent of those individuals. For completeness I should add that the Bill, like the 1984 Act, provides limited exemptions from some of these requirements. We hope that it does prevent any more stories coming out in the media about certain authorities selling footage of events.
Finally, this has been a very useful debate in what is a rapidly developing area. We as a Government are co-ordinating a broad criminal justice approach to this developing area, an approach that ensures that the Government have complete confidence in what is exhibited in courts.
§ 7.4 p.m.
§ Lord Craig of Radley
My Lords, it remains for me to express my thanks to all those who have made kind remarks about my chairmanship and about the work of the committee. I should like to thank all who spoke, particularly my two wing men here on this side, but from every speaker we have learnt as well as understood that this is a growing area of complexity which is going to impinge on all aspects of crime prevention and the prosecution of criminals.
Of course, I was sorry that so few members of the committee were present. I have a considerable number of apologies because of the short notice of this evening's debate.
I finish by drawing an analogy with the early days of the breathalyser, when, if one was caught—fortunately, I was not—there was almost immediate agreement that one would accept the verdict of the breathalyser, plead guilty and take one's punishment. As we all know, it is no longer always the case that a breathalyser leads to an automatic conviction. All sorts of devious and less devious defences have been developed. In the age of digital technology and digital imagery, I believe that this sort of development is likely to occur. If somebody other than the noble Viscount, Lord Astor, were to fall on the wrong side of the law, a good defence lawyer would be extremely tempted to question the veracity of the image presented and to seek to establish that the thing could have been manipulated at some stage in its passage from 405 the catcher of a digital camera whose memory is no longer available to be read and the presentation of the image to the court.
I thank your Lordships very much and I commend the Motion to the House.
§ On Question, Motion agreed to.