In Part 1 of this blog I reflected on the issue of Police Officers carrying out searches and arrests, whilst failing to record these events on their body worn cameras; I expressed my concerns by reference to two cases I am currently bringing against Merseyside Police, but I am aware of the same failings amongst many other Forces including the Metropolitan Police and West Midlands. It is clearly a wide-spread problem, and one which is likely aided and abetted by the apparent reluctance of Professional Standards departments within the Police to treat it with the gravity it deserves. Sadly, I think this is born out of the ingrained attitude of Professional Standards officers who presume – either naïvely or cynically – that Body Worn Video will invariably substantiate the account of the Police who are being complained about, rather than that of the complainant. This type of bias thinking was certainly betrayed by the comments of the complaint investigatior in the case of my client Connor, who seemed to feel that the only reason for bemoaning the failure of the Officers in that case to activate their cameras was because it “could have negated much of the complaint.” No consideration was given to how much of the complaint it could have upheld, of course…
So if this is the problem we are faced with, what is the best solution – does it lie in better training and “culture change” amongst the Police; harsher disciplinary sanctions for defaulting Officers; a change in evidential law (presumptions in favour of those who have been denied video capture); better application of science and technology – or perhaps a combination of all of these methods?
Tackling the first issue – Police perceptions of what Body Worn video is actually there for – would be a good starting point. We should ask the question: what is the purpose of the now near- universal deployment of body cameras to all ‘front line’ Officers? Surely the Police have not gone to such great public expense for ‘selfish’ reasons – the cameras should not be there for the protection and purposes of Officers alone, but for the protection of everyone – Police, public, suspects and victims alike – and should not therefore be treated as the ‘property’ of individual Officers to be operated at their discretion (whether actual or in effect, by a failure to properly punish ‘lax’ recording practices).
Moving on from this point, the consequences of not recording the full sequence of stop/search and arrest events should be made clear to Officers and should be far more serious than they currently are, in order to inculcate a culture of compliance amongst Officers who are often choosing to record only half of the picture – or indeed, none at all – thereby undermining both public trust and the efficiency and accuracy of the justice system.
I must say that I am personally in favour of a system of automatic activation of body camera recording modes, as has been suggested by some, to eliminate both innocent ‘human error’ and wilful non- compliance by negligent or actively abusive Officers. Body cameras could be keyed to switch on automatically if certain key words or level of voices/shouting are heard (in a manner similar to mobile phones). It has also been proposed that technology could be introduced to cause a ‘domino effect’ activation of nearby Officers’ cameras when the first goes into automatic record mode, so as to provide a fuller picture/ better angle upon events (experience has shown me that a more accurate view of an interaction often comes from the camera of an Officer standing at a distance, rather than the Officer who is immediately involved in a heated confrontation or tussle). At such a stroke, I believe, a great many of the ‘one person’s word against others’ credibility contests which currently ‘clog up’ the Police complaints process and the civil and criminal courts could be , if not ‘instantly’ resolved, certainly more speedily and equitably dealt with.
I would echo here the words of Mary Fan, a professor at the University of Washington School of Law, who in 2017 published a paper on the problem of missing Police body camera videos, and asserted –
Selective recording and non-recording poses the risk of subverting the promise that led communities across the nation to embrace more surveillance by police body cameras in exchange for improved accountability and transparency. If the problem is left unchecked, rather than being a tool of police accountability, body camera recordings could amplify the problems of a gross imbalance of power.
If the public’s half of the ‘social contract’ in this regard is to accept more intrusive surveillance of themselves by ‘Big Brother’ than ever before – then the surveillance has to flow in both directions, and there should be major questions asked of any assertion made by an Officer which is not backed up by his camera. The Courts, both civil and criminal can play an important part in this; although of course not every such incident actually gets to the stage of judicial scrutiny, for a wide variety of reasons.
Perhaps the acronym GOWISELY should become GOWISER, with the “R” establishing “recording” as an essential criterion of a legitimate stop & search.
In terms of a search, or indeed an arrest, an inference to resolve any factual dispute in favour of the detained/ arrested person could be adopted by both Police Professional Standards units, Misconduct Panels and the Courts if there is a failure by the Officers on the scene to have recorded events, in the absence of a good reason. And this would not be denying, of course, that ‘good reasons’ do exist in fast-paced, high-stress situations where it is entirely legitimate than none of the Officers involved could pause to operate their recording devices (unless this is circumnavigated by technology, as suggested above).
If in actuality the Officers initiate contact/ dictate the pace of events – as the Merseyside officers certainly did in the two case studies I have provided in my previous blog – then there would almost always be no excuse for non-recording and real disciplinary sanctions should follow for the officers concerned, along with ‘the benefit of the doubt’ being bestowed upon the civilian side of the interaction, in terms of any future complaint, claim or court process; not a wholesale upsetting of the ‘scales of justice’ but as Professor Fan put it, in her 2017 article “a thumb on the scale of inferences” in favour of the member of the public – in the interests of re-setting an imbalance power, for the good of all society.
Some combination of those solutions I feel, is necessary to improve the standards and fairness of UK Policing, and to increase public faith in the same way. You may not agree, but it is certainly a debate which it is essential for us to have, in my opinion.