Using the law against a parking penalty (long)
Discussion
Long, but worth reading (IMHO). It indicates how one might use the law against a Council imposing a parking penalty ... just not a law (or laws) that the Council might have thought they were breaching.
Waltham Forest used images captured by a mobile CCTV unit to issue a £110 fixed penalty notice for a parking violation by an expert in Data Protection law ... who managed to get the penalty set aside.
In late July, the individual stopped for six minutes in a parking bay which was (unusually) subject to parking restrictions. The road signs depicting the parking restrictions were clearly dilapidated and could not be seen in the CCTV footage eventually provided. Neither could they be seen by the driver on approaching the parking bay. The “parking violation” was captured in totality by a mobile CCTV unit parked a good distance up the road. As could be seen in the footage, the mobile CCTV camera puts the parking bay under constant surveillance, can zoom in, and even records when the 'offending' car was neither in the picture nor in the parking bay.
Under the Freedom of Information (FOIA)/Data Protection Acts, the expert obtained complete footage of “the offence” and background material to Council policy in this area. This showed that from May to July, mobile CCTV camera units were sent to the very location shown in the footage, a total of 44 days; this means that for every other working day, this particular parking bay was under surveillance for up to two hours per day.
According to the FOIA material, the reason for sending the mobile CCTV camera to this location includes the deterrent purpose of identifying “motorists who … cause congestion by ignoring traffic markings” and “high instances of fly parking that cause disruption to other road users”. These purposes, in data protection terms, are the relevant purposes of the processing of personal data via the Council’s mobile CCTV units.
It therefore follows that the policy does not apply when there is neither congestion nor disruption. In such circumstances, the cameras should not be recording at all.
If such CCTV camera units do record personal data when there is no “congestion” or “disruption”, the expert argued that this processing was not associated with the Council’s policy nor its stated purposes. In the particular case, the video footage shows CCTV Unit watching an empty parking bay and waiting to hook an unsuspecting motorist. Once hooked, the Council reels in its £110 prize- the Fixed Penalty Notice fee.
The violations of the First and Third Data Protection Principles are as follows:
(a) The purpose of the surveillance is not a purpose set out in Council policy as there is no "congestion" of, or "disruption" to, traffic. The processing therefore is not necessary for the stated Council’s legitimate purposes and as the processing does not have a Schedule 2 criterion, it is in breach of the First Data Protection Principle.
(b) Even if there is a Schedule 2 grounds for the processing, the processing is excessive (e.g. in terms of the Third Principle etc) for the stated purposes of the Council which relate to “congestion” and “disruption” of traffic (and not purposes when traffic is freely flowing).
(c) There is no explicit signage in the parking bay under surveillance or nearby; such signage is a requirement of the First Principle. Indeed, it was suggested to the Council that parking bays that are under constant surveillance (e.g. those that are subject to surveillance once every two days for three months) need specific signage in the particular parking bay. The Council argued that the signage throughout the Borough sufficed.
(d) Westminster Council puts its signage on their mobile CCTV Camera Cars. This is an error as the car is unlikely to be seen by the motorist (i.e. data subject) whose personal data are collected (e.g. in a parking bay under surveillance). It is the locations under surveillance that need the signage - not the device doing the surveillance (i.e. on the CCTV mobile car as per Westminster).
(e) General CCTV signage is normally associated with crime prevention or public safety; it does not include signage for parking violations. Without proper signage displaying the non-obvious purpose of the processing, such processing is likely to be unfair.
(f) The absence of signage makes the surveillance covert; this is admittedly arguable but the relevant Home Office Code of Practice suggests that the surveillance is indeed covert. If surveillance is covert, it is unlawful under RIPA, and it follows that the processing under the DPA would also be unlawful – another breach of the First Principle.
The ICO’s CCTV Code of Practice is clear on the need for signage in the parking bay. Remembering that the surveillance in this case was undertaken when there was no congestion or disruption to traffic (and once every other day for three months). The Code of Practice states:
“Clear and prominent signs are particularly important where the cameras themselves are very discreet, or in locations where people might not expect to be under surveillance. As a general rule, signs should be more prominent and frequent where it would otherwise be less obvious to people that they are on CCTV”.
Hence the expert's argument that the actual parking bay under regular surveillance needs appropriate signage.
Turning now to the RIPA breach: a quote from the “Covert Surveillance and Property Interference: Revised Code of Practice” (2010) published by the Home Office:
“The use of overt CCTV cameras by public authorities does not normally require an authorisation under the 2000 Act. Members of the public will be aware that such systems are in use”.
A footnote adds “for example, by virtue of cameras or signage being clearly visible. See the CCTV Code of Practice 2008 for full guidance on establishing and operating overt CCTV systems”.
The key question is therefore as follows: if the cameras of the Mobile CCTV Unit are not “clearly visible” (the car being 50 metres away up the road), and because there is no signage in the particular parking bay under surveillance, does it then follow that the mobile CCTV cameras are covert? If so, does the CCTV surveillance fall within the definition of “directed surveillance” under RIPA?
The Home Office Code of Practice states that there are three tests if any planned, directed surveillance is subject to RIPA. The surveillance has to be: “covert”; “conducted for the purposes of a specific investigation or operation”; and “likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation)”.
The expert argued that the mobile CCTV unit surveillance is “covert” (because it is not overt as there is no signage and the cameras are not "clearly visible"). Also that the regular and routine surveillance of the parking bay constitutes “an operation” as it occurs every other day over a period of months. The only issue being whether private information is “likely” to be obtained. Given that the surveillance is of a public highway parking bay, at first sight this would appear unlikely.
However, note that the test is that “private information is likely to be obtained”, not that “private information is actually obtained”. So even if “private information” in the particular case was not obtained, there is no guarantee that private information will not be obtained during the operation as a whole. After all, some people do unusual things in their cars, the period of the surveillance operation extends into months, and the CCTV footage in the case does show that the operator can zoom in, at will, to record details of what individuals are doing by the car. So the expert concluded that the Council could not guarantee that it won’t obtain “private” information during its long surveillance operation.
Hence the expert argued that the Council should therefore anticipate - because the operation is continuous - that it is likely to obtain “private information” at some time (e.g. by zooming in). It follows therefore that RIPA is likely to be engaged and the directed surveillance is unlawful (as it does not meet RIPA’s requirements).
However, the RIPA position is not as clear cut as the data protection one. But the expert's conclusion was that the surveillance breached the First and Third Data Protection Principles and was arguably in breach of the directed surveillance provisions of RIPA. Of course, the Council will likely dispute these claims.
Finally, it was reported that the Council did take action in one area; it repainted all the road markings ... but there is still no signage in the parking bay.
The Council caved in.
[With acknowledgements to CP, you know who you are, and thanks for this.]
Streaky
Waltham Forest used images captured by a mobile CCTV unit to issue a £110 fixed penalty notice for a parking violation by an expert in Data Protection law ... who managed to get the penalty set aside.
In late July, the individual stopped for six minutes in a parking bay which was (unusually) subject to parking restrictions. The road signs depicting the parking restrictions were clearly dilapidated and could not be seen in the CCTV footage eventually provided. Neither could they be seen by the driver on approaching the parking bay. The “parking violation” was captured in totality by a mobile CCTV unit parked a good distance up the road. As could be seen in the footage, the mobile CCTV camera puts the parking bay under constant surveillance, can zoom in, and even records when the 'offending' car was neither in the picture nor in the parking bay.
Under the Freedom of Information (FOIA)/Data Protection Acts, the expert obtained complete footage of “the offence” and background material to Council policy in this area. This showed that from May to July, mobile CCTV camera units were sent to the very location shown in the footage, a total of 44 days; this means that for every other working day, this particular parking bay was under surveillance for up to two hours per day.
According to the FOIA material, the reason for sending the mobile CCTV camera to this location includes the deterrent purpose of identifying “motorists who … cause congestion by ignoring traffic markings” and “high instances of fly parking that cause disruption to other road users”. These purposes, in data protection terms, are the relevant purposes of the processing of personal data via the Council’s mobile CCTV units.
It therefore follows that the policy does not apply when there is neither congestion nor disruption. In such circumstances, the cameras should not be recording at all.
If such CCTV camera units do record personal data when there is no “congestion” or “disruption”, the expert argued that this processing was not associated with the Council’s policy nor its stated purposes. In the particular case, the video footage shows CCTV Unit watching an empty parking bay and waiting to hook an unsuspecting motorist. Once hooked, the Council reels in its £110 prize- the Fixed Penalty Notice fee.
The violations of the First and Third Data Protection Principles are as follows:
(a) The purpose of the surveillance is not a purpose set out in Council policy as there is no "congestion" of, or "disruption" to, traffic. The processing therefore is not necessary for the stated Council’s legitimate purposes and as the processing does not have a Schedule 2 criterion, it is in breach of the First Data Protection Principle.
(b) Even if there is a Schedule 2 grounds for the processing, the processing is excessive (e.g. in terms of the Third Principle etc) for the stated purposes of the Council which relate to “congestion” and “disruption” of traffic (and not purposes when traffic is freely flowing).
(c) There is no explicit signage in the parking bay under surveillance or nearby; such signage is a requirement of the First Principle. Indeed, it was suggested to the Council that parking bays that are under constant surveillance (e.g. those that are subject to surveillance once every two days for three months) need specific signage in the particular parking bay. The Council argued that the signage throughout the Borough sufficed.
(d) Westminster Council puts its signage on their mobile CCTV Camera Cars. This is an error as the car is unlikely to be seen by the motorist (i.e. data subject) whose personal data are collected (e.g. in a parking bay under surveillance). It is the locations under surveillance that need the signage - not the device doing the surveillance (i.e. on the CCTV mobile car as per Westminster).
(e) General CCTV signage is normally associated with crime prevention or public safety; it does not include signage for parking violations. Without proper signage displaying the non-obvious purpose of the processing, such processing is likely to be unfair.
(f) The absence of signage makes the surveillance covert; this is admittedly arguable but the relevant Home Office Code of Practice suggests that the surveillance is indeed covert. If surveillance is covert, it is unlawful under RIPA, and it follows that the processing under the DPA would also be unlawful – another breach of the First Principle.
The ICO’s CCTV Code of Practice is clear on the need for signage in the parking bay. Remembering that the surveillance in this case was undertaken when there was no congestion or disruption to traffic (and once every other day for three months). The Code of Practice states:
“Clear and prominent signs are particularly important where the cameras themselves are very discreet, or in locations where people might not expect to be under surveillance. As a general rule, signs should be more prominent and frequent where it would otherwise be less obvious to people that they are on CCTV”.
Hence the expert's argument that the actual parking bay under regular surveillance needs appropriate signage.
Turning now to the RIPA breach: a quote from the “Covert Surveillance and Property Interference: Revised Code of Practice” (2010) published by the Home Office:
“The use of overt CCTV cameras by public authorities does not normally require an authorisation under the 2000 Act. Members of the public will be aware that such systems are in use”.
A footnote adds “for example, by virtue of cameras or signage being clearly visible. See the CCTV Code of Practice 2008 for full guidance on establishing and operating overt CCTV systems”.
The key question is therefore as follows: if the cameras of the Mobile CCTV Unit are not “clearly visible” (the car being 50 metres away up the road), and because there is no signage in the particular parking bay under surveillance, does it then follow that the mobile CCTV cameras are covert? If so, does the CCTV surveillance fall within the definition of “directed surveillance” under RIPA?
The Home Office Code of Practice states that there are three tests if any planned, directed surveillance is subject to RIPA. The surveillance has to be: “covert”; “conducted for the purposes of a specific investigation or operation”; and “likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation)”.
The expert argued that the mobile CCTV unit surveillance is “covert” (because it is not overt as there is no signage and the cameras are not "clearly visible"). Also that the regular and routine surveillance of the parking bay constitutes “an operation” as it occurs every other day over a period of months. The only issue being whether private information is “likely” to be obtained. Given that the surveillance is of a public highway parking bay, at first sight this would appear unlikely.
However, note that the test is that “private information is likely to be obtained”, not that “private information is actually obtained”. So even if “private information” in the particular case was not obtained, there is no guarantee that private information will not be obtained during the operation as a whole. After all, some people do unusual things in their cars, the period of the surveillance operation extends into months, and the CCTV footage in the case does show that the operator can zoom in, at will, to record details of what individuals are doing by the car. So the expert concluded that the Council could not guarantee that it won’t obtain “private” information during its long surveillance operation.
Hence the expert argued that the Council should therefore anticipate - because the operation is continuous - that it is likely to obtain “private information” at some time (e.g. by zooming in). It follows therefore that RIPA is likely to be engaged and the directed surveillance is unlawful (as it does not meet RIPA’s requirements).
However, the RIPA position is not as clear cut as the data protection one. But the expert's conclusion was that the surveillance breached the First and Third Data Protection Principles and was arguably in breach of the directed surveillance provisions of RIPA. Of course, the Council will likely dispute these claims.
Finally, it was reported that the Council did take action in one area; it repainted all the road markings ... but there is still no signage in the parking bay.
The Council caved in.
[With acknowledgements to CP, you know who you are, and thanks for this.]
Streaky
What tribunal or court was this before?
It seems one of those that might gain traction, until it hits the higher courts who slap it down as nonsense. Not that I have an opinion either way, other than to question whether the chap was actually guilty of parking outside of the regulations, in which case, he should have paid up and got on with his life.
It seems one of those that might gain traction, until it hits the higher courts who slap it down as nonsense. Not that I have an opinion either way, other than to question whether the chap was actually guilty of parking outside of the regulations, in which case, he should have paid up and got on with his life.
Presumably the DPA is about prcoessing PERSONAL data - if a CCTV camera is sat there recording an empty bay is it recording personal data?
Anyhow, it soudns like this argument, in the long term, could be defeated by the operator turning off the camera when no one is there.
Not having a valid RIPA doesn't mean anything on its own - it just means the 'victim' could attempt to sue the Council for breaching his human right (to privacy) - that does not automatically mean the Council does not have a detailed enough reason as to why it thinks its methods justify invading the victims privacy (in fact it soudns liek they have detailed policies on why they do what they do).
The DPA argument sounds like the best route - but unfortunatley leads to a load of nonsense for people affecting by rogue parkers!
Fair point on signage I spose - but just more expense for Councils in these tough times.
Anyhow, it soudns like this argument, in the long term, could be defeated by the operator turning off the camera when no one is there.
Not having a valid RIPA doesn't mean anything on its own - it just means the 'victim' could attempt to sue the Council for breaching his human right (to privacy) - that does not automatically mean the Council does not have a detailed enough reason as to why it thinks its methods justify invading the victims privacy (in fact it soudns liek they have detailed policies on why they do what they do).
The DPA argument sounds like the best route - but unfortunatley leads to a load of nonsense for people affecting by rogue parkers!
Fair point on signage I spose - but just more expense for Councils in these tough times.
Mojooo said:
Presumably the DPA is about prcoessing PERSONAL data - if a CCTV camera is sat there recording an empty bay is it recording personal data?
Anyhow, it soudns like this argument, in the long term, could be defeated by the operator turning off the camera when no one is there.
Not having a valid RIPA doesn't mean anything on its own - it just means the 'victim' could attempt to sue the Council for breaching his human right (to privacy) - that does not automatically mean the Council does not have a detailed enough reason as to why it thinks its methods justify invading the victims privacy (in fact it soudns liek they have detailed policies on why they do what they do).
The DPA argument sounds like the best route - but unfortunatley leads to a load of nonsense for people affecting by rogue parkers!
Fair point on signage I spose - but just more expense for Councils in these tough times.
If they're going to charge £110, they'd better have lawful grounds. If that costs money, so be it. Perhaps they'd be better placed paying for it out of the CEO's Anyhow, it soudns like this argument, in the long term, could be defeated by the operator turning off the camera when no one is there.
Not having a valid RIPA doesn't mean anything on its own - it just means the 'victim' could attempt to sue the Council for breaching his human right (to privacy) - that does not automatically mean the Council does not have a detailed enough reason as to why it thinks its methods justify invading the victims privacy (in fact it soudns liek they have detailed policies on why they do what they do).
The DPA argument sounds like the best route - but unfortunatley leads to a load of nonsense for people affecting by rogue parkers!
Fair point on signage I spose - but just more expense for Councils in these tough times.
salary.Streaky
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