Are the Police Unlawfully Recording You Without Consent?

According to a discussion on the ukpoliceonline forum, it appears that some serving officers record members of the public on their mobile phones on the off-chance (or so they claim) that a complaint is made about them. That way, should someone give a different account of what was actually said, the officer can supposedly produce the recording as evidence to help him avoid any charges of misconduct.

This type of covert surveillance was discussed on the UK Police Online forums under the following question:

What if you have a meeting as a complainant against police at your home address and the officers who attend record your conversation on their personal mobile phones (in their stab vest) allegedly in order to fully document their pocketbooks verbatim without you knowing they were recording you at the time this was happening.

With regards to the data once transcribed into their pocket notebooks it was to be deleted by the officers

This has only been found out retrospectively.

Is there a offence here? Could the officers get disciplined or sacked?

Several replies followed. The first of which was from a serving police officer:

I have done it before, when believing that a complainant might make a complaint against me and not wishing to sit with a camera in their face on the off chance they are totally fine. It wasnt evidential and only kept for a few days to see if there was a complaint coming.

It shouldnt really be used to record things for them to update their notebooks after but its hardly a crime or that bad, unless they are making stuff up, which they would be able to do without recording it.

I doubt they could be sacked. Im assuming that you want them disciplined in some way?

This was then followed by another member asking relevant questions:

Is this not a breach of human rights?

Breach of data protection?

Breach of PACE?

Another serving officer replied to those questions with the following:

No

No

No.

However the answers given are wrong. The correct answers should be:

Yes

Yes

No. (But a breach of RIPA)

Why the police cannot record the public for their own personal use

A police officer covertly recording a conversation on the off-chance the subject might make a complaint is excessive gathering of data. It is unnecessary and intrusive and certainly engages Article 8 of the ECHR: Right to respect for private and family life. This is a somewhat high-handed approach though as Human Rights should only be applied when no other remedy at law exists. And such a remedy does exist in the form of the Data Protection Act.

When an individual records another for a domestic purpose (including the use of home CCTV) they are not subject to any data protection laws. You and I may record a police officer on our phones whenever we wish without their knowledge or permission. They on the other hand do not share the same rights. They are agents of the state, and any information gathered during the execution of their duties makes them subject to the same data protection laws as every other state official. It doesn’t matter WHY a police officer is recording, all that matters is whether or not the recording can be classed as personal data.

In this instance, the police officer may think that he is making the recording for a domestic purpose. It is after all his personal mobile phone and it’s not a police interview. But talking to anyone during the execution of his duties would be classed as police business. He is not socialising with these potential complainants. He is on duty. In uniform. Carrying the full weight of office that no doubt affords him to speak to such people in the first place. Therefore any recording made would be subject to the same data protection and surveillance laws as any other means of gathering police data. The fact that he made the recording on his own mobile phone for his own protection or note-taking is irrelevant.

Even if a recording is deleted it could still be classed as stored data

Any type of surveillance or communication equipment used by the police to make recordings is subject to home office approval before it can be used. Evidential purposes aside, safeguards are put in place to ensure that sensitive personal information is stored securely and can be destroyed effectively. Just how secure would such sensitive data be on a police officer’s personal phone? A phone that he will, no doubt, take back home which he shares with other family members. A phone that could be mislaid or stolen. The phone app used to record the conversation could also be insecure. Would you be happy knowing that your personal data was carried around in a police officer’s pocket on and off duty?

The suggestion in the original question that the recording is destroyed right after an officer transcribes it into his notebook is of course a red herring. The officer has no intention of doing any such thing. How would anyone know that the notebook transcription is correct if there is no recording to back it up? And even if the recording was being made as an aide-mémoire, that would mean the police could secretly record interactions with members of the public whenever they chose, just to make it easier to write it up later in their pocket books.

Regardless of whether they delete the recording promptly the information could still be easily restored. It has already been demonstrated in rulings made by the ICO that personal data that can be easily restored once deleted is still treated as stored data and remains subject to data protection rules. This means that the officer could be carrying the deleted recording around with him in his pocket for years without ever realising he was still in breach of data protection.

How covert recordings can become a criminal offence

Breaching the data protection act in this manner is a criminal offence. Covert recording by the police for personal use is a serious act of misconduct. Although it is not a breach of the Police and Criminal Evidence Act, it would be a breach of the Regulation of Investigatory Powers Act 2000 (RIPA) which legislates against such state intrusion. Recording a potential complainant in this way is neither necessary or proportionate, (grounds set out in section 28(3) ), so no authority to covertly record could be given or implied and the force concerned would have no defence.

How to report the police for recording on their mobile phones

If you discover that the police have used any covert means to record you (or anyone else) on their mobile phones, then you should make a complaint to the Investigatory Powers Tribunal. This Tribunal is a court which investigates and determines complaints of unlawful use of covert techniques by public authorities and law enforcement agencies that infringe the public’s right to privacy or breaches human rights.

Furthermore you can make a subject access request to the relevant force for a copy of any recordings made by a named officer. Should such a recording exist, you can make a complaint under the Data Protection Act by contacting the Information Commissioners Office and potentially bring a claim for damages in the County Court.

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