How College of Policing Guidance Enables Body Worn Camera Abuse

Kevin Donoghue, solicitor, reviews the College of Policing guidelines on body worn cameras in light of a recent court case.

By Kevin Donoghue, solicitor

For many years I have said that the College of Policing’s body worn camera (BWC) guidance is not fit for purpose. In particular, I have railed against the idea that the police can be trusted to use their cameras properly. A recent court report highlights the inevitable consequences.

Last week I read a shocking story by Neil Docking of the Liverpool Echo: “Bent coppers covered up officer battering man in his home.”

The story is worth reading in full by clicking on the link above. (It opens in a new tab so you can come back here afterwards.) It could be used as a case-study for police corruption and reflects very poorly on Merseyside Police.

Mr Docking describes how four police officers:

• Darren McIntyre
• Laura Grant
• Lauren Buchanan-Lloyd
• Garrie Burke

lied and lied after the victim was repeatedly punched and left pouring with blood.

His story includes details of:

• an unprovoked police assault on an innocent man, Mark Bamber
• threats of (unlawful) arrest to an innocent bystander for legally filming the incident
• unlawful arrest and detention
• police body worn video camera abuse
• unauthorised review of footage
• police officers colluding to avoid liability for misconduct
• delays in uploading BWC evidence
• lying in witness interviews/ statements
• blanket denials by officers despite overwhelming evidence
• criminal prosecution of Merseyside Police officers resulting in a Crown Court jury trial
• police officers found guilty of perverting the course of justice and (in one case) assault.

Long-Standing Body Worn Camera Abuse Concerns

A key part of this case centred on the abuse of police body worn cameras. Sadly, concerns about this problem are not new.

Seven years I wrote this blog post: Why the Police Should Change Their Body Camera Policy

In it, I explained how the Metropolitan Police were trialling the use of body worn cameras. I noted that:

It is expected that the body cameras will only be used when the police respond to incidents and during stop & search operations, rather than during day-to-day interactions. The Commissioner says this is because leaving the cameras on all the time would be ‘too intrusive’.

I urged the Met, then led by former Merseyside Police Chief Constable Sir Bernard Hogan-Howe, to set a policy of recording every interaction with the public:

to counter suspicions that officers would deliberately not turn their body cameras on

noting that:

Other forces are watching with interest and are expected to adopt body cameras if the test is successful.

The Present Body Worn Video Camera Problem

When I wrote that blog post I was most concerned about cameras not being activated. But, as the Mark Bamber story shows, this did not go far enough. The problem extends to things like:

• keeping body worn cameras running
• officers turning away to avoid filming police assaults
• delaying uploads of video footage
• unauthorised viewing of footage
• police officer collusion
• fabricating statements.

College of Policing Body Worn Video Guidance

Merseyside Police employed all the officers in the Mark Bamber case.

That force applies the College of Policing’s 2014 guidance on body worn video. (It has its own Body Worn Video policy which you can read here.)

What is the College of Policing, and Why Do Police Forces Follow its Guidance?

The College of Policing describes itself as:

a professional body for everyone working across policing. It is an operationally independent arm’s-length body of the Home Office.

It claims that:

• We connect everyone working in the police and law enforcement to understand their challenges.

• We use evidence-based knowledge in everything we develop.

• We help police officers and staff; researchers, academics and learning providers; the international policing community; and the public.

• We give a voice to professional policing on standards, skills and capabilities.

Review of the College of Policing Body Worn Video Guidance

Here I refer to the College of Policing’s body worn video guidance instead of Merseyside Police’s policy. This is because the College issues best-practice guidance for all national police forces, including Merseyside Police.

The Relevant sections are as follows (my emphasis in bold):

Section 5 – principle 4 and principle 5

Principle 4 – The operational use of body-worn video must be proportionate, legitimate and necessary.

Principle 5 –Use of body-worn video will be incident specific. Officers will use common sense and sound judgment when using body-worn video, in support of the principles of best evidence.

Operational considerations

Recording an incident – basic principles and techniques

The decision to record or not to record an incident rests with the user. However, users should record incidents whenever they invoke a police power.

Under normal circumstances, all BWV users present at an evidential encounter, regardless of the fact that other BWV users may be present, should record the incident. Users should always take into account the circumstances and the people involved, for example, vulnerable persons. Failing to record an incident may require explanation in court, although in some instances it is not appropriate to make a video recording. In such cases users should record the fact in their pocket notebook.

Users may not indiscriminately record entire duties or patrols. Recordings must be incident specific (whether or not the recording is ultimately required for use as evidence).

All recordings can be used in evidence, even if it appears to the user at the time of the incident that this is unlikely (eg, a stop and search with a negative result). All recordings should be treated as evidential until it is confirmed otherwise. If it becomes obvious that the recording will not be evidential, unless there are other extenuating circumstances, users should stop recording immediately.

Users should capture as much evidence as possible (including the context of the encounter) and should always try to record as much of an incident as possible. Users should begin recording at the start of an incident or at the earliest opportunity thereafter, for example:

• as soon as users are deployed to an incident
• as soon as they become aware that any other encounter is likely to occur in front of them.

In order to comply with the DPA and HRA, wherever practicable, users should restrict recording to the areas and persons necessary in order to obtain evidence and intelligence relevant to the incident. Users should always attempt to minimise collateral intrusion on those not involved.

And note this section:

Selective capture

The BWV user should record entire encounters from beginning to end without interrupting the recording. There will, however, be occasions when the user may wish to consider interrupting the recording of an incident. In such circumstances the user may decide to start and stop recording at any point during an encounter. This practice is referred to as selective capture.

For example, it may be necessary to stop recording an incident in cases of a sensitive nature or if the incident has concluded prior to the arrival of the BWV user. In all cases the user should exercise their professional judgement in deciding whether or not to record all or part of an incident.

If the user chooses to interrupt or cease recording at an ongoing incident, they should record their decision and rationale (if practicable in the circumstances) by making a suitable verbal statement on the BWV material and also in a pocket notebook or other log.

Selective capture can also be used to describe the process of temporarily stopping and restarting recording in order to bookmark (see bookmarking) the recorded material.

Selective capture never involves deleting images. There are no circumstances in which the user can justify unauthorised deletion of any images that have already been recorded.

Any such action may result in legal or disciplinary proceedings.

Interpreting the College of Policing Guidance

There are four main points to take away:

1. police officers have absolute and total discretion when to use their body worn cameras, subject to certain requirements (like invoking a police power)
2. they should not leave cameras running and, instead, must target their use to specific events and people
3. recordings must be treated as evidence (which means that they must be preserved unmolested)
4. police officers should capture as much of the incident as possible, ie. Start recording when deployed or as soon as necessary to capture evidence. But this is open to interpretation, and officers can start or stop recordings during incidents as they see fit.

The practical effects of some of this guidance can be seen in Neil Docking’s Liverpool Echo report. Evidently, the officers used some of their training (described below in bold) before going rogue:

The jury was told McIntyre, Grant and Buchanan-Lloyd all switched their cameras on at the start of the incident, which they were trained to keep on, as it is key evidence.

However, Grant and Buchanan-Lloyd both turned off their cameras when things became violent, which Mr Barton [the Prosecutor in the case] said was a deliberate attempt to prevent independent evidence being recorded.

The court heard Grant hesitated then turned away from the violence to turn off her camera and Buchanan-Lloyd did the same.

Buchanan-Lloyd later said in an interview that she and Grant discussed turning their cameras off and whether they would say their batteries died, but decided this would be too suspicious.

No Excuses for Police Body Worn Camera Abuse

Clearly, giving individual officers’ wide discretion about using body worn cameras is problematic. The police don’t need to see their fellow officers prosecuted to know that. They have academic research to back it up.

In September 2020, a report by Cynthia Lum et al was published on the College of Policing’s own website.

(This is the same site where police officers can read the body worn camera guidance used by UK forces outlined above.)

The report described a meta-analysis of 30 studies considering the effects of body worn cameras on policing. Most of the studies were based on police in the USA, but some focused in whole or part on UK police forces.

Its authors noted that:

Today, BWCs are likely the most rapidly diffusing technologies in modern police history. Although it is difficult to determine how many BWCs are in circulation today, there have been some estimates. In the United Kingdom, one assessment by a privacy watchdog group found that over 70% of police forces had acquired cameras by 2019 and were rapidly moving toward full adoption.

It found that in most forces where body worn cameras were issued officers had to use them:

a large portion of the agencies (83%) had official policies that required officers to either turn on their cameras at the start of their shift or at least turn them on when carrying out most official duties.

But the authors found that allowing police officers wide discretion to activate cameras is unusual. Only 9 of the 30 studies found that the police had a “higher” level of discretion about when to turn cameras on or off:

It is likely that the UK College of Policing guidelines mentioned above fit within the higher level definition of discretion because:

30% of studies involved agencies that gave officers much higher levels of discretion as to their BWC usage. In those studies, agencies left it up to officers to decide whether to turn on their cameras and provided wide latitude in this decision.

This means that nearly half of the studies (47%) found forces, many of which were in the USA, were more strict than those following the UK College of Policing guidance. The officers in those forces:

had no or low discretion as to when they could turn on or off their cameras. Policies in these agencies often specified only a handful of circumstances in which officers could turn off their cameras or included stringent rules and reporting requirements when officers turned off their cameras.

As a side note, the obligation to report is significant. I expect officers in “no or low discretion” forces would rather leave cameras running to avoid paperwork.

Impact of Removing Discretion

The report’s authors urged more targeted research, but in the studies they reviewed:

moderator analyses suggest that BWCs may be more likely to reduce police use of force if agencies highly restrict officers’ discretion in how they use the cameras.

They couldn’t be clearer: the College of Policing should review its policy and consider removing officer discretion from body worn camera use. This will likely reduce unlawful use of force incidents.

The 2020 report finding by Cynthia Lam and others is not new. It was anticipated in 2016.

Then Barak Ariel and others reported that body worn cameras reduced the level of police complaints by 93% when policies “stripped officers of their discretion to decide when, where, and under which conditions BWCs would be applied.”

In a blog post I wrote at the time (3 Ways the Police Could Improve Their Body Worn Cameras Policy) I urged the police to update their policies and gave recommendations to help restore public confidence. Nearly five years later the police have not made the changes suggested.

Merseyside Police Reputation Damage

Do senior police officers in the UK’s forces and the College of Policing still need convincing to remove user discretion with body worn cameras?

If so, they should think of the damage done to officer and force reputations.

Stories like the one Neil Docking published in the Liverpool Echo newspaper and on its website are widely shared. They live on past news cycles. The old adage that “today’s news is tomorrow’s chip paper” is no longer true.

Instead, Merseyside Police’s reputation has been harmed, with long-lasting consequences.

How can the public trust that its officers will follow force policy when using their body worn cameras?

Will officers:

• use similar methods to PCs, McIntyre, Burke, Grant, and Buchanan-Lloyd to avoid investigations and accountability?
• “turn away” and switch cameras off to avoid creating damaging evidence? Both PCs Grant and Buchanan-Lloyd did this at Mark Bamber’s home. (Were they taught this tactic from someone within the force? If so, who?)
• lie in “inaccurate” statements to cover up what happened?

Disciplinary Proceedings Against the Police

Merseyside Police said that “PCs McIntyre, Burke and Grant are all currently suspended. Constable Buchanan-Lloyd is on restricted duties.”

I am astounded that Buchanan-Lloyd is still working for the force. The police seem to be excusing her misconduct due to youth and/or inexperience. Would other convicted criminals get the same break from their employers?

No doubt the force will bring swift disciplinary proceedings against all officers. But, as my colleague Daniel Fitzsimmons noted in this blog post many police forces continue to employ convicted criminals. The officers’ dismissal is not guaranteed despite their proven dishonesty and misconduct.

Policy Update Required

Merseyside Police has caused potentially permanent damage to its officers’ careers by allowing them to control their body cameras.

As a Merseyside resident, I am deeply concerned about this situation. And as a solicitor who specialises in civil actions against the police, I see that:

• incentives for officers to act dishonestly when using body worn video remain, potentially
• harming innocent victims of police misconduct.

It is long past time for the College of Policing to update its policies to reflect reality.

Kevin Donoghue is a solicitor who specialises in civil actions against the police. Contact him here.

UPDATE on 28 May 2021

The Guardian reports that two of the officers (Garrie Burke and Laura Grant) have both received 15-month prison sentences for their part in “what can only be described as a cover-up”.

Laura Buchanan-Lloyd was given a nine-month sentence, suspended for 18 months.

PC Darren McIntyre will be sentenced in July.

If the prospect of police officers serving prison time doesn’t bring about change then I don’t know what will.