Liberty believes the Project Champion CCTV scheme in Birmingham is not only wrong, but unlawful in its implementation.
Just occasionally, when the authorities get things wrong, someone is brave enough to say sorry. Assistant chief constable Sharon Rowe did that on Sunday. She had quite a lot to apologise for on behalf of West Midlands police.
Earlier this year, residents of Sparkbrook and two surrounding neighbourhoods in Birmingham noticed a large number of metal posts being erected on the pavements of their streets. When cameras were later attached some people started to ask questions. It materialised that they were part of a scheme devised by West Midlands police over two years earlier involving the installation of 169 automatic numberplate recognition (ANPR) cameras, 49 CCTV cameras and 72 “covert” cameras in two predominately Muslim areas in Birmingham, one of which was Sparkbrook.
The Guardian then revealed in early June that the scheme, known as “Project Champion”, had been funded entirely by the terrorism and allied matters (TAM) division of the Association of Chief Police Officers. This was news to the local councillors who had been told that the primary purpose was the reduction of general crime and disorder.
Unsurprisingly, there was massive resistance to the scheme. Why didn’t it occur to the authorities that a surveillance project which so obviously targeted the Muslim community on a blanket basis might be counterproductive in the effort to tackle extremism? It’s the same sort of approach we have seen with the Prevent scheme, which has been reported to involve the personal details of innocent Muslims being routinely shared with law enforcement agencies. Such a large-scale CCTV and ANPR project was bound to face criticism for furthering the surveillance society since the cameras formed a “ring of steel” around the affected areas so that every vehicle movement in or out would be tracked.
Liberty notified West Midlands police last week of our intention to seek judicial review of the decision to proceed with the scheme. We argued that it was unlawful for several reasons. First, under the Human Rights Act public authorities (including the police) are required to act compatibly with articles 8 (privacy) and 14 (non-discrimination) of the human rights convention.
The courts have said in the past that the normal use of security cameras in public places where they serve a legitimate and foreseeable purpose does not raise issues under article 8. But there were factors which distinguished Project Champion from such normal use: the scheme included hidden cameras, which are necessarily more intrusive than ordinary CCTV and ANPR because you don’t know if you are being filmed.
If the scheme was meant to be a counterterrorism measure it was bound to involve some kind of storage and processing of the information gathered. We already know that ANPR records in particular are kept on a searchable database for up to two years. The sheer number and location of the cameras, many in residential streets, make it impossible for residents to drive into or out of their own communities without being tracked by the authorities.
Any interference with article 8 will only be lawful if it is done “in accordance with the law” and it is a proportionate means of achieving a legitimate aim. We argued that neither condition is met. CCTV and ANPR are both still largely unregulated (although the government has promised to rectify that). And while attempting to tackle terrorism is a legitimate aim, surveillance of an entire community is not a proportionate means of achieving it. The police have ample alternative means of surveillance of known terrorist suspects through the Regulation of Investigatory Powers Act 2000, which has legal safeguards built in.
Further, article 14 prohibits public authorities from unjustifiably discriminating in the protection of other rights under the Human Rights Act. This means that even if there is no breach of article 8, a measure that is “within the ambit” of article 8 protection must be applied in a non-discriminatory way. The precise reasons for targeting Sparkbrook and Washwood Heath are not known, but it appears that assumptions might have been made about the threat posed by those areas based on the religion or ethnic origin of the residents. Even if there was no direct discrimination of that kind, the project is indirectly discriminatory because it has a hugely disproportionate impact on the Asian and Muslim communities in Birmingham. As such, the police are required to demonstrate that it is proportionate and again we argue that they are unable to do so.
Second, section 71 of the Race Relations Act 1976 requires public bodies when carrying out their functions to have “due regard” to the need to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups. In the case of a scheme of this size, and with such obvious equality implications, that duty would require the police expressly to address its mind – probably by conducting a formal equality impact assessment – to the possible damage to community relations and consider whether there are alternative means of achieving the aims of the scheme. No such assessment was done here.
Third, the authorities failed to consult any of the residents prior to the implementation of the scheme. Obligations to consult can arise where there is a legitimate expectation of consultation. We argue that there was such an expectation here for a number of reasons, including the fact that promises of community involvement were made, and the authorities purported to consult some local councillors. The limited consultation was flawed, not least because it did not disclose the fact that the primary purpose of the project was counterterrorism.
Finally, the Data Protection Act would be likely to apply because the use of the cameras would involve the storage of personal information about identifiable individuals. The act requires any processing of personal data be done “fairly”, and the code of practice on CCTV states that operators must inform people that they are being filmed by CCTV, for example by erecting signs. The covert cameras would plainly breach that requirement.
At the meeting on Sunday, West Midlands police announced that, in response to the concerns of the community, all of the 72 covert cameras would be removed and full consultation will now take place on the overt cameras (which will be covered up with bags in the meantime). This is welcome news, but retrospective consultation on a discriminatory scheme doesn’t go far enough. Because Project Champion is not only unlawful but wrong, it is hoped that the authorities will have the courage to go further and scrap it altogether.