Video Evidence: A Fuzzy Picture?

Posted On: 18 April 2006

Author: Scott Blair

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This article is reproduced with the kind permission of Scottish Licensing Law and Practice.

The use of CCTV footage is becoming increasingly common before licensing boards, deployed by police forces in support of complaints under Section 31 of the 1976 Act and objections to renewal and regular extension applications. Advocate SCOTT BLAIR examines the complicated issues which it raises.

The 1976 Act is of course a creature of the pre-CCTV age. There is nothing in the Act which deals with video evidence. Moreover the Scottish courts have yet to consider any issues arising from the use of such material in licensing board proceedings. The use of such material has therefore developed uninhibited by any agreed or imposed regulatory framework. CCTV is not a form of surveillance which is caught by the  Regulation of Investigatory Powers (Scotland) Act 2001.
The situation is made more complicated by the fact that different police forces take different approaches to the use of such material. No attempt has been made to agree a Scotland wide protocol to provide clarification as to the procedure that the police will follow.

The pros and the cons of CCTV

On one view CCTV footage could be seen to be a 'good thing'. We are all familiar with it, if not from our own professional experience, at least from watching any of the 'real life crime' programmes with which our broadcasters  seem keen to fill our TV screens with.
CCTV is commonly used in the criminal courts to assist the jury. Surely it is also a good thing to help assist lay members of a licensing board in their comprehension of an event or incident ?
There are however differences between the criminal courts and proceedings before a licensing board.
In the criminal courts the defence will have an opportunity to view the material in advance of any trial. They will often be provided with a copy of the tape by the Crown to watch using their own facilities and in their own time. If needs be defence experts can examine the tape to assist in any question of interpretation of what - or more often than not, who - it portrays.
The defence will have an opportunity to discuss with the Crown in advance of the hearing the extent to which the tape can be played in full to the jury. There may be parts of the footage which are unfairly prejudicial to an accused person and the defence may wish to secure agreement from the Crown that those parts will not be played to the jury. Often the Crown will agree to this.
There are other differences from the criminal courts. Video evidence in court is spoken to by witnesses.
Witnesses will speak to the circumstances in which the video evidence was obtained. Witnesses who were involved in the incident or saw it happen 'for real' can also be asked questions about what is seen on the tape. Such evidence is meant to assist the evidence of the witness to the event in question but not to supplant it.
In contrast a typical board hearing will proceed on the basis of ex parte material.
Instead of first hand evidence which explains the tape a commentary may or may not be provided by the police representative as to their interpretation of what is shown on the tape. A lack of commentary might be thought objectionable if it encourages the police to seek to discharge any onus on them, eg as to unfitness by simply playing a tape and 'letting the board decide'.
Equally it can perhaps be seen how the provision of a police commentary may bring with it further problems. Commentary by the representative for the licensee might also cause difficulty. Some representatives might feel understandably reluctant to make comments about individuals shown on tape particularly where court proceedings might be pending.
Issues of sub judice and possible contempt of court might arise. The extent to which privilege attaches to comments made by a legal representative in licensing board hearings for the purpose of the law of defamation is also not entirely clear although it is at least arguable that such proceedings would attract qualified privilege.
How can a board deal with submissions on admissibility? To deal with such submissions the board may feel it has to view the material in question.
In a solemn criminal trial a judge will view the material in the absence of the jury and rule on admissibility. The jury do not get to see any inadmissible evidence. In a summary trial the Sheriff may have to view the material and then rule on admissibility. If inadmissible then it is assumed - in the absence of indications to the contrary - that the Sheriff as a professional judge can put the inadmissible evidence out of their mind. Can a lay licensing board really be expected to do that?
Another danger arises where a member of the board on seeing the tape on perhaps on only one occasion takes something from it (rightly or wrongly) which a representative may not see or may interpret in a different manner.
This danger is heightened by the lack of witnesses who can actually speak to the tape and who can provide it with an evidential context. On one view playing a tape back to a board in these circumstances might be thought to move very close to treating the board as itself to be a witness to the incident in question and to blur the line between that and the proper role of the board as fact finder.
The problem is aggravated because how does a representative know what view a board member takes of footage? A witness giving evidence can be asked about their interpretation of events on a tape. A board member being under no obligation to say anything about anything may give no indication of matters that are causing them concern in what they see or interpret as having been seen.
Such concerns may not even surface in any statement of reasons but may still influence a board member to reach an adverse decision.
Another difficulty about the use of CCTV evidence is that technical limitations may make it difficult for members of the public to see the evidence in question. In a large venue playing back a fuzzy tape on a standard size TV screen might be felt to offend against the spirit of the 1976 Act insofar as proceedings are to be held in public.
Although it is suggested that these are powerful arguments against the use of such material in licensing board proceedings it must be anticipated that the response of the court would be that it must be doubted if there is an objection in principle to the use of CCTV evidence on grounds of fairness. Board proceedings are administrative in nature. Boards are not bound by the rules of procedure or evidence that might be followed in the criminal or civil courts. What matters is whether the use of CCTV evidence in a particular case was unfair in the circumstances of a particular case.

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