Proving the point: CCTV as evidence

May 2008 Security Services & Risk Management

So you have got some really clear footage recorded by your CCTV system that identifies a person committing a criminal offence. Great. But now you want to use this footage to obtain a conviction from the courts, right?

Laws relating to CCTV as evidence

Criminal Procedure Act, 51 of 1977.

Law of Evidence Amendment Act, 54 of 1988.

Electronic Communications and Transactions Act, 25 of 2002.

The Constitution of South Africa.

There are a number of important factors that will influence the success or failure of your endeavour.

As the recently published - and most comprehensive - white paper on CCTV produced by the Consumer Goods Council's (CGC) Crime Prevention Programme makes clear: there has to be a full understanding of procedures related to handling and protecting the evidence to ensure it makes its proper contribution to obtaining a conviction. This feature will provide an outline of some of the main considerations of the paper.

But let us just rewind for a moment: have you met the prior conditions that should exist for capturing images for evidential purposes? These include:

* Images must be from public areas - not private, such as changing rooms.

* There should be a notice outside the area informing people they will be subject to CCTV surveillance and a record of the date of placement of the notice.

* A sequential and complete logbook of all persons accessing the control room.

If not, be prepared for challenges in court that might result in the evidence being weakened or even thrown out.

Generally speaking, the laws relating to photographs and analogue and digital recordings as evidence are still a work in progress but they can be admissible in court proceedings where there is a witness who can identify the contents, explain the relevance and perform as an expert. Evidence is admissible if it is relevant, authentic and subject to interpretation by a witness for the court. There are, however, no current specific rules or legislation relating to the admissibility of video or digital recordings as evidence.

It is therefore important to ensure that there is compliance within the acts that are currently in force. Relevance (read 'The big picture with images for evidence') and authenticity are the key factors to consider. Judges are also able to determine the weight placed upon the evidence and in this respect, it becomes vital that it can be proven that there has been no contamination of or tampering with the evidence. Digital recordings are most vulnerable as they are easy to alter and there have been instances of digital evidence being attacked in court on this basis.

So the single most important thing to do with your recording is to ensure that proper 'bag and tag' procedures are performed at the earliest possible moment on the original recording so that this can be produced in court. The chain of evidence documenting the progress of your evidence from recording to courtroom must also be well documented and witnesses must be available to testify. This is important because digital enhancement software, with its ability to alter images, is freely available.

Any enhancements, screen-grabs or stills should only be created from copies - NOT the original recording - and only suitably qualified experts in the field of computer-generated images should be used to perform this task. Compliance with these procedures will materially affect the weighting given to the evidence by the judge.

The 'chain of custody' should prove:

* How the images were captured.

* When, where and how the images were stored.

* Who has access to the images from the time they were recorded until the time they were produced as evidence.

* Details of whether, and how, any enhancements have been done.

When the evidence gets to court it has to be proved that:

* It is the same as when it was captured.

* There has been no opportunity for it to be altered.

* Any change in its condition can be explained.

This may seem like a lot of red tape but the consequence could be having the evidence thrown out of court, so it is one of those 'just do it' things and the best way to achieve this is to have well-established procedures in place and thoroughly-briefed control room personnel. Anything that can be done to minimise the number of people involved in the chain should be done - even a moment's surrender of evidence to a person could compromise its integrity.

It is human nature to become lax about repetitive tasks for which one is rarely called to account but the accuracy and completeness of logbooks is an activity that requires close and frequent monitoring. It is impossible to predict when this standard of this record keeping will affect evidential success.

Some recommendations for handling evidence include:

* One authorised system user should extract the data immediately after the incident in the presence of an investigating officer (IO).

* If copies are not immediately available, show the images to the IO at that time.

* The IO must formally seize the images in terms of section 20 of the Criminal Procedures Act.

* After copies have been made (one for the IO, one for management), the original and one copy should be placed in separate special evidence bags that are then correctly labelled. Do not mark the evidence directly. Both original and all copies must be kept safe and secure (ideally in a safe with restricted access) until produced for evidence. Copies should be read only.

* Two people should be present when copies are made for corroboration.

* A statement by the data custodian must be taken at that time by the IO.

* Potential witnesses should not have access to the images.

* Please assist the CGC Crime Prevention Office by contacting them for further information. Tracking incidents provides valuable data.

This brief outline of some of the main issues concerning CCTV images as evidence (in my opinion this white paper should be required reading for everyone concerned with CCTV) should make it clear, I hope, that you really need to be right on the ball from the very beginning to ensure evidentiary images will not only withstand challenges from the defendant(s) but also to ensure that they receive the weight they deserve, which is entirely within the judge's remit.

The information given here is extracted from the CCTV White Paper with the kind permission of the Consumer Goods Council of South Africa Crime Prevention Programme. Copies of this paper are available from sb@cgc.co.za




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