Law Updates

By Charlene Harris

10.05.21

Roll Out the Red Carpet for Body Worn Cameras

The ACT Government is currently considering legislative change that would expand the types of situations in which ACT Police can use body worn cameras (“BWCs”).

What is a BWC?

As the name suggests, a BWC is a camera worn on a person’s body, for example affixed to their lapel, belt, chest, or even held by hand.  These cameras make wide angle audio-visual recordings and are used by police to record interactions with people.

Across the border in NSW, BWCs are referred to as body worn video cameras, or BWVs.

Why are BWCs used?

BWCs are used primarily to gather potential evidence, and one of their main benefits is that it gathers and presents evidence in an objective way.  However, law enforcement agencies around the world are reporting a broader range of benefits, including:

  • Improving community and officer safety
  • Lowering the incidence and escalation of violence
  • Encouraging cooperative interactions between police and community members
  • Increasing training or raising the qualifications of police

BWCs may also reduce the strain on police resources by limiting the need for written statements to be prepared.

What are BWCs used for?

BWC recordings can be used in court as evidence in criminal proceedings against the subject, or for other investigative purposes such as complaints against police.  BWC recordings can also be used as training material for police, which is one of the ways in which it improves police professionalisation.

When are BWCs currently used?

BWCs are automatically activated when an officer draws their firearm or Conducted Electrical Weapon (taser).  Otherwise, ACT Police are restricted under the current scheme to using their BWCs in public, with exceptions in private contexts where the subject provides consent.

When could BWCs be used under the proposed changes?

Using BWCs in private contexts, such as within a suspect’s car or house, currently requires the officer to obtain the subject’s consent first before activating their BWC.  However, the proposed change would see the Listening Devices Act 1992 (ACT) amended to allow ACT Police to activate their BWCs without asking for consent in the following circumstances:

  • If the use of the BWC is obvious;
  • If the BWC is being activated in the course of the officer’s duties; and
  • If the officer follows any further directions issued by disallowable instrument.

In an ideal world, police would warn or notify the subject before they started recording, however given that police often operate in heated and violent situations that can escalate quickly, this would not always be possible.  In that same vein, the use of a camera that might be obvious in a calm, quiet situation, may not be so apparent in a heated, moving and rapidly escalating situation.  This is something that needs to be considered in deciding whether its use was obvious and, indeed, whether this amendment should be supported.

Are we in favour?

From a defence lawyer’s perspective, there are a number of benefits of BWCs in addition to reducing the escalation of potentially violent situations.  Firstly, BWCs ensures increased accountability of police, particularly in relation to the use of force.  With the exception of technological malfunctions (which do, of course, happen), an officer’s BWC is automatically activated when they draw their taser or firearm.  This means that the ensuing conduct is captured by the BWC.  Later, the defendant, their solicitor, and the Court can see exactly what transpired.  If police use excessive force in the minutes that follow the drawing of that weapon, it will be captured in the footage and that footage will become critical in matters of self-defence, resisting arrest and the like.

Secondly, the use of BWCs can assist in balancing the evidence available, particularly given that defendants are, more often than not, outnumbered by police.  In these cases, the sheer volume of police statements can seem to outweigh the evidence of a sole defendant, whereas the objective evidence of a BWC can show that the (sometimes unlikely) version of a defendant is true.

Of course, the evidence captured by a BWC can capture or corroborate evidence favourable to either side.  What is produced is an accurate record of events that is much harder for either side to dispute.  This should, at least in theory, provide better outcomes for victims of crime, but also better fairness to defendants.

So, we say yay – roll out the red carpet for BWCs.