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In 2018 the NSW State Government officially rolled out the use of body worn video (BWV) cameras across NSW by members of the NSW Police Force. This means that police officers can now legally use BWV to record their interactions with members of the public, in both private and public locations. But what exactly is a BWV camera and when can and can’t they be used by police?

What power do police have to use a BWV camera?

The law states that in most cases it is against the law for anyone to film video inside or on private property without the permission of the lawful owner or occupier or to record the private conversations of another person.

The Surveillance Devices Act 2007 makes it illegal for any person to use a listening device to record a private conversation of another person or to use an ‘optical surveillance device’ to record visually or observe the carrying on of an activity on or within private premises or a vehicle.

NSW police officers are permitted under law that to use BWV cameras. This is because section 50A of the Surveillance Devices Act 2007 provides police with an exemption and allows police officers to use BWV cameras overtly in situations that would otherwise be illegal.

When can Police use BWV?

The NSW Police Force Body Worn Video Camera Standard Operating Procedure provides examples of circumstances where police should use a BWV camera including:

• when police would normally use their official police notebook to record information;
• to capture evidence or record something of relevance;
• when exercising a police power or performing a policing function;
• licensed premises (Business) inspections and patrols;
• vehicle stops; and
• when conducting intimate (strip) searches

Ultimately however, the use of BWV by police is discretionary and they do not need your consent to record.

When can police NOT use BWV?

A BWV camera should not be used in the following circumstances:

• to record an entire rostered shift, except where justified in the specific circumstances;
• for recording material that is not related to the lawful execution of police duties;
• in order to covertly record material; and
• when the filming does not comply with LEPRA (e.g.: if a male police officer was to record a female suspect during a strip search).

Capturing police effecting an arrest

Over the last few months, videos shot by the public have gone viral from the shooting at Penrith Police station, to the arrest of a young person in Surry Hills and the man who tasered by police in an Eastern Suburbs park.

The conduct of police has been widely criticised as a result of these videos. However the common theme throughout them is that filming starts awhile after the engagement with the police has begun.

BWV is objective, and from the point of view of the police officer. In April NSW police announced that they’re looking for technology to link BWV cameras to their firearms and tasers. The idea is that when a firearm or taser is drawn, the BWV camera starts automatically recording.

This means NSW Police could no longer forget or choose not to record an incident or event. Ideally, this technology will also be able to activate the BWV camera of any other police officer within 100m.

If automatic recording does come to fruition, not only would police be more accountable for drawing weapons such as tasers and guns, but the public may gain better insight into what led the police officer to make that decision in the moment.

Who can see the BWV footage?

At the end of a shift police officers must put their BWV camera in a docking station so that the footage can be automatically uploaded to the server. The footage is then stored locally, or on a database and can be accessed or downloaded as needed.

Footage recorded on BWV is classified as ‘protected information’ and can only be accessed and played in limited circumstances. These are usually:

• for evidence in court proceedings;
• in criminal investigations;
• while investigating complaints about police;
• during coronial inquests, inquiries or critical incident reviews;
• for training and education purposes; and
• where requested by someone with a legitimate purpose (like a defendant or lawyer).

The police cannot show BWV to anyone else (including other police) for entertainment or non offical purposes. Police can release BWV camera images to the media and public in very limited circumstances. Footage may also be released following a subpoena of GIPAA request.

Getting BWV from police can be complicated. Call us now to speak to an expert criminal lawyer.