Andrea Martin-Swaby | The State can demand your video footage
Today, video recordings have emerged as a primary source of information and intelligence gathering. Hundreds, if not thousands, of videos are created and circulated daily on social media. This era can be described as the golden age of online videos. Every day we observe persons reaching for their smart-phones, hastily manoeuvring the settings to ensure that they are among the first to capture an incident as it unfolds.
The fact is that the first to record is typically the first to share on social media. For this reason, it has almost become second nature for this generation to record everything.
Additionally, there are video recordings created from closed-circuit television (CCTV) cameras; such surveillance systems are increasingly being used, ultimately, to enhance security. In achieving this purpose, they produce an unbiased and accurate visual record without human prompting or intervention.
In this golden age of video production and consumption, it must not be lost on us that video recordings, regardless of the source, can be extremely valuable in the fight against crime and in solving crime.
Such footage can enhance the ability of the State to effectively investigate and ultimately bring to justice those who commit serious crimes. However, such material may remain of limited value where the authors of such videos fail to make the original recordings available to the police. Undoubtedly, the author of such videos is best placed to speak to the authenticity and reliability of the contents of the recording.
Such individuals must be aware that the State can compel you to preserve and ultimately hand over these recordings to the police. Therefore, the operator of the CCTV surveillance system can be compelled to preserve a video recording which is reasonably required in a criminal investigation as well as to hand it over to the State.
It must be known that the law recognises the value of such material. This is demonstrated by the fact that there are provisions under the Cybercrime Act 2015 that can be used by the police to ensure that private individuals preserve any computer material which is required for the purpose of investigating a crime that has been committed. Computer material includes any information which is stored electronically, such as your video footage.
$3 MILLION FINE
First, it must be noted that a police constable has the power to issue a written notice to any person who is in control or possession of any computer material which is needed for a criminal investigation. This notice prevents the person from deleting or rendering it inaccessible to the State.
Individuals must be aware that disobeying this notice can result in a fine of up to $3 million or imprisonment for a period of three years if convicted in the Parish Court. If convicted in the Supreme Court, a person could be imprisoned for up to seven years.
Therefore, once a notice is served, careful thought should be given to the likely consequences of disobedience.
In addition to this, a parish judge can order that such computer material is produced in an intelligible form by the person who is in control or possession of this data. Therefore, where a judge is satisfied that a video recording is needed to assist in a criminal investigation, he/she may make an order for its production.
Failure to produce this data to the judge also attracts a penalty resulting in a fine of up to $4 million or four years’ imprisonment if convicted in the Parish Court and up to seven years’ imprisonment if convicted in the Supreme Court.
It is for these reasons that we encourage persons to cooperate with the State in handing over such computer material which may assist in the investigation of a criminal offence.
As the curtain is drawn on Cyber Security and Awareness Month 2019, it is important that the authors of video recordings which capture the commission of an offence make every effort, in the public interest, to preserve and produce these videos when required by the State.
Andrea Martin-Swaby is head of the Cybercrime Unit in the Office of the Deputy Director of Public Prosecutions. Email feedback to firstname.lastname@example.org.