Thursday, 21 February 2013

Southampton City council loses landmark appeal over its policy on CCTV in taxis

Southampton City Council has lost its landmark appeal against an enforcement notice issued by the Information Commissioner over its policy of requiring continuous audio-recording in all licensed taxis.

The council’s licensing committee had adopted a policy in 2009 requiring all taxis and private hire vehicles to install CCTV equipment. This followed a number of serious violent and sexual offences taking place in or around taxis and was a bid to protect vulnerable users of taxis. A voluntary scheme had previously failed.

The ICO served the notice on Southampton in July 2012, ordering it to stop the mandatory recording. It was the authority’s requirement for continuous audio-recording to which the watchdog objected, not the requirement for continuous video-recording. The council appealed.
The First-Tier Tribunal (Information Rights) heard the appeal – the first ever surveillance case under the Data Protection Act – on 30 and 31 January this year.

In its ruling, the FTT said it was clear that the Commissioner had power under s. 40(1) to issue an enforcement notice against the council if he was satisfied that the audio-recording involved the contravention of a data protection principle. The primary issue was whether he was right in his conclusion that this was so.

In deciding whether to exercise the power to issue an enforcement notice, the Commissioner was also obliged to consider under s. 40(2) whether ‘the contravention has caused or is likely to cause any person damage or distress’.

Although accepting that a finding to this effect was not a pre-condition to issuing an enforcement notice, Southampton argued before the tribunal that the IC approached s. 40(2) in a fundamentally flawed way. The council also argued that even if he was right to conclude that the council was contravening the first data protection principle, he ought not, as a matter of discretion, to have issued an enforcement notice.

The parties agreed that the essential question on contravention was whether Article 8 of the European Convention on Human Rights (the right to privacy) was infringed by Southampton’s policy, and whether the policy was justified as a proportionate means of achieving a legitimate aim.

In summary, the specific issues in the appeal were:
1.Whether the words recorded under the council’s policy included “sensitive personal data”;
2.Whether the council’s policy infringed Article 8 of the ECHR;
3.Whether the Commissioner was right to exercise his discretion to issue an enforcement notice.

Ruling unanimously in the Information Commissioner’s favour, the tribunal concluded in particular that the council’s policy “in so far as it requires continuous blanket audio-recording of everything said in taxis, is disproportionate when the extent of the interference with the right of privacy is weighed against the marginal benefits to the legitimate social aims of increasing public safety and reducing crime in relation to taxis which are likely to result from it”.

The tribunal added: “It follows from that conclusion that the policy is not justified under Art 8(2) and accordingly that it contravenes the first data protection principle.”

However, it also said it was impressed by the police evidence in the case. The tribunal appreciated the nature of the problem and the special vulnerability of some taxi passengers.
“It may be that…there is scope for a more targeted scheme involving audio-recording based on times of day, types of customer (for example, children or vulnerable adults carried under contract between a taxi firm and the council), the use of panic buttons or a combination thereof, which strikes a better balance between the competing considerations and does not contravene the Data Protection and Human Rights Acts,” the tribunal said.

Welcoming the ruling, a spokesman for the ICO said it understood that councils must take measures to keep the public safe and that the use of CCTV in taxis could play an important role in keeping passengers and drivers secure.

“However the continuous recording of people’s conversations 24 hours a day, including when the taxi is not in use, clearly goes too far and is disproportionate to the problem it is trying to address,” he said.

“We are glad that the tribunal dismissed the appeal made against our original enforcement action by Southampton City Council and hope that any other councils considering the mandatory introduction of similar schemes take note of this legal judgment.”

The spokesman added that the ICO was happy to support and advise councils who were “trying to get the balance right between keeping the public safe and respecting their rights to privacy” and urged them to read our CCTV Code of Practice.

It emerged during the hearing that since the licensing condition was introduced, the police had asked the council for access to audio-visual recordings made in taxis on 193 occasions, of which a chief superintendent had been able to review 164 where it had been possible to get access to a relevant recording.

Of these the vast majority involved criminal allegations against drivers or passengers, including racially aggravated and sexual assaults. The largest group involved allegations of making off without payment. A substantial number of requests did, however, involve serious criminal offences, but did not directly involve taxis – the police simply seeking evidence that might assist their enquiries.

In relation to the three key issues, the tribunal’s findings included:

Sensitive personal data
* It was “quite satisfied that the inhabitants of (and visitors to) Southampton will from time to time discuss their own and others’ sex lives, health, politics, religious beliefs and so on in taxis (notwithstanding the presence of the taxi driver) and, if necessary, we take judicial notice of that fact”.

* There must be numerous conversations in taxis of a sensitive nature which do not necessarily come within the strict definition of ‘sensitive personal data’.

* A suggestion by Southampton’s QC that it was open to taxi users, having been informed by the label in the taxi that conversations were being recorded, not to discuss sensitive matters they did not want to be recorded was unrealistic. “We not see any reason why anyone should be forced to modify their normal behaviour in such a way, by being forced to treat what is now (at least) a semi-private space as a public one, not least the taxi-driver driving his taxi to a holiday destination with his family”.

* It noted a point by the IC’s barrister that if the council’s policy resulted in people ‘self-censoring’ their conversations, that would prima facie involve a contravention of Article 10 of the ECHR (guaranteeing freedom of speech).

Infringement of Article 8
* The Commissioner accepted that the policy served a legitimate aim and that there was a pressing social need for some surveillance in taxis. The real issue was whether Southampton’s policy of continuous audio-recording was ‘proportionate’.

* The question whether the policy was “proportionate” was ultimately one of judgment for the tribunal, balancing the benefits to the legitimate social aims it was likely to achieve against the extent of the interference with the right of privacy likely to be caused.

* In striking this balance it was “important to note two things: (a) the “legitimate aim” of the policy is that of deterring and detecting taxi-related crime and other misconduct; the fact… that the police have been able to obtain useful evidence about crimes not directly related to taxis cannot therefore come into the balance as a benefit; (b) the relevant benefits and disbenefits are only those marginal ones that come from audio-recording; no-one is complaining about the existence of CCTV in taxis as such or about video-recording.”

* As the council pointed out “forcefully”, there were special features of taxis which made those who use them particularly vulnerable to crime. These include the fact that: passengers and drivers were generally strangers to one another; passengers might be children, have disabilities or be intoxicated; or the driver faced the risk of passengers making off without payment.

* The tribunal accepted that the existence of CCTV in taxis tends to deter crime and assists in its investigation when it does occur. It also accepted that it assists the council in relation to its function of licensing only suitable taxi drivers.

* The extent of any deterrence, and in particular the extent of any additional deterrence arising from audio-recording was unlikely to be susceptible to proof. An attempt by the council’s licensing manager in his written statement to enlist statistical evidence was unsuccessful.

* However, the tribunal did accept there must be some form of additional deterrent effect from having continuous audio-recording in taxis.

* In some cases the existence of audio-recording in addition to video-recording had made a real difference. “The clearest were a few cases where drivers had alleged that passengers were guilty of racially aggravated assaults or racial abuse where, obviously, the existence of audio-recording was crucial.” There were also allegations of sexual assault where the video recording did not show what was going on out of view of the camera but an audio-recording would help.

* The benefit comes form the ability not only to prove true allegations but also to disprove false allegations. It was also “right to recognise that while few of the examples raised involved really serious crime, it may be that one day there is a rape or a murder associated with a taxi which would have been successfully prosecuted if there was audio-recording but not if there was only video-recording”.

* The Commissioner had proposed a ‘panic button’ system allowing the driver or passenger to activate audio-recording. However, the Commissioner had not fully met the council’s criticisms of such a system. The tribunal accepted that a panic button system would not be as effective as continuous audio-recording, would require vulnerable or incapacitated passengers to make use of it and would miss the initial and perhaps most important part of an incident. However, such a system would have some (“albeit limited”) additional benefits.

* In terms of interference with privacy rights, “every single conversation, however private and however sensitive the subject matter, taking place during every single taxi ride in Southampton (of which there may well be a million a year) will be recorded and accessible to a public authority”.

* The tribunal accepted as highly relevant considerations aspects of the policy that Southampton’s QC argued meant there was only a slight interference with privacy rights: the data was only retained for a short time (14 to 30 days) unless it was accessed for good reason; access to the data was confined to a few individuals; and access was strictly controlled. The evidence was that the data had only been accessed on about 200 occasions in three years. It was not in any sense continuously monitored.

* However, the tribunal said these points were weakened by a number of factors: for example, Southampton’s policy, in so far as it relates to audio-recording, was not very fully consulted on or well thought through. “Rather it appears to have been driven by technological developments”. The retention period was simply a function of the capability of the systems.

* There was also evidence of so-called ‘function creep’. “The use of the system by the police to gather evidence about crimes not directly related to taxis, however beneficial in itself, was not (or should not have been) part of any policy devised by the council arising from its taxi licensing function.”

* It had to be accepted that however robust the systems in place and however well-intentioned and conscientious the licensing manager was – “and he made a generally good impression on us” – there must always be a danger that a taxi driver or a council official or someone else will access and make improper use of the data.

* The tribunal wondered whether full consideration had been given to the interests of data subjects other than the requester who submitted a data access request. It noted that once in the hands of the requester, “notwithstanding the council’s standard letter warning him that to publish will involve a breach of the council’s copyright, there is little that anyone can do in practice to control the use of such data (and these days they can be instantly broadcast to the whole world through sites like YouTube)”.

* Exercises by both the council and the IC to demonstrate public support for their respective positions were not sufficiently focused on audio-recording to have an influence on the tribunal’s decision. No weight could be attached to complaints from taxi drivers (as cited by the Commissioner) without knowing more about their motivation.

* Some weight was given to the views expressed by the Commissioner in his 2008 Code of Practice on CCTVin which he said there were only limited circumstances in which audio recording might be justified, subject to sufficient safeguards that might include where recording is triggered due to a specific threat, “e.g. a panic button in a taxi cab”.

* Having regard to these considerations, the council’s policy in so far as it required continuous blanket audio-recording of everything said in taxis, was disproportionate when the extent of the interference with the right of privacy was weighed against the marginal benefits to the legitimate social aims of increasing public safety and reducing crime in relation to taxis which were likely to result from it. It followed from that conclusion that the policy was not justified under Art 8(2) and accordingly that it contravened the first data protection principle.

* The tribunal wished to record that it was impressed by the police evidence in this case. It also appreciated the nature of the problem and the special vulnerability of some taxi passengers. “It may be that…there is scope for a more targeted scheme involving audio-recording based on times of day, types of customer (for example, children or vulnerable adults carried under contract between a taxi firm and the council), the use of panic buttons or a combination thereof, which strikes a better balance between the competing considerations and does not contravene the Data Protection and Human Rights Acts.”

The exercise of the discretion by the Commissioner

* The tribunal was inclined to agree with the council’s QC that the Commissioner did not apply a sufficiently stringent test of likelihood of damage or distress.

* However, it did not think that it needed to consider that matter further “for the simple reason that, having concluded that the council were acting in breach of the Data Protection Act and having regard to the high level of public importance of the case, we think it must have been right in this case to decide to issue an enforcement notice, regardless of the likelihood of any actual damage or distress resulting from the policy”.

Anya Proops of 11KBW represented the Information Commissioner. Timothy Pitt-Payne QC, also of 11KBW, was counsel for Southampton.

Philip Hoult

Wednesday, 20 February 2013





This is an appeal against the revocation of a London Private Hire Vehicle Operator’s licence by the Respondent on 20th February 2012.

The reasons given for revocation were that on the 28th January 2012 compliance officers found a Tassaduq Hussein (whom they believed was working for the Appellant) to be operating from unlicensed premises, together with “….your less than satisfactory compliance history…”.

This appeal is a hearing de novo, but not only must I give the Respondent, (i.e the licensing authority)’s decision great weight, but also ( in accordance with the decision in the case of Hope and Glory) I should not overturn that decision unless it is wrong on the basis of the evidence that I have heard.

I have read all the papers and statements put before me in the parties’ bundles. I have also heard live evidence from Terry Georgiou, Imran Khan, Shiraz Rafiq, P.C Martin, P.C Pilbeam, Carlo Delgaudio and John Ulyett.

Mr Khan has been involved in this business for quite a few years, initially assisting his father, who held the previous operator’s licence and effectively running the business from 2009.

The present business has about 80 drivers on its books. They are not employees of the company. The company also owns about 35 fleet cars and has its own garages and carwash, available for all drivers to use.

The centre of the operation is at 129a Lavender Hill, London SW11, but after written application, the Appellant has also been licensed to operate in other venues such as clubs and theatres.

Over the years there have been various compliance inspections. These can be divided into those relating to driver and booking records and those relating to compliance with recording of complaints, display of operator’s licence and suitability of premises and operating requirements.

Most of the inspections of driver etc records took place between 2003 and 2008. In those cases the company never passed on the first inspection and a follow up visit was required which usually resulted in a passed inspection. Mr Khan says that this was the norm and accepted by the licensing authority. That is not accepted by the Respondent. I also do not agree that that is acceptable. The whole point of the regulations is that the records should be immediately available and complete.

The most recent records compliance inspections were on 26th July 2011 and 12th, 13th and 15th June 2012.

The inspection for 26th July 2011 was by prior written appointment. It was still a failed inspection and indeed showed failures that were not subsequently rectified, although it is fair to say that in the general history of this licence repeat inspections have usually shown compliance. Mr Khan stated that he did not receive the appointment letter and gave an explanation that the business had problems with receiving post which did not include the company name in the address, but only Mr Khan’s details with the correct address. I am less than impressed with this explanation. If this was such a problem as described by Mr Khan (who stated that this was a common occurrence) I would have expected him to have taken steps to ensure that it did not occur.

On 12th June 2012, acting on information received, the police attended 129a Lavender Hill and arrested in the office a Mr Asad Khan, apparently Mr Khan’s cousin and an illegal overstayer in this country. The suggestion is that he was working as an employee of Mr Khan, and I believe that Asad Khan has been charged with an immigration related offence. Mr Khan has not been charged with any offence, nor, as I understand it has he been or is he going to be investigated in connection with any such offence. In the circumstances I have not considered Asad Khan’s position, if any, in the Appellant company of any relevance in my considerations, save that it prompted the police inspections of 12th and 13th June.

The police evidence is that, on inspection, they found the records so poor that they could not carry out a proper inspection and referred the matter to the Respondent.
The explanation given is that the police did not understand the computer system and so needed help in their inspection, but were unable to remain on that day when such help was available. When they returned on the following day, such help was unavailable as Mr Khan had a meeting elsewhere. While I am willing to accept and understand this explanation, it nevertheless means that on 13th June the police were unable to carry out a full inspection just because Mr Khan was not there. It is a requirement of the licence that the records are available for inspection at any time and clearly they were not. If they are not in a readily accessible format then someone must be there at all times to assist in their inspection.

On 15th June 2012 when compliance officers attended inspection was refused. This refusal was on the basis of advice from the Appellant’s solicitors. It is now accepted that that advice was wrong. At the very least it means that the Appellant is unable to show that his records were complete on that day. In fact it seems to me that an experienced operator should know his duties under the regulatory provisions and it is not sufficient simply to hide behind the advice of his solicitors.

There are other complaints in respect of compliance. The first is with regard to the recording of complaints. Mr Khan states that these complaints were not made directly to the business, but to the Respondent and thus the Appellant could not record them until told of them by the Respondent. I have no details of these complaints and so I am not able to be clear that there was some fault that was beyond a very minor regulatory matter.
The second is in regard to the lack of notification by the operator that he has ceased trading from certain premises. These matters have related to venues that have closed either for refurbishment or completely. In either case the immediate consequences to the public are not great. However it does involve the Respondent in unnecessary work and investigation, and the diversion of officers from other work.

All in all, I agree with the Respondent that the Appellant has a poor history of compliance.

The incident that prompted the full review of this licence took place on
28th January 2012.

On the 1st November 2011 the Respondent received the Appellant’s application to add a further operating centre to its licence at Aquum, 68-70 Clapham High Street. On the 11th November 2011 the Respondent carried out a compliance inspection of the premises to check whether or not they were suitable. There was a requirement that the operator remain inside the premises, but on that basis the inspection was passed and the Appellant was told of this. In previous applications there has been a decision about the grant within a short period, normally about two to three weeks. In the Appellant’s experience when the inspection has been passed the grant of the addition has always been made.

In this case no decision was made. It has since transpired this was as a result of consideration of a new policy that the Respondent intended to implement. The Appellant was not aware of the reason for the delay and it is agreed that he pressed the Respondent for a decision on several occasions and asked for the matter to be “escalated.” This seems to have culminated in a telephone conversation between the parties on the 29th November 2011. There is a transcript of a small part of the conversation, but not the salient part. Shiraz Rafiq spoke to someone from the Respondent’s office. He did not get a name, nor did he take any note of his conversation, but at the end of it he says he was told that all was in order and he understood it just to be a matter of printing the licence and posting it out and that it would be with the Appellant within a week or so. He also said that he was told that the licence was “in the post”. He passed on this information to Mr Khan.

In court the recording of part of the conversation was played and Mr Ulyett said that he thought that it was Lucy Hoye’s voice. She was not a witness.

Mr Khan said that he trusted Mr Rafiq and thought his message was reliable.

It is put forward by the Appellant that by this conversation the Respondent was telling the Appellant that the licence had been granted and therefore the Respondent should in effect be estopped from complaining that there was no operator’s licence for Aquum thereafter. I am not persuaded. Mr Rafiq’s evidence is vague at best as to what was actually said. He obviously knew the importance of such information and yet did not get the name of the person to whom he spoke. I am also not persuaded that whatever he said to Mr Khan led Mr Khan to believe that the licence had actually been granted. Mr Khan is an experienced operator and he also would have expected to have a name for such important information. I also accept the evidence of John Ulyett that he had conversations with Mr Khan after the 29th November and that at no time did Mr Khan say to him that he understood that the licence had in fact been granted. In addition Mr Ulyett states that he told Mr Khan on regular occasions that the licence had not yet been granted. It is unconvincing that this is anything more than at best a misinterpretation of what was said by the Respondent’s officers.

It is also a requirement of an operator, of which Mr Khan is aware, that an operator’s licence must be displayed at the premises it covers.

In any event on the 28th January 2012 compliance officers found Tassudaq Hussein outside Aquum booking cabs for Aquum’s customers. (Even if the operator’s licence had been in force it would not have permitted bookings to be taken outside.) He was wearing a high visibility jacket with the words “Aquum in association with KVC transport 0207924666” on the back. He had on him a mobile phone with an application that allowed him to make direct bookings with the Appellant’s main office and a hand held device for providing the customer with a booking ticket. When asked who he worked for he said “KVC, Imran Khan” Mr Georgiou from Aquum and Mr Khan have told me that that is not the case and that in fact he was working for Aquum, although he had a “day job” as a controller for the Appellant. Mr Georgiou did not provide any employment records, payslips or anything to support what he said. He also conceded that Aquum did not hold an operator’s licence. He said that a condition of his premises licence was that he had a taxi marshal and Mr Khan had recommended Mr Hussein for that position.

I have to say that it seems to me very likely that Mr Hussein was in fact working for the Appellant, when the Appellant did not have an operator’s licence at those premises. Even if I am wrong in that, it is clear that the Appellant gave to Mr Hussein the equipment that he needed to make bookings from those premises in the knowledge that neither they nor Aquum held an operator’s licence there.

I should however make it clear that I accept that the police were very much in favour of there being an operator’s licence at that venue and that the inspection had been passed.

In conclusion I must consider whether in light of the above findings it can be said that the Appellant has behaved as a person fit and proper to hold an operator’s licence, and was the Respondent’s decision wrong in that respect. All in all I agree with the finding of the Respondent that the Appellant was not a fit and proper person under the terms of section3 of the Private Hire Vehicles (London) Act.

In consequence the Respondent decided that the appropriate action was to revoke the licence.

The Appellant argues that such a penalty is disproportionate to the infractions. That the main breaches have been regulatory rather than breaches that put the public at risk. I would agree that that is the case, at least in the direct and immediate effect of most of the breaches in this case.

I have been referred to various authorities that hold that in making such a decision I should not have regard to any financial consequences. Those cases have involved individual private hire vehicle licence holders. Although the consequence may be a complete loss of livelihood and whatever follows from that, the circumstances for an operator are likely to be not only the loss of livelihood, but there may (as in this case) still be substantial business commitments such as rent and hire purchase. There may also be the consequent loss of jobs for the employees of the business. These are consequences that I think it is valid for me to consider.

It is clear that in this case there have been quite a few warning letters sent to Mr Khan, which have had no obvious effect on the Appellant’s compliance with the regulations.

I have also been shown what I believe is the staff manual for the Respondent in their dealings with private hire vehicle matters. Paragraph 10.2 deals with suspensions and revocations of operator’s licences. It reads

​“In practice the suspension of an operator’s licence is rarely practicable as once the licence is suspended and the operator is no longer able to lawfully accept bookings, their licensed private hire drivers and customers move on to a different licensed operator. In reality the operator, whilst holding an operator’s licence (albeit a currently suspended one) no longer has a business to operate, and by the time a suspension is completed the operator has effectively lost his business.

​Therefore, as a period of suspension for an operator (however short) has the same impact as a revocation the option to revoke is likely to be taken in all cases.

It seems to me that this is overstepping the considerations which should be borne in mind by the licensing authority, i.e the Respondent. It may well be that the reality is that the business will fold as a consequence of a suspension. But it may be that that can be avoided by the operator. The only circumstances in which the licence should be revoked is if the behaviour by the operator has been such that he is not and cannot be a fit and proper person to hold an operator’s licence.

I am not satisfied that that is the case here. Although the breaches have been serious, I think that in this case it would be sufficient to suspend the Appellant’s operators licence for a short period.

I therefore suspend the Appellant’s operators licence for seven days. This will allow the Appellant to try and maintain his business and keep his employees in employment, yet will serve to ensure that the regulations must be fully complied with if he is to retain this licence in the longer term. If, however, the result is the loss of the business, then so be it; that is not a consideration for this court as long as it is satisfied that the penalty is proportionate in all the circumstances

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