Diocesan guidance on CCTV to reflect government Code of Practice
Churches have been encouraged to install Closed Circuit Television (CCTV) as an aid to the security of their contents and personnel, and in relation to hate crime and terrorist threats. Until recently, the church courts’ considerations of the installation of audio-visual equipment within a church have been restricted to petitions concerning projectors, screens, &c. However, a recent judgment in the diocese of Canterbury has addressed the use and storage of CCTV footage, data protection, and recommended what criteria might be adopted in the future.
Re St. Mary Chartham
The Canterbury commissary court considered an application for the installation of two closed circuit television cameras, with a recorder located in the vestry, to enable the church to be left open during the day, Re St Mary Chartham  ECC Can1: the camera used to monitor the entrance would enable detailed facial recognition; the other with a wide angle lens would cover most of the remainder of the church. Both would have low light capability, and the recorder would run continuously but over-write the recordings made after a month.
As with similar petitions, the Commissary General was required to consider the potential effects of the proposal upon the significance of the listed building: In re St John the Baptist, Penshurst  Court of Arches paras 21-22, [3.3]. Provided the DAC’s recommendation on the siting (and also method of fixing) was followed, she considered that it should be possible to install the cameras without harm to the listed building. The answer to the first Duffield/Penshurst question was therefore in the negative, and the presumption referred to in the second was easily rebutted:
“the advantages of security measures enabling the church to be opened to the public, both as a spiritual resource, but also as part of the national heritage. CCTV cameras would help to reduce the risks inherent in allowing otherwise unsupervised public access, in the interests of preserving the fabric and significance of the listed building and its contents”.
Consequently, the other questions did not arise. Having considered whether the overall character and function of the church as a place of prayer and worship would be adversely affected by the proposed installation, the Commissary General concluded that subject to the proposed conditions, “there should be no diminution of the church’s primary purpose” [3.4]. A faculty was therefore granted, subject to conditions outlined in paragraph 3.5, and in accordance with the principles set out in Section 2. The conditions within the faculty were that:
- the installation should ensure that any parts of the church set aside for private
prayer and so forth are avoided from the scope of the lens and that the cameras should be switched off during services.
- there to be a suitable person responsible for the machinery and data held in it, for notice to be given of the use of the cameras and of the person to contact in the event of complaints or questions.
Although not a condition of the faculty, it was expected that this person would familiarise themselves with the Code and the guidance published by the Surveillance Camera Commissioner and the Information Commissioner’s Office (ICO) and keep up to date with such publications.
The ICO advises against a blanket period of data retention of five weeks’ retention. In the light of Data Protection principles and the Code’s concern to prevent unnecessary data storage, the Commissary General considered that a four week period is proportionate to the aim in this case; damage and theft in the church, where recordings could be of evidential value, will not always be spotted immediately; the situation is readily distinguishable, for example, from cases where CCTV is installed to deter and detect public order disturbances in public houses and spaces. “Since the machines over-record automatically, a condition requiring this will be automatically fulfilled”.
[Note: Data protection law is changing on 25 May 2018 when the General Data Protection Regulation (GDPR) becomes effective.]
The conditions of use
The principles relating to the use of CCTV cameras are discussed in Section 2 of the judgment [2.1 to 2.9]. The Commissary General stated that she had not found any other consistory court judgments dealing with this topic, and this was the first such petition in which she had considered the topic. The judgment therefore contained advice to assist other parishes in the diocese which may be considering the installation of CCTV. [2.2 and 2.3].
Certain types of CCTV camera usage are subject to the Part 2: Protection of Freedoms Act 2012 (SS29-38), and under S30 the Secretary of State has issued Surveillance Camera Code of Practice, (referred to as “the Code” within the Act and as “the guidance” within the judgment) on the appropriate and effective use of surveillance camera systems, to which the relevant authorities as “must have regard”, see below; A guide to the 12 principles and Steps to complying with the 12 principles are also available.
“Relevant authorities” are defined in S33 of the Act. Other definitions within the Code include:
- “System Operator”: person or persons that take a decision to deploy a surveillance system, and/or are responsible for defining its purpose, and/or are responsible for the control of the use or the processing of images or other information obtained by virtue of such system.
- “System User”: person or persons who may be employed or contracted by the system operator who have access to live or recorded images or other information obtained by virtue of such a system.
The Commissary General noted that Parochial Church Councils and other ecclesiastical bodies do not fall within the scope of the “relevant authorities”, although the guidance encourages other operators and users of surveillance camera systems to adopt the code of practice voluntarily [2.1]. However,
“[2.2] … although Church bodies are not subject to the 2012 Act, the definition of System Operator in the guidance is broad enough to include the PCC, the Churchwardens, Incumbent and Petitioners for a relevant Faculty, as well as the person who determines the Petition.
“System Users may well not be employed in the normal parish context, but somebody within the congregation will have access to the information collected by cameras. Moreover, the Petitioners, or, at any rate, the person or persons in control of the cameras, will be “data controllers” for the purposes of the Data Protection Act 1998. The 1998 Act and the guidance issued by the Information Commissioner’s Office require data to be collected fairly and lawfully, for specified purposes and to be retained for no longer than necessary to achieve the purpose for which it was collected, amongst other matters .”
“[2.4]. I consider it appropriate to follow the advice of the Government voluntarily and to encourage parishes to adopt the Code and to have regard to the guidance when formulating proposals. Any future petitions for CCTV cameras in this Diocese will be considered in the light of the guidance as well as all other relevant matters.
“I note that “Public place” is defined in the publication in the same terms as in s.16(6) of the Public Order Act 1986 “and is taken to include any highway and any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission”. A church which is open to the public clearly falls within this definition, which is why, as I have said, I think it right to have regard to the Government guidance.
“[2.5] The guidance is supportive of the use of overt surveillance cameras in a public place whenever that use is: in pursuit of a legitimate aim; necessary to meet a pressing need; proportionate; effective; and compliant with any relevant legal obligations”.
[above italicization in the original]
The judgment notes the twelve guiding principles set out in the Code [2.6] and highlights particular points under these headings [2.7]. Important to the churches in the Canterbury diocese are the subsequent two paragraphs, viz. [Emphasis added]
“[2.8] Translating these principles into the church context, I consider that, whilst in principle, CCTV cameras can pursue the proportionate aims of deterring crime and desecration and increasing personal security, the siting and scope of camera equipment are particularly important. Areas set aside for private devotions seem to me to fall within the especially sensitive category where one would not expect to be filmed while praying. Similarly, in any churches where sacramental Confession or other ministries of individual pastoral support, such as healing, are practised, there should be no filming in the part or parts of the church set aside for such purposes. There should be no need for cameras to be in use during any form of service, whether regular worship or occasional offices. With regard to the latter, funerals and baptisms, in particular, are examples of occasions on which people are likely to be very sensitive.
“[2.9]. On the administrative side, it is obvious good sense that there should be identified person(s) responsible for the security of the equipment and the data collected, as well as available to deal with any complaints about the equipment. Moreover, there should be a discreet notice informing members of the public that CCTV cameras are in use in the church, for what purposes and when they will and will not be in operation.”
Elizabeth I is often quoted as saying “I have no desire to make windows into men’s souls”, and there seem to be parallels, albeit tenuous, in the Chartham judgment; there are some church activities which are of a sensitive nature and should be out of the camera’s gaze, whilst there are others which are necessarily conducted in public. However, the judgment in Chartham attempts to reconcile two essentially incompatible issues: the need for security monitoring and the right to privacy.
Few will disagree that incumbents and PCCs should “have regard to” the statutory guidance within the Code, nor with a need to take into consideration the use of CCTV in relation to sensitive issues, such as private devotions, sacramental Confession or other ministries of individual pastoral support. However, the problems is where to draw the line in order that churches and their congregations achieve the privacy/security balance through the installation of the type of surveillance such as that provided by CCTV.
This judgment was specific to the circumstances of that church; with regard to other potential installations within the diocese, Commissary General Morag Ellis QC stated “future petitions for CCTV cameras … will be considered in the light of the guidance as well as all other relevant matters” [our emphasis]. The judgment is binding on the Chartham church, and in view of the involvement and agreement of Deputy Commissary General, Steven Gasztowicz QC [1.6], it will be persuasive when similar petitions are considered within the diocese. However, Re St. Mary Chartham is the first judgment in this area, and it is possible that the principles outlined in Section 2 will be finessed as further practical experience is gained in their application.
The general requirement to switch off the camera(s) during all services runs contrary to the practice whereby nowadays, it is unusual for baptisms and weddings to be conducted without video recordings being made by the participants or their guests. Another potential problem area is the live streaming of services, for which there is a substantially greater intrusion on the congregation’s privacy. In June 2015, the CofE initiated a year-long project to broadcast church services around the world using @periscopeco. Official advice from the Church House in London encouraged parishes to take advantage of new technology making it possible to broadcast through a mobile phone as a new way of “spreading the word”.
Providing no equipment is fixed to the fabric of the church, “the introduction, maintenance or replacement of portable audio-visual equipment used in connection with church services” now falls within List B of the Faculty Jurisdiction Rules 2015 under “Church contents, B4(2)”; therefore, “may, subject to any specified conditions, be undertaken without a faculty if the archdeacon has been consulted”. In the Canterbury diocese, the archdeacon would need to decide whether to make his or her decision on the basis of the principles in Section 2 of the St. Mary Chartham judgment, or to nod through their assent on the basis of this lacuna.
The term “statutory guidance” is often used quite loosely, as in relation to Church Buildings Council Guidance Notes, which are often “over-egged” with regard to their statutory authority. In the instant case, however, under S20 of the 2012 Act, the Secretary of State must make the Order and issue the Code if the draft of the Order is approved by a resolution of each House of Parliament; it is therefore issued under parliamentary authority, unlike CBC Guidance Notes.
However, the Code/guidance states that relevant authorities “must have regard to the Code when exercising any functions to which the Code relates”. The phrase “have regard to” imposes a positive obligation on a relevant authority to consider the Code, balanced by a discretion to determine what weight it should give to each objective and decision-making principle. Thus, “having regard to” does not mean that all of the specified matters must be applied.