19/01/2021

England Highways

Damage to Crown Property [DCP] Claim Costs

200325 Further Request that CCTV Evidence is Retained

09/01/2014 (Our Ref: R04A457) EM Highways: (now Kier highways):

I apologise that no CCTV footage was taken. Unfortunately we do not own most of the CCTV cameras on the network and it is very rare that we will manage to obtain any footage before it is deleted.

Even contractors cannot secure the footage in time!


25/03/2020 to Highways England

RETENTION OF CCTV EVIDENCE – UPDATE OF 12/2016 CIRCULAR

We have, since late 2016, asked you and your contractors to secure and retain CCTV evidence of incidents. We refer you to the history or our requests which commences here

10/2019 we wrote again but received a response which did not address the issue. We replied explaining this, received an acknowledgement but no other reply. We chased 15/10/2019, 04/11/2019 and 20/11/2019 without response.

During these exchanges, we have progressed claims with your appointed lawyers, Knights PLC who appear to believe you or they should have access to a damaged vehicle, that insurers (hauliers, fleets or the drivers) must make them available. Given that you or your contractors are the first to know of an incident, attend the scene and aware of the vehicle identity (whereas insurers may not learn of the incident or claim for weeks), it is unclear why you are unable or unwilling to address inspection promptly, independently – particularly given many vehicles are immovable due to the incident.

04/11/2019 09:32 (our ref. W11D169/PBS) Knights wrote:

Your client should simply give mine the opportunity to inspect a vehicle following an incident by telling us where it has recovered the vehicle to and when it intends to dispose of it. We can usually decide whether we want to inspect, and do so, within 5 working days, because we would not want to prejudice your client in any way by incurring it with storage charges or unreasonable delay.
But of course the vehicle is evidence and to dispose of it without giving my client the opportunity to inspect by naming its location and when it may be inspected may well amount to the destruction of evidence and contempt of Court.

How are CCTV records not evidence and in turn, does your destruction of it (failure to retain) similarly amount to contempt of Court or do such demands/threats only apply to Third Parties?

Please confirm that you and your contractors will retain CCTV where this captures an incident. We anticipate this will be in the majority of cases:

• we commonly see charges for NCC (National Control Centre) staff* who monitor screens displaying the network
• on occasions, it is the NCC operator who alerts you to an incident
• the introduction of ‘Smart Motorways’ has seen an increase in CCTV


*NCC staff role: Continuously monitor the operation of the network by obtaining and reviewing information from multiple sources (such as Traffic Officers, traffic management systems, Police, and CCTV) so that appropriate action can be taken. Record all required information relating to incidents on the Highways England control systems and report unsafe conditions and near-miss incidents to assist colleagues to
perform their job effectively.


27/03/2020 From: Julie turner @ highwaysengland.co.uk 

RETENTION OF CCTV EVIDENCE – UPDATE OF 12/2016 CIRCULAR

As previously explained, in accordance with our legal obligations under the Data Protection Act, we are not permitted to retain personal information for longer than is necessary. The primary purpose for the use of CCTV on the strategic road network is to assist with the management of incidents and traffic flow.

Any decision on how long to retain CCTV coverage for needs to be considered with this business need in mind, along with our duty to comply with statutory obligations.

We consider that a 7 day retention period for CCTV coverage is sufficient to enable us to meet our business needs and to comply with legal obligations.

Retaining CCTV coverage for a longer period of time would be in breach of the Data Protection Act as we would then be keeping personal information for longer than would be necessary to meet our business needs.

The Information Commissioner’s Office is aware of our approach on this matter and we do not intend to make any changes to our procedures or continue to comment on this subject.

Regards,

Julie Turner
Network Claims (Green) Team Leader – FBS
Highways England | 2nd Floor | 5 St Philips Place| Colmore Row| Birmingham | B3 2PW


27/03/2020 to Highway England:

I agree, your legal obligations under the Data Protection Act, permit the retention of personal information as is ‘necessary’. CCTV is necessary for a business purpose; to record incidents of damage to the infrastructure, either accidental or otherwise, by vehicles or persons (including determining Green Claims).  CCTV can be retained.

Any decision on how long to retain CCTV coverage needs to be considered with ALL business needs in mind. In the circumstances I have described, this information is evidence reasonably required to progress a claim against a Third Party without prejudicing your position or theirs.  You are intentionally destroying evidence relevant to claim considerations and potential proceedings.  You have a duty to retain evidence. Immediate retention of CCTV coverage should occur.

My understanding is that the Information Commissioner’s Office is aware of your approach on this matter with regard to general CCTV/ANPR data, the 7-day all-encompassing, routine retention. This is not what I am seeking. Rather, I am asking for limited, necessary retention relating to specific incidents; those where you may pursue recovery.

Clearly, you have an ability to retain CCTV, will and can do so. I was advised by HE ‘Upon receipt of a request for CCTV footage, the footage is ‘tagged’ to prevent deletion’. I also understand Network Video Recorder operators can export video.  Your 7-day destruction policy, insofar as an incident is concerned, appears geared to destroying evidence before a Third Party can reasonably make an approach, before they are aware of an incident.

We wish to be provided CCTV footage. Please confirm that this will occur with immediate effect.

Regards,


28/04/2020 to Highways England

Please ensure CCTV footage is secured on every DCP incident where you intend to make a claim.

We have bene seeking this for years. We refer you to your lawyers comments concerning ‘contempt of Court’ arising from the destruction of evidence.

Seeking to hide behind the Data Protection Act is inappropriate, misguided. An FoIA request of the ICO has revealed no information that supporting your position indeed, you are referred to the enabling section of the Act:

information required to be disclosed by law etc or in connection with legal proceedings

5(3)The listed GDPR provisions do not apply to personal data where disclosure of the data—

(a)is necessary for the purpose of, or in connection with, legal proceedings (including prospective legal proceedings),
(b)is necessary for the purpose of obtaining legal advice, or
(c)is otherwise necessary for the purposes of establishing, exercising or defending legal rights,
to the extent that the application of those provisions would prevent the controller from making the disclosure.

Yours faithfully,


15/07/2020 to Highways England

Dear Sirs

Coupled with your current failure to supply reasonable, available in support of claims, we remain concerned you continue to cite the DPA / ICO as grounds for disposing of relevant evidence. You state:

In accordance with our legal obligations under the Data Protection Act, we are not permitted to retain personal information for longer than is necessary. The primary purpose for the use of CCTV on the strategic road network is to assist with the management of incidents and traffic flow. We consider that a 7 day retention period for CCTV coverage is sufficient to enable us to meet our business needs and to comply with legal obligations.

However, is clearly obvious that many are unaware of the process and by the time a claim is received or progressed by an insurer, many weeks if not months have passed.

We again (see http://www.englandhighways.co.uk/200325-further-request-that-cctv-evidence-is-retained/) ask that you retain, do not destroy, CCTV evidence. Additionally, the moment an incident is known to your contractors, the relevant insurer is advised without delay. It appears the destruction is designed to prevent insurers making informed decisions about liability and considering the pre-existing condition of a location thereby helping to improve your £1 in £5 recovery rate.

Yours faithfully,

 

 

 


Further reading: 

ANPR Retention period – 2 years

21/02/2017 ICO Case Reference Number ENQ0662039

You ask me to clarify the following which was discussed during our recent telephone conversation.

1. One-way hashed is a form of encoding that prevents it being unencoded, i.e. it’s irreversible.

And as a result of this:

2. It is not personal data.

I can confirm that this is correct. If the encoded information cannot be reversed then it will not identify an individual and therefore will not be personal data.

Registered users:

170406 CCTV Documented Purposes