Trust is binary: either you trust someone, or you don’t. When people deliberately give you false information, they destroy any trust you may have had. Sadly, this is something police in the UK seem to struggle to understand.
Go grab a cup of your favourite drink, as this is a long post, covering a lot of ground. Stick with it to the very end though. I promise it’s worth your time.
Several years ago, two visionary police officers, PCs Hodson and Hudson, started a new concept in roads policing. This involved a police officer in plain clothes riding a bicycle equipped with a camera, and a radio. When close-passed by bad drivers, they’d radio ahead, and their colleagues would pull the driver over.
That was called Operation Close Pass, and directly led to Operation Snap. Op Snap is an online portal that allows people to upload video evidence of bad driving. Most submissions are made by drivers, but a growing number of cyclists are making submissions, too.
Post Code Lottery
Op Snap isn’t uniformly implemented, and some police forces in England and Wales make it clear that they have little interest in it. I previously wrote about the postcode lottery approach to roads policing.
There is a specific variance between what happens after cyclists made a report. Some police forces simply go into radio silence about the matter, while some provide a detailed reply, saying something like “The driver was offered an educational course”, or similar.
Most police forces who have an Op Snap portal do something quite different: they claim the cannot give any update beyond “No further action” or “Positive action taken” and the reason for this, they claim, is the GDPR legislation. After all, GDPR is there to protect people’s personally identifiable information, isn’t it? They shrug their shoulders and go “Sorry ‘guv – our hands are tied!”
A curious situation
Now we find ourselves in a curious situation, with several possibilities, but only one of them is true:
1) Police who give updates beyond the “Positive action taken” nonsense are in breach of GDPR, or
2) Police who refuse to give updates, and cite GDPR as the reason, are either ignorant of the law, or are misapplying it.
Neither is a good option.
Ask the oracle
I thought I’d seek clarification from the National Police Chiefs’ Council (NPCC) so I emailed them. This is what I asked:
As a cyclist, I feel that the introduction of Op Snap by most police forces in the UK has been an extremely positive step. However, Op Snap across the UK is fragmented. Scotland doesn’t accept online submission of video evidence, and across England and Wales, it’s a post-code lottery. Some police forces are very good at it, while others are awful.
Several police forces report back to whomever made the report, such as saying no further action was taken, a warning letter was sent out, the driver was offered a driving improvement course, or the driver accepted a fine and points.
However, several other police forces don’t, claiming GDPR prevents them from doing so.
Given that some forces do report back, we find ourselves in a situation where some police forces don’t understand the law. Either those that report back got it wrong, or those refusing to report back got it wrong.
As notifying the person who made the report does in no way give any personally identifiable information (PII) of the driver, beyond what that person already had and needed to make the report, I find it baffling that police can use GDPR as an excuse to not let those making reports know what action was taken.
Remember, if I report a driver, I must include the registration number of the vehicle, as without that police cannot act. This is usually recorded in the video, though many cyclists (myself included) also call out that number, just in case the video didn’t capture it clearly. If police were to report back on the outcome, there is no need for them to say anything other than what action was taken against the driver of <reg number>. The driver will not be identified, unless of course they choose to take their chances in court.
Please can I ask you to clarify how such a discrepancy between police forces can be allowed to exist? Also, please will you clarify which is correct – reporting back, or hiding behind GDPR to not report back?
Unfortunately, despite the automated email I received saying they’d respond within five working days, I had to chase them again, after having had no reply for almost two months. The reply I received was quite short, and didn’t answer any question I asked. It was simply this:
“National guidance has been circulated which encourages forces to update people who report road crime via the local force portal. This would include broad detail as to whether action or not was taken. A national working group has been set up to help develop greater consistency across the country.“
If at first you don’t succeed…
Not happy with that reply, I emailed the NPCC again:
Thanks for your reply. However, that doesn’t answer the question.
Specifically, I want to know whether or not you believe that it is a GDPR breach for police to update those who made the report with what action police would be taking.
Also, in the rare cases where police do provide updates, these frequently only state “positive action” was taken. That could mean one of those pointless “naughty boy” letters was sent out, or it could mean the driver was sent a NOIP.
Given that the offence was committed in public, and that (contrary to police’s current view that the person making the report was a witness) the cyclist was the victim, surely we have a legal right to at least know whether police did nothing, sent out a letter (so effectively did nothing but pretended to do something) or took legal steps against the driver?
As I was expecting, they completely avoided answering the question:
“The NPCC had issued guidance and has set up a working group to develop greater consistency in the approach to Op Snap reporting and responses in the future. Despite this police forces are operationally independent and may use different systems or deploy resources according to local need. In addition there may be differences between Northern Ireland, Scotland or England and Wales.“
I tried a final time:
As a further update, I asked the ICO’s office about this. Here’s what they had to say “Something like ‘The driver was sent a Notice of Intended Prosecution’ wouldn’t immediately strike me as problematic in most circumstances.” They also said “A registration of a vehicle isn’t going to be personal data in isolation“.
Will you now accept that police forces who hide behind GDPR, to avoid giving updates, are completely in the wrong?
Yes, I did contact the Information Commissioner’s Office (ICO), to ask for clarification, and yes, they said what I included in that email. By now I wasn’t expecting anything but further evasion from the NPCC, and in that I was correct:
“Thank you for your email. National guidance has been issued and a working group has been set up to develop greater consistency across the 43 operationally independent police forces in the UK.“
The NPCC showed themselves as not entirely trustworthy, in that the flatly refused to answer a simple question. I believe that’s because they know that police forces who hide behind GDPR are completely and wilfully misinterpreting that legislation – whether by accident or by design I cannot say.
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As an update, Detective Chief Superintendent Andy Cox since tweeted this, confirming that NPCC guidance to ALL police forces is to provide updates beyond simply “positive action taken”
Sorry missed your tweet. I do get thousands of notifications so am unable to pick up on all of these. The legal advice is to update with general details such as; NFA, warning letter, fixed penalty, and, court sanction with outcome details. I’m comfortable with this.— Andy Cox (@AndyCoxDCS) September 17, 2023
Also, over on Twitter, a man using the name of That Guy On The Bike did a Freedom of Information request, and was provided with a slightly redacted copy of the letter Commander Kyle Gordon sent out in September 2023 to all police forces in the UK, on behalf of the NPCC. You can read that full letter here.
This is an extract from that letter:
“Feedback should be limited to non-identifying data, such as the outcome of the investigation.
In No Further Action (NFA) cases due to insufficient evidence, this feedback could also include
reasoning as to why the evidence was deemed to be insufficient to support a prosecution.”
Victim Support Code
It get’s better: there is something called the Victim Support Code, and all UK police forces have to abide by it, by law! The Victim’s Code include things they committed to doing for victims of crime, and you can read it all here.
Point 6 of the Victim Support Code is very clear: To be provided with information about the investigation and prosecution. Pay close attention to the fact that there’s no mention of GDPR here – you can and must be updated!
Here’s the catch – police will tell you that you were not the victim of crime, but a witness, and as such the Victim Support Code doesn’t apply.
Police may argue that you didn’t experience a crime when you were close-passed, but the Crown Prosecution Service is quite clear that close-passing is a crime.
To any police who still pretend you’re a witness, not a victim, I suggest you read this: The offence of driving without due care and attention (careless driving) under section 3 of the Road Traffic Act 1988 is committed when the defendant’s driving falls below the standard expected of a competent and careful driver.
One of the things included in that is “driving too close to another vehicle”, which is what drivers may be prosecuted for after giving a cyclist a close pass. In the statement you give, when reporting a close pass, you’re encouraged (by police) to say how that made you feel. If it goes to court, the prosecutor is likely to ask you that, too.
Who is a victim?
More importantly, there is this copy of the Victim’s Code, from the Ministry of Justice, defining – in simple and clear terms – who would be considered a victim of crime. Remember, the Victim’s Code was established by the Domestic Violence, Crime and Victims Act 2004, and it applies to ALL justice agencies, including police. By law, police have to abide by the Victim’s Code. This isn’t an optional thing for them!
I copied the text immediately below directly from the Victim’s Code (link above):
Who is a victim under this Code?
For the purposes of this Code, a “victim” is:
* a person who has suffered harm, including physical, mental or emotional harm or economic loss, which was directly caused by a criminal offence.
Remember, we’ve established that a close pass is a crime. If you were scared, shocked, or upset by a close pass (some I’ve had were so frigging terrifying that I almost quit cycling!) then you have suffered emotional and/or mental harm, and as such, you were the victim of crime.
Do NOT accept police fobbing you off with either GDPR, or that you’re a witness. Official guidance to police states they can and should give you an update.