A judge has upheld the right of members of the public to submit bike and dash-cam footage of law-breaking drivers to the police, after a retired solicitor attempted to sue a cyclist who filmed her using her phone while driving, claiming the cyclist’s actions breached the UK’s data protection laws.

The solicitor, who was fined and issued six penalty points after she was caught using her phone behind the wheel in 2022, claimed that the helmet camera footage used to convict her, submitted to the police through the National Dash Cam Safety Portal, was unlawfully obtained.

She also accused the “disturbing” camera cyclist of operating as an unregistered “data controller” and claimed people on bikes are acting like “caped crusaders” who actively and “deliberately” seek out law-breaking motorists to film them without their consent.

If her claim had succeeded, it could have led to all camera-using cyclists and motorists being required to register with the UK’s Information Commissioner’s Office and pay an annual fee under the threat of criminal sanction, which may have spelled the end for road crime convictions based on third-party reports by the public.

However, in a decision handed out at Newcastle County Court in March, a judge ruled that filming road crime is both legal and valuable to police investigations, and that the solicitor’s attempt to curtail this practice on data protection grounds would have had a “chilling” effect on the submission of evidence by members of the public.

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The decision, currently subject to an anonymity order and first reported by Carlton Reid in Forbes, was delivered almost three years after the retired solicitor was captured on a cyclist’s helmet camera footage holding a mobile phone while behind the wheel of a car in Whitley Bay.

After the cyclist submitted footage of the phone driving to the police, she was convicted, fined, and issued six penalty points.

The solicitor, who previously worked for two magic circle law firms, then attempted to sue the cyclist, arguing that by filming her without her consent, he had breached the UK’s General Data Protection Regulation and the Data Protection Act 2018.

She also claimed the cyclist banged the roof of her car during the incident, a claim the judge ruled was contradicted by the rider’s footage, and denied that she was driving carelessly or dangerously when she was filmed by the cyclist. However, this was dismissed by the judge, who noted that the footage “captured her in a criminal act”.

The judge then argued that the retired solicitor’s credibility was “tainted” by her decision to omit any mention of her handling her phone in her witness statement, despite being “clearly pictured doing so”.

“It is surprising that, as a solicitor having taken an oath before the court to tell the whole truth, this crucial fact was omitted from her witness statement,” the judge said, as part of his 50-page ruling.

“The cyclist decides that the bad road user is guilty of a crime”

Representing herself, the retired solicitor accused cyclists in general of behaving like “caped crusaders” enforcing a “police-controlled state”, and argued that “open season” had been declared on motorists.

“As a private citizen and a lawyer I am deeply saddened and upset that rather than protecting us, our Data Protection laws are being used against us,” she said in a letter to the Information Commissioner’s Office (ICO) from August 2022.

“All private individuals in the UK should expect UK laws to protect them and any removal of those basic protections must be rigorously examined and those purporting to remove them held accountable otherwise we are simply living in a police-controlled state.”

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The solicitor also criticised camera cyclists who she claims “deliberately” and arbitrarily decide which motorists are “bad road users” before filming them. Her letter, notably, does not mention drivers who submit footage of road crimes captured on their dash cams.

“Cyclists wearing cameras on their helmets and capturing footage of other road users on public roads every day may not of itself be problematic from a data protection perspective,” she wrote.

“The difficulties arise where that cyclist using his [or her] helmet camera deliberately captures footage of the activities of other road users and in that moment of capture determines that a crime has been committed.

“The cyclist does not chance upon the crime, he actively seeks out whoever he determines (often from a distance) is a bad road user and deliberately films them without their consent. The cyclist may also decide angrily to reprimand and try to provoke that motorist about their bad road use while at the same time filming and recording the audio on his helmet camera.

“The cyclist then goes home and decides that the bad road user is guilty of a crime. He decides he wants the bad road user to be prosecuted for that crime. There has been no offence to the cyclist or his property. The cyclist and the motorist were strangers until that moment when the cyclist decided that the motorist was a bad road user and had in his view committed a crime.”

Cyclist accused of forcing bus driver to stop while filming phone driver in Harrow (supplied) 2
Cyclist accused of forcing bus driver to stop while filming phone driver in Harrow (supplied) 2 (Image Credit: Farrelly Atkinson)

In her witness statement, she added: “The defendant is not alone in his disturbing behaviour. Mainstream media report stories of similar incidents on our public roads.

“I remain very concerned that this behaviour is becoming normalised. The idea that cyclists can behave in a gentle and polite manner without the aggression and the constant video surveillance has been lost.”

However, the judge found her account to be unreliable, criticising the “lack of candour” in her complaint to the ICO, in which she failed to disclose her ongoing legal case to the regulator.

“A chilling effect on third-party reporting”

Throwing out her case, the judge ruled that the cyclist’s actions were exempt from the UK’s data protection laws, as they fell under “purely personal or household activity” (noting that even if they weren’t exempt, he still had “lawful grounds” for filming the phone driver, and would have only committed a “minor breach” based on how he went about capturing the footage).

He also argued that had the solicitor’s claim succeeded – and he admitted it was close to succeeding – it would have had a profoundly detrimental effect on how the police deal with footage submitted by the public, and the “millions” of drivers and cyclists who use cameras.

“Bringing the activity of responding to police requests for video footage within the scope of data protection law would have a chilling effect on the public’s willingness to respond,” the judge said.

“It is a given that the household and domestic use exemption must be narrowly construed. However, excluding from its ambit the uploading or handing to the police of selected footage obtained by such use evidencing the commission of a crime would be to narrow the exemption to the point of absurdity.

“Requiring compliance with the data protection regime where an individual shares with the police footage otherwise covered by the exemption and not requiring such compliance is incoherent.”

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The judge added that “many private motorists and cyclists use dashcams and body-worn video equipment” and that it was clear that filming road crime from public highways, including with smartphones, is both legal and valuable to police investigations.

“If the claimant is right in her submission that having a camera on (but not constantly trained on one specific area all the while that the defendant is cycling takes him outside the purely personal or household exemption, then the same will apply to the millions of domestic users of dashcams and cycling camera systems,” the judge said.

“This would be to compel users of such devices to register as data controllers with the ICO and comply with the requirements of data protection law… on pain of otherwise facing criminal sanction.

“The court should be slow to reach such a profound conclusion and will do well to heed the warning… that courts ‘must be cautious about criminalising what, for many people, are their ordinary activities’.”

Close pass operation
Close pass operation (Image Credit: @MalvernCops)

Reflecting on what he described as the retired solicitor’s “slightly unhinged” case, Martin Porter KC, the joint head of chambers at 2 Temple Gardens, told road.cc that “recording crimes committed in a public place is obviously acceptable”.

“The idea that data protection has any bearing on being filmed driving your car on a public road and committing traffic offences is ridiculous,” he said.

Meanwhile, law professor Sally Kyd, the former head of Leicester University’s law school, told Forbes that the judge had provided “clear support for the police use of third-party reporting through uploading videos to online portals” and that he had shown the “deterrent effect on other drivers in seeing the potential to be caught”.

“It is clear that the court takes the commission of the criminal offence of use of a mobile phone whilst driving seriously,” Professor Kyd said. “This is pleasing to see, given that historically such offences have been framed by some as quasi-criminal.

“The police will be interested in the outcome of this case, as it makes clear that uploading videos is a legitimate means of helping to enforce motoring offences.”

> National Police Chiefs’ Council insists there’s no reason for police in Wales to stop taking action on cyclists’ close pass videos

However, the solicitor remained adamant, in an email exchange with Reid, that the cyclist’s actions were “unlawful”.

“Although [this] is one of the most important data protection rights cases to come before the courts this year, the hostility from the public bodies involved was deliberately used to undermine precious privacy rights,” she said.

“It should not have been left to me as a private citizen to expose the unlawful data protection behaviours of cyclists uploading digital material, obtained covertly from other private citizens, to portals for police prosecution purposes.”

Finally, the cyclist at the centre of this legal maelstrom, who represented himself, concluded: “The judge admitted that the case gave him lots to think about. Thankfully, the court sided with me.”