Police's body-worn cams can be surveillance tools, the Investigatory Powers Tribunal has said.

The UK's independent cops-and-spies oversight court ruled that a police officer's decision to video a meeting inside a person's home, without warning them in advance, amounted to surveillance under Part II of the Regulation of Investigatory Powers Act (2000).

The case was brought by an individual, AB, who had reported a burglary at a non-residential property he owned. Hampshire Constabulary officers later visited his home address to tell him the force would not be investigating.

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It was only after the officers had been in the home "for some time" that they told him one of their body-worn cameras was recording the interview. This prompted the complaint.

Initially, the officer didn't tell the court why they had turned the cam on, leading the complainant's counsel to note that it was "difficult to understand why any user would wish to utilise a body-worn camera when interviewing the owner of premises that have been subject to an attempted break-in".

However, when the tribunal issued a direction to respond, the officer – who also attended with a colleague – explained his reasoning thus: "Before attending the address I was warned by my sergeant and members of the Lymington Neighbourhood's Team that AB was renowned for making complaints against the police on a regular basis.

"At no point had I operated the body-worn video device for surveillance purposes, it was to record the interaction between myself and AB."

The court, however, said that whether the device was being used for surveillance purposes was a matter for the court, not the officer, to decide.

In their judgment, the tribunal considered a previous case, which involved an audio recording of a voluntary declared interview, for note-taking purposes.

AB's case, the court said, was sufficiently different from this for a number of reasons, namely that it involved a video recording, was carried out in someone's home, wasn't an interview and didn't act simply as an aide-memoire.

"Rather it was, it would seem, to record by way of anticipation anything that might happen, in other words the behaviour (possibly anticipated misbehaviour) of AB," the court said.

The court also pointed out that a video will record more than audio does, saying: "It is a much greater intrusion to have something which is recorded permanently and could be viewed by others much later on."

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Moreover, the court said the fact it was in AB's home brought Article 8 (which protects the right to private life, family life, correspondence and home) into play. "It would not be unusual, for example, for a person to have things like family photographs in the room," it said.

"Even if there were no such private material which was recorded, the simple fact of the inside of their home being recorded, in our view, constitutes an act which falls within the scope of Article 8."

The decision – the first since new rules governing the tribunal came into force on 31 December – is a preliminary issue in this case (AB v Hampshire Constabulary).

Having decided this issue of law, the tribunal said it would continue with its investigation of the matters after liaising with each party. ®