A balancing act

Written by Katie Smith, in conversation with Thomas Mitchell, Partner RTA Law LLP

Thomas Mitchell discusses the legal landscape of dashcams in Scotland and what’s next for them in terms of protection and privacy.

Thomas Mitchell is a partner at RTA Law LLP, whose daily practice is progressing personal injury claims for vulnerable road users, including pedestrians and cyclists. As a former semi-professional mountain bike racer, Thomas lives and breathes all things cycling and motorcycling. “What I do for a living is also a passion for me,” he explains.

Protection is power

With one in 10 cycling casualties in Scotland going unreported (Cycling Scotland et al, 2020), it’s easy to understand why dashcam usage is growing in popularity. The devices can capture live footage and vehicle details, as well as act as a deterrent to crime.  

“Dashcams give cyclists a degree of protection they otherwise wouldn’t have,” Thomas explains. “In the unfortunate situation where there is a collision, dashcams give cyclists the ability to capture the registration plate of the offending motorist. This would enable them to pursue the motorist’s insurer in respect of a personal injury claim or help police in tracing the perpetrator for the purposes of criminal action.”

From a legal standpoint, he adds, dashcam footage is often described as best evidence because it’s a recording of what happened. “If I have five individual witnesses who have all seen the same road traffic collision, they will give me five different stories as to what happened,” he says.

“Each and every one of them will have a different viewpoint about the road positioning or speed of vehicles involved. So, you have to dissect all of the evidence carefully as the truth is probably in there somewhere but trying to get to that can sometimes be quite difficult. It’s helpful if there is dashcam footage available because it may allow liability investigations to conclude more quickly.” 

The legal landscape 

Over the past few years, Thomas has noticed an increase in the use of dashcams on the road and in legal proceedings in Scotland. “You see a lot of use among professional drivers, be it taxi drivers or bus drivers, with companies using dashcams to encourage better driving behaviours from their staff,” he says.

While dashcams are legal in the UK, Spain, Italy, Malta and the Netherlands, their use is banned in Portugal and Luxembourg. In countries such as France, Belgium and Italy, meanwhile, dashcams are legal for private use only (Snooper, 2023).

“Perhaps there needs to be European-wide regulation of dashcams because it would clarify what they can and can’t be used for, but that’s a matter for the European Parliament,” Thomas says.

In Scotland, he explains, “When it comes to legal proceedings, dashcam footage is treated in the same way as any other piece of evidential material. It will be assessed on its merits, then it will be for a Sheriff or Judge in civil or criminal proceedings to consider what kind of evidential weight they want to give to dashcam footage.”

But dashcam footage may not always be reliable. “I’ve dealt with a case in the past where arguments were made using dashcam footage in an attempt to prove speed on the part of a motorcyclist,” Thomas explains.

“However, once the footage was properly analysed, it was clear that it didn’t show the lead up to the collision in real time as the frame rate of the footage was sped up. This meant the evidence upon which speed was being alleged was unsound. In that particular case, dashcam footage couldn’t be relied upon as the best evidence to work out the speed the motorcyclist was travelling before the collision,” he adds.

Importantly, says Thomas, “Dashcam footage isn’t necessarily the whole truth of what happened during or before a collision, and sometimes cases can turn on another piece of evidence.”

Prevention is key

So, will dashcams ever become mandatory? Thomas is sceptical, “While they are good at capturing collisions, dashcams are never going to prevent one. If they can’t prevent a collision, I can’t see why there would be an argument to make them mandatory.”

Another reason Thomas believes dashcams won’t be mandatory in the near future is data protection laws. “We live in a society now where a lot of our movements are tracked and we can be filmed at any time – at the self-service checkout in a shop, for example,” he explains.

“There can be a lot of issues in relation to the protection of personal data and how it’s processed. We’ve got this juxtaposition of competing legal interests – data protection on one hand and finding out what happened in relation to road traffic collision on the other. How those two intersect is quite interesting.”

Intersecting laws

Indeed, this is a challenge for Thomas in terms of seeking information that would have previously been more easily accessible. “Data protection is really important, especially in today’s society as more things are becoming digitised and you need to have a right to that data,” he explains. 

“In terms of how dashcam footage and General Data Protection Regulation (GDPR) are impacted by each other, a common misunderstood exemption to data protection regulations is information in respect of either legal proceedings or obtaining legal advice or establishing and enforcing legal rights. People don’t understand there are exemptions to getting things like dashcam footage and that can sometimes be quite difficult, but it’s about balancing the two ultimately,” he adds.

Dashcam databases

This year, Police Scotland is set to roll out its Digital Evidence Sharing Capability (DESC) Programme to make it easier for members of the public to report poor behaviour on roads (Scottish Government, 2024). This makes it one of the only forces in the UK not to use a national dashcam portal, which was due to be implemented across Scotland in 2023.

The reason for this, it says, was because a “standalone portal is not the optimum route to create the capability for digital media submissions to be submitted by members of the public” (Scottish Parliament, 2023).

With 70% of videos uploaded to the National Dash Cam Safety Portal resulting in police action (Nextbase, 2024), Thomas says, “I find it difficult to understand their [Police Scotland’s] position because you have a readymade portal you just need to implement.” However, he adds, “Scotland’s DESC has been a long time coming as an overhaul of how they share digital evidence.” 

Only time will tell in terms of the impact it will have on the law profession in Scotland.

Written by Katie Smith, journalist