ICO orders Highways England to provide information on the number of cameras used to enforce the Red X following FOI request, and the figures are worrying…

Update 20 August 2021: please note Highways England has changed its name to National Highways.

On 10 June 2019, legislation came into force to allow prosecutions to take place based on automated camera enforcement of red X (and hard shoulder) offences by capturing an image of vehicles contravening the red X. These cameras are operated by Highways England. This is also mentioned in the recently published “Smart Motorway Safety – Evidence Stocktake and Action Plan” and is a key compliance tool to improve safety on Smart Motorways.

While Highways England had reportedly been trialling such cameras for months before the legislation came into force, I was concerned by reports that they were still only being used to send out informal ‘warning letters’ rather than launch formal police action. Therefore, on 13 March 2020, I sent Highways England a Freedom of Information (FOI) request to find out how many Red X enforcement cameras were currently in operation and how many were actually being used to launch formal police action.

a) How many times have you provided information to the police in relation to possible offences detected by automated camera enforcement of the red X?
b) How many times has police action been taken as a direct result of automated camera enforcement of the red X? If possible, please break this down by Educational Course, Fixed Penalty Notice and Court Proceedings.
c) How many active cameras are currently installed that are capable of automated camera enforcement of the red X, but are not currently being used to launch police action?
d) How many active cameras are currently installed that are capable of automated camera enforcement of the red X and are currently being used to launch police action ?
e) Which police forces are you currently actively working with to take action against red X offenders that are automatically detected by red X enforcement cameras?

On 2 April 2020, Highways England responded. They said that they did not hold the information asked for in parts a) and b) of the request, which I accepted. However, they decided to withhold the information requested in parts c), d), and e) on the basis that it would prejudice the prevention or detection of crime and it would endanger the safety of individuals. They did, however, state: “We are working on the rollout programme with all Police Services across England, and all Police Services that have sections of smart motorway are engaged with the programme”. Hmm.

I did not accept that the information was being withheld for a legitimate reason. After all, how can the disclosure of aggregate Red X camera usage figures possibly prejudice the prevention of crime or endanger the safety of individuals, particularly as such cameras could not be lawfully used prior to June 2019? Following a complaint to Highways England requesting a further review, Highways England did not change its position. Thus, on 7 May 2020, I submitted a complaint to the Information Commissioner’s Office (ICO), asking them to order Highways England to disclose the information in parts c), d) and e). What followed was a very long wait, which was to be expected given the ongoing pandemic.

On 18 January 2021, the ICO contacted me to say that they had begun processing my case and had asked Highways England for their full rationale for withholding the information. Just over 2 months later, on 30 March 2021, I was sent a draft decision notice. Highways England had been ordered to disclose the information asked for in parts c) and d), but not in part e). The main reason for this was that, should Highways England disclose the information in part e), drivers in certain areas could become aware that automated Red X enforcement in their area was (almost) not taking place. Of course, the fact that the ICO came to this decision after they had been given access to the data is very telling – if Highways England had installed a sufficient number of cameras in every police force area, I see no reason why the ICO wouldn’t have ordered the disclosure of the information in part e) as well. I will add that the ICO’s Senior Case Officer that ended up dealing with my case was very helpful and professional throughout.

Highways England subsequently failed to comply with the decision notice in a timely manner and did not provide me with the information before the specified deadline. This means they could have been held in contempt of court (see section 54 of the FOI act). However, after I had again complained to the ICO, Highways England were suddenly very quick to provide me with the information as follows.

As of 07/04/2021, Highways England had a total of 70 HEDECS cameras deployed capable of Red X enforcement. 44 camera sites are fully capable of Red X enforcement. There are a further 26 scheme camera sites awaiting police commissioning prior to enforcement being able to commence.

And there we have it – clearly, having just 44 operational red X enforcement cameras means that only a very tiny percentage of all the red X signs are currently automatically enforced. For many, the only means of education is enforcement, and with a sign as important as a Red X on All Lane Running Smart Motorways without a hard shoulder, full compliance is absolutely paramount. Highways England would do well to invest in at least quadrupling the number of Red X cameras they currently have installed, which will pay for themselves through a reduction in collisions caused by Red X contraventions and fine revenue.

Given the current controversy about smart motorways, it’s not surprising that Highways England attempted to withhold this data. That said, in my view, smart motorways are an absolutely essential development and have been shown to be safer than conventional motorways (and single/dual carriageways) in many areas. They also increase capacity, meaning less traffic is forced onto more dangerous local routes. Those that relentlessly criticise smart motorways would do well to remember that 70 MPH non-motorway dual carriageways are mostly the same as smart motorways, but have far lower safety standards and do not come with the high level of warning signage. Their efforts would be far better spent campaigning for much-needed safety reforms for such dual carriageways and national speed limit single carriageways.