Maurice is of course right - you do have to consider the FOI aspect.
Apologies for not having that hat on - it was the end of a long day.
However in practice I do not find FOI a problem in these cases. It is one of those situations where if a disclosure is made it is likely to be an applicant specific one under a DP exemption rather than FOI. After all you would not have provided the recording to CPS under FOI would you? Nor I suspect when providing it did you issue a parallel FOI refusal.
In FOI terms I just do not see a condition being made out save in the most exceptional cases - in which case I would probably also be satisfied that the s32 DPA exemption applied too. Whatever condition you find (and clearly schedule 3 will be engeged too) will have a necessity test and in my view whatever purpose or legitimate interest you find can be satisfied by saying e.g. "the court was shown video evidence of X driving at 120mph in a 4omph residentila street". The images are simply not "necessary". And then there is principle 2 ...
I certainly try to avoid having to consider unwarranted prejudice - my symathies are not with the subject here. But applying the relevant tests you should rarely need to go that far.
In addition because of the implications, being pragmatic, I would rather ICO order disclosure if applicant wants to go that far than face a DPA / HRA action from the subject.
So in practice whilst I would issue a s40(2) FOI refusal if needed I do tend to deal with such issues as a rather straightforward DPA exemption issue.
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