Enhanced oversight of biometric data: consultation

1. Background

Why we are consulting

1. The biometrics field is evolving rapidly and offers great potential in the identification and prevention of crime and the delivery of community safety.

2. However, the use of biometric data and technologies raises a range of ethical and human rights considerations. This public consultation therefore explores the potential to deliver independent and ethical oversight of the collection and use of such data in a justice and community safety context.

What do we mean by biometric data?

3. 'Biometric data' is a relatively broad and evolving concept. It encompasses what is often referred to as 'first-generation biometrics' such as fingerprints, DNA and custody photographs which have been commonly used in policing for many years. It also includes new and emerging technologies (or ‘second-generation biometrics’) such as facial recognition software, remote iris recognition and other behavioural biometrics such as voice pattern analysis.

4. It is important for us to be clear about what we mean when we talk about biometrics, not least because the term has never previously been used in criminal justice legislation in Scotland. Accordingly, whenever we talk about ‘biometric data’ in this consultation, we are referring to any physical, biological, physiological or behavioural data derived from human subjects, which have potential to identify a known individual and which have been used by Police Scotland, the Scottish Police Authority ( SPA) or other specified agencies in a justice and community safety context in Scotland.

5. While such agencies play a key role in the prevention and detection of crime, they also have a wider role in improving the safety and wellbeing of persons, localities and communities in Scotland. That is why, when we talk about the use of biometric data in this consultation, we refer to its use in both a justice and wider community safety context.

6. We have also chosen to define the term in this way because it is wide enough to cover any future technological or scientific developments in this ever-changing area.

What are we consulting on?

7. In June 2017, the then Cabinet Secretary for Justice, Michael Matheson MSP, tasked an Independent Advisory Group ( IAG), chaired by Solicitor Advocate John Scott QC, to consider the taking, use and retention of biometric data in policing. A copy of the IAG report can be viewed on the Scottish Government website at http://www.gov.scot/Resource/0053/00533063.pdf.

8. The IAG made nine recommendations, further details of which are set out at section 2. Specifically, the Group called for:

• the establishment of a Scottish Biometrics Commissioner to provide independent oversight of the use of biometric data for justice and community safety purposes in Scotland; and
• a statutory code of practice covering biometric data and technologies.

9. This consultation sets out Government proposals on both these issues. It seeks views on a draft statutory Code of Practice concerning the use of biometric data and a concept of operations outlining the role of a Scottish Biometrics Commissioner. These draft documents have been informed by the IAG’s report and developed with the support of Her Majesty’s Inspectorate of Constabulary in Scotland ( HMICS).

10. This consultation also marks an important early opportunity for national debate on the use of biometrics to promote justice and community safety. The Scottish Government is keen to ensure that as many people, communities and organisations as possible have the opportunity to contribute to the development of the policy and legislative framework in this area. This will ensure the right balance is struck between the delivery of justice, community safety, privacy, ethics and wider human rights.

11. Subject to the views expressed, we will seek to introduce primary legislation in the current parliamentary session to deliver these improvements.

12. The deadline for responses to this consultation is 1 October 2018.