Use of biometric data: report of the independent advisory group
This report provides recommendations on a policy and legislative framework for police use of biometric data and associated technologies.
Footnotes
1. https://www.gov.uk/government/organisations/biometrics-commissioner - the Biometrics Commissioner is independent of government. His role is to keep under review the retention and use by the police of DNA samples, DNA profiles and fingerprints; decide applications by the police to retain DNA profiles and fingerprints; review national security determinations which are made or renewed by the police in connection with the retention of DNA profiles and fingerprints; provide reports to the Home Secretary about the carrying out of his functions.
2. https://www.gov.uk/government/organisations/forensic-science-regulator - the Forensic Science Regulator (England and Wales) ensures that the provision of forensic science services across the criminal justice system is subject to an appropriate regime of scientific quality standards.
3. https://www.gov.uk/government/organisations/biometrics-and-forensics-ethics-group - The Biometrics and Forensics Ethics Group provides independent ethical advice to Home Office ministers on issues related to the use of biometrics and forensics. It is sponsored by the Home Office.
4. http://www.bbc.co.uk/news/uk-scotland-glasgow-west-42323466
5. The Scottish Police Authority is responsible, inter alia, for providing forensic services to support operational policing in Scotland.
7. Custody image – photograph of an individual taken when processed at a police office as a suspect or accused person.
8. Applications nos. 30562/04 and 30566/04.
9. “Use” in the Terms of Reference includes capture, storage, retention, use and disposal.
10. R (on the application of) RMC and FJ -v- Commissioner of Police of the Metropolis and Secretary of State for the Home Department and Liberty and Equality and Human Rights Commission [2012] EWHC 1681 (Admin)
11. https://bigbrotherwatch.org.uk/all-campaigns/face-off/.
12. Criminal Procedure (Scotland) Act 1995, section 18G.
13. Warren and Brandeis, “The Right to Privacy”, Harvard Law Review (1890), Vol.4, No. 5, at page 193.
14. With the exception of section 18G which relates to reserved matters.
15. Data – ‘information, especially facts or numbers, collected to be examined and considered and used to help decision-making, or information in an electronic form that can be stored and used by a computer', Cambridge English Dictionary.
17. Algorithm – ‘A process or set of rules to be followed in calculations or other problem-solving operations, especially by a computer’, Oxford Dictionaries.
18. Audit and Assurance Review of the use of the Facial Search functionality within the UK Police National Database ( PND), Paragraph 67, HMICS: January 2016: https://www.hmics.scot/publications/audit-and-assurance-review-use-facial-search-functionality-within-uk-police-national.
19. Criminal Procedure (Scotland) Act, 1995: https://www.legislation.gov.uk/ukpga/1995/46/part/II/crossheading/prints-and-samples
20. Criminal Procedure (Scotland) Act, 1995, s 18(1)(7A).
21. Biometrics Commissioner: Oral Evidence to House of Commons Science and Technology Committee on current and future uses of biometric technologies, 10 December 2014.
22. Recommendation No 1: Audit and Assurance Review of the use of the Facial Search functionality within the UK Police National Database ( PND), HMICS: January 2016: https://www.hmics.scot/publications/audit-and-assurance-review-use-facial-search-functionality-within-uk-police-national
23. Inserted by section 48 of the Crime and Punishment (Scotland) Act 1997.
24. Although indefinite retention is legally permissible, in practice the technical process of retaining fingerprints on the national IDENT1 database is dependent on the retention of the associated conviction on the individual's criminal record. Therefore, once the conviction weeds from the Criminal History System (retention periods: http://www.scotland.police.uk/assets/pdf/340047/341626/recording-weeding-and-retention-of-information-on-criminal-history-system-chs?view=Standard) electronic and hard copy records of the fingerprints taken for that case will be destroyed by the SPA.
25. Only a very small number of children aged under 16 are convicted at court as opposed to appearing in the Children’s Hearings system.
26. Fiscal offer – offers made by the Procurator Fiscal in terms of the 1995 Act: a conditional offer of fixed penalty under section 302; a compensation offer under section 302A; a combined offer (fixed penalty and compensation offer) under section 302B; a work offer (number of hours of unpaid work) under section 303ZA.
27. At the time of writing, Police Scotland has not made any application to further retain data relating to a person prosecuted but not convicted of certain sexual and violent offences. Source: Police Scotland IAG representative.
28. It should be noted that Section 87(4) of the Sexual Offences Act 2003, which relates to the sex offender registration process, gives the power to the police take photographs and fingerprints of the subject for this specific purpose.
29. Commonly referred to as nuclear DNA as distinct from other forms of DNA found in other parts of cells such as mitochondrial DNA. The National DNA Database is a repository of nuclear DNA data.
30. http://www.spa.police.uk/news/322981/296781/
31. Scottish Police Authority website accessed 07 December 2017: http://www.spa.police.uk/assets/151078/427288.
32. Source: Data provided by Police Scotland on 21 August 2017 in response to Freedom of Information request.
33. Also includes images from those detained before detention was abolished by the Criminal Justice (Scotland) Act 2016.
34. Annual Report 2015: Biometrics Commissioner, Chapter 7, Custody Photographs and Facial Recognition Technology. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/507105/54496_Biometrics_Commissioners_Web_Accessible.pdf
35. Police Scotland and NHS: National Co-ordinating Network for Healthcare and Forensic Medical Services for People in Police Care, Annual Report 2016-2017: http://www.policecare.scot.nhs.uk/wp-content/uploads/2015/01/Annual-Report-2016-17-v1.0.pdf
36. Scottish Government Progress Report on the Implementation of the Youth Justice Strategy, June 2017: http://www.gov.scot/publications/youth-justice-strategy-preventing-offending-getting-right-children-young-people/
37. ibid
38. Paragraph 49, Audit and Assurance Review of the use of the Facial Search functionality within the UK Police National Database ( PND), HMICS: January 2016: https://www.hmics.scot/publications/audit-and-assurance-review-use-facial-search-functionality-within-uk-police-national.
39. Ibid, Recommendation No 2.
40. Ibid , Paragraph 52.
41. Ibid , Paragraph 52.
42. https://www.hmics.scot/publications/thematic-inspection-scottish-police-authority-forensic-services.
43. http://www.spa.police.uk/meetings-events/fscom/.
44. New-born blood spot screening involves taking a blood sample to find out if your baby has one of nine rare but serious health conditions.
45. Guthrie Cards in Scotland: Ethical, Legal and Social Issues, Social Research Council: 2013
46. House of Commons, Science and Technology Committee, Sixth Report of Session 2014/15, page 3.
47. 16/03/2015 - Motion S4M-12676: Alison McInnes, North East Scotland, Scottish Liberal Democrats. Police use of Images with Facial Recognition Technology: ‘That the Parliament understands that police forces from across the UK have uploaded up to 18 million photographs to the Police National Database for use with facial recognition technology; is concerned that these images might include those of people never charged with an offence or who have been found innocent of a crime; notes the statement by the Chief Constable of Durham Constabulary on Newsnight on 2 February 2015 that, in a recent case in his constabulary, a person was identified using photographs from Scotland; further notes the concerns of the Biometrics Commissioner, Alastair MacGregor QC, regarding the implications for civil liberties of the use of such technology; notes his comment that “urgent steps” should be taken to ensure that facial recognition and other biometric technologies should be governed by an appropriate regulatory regime; considers that, although facial recognition technology might be a useful policing tool, such technology must only be used with suitable safeguards and protection for innocent members of the public; believes that Police Scotland’s use of, or contribution of images to, the Police National Database, or any other database for facial recognition purposes, should be in the context of specific laws set by the Parliament, and considers that legislation similar to that agreed by the Parliament to govern the use of DNA profiles and fingerprints should be adopted to regulate the police use of images for facial recognition purposes and that police use of any new biometric identification technology in the future should be subject to similar regulation’.
48. https://www.theregister.co.uk/2017/08/31/met_denies_face_recog_wrongful_arrest_carnival/
49. https://www.facebook.com/SWPolice/posts/1658433710876077.
50. See, for example, the following Guardian story from 4
January 2018 –
https://www.theguardian.com/world/2018/jan/04/india-national-id-database-data-leak-bought-online-aadhaar:
‘The personal information of more than a billion Indians
stored in the world’s largest biometric database can be
bought online for less than £6, according to an investigation
by an Indian newspaper.
The reported breach is the latest in a series of alleged
leaks from the Aadhaar database, which has been collecting the
photographs, thumbprints, retina scans and other identifying
details of every Indian citizen.
The report … claimed that software is also being sold
online that can generate fake Aadhaar cards, an identity document
that is required to access a growing number of government services
including free meals and subsidised grain.’
51. http://www.natcen.ac.uk/our-expertise/methods-expertise/surveys/probability-panel/ http://www.natcen.ac.uk/our-expertise/methods-expertise/surveys/probability-panel/.
53. International Society for the Reform of Criminal Law Conference Crossing Boundaries: Exploitation, e-Crime, Evidence, and Extradition21 - 25 June 2015 - Edinburgh, Scotland - Papers by Lord Turnbull (Expert Evidence and the Changing Role of the Trial Judge) and the Right Honourable Lord Bracadale (Expert Evidence: The Admissibility as Expert Evidence of Case Linkage Analysis in Thomas Ross Young v HMA).
54. Gaughran v UK (Application number 45245/15) and Catt v UK (Application number 43514/15)).
55. Paragraphs 48 and 49.
56. A private (or a voluntary) body is subject to the general duty in respect of any public functions which it has.
57. The list of bodies which are subject to the general duty found in Schedule 19 of the Act and includes key public authorities like local authorities, the police, the armed forces and central government departments.
58. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data
59. Facial images are just the first of a new wave of biometrics.
60. Biometrics Commissioner, annual report 2017, para 36 and Biometrics – Independent Advisory Group Review, Scotland. Big Brother Watch submission, 12th September 2017.
61. Biometrics Commissioner, annual report 2017, para 36 and Biometrics – Independent Advisory Group Review, Scotland. Big Brother Watch submission, 12th September 2017.
62. The difficult judgment as to the proper balance between public and private interest in a democratic society is best taken by Parliament in the first instance, expressed through legislation. It should not be left to the agencies using the data.
63. See UN Guiding Principle on Business and Human Rights. http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.
64. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.
65. See, for example, Directive 2016/680 as well as Regulation ( GDPR) 2016/679. Both refer in detail to biometric data. The EU Charter on fundamental rights is also quite specific on rules of rights to privacy.
66. e.g., Arts. 7 and 8.
67. Ibid.
68. It is argued that facial recognition technology is becoming increasingly able to predict personal information, such as health conditions. See National DNA Database Ethics Group, Notes of the 38th meeting held on 7 June 2017 at Home Office, 2, Marsham Street, Westminster, London, SW1P 4DF.
69. S and Marper v the UK (Applications nos. 30562/04 and 30566/04) at paragraph 112.
70. [2005] 3 SCR 99, 2005 SCC 61.
71. Ibid.
72. See Khan v the UK Application No 35394/97 ( ECHR)
73. As above in footnote No. 8.
74. [2013] UKSC 38
75. In Klass v. Germany (Application no. 5029/71) for example, the European Court of Human Rights stated that it must be satisfied that any system of secret surveillance conducted by the State must be accompanied by adequate and effective guarantees against abuse.
76. [2012] EWHC 1681 (Admin).
77. Article 40 of the CRC, for example, sets out children’s rights in the criminal legal system.
78. See Evans v. the United Kingdom Application No. 6339/05 ( ECHR)).
79. see Dickson v. the United Kingdom Application No. 44362/04, ( ECHR)).
80. Recommendation No. R 87 (15) to member states regulating the use of personal data in the police sector.
81. R (RMC and FJ) v MPS (Metropolitan Police Service) [2012] and R (on the applications of S and Marper) v Chief Constable of South Yorkshire’ [2004] 1 WLR 2196, [2004] 4 All ER 193.
82. [2015] UKSC 29.
83. Ibid at para 83.
84. Use includes collection, capturing, retention and deletion of records for those who are found innocent or are not convicted of a criminal offence.
85. See Data Protection Act 1998.
86. Hammarberg, T (2008) ‘More Control is Needed of Police Databases. Human Rights in Europe, Viewpoints by the Commissioner for Human Rights’.
87. Case concerning the Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment of 5 February 1970, ICJ Reports (1970), p. 3, at p. 32. – in relation to racial discrimination.
88. Profiling is a filtering process involving a single indicator or a cluster of indicators that, when grouped together, present the characteristics of a high-risk person, passenger or consignment.
89. E/CN.4/2005/103, paras. 71–76.
90. The Equality and Human Rights Commission’s response to the government’s consultation on: Keeping the right people on the DNA database (2009) p 5.
91. See Abdulaziz, Cabales and Balkandali v. the United Kingdom ( ECHR).
92. See for example human rights based policing at http://www.scottishhumanrights.com/justice/policing/#policing-1244.
93. Segerstedt-Wiberg and Others v. Sweden, application no. 62332/00 ( ECHR)
94. S and Marper v UK, para 99 (ECtHR)
95. 7841/08 and 57900/12, 4 June 2013 (admissibility decision)
96. Requête no 8806/12 22 June 2017
97. Application number 43514/15.
98. [2015] UKSC 9.
99. Application numbers 31127/11 and 8114/13.
100. GDPR Article 4, paragraph 14 - http://data.consilium.europa.eu/doc/document/ST-5419-2016-INIT/en/pdf.
101. Codes of Practice and Conduct for forensic Science providers and practitioners, published by the Forensic Science Regulator (England and Wales) at: www.gov.uk/government/publications/forensic-science-providers-codes-of-practice-and-conduct-2017
102. http://www.gov.scot/Topics/Justice/policies/young-offending/whole-system-approach
103. http://www.gov.scot/Topics/People/Young-People/gettingitright
104. ‘housebreaking’ in Scotland.
105. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/644426/CCS207_Biometrics_Commissioner_ARA-print.pdf at paragraph 123.
106. Generally more serious violent, sexual offences, terrorist offences and robbery. Police and Criminal Evidence Act 1984 (Amendment: Qualifying Offences) Order 2013.
107. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/644426/CCS207_Biometrics_Commissioner_ARA-print.pdf at paragraph 133.
108. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/644426/CCS207_Biometrics_Commissioner_ARA-print.pdf at paragraph 45.
109. Submission to IAG from the Open Rights Group (page 4).
110. https://www.gov.uk/government/groups/national-dna-database-strategy-board - the Strategy Board comprises representatives of the National Police Chief’s Council, the Home Office, the DNA Ethics Group, the Association of Police and Crime Commissioners, the Forensic Science Regulator(England and Wales) (or her representative), the Information Commissioner’s Office, the Biometrics Commissioner (or his representative), representatives from the police and devolved administrations of Scotland and Northern Ireland and such other members who may be invited.
111. Submission to IAG from the Open Rights Group (page 19).
112. Submission to IAG from the Open Rights Group (page 18).
113. House of Lords Constitution Committee, in its 2004 report ‘The Regulatory State: Ensuring its Accountability’ - https://publications.parliament.uk/pa/ld200304/ldselect/ldconst/68/6803.htm - see recommendation 3.
114. Submission to IAG from the Open Rights Group (page 19).
115. https://www.gov.uk/government/publications/national-dna-database-ethics-group-annual-report-2016 - the last report published by the National DNA Database Ethics Group before it became the BFEG on 20 July 2017.
116. Submission to IAG from the Open Rights Group (page 18).
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