Use of biometric data: report of the independent advisory group

7 Children

7.1 For obvious reasons, this is an area deserving of special attention given that there is currently no separate set of policies or practices as regards biometric data obtained from children and young people. To that end, we established a Sub-Group to look specifically at whether special provisions should be introduced for children. We consulted with young people and those working with children and young people, as well as police officers specialising in this area.

7.2 For our purposes, we have adopted the United Nations Convention on the Rights of the Child definition of children as being those under 18. We have focussed primarily on children aged between 12 and 17 although we will mention the position regarding those under the age of criminal responsibility (which will increase from eight to 12 in terms of the Age of Criminal Responsibility (Scotland) Bill).

7.3 The numbers of children who come into contact with the police is relatively small in comparison to adults and, over the last decade in particular, it has reduced significantly (at least partially as a result of changes to the way in which children and young people involved in offending are dealt with by diversionary measures). As discussed earlier, only around 2,200 children were proceeded against in the Scottish courts during 2015/16, of whom very few were under the age of 16. More children are dealt with through the Children’s Hearings system – in 2016/17, there were 26,840 referrals to the Children’s Hearings system, of which 73% were on a non-offence (care and protection) basis and only 27% on offence grounds.

7.4 This provides reasonable justification for taking an appropriately distinct approach to the capture of their biometric data. Such an approach is also required by relevant legislation and human rights considerations. It is recognised that biometric data are not required in every case involving a child. In some areas of policing, individual decisions are based on an individualised risk assessment on a case by case basis and it is the view of the Group that a similar approach would be suitable for the acquisition, retention, use and disposal of biometric data as it relates to children.

7.5 Police officers who deal with children and young people on a regular basis are well aware of the issues around criminalising children. They work with the aim of keeping children out of the formal justice system as far as possible, in a manner consistent with, and supported by, the Whole System Approach ^[102] . They are also mindful of the risks of stigmatising children through labelling practices which are often driven by evidence of ‘previous form’ rather than current behaviour. For these reasons, there is a strong need to ensure that biometric data are acquired, used and retained in a proportionate manner that reduces any unintended negative risks or consequences for the individual.

7.6 This is important and should be reflected in the legislative approach to the retention of biometric data of children. As indicated in Chapter 2, there is a three year retention period for biometric data where grounds of referral are established (whether through acceptance by the child at such a hearing or a finding at court) in relation to a prescribed sexual or violent offence but the possibility of indefinite retention if a child is convicted of any offence at court. This legislative distinction seems anomalous but may be justified in particular cases. It should be reviewed in light of any evidence which becomes available. We make appropriate recommendations in Chapter 8 in relation to the review of retention periods generally, but also those relating to children.

7.7 For children under 12 who, under the Age of Criminal Responsibility (Scotland) Bill, will no longer be capable of being held criminally responsible, certain biometrics will not be obtained except where they are needed for the investigation of a very serious incident. Under the Government’s proposals, the capture or use of biometrics will have to be authorised by a Sheriff and biometric data taken from children under 12 will have to be destroyed as soon as they are no longer needed for the specific investigation and any ensuing Children’s Hearing proceedings – they will not be placed on the CHS or PND.

7.8 To assist with context, it should be noted that, in the last three years, only three children (all aged 11) have had biometric data captured and placed on the relevant database. In these circumstances, we do not consider it necessary to make any recommendations applicable to this group as the specific circumstances of each child and case will be considered each time, subject to judicial oversight.

7.9 For children aged 12 to 17 years, Police Scotland accept that, in each case, consideration should be given by the relevant officer as to whether it is proportionate and necessary to obtain biometric data for the purposes of recording on the biometric databases, with the best interests of the child specifically taken into account in the decision-making process. In doing this they should consider the wider context of the child’s offending behaviour, including their previous offences, their likelihood of reoffending and the nature and seriousness of their offending behaviour. Where the decision is to obtain and retain biometric data, the relevant officer should record the reasons. These reasons should be subject to review and scrutiny within a reasonable timeframe, both internally by supervising officers and by the Scottish Biometrics Commissioner.

7.10 We recommend that this should be the new approach for children in this age group. The legislation and Code of Practice should reflect that commitment. This approach would be consistent with the ‘Getting it Right for Every Child’ ^[103] framework and the ‘Whole System Approach’ for young people who offend. This forms the current ethos of Scottish youth justice policy.

7.11 Where formal measures are taken, a majority of cases involving children may be referred to the Children’s Hearings system, but we see no reason for present purposes to distinguish between children based on whether their cases are dealt with through the Children’s Hearings system or the courts. The approach to the capture and retention of biometric data for all children aged 12 to 17 should be the same and should remain distinct from the approach to the biometric data of adults.

7.12 Of note, in our meeting with two Members of the Scottish Youth Parliament, the issue of awareness was raised as a priority. They noted that the ‘retention period is less important [to young people] than awareness of rights regarding applications for deletion/challenge to extensions’ [quote from Member of Scottish Youth Parliament]. This highlights the issues raised in Chapter 8, below, on periods of retention; however, it is of particular relevance here given the general lack of knowledge amongst the Scottish public about their rights with regards to biometric data (considered above in Chapter 3) and the fact that this is likely to be exacerbated amongst children and young people.

7.13 In the interim period before any new legislative provisions take effect, we encourage Police Scotland and the SPA to review existing policy on children (voluntarily) in light of the IAG report.

7.14 If there are any processes introduced which depend on awareness, consent or meaningful participation, care should be taken to ensure that suitable adaptations are made, having regard to the vulnerability of the particular individual.

Recommendation 4

Distinct policies should be formulated for the acquisition, retention, use and disposal of the biometric data of children aged between 12 and 17. In each case involving a child, consideration should be given to the proportionality and necessity of obtaining biometric data for the purposes of recording on the biometric databases, ensuring that the best interests of the individual child are taken into account in the decision-making process. Where the decision is to obtain and retain biometric data, the reasons should be recorded and subject to review and scrutiny. Appropriate consideration should be given, and adaptation made, in the treatment of the data of those (children and adults) with specific vulnerabilities.