Footnotes

1 Westlaw: https://uk.westlaw.com/

2 Hudoc: HUDOC - European Court of Human Rights (coe.int)

3 LexisLibrary: Lexis®Library: Homepage (lexisnexis.com)

4 Note that 9 of the articles within the sample referred to emerging technologies more generally and as such did not specifically focus on any one of the three key types of technology (electronic databases, biometric identification systems, or surveillance systems and tracking devise.

5 Lawrie v Muir 1950 JC 19 at 26.

6 Lawrie v Muir 1950 JC 19 at 26.

7 See Diego Quiroz, SHRC, Human Rights and New Technology in Policing Issue Paper for the IAG, May 2021. Available: human-rights-and-emerging-technologies-in-policing-issue-paper-vfinalforonline.pdf (scottishhumanrights.com)

8 Scottish Biometrics Commissioner: National Assessment Framework for biometric data outcomes, January 2022 and s7, Scottish Biometrics Commissioner Act 2020. asp 8.

9 Steven J. Murdoch, Daniel Seng, Burkhard Schafer and Stephen Mason, The sources and characteristics of electronic evidence and artificial intelligence, Chapter 1, in Stephen Mason and Daniel Seng (eds) Electronic Evidence and Electronic Signatures, (5^th ed, 2021). pp1-50.

10 S v United Kingdom (30562/04); Marper v United Kingdom (30566/04) [2008] 12 WLUK 117

11 S7(3), Scottish Biometrics Commissioner Act 2020. asp 8. The Code of Practice can be accessed here: Code of Practice | Scottish Biometrics Commissioner.

12 See the recommendations of the Information Commissioner’s Office (2021) Mobile Phone Data Extraction by Police Scotland, Investigative Report, June 2021. Available at: ico-investigation-mpe-scotland-202106.pdf [Accessed 16 April 2022]. (Discussed at section X below). Section 37-44, The Police, Crime, Sentencing & Courts Act 2022.

13 Section 37(2) The Police, Crime, Sentencing & Courts Act 2022.

14 Section 37(5)(a) The Police, Crime, Sentencing & Courts Act 2022.

15 Section 37(7) The Police, Crime, Sentencing & Courts Act 2022.

16 A specific code of practice is to be developed in terms of Section 42, The Police, Crime, Sentencing & Courts Act 2022.

17 The protection of children is a recurring theme in the context of citizen-police relationships and merits specific attention.

18 S117(2) (Solemn proceedings), s119(2) (Summary) Criminal Justice & Licensing (Sc) Act 2010.

19 S117(3) (Solemn proceedings), s119(3) (Summary) Criminal Justice & Licensing (Sc) Act 2010.

20 S116 Criminal Justice & Licensing (Sc) Act 2010.

21 S121(2) Criminal Justice & Licensing (Sc) Act 2010.

22 Henderson (Colin) v Her Majesty's Advocate [2017] HCJAC 43 at para 23.

23 Quezada-Tavárez, K. Plixavra Vogiatzoglou, Sofie Royer, Legal challenges in bringing AI evidence to the criminal courtroom, (2021) Vol. 12(4) New Journal of European Criminal Law 2021, 531–551. DOI: 10.1177/20322844211057019.

24 Second Additional Protocol to the Convention on Cybercrime on enhanced cooperation and disclosure of electronic evidence Strasbourg, 12.V.2022

25 Council of European, Convention on Cybercrime Budapest, 23.XI.2001, Chapter II.

26 Article 6(1), Second Additional Protocol to the Convention on Cybercrime on enhanced cooperation and disclosure of electronic evidence Strasbourg, 12.V.2022

27 Article 7(1), Second Additional Protocol to the Convention on Cybercrime on enhanced cooperation and disclosure of electronic evidence Strasbourg, 12.V.2022

28 Tyler, T, Yuen, J. Huo. Trust in the Law: Encouraging Public Cooperation with the Police and Courts (Russell Sage Foundation, New York, 2002)

29 S42 Data Protection Act 2018.

30 S35(8) Data Protection Act 2018.

31 S49 Data Protection Act 2018.

32 S49(2) Data Protection Act 2018.

33 S50 Data Protection Act 2018.

34 Data Protection Act 2018, Section 35.

35 Data Protection Act 2018, Section 36(1)

36 Data Protection Act, Section 36(4).

37 Data Protection Act 2018, Section 31.

38 Reference by the Attorney General and the Advocate General for Scotland - United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [2021] UKSC 42

39 Section 1 (1), Equality Act 2010.

40 Scottish Biometrics Commissioner | What We Do | Scottish Biometrics Commissioner.

41 Home of Scottish Police Authority - Scottish Police Authority (spa.police.uk).

42 Schedule 19 Equality Act 2010.

43 R (on the application of Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058

44 R. (on the application of Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158; [2009] PTSR 1506, at paragraph 89.

45 Haque v Hackney London Borough Council [2017] EWCA Civ 4, at paragraph 86.

46 Artem Domnich and Gholamreza Anbarjafari, Responsible AI: Gender bias assessment in emotion recognition, arXiv:2103.11436v1 [cs.CV] 21 Mar 2021.

47 Article 6(3)(a), European Convention on Human Rights.

48 Aston, V., "State surveillance of protest and the rights to privacy and freedom of assembly: a comparison of judicial and protester perspectives", in European Journal of Law and Technology, Vol 8, No 1, 2017. Council of Europe, Guidelines on artificial intelligence and data protection adopted by the Committee of the Convention for the Protection of Individuals with regards to Processing of Personal Data (Convention 108) on 25 January 2019. Section 1.4. p8.

49 European Court of Human Rights, Factsheet: New Technologies. April 2022. Available: FS_New_technologies_ENG (coe.int).

50 AS1's (A Child) Application for Judicial Review, Re [2021] NIQB 11, R (on the application of Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058, R (on the application of C) v Commissioner of Police of the Metropolis [2012] EWHC 1681 (Admin), R (on the application of Catt) v Association of Chief Police Officers of England, Wales and Northern Ireland [2015] UKSC 9, R. (on the application of II) v Commissioner of Police of the Metropolis [2020] EWHC 2528 (Admin), R (on the application of M) v The Chief Constable of Sussex Police, Brighton & Hove [2021] EWCA Civ 42, R (on the application of Miller) v College of Policing [2021] EWCA Civ 1926, R (on the application of the National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department [2019] EWHC 2057 (Admin), R (on the application of Wood) v Commissioner of Police of the Metropolis [2009] EWA Civ 414 (See appendix 3 UK Case Law table for case law summaries). Also see Big Brother Watch v United Kingdom (58170/13) [2018] 9 WLUK 157, Gaughran v United Kingdom (45245/15) [2020] 2 WLUK 607, Liberty v United Kingdom (58243/00) [2008] 7 WLUK 25, RE v United Kingdom (62498/11) [2015] 10 WLUK 707 , S v United Kingdom (30562/04); Marper v United Kingdom (30566/04) [2008] 12 WLUK 117 (See appendix 4 International Case Law for case law summaries).

51 Scottish Biometrics Commissioner Act 2020, Section 34.

52 Scottish Biometrics Commissioner Act 2020, Section 2(1).

53 Code of Practice | Scottish Biometrics Commissioner [Accessed 6 June 2022]. The code of practice applies to the computerised data as well as to raw physical samples (e.g. blood, saliva etc).

54 Biometric data relating to national security issues will be addressed by the UK Biometric and Surveillance Camera Commissioner in accordance with s20 of the Protections of Freedoms Act 2012.

55 Scottish Biometrics Commissioner Act 2020, Section 2 & 3.

56 [2020] 1 W.L.R. 5037

57 [2020] 1 W.L.R. 5037

58 Bernard Keenan, Automatic facial recognition, and the intensification of police surveillance M.L.R. 2021, 84(4), 886-897

59 S34 Protection of Freedoms Act 2012.

60 The electronic monitoring in the context of penal measures has not been examined here. For the regulation of electronic monitoring in that context see the Management of Offenders (Scotland) Act 2019.

61 The Regulation of Investigatory Powers (Scotland) Act 2000, Section 1.

62 The Regulation of Investigatory Powers (Scotland) Act 2000, Section 1(2).

63 The Regulation of Investigatory Powers (Scotland) Act 2000, Section 1(3).

64 The Regulation of Investigatory Powers (Scotland) Act 2000, Section 1(5)(b).

65 The Regulation of Investigatory Powers (Sc) Act 2000, Section 6(2).

66 The Regulation of Investigatory Powers (Scotland) Act 2010. Section 10(2)(a).

67 The Regulation of Investigatory Powers (Sc) Act 2000, Section 8(1) and Section 10(1A) respectively.

68 HMA v Purves, 2009 SLT 296.

69 Council of Europe, Convention 108+ Convention for the protection of individual with regards to the processing of personal data (as amended 18 May 2018). Article 5(4).

70 Council of Europe, Convention 108+ Convention for the protection of individual with regards to the processing of personal data (as amended 18 May 2018). Article 6. Special categories of data are equivalent to those protected as ‘sensitive’ in the UK Data Protection Act 2018 s35(8).

71 Council of Europe, Convention 108+ Convention for the protection of individual with regards to the processing of personal data (as amended 18 May 2018). Article 9(1)(a).

72 Council of Europe, Convention 108+ Convention for the protection of individual with regards to the processing of personal data (as amended 18 May 2018). Article 11(1).

73 Council of Europe (2017) Study on the Human Rights Dimensions of Automated Data Processing Techniques (in particular Algorithms) and Possible Regulatory Implications. DGI(2017)12.

74 Council of Europe (2017) Study on the Human Rights Dimensions of Automated Data Processing Techniques (in particular Algorithms) and Possible Regulatory Implications. DGI(2017)12. p6.

75 Justice and Homes Affairs Committee, Technology rules? The advent of new technologies in the justice system, 1st Report of Session 2021–22, HL Paper 180. March 2022. p3.

76 Justice and Homes Affairs Committee, Technology rules? The advent of new technologies in the justice system, 1st Report of Session 2021–22, HL Paper 180. March 2022. p4.

77 Justice and Homes Affairs Committee, Technology rules? The advent of new technologies in the justice system, 1st Report of Session 2021–22, HL Paper 180. March 2022. p4.

78 Justice and Homes Affairs Committee, Technology rules? The advent of new technologies in the justice system, 1st Report of Session 2021–22, HL Paper 180. March 2022. p4.

79 UK Government, New UK initiative to shape global standards for Artificial Intelligence - GOV.UK (www.gov.uk), Press Release.

80 OECD Principles on Artificial Intelligence May 2019: Artificial intelligence - OECD

81 G20 AI Principles, June 2019: G20 AI Principles - OECD.AI; UNESCo Recommendation on Ethics of AI. November 2021. Available: Recommendation on the ethics of artificial intelligence (unesco.org)

82 Council of Europe's Work in progress (coe.int)

83 Information Commissioner’s Office (2021) Mobile Phone Data Extraction by Police Scotland, Investigative Report, June 2021. Available at: ico-investigation-mpe-scotland-202106.pdf [Accessed 16 April 2022].

84 Information Commissioner’s Office (2021) Mobile Phone Data Extraction by Police Scotland, Investigative Report, June 2021. Available at: ico-investigation-mpe-scotland-202106.pdf [Accessed 16 April 2022]. Para 2.1.1.

85 Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part [2021] OJ L149/10

86 Article 525, Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part [2021] OJ L149/10

87 Article 524, Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part [2021] OJ L149/10

88 AS1's (A Child) Application for Judicial Review, Re [2021] NIQB 11

89 R (on the application of Catt) v Association of Chief Police Officers of England, Wales and Northern Ireland [2015] UKSC 9. Also see, R (on the application of M) v The Chief Constable of Sussex Police, Brighton & Hove [2021] EWCA Civ 42.

90 [2020] EWCA Civ 1058.

91 Live facial recognition presents different concerns. See Information Commissioner’s Opinion, The use of live facial recognition technology in public places, 18 June 2021.

92 Joint investigation of Clearview AI, Inc. by the Office of the Privacy Commissioner of Canada, the Commission d’accès à l’information du Québec, the Information and Privacy Commissioner for British Columbia, and the Information Privacy Commissioner of Alberta, PIPEDA Findings 2021-001. February 2021.

93 Office of the Australian Information Commissioner, Commissioner Initiated Investigation into Clearview AI Inc. (Privacy) [2021] AICmr54 (14 October 2021).

94 ICO issues provisional view to fine Clearview AI Inc over £17 million | ICO [Accessed 18 April 2022].

95 Clearview contravened: principle 4.3 of Schedule 1, as well as section 6.1 of PIPEDA; section 7(1) of PIPA AB; sections 6-8 of PIPA BC; sections 6 and 12-14 of Quebec’s Private Sector Act and sections 44 and 45 of the LCCJTI.

96 Assessment of appropriateness was carried out applying s5(3) of the Office of the Privacy Commissioner’s Guidance on inappropriate data practices.

97 In violation of sections 45 of the LCCJTI.

98 Breaching principle 3.3 and 3.4, Schedule 1, Privacy Act 1988.

99 Breaching 6A Privacy Act 1988.

100 Breaching principle 3.5, Schedule 1, Privacy Act 1988.

101 Breaching principle 5, Schedule 1, Privacy Act 1988.

102 Beaching Principle 10.2, Schedule 1, Privacy Act 1988.

103 Since the time under examination by the ICO straddled before Brexit and after Brexit, infringements were assessed in relation to the GDPR and the UK GDPR. Infringements were found to have occurred in relation to the data protection principles set out in Article 5(1)(a) and Article 5(1)(e) GDPR and UK GDPR; (ii) the requirements of Article 6 GDPR and UK GDPR as to the lawful basis for the processing of personal data; (iii) the requirements of Article 9 GDPR and UK GDPR as to the processing of special category personal data; (iv) the requirements of Article 14 GDPR and UK GDPR as to the information that is to be provided by controllers to data subjects; (v) the requirement of Articles 15, 16, 17, 21 and 22 GDPR and UK GDPR in relation to the rights of data subjects; and (vi) the duty to carry out a Data Protection Impact Assessment under Article 35 GDPR and UK GDPR.

104 “Face Recognition Vendor Test, Part 3: Demographic Effects,” National Institute of Standards and Technology (NIST), December 2019 cited in the Joint investigation of Clearview AI, Inc. by the Office of the Privacy Commissioner of Canada, the Commission d’accès à l’information du Québec, the Information and Privacy Commissioner for British Columbia, and the Information Privacy Commissioner of Alberta, PIPEDA Findings 2021-001. February 2021.

105 Joint investigation of Clearview AI, Inc. by the Office of the Privacy Commissioner of Canada, the Commission d’accès à l’information du Québec, the Information and Privacy Commissioner for British Columbia, and the Information Privacy Commissioner of Alberta, PIPEDA Findings 2021-001. February 2021. Issue 2, para 7.

106 Nessa Lynch and Andrew Chen, Facial Recognition Technology: Considerations for use in policing, December 2021. Available: Facial recognition technology | Police use of emergent technologies | New Zealand Police accessed 16 April 2022. p13.

107 Office of the Australian Information Commissioner, Commissioner Initiated Investigation into Clearview AI, Inc (Privacy) [2021] AICmr54 (14 October 2021).

108 Office of the Australian Information Commissioner, Commissioner Initiated Investigation into Clearview AI, Inc (Privacy) [2021] AICmr54 (14 October 2021). Para 178.

109 ICO Monetary Penalty Notice: Clearview AI Inc Monetary Penalty Notice (ico.org.uk)

110 Recommendation CM/Rec(2020)1 of the Committee of Ministers to member States on the human rights impacts of algorithmic systems. Appendix. Para 12.

111 Recommendation CM/Rec(2020)1 of the Committee of Ministers to member States on the human rights impacts of algorithmic systems. Appendix.

112 Recommendation CM/Rec(2020)1 of the Committee of Ministers to member States on the human rights impacts of algorithmic systems. Appendix. Para 15.

113 Recommendation CM/Rec(2020)1 of the Committee of Ministers to member States on the human rights impacts of algorithmic systems. Appendix. para 2.

114 Recommendation CM/Rec(2020)1 of the Committee of Ministers to member States on the human rights impacts of algorithmic systems. Appendix. Para 4.

115 Council of Europe, Consultative Committee of the Convention for the Protection of Individuals with regard to the Automatic Processing of Personal Data. Guidelines on Facial Recognition, 28 January 2021, T-PD(2020)03rev4.

116 Council of Europe, Consultative Committee of the Convention for the Protection of Individuals with regard to the Automatic Processing of Personal Data. Guidelines on Facial Recognition, 28 January 2021, T-PD(2020)03rev4. p4.

117 Council of Europe, Consultative Committee of the Convention for the Protection of Individuals with regard to the Automatic Processing of Personal Data. Guidelines on Facial Recognition, 28 January 2021, T-PD(2020)03rev4. p4.

118 S7, Scottish Biometrics Commissioner Act 2020, Section 34. The Scottish Biometrics Commissioner’s role is marginally limited by s20 of the Protection of Freedoms Act 2012, which affords the Secretary of State the authority to appoint a Commissioner for the Retention and Use of Biometric Material who will address those issues relating to national security.

119 Policy on Trial or Adoption of New Policing Technology | New Zealand Police

120 New Zealand Police Expert Panel on Emergent Technologies, Terms of Reference, May 2021. Available: expert-panel-emergent-technologies-tor.pdf (police.govt.nz).

121 Advisory panel on emergent technologies | New Zealand Police | New Zealand Police

122 Police use of emergent technologies | New Zealand Police

123 KM_C554e06673-20200925115807 (police.govt.nz)

124 Directive in Automated Decision Making, 2019: Directive on Automated Decision-Making- Canada.ca

125 Algorithmic Impact Assessment Tool - Canada.ca

126 Justice and Homes Affairs Committee, Technology rules? The advent of new technologies in the justice system, 1st Report of Session 2021–22, HL Paper 180. March 2022. p4.

127 Justice and Homes Affairs Committee, Technology rules? The advent of new technologies in the justice system, 1st Report of Session 2021–22, HL Paper 180. March 2022. p4.

128 UK Government, New UK initiative to shape global standards for Artificial Intelligence - GOV.UK (www.gov.uk), Press Release.

129 R (on the application of Miller) v College of Policing [2021] EWCA Civ 1926 at para 56.

130 R (on the application of Wood) v Commissioner of Police of the Metropolis [2009] EWA Civ 414 at para 100.

131 This decision has been subject to academic criticism on the basis that it is opens the door to covert surveillance for law enforcement purposes with the illusion of boundaries between private and state interference. See Allison M Holmes, Citizen led policing in the digital realm: paedophile hunters and article 8 in the case of Sutherland v Her Majesty's Advocate, M.L.R. 2022, 85(1), 219-231.