Corporate report

BFEG meeting minutes: 8 June 2022

Updated 16 June 2023

Biometrics and Forensics Ethics Group

Notes of the nineteenth meeting held on 8 June 2022, at Crowne Plaza, Birmingham via videoconference.

1. Welcome and introductions

1.1 Mark Watson-Gandy, Chair, welcomed all to the nineteenth meeting of the Biometrics and Forensics Ethics Group (BFEG) – see Annex A for attendees and apologies.

1.2 The Chair introduced Professor Niamh Nic Daeid, who had been appointed to the BFEG since the last meeting.

2. Notes of the last meeting, action log, matters arising and Chair’s update

2.1. The minutes of the December meeting, the last meeting of the BFEG, had been circulated and no corrections were noted. The minutes would be finalised and published by the secretariat.

Action 1: Secretariat to publish the minutes of the previous meeting.

2.2 A review of open actions from previous meetings can be found in Annex B.

2.3 All other actions were complete.

2.4 The Chair provided an update on the BFEG workplan. It was noted that this plan would be updated following agreement of the 2022/23 commission.

2.5 The Home Office Biometrics Ethics Group were expected to meet in and would review a number of items for the Biometrics programme including future biometrics self-enrolment. BFEG members who had provided advice on the biometric self-enrolment trials would be invited to join the HOB Ethics Working Group meeting.

2.6 The Biometrics and Digital Forensics Working Group had provided their commission to the digital forensics policy team at the end of 2021. The group were asked to consider contributing to the consultation on the draft code of practice on mobile data extraction. The deadline for the consultation was the 12 July 2022.

Action 2: Members to submit comments on the mobile data extraction code of practice consultation to the secretariat by 5 July 2022.

2.7 The Complex Datasets Working Group continued to support the child abuse investigation database transformation programme.

2.8 The terms of reference (TOR) had been created and agreed by the Data Ethics Advisory Group (DEAG). This TOR established a strong link with the National Police Data Lab (NPDL) but also allowed for receipt of work from other areas of the Home Office (HO). Regular meetings with the NPDL have been established with the next one expected at the end of June. Work on the NPDL ethical guidance is awaiting an update to the guidance following completion of some initial proof-of-concept pilots.

2.9 A group of BFEG members had been working with the Future Borders team within the HO on the biometric self-enrolment trials and the Chair proposed that this group of membership of this group be formalised as further work was expected to be received from the Future Borders team.

2.10 The comments on the Scottish Biometrics Commissioner’s code of practice were submitted to the consultation at the end of last year.

2.11 The BFEG were informed that a very narrow consultation on a temporary annex, Annex G, of PACE code A was open. Code A sets out the police’s powers to search a person or vehicle without first making an arrest. New revisions were necessary to bring the code in line with the new Police, Crime, Sentencing and Courts Act (2022) which introduced Serious Violence Reduction Orders (SVRO). SVRO’s give police powers to stop and search individuals with a previous conviction where a knife or offensive weapon was present. The members had expressed an interest in commenting on this consultation and were asked to submit any comments to the secretariat by 20 June.

Action 3: Members to submit comments on the PACE consultation to the secretariat by 20 June 2022.

3. Biometrics and Surveillance Camera Commissioner’s update

3.1 A representative from the Office of the Biometrics and Surveillance Camera Commissioner provided the BFEG with an update from the Commissioner. The main points were:

• The revised version of the Surveillance Camera Code of Practice was laid in parliament in November 2021 and came into effect on 12 January 2022

• The Department for Digital, Culture, Media and Sport (DCMS)consultation on reforms to the UK’s data protection regime, which included proposals on simplifying the oversight framework for police use of biometrics and overt surveillance, closed on 19 November 2021. A formal response to the consultation was expected.

• The Office for the Biometrics and Surveillance Camera Commissioner, in conjunction with Professor William Webster (CRISP) was planning a facial recognition event for 14 June 2022 at the London School of Economics.

• Following discussions with Baroness Williams regarding ethical procurement of surveillance camera systems, the Commissioner was engaging with the Cabinet Office on the Public Procurement Bill.

• The Commissioner had drafted human rights and ethics guidance for police and local authorities which had gone out to stakeholders for consultation.

3.2 The representative was asked whether there were plans for further policy engagement between the BSCC and the Information Commissioner. This would be taken to the BSCC and a response provided to the BFEG.

3.3 With regard to the ethical procurement of surveillance camera systems the representative was asked what level of unethical practice would exclude procurement from a specific company. The BFEG were informed that the Public Procurement Bill would not exclude specific companies, however the provisions within the bill would result in certain companies being excluded. It was also clarified that security concerns would result in exclusions as well as ethical concerns.

4. Policy update

4.1. The group had received an update from Data and Identity Policy ahead of the meeting and the main points were:

• The government had consulted on a draft Data Reform Bill, including proposals to simplify the oversight framework for the police use of biometrics and overt surveillance. The government response to the public consultation was delayed and a link would be circulated to the BFEG as soon as it was published.

• Guidance on custody images had been agreed by the National Police Chief’s Council (NPCC) and police forces had been asked to upload the guidance to their websites and promote its implementation.

• The report on the Justice and Home Affairs Committee inquiry into the use of new technologies on law enforcement was published on 30 March 2022 and Data and Identity Policy were considering how best to respond to the concerns raised, in consultation with key stakeholders.

• The Police, Crime, Sentencing and Courts Act received Royal Assent on 28 April 2022. This act included 2 provisions on Biometrics Recall Powers, to recall someone to provide their biometrics if not taken on first arrest, and Information Extraction, statutory powers for the extraction of information from electronic devices. A code of practice to accompany the information extraction powers had been drafted and the public consultation on this draft was open.

• Work continued towards the commencement of the Forensic Science Regulator Act.

4.2 On the Data Reform Bill the policy representative was asked whether the BFEG would be engaged with during drafting of the legislation. The representative responded that legislation would not be drafted until the bill was introduced however, once the government response to the public consultation was published the BFEG could provide comments on the response and feed into the policy process.

4.3 The policy representative was asked whether, in relation to the guidance on custody images, police forces would promote the information on deletion of custody images to people in custody. The representative replied that this could be promoted in custody suites and forces may choose to provide to arrestees, there was no legal requirement to inform people that their custody images could be deleted. The College of Policing guidance on retention, review and disposal included guidance on custody images.

4.4 It was suggested that the information on deletion of custody images could be provided to arrestees by legal representatives. The policy representative acknowledged this suggestion and would liaise with the custody images group and Ministry of Justice on this point.

4.5 The BFEG highlighted the importance of ensuring that people are provided with information about deleting their custody images.

4.6 The representative was asked about the timescale for the government response to the Justice and Home Affairs and the BFEG were informed that there was no set timescale.

2022/23 Commission

4.7 The BFEG had received the draft 2022/23 commission for agreement. The commission requested continuation of the work of 2021/22 and asked the BFEG to propose key topics to be considered for additional commissions. A workshop session would be run to identify topics for the additional commissions.

5. Forensic Information Databases Strategy Board (FIND SB) update

5.1 The group received an update from the Forensic Information Databases Strategy Board (FIND SB). The main points were:

• The last FIND SB update meeting was held on 23 March 2022. The next board meeting was scheduled to be held on 15 June 2022.

• The UK re-evaluation by the EU for both DNA and fingerprint exchange capabilities had been completed. The UK would be able to exchange DNA and fingerprint records through the UK-EU agreement after June 2022.

• The FIND SB agreed that intelligence information on potential phenotypic traits (such as possible hair colour and ethnicity) could be added to the missing persons DNA database for unidentified bodies. The data would not be searchable but could help with identification of unidentified bodies by supporting physical appearance data already recorded by the Missing Persons Unit.

• The Missing Persons policy had also been updated to restrict searches of DNA from babies abandoned at birth to identity just the mother with a view for a welfare check.

• The Vulnerable Volunteer DNA Retention consent form had been finalised by FINDS in consultation with the BFEG. It has been circulated to all forces for comment and confirmation of the time frame to incorporate into their processes.

• The DNA leaflet that BFEG assisted with drafting had been added to the FINDS quality management system as a controlled document to be reviewed on a yearly basis.

5.2 The FIND SB representative was asked about the accuracy of the phenotypic tests being added to the missing persons. It was explained that the information would be recorded as a probability for intelligence purposes, not confirmation, and released to forensic service providers where appropriate to support the information held by policing and the National Crime Agency (NCA). The result of the phenotypic test would not be reported as fact and there would be sensitive handling in its use. Phenotypic information was useful for generating further information from remains such as skeletal remains where the physical attributes such as hair colour and ethnicity were less apparent.

5.3 The representative was also asked about how vulnerable people are identified. The representative would liaise with the vulnerable person (VP) lead on this issue.

6. Genetic genealogy

6.1 The NPCC position on the use of investigative genetic genealogy for the investigation of crime in the UK has been that the method should not be used.

6.2 In September 2020, the BFEG published a report on the use of genetic genealogy to assist with solving crimes. One of the findings of this report was that the initial use of genetic genealogy in the identification of otherwise unidentifiable bodies (similar to the DNA Doe project in the USA), would allow the potential of this method to be tested in a UK setting, while avoiding some of the more contentious issues.

6.3 A working group had been established by the FIND SB to explore the practical and ethical implications of genetic genealogy and assess the potential of this investigative technique for UK policing. This working group included a wide range of stakeholders, including members of the BFEG.

6.4 The BFEG were provided with an update on the progress of this working group by the Chair of the working group.

6.5 Research was planned to review the existing genetic genealogy technology and assess its suitability for processing forensic samples, where DNA is degraded or only a small amount is available.

6.6 There were significant ethical considerations to address with this research and advice from the BFEG would continue to be sought.

6.7 The working group Chair was asked if the BFEG could review the data protection impact assessment (DPIA) for the project. The DPIA would be shared with the BFEG for comment.

7. Forensic Science Regulator activity and issues

7.1 The Chair welcomed the Forensic Science Regulator (FSR), Gary Pugh, to the meeting. The FSR provided the BFEG with an overview of the Forensic Science Regulator Act 2021 and plans for implementation.

7.2 Forensic science is a critical and important part of the investigation of crime and the administration of justice not only to identify offenders and provide expert evidence to the courts, but it is one of the strongest safeguards against false allegation and wrongful conviction.

7.3 The current regulatory model for forensic science requires organisations to have effective accredited quality management system that ensures the quality, competence and technical validity of its operations and meets the requirements set out in the Forensic Science Regulator’s codes of practice and conduct.

7.4 Organisational competence in the operation of quality management systems in forensic units in the UK is assessed by the United Kingdom Accreditation Service (UKAS) against international standards (e.g. ISO17025) and guidance.

7.5 Within the provision of the FSR Act 2021, the regulator must prepare and publish a code of practice on forensic science activities in England and Wales. The FSR had so far identified 54 potential forensic science activities.

7.6 Before publishing a code of practice, the regulator must consult appropriate individuals, including individuals who are representative of, or are likely to be, carrying on activities to which the proposed code will apply. The FSR Act was expected to be released for public consultation in August 2022.

7.7 The code would be admissible in evidence in criminal and civil proceedings in England and Wales.

7.8 The regulator was asked about the difference between the statutory code of practice and the existing process in terms of presenting evidence in court. The FSR responded that as the code would be statutory code the courts would be able to take into account of a failure to act in accordance with the code in challenging the admissibility of forensic science evidence.

7.9 The regulator was asked whether a practitioner could only be compliant with the codes if they were also accredited. The FSR replied that this would depend on the forensic science activity (FSA) as some FSAs did not have specific accreditation requirements but would still be covered by the act. These were the newer areas within forensic science which had not been regulated, and the standards had not yet been decided.

7.10 It was also asked how sole practitioners who undertake work for the defence would be affected by the statutory code. The FSR responded that a new FSA had been created covering casework review that would be covered under the act and the code but would not be the subject of the first version of the code.

7.11 The FSR informed the BFEG that the enforcement process would only be triggered if the FSR was of the view that a person carrying out a forensic science activity created a substantial risk to an investigation. The FSR had been advised by legal representatives that substantial risk in law means theoretical risk, so the bar was very low. The enforcement powers would range from issuing compliance notices to prohibiting an individual from performing FSAs. The BFEG Chair asked if “substantial risk” was the amount of risk, or the amount of effect. The FSR responded it was the effect and the impact of the risk.

7.12 The FSR was asked if there had been collaboration with Scottish and Northern Irish authorities on compliance and enforcement in forensic science. The FSR confirmed the FSR Act only applied to England and Wales. The FSR had discussed this with the relevant directors in Scotland and Northern Ireland, who expressed an interest in working to the code, however this would have to be a matter for government and the devolved administrations.

7.13 The FSR’s approach to ensuring compliance with the code was to encourage self-referrals including near miss failures across all organisations. There would be a requirement for a senior accountable individual at chief officer or director level to be established within each forensic organisation who would be responsible for managing risk.

8. Introduction to the Forensic Archive

8.1 The Chair welcomed a representative from the Forensic Archive Ltd to the meeting, who provided the BFEG with an overview of the Forensic Archive.

8.2 The Forensic Archive Ltd (FAL) was set up to manage the archive of the Forensic Science Service (FSS) on its closure in 2012. It is a GovCo, wholly owned by the HO.

8.3 The FAL holds forensic case files, retained material (such as microscope slides, tape-lifts, recovered hairs and debris, body-fluid stains excised from fabrics) and DNA extracts.

8.4 It was initially set up as closed archive, to maintain the old FSS records only. This was changed when a forensic science provider, went into liquidation. It was then decided that the status of FAL should be changed from a closed archive to an ‘archive of last resort’, available to assist the criminal justice system (CJS).

8.5 A recent Transforming Forensics (TF) report on retention and archiving highlighted the issues with forensic archiving across the CJS, including Forensic Science Providers (FSPs) and police forces undertaking their own forensic work and recommended measures for improvement. The National Police Chief’s Council (NPCC) had also produced a guidance document for retention of forensic samples.

8.6 The representative was asked whether the FAL was accredited, and it was explained that the FAL was accredited by the British Standards Institution (BSI) to the ISO 9001: 2015 standard, but this was for its quality management systems etc, rather than specifically for forensic archiving. There is not currently a forensic archive standard offered within the UK, although they do exist in other countries such as Australia.

8.7 The BFEG discussed whether the new FSR Act could assist in addressing some of the issues identified in archiving and retention as there could be a potential risk to the CJS if forensic samples were degraded or unaccounted for particularly for appeal cases and unsolved cases. The FAL representative responded that the TF report had been shared with the NPCC who were considering the recommendations.

8.8. A member suggested incorporating best practice guidelines for forensic sample retention and archiving from other jurisdictions, such as Australia, and asked if the FAL had established a relationship with the Human Tissue Authority (HTA). The FAL representative replied that the FAL was licenced (and audited) by the HTA, and more work was required on the forensic retention and archiving across the CJS, particularly by policing, before standards could be developed and implemented for accreditation.

9. AOB

9.1 The next BFEG meeting would be a virtual meeting, held on 21 September 2022.

Annex A – List of attendees and apologies

{#:Annex-A}

Present – all in person or via videoconference

• Mark Watson-Gandy - Chair
• Simon Caney - BFEG member
• Richard Guest – BFEG member
• Julian Huppert – BFEG member
• David Lewis – BFEG member
• Mark Jobling - BFEG member
• Nina Hallowell – BFEG member
• Nóra Ni Loideain – BFEG member
• Sarah Morris – BFEG member
• Thomas Sorell - BFEG member
• Denise Syndercombe Court - BFEG member
• Charles Raab – BFEG member
• Peter Waggett - BFEG member
• Anne-Maree Farrell – BFEG member
• Niamh Nic Daeid – BFEG member
• Juliette Verdejo - FINDS Unit, HO
• Katie Scotton – Biometrics and Surveillance Camera Commissioner
• Gary Pugh, Forensic Science Regulator
• Alison Fendley, Forensic Archive Ltd
• Laura Collison – Data and Identity Unit, HO
• Nadine Roache - BFEG Secretariat, HO
• Jennifer Guest - BFEG Secretary, HO

Apologies

• Liz Campbell - BFEG member
• Adil Akram – co-optee
• Louise Amoore - BFEG member
• Alex MacDonald – Data and Identity Unit, HO
• Cheryl Sinclair, Data and Identity Unit, HO

Annex B – Review of open actions from previous meeting

{#:Annex-B}

December 2021

Action 1: Secretariat to publish October meeting minutes. This has been completed.

Action 2: RG, PW and LA to write a report on the biometric self-enrolment trial for the future biometric steam and share with BFEG for comment. This has been complete Action 3: BDF WG to finalise report on initial commission and share with Policy lead. This has been completed.

October 2021

Action 2: FINDS to share the data protection impact assessment (DPIA) for the International Exchange Policy with the BFEG if possible.

FINDS have approached the international partners asking if the DPIA could be shared. Action ongoing.

Action 3: A glossary to be created to accompany DNA consent forms to explain technical terms. It was agreed that the sampling factsheet would be added to FINDS quality management system as a version controlled document, then updated with any additional glossary information required for the VPDD consent form. FINDS would then re-issue to forces and advise that the sampling factsheet/glossary should always be provided to consenting individuals, particularly for the VPDD. Action complete.

Action 5: Continue to work with DDaT to define the ethical principles and processes for using the NPDL capability. Draft ethical framework being reviewed by the NPDL team following recent proof of concept trials. The draft framework will be shared with the DEAG in due course. This action was closed and would be tracked on the BFEG workplan.

Action 7: Secretariat to develop a template to provide to presenters based on the BFEG ethical principles. Action ongoing.

June 2021

Action 5: Secretariat to arrange a discussion on futures in biometric recognition technology (e.g. voice), liaise with Alex and Ian Betts. Action ongoing.

Action 3: FINDS to provide an update on efficacy and false positive matches following the introduction of the new familial DNA policy. FINDS had carried out some review work on the requirements that Forensic Service Providers (FSPs) need to meet to conduct National DNA Database (NDNAD) familial searches and would begin to consider how to assess the impact of the new policy. Action ongoing.

March 2020

Action 3: Complex Datasets Working Group to produce general guidance on ethical issues in binary classification systems. The secretariat was working with relevant stakeholders to identify useful areas for general guidance. Action ongoing.