Policy paper

Government response to the NDNAD Ethics Group annual report

Published 20 July 2017

Introduction

The Government would like to thank the Group for its Annual Report. The Ethics Group’s Triennial Review demonstrated the continued need for an independent body to help and advise government on the ethical collection, use and retention of DNA and we are grateful to the Group for their continued efforts. We value the contribution the Group makes and recognise the knowledge and expertise the Group has in this field, which is why we have expanded their remit to also cover Forensic Science and Biometrics. The new arrangement will help to provide better oversight of these sensitive areas – which are critical to tackling crime and keeping citizens safe – but if misused undermine public confidence.

The report touches on some very important issues, which we have addressed below in our response. However, the Group also had a role in considering the ethical implications of international exchange of data. In developing the Business and Implementation Case, we carried out a consultation on the ethical issues that could arise from Prüm data, and worked with the Ethics Group to provide information about the Prüm Decisions. Parliament decided to opt in to Prüm, as it is an important aid in tackling crime, but on the proviso three safeguards would be included in legislation. These safeguards protect UK citizens, and ensure that the same standards used domestically are used with Member States. An independent Prüm Oversight Board will ensure that Prüm operated in a just and effective manner: both the Biometrics and Information Commissioners will have seats on the Board.

It is important we equip our law enforcement agencies with the capabilities they need to protect the public in a way that is proportionate and respects privacy. As we know, criminals have little regard for international borders, which is why, with the Group’s support, we were confident we should opt in to the Prüm Decisions.

The Government’s response is set out below:

Recommendation 1

The retention times directed in the Protection of Freedoms Act 2012 for the retention of DNA samples and fingerprints should also be applied to the retention of custody images.

Government Response

While the Government accepts that the indefinite retention of custody images cannot be justified it does not believe that the retention regime in the Protection of Freedoms Act 2012 for DNA profiles and fingerprints should also be applied to the retention of custody images.

Unlike DNA and fingerprints, a facial image’s utility decreases over time making it difficult to draw a clear line on when images should no longer be retained. They are also generally less intrusive than DNA and fingerprints, and are used in different ways by the police. Further, the legal powers in respect of custody images are not the same as for DNA and fingerprints; the Police and Criminal Evidence Act 1984 (PACE) allows the former to be taken from anyone who is detained following an arrest whereas fingerprints and DNA may only be taken from a person arrested for a recordable offence (notwithstanding there are other circumstances in which DNA and fingerprints may be taken).

The technical systems through which custody images are taken and retained are also different to those used for DNA and fingerprints. Custody images are held both on the Police National Database and on 43 force custody systems -there is no central repository of custody images onto which a PNC driven deletion regime can be applied and even if there were the differential legal regime for the taking of custody images means that an image may be taken without there being a PNC conviction from which to drive a retention/deletion decision.

The regime governing the retention of custody images is set out in the Code of Practice on the Management of Police Information (‘MOPI’) and guidance contained in the College of Policing’s Authorised Professional Practice (‘the APP’). The Home Office made recommendations for changes to this regime in the Custody Images Review, which was published on 24 February.

The principal recommendation from the Review is to allow ‘unconvicted persons’ to apply for deletion of their custody image, with a presumption that this will be deleted unless retention is necessary for a policing purpose, and there is an exceptional reason to retain it. In practice, this will mean that people could apply to chief officers for their image to be deleted where they have not been convicted of the offence in relation to which their image was taken.

Further, the review recommends that there should be an even stronger presumption of deletion upon application for unconvicted persons whose image was taken when they were under 18 years old (whose image may only be retained on review where there are highly exceptional reasons to do so). These two recommendations bring custody images more into line with current POFA arrangements.

Where the image of an unconvicted person is not deleted, or where no application is received, the review recommends that it should be reviewed in accordance with the periods set out in the College of Policing’s Authorised Professional Practice Guidance (‘the APP’), with a presumption of deletion at the next review unless there is an exceptional reason to retain the image (or a strong presumption of deletion and highly exceptional reasons in the case of a person whose image was taken when they were under 18).

The core recommendations will be implemented through changes to the APP.

Recommendation 2

Robust governance structures should be in place for all police databases that contain biometric identifiers, including custody images. Careful consideration should be given to the most appropriate mechanisms to facilitate take-up and compliance with a biometrics ethics framework.

Government Response

We agree, that is why we are expanding the remit of the Ethics Group to include the consideration of custody images, as well as forensic science and biometric information. We take the right to privacy very seriously - public trust, legal requirements, regulation and ethical principles are always at the forefront of this work.

There are other areas that could be improved and made more efficient. The biometric landscape and the governance regime overseeing the use of biometrics is complex. We have already taken one step towards consolidation as the National DNA Database Strategy Board has been expanded to the National DNA & Fingerprint Databases Strategy Board, and has taken fingerprints into its remit to provide legal, operational and ethical oversight of IDENT1 as well as the National DNA Database.

We are also looking at the technical perspective. CAST is engaged in the development of international standards related to this which contributes to the optimisation of use of face recognition. CAST works closely with the Home Office Biometrics Programme to provide advice on facial image standards, face recognition technologies and use cases, and with the Forensic Science Regulator on developing new processes and standards for police use of facial images.

We are quite clear that the Biometrics Commissioner, the Forensic Science Regulator and of course the Ethics Group all have roles in overseeing use of biometrics. There is a duty on all bodies as well as the Home Office to reassure the public that appropriate safeguards are in place.

Recommendation 3

The EG recommended that the Cabinet Office incorporates continuous ethical consideration into the ‘Ethical Framework for Use of Data’.

Government Response

We very much welcome the Group’s input to the framework and were grateful for the opportunity to discuss this with the Group. The Guidance brings together the applicable data law and guidance in one place and gives six principles to guide government on how to use data with transparency, and minimal impact on the rights of individual citizens . At its heart, the framework is about weighing up the public benefit against the risks.

We agree with the EG’s recommendation as public attitudes to how data is used do not stand still. Therefore our framework has to change also in order to keep pace. The framework is designed to be iterated as it’s used, we welcome feedback and input from stakeholders and have committed to publish updated versions of the framework as new information and research emerges.

We also agree that ethics should be considered throughout the lifetime of a project and Principle 5 of our framework recommends that all government projects have appropriate oversight and accountability for their entire duration to ensure the questions in the framework are kept under constant review. We are aware that there is more to do, but we welcome the recommendation and will address this further in the next iteration.

Recommendation 4

New NGS techniques must be considered in a stepwise fashion, both practically and ethically. A regulatory framework should be developed, in tandem with technology development, to oversee the ethical issues and the collection, compilation, storage, sharing and use of information and data derived from NGS technologies.

Government Response

We are grateful to the Group for their focus on this important technique. We take the integrity of the Criminal Justice System (CJS) seriously and the use of DNA in the CJS is closely monitored through the National DNA & Fingerprint Databases Strategy Board, the independent Forensic Science Regulator the Biometrics Commissioner, and the Ethics Group itself.

We agree with the Ethics Group that the practical and ethical implications of NGS should be considered in parallel with the development of the technology. But where techniques exist that can deliver quicker and more accurate results cheaply, then there is, a clear duty on government and law enforcement to consider its application. We are supporting the police-led Transforming Forensics Programme through £5.9 million from the Police Transformation Fund. The programme will explore ways to reshape police forensics in a way that improves and sustains local service delivery but with clear national governance and leadership. It will provide police forces with earlier access to the latest technology to deliver rapid and robust forensic services which meet the current and future needs of the public.

While NGS techniques are at varying stages of development we do not anticipate them being used widely in the CJS for some time. As the Group has pointed out, we already have a robust regulatory framework in place to oversee the use of Short Tandem Repeat analysis and our intention is to ensure new forensic techniques that could be used to develop evidence for the CJS are all subject to a rigorous quality management controls. Wherever possible the Forensic Science Regulator expands the Codes of Practice to drive up quality standards in new practices.

We will continue to work with the Ethics Group, FSR, Biometrics Commissioner and other stakeholders to consider these issues and ensure NGS techniques are introduced through a managed approach and regulated appropriately. We look forward to working with the Ethics Group on this more in the future.