Scott recommends biometric data code of practice

22nd March 2018 | criminal law , government-administration , human rights

A new code of practice on retaining DNA, fingerprints and images has been recommended by the Independent Advisory Group on Biometric Data. 

The group, established by Justice Secretary Michael Matheson last year and chaired by solicitor advocate John Scott QC, was asked to look into how such data are used by Police Scotland. It examined the acquisition, retention, use and disposal of data such as DNA, fingerprints, facial and other photographic images, and what improvements could be made to the regime governing this.

Recommendations include:

  • creating a new code of practice on the acquisition, retention, use and disposal of biometric data;
  • reviewing the legal rules on retention of data in the Criminal Procedure (Scotland) Act 1995 to consider questions of proportionality and necessity;
  • encouraging a "national debate" to improve public understanding of and confidence in the use of biometric data;
  • establishing an independent Scottish Biometrics Commissioner to monitor compliance with the code.

Mr Matheson commented: “While the 2016 independent report of the HM Inspector found that Police Scotland was making proportionate and necessary use of biometric data and technologies, it identified a need for improved oversight of these arrangements.

"The Scottish Government accepts the group’s report and the thrust of its recommendations. While the creation of a new Biometrics Commissioner to monitor compliance with a new code will require careful consideration and discussions with the parliamentary authorities, it is one that we accept in principle.

"The public should continue to have confidence in how their information is held and I hope that the publication of this report will kick-start a wider debate on biometric data and how it is best used to help keep our communities safe."

Mr Scott added: "Just under 10 years ago, the European Court of Human Rights commented with approval on the regime in Scotland for regulating the retention of DNA samples and profiles. Around the same time, the Scottish Government commissioned an independent review into the regulation of matters relating to DNA and fingerprints which led to necessary changes in the law.

"Since then, there have been continuing developments in these and other areas of biometric technologies. This review offers the opportunity to take account of these and future developments and develop a framework for the regulation of all policing aspects of biometric data, reflecting the significance of such data in policing as well as all ethical and human rights considerations.”

Police Scotland Assistant Chief Constable Gillian MacDonald confirmed that Police Scotland, "having been a key contributor to the work of the Biometrics Independent Advisory Group, supports all of the recommendations and will continue to play a significant part in any future work".

SHRC welcome

The proposed code has also been welcomed by the Scottish Human Rights Commission. Judith Robertson, chair of the Commission, said: "Biometric data has important implications for privacy and other human rights such the presumption of innocence. This is a timely moment as it allows Scottish law and policy in this area to develop in a human rights-based, ethical manner which gives appropriate weight to considerations of public protection on the one hand, and privacy and other relevant human rights on the other.

"The Commission welcomes the introduction of a code of practice based on legislation and an ethics advisory group which will provide a valuable forum for considering the ethical impact on society, groups and individuals of using biometric technologies. We also strongly support the need for an independent Scottish Biometrics Commissioner answerable to the Scottish Parliament and adequately resourced to ensure trust, transparency and accountability for the collection of personal data.

"The Commission was encouraged by the well-informed and participatory process undertaken by the Chair of the Independent Advisory Group. There is a continuing need to raise public awareness and confidence in other areas of technology where data is gathered and used. Human rights should continue to be mainstreamed into the strategies, policies and operational processes of policing as well as in other public and private organisations that use modern technologies and personal data.”