Legal frameworks and ethical standards workstream report: Final Report

1. Introduction

1.1 This is the report produced by workstream 1 of the IAG on Emerging Technologies in Policing to the Scottish Government. Since its announcement in 2019, the IAG has gathered evidence, views and sought further research and opinions on several topics relevant to the use of technology by Police Scotland. As part of this work, this workstream has focussed on legal and ethical aspects of police use of technology, including existing legal frameworks, good practices both at home and elsewhere, and the role of ethics panels.

1.2 The focus of this report is to discern what factors and what premises Police Scotland should engage when making decisions about using modern technology in policing. In this context, the past five years are of particular interest as there was a significant commitment by Police Scotland in their strategic framework, Police Scotland's Policing 2026 Strategy and its implementation plan, to engage in digital policing and their approach to cyber crime. This resulted in far greater engagement with technology internally and significant external engagement with stakeholders and regulatory bodies. The use by police of all technology within the general computing age engaged challenges of both scope and scale in terms of how police perceived their authority and how that authority was restricted by law and ethics. With incredibly rapid acceleration of technology within the past 10 years Police Scotland has expressed a need to increase their technological capabilities in order to fulfil their statutory role of prevention, detection and apprehension of crime. This involves digital forensics, biometrics; field equipment and information infrastructure, all of which employ the processing of personal data within the meaning of the Data Protection Act 2018. There continues to be an expectation that the accelerating pace of technological advance will place demands upon the Police to employ new, more modern technological solutions and methods. Examples of new technologies include facial recognition software; biometrics, data analysis; robots (including drones); enhanced body-worn cameras; shotspotter; thermal imaging; smarter cruisers; automatic license plate recognition and artificial intelligence to analyse data. This term covers both AI and non-AI tech. We have also seen the establishment of the independent Scottish Biometrics Commissioner, via the Scottish Biometrics Commissioner Act 2020, whose general function is to support and promote the adoption of lawful, effective, and ethical practices regarding biometric data for criminal justice and police purposes.

1.3 This paper considers current police engagement with certain technologies, informed by their history and contemporary commentary. Within the past four years Police Scotland have been challenged and criticised with regard to its knowledge, understanding and implementation of human rights standards to guide its policing. This is in light of its status as a unique public body with a fundamental basis in human rights law (i.e. fulfilling Art 2 of the ECHR, the right to life) as well as its own stated aims and strategy of operating rights-based policing. This critique has come from: Parliamentary committees; National Human Rights Institutions (NHRIs); statutory inspection bodies; and stakeholders. Tasked with conducting an independent review, Lady Elish Angiolini published two reports in Policing - complaints handling, investigations and misconduct issues: independent review - 2019 preliminary report and Policing - complaints handling, investigations and misconduct issues: 2020 independent review posing some critical questions about the structure of policing infrastructure and its compliance with legal requirements of transparency and independence. On 13 June 2019, the Cabinet Secretary for Justice appeared before the Policing Sub-Committee of the Scottish Parliament to respond to evidence on Police Scotland's proposed use of Digital Triage Devices, known as cyber kiosks. This followed a year of deliberations and investigations into their use, during which Police Scotland were forced to suspend the use of these devices while the Justice Committee's Policing Sub-committee (JCPS) queried the lack of a legal basis for their use. At this appearance the Cabinet Secretary also announced that he would set up an IAG to examine Police Scotland's use of Emerging Technologies, of whose outputs this report forms part.

1.4 Incorporating academic, operational, legal and policy based expertise, this IAG workstream explored the recent history of policing and technology in order to establish the contemporary context. Legal frameworks, both in Scotland and further afield, have been analysed for comparison and specific examples have been cited to reflect the demonstrable impacts of ethical considerations on the role and practices of the police. Police Scotland's own input into this group has provided valuable insight into operational practices and deficits. The breadth of input encompasses open public consultation and specifically commissioned research alongside the professional expertise inherent in the workstream membership.

1.5 This workstream report should be read alongside the other IAG contributions including the final IAG report which this report feeds into. The recommendations that we make, and recommendations that the final IAG report may make, expected to be considered in the context of a fast moving technological landscape.

1.6 From here, we consider legal frameworks, before proceeding to consider processes for considering legal bases for policing, and ethical considerations. We then turn to the issue of digital evidence and procedures for its use in the criminal justice system. Following that, we consider good practices from the UK and elsewhere in the world, and look at lessons learned. We then look to the future, before concluding the report with a series of recommendations.