Conclusions and recommendations
1.The main result of our inquiry is that there is a need not just for the long-delayed Biometrics Strategy, but also a reassessment and revision of the 2016 Forensics Strategy. Our brief inquiry has identified an urgent and significant need for action on the governance and oversight of both forensics and biometrics. This is vitally important because these disciplines, and the way their techniques and data are used, are at the heart of our courts system and underpin essential confidence in the administration of justice. (Paragraph 5)
Forensics
2.Concerns about the sustainability of the forensics market—a problem identified many years ago—have continued, with the collapse of private sector providers in recent months. The overarching focus in the police’s forensics procurement appears to be on low price, and problems of fragmentation of forensics testing remain. The Randox case has highlighted how an unsustainable market has also affected standards in the forensics providers supporting the civil courts. The Government should review the sustainability of the forensics market as part of a wider review of its Forensics Strategy. That should include planning for dealing with providers exiting the market, but also an assessment of the underlying causes of market unsustainability. It should consider afresh whether the fragmentation of forensics testing is a result of the unsustainability of the forensics market or a contributing factor to it, and whether the procurement approaches examined by our predecessor Committee need to change. (Paragraph 12)
3.Accreditation of forensics providers remains vitally important in maintaining the confidence of the courts and the public in the evidence used in the justice system. The Randox case has demonstrated the importance of all forensic providers becoming fully accredited (including to the Regulator’s ‘Codes’) in accordance with the deadlines set by the Regulator. That case also highlighted how standards and accreditation cannot be fully effective unless there is rigorous auditing of compliance. The Randox case, and its links to the earlier Trimega case, also point to a more fundamental disconnect of the forensics standards and regulatory systems between the criminal justice system (which is covered by the Regulator’s remit) and the civil courts system (which is not). (Paragraph 23)
4.The Regulator should work with UKAS to strengthen the auditing of standards compliance, to include validation of test results as well as governance structures and processes; the effectiveness of which would be bolstered by the Regulator being given statutory enforcement powers, which we discuss below. The Ministry of Justice should work with the Home Office and the Forensics Regulator to examine the scope for the Regulator’s remit to be extended to the civil courts forensics system, or for a similar regulator to be established with a similar remit, to bring a comprehensive and enforceable standards system to that sector also. (Paragraph 24)
5.We welcome the Government’s commitment to make the Regulator a ‘prescribed person’ under the whistle-blowing legislation. That should happen as soon as her position is put on a statutory footing. (Paragraph 25)
6.The Forensics Regulator needs statutory powers to allow her to ensure that providers seek accreditation and that standards are delivered. Governments have stated a desire over several years to introduce statutory powers, with varying degrees of enthusiasm, and the Government has now lent support to a Private Members’ Bill. The Government, having supported the drafting of the current Forensic Science Regulator Bill, should now give it time in its legislative programme in order for it to make progress. It should then ensure rapid implementation following Royal Assent. (Paragraph 28)
7.The Forensics Strategy requires re-evaluation. The weaknesses identified by our predecessor Committee in 2016 remain, and have since been exacerbated by accreditation delays, the Randox case and some forensics companies failing. The work underway under the ‘Transforming Police Forensics’ programme, intended to help shape future forensics services, is still underway two years after the Forensics Strategy was published. The Government should revise, re-issue and consult on a new Forensics Strategy; one that addresses the forensics requirements of both the civil and criminal justice systems. (Paragraph 33)
Biometrics
8.The Government’s rationale for the more than four years’ delay in producing a Biometrics Strategy is less than convincing. We agree with the Minister that the Strategy needs to put in place a governance structure that is fit for the future and ‘fixes’ the ethical and legal questions involved, but it is those issues—notably around facial images—that make a Strategy urgently needed. The Government must now produce the Strategy in June, without any further delay. (Paragraph 36)
9.The result of the 2012 ‘RMC’ case was a ruling that it is unlawful to hold custody images without making a distinction between those who are convicted and those who are not. The Home Office’s response has been to introduce a system for unconvicted individuals to be able to request the deletion of their images, but not an automatic deletion system. The Government’s solution reflects current weaknesses in IT systems and a concern about the potential cost of a manual deletion process that does not depend on external requests. New IT is planned, which might help automate the system in future. The Government’s approach is unacceptable because unconvicted individuals may not know that they can apply for their images to be deleted, and because those whose image has been taken should not have less protection than those whose DNA or fingerprints have been taken. (Paragraph 44)
10.The Government must ensure that its planned IT upgrade under the Home Office Biometrics Programme is delivered without delay, and is used to introduce a fully automatic image deletion system for those who are not convicted. If there is any delay in introducing such a system, the Government should move to introduce a manually-processed comprehensive deletion system as a matter of urgency. The forthcoming Biometrics Strategy must address which of these possible routes will be followed. The Strategy should also set out the Home Office’s assessment of the lawfulness of its deletion-on-application response to the ‘RMC’ case, and the legal advice underpinning that assessment. (Paragraph 45)
11.Facial image recognition provides a powerful evolving technology which could significantly help policing. There are serious concerns, however, over its current use, including its reliability and its potential for discriminatory bias. We welcome the Government’s assurances that the technology is only being used at the moment for targeting those on ‘watch lists’ rather than as a blanket approach, and that images collected from public events and the relevant watch lists are being deleted afterwards. (Paragraph 49)
12.Facial recognition technology should not be generally deployed, beyond the current pilots, until the current concerns over the technology’s effectiveness and potential bias have been fully resolved. The new facial images ‘oversight Board’ that the Minister is planning to set up will need to ensure that that condition is satisfied. But in such an important area, with public confidence critical, it must be ministers and Parliament that take the final decision on any wider deployment of the technology. The forthcoming Biometrics Strategy should include an undertaking that such a decision will not be left to be “an operational decision for the police”, and provide a Government commitment to give the House an opportunity to debate and vote on the issue. (Paragraph 50)
13.There are important ethical issues involved in the collection, use and retention of facial images that have greater salience than for DNA, fingerprints and other biometrics, not least because facial images can easily be taken and stored without the subject’s knowledge and because (unlike DNA and fingerprints) facial images databases—passports, driving licences and custody images—already include 90% of the adult population. Recent developments in the oversight of biometrics, to include facial images, will help such issues to be addressed. We welcome the Minister’s decision to set up a facial images ‘oversight Board’. The forthcoming Biometrics Strategy should consider the scope for further refinement in the oversight architecture, including how image databases should be managed and regulated, potentially by a dedicated ‘Regulator’ or by the Biometrics Commissioner with an extended remit. (Paragraph 55)
Published: 25 May 2018