Lords question legality of police facial recognition

Lack of scrutiny

The Lords’ letter added that while they accept the value of LFR to police, “we are deeply concerned” that its use is being expanded without proper scrutiny or accountability.

“We believe that, as well as a clear, and clearly understood, legal foundation, there should be a legislative framework, authorised by Parliament for the regulation of the deployment of LFR technology,” said the JHAC. “We also believe that the government must lead a wider public debate about the use of LFR technology, as used now and as it develops, to ensure public confidence and support.”

Lords added that “government should not wait for the legality of LFR deployment to be tested again in the courts”, referring to an August 2020 court decision that found South Wales Police used the tech unlawfully after failing to conduct a data protection impact assessment or fulfil its Public Sector Equality Duty (PSED) to consider how its policies and practices could be discriminatory.

Evidence session

In the LFR inquiry’s only evidence session, Lords heard from senior Metropolitan Police and South Wales Police officers about the improving accuracy of the technology, as well as how both forces are managing their deployments.  

Claiming there was a “very clear focus” on the most serious criminality, they told the Lords about the operational benefits of LFR technology, which includes the ability to find people they otherwise would not be able to and as a preventative measure to deter criminal conduct.

At the same time, they confirmed that both forces use generic “crime categories” to determine targets for their LFR deployments, bringing into question claims that their use of the technology is concentrated on specific offenders who present the greatest risk to society.

Academic Karen Yeung, an interdisciplinary professorial fellow in law, ethics and informatics at Birmingham Law School, challenged the proportionality and necessity of this approach during the evidence session, claiming the coercive power of the state means police must be able to justify each entry to the watchlists based on the specific circumstances involved, rather than their blanket inclusion via “crime types”.

Commenting on this in the letter, Lords also questioned the necessity and proportionality of police LFR deployments, noting that while police themselves argue it is targeted on “the most serious crime and the most serious vulnerability” such as murderers and rapists, the watchlists also contain images of shoplifters and others committing far less serious crimes.

“How is ‘serious crime’ defined, and is the definition standard for all forces? How does any definition impact the police’s assessments of necessity and proportionality when deploying LFR technology in a particular situation?” it asked, questioning whether there should be independent third-party approval of any police watchlist.

In its recommendations, Lords called on the government to publish a national regulation, or at least guidelines, on how “extensive crowd-scanning activity” is being assessed for lawfulness, necessity and proportionality, both before and after the deployment of LFR; subject watchlist selection to “specific compulsory statutory criteria and standardised training”; and standardise pre-deployment communication with the public to ensure better public trust.

Lords added that they expect a government response to their questions and recommendations by 26 March 2024.

Long-running concerns

The Lords’ latest inquiry follows a 10-month-long JHAC investigation into the use of advanced algorithmic technologies by UK police, including facial recognition and various crime “prediction” tools. It found that police are essentially “making it up as they go along”, and are deploying a range of technologies without a thorough examination of their efficacy or outcomes.

Throughout that inquiry, the JHAC heard from expert witnesses that UK police are introducing new technologies with very little scrutiny or training, continuing to deploy them without clear evidence about their efficacy or impacts, and have conflicting interests with their own tech suppliers.

One of the main conclusions of the investigation was that new legislation is urgently necessary to control how technologies are used by UK police.

In July 2022, however, the UK government largely rejected its findings and recommendations, claiming there was already “a comprehensive network of checks and balances”. It has since maintained this position, while also pushing for much more widespread adoption of the technology by UK police.  

Both Parliament and civil society have repeatedly called for new legal frameworks to govern law enforcement’s use of biometrics – including the UK’s former biometrics commissioner, Paul Wiles; an independent legal review by Matthew Ryder QC; the UK’s Equalities and Human Rights Commission; and the House of Commons Science and Technology Committee, which called for a moratorium on LFR as far back as July 2019.

In an exclusive interview with Computer Weekly, the outgoing biometrics and surveillance camera commissioner for England and Wales, Fraser Sampson, also highlighted a number of issues with how UK police had approached deploying its facial recognition capabilities, and warned that the future oversight of police tech is at risk as a result of the government’s proposed data reforms.