Expert group proposes review of legal rules on retention of biometric data



John Scott

An Independent Advisory Group on Biometric Data has recommended a series of changes to how such data is used by Police Scotland.

The group, established by Justice Secretary Michael Matheson last year and chaired by solicitor advocate John Scott QC, 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.

Their 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 said: Scotland’s national forensics service is widely recognised as a scientific leader, supporting Police Scotland on serious and major crime investigations to help tackle those who prey on our communities, track down perpetrators, bringing them to justice and keeping communities safe.

“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.”

Chair of the Independent Advisory Group John 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.”

Scottish Liberal Democrat justice spokesperson Liam McArthur MSP said: ”It has been three years since a Scottish Liberal Democrat investigation first exposed the gaps in biometrics legislation and the potential for misuse. While biometrics can prove critical in investigating and solving crime, this new report is further evidence that the laws regulating their use urgently require updating.

“Biometric technologies which draw on our personal characteristics are becoming an ever greater part of all our lives. They are emerging at an incredible rate but we need to ensure our laws keep up and that people’s rights aren’t infringed. That is why we need regulate the use of existing technologies and future proof them to cover those systems that won’t have even been invented yet.

“It shouldn’t have taken the Scottish government three years to get to this point. Ministers must immediately get on with preparing the necessary changes to the law.”