Criminalisation of curiosity?

Is crime prevention becoming crime prediction? Suzanne Gallagher examines some recent developments in the application of predictive policing technology and questions the impact this may have on the next generation.

Oct 27, 2021
Suzanne Gallagher

Using a computer to predict criminal behaviour sounds like the stuff of science fiction. Yet the reality is that the police are already using algorithmic technology to identify and deter the offenders of tomorrow. To date, there has been no systematic review of these efforts to forecast crime.

We are incidentally learning about this through research projects, Freedom of Information requests and parliamentary committee work.

Data-driven policing – NCA approach

A recent report has provided valuable insight into how the National Crime Agency (NCA) is adopting these technologies in a cybercrime context, with some interesting case study examples.

Through the Cyber Choices programme, the NCA is identifying ‘at-risk’ young people. Individuals are selected based on online activity which indicates a potential interest in cybercrime forums or the purchase of cybercrime tools.

Using a set of risk characteristics, the NCA then targets these young people before they engage in serious illegal activity. Once identified, NCA officers visit these young people to discuss their behaviour with them and with their parents.

Data gleaned by this programme is also utilised in a complementary ‘influencer operations’ project, in which young people who have googled cybercrime services receive targeted google advertisements, informing them that these services are illegal and that they face NCA action if they purchase them. Those receiving these google advertisement include adolescents as young as 14.

The NCA also linked these advertisements to hashtags for major gaming conventions.

Data-driven policing – MPS approach

This is not the first time UK law enforcement agencies have used data-driven technology to forecast crime involving young people.

The Metropolitan Police Service (MPS) maintains a Gang Violence Matrix, a system that ranks individuals on a scale using data based on arrests, convictions and intelligence. If an individual meets the Matrix threshold for inclusion, they become a gang ‘nominal’ and are added.

The MPS identifies not only perpetrators of gang-related crime, but also its victims. The rationale for including victims on the Matrix is to ensure they receive the support and safeguarding needed to prevent further victimisation, and to divert them away from gang activity. As of October 2017, 15 per cent of those on the Matrix were minors, the youngest being just 12 years old.

The consequences

Proponents of these technologies argue these tools help reduce crime and allow for the targeting of police resources, to the benefit of the wider community. Concerns around the use of this technology centre on its long-term consequences, including the effect of contact with law enforcement authorities at such a young age, with the potential risk of stigmatisation by peers, educational establishments and future employers were they to learn of it.

When things go wrong

When things go wrong, the consequences for individuals can be serious.

In 2017, a document with unredacted personal data called ‘Newham Gang Matrix January 10,  2017’, was leaked, and subsequently found to be circulating via Snapchat.

The document contained the details of individuals on the Matrix. It had been disclosed by Newham Council, which was fined £145,000 for the data breach by the Information Commissioner’s Office (ICO). The ICO also issued the MPS with an enforcement notice.

Of serious concern to the ICO was how victims of gang-related crime were presumed to have gang associations themselves. The MPS had no system for accurately noting that the victim had been included in the Matrix solely or primarily because of their victim status.

Another major concern was how social media intelligence was being used by police officers, including intelligence derived from posting or commenting on YouTube videos. There was a failure on the part of the MPS when it came to assessing the relevance of this data. The ICO said these breaches of data protection law had the “potential to cause damage and distress to the disproportionate number of young, black men on the Matrix”. At that time, more than 100 children under the age of 16 had been profiled.

The ICO required 16 actions to be taken by the MPS, including introducing a system for distinguishing victims of gang-related violence, and developing guidance on social media use as an intelligence source. A 2019 Freedom of Information request revealed that children as young as 13 were still listed on the Matrix.

Judicial oversight

The application of predictive policing has yet to be challenged in the courts.

In 2020, the use of surveillance technology was considered by the Court of Appeal in a challenge to the use of live facial recognition technology by South Wales Police. In that case, the court found that too much discretion had been left to individual officers. Predictive policing goes even further, with very significant potential intrusions on individual privacy rights.

Parliamentary oversight

These issues are currently under consideration by the House of Lords. In May 2021, the Justice and Home Affairs Committee launched an inquiry into new technologies such as algorithmic policing and the application to them of the law. There is no record of NCA involvement in the inquiry.

In July, members of West Midlands Police attended a closed session to demonstrate the National Data Analytics Solution, a tool being developed by a consortium of police agencies to create “a new shared, central data and analytics capability”. This is said to be a true machine learning- based predictive tool, drawing on nearly 1,400 data indicators that could help predict crime. These indicators include previous crime records or association with criminals.

The machine learning component will use these indicators to predict which individuals may be on a trajectory of violence similar to that observed in past cases. It is also using social network analysis to identify people who are at risk of becoming influencers of crime, a model that assesses the likelihood and risk of a particular individual becoming influential in co-offending.

A PowerPoint presentation delivered by West Midlands Police at the 2017 Excellence in Policing Conference indicates that the National Data Analytics Solution uses data from young people “up to 11” and “11 to 16” age groups, noting that “the younger you are when you commit a co-offending offence, the more likely for you to go ahead to commit other crimes”.

A briefing note prepared by West Midlands Police Ethics Committee argues for the “social benefit of being able to identify the circumstances and reasons (particularly for young people) that lead individuals to commit their first violent offence…”.

Conclusions

The development of predictive policing gives rise to complex and controversial issues.

In its favour, it had the potential to protect the public and to divert potential offenders from a path that would, in all probability, lead to far harsher future involvement with the criminal justice system. In times of scarce resources, the saving to the public purse will also prove attractive. However, the risks in widespread adoption of such technology are manifold, including the potential for algorithmic bias and error, and stigmatisation of young people who have committed no offence but who have merely exercised childlike curiosity.

Importantly, under Article 3 of the United Nations Convention on the Rights of the Child, in all actions concerning children, the best interests of the child shall be a primary consideration. Adults are expected to consider the best interests of children when making choices that affect them. This is particularly important when children are still forming mental associations between their behaviour, their environment and the consequences of their actions.

The trial and roll-out of such technology without proper scrutiny or public debate poses acute risks to public trust and jeopardises the UK’s model of policing by consent.

The genie is almost certainly out of the bottle in terms of the development of such technology, but the adoption of policing methods borrowed from science fiction first requires extensive public debate and the formulation and enforcement of a strict legal framework if it is to be a success.

Suzanne Gallagher is an Associate at BCL Solicitors LLP, specialising in corporate crime, financial crime and regulatory enforcement.

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