‘Distinct policies’ needed for capture of biometric data from children by police, says commissioner

However, reviews published on Wednesday (March 29) recommended there should be “distinct policies, procedures and practices” about the capture of biometric data from children, which should only be authorised by a senior officer.

Commissioner Dr Brian Plastow said more should be done to ensure that everyone who has their biometric data captured as a result of being arrested in Scotland, including these protected groups, is better informed about the purposes for which their data will be used.

Dr Plastow said: “Police Scotland’s overall strategic approach to working in partnership to keep children and vulnerable adults who offend out of custody is strong, as is their approach to safeguarding those children and vulnerable adults who have their biometrics captured when there are no alternatives to police custody.

“However, Police Scotland also needs to better uphold the information rights of all people who have their biometric data captured either as a result of being arrested, or when such data is given voluntarily by victims of crime to assist police investigations.

“We found those working in the custody environment were knowledgeable about policies and procedures relating to the care and welfare of children and vulnerable adults and the reports have taken account of best practice, highlighted what was working well and promoted a standardised, considerate approach to the way forward.”

Of the 98,295 police custody episodes last year, 4150 related to children and 1,880 to vulnerable people who were supported in custody by an appropriate adult.

While the number of children who came into contact with the police was small, a significant amount of biometric data was taken and held in the criminal justice system. The two reviews published on Wednesday considered the human rights of children and whether it was lawful, proportionate and necessary to obtain children’s biometric data and record it on policing databases.

The reviews considered the provisions made and the policies in place when biometric data is taken, without consent, from children and vulnerable adults in police custody.

In a recommendation for Police Scotland, Dr Plastow advocated there should be “distinct policies, procedures and practices about the capture of biometric data from children which should only be taken when authorised by a senior officer balancing both the interests of the child and the gravity of the offence”.

Three further recommendations common to both reports stated Police Scotland should improve the information provided to anyone who has their biometric data taken in police custody to comply with the data subjects right to be informed under UK GDPR and with the Commissioner’s statutory Code of Practice, approved by the Scottish Parliament in November 2022, and the associated complaints mechanism available to data subjects.

The Commissioner also recommended Police Scotland improve its management information around biometric data to better inform strategic decision making and enhance transparency.

Dr Plastow believes the age of criminal responsibility in Scotland is still too low, having been raised from eight to 12 in 2021.

“I would welcome policy initiatives to divert those under 18 years of age out of the adult system. This would provide the lever through which to avoid capturing biometric data from children, except in the most serious of crime types,” he added.

Chair of the Scottish Police Authority (SPA), Martyn Evans, said: “I am very pleased to have assisted the Biometrics Commissioner in this important piece of work. This first joint review between us is another demonstration of our approach to policing in the public interest.

“Police Scotland and the Authority have been clear that police custody is not a place of safety for children.

“In those unavoidable situations where custody is necessary, it is important that officers and staff are given clear guidance on when it is absolutely necessary to gather biometric data and how long to retain it, taking into account the best interests of the child and gravity of the offence.

“It was important that our review examined the first person insights of young people with direct experiences of the criminal justice system, as well as officers and staff.”

The joint assurance reviews were of the Acquisition of Biometric Data from Children Arrested in Scotland and from Vulnerable Persons in Police Custody assessed as needing the support of an appropriate adult to help them understand what is happening.

Dr Plastow was supported in both assessments by the SPA and, in the one relating to those aged 12-17 years, by The Children and Young People’s Centre for Justice (CYCJ).

CYCJ director Fiona Dyer said: “We were pleased to contribute on such an important issue. Yet again it highlights another area of our justice system that children do not understand or know what their rights are.

“Coming into contact with justice system(s) and processes can be overwhelming for children and young people; there need to be strict guidelines and proper training in place for professionals tasked with gathering this data.

“Above all, the authorities need to make clear why this practice is necessary and provide child-friendly guidelines and protocols for how it will be carried out, as part of their duty of care towards children and young people.

“This will go some way towards achieving a rights-respecting justice system in Scotland.”

Police Scotland is required to set out how it proposes to respond to the recommendations by June 30. The SPA’s Policing Performance Committee will invite Dr Plastow to present his findings at its meeting on June 15 and will monitor progress towards implementation of the recommendations.