Technology Rules: The Advent of New Technologies in the Justice System (Justice and Home Affairs Committee Report)

Lord Paddick Excerpts

Monday 28th November 2022 Grand Committee

[Lord Paddick (LD)]

My Lords, that was an extremely powerful contribution from my noble friend Lady Ludford, with which I wholeheartedly agree. I thank my noble friend Lady Hamwee, her eminent committee members and their officials for this impressive report, the importance of which cannot be overestimated. There have been equally impressive contributions from members of the committee, although not exclusively from them.

I am no Luddite. I am impressed by new technology and could be described in my own way as an early adopter of it, even if it is the new iPhone or the latest laptop—boys’ toys, as my noble friend just commented. Perhaps I get too excited by technology in the way that she mentioned. However, there are inherent dangers in the way that technology is being used in the criminal justice space that are a real cause for concern, as the report clearly points out and as noble Lords have described.

I do not know whether I am correct in thinking that, like direct and indirect racism, there are perhaps first and second-degree dangers in the use of advanced technology. As in the hackneyed phrase, when it comes to computers, of “Rubbish in, rubbish out”, there is a clear potential danger that artificial intelligence built on the results of biased policing and biased decision-making by the courts will be hard-wired into AI systems, as the noble Baroness, Lady Primarolo, said. Whether it is about the likelihood that a convicted person will reoffend or when used in connection with vetting inquiries, where racial bias in human decision-making is copied and pasted into AI systems, artificial intelligence also has the danger, for example, of being racially biased.

As my noble friend Lady Hamwee said, the report points out what I might call second-degree prejudice and discrimination, such as where AI is used to predict where volume crime might occur but not used to focus police resources on what used to be called white-collar crime, such as high-value fraud. This application bias has the danger of focusing police resources on poor neighbourhoods, where black and other minority ethnic people live, while majority white crime is seen to be even less solvable as the opportunities provided by AI to solve crime are focused elsewhere. The first-degree racism dangers in Durham’s predictor of how likely someone is to commit a crime in the future, or the Home Office sham marriage detector, should not overshadow the second-degree racism that might result from focusing advances in technology on the poor and disadvantaged.

It is not just having the mantra of “If you’ve done nothing wrong, you have nothing to fear” to downplay the harm caused by disproportionality in stop and search that we must be alert to, but that facial recognition technology is likely to give false positive results with women and black people. Operators that are not effectively regulated could load databases of political activists—or even images from Facebook groups that the system could be asked to trigger alerts for—allowing the police to track the individual movements of innocent citizens. That the city council of Santa Cruz in the United States placed a moratorium on the same live facial recognition software used by Kent Police between 2013 and 2018, because that council believed it endangered civil rights and civil liberties, and exacerbated racial injustice, perhaps indicates the dangers and how the UK is lagging behind other jurisdictions in addressing these dangers, as my noble friend Lord Clement-Jones said this evening.

I found the Information Commissioner’s remarks, quoted in the report, that every technology can create benefits or risks, depending on the context, governance and oversight measures, a little like the Chinese phrase “We live in interesting times”. It was fairly obvious but not particularly helpful, unlike the report, which not only shows how and where the governance and oversight measures are inadequate but, helpfully, recommends how and where they can be improved, as my noble friend Lady Hamwee described.

The report also points out that the courts are filling gaps in the legislation, something judges are reluctant to do. They want clear laws to interpret, not an absence of law that they then have to invent. I am reminded of going, as part of my Master of Business Administration degree, into the bank where my twin brother was a senior executive so we could act as quasi-management consultants and carry out a project on the system that the bank used to regulate salaries. The view of the operational arm of the bank was that the human resources department was holding back the business from moving forward, and that senior executives should be able to reward high performers outside the salary and grading structure.

Similarly, I appreciate how difficult it is for legislation to keep up with technological advances. However, given the erosion of civil liberties and, for example, the overpolicing of certain communities, that should not mean sacrifices just because, to quote Bill Heslop from the film “Muriel’s Wedding”, “You can’t stop progress!” That was his campaign slogan when he was running for political office and he did not win—not that I am suggesting that there are similarities between that character and my twin brother, or Kit Malthouse, the former Minister quoted in the report.

The report’s conclusions, that there is no clear line of accountability for the misuse or failure of technological solutions used in the application of the law and, as a result, no satisfactory recourse mechanisms, are worrying, together with the fact that there is a lack of transparency in the use of advanced technological solutions. Mandatory impact assessments are a safeguard, provided they are objective and independent.

Committee reports such as this one are a fundamental aspect of the work of the House, and we overlook them at our peril—this report perhaps more than many. As my noble friend Lady Hamwee said, the credibility of the criminal justice system could be at stake. As my noble friend Lady Ludford pointed out, the Government’s response could be described as complacent. I look forward to the Minister’s response saving the day by reassuring this Committee that he has taken on board the recommendations of this important report.