Biometrics Commissioner and Forensic Science Regulator

Sarah Jones Excerpts

Thursday 20th January 2022 Westminster Hall

[Sarah Jones (Croydon Central) (Lab)]

It is a pleasure to serve under your chairship, Dr Huq. I congratulate the right hon. Member for Tunbridge Wells (Greg Clark) on securing the debate, and on his elegant critique of Government progress. He asked a comprehensive list of questions about missed deadlines and the like, which I look forward to hearing the Minister respond to. I join him in thanking the members and Clerks of the Science and Technology Committee for all the work that they have done—he listed the number of times that this issue has been looked at and the proper and serious work that has been undertaken.

I listened with interest to my hon. Friend the Member for Blackley and Broughton (Graham Stringer) talk about the history of how we got to where we are, and how none of us here will be looking at this through the eyes of ideology—what should be private or public—but through the eyes of what is most effective. As the hon. Member for Glasgow North West (Carol Monaghan) said about funding and governance, we should have the ambition to be world leaders in this space—that should be what we are all striving towards.

As Members have already made clear, forensic science is critical to the investigation of crime and the administration of justice. Without it, thousands of people would not have been brought to justice. It not only allows us to identify offenders and provide evidence to the courts, but is a vital safeguard against wrongful conviction and false allegations. When it comes to forensics, the stakes are high. The United Kingdom must have an efficient, working and credible model for forensic investigations.

I welcome the Forensic Science Regulator Act 2021, introduced by my hon. Friend the Member for Bristol North West (Darren Jones), to whom I pay tribute for his hard work and commitment in delivering his private Member’s Bill. However, it has not yet been fully implemented. He asked the Minister a written parliamentary question on 5 January, and the Minister’s answer was “as soon as possible”, so I would appreciate some kind of timescale to go with that. Considering that it took the Government nearly 20 months to respond to the Committee’s report, Members of the Opposition cannot be confident that the Government are committed or willing to prioritise these important matters.

One of the major issues affecting forensic science is the market and the availability of services. It is vital that the Government ensure there is sustainable capacity to meet the needs of the whole criminal justice system. The market does not work as it currently runs; private providers come in and out and some collapse, leading to delays and confusion as they pass on their work. New recruits are not trained properly, funding is unclear and unequal, and increased pressure leads to falling standards, errors and, potentially, miscarriages of justice. The police need costs to be as low as possible because their budgets have been cut, and everyone is having to make difficult decisions in a volatile and unsustainable market.

Such fragmentation of the sector does not just provide a regulatory headache; it has real-world impacts. This lack of certainty leads to criminal cases being put in jeopardy and emergency funding needing to be provided. Redundancies in the sector are also an issue. It is vital that the criminal justice system has the power to retain the very best scientists.

Forensic science is time sensitive. Courts rely on toxicology reports to determine whether an individual was driving under the influence of drugs and alcohol, but they cannot receive a report if the statutory time limit for the test has been passed. It cannot be right that charges are dropped because of a forensics problem. It is also the case that police forces are sometimes forced to ration and prioritise which cases they send to forensics. Forensics work must be done in a timely manner.

On digital forensics, we know that rape victims—really vulnerable people—might have their phones confiscated for months or even years, in the worst instances, while waiting for a forensics team to download and analyse their data. In the end-to-end rape review, the Government committed to leaving no victim without a phone for more than 24 hours in any circumstances. It would be good to understand a bit more about the progress towards that goal, particularly with the rape charge rate at a shocking 1.4%.

Similarly pressing are the issues of oversight and accreditation. Accreditation, as we have heard, provides an independent, impartial confirmation of technical competence. It surely forms an unavoidable plank in the plan to ensure public confidence in forensic science and the criminal justice system more widely. The importance of accreditation and compliance is indicated by the Randox case, which called into question the integrity of the laboratory’s toxicology results, and impacted 10,000 criminal cases. It was estimated that the re-testing of those samples might take between two and three years—even then, the degradation of samples would have rendered re-testing pointless. Randox did not have additional accreditation to the codes of practice and conduct for forensic science providers and practitioners in the criminal justice system.

The Forensic Science Regulator Act 2021 requires a regulator to prepare a code of practice for forensic activities, which each forensic unit will have to comply with. It also included deadlines for units to achieve accreditation. As long ago as 2011, the Committee called for statutory powers to enforce compliance, with proper standards. These are yet to be introduced. The Committee called for a prohibition on the police using non-accredited laboratories to be included in the 2021 Act, as well as the mandate that all in-house police labs should be accredited within a year. The Minister disagreed, suggesting that these clauses would

“detract from the independence of the Regulator.”

It seems to me, however, that such regulations are critical, and might speak to some of the most concerning areas within the forensics sphere.

Regulation would ensure compliance with standards and deal with the fragmentary market. It would help solve the serious delays in digital forensics, which the Minister himself says remain a concern. It is a field now more important than ever, given the increasingly online nature of crime. Computer misuse has increased by 85%, hacking is up 161%, and 90% of cases now have a digital aspect.

Recent evidence given by Professor Tully shows that deadlines on accreditation of police laboratories continue to be missed. It seems impossible that the proposed October 2022 deadline for all forces to achieve accreditation on all sites will be met. The current situation sees victims relying on a forensics system that is not properly regulated, and reliant on a regulator with no proper enforcement powers. Time and again, the story seems to be of a Government failing to listen to the advice of experts, including that of the Science and Technology Committee.

At a time when just 6.5% of all crimes lead to a prosecution, the charge rate has halved and 1.3 million victims walked away from an investigation last year, public confidence in the justice system is at rock bottom. There can be no excuses. The Government say that tackling crime is a priority. They must put their money where their mouth is and stop the delays.

The use of biometrics has become an increasingly important and contentious issue, and it is only growing more so. My hon. Friend the Member for Bristol North West attempted to include clauses related to biometrics in his private Member’s Bill, but the Government refused to support them, and they were removed. With new biometric systems being developed more rapidly than the police are able to keep up with, it is vital that the Government develop a proper evidence base for the use of these new technologies.

In his evidence to the Select Committee, Professor Wiles noted

“the continuing failure of the Home Office to update the crucial databases that hold both biometric data and general information about offenders, convictions, arrests and so on.”

The current legislation covering biometrics is a complicated patchwork quilt of Acts, difficult to grasp and to follow. We are clear that proper, fit-for-purpose regulation is needed. As in the forensics field, the stakes are high. It is crucial that the use of biometrics—undoubtedly powerful tools—does not infringe on civil liberties.

As we have heard, despite repeated assurances, the Government have still not delivered an automatic deletion system for custody images of unconvicted individuals whose data remains stored in a database. That is very worrying and, as the Biometrics Commissioner put it, unlawful. It cannot be right that an unconvicted individual would have to apply to have images of themselves deleted.

In the Conservative party manifesto for the last election, the Government said they would

“empower the police to safely use new technologies like biometrics and artificial intelligence”.

In evidence to the Committee, Baroness Williams noted that it was

“the legal framework that allows the police use”

of biometric technology that is both “necessary and proportionate” that is necessary in this sphere. There have so far been no legislative proposals from the Government on this front. I wonder when we might see a White Paper or similar setting out the Government’s plan to regulate this rapidly changing field.

The power of these new technologies is very great indeed. With regard to assets such as live facial recognition, voice recognition and gait analysis, Professor Wiles noted that the current framework

“has not kept up with the development of new biometrics; nor has the Government responded to judgments by both domestic courts and the European Court of Human Rights about the inadequacy of that current framework.”

Even companies such as Microsoft—truly one of the great tech giants—support regulation.

When will the Minister act and commission a proper, UK-wide, independent review of the use and retention of biometrics and biometric data not covered by the Protection of Freedoms Act 2012? Surely, with criminals utilising technology at a speed never seen before—I point to the sale of drugs online, which I have spoken about in this place before, as well as the criminal exploitation of children online—it is more important than ever that the Government get to grips with both forensics and biometrics, and absorb both into their plans to tackle crime.

The Minister believes that

“both of these biometrics and forensics are completely critical to the future success and…consent model of the police.”

We agree. There must be a clear, balanced and effective national decision-making structure for forensic science. This complex and complicated area deserves to be governed on a national basis, with policy decisions and implementation properly overseen. The Government must ensure that the 2021 Act is implemented, they must come up with a proper biometrics strategy, and they must deliver regulation, implementation and accreditation. That is crucial for the public and for victims.