Legislation, PACE & Consent Handout for MobileID

Transcription

1 Legislation, PACE & Consent Handout for MobileID Introduction The MobileID service replaces the Lantern Mobile Fingerprinting Pilot and forces will migrate to in February / March Lantern was used with the consent of the subject and whilst MobileID will initially do likewise, legislation providing police powers will commence on 7 th March The use of MobileID will be guided by the principles of this legislation. Since Lantern was first deployed, the mobile fingerprinting capability has been the subject of an Equality Impact Assessment (EIA) and the Home Office has consulted on amendments to the Police and Criminal Evidence Act 1984 PACE which will guide officers in their use of MobileID. The amended PACE codes which will be introduced on the 7th March 2011 make it clear that a person who is unknown and who is suspected of a crime or offence should be given an opportunity to establish their identity before an officers decides to exercise the power to require fingerprints. The constraints which have been placed on the use of MobileID as a result of the EIA and Parliamentary debate will require officers to use the capability in accordance with the following guidance. The handout details the primary legislation and PACE Code D to guide officers in the use of MobileID. Consent is not expected to be used as a basis for making a MobileID check except as directed by individual forces, this is described in Appendix A. Legislation Section 117 of the Serious Organised Crime and Police Act 2005 (SOCAP) amends Section 61 of the Police and Criminal Evidence Act 1984 (PACE) as regards the right to require fingerprints of unknown suspects. The amendments to Section 61 of PACE (described below) will take effect on 7th March (6A) A constable may take a person's fingerprints without the appropriate consent if (a) the constable reasonably suspects that the person is committing or attempting to commit an offence, or has committed or attempted to commit an offence; and (b) either of the two conditions mentioned in subsection (6B) is met. (6B) The conditions are that (a) the name of the person is unknown to, and cannot be readily ascertained by, the constable;

2 (b) the constable has reasonable grounds for doubting whether a name furnished by the person as his name is his real name. PACE Codes PACE Code D has been amended to reflect the commencement of the amended Section 61 of PACE. Paragraph 4.2 States that a person s fingerprints may only be taken in the investigation of an offence with their consent or as per paragraph 4.3. If consent is sought in a police station it must be in writing. Paragraph 4.3 Outlines the power which is created (as per Section 61 of PACE above). Note: Over the age of 10 years. Paragraph 4.5 Prints may be taken electronically Paragraph 4.6 Reasonable force may be used to take fingerprints under the power as granted in 4.3 Paragraph 4.7 Before fingerprints are taken the subject must be informed (see also Note 4C) of; reason their fingerprints are to be taken the power under which they are to be taken (with or without consent) that their fingerprints may be subject of a speculative search against other fingerprints Paragraph 4.8 A record must be made as soon as practicable after the fingerprints are taken; Of the reason, Of the power exercised, and That the subject has been informed of these. The fact that they have been informed regarding the speculative search. Note: The record must be made within the person s custody record if the power is exercised whilst they are detained at a police station. PACE Notes of Guidance Note 4C provides further guidance to officers regarding their use of MobileID. The introductory text underlines the benefits of using MobileID, principally that a disposal which does not involve an arrest may be achieved (e.g. Fixed Penalty Ticket, Penalty Notices for Disorders, Warning, and Summons without arrest). It reassures the reader that fingerprints taken under this power cannot be retained after they have been checked. Usefully it highlights that in the case of arrest for a non-recordable offence the power may be exercised at a station. Pace Note 4C guides that before an officer exercises the power they should; inform the person of the nature of the suspected offence and why they are suspected of committing it

3 give them a reasonable opportunity to establish their real name before deciding; o their name is unknown and cannot be readily ascertained, or o that there are reasonable grounds to doubt that a name given is their real name inform them of the reason why; o their name is unknown and can t be readily ascertained, or o of the grounds for doubting that a name given is the real name o including for example why a document provided is insufficient Note: This guidance re-iterates what is said in the legislation and provides guidance that a subject should be given a reasonable opportunity to establish their name before the power is exercised. If the subject s identity cannot be determined with certainty and done so readily then the power becomes usable. Police Reports The CPS are being consulted as regards the best manner of recording the use of MobileID and their staff will be circulated with a full briefing on the subject. When this is done, it is to be expected that evidence of MobileID s use will be used more positively and consistently around the country. Where MobileID is used to aid an officer s identification, that fact should be recorded in any police report that may be submitted. In the main text of a police report Aided by MobileID Mobile Fingerprinting should follow any reference to an officer identifying or confirming the identity of a suspect. Similar text requires to be inserted into Fixed Penalty Tickets and Penalty Notices for Disorder as follows; Identification aided by MobileID Mobile Fingerprinting. It is useful to remind users that MobileID does not identify a subject; it merely offers an identification which requires to be confirmed. Identifications should be tested against the PNC (description, knowledge of record etc) and by using other traditional identification techniques. The manner in which officer s notes and subsequent enquiries are made can provide support to officer s evidence should this be challenged in court. Legislation requires that certain facts be recorded when MobileID is used under Section 61 of PACE. Recording the CRO Number and PNC Filename details immediately after this information and before the PNC result will help support an officer s evidence about identification. Where officers make the PNC check using the CRO number this will avoid sifting through multiple records to identify the correct record and the PNC Audit information along with MobileID Audit Information will provide further support, if an officer s evidence is later challenged. In giving evidence in court this can be underlined by stating that the CRO number as provided by MobileID was used to make the PNC check.

4 Use without Police Power (or Consent) Duty of Care If you have a concern about a subject s welfare then it may be appropriate to use MobileID. This undoubtedly applies under the duty of care the police have to unknown unconscious persons removed to hospital for treatment. If a subject is brought to our attention because of a concern for their welfare and they are unable to identify themselves because of their incapacity/ drunkenness, then the use of MobileID to identify them may assist in providing the care they need. Diabetics presenting as drunks are one such example. Using MobileID in a duty of care circumstance where the person is not unconscious should be undertaken with the approval of a supervising officer (Sgt or above or as otherwise specified by your force). The reason for using MobileID in these circumstances is to improve the care provided to the subject; not to investigate a crime or offence. Other Uses Legislation and PACE Code D recognise that a person s fingerprints may be taken with consent in connection with the investigation of an offence. This recognition does not provide a carte blanche for consent to be sought wherever a power does not exist. Officers may expect the scope of MobileID s use to expand in time where there are demonstrable benefits to the public and will be guided by their local force instructions about such further use. Forces will undoubtedly identify uses of MobileID beyond that covered in this training. In considering such use, forces will have regard to the objectives and benefits of such a use and the impact that it may have. In determining that such MobileID use is appropriate local force instructions will be given providing users with guidance. Using MobileID with consent and without local instruction exposes the operator and the service to risk.

5 Consent The information detailed below regarding consent is provided to give a background to the issues relating to consent as it relates to MobileID. Officers require to be aware of these issues should circumstances and force policy require the use of MobileiD with consent in the future. Issues Surrounding Consent The image of a fingerprint used in a MobileID check is data and the Data Protection Act 1998 (DPA) requires that we obtain consent in order to process it. If a complaint is made it may be that the Information Commissioner s Office takes an interest and the manner in which consent is achieved will be of great interest to them. The DPA defines data as either being personal data or sensitive personal data and the type of data determines whether implicit or explicit consent is required. Whether the fingerprint image is personal data or sensitive personal data is as yet untested and two contrary views have been expressed. The Information Commissioner has suggested that the data is sensitive personal data on account of the DPA definition; Personal data consisting of information as to the commission or alleged commission by him (the data subject) of any offence or any proceedings for any offence committed or alleged to have been committed by him This definition does not however accurately describe what a fingerprint image represents. A fingerprint image resides on the National Fingerprint Collection (Ident1) because a subject has at some stage been fingerprinted having been suspected of a crime or offence; however proceedings may not have been pursued or a conviction not achieved. Specifically, such a subject is not believed to have committed or alleged to have committed a crime or offence. Further a fingerprint image processed by MobileID can only return a possible identification and further separate computer checks are required to confirm this. Such information as may ultimately be returned to the officer is the same information as may be returned if the officer had made a (true) names check on the Police National Computer (PNC) in the first place. This process can take longer given the requirement to screen out similar names and ensure that the correct record is identified. The most significant outcome of the difference between whether the data is sensitive or not is in determining what level of consent is required; i.e implied consent or explicit consent. By using the principles contained within the legislation, making a full explanation to the subject and recording that you have done so will help assure that true consent has been achieved. If witnesses are present to consent being sought, noting their details will provide greater assurance. By taking all of these precautions we can achieve true consent, which is demonstrable without the need to obtain the subjects signature which explicit consent would probably require.

6 Using Consent In obtaining consent it is necessary for the subject to be informed of the reason their fingerprint is being sought and this should mirror the legislative requirements where possible. In obtaining consent, subjects should be informed; that fingerprints used are not kept, of the reason why their fingerprints are to be taken o why their name cannot be readily ascertained, or o why the name provided is suspected or doubted. that their fingerprints may be made subject to a speculative search, of the benefits as you may think appropriate (avoid reference to avoiding arrest see below). By explaining to a subject what the grounds are for suspecting them of a crime or offence and why using their fingerprints will help, their consent when provided can be regarded as informed. This is an essential element of obtaining consent. If a subject is told that they will be arrested or that some other sanction will apply, any consent provided will not be regarded as true consent. When seeking consent do not identify a sanction as this would invalidate any consent given. Persons unable to give consent It should be noted that the following persons cannot give consent; Persons under the age of 17 years Persons who suffer from a mental illness or incapacity Persons who are incapacitated or intoxicated to such an extent that informed consent cannot be achieved. Particular consideration should be given to MobileID s use on persons who are incapacitated or intoxicated. A drunken person being spoken to about their drunken behaviour is unlikely to comprehend the request. This situation can be applied to a range of circumstances and consent should not be sought where the degree of intoxication is such that comprehension is limited.

7 Extract from PACE Code D (as amended, 7th March 2011) (Sections not relevant to MobileID not copied here, relevant text emboldened and/or underlined) 4 Identification by fingerprints and footwear impressions (A) Taking fingerprints in connection with a criminal investigation (a) General 4.1 References to fingerprints means any record, produced by any method, of the skin pattern and other physical characteristics or features of a person s: (i) fingers; or (ii) palms. (b) Action 4.2 A person s fingerprints may be taken in connection with the investigation of an offence only with their consent or if paragraph 4.3 applies. If the person is at a police station consent must be in writing. 4.3 PACE, section 61, provides powers to take fingerprints without consent from any person over the age of ten years: (a) under section 61(3), from a person detained at a police station in consequence of being arrested for a recordable offence.. not relevant to MobileID (b) under section 61(4), from a person detained at a police station who has been charged with a recordable offence,.. not relevant to MobileID (c) under section 61(4A), from a person who has been bailed to appear at a court or police station if the person:.. not relevant to MobileID (ca) under section 61(5A) from a person who has been arrested for a recordableoffence and released if the person:.. not relevant to MobileID (cb) under section 61(5B) from a person not detained at a police station who has been charged with a recordable offence or informed they will be reported for such an offence.. not relevant to MobileID (d) under section 61(6),.. not relevant to MobileID (e) under section 61(6A) from a person a constable reasonably suspects is committing or attempting to commit, or has committed or attempted to commit, any offence if either: the person s name is unknown and cannot be readily ascertained by the constable; or the constable has reasonable grounds for doubting whether a name given by the person is their real name. Note: fingerprints taken under this power are not regarded as having been taken in the course of the investigation of an offence. [See Note 4C]

8 (f) under section 61(6D) from a person who has been convicted outside England and Wales..not relevant to MobileID. 4.4 PACE, section 63A(4) and Schedule 2A provide powers..not relevant to MobileID 4.5 A person s fingerprints may be taken, as above, electronically. 4.6 Reasonable force may be used, if necessary, to take a person s fingerprints without their consent under the powers as in paragraphs 4.3 and Before any fingerprints are taken: (a) without consent under any power mentioned in paragraphs 4.3 and 4.4 above, the person must be informed of: (i) the reason their fingerprints are to be taken; (ii) the power under which they are to be taken; and (iii) the fact that the relevant authority has been given if any power mentioned in paragraph 4.3(c), (d) or (f) applies...not relevant to MobileID (b) with or without consent at a police station or elsewhere, the person must be informed: (i) that their fingerprints may be subject of a speculative search against other fingerprints, see Note 4B; and (ii) that their fingerprints may be retained in accordance with Annex F, Part (a) unless they were taken under the power mentioned in paragraph 4.3(e)when they must be destroyed after they have being checked (See Note 4C). (c) Documentation 4.8A A record must be made as soon as practicable after the fingerprints are taken, of: the matters in paragraph 4.7(a)(i) to (iii) and the fact that the person has been informed of those matters; and the fact that the person has been informed of the matters in paragraph 4.7(b) (i) and (ii). The record must be made in the person s custody record if they are detained at a police station when the fingerprints are taken. 4.8 If force is used, a record shall be made of the circumstances and those present. 4.9 Not used (B) Taking fingerprints in connection with immigration enquiries. not relevant to MobileID. (C) Taking footwear impressions in connection with a criminal investigation relevant to MobileID.. not

9 Notes for guidance 4A. not relevant to MobileID 4B Fingerprints, footwear impressions or a DNA sample (and the information derived from it) taken from a person arrested on suspicion of being involved in a recordable offence, or charged with such an offence, or informed they will be reported for such an offence, may be subject of a speculative search. This means the fingerprints, footwear impressions or DNA sample may be checked against other fingerprints, footwear impressions and DNA records held by, or on behalf of, the police and other law enforcement authorities in, or outside, the UK, or held in connection with, or as a result of, an investigation of an offence inside or outside the UK. Fingerprints, footwear impressions and samples taken from a person suspected of committing a recordable offence but not arrested, charged or informed they will be reported for it, may be subject to a speculative search only if the person consents in writing. The following is an example of a basic form of words: I consent to my fingerprints, footwear impressions and DNA sample and information derived from it being retained and used only for purposes related to the prevention and detection of a crime, the investigation of an offence or the conduct of a prosecution either nationally or internationally. I understand that my fingerprints, footwear impressions or DNA sample may be checked against other fingerprint, footwear impressions and DNA records held by or on behalf of relevant law enforcement authorities, either nationally or internationally. I understand that once I have given my consent for my fingerprints, footwear impressions or DNA sample to be retained and used I cannot withdraw this consent. See Annex F regarding the retention and use of fingerprints and footwear impressions taken with consent for elimination purposes. 4C The power under section 61(6A) of PACE described in paragraph 4.3(e) allows fingerprints of a suspect who has not been arrested to be taken in connection with any offence (whether recordable or not) using a mobile device and then checked on the street against the database containing the national fingerprint collection. Fingerprints taken under this power cannot be retained after they have been checked. The results may make an arrest for the suspected offence based on the name condition unnecessary (See Code G paragraph 2.9(a)) and enable the offence to be disposed of without arrest, for example, by summons/charging by post, penalty notice or words of advice. If arrest for a non-recordable offence is necessary for any other reasons, this power may also be exercised at the station. Before the power is exercised, the officer should: inform the person of the nature of the suspected offence and why they are suspected of committing it. give them a reasonable opportunity to establish their real name before deciding that their name is unknown and cannot be readily ascertained or that there are reasonable grounds to doubt that a name they have given is their real name.

10 as applicable, inform the person of the reason why their name is not know and cannot be readily ascertained or of the grounds for doubting that a name they have given is their real name, including, for example, the reason why a particular document the person has produced to verify their real name, is not sufficient. 4D. not relevant to MobileID Scenario Exercises Work through the following 6 scenarios and identify in which scenarios MobileID can be used as per PACE (after commencement). The answers provided can in some instances be influenced by how an officer may interpret what amounts to reasonable suspicion. Focusing on the legislation can help determine whether or not suspicion reasonably exists against an individual and whether their identity is established readily, before the use of MobileID would be considered appropriate. General comment about answering scenario questions. A positive answer requires two things; The first is that there must be an offence suspected. The second is that the identity of the person they are dealing with for that offence is unknown or doubted and cannot be readily ascertained. Scenario 1: ANPR stop regarding disqualified driver. A motor vehicle has been stopped because of an ANPR marker indicating the vehicle used by a male who is disqualified and passes himself off as the registered keeper. The driver identifies himself as the registered keeper and provides a foreign name. PNC and DVLA checks confirm details supplied match the registered keeper and provide a number of convictions. The description on PNC is vague and the officers remain uncertain as to the driver s identity. Do Powers to use MobileID exist? YES / NO Answer: Yes Based on a real life use of MobileID. The salient points are:- The officers suspected (because of the Intel report) that the person was committing an offence of driving whilst disqualified, thus qualifies the first part of the requirements. The person s identity is in question because intelligence has already noted that the driver uses the registered keeper details. The question is one of is

11 the person the registered keeper or not? Information held does not clarify the situation, and so remains in doubt. The use of MobileID will establish a conclusive answer to the question of who he is, as both the suspected disqualified driver and the registered keeper have fingerprint records that can be checked. MobileID allows an identification process to be carried out without the need for an arrest at that stage, and may allow an innocent person to avoid arrest. Scenario 2: Speeding Jet Skier fails to Stop The marine section spots a jet ski exceeding the posted speed limit which then fails to stop. The rider decamps close to the shore in mud and makes his way towards the shore where he is detained by land units. The rider offers documentation supporting his claimed identity. Do Powers exist to use MobileID? Yes / No Answer: Yes Based on a real life use of MobileID. The salient points are:- Reasonable suspicions would be aroused when the Jet Ski made off, that it was probably stolen. Failed to stop Abandoned on mud flats Rider ran off Carrying ID documents in a wet environment Based on an example of a real life use of MobileID, the identity offered was not to be believed, and the subject was found to be an escapee from prison who was wanted for murder. Scenario 3: Motor vehicle stopped for minor road traffic offence. A motor vehicle was stopped because the driver is not wearing a seatbelt. The 35 year old driver is a Sales Manager covering England and Wales for a large pharmaceutical company. The driver presents a passport and driving licence and this confirm his driving qualifications and provides no other information on PNC. 1. Do Powers to use MobileID exist? YES / NO 2. Would your answer change if you recognised that the driving license had been first issued in the last 2 years? YES / NO Answer 1: NO Based on a real life use of MobileID (HGV Operation Utah, Multi-Agency Vehicle Check). The salient points are:-

12 The situation as presented does identify an offence but does not give you any reason to think that the identification offered is not correct or is misleading. Answer 2: Yes It would not be unreasonable to be suspicious of the driver s driving history. A Sales Manager usually has many years experience of driving behind them and to have a driving licence which is a first issue in the last couple of years is inconsistent. If in doubt further questioning of the driver may increase or decrease the suspicion helping you to determine if you should exercise the Section 61 power. Based on a real life use of MobileID. The driver of a large HGV stopped in an Operation Utah initiative had a recently issued driving licence. Use of MobileID (Lantern) identified him as a disqualified driver who had legitimately changed his identity in an effort to avoid detection. In the first example if your traditional identification checks had yielded no positive confirmation for whatever reason you may consider that the identification is as yet incomplete and that it may be appropriate to use the Section 61 power to readily ascertain their identity. PACE Notes would require you in this circumstance to provide an explanation why the ID documents were not accepted at face value. This scenario may lead to discussion about identity documents 180,000 name change passports issued by passport service in a 2 year period not associated with divorce or marriage. Drivers can sit a test in their new name avoiding connection to their previous driving offences. A #DL check on the driver number would pull up the driver history including any changes of name if declared, however a simple name change and resit of driving tests in the new name would defeat a normal #DL or names check on PNC. Scenario 4: Male boarding aircraft identified as wanted on PNC A male boarding a flight has been identified as being wanted for serious offences including manslaughter, arson and firearms offences. The PNC information shows that his name has been used as an alias by his brother previously. Six officers attend and detain him at the gate as he boards, separating him from three travelling companions. The male presents identity documents which confirm that he is the person identified in the PNC record and the descriptions fit. He denies his involvement in the crime or offence. Do Powers to use MobileID exist? YES / NO Answer: Yes The person is wanted for an offence, so that would satisfy the first condition that they suspect the person has committed an offence. Suspects and wanted persons often protest their innocence, that they are not the person who is wanted in the warrant and their identity is then in doubt.

13 Documents produced are irrelevant Given the information and the responses received it is reasonable to be uncertain who the subject is. The prints held on the record given by the culprit using the subject s name will confirm whether or not the person in front of the officer was the person arrested and fingerprinted at the time. Scenario 5: ANPR stop regarding occupants involved in the supply of drugs. A motor vehicle was stopped because of an ANPR marker indicating the vehicle is used in the supply of drugs. The occupants of the vehicle are two 19 year old males in the front seats and two 16 year old girls in the rear seats. The occupants supply details, but are vague when challenged about each others identity. The officers are uncertain as to their identities. No drugs are found after a cursory search of the vehicle; however the girls are in possession of a few hundred pounds. This seems inconsistent with their age, appearance, unemployed status and the condition of the vehicle. Do Powers to use MobileID exist? YES / NO If so, on which occupants? Answer: Yes On all occupants. If power is not yet commenced the 16 year olds are unable to give consent. The ANPR intelligence marker provides officer with initial suspicion that an offence is being committed, which justifies the stop and search under the misuse of drugs act. The presence of more money than might be expected would tend to support this suspicion Vagueness about each other s identity provides further grounds for suspicion It may be that decisions whether or not to continue the enquiries (detention, exhaustive search of vehicle, use of drug dog etc) can be better informed by properly applying the Section 61 power. If they are all returned as unknown or with minor unrelated criminal histories this may support a decision to note details and to release them. If drugs related information is revealed and/or attempts have been made to conceal their identities then this may merit further enquiry. Scenario 6 Person seen acting suspiciously on CCTV A male person is observed by council CCTV operators, acting in a manner that is giving them cause for concern in a busy street in the town. The operators contact the local police, who dispatch officers to make enquiries with the person. At this stage no offences have been observed or reported, but the person s actions have given the operators of the CCTV equipment cause for alarm, that public safety may be at risk.

14 Officers talk to the person, and he offers a name, address and date of birth, but is unable to corroborate these with any documentation. PNC checks are returned as no trace. Does a power to use MobileID exist in this case? YES/NO Answer: No. No offences have been observed or reported The fact his name and address may be considered false is irrelevant. Based on real life use of MobileID: The person was checked by gaining their consent. He was positively identified in a different name, and was found to be wanted for offences of street robbery in London.