Information Commissioner s Office. ICO response to consultation on revisions to PACE codes

Transcription

1 Information Commissioner s Office ICO response to consultation on revisions to PACE codes 1

2 About the ICO The ICO s mission is to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals. The ICO is the UK s independent public authority set up to uphold information rights. We do this by promoting good practice, ruling on concerns, providing information to individuals and organisations and taking appropriate action where the law is broken. The ICO enforces and oversees the Freedom of Information Act, the Environmental Information Regulations, the Data Protection Act and the Privacy and Electronic Communication Regulations. 2

3 Introduction The ICO is pleased to respond to the Consultation on the revisions of the current Codes of Practice ( the Codes ) issued under the Police and Criminal Justice Evidence (Northern Ireland) Order 1989 (PACE). We note the consultation is on a general refresh of the Codes to include provision for the EU Directive 2010/64 on the right to interpretation and translation in criminal proceedings. The ICO previously commented on changes proposed to Code D, which concerns the principal methods by which the police identify people in connection with the investigation of offences and the keeping of accurate and reliable criminal records. As the Data Protection Act 1998 ( the Act ) broadly defines personal data as that from which an individual can be identified and requires such data to be accurate and up to date (where relevant), this Code is of particular interest to the ICO. Whilst the focus of this response is the amendments highlighted across the Codes, a number of comments will be made and in particular with respect of Code D. 3

4 Response Introduction The ICO welcomes this refresh of the Codes and acknowledges that compliance with the Codes will assist PSNI in meeting its obligations laid out in the Act and, in particular, Principles 3 and 4 of the Act which require that personal data be adequate, relevant and not excessive for the purpose(s) they are being processed. In addition it is a requirement that data is accurate and, where necessary, up to date. We acknowledge that the collection of such data under the Code will only take place when justified and necessary for the prevention, detection or investigation of crime. The Act defines personal data as data relating to a living individual who can be identified from those data or from those data and other information which is in the possession of the data controller or is likely to come into its possession. It is in this respect that many of the comments are made below. Security Provisions The ICO welcomes the provisions proposed in Code E, Section 6, relating to additional measures for security of audio recordings. Although we note the objective to ensure the integrity and quality of the evidence, the extra safeguards posed relating to breaking the seal of a master recording is reassuring. Section (G) contains details of the security relating to digital network interview records. Whereas we welcome the inclusion in Section 7.17 with respect to restricted access to the interview recordings we note there are no specific references to a process in these circumstances, nor any encryption or other security steps that will be taken relating to storage as outlined in Section Code H, Section 3 (A) includes proposed provision for investigating officers to bring to the attention of the officer responsible for authorising an individual s detention (or continued detention) any documents or materials in their possession which appear to undermine the need to keep an individual in custody. It will be important to comply with any security arrangements in these circumstances that contain the personal data of the individual as the proposed method for how the said documents to be made available will be determined by the investigating officer on a case by case basis. Identification/Fair Processing The consequences for an individual wrongly suspected of a crime can be substantial even where no charges are subsequently laid or where he is subsequently found not guilty. As previously stated we welcome the clear emphasis contained in Code D which states the provisions of PACE to collect, use and retain fingerprints, samples, impression and photographs must be justified and necessary for the preventing, detecting or investigating of crime. 4

5 The ICO also welcomes the added emphasis in Section 1.1 relating to fairness and equality. We note similar comments have been added to other aspects of the Codes. The fair processing notice given to suspects prior to obtaining their consent to participate in a video identification or identification parade needs to be compliant with the Act. We also note within Codes E and F that an indicator will be visible to the suspect when recording is taking place and welcome this. For fairness (and equality), an audible signal should be present when the suspect has a hearing impairment. We would stress that any covert activity taken in the absence of consent should be strictly limited to the circumstances outlined in paragraph We would draw attention to the newly updated ICO guidance on CCTV and wider surveillance in this respect which can be obtained here: The ICO previously commented on the arrangements for release of films and photographs to the media. We would reiterate the point that any such release should only be made for the purpose of the detection and investigation of crime in accordance with Principle 2 of the Act. The ICO notes the added inclusion in Code D in this respect for social networking sites. Reference is made to the destruction of photographs used in identification procedures within Section 3 (F). In order to comply with Principle 7, all destruction should take place securely and, similarly, all materials retained (including written notes, police notebooks etc) should be stored securely to prevent unauthorised processing. Identification by fingerprints, footwear impressions and DNA samples The ICO remains concerned about the wording of the example consent form provided in Code D, Note 4B. We are disappointed that our previous comments with this matter have not been considered. As currently drafted, once given, consent cannot be withdrawn by the individual providing a sample under the conditions outlined. This may be in breach of Article 63M of the Police and Criminal Evidence (Northern Ireland) Order 1989 ( the Order ) which states that material can only be retained for as long as an individual has consented to and that consent can be withdrawn at any time. It may also be deemed to be unfair processing under Principle 1 of the Act. These comments will also be relevant in respect of biometric data collected and processed for the same purposes. 5

6 Examinations to establish identity and the taking of photographs The ICO notes that photographs may be taken of persons detained even where consent is withheld. We acknowledge this power is given under Article 64A of the Order. It is the ICO view that consent should not be sought if there is an intention to proceed with the processing nonetheless. We therefore previously recommended that where an officer is satisfied that a photograph will be taken in the absence of consent, the detainee should be advised accordingly rather than seeking consent. We are disappointed to note that no clarity has been given in this respect on the relevant notes for guidance or elsewhere within Code D. In addition, no guidance appears to be been included with respect to the procedure to be adopted when a person not detained gives consent for a photograph to be taken but then subsequently withdraws that consent. We would reiterate our previous comment that this should be addressed within the document. Conclusion We hope these comments are helpful in respect of the consultation document and the proposed refresh of the Codes. The issues we have highlighted with respect of the Data Protection Act should be considered in light of this opportunity to provide clarity and ensure compliance in these matters. 6

7 A consultation on revisions to PACE codes For further information on this submission, please contact Dr Ken Macdonald, Assistant Commissioner (Scotland & Northern Ireland) on or If you would like to contact us please call Information Commissioner s Office 3rd Floor 14 Cromac Place Belfast BT7 2JB 7