Justice Committee

Meeting date: Tuesday, November 20, 2018

Official Report 795KB pdf

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Justice Sub-Committee on Policing (Report Back)

Agenda item 4 is feedback from the Justice Sub-Committee on Policing on its meeting of 15 November. I refer members to paper 6, which is a note by the clerk. Following the verbal report by John Finnie, there will be an opportunity for comments or questions.

You rightly identified, convener, that the committee’s most recent meeting was on 15 November, when we held our fourth evidence session on Police Scotland’s proposals to introduce, next month, a digital device triage system—also known as cyberkiosks—with the intention of interrogating mobile phone data.

The sub-committee took evidence from representatives of the Information Commissioner’s Office, Police Scotland, the Scottish Human Rights Commission and the Faculty of Advocates. In taking that evidence, our main focus was on determining whether Police Scotland has a legal basis for introducing the new technology. Police Scotland had requested legal advice from the Crown Office and Procurator Fiscal Service, but that had not been provided by the time of the sub-committee’s meeting. The issue of legal advice was raised at the outset of the sub-committee’s deliberations in May this year, so it is disappointing that the advice had not been provided.

The sub-committee heard that there is no bespoke legislation that covers the use of the cyberkiosk technology and that, as a result, Police Scotland relies on a complex mix of legal methods in seizing and examining an electronic device. That includes the use of judicial warrants and a reliance on common and case law or statutory powers. It is fair to record that sub-committee members understood that there were protections in place for accused persons and, indeed, suspects, but we had specific concerns about the position of witnesses or complainers.

The sub-committee was told that legislation had not kept pace with technology and that legality was an issue for not just the proposed use of the cyberkiosk technology but Police Scotland’s approach to accessing any digital media and biometric data. It was certainly the view of the Faculty of Advocates, the SHRC and the IOC that legal clarity should be in place before cyberkiosks are introduced.

Given the serious concerns about whether the legal framework is fit for purpose in relation to accessing data, and about the human rights, privacy and data protection implications of introducing cyberkiosks, the sub-committee agreed to write to the Cabinet Secretary for Justice and the chief constable to seek their views on the evidence that we received. Those letters went off today.

The sub-committee will next meet on 6 December for an evidence session on Police Scotland’s role in the immigration process and community relations.

Do members have any comments?

Mr Finnie referred to the Faculty of Advocates’ view on the legal framework. Paper 6 states that Clare Connelly of the Faculty of Advocates

“indicated that ... the law required to be changed prior to introduction”

of the cyberkiosks. Was she saying that we need to look at this and sort it all out, or that if the law is not changed, the system cannot legally be brought into force?

It was certainly the view of the Faculty of Advocates, the IOC and the SHRC that there is no sound legal basis for bringing in the new technology.

So it could be brought in without breaching the law, but it would be very inadvisable to do so. Is that what is being said?

That is not how I would paraphrase it. The witnesses were very concerned that there was an insufficient legal basis for operating the technology. Looking ahead, they were concerned about not only the technology racing ahead of legislation but the amount of information that is available through the technology. A comparison was made with officers searching a house having to get a warrant to search a cupboard, whereas the information that is stored on people’s devices is about their private life, their finances, their relationships and everything. The concern is that technology expands on a daily basis.

I understand.

On the sufficiency of the existing legal basis, we are still waiting for a judgment from the Crown Office and Procurator Fiscal Service. That will be coming.

It was not just the Faculty of Advocates that raised the question of the legal basis; the issue was accepted across the panel. It was also agreed that cyberkiosks had been the portal into the discussion but that that had opened up a broad area in which the legal basis is not particularly sound. The requirement to update the law is increasingly evident.

John Finnie has described the process very fairly. Police Scotland was of the view that the technology was hugely beneficial to the police and to those who had their mobile devices taken off them, because they were returned more quickly. The police have therefore proceeded without due care and attention. What was interesting about the most recent evidence session was the acceptance across the board that lessons had to be learned. For all its failings, Police Scotland came across as being very open to that, and I think that the other stakeholders gave Police Scotland due credit for how it had engaged through the external stakeholder group over the past couple of months.

It is fair to say that, as a result of the evidence session, the presumption that Police Scotland will go ahead with the technology at the end of December was questioned. The emphasis was that this is not about the need to get it right but about the fact that Police Scotland cannot afford to get it wrong. It is so important that we get this right and identify the right circumstances in which cyberkiosks can be used.

As there are no more questions, I close the committee’s 30th meeting in 2018. Our next meeting will be on Tuesday 27 November, when we will continue our evidence taking on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

Meeting closed at 13:10.