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A year of positives and negatives in digital justice

Facial recognition technology - Image credit: Shutterstock

A year of positives and negatives in digital justice

Last summer Police Scotland began the rollout of mobile devices to frontline police officers, which was a key part of the Policing 2026 10-year strategy.

By giving officers devices, essentially large mobile phones, it would mean they wouldn’t have to return to base to input handwritten notes, reducing time away from the streets and duplication of work.

It means officers can also carry out their own checks while out and about.

Since the rollout began in Tayside last summer, frontline officers across all 13 divisions have received devices and a review of the rollout one year on found that 444,496 hours have been freed up in a year by the ability to conduct checks and carry out administrative tasks on the go.

Another Police Scotland technological investment proved more controversial though: the use of ‘cyber kiosks’, computers that bypass encryption to collect information from digital devices such as mobile phones or laptops.

The force bought 41 cyber kiosks, which it had planned to roll out to police stations across Scotland from autumn 2018, before postponing their introduction amid concerns over the legality of using them to extract data.

Intended to speed up the collection of evidence, concerns were raised during an inquiry by the Scottish Parliament’s Justice Sub-Committee on Policing into the legal basis for their use.

In April 2019, the committee called for a halt to the rollout after the Scottish Human Rights Commission flagged up concerns about the devices, noting that police need a warrant to do a physical search of a house and calling for something similar for digital data.

However, the force announced in January that it was going ahead with the rollout, having confirmed the legal basis for using their use.

Deputy Chief Constable Malcolm Graham said: “Many online offences disproportionately affect the most vulnerable people in our society, such as children at risk of sexual abuse, and our priority is to protect those people.

“Increases in the involvement of digital devices in investigations and the ever-expanding capabilities of these devices mean that demand on digital forensic examinations is higher than ever.

“Current limitations, however, mean the devices of victims, witnesses and suspects can be taken for months at a time, even if it later transpires that there is no worthwhile evidence on them.

“By quickly identifying devices which do and do not contain evidence, we can minimise the intrusion on people’s lives and provide a better service to the public.”

Other digital data has also been under the spotlight too, with the same committee conducting an inquiry into facial recognition technology which concluded that the technology is “currently not fit for use”, with a high level of inaccuracy and inbuilt racial and gender bias.

Committee convener John Finnie warned of a “facial recognition Wild West” without a legal framework in place.

Oversight of some areas of data moved forward, however, with the passing of the Scottish Biometrics Commissioner Bill in March.

This mandates the appointment of an independent biometrics commissioner to oversee the creation of a code of practice around the use and storage of biometric data such as DNA, fingerprints and photos.

There has been a significant leap forward in digital justice in the courts too.

In September, the Scottish Government launched the procurement process for a new ‘digital evidence sharing capability’ to be shared between the Scottish Government, Police Scotland, the Crown Office and Procurator Fiscal Service and the defence community to allow users such as police officers, prosecutors, court staff and defence agents to digitally access evidence in a more efficient way.

But it was coronavirus that really pushed through changes that would not otherwise have taken place this year. The lockdown saw controversy over Scottish Government suggestions that with jury trials unable to take place, solemn trials might continue without a jury.

Following outrage from the legal community and opposition parties, the government backed down, but it led to a review of how such trials could go ahead with physical distancing in place.

From 20 July jury trials restarted using multiple rooms with digital links between them, with an expansion into cinemas now planned to allow more trials to take place at the same time.

Although this will only be the format for jury trials while physical distancing is necessary, it is possible that other parts of court system could continue online.

Since lockdown began, civil and criminal appeal hearings, Court of Session hearings, personal injury cases and sheriff court civil cases have moved into online virtual courts.

Pilots of virtual summary criminal trials were held in Inverness and Aberdeen and are being rolled out across other areas.

Besides digital, many of the usual issues rumbled on, including police funding and the state of police buildings, prisoner numbers and overcrowding – particularly an issue regarding the potential spread of COVID-19, which saw some prisoners released early – and the state of the prison estate, with a significant critical report published on Barlinnie in February.

Prisoners were also allowed to vote for the first time in the Shetland by-election in August, a controversial move by the Scottish Government ahead of legislation being put in place.

And governance of the police raised its head again when former MSP Susan Deacon resigned as chair of the Scottish Police Authority board in September citing “fundamentally flawed governance”.

She has not yet been replaced and the role of chair is still vacant.

Another major theme of the latter part of the year has been race and identity.

The Black Lives Matter movement raised the profile of racism worldwide, while in May, five years after his death in 2015, the full remit of the public inquiry into the death of Sheku Bayoh in police custody was published.

It had been announced by justice secretary Humza Yousaf in November. One aspect of the inquiry will be to look at whether race played a part in his death.

More recently, concerns have been raised about the Scottish Government’s hate crime bill, which aims to bring together disparate pieces of hate crime legislation, expand the list of statutory aggravations and create a new crime of stirring up hatred.

Organisations including the Law Society of Scotland, Faculty of Advocates, Scottish Police Federation, Secular Society and the Catholic Church have raised concerns that the bill could limit free speech and that the lack of clarity in terminology would make it difficult to police.

Currently the bill is being considered at stage one by the Justice Committee and if feedback so far is anything to go by, it has the potential to become as controversial a piece of legislation as named person and the Offensive Behaviour at Football Act.

This will be a major discussion point for the year ahead.

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