Mobile Identification

Mobile Identification: Consultation on Equality Impact Assessment

We have been asked for our submissions regarding the use of hand-held fingerprint scanners on children and young people, and hope that it will be helpful if we deal with the relevant section of the consultation in the order in which points are made.

Children and Young Persons

‘It is already established that persons who are 16 years and older may be served with a Section 27 Notice under the Violent Crime Reduction Act 2006 (Directions to individuals who represent a risk of disorder to leave an area). The use of the mobile identification capability in regard to people of this age MIDAS and Lantern Equality Impact Assessment Page 9 of 21 generally would seem appropriate and the request should be made as if they were an adult.’

The current legal position with regard to taking fingerprints from a person who has not been arrested is governed by s61(1) of the Police and Criminal Evidence Act 1984:

‘Except as provided by this section no person’s fingerprints may be taken without the appropriate consent.’

 In the case of young people ‘appropriate consent’ is defined by s65 of the Act as follows:

 ‘ “appropriate consent” means—

(a) in relation to a person who has attained the age of 17 years, the consent of that person;

(b) in relation to a person who has not attained that age but has attained the age of 14 years, the consent of that person and his parent or guardian; and

(c) in relation to a person who has not attained the age of 14 years, the consent of his parent or guardian;’

 Because the position is governed by statute, there is no scope for consideration of any other matters in reaching a decision as to whether the fingerprints of a person aged less than 17 can be taken without parental consent. We should advise the NPIA that if any police officer has taken fingerprints from any unarrested child or young person who is not yet 17 without parental consent during the course of the pilots for Project Lantern, s/he has acted unlawfully.

 We understand that the outcome of the Project Lantern pilots will be used to inform decisions about the commencement of s117 of the Serious and Organised Crime and Police Act 2005, which, when in force, will amend s61 of PACE to allow fingerprints to be taken without the appropriate consent where a person’s identity is in question and 

 ‘…the constable reasonably suspects that the person is committing or attempting to commit an offence, or has committed or attempted to commit an offence’

 In any other circumstances the position would still be governed by s65 PACE: parental consent would be necessary before the fingerprints of an under-17 were taken. This amendment also precludes the use of hand-held devices by a Police and Community Support Officer because the power applies only to a police officer.

 ‘It is interesting to then consider the position of children younger than 16 years. The law differentiates between 10 to 13 year olds who can be found guilty of an offence if it is proved that they knew right from wrong and those who are 14 years of age and older where such proof is not required. It is recognised that that what is appropriate for a 15 year old is unlikely to be appropriate for a 10 year old.’

 This is not correct. s34 Crime and Disorder Act 1998 abolished the rebuttable presumption of doli incapax.  Although subsequent cases questioned whether this had been abolished completely, the House of Lords in the case of R v JTB [2009] UKHL 20 confirmed that it had.

 ‘Given their vulnerability if mobile identification is to be used in respect of those who are under 16 years then it will require that the circumstances of its use is recognised in police procedures. In order to safeguard the best interests of the child and the police responsibility to parents and guardians these need to identify the range of scenarios where it may be used, the age where it may be appropriate and the actions which the police may be required to take following the use of the capability.’

Under current law, the fingerprints of a person under 17 can only be taken if their parent was present or has been contacted for consent. PACE Code D (NfG2A) says that ‘it is important that a parent or guardian not present is fully informed before being asked to consent’ and thus a police officer would need to take the time to explain the circumstances. We cannot see that this is efficient.

 Although the commencement of s117 SOCPA would alter the position to allow a child or young person’s fingerprints to be taken without parental consent, the power only extends to situations where a police officer believes that the child has committed, or may commit, a criminal offence. There is no other scenario in which the police have the power to take fingerprints without parental involvement.

 We cannot in any case see that taking children’s fingerprints (even were it to be a possibility under current law) serves any kind of child protection function. If a child or young person is found in an incoherent state, or in any other situation where their safety could come into question, then they should in any case be taken to the police station or for medical help. The attempt to establish identity is not the first priority: it is to remove the child from danger.

 There are many reasons, other than alcohol or drug use, why a child or young person may be ‘incoherent’. S/he may be diabetic, epileptic, have mental health problems or have suffered a head injury that is not immediately apparent. We assume that no officer in such a situation would simply check a child’s fingerprints and then leave an unaccompanied and vulnerable teenager to fend for themselves, in which case mobile fingerprint checks are irrelevant.

 We would observe that a young person whose behaviour is problematic needs the involvement of parents and, possibly, the local Youth Offending Team. The Children Act 1989 provides that parents are responsible for their children until they attain the age of 18 and it is important that they are aware of events in their children’s lives if they are to have an opportunity to exercise their parental responsibilities. In addition, the young person may have difficulties in their life that would benefit from YOT or social services intervention, and since s10 Children Act 2004 places a duty upon the police to co-operate with other agencies in order to improve a child’s wellbeing, it is important that their wider possible needs are considered.

 It is of concern to us that taking children’s fingerprints at the roadside may become a routine element of stop and search procedures. We are already aware that relationships between the police and young people appear to be at a low ebb, and would prefer to see more positive steps taken to improve that situation, rather than increasing powers that tend to anger and alienate young people.

 Article 40 of the UN Convention on the Rights of the Child requires that any child or young person accused of committing an offence is treated in a manner ‘…consistent with the promotion of the child's sense of dignity and worth’ and should have their privacy 'fully respected at all stages of the proceedings'. Taking a young person’s fingerprints in public does not meet those standards.

Terri Dowty

Director

28^th September 2009

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