Legal: Mobile fingerprinting – your rights and their wrongs

Going on protests can often be a legal minefield, which is why you need to know your stuff when you go on them. Below, a member of the Activist Court Aid Brigade talks through the most frequently asked questions on fingerprinting.

There’s nothing new about police mobile fingerprinting. Contrary to what Liberty would have you believe, British cops have been using portable fingerprint scanners for over half a decade. They were first deployed in the capital back in 2013, following extensive trials by 24 regional police forces. The practice never quite became a staple of frontline policing, as the first generation of scanners proved to be costly, slow and unreliable. That all looks set to change, however, with last year’s announcement of a new mobile app-scanner combo that will allow officers to check fingerprints against both criminal and immigration records in a matter of seconds.

The rationale for the new system is much the same as that of its predecessor: it will save the police money (the new scanners reportedly cost 1/10th of their forebears) and increase the time officers can spend on ‘the frontline’, by allowing them to identify “suspects” who refuse to provide their details without the need to trundle to and from a station. In a curious twist, the government also claims that rapid biometric identification will enable the ‘speedy and accurate’ treatment of people experiencing a medical emergency, by quickly matching them to their medical records. The fact that this — along with the other touted benefits of the system — is dependent upon the police having access to comprehensive biometric databases (i.e. ones that contain as many people’s data as possible) is something conveniently omitted from the government’s statement.

While the new scanners will not record or store prints, this goes little way to addressing concerns that the technology effectively hands officers the power to carry out biometric identification of anyone they choose. As Netpol argued back in 2013:

“While there is a theoretical protection in that these measures can be used only when a person is suspected of a criminal offence, in practice this is not so reassuring. Offences such as obstruction and ‘anti-social behaviour’ are so broadly and vaguely defined they can be used to describe almost any set of circumstances, not just those that are actually criminal. Existing police powers to carry out stop and searches are already frequently abused to obtain an individual’s name and address. Mobile fingerprinting used alongside existing stop and search practices could provide a de facto power to carry out biometric identification of people without any need for ‘reasonable suspicion’.”

As in the case of stop & search, it seems highly likely that mobile fingerprinting will be disproportionately used against BME communities and the wider working class, especially in a moment when the police are clamouring for more power to harass young black people. Indeed, the fact that the new app allows officers to check prints against immigration databases suggests that those seen as potentially being “illegal” migrants (i.e. anyone who isn’t obviously White British) are particularly at risk of being targeted.

It is therefore crucial that people know their rights when it comes to mobile fingerprinting (what follows is adapted from Netpol’s own guide):

When can police take fingerprints with a mobile device?

If you are under arrest and you are taken to a police station, the police have the power to take your fingerprints (by force if necessary).

The police can take fingerprints away from a police station ONLY if they have reason to suspect you have committed an offence AND they have reason to doubt that you have provided your real name and address.

If the police have grounds to take fingerprints, they must first give you an opportunity to give your details. They can fingerprint you only if there are “reasonable grounds” to doubt you have given your real name and address.

If you have provided a document showing your name and address, they must tell you why this is not sufficient on its own to prove your identity.

If you refuse to give your fingerprints (and the police have “reasonable suspicion”), they have the power to take fingerprints without consent, or to arrest you for the offence you are suspected of, and take you to the police station.

What if I haven’t committed an offence?

To lawfully take your fingerprints the police must suspect that you have committed an offence.

They MUST tell you what offence you are reasonably suspected of having committed and why you are reasonably suspected of committing it. If the police will not or cannot do this, you SHOULD NOT provide your fingerprints (or your name and address).

If the police allege that you have committed an offence, MAKE SURE they explain what offence it is that has been committed and what reason they have for suspecting you. Being stopped and searched, DOES NOT by itself give the police powers to take your fingerprints OR your name and address.

Being detained to prevent a breach of the peace, or held in a protest kettle, DOES NOT by itself give the police powers to take your fingerprints OR your name and address.

If the police have suspicion that you are breaching bail conditions, they have the power to arrest you. A suspicion that you are breaching bail conditions DOES NOT give them the power to take your fingerprints on a mobile scanner, as this is NOT an offence.

What if I am suspected of anti-social behaviour?

If the police allege that you have engaged in anti-social behaviour, INSIST they tell you what they “reasonably believe” you have done that was likely to caused harassment, alarm and distress.*

If the police cannot or will not tell you why they believe you were likely to cause harassment, alarm or distress, the police do NOT have powers to take your fingerprints and you SHOULD NOT give a name and address.

If the police DO you have reason to believe you have engaged in anti-social behaviour, they DO have the power to demand your name and address. The police WILL then have the power take your fingerprints IF you refuse to provide your name and address, OR they suspect you of providing a false name and address***.

What happens if I give my fingerprints?

The device will scan your fingerprints and check them against the police database. They should return a result within two minutes. The scan taken by the mobile fingerprint device is NOT kept, and DOES NOT stay on the system (or so the police would have us believe).

If your prints are already on record, the police will be able to see your details. These will include your name, last known address, warning markers and whether or not you are wanted for any outstanding offences.

If the offence you are suspected of committing is a minor one, and you have given your prints, the police SHOULD consider alternatives to arrest, e.g. summons, fixed penalty notice or words of advice.

If your prints are not already on the database, this will mean that the police cannot verify your details. What the police do then is up to them — depending on the situation they may accept the details you have given as true, or they may arrest you for the offence you are suspected of committing.

If you are arrested your prints will be taken in the police station, and these will be retained on the system.

Carl Spender

This article first appeared in the Summer issue of Freedom Journal