This post warns about the risks of police retaining custody photographs on the Police National Database (PND), particularly as facial recognition technology can now search millions of stored images. It highlights the case of Alvi Choudhury, who was wrongly arrested after facial recognition matched him to a suspect using a photo taken from a previous arrest where he faced no charges. Unlike DNA and fingerprints, which are strictly regulated under the Protection of Freedoms Act 2012, custody photographs can be kept indefinitely, despite being used as biometric identifiers.
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Facial Recognition Misidentification: The Case of Alvi Choudhury
Consider this something of a ‘public service’ announcement in the wake of the healthy publicity surrounding the case of my client Alvi Choudhury – victim of a ‘mistaken identity’ arrest caused by Police use of Facial Recognition technology.
In Alvi’s case, the image of a man wanted for a burglary was compared by Thames Valley Police with faces stored on the Police National Database (PND), using Cognitec “facial recognition” software.
The PND is not the equivalent of the FBI’s most wanted list…it comprises literally millions of Custody ‘mugshots’ taken of individuals arrested for even the lowest level of crime – and retained on the system even if they are never charged with any offence. Such was the case with Alvi, who, as he explained to the Guardian, fell prey to this Police harvesting of facial data in the following circumstances –
“Choudhury’s mugshot was held on the police system only because he had been wrongly arrested in 2021 when he had been attacked on a night out while at university in Portsmouth. The police released him with no further action.”
Millions of Innocent People’s Images Stored on the PND
The PND currently holds around 19 million facial images – hundreds of thousands of which are photographs of people who have never even been charged with an offence, let alone convicted.
The retention of these people’s images, and their being considered “fair game” for the approximately 25,000 searches currently carried out by UK Police each month, is ethically dubious, and seems to fly in the face of the great British legal traditions of presumption of innocence and respect for individual privacy. It is also an example of how the pace of technological change has outpaced the cognitive wheels in law- maker’s brains – leaving behind legislation that’s no longer fit for purpose.
The Protection of Freedoms Act 2012 and Biometric Data Retention
The Protection of Freedoms Act 2012 laid down strict time-limits for Police retention of what was then considered to be the extent of sensitive biometric data i.e DNA and fingerprints, but custody photographs fell into what we can only now, with bitter irony, acknowledge to be a “policy blind spot” – legislators failing to anticipate the rapid development and deployment of facial recognition programmes over the ensuing decade.
Current UK Rules on DNA and Fingerprint Retention
The current position on “biometric retention” is summarised by the Home Office as follows –
- If a person is charged, but not convicted, of a serious offence, their DNA profile and fingerprints must be automatically deleted after 3 years (or a maximum of 5 years, if an extension is granted by a District Judge).
- If a person is arrested for, but not charged, with a serious offence, their DNA profile and fingerprints must be automatically deleted by the Police after their release (except that the Police can apply to the Biometrics Commissioner for permission to retain for up to 3 years, and can make a further application to a Judge for a maximum of 5 years).
- If a person is arrested, but not convicted of a minor offence, their DNA profile and fingerprints must be destroyed on their being refused charge, or not convicted, and there is no discretion for that data to be retained.
Why Custody Photographs Can Be Retained Indefinitely
Facial photographs, on the other hand, are subject to no such laws, and can potentially be retained “indefinitely”.
The Police retention of facial images seemed less intrusive and harmful when large-scale Facial Recognition software was still a glint in a tech bro’s eye. In 2012, DNA and fingerprints were readily acknowledged to be sensitive biometric identifiers, as they could be scientifically calibrated, but photographs were outside the scope of widespread ‘machine’ testing, and hence considered to be forms of ‘unplugged’ evidence, records not searchable in the way DNA and fingerprint profiles were.
How Facial Recognition Turned Custody Photos Into Biometric Data
The science changed when, in recent years, the Police unleashed facial- matching algorithms over the Police National Database, converting old- school custody photographs into biometric identifiers – “Faceprints” if you like – but without any comparable change in the law.
Now the fact that Facial Recognition programs can search, compare and report “facial matches” in the blink of an AI, makes a person’s face accessible to Police investigators in a way they never were before; but because facial snapshots, unlike fingerprints, are not “unique” and the technology for comparing them still has significant error rates and evidence of racial bias (as I highlighted in last week’s blog) this is going to endanger the freedom of many innocent people (like Alvi).
Police Use of Facial Recognition and the Risk to Innocent People
In other words, the Police have, through technological ‘mission creep’, weaponised the Police National Database in the fight against crime, without the Government updating legislative safeguards to defend the liberty of innocent individuals.
The Legal Right to Request Deletion of Custody Images
But there absolutely is something you can do about this, if your photograph is on the Police National Database. In the landmark case of RMC and FJ v Commissioner of Police for the Metropolis and Secretary of State for the Home Department [2012] EWHC 1681 (Admin) R (RMC FJ) Metropolitan Police Commissioner – 22 June 2012
Policing practices were censured by the High Court and in 2017 Home Office rules were introduced custody images review to allow for the deletion of custody images, on request, in set circumstances.
How Unconvicted Individuals Can Apply to Delete Their Police Custody Photo
Of most relevance, for our purposes, is the right of unconvicted individuals to apply, in writing, to the Force which arrested them for deletion of their custody image, following the conclusion of any investigation or prosecution against them. In such a scenario, the Home Office stipulates that the Police must adopt a presumption in favour of deletion of the image, subject to certain specified “exceptional reasons” (e.g arrests for sexual offences or terrorism/ organised crime matters).
Why Deleting Your Police Image Matters: Lessons From the Alvi Case
Had Alvi been made aware of his rights, and applied to the Police for deletion of his custody image once he received a decision of “no further action”, then the simple fact of the matter is that he would never have been arrested, over 4 years later. The only thing (incorrectly) linking him to the alleged crime was that redundant custody photo, and there was no basis for its retention. But because he didn’t ask, he didn’t get.
How to Request Deletion of Your Image From the Police National Database
So, I urge you to act now, if your face is on the Police National Database and you fit the criteria above – exercise your rights and contact the relevant Police Force (i.e the Force which arrested you) and get your image wiped. This should be a straightforward process – all you are required to do is email the Force with your name, address, DOB, and an explanation detailing when the image was taken, what offence it relates to and the outcome of the arrest.
Protecting Privacy in the Age of Police Facial Recognition Technology
The Police are taking advantage of people’s ignorance of the law to retain images of the innocent by default, whilst using fallible and biased facial recognition technology. This does not have to be tolerated. Our particular version of “Big Brother” currently has 19 million eyes: together, let’s blind as many of them as possible.
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Contact the Expert Police Misconduct Solicitor
Iain Gould is a solicitor specialising in complaints, claims and civil actions against the Police. With over 30 years of experience and a national reputation, he has successfully sued all 43 police forces in England and Wales challenging abuse of power and securing rightful compensation.
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