Does accessing mobile data of rape victims threaten their right to privacy?
The Home Office have recently announced that that Police will start to introduce mobile fingerprinting technology. According to the Home Office Press Release:
New mobile fingerprinting technology will allow frontline officers across the country to use their smartphones to identify people in less than a minute – saving police time and reducing costs."
It is understood that this will mean that the police will be able to check fingerprints against both criminal and immigration records by connecting to the two live databases (IDENT1 and IABS) via the new Biometric Services Gateway. The Home Office also state: "As well as identifying a person of interest who may be withholding their name, the technology enables officers to rapidly identify someone experiencing a medical emergency and make contact with their next of kin."
Whilst there are understandable benefits to Police forces in using this technology (both in terms of time and cost), the introduction of mobile fingerprinting technology is an incremental erosion of the liberty and privacy of individuals.
The widespread availability of this tool may lead to a temptation for Police Officers to fingerprint individuals as a matter of routine, rather, than as a result of any legitimate reason to do so. The Police are only supposed to use the devices to take fingerprints in a circumstance where they have reasonable suspicion that the person concerned has committed an offence. The use of mobile fingerprinting allows constables to be able to establish the name and identity of an individual using a measure short of arrest. While the police may argue that this is more proportionate than arrest (and in some cases, it may be), it is clear that the power is open to abuse.
The threat that may be made by officers is that if the suspect does not comply with the request to provide their fingerprints, then he or she may then be arrested. The threat of arrest may be enough to persuade a suspect to comply with the request, before they have had the opportunity to properly consider the issue or consult with a lawyer. By contrast, before the implementation of mobile fingerprinting, it would have been rare for constables to arrest solely for the purpose to ascertain identity.
The concern is that these devices may be used by the police on a purely speculative basis and in circumstances where it could not be objectively said that “reasonable suspicion” really arises. After all, the threshold of ‘reasonable suspicion’ is low. Moreover, sometimes it is easier for officers to justify reasonable suspicion retrospectively, rather than contemporaneously. As a consequence, Police officers may be able to persuade individuals to comply with a request to provide fingerprints (under the threat of arrest), when viewed objectively, "reasonable suspicion" could not have been said to arise.
Prior to the introduction of these devices, if an individual was arrested following the reasonable suspicion of the commission of an offence, and in order to ascertain the identity of a suspect, the arrest would have to be justified to a custody sergeant on arrival at a police station. With the introduction of these devices, officers may be willing to try and retrospectively justify the use of the powers by virtue of the fact that the individual concerned is known to the Police or does not have a legitimate immigration status.
Suspects are now placed in a position where they are required to comply with the request of police officers, or they may be arrested and reasonable force may be used. Suspects have been historically afforded a right to silence, and following Rice v Connelly  2 All ER 649, there is no general requirement to comply with the demands of a police officer. In this case, Lord Parker stated that:
…every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of common law is that right of the individual to refuse to answer questions put to him by persons in authority.’
The use of the fingerprinting devices and the threat of arrest for failing to comply with the request is a significant departure from the common law position identified in Rice v Connelly.
The availability of this technology has delivered cost savings and convenience for Police forces (which are being lauded by the Home Office) – but at the expense of the right to privacy for individuals.
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