Published on
Minister McEntee receives Cabinet approval for draft Facial Recognition Technology Bill
Minister McEntee receives Cabinet approval for draft Facial Recognition Technology Bill
Minister for Justice Helen McEntee TD has today announced that she has received Government approval to publish the General Scheme of the Garda Síochána (Recording Devices) (Amendment) Bill 2023, which will allow An Garda Síochána use Facial Recognition Technology (FRT) in specific circumstances.
FRT will save thousands of Garda hours by allowing the use of biometric identification to retrospectively search CCTV. It is a key element of Minister McEntee’s agenda to build stronger, safer communities.
In light of the riots in Dublin City Centre on the 23rd November, Minister McEntee has secured Cabinet approval for the offences of riot and violent disorder to be now been included in the proposed scope of FRT. The maximum penalty for each of these offences is an unlimited fine, a prison sentence of up to 10 years, or both.
In addition to asking the Oireachtas Justice Committee to conduct pre-legislative scrutiny, Minister McEntee will now ask the Committee to consider an additional list of serious offences for possible inclusion in the schedule of offences in the Bill.
The publication of the draft FRT Bill follows shortly after the passage of the Garda Síochána (Recording Devices) Act 2023 through the Oireachtas on the 29 November 2023. It was signed into law on the 5 December.
This Act will allow An Garda Síochána rollout bodycams from next spring, starting in Dublin city centre.
It will also provide for a robust and modern statutory framework for the use by An Garda Síochána of recording devices and the processing of video and audio data to support their functions in investigating, detecting, preventing and prosecuting criminal offences, safeguarding against and preventing threats to public safety and public order, and in matters relating to the security of the State.
The draft FRT Bill will amend the Garda Síochána (Recording Devices) Act 2023 in order to give effect to the Government decision to provide that biometric identification may be used by An Garda Síochána.
Under the Data Protection Act 2018, it is not possible for An Garda Síochána to process biometric data without a clear statutory basis.
The power to utilise biometric identification using facial images (often referred to as facial recognition technology) needs to be explicitly provided for and is set out in this General Scheme.
“There has been an explosion in the use of digital data in criminal investigations, and that without adequate data analysis tools, the length of criminal investigations will increase.
“We are already seeing Gardaí having to trawl through thousands of hours of CCTV – 12,000 hours in the case of the Dublin riots. Facial Recognition Technology will dramatically save time, speed up investigations and free up Garda resources for the high visibility policing we all want to see.
“Reducing the amount of time it takes Gardaí to go through video footage will be of particular help where time is of the essence following a very serious crime being committed. It is in the interests of all parties, not least victims of crime, to have criminal investigations pursued as effectively and rapidly as possible.
“The General Scheme is intended to provide for the use of biometric identification, using facial images, by An Garda Síochána for an exhaustive list of the most serious of offences. It will only provide for a limited form of retrospective use of biometric identification which can assist An Garda Síochána when they are searching CCTV footage and data.”
The draft Bill will provide for retrospective searching of images which are legally in the possession of An Garda Síochána, through the safe and ethical use of biometric identification in the following circumstances only:
(i) where a serious offence is suspected, as listed in the Schedule of the General Scheme;
(ii) the use of biometric identification is necessary and proportionate in that specific case;
(iii) each particular use of biometric identification is authorised in writing in advance by a Chief Superintendent and a record of that authorisation maintained.
The Government decision today has expanded this to include riot and public disorder.
Such use can only be in the context of the prevention, investigation, detection or prosecution of one or more of the criminal offences listed in the Schedule or for the protection of the security of the State.
It is also important to note that there are numerous provisions included in the General Scheme which provide safeguards and oversight of the powers granted to An Garda Síochána.
Minister McEntee continued:
“While allowing An Garda Síochána access to technology to assist them in performing their function is something that we can all agree is necessary, the power provided must be subject to sufficient safeguards and oversight to ensure the use of this technology is necessary and proportionate at all times.
“This draft Bill ensures there is a requirement for a statutory code of practice, including requirements to conduct data protection and human rights impact assessments.
“Not only does it ensure that the requirements for a code of practice cover the use of this type of biometric identification, it also ensures that any code created under these provisions, will have to be approved by the Houses of the Oireachtas.
“There will also be judicial oversight. The designated judge of the High Court will have to report to the Taoiseach annually on the operation of the Part and the report will be laid before the Oireachtas.”
The General Scheme will now be submitted to the Joint Oireachtas Committee on Justice for pre-legislative scrutiny and to the Office of Parliamentary Counsel for drafting.
The Minister’s request to the Oireachtas Justice Committee to consider an additional list of serious offences which FRT could be used to investigate.
They are not subject to a penalty on conviction of up to life imprisonment, however many carry very significant sentences (e.g. some have max sentences of 14 years).
They comprise additional sexual and child exploitation offences and other serious violent offences for which biometric identification is likely to be effective and are subject to extremely serious penalties.
A full list of the offences being referred to the Committee are contained in the Notes to Editors section.
The Minister also noted the progress being made at European level in relation to the AI Act and said that new legislation would be drafted fully in line with the requirements of EU law. When the agreed final text is available, any necessary amendments required, will be made during the drafting process.
Serious offences included in the General Scheme
In addition to the protection of state security, the Bill would apply to the following offences:
- False Imprisonment: Section 15 of the Non-Fatal Offences against the Person Act 1997.
• Aggravated Sexual Assault
- Criminal Law (Rape) (Amendment) Act 1990, section 3(1) and section 4(1)
- Criminal Law (Sexual Offences) Act (2017), section 21(4).
- Criminal Justice (Theft and Fraud Offences) Act, 2001, section 13
- Non-Fatal Offences against the person Act 1997, section 4 and section 4A
- Offences Against the Person Act 1861, section 4
- Any offence under section 3 of the Criminal Justice Act 1990
- The Common Law offence of Murder
- The Common Law offence of Manslaughter
- The Common Law offence of Rape
- Criminal Law (Rape) (Amendment) Act 1990, section 4
• Riot and Violent Disorder
- Criminal Justice (Public Order) Act 1994, sections 14 and 15
- Criminal Justice (Theft and Fraud Offences) Act (2001), section 14
- Child Trafficking and Pornography Act 1998, section 3
- Criminal Law (Sexual Offences) Act 2006, section 2
Offences not included in Schedule but referred to Oireachtas Justice Committee
The Government has agreed to ask the Joint Oireachtas Committee to consider whether the following offences should be included in the Bill during drafting:
• Non-Fatal Offences Against the Person Act (1997), sections 16 & 17 (abduction of a child by a parent and abduction of a child by a person other than their parent is punishable by imprisonment for a term not exceeding 7 years.
• Criminal Law (Rape) (Amendment) Act 1990, section 2 (sexual Assault, punishable by imprisonment for a term not exceeding 14 or 10 years).
• Criminal Law (Sexual Offences) Act 2006, section 3 and 3A (defilement of child under 17 years and the same offence but by a person in authority, punishable by imprisonment for a term not exceeding 15 years and 10 year respectively).
• An offence under any of the following provisions of the Child Trafficking and Pornography Act 1998:
- Section 4 (allowing child to be used for child pornography, punishable by imprisonment for a term not exceeding 14 years).
- Section 4A (organising etc. child prostitution or production of child pornography, punishable by imprisonment for a term not exceeding 14 years).
- Section 5 (producing or distributing child pornography, punishable by imprisonment for a term not exceeding 14 years).
- Section 5A (participation of child in pornographic performance, punishable by imprisonment for a term not exceeding 10 years).
• Criminal Law (Human Trafficking) Act 2008, section 5 (soliciting or importuning for purposes of prostitution of trafficked person, punishable by imprisonment for a term not exceeding 5 years).
• Criminal Justice Act 2006, section 176 (reckless endangerment of children, punishable by imprisonment for a term not exceeding 10 years).
• Children Act 2001, section 249 (causing or encouraging sexual offence upon a child, punishable by imprisonment for a term not exceeding 10 years).
• An offence under any of the following provisions of the Criminal Law (Sexual Offences) Act 2017:
- Section 4 (invitation to sexual touching, punishable by imprisonment for a term not exceeding 14 years).
- Section 5 (sexual activity in presence of child, punishable by imprisonment for a term not exceeding 10 years).
- Section 6 (causing child to watch sexual activity, punishable by imprisonment for a term not exceeding 14 years).
- Section 7 (meeting a child for the purposes of sexual exploitation, punishable by imprisonment for a term not exceeding 14 years).
- Section 8 (use of information and communication technology to facilitate sexual exploitation of child, punishable by imprisonment for a term not exceeding 14 years).
- Criminal Damage Act (1991), section 2 (includes arson and criminal damage with intent to endanger life)
- Criminal Justice (UN Convention against Torture) Act (2000), section 2
- Misuse of Drugs Act (1977), sections 15A and 15B (drug trafficking offences for drugs over the value of €13,000, which subject to maximum penalties of life imprisonment)
- Criminal Justice (Public Order) Act 1994, section 19 (Assault or obstruction of peace officer)
The proposed Heads of the Bill are as follows:
Head 1 states the future title of the Bill and details of its commencement.
Head 2 provides for the definitions that are to be used in the Bill. The definition of ‘biometric data’ is based on section 69 of the Data Protection Act 2018 but is restricted to facial images only. The term ‘Biometric identification’ is defined as identifying a person by comparing their ‘biometric data’ (their facial image) against legally held images by AGS.
Head 3 prohibits processing of biometric data other than as explicitly provided in this Bill or required under EU and international cooperation agreements. It also requires any processing to be undertaken in compliance with a statutory Code of Practice. The Code of Practice is subject to a human rights impact assessment and consultation with a range of stakeholders including the Data Protection Commission.
Head 4 provides for the circumstances in which An Garda Síochána will have the power to process biometric data – for the investigation of an exhaustive list of serious violent offences, set out in the Schedule to the Bill, and for the protection of the security of the State.
Head 5 provides that a member of An Garda Síochána must apply to a Chief Superintendent or higher rank to utilise biometric identification. Any such application must include the purpose and parameters of that utilisation.
Head 6 provides that the Chief Superintendent to whom an application is made under Head 5, may approve that application if they are independent of the investigation and believe, on reasonable grounds, that the use is necessary and proportionate and that they believe that it is related to an offence included in the Schedule or is related to the security of the State. That Chief Superintendent can include conditions as part of their approval and a written record of all applications is to be maintained.
Head 7 provides for how biometric identification may be used i.e. to search any images that An Garda Síochána legally retains. It further provides for the verification of the results by a trained member of AGS prior to release to the investigation team.
Head 8 provides An Garda Síochána with a power to process data, for a purpose set out under Head 4.
Head 9 is a standard offence provision against the misuse of information obtained through biometric identification and is consistent with the offences already provided for in the Principal Act.
Heads 10 to 16 are consequential amendments which add in the reference to this new Part (Part 6A) in the Principal Act.