The Long Arm of the Algorithm? Automated Facial Recognition as Evidence and Trigger for Police Intervention

6 Pages Posted: 8 Jan 2020

See all articles by Kyriakos N. Kotsoglou

Kyriakos N. Kotsoglou

University of Northumbria at Newcastle - School of Law

Marion Oswald

University of Northumbria at Newcastle

Date Written: December 17, 2019

Abstract

Criminal law’s efficient and accurate administration depends to a considerable extent on the ability of decision-makers to identify unique individuals, circumstances and events as instances of abstract terms (such as events raising ‘reasonable suspicion’) laid out in the legal framework. Automated Facial Recognition has the potential to revolutionise the identification process, facilitate crime detection, and eliminate misidentification of suspects. This paper reviews the recent decision regarding the deployment of AFR by South Wales Police. We conclude that the judgment does not give the green light to other fact sensitive deployments of AFR. We consider two of these: a) use of AFR as a trigger for intervention short of arrest; b) use of AFR in an evidential context in criminal proceedings. AFR may on the face of it appear objective and sufficient, but this is belied by the probabilistic nature of the output, and the building of certain values into the tool, raising questions as to the justifiability of regarding the tool’s output as an ‘objective’ ground for reasonable suspicion. The means by which the identification took place must be disclosed to the defence, if Article 6 right to a fair trial is to be upheld, together with information regarding disregarded ‘matches’ and error rates and uncertainties of the system itself. Furthermore, AFR raises the risk that scientific or algorithmic findings could usurp the role of the legitimate decision-maker, necessitating the development of a framework to protect the position of the human with decision-making prerogative.

Keywords: Automated Facial Recognition, algorithms, policing, decision-making, reasonableness, evidence, individualisation

JEL Classification: K10

Suggested Citation

Kotsoglou, Kyriakos N. and Oswald, Marion, The Long Arm of the Algorithm? Automated Facial Recognition as Evidence and Trigger for Police Intervention (December 17, 2019). Available at SSRN: https://ssrn.com/abstract=3505456 or http://dx.doi.org/10.2139/ssrn.3505456

Kyriakos N. Kotsoglou

University of Northumbria at Newcastle - School of Law ( email )

Ellison Place 2
Newcastle upon Tyne, North East NE1 8ST
United Kingdom

Marion Oswald (Contact Author)

University of Northumbria at Newcastle ( email )

Pandon Building
208, City Campus East-1
Newcastle-Upon-Tyne, Newcastle NE1 8ST
United Kingdom

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