By Jill Marshall, Marina Heilbrunn and Mark McGill
Introduction
Extended Reality (XR) refers to immersive technologies, including virtual and augmented reality (VR/AR), that can alter or replace perceptions of reality, offering exciting, new futures with untapped potential and positive uses. Recently, XR has formed the bedrock for immersive virtual training, enabling the safe, repeatable, reliable re-creation of training experiences that can be delivered en masse, anywhere, anytime, benefitting surgical and military training in particular. Given the technology’s advanced camera systems, eye tracking and facial recognition qualities, our multidisciplinary team is identifying the social, ethical, legal and technological vulnerabilities arising from XR police force training in England and Wales: First RespondXR, funded by SPRITE+ (Dr Leonie Tanczer, Professor David McIlhatton, Professor Jill Marshall, Dr Mark McGill, Dr Lena Podoletz, Marina Heilbrunn and Niamh Healy). There are many legal issues that can arise from XR and this blog only focuses on what can be learnt about potential legal implications for XR by discussing the College of Policing (‘the College’), its guidance, and human rights violations from case law involving other technologies.
Extended Reality and the Police
Law enforcement teams are creating and using XR training already. Reasons for doing so range from enhancing empathy to increasing resilience in dangerous or stressful scenarios. Some examples include: the Greater Manchester Police using VR headsets to deliver hate crime scenario-based training; XR simulating fire-arms training in the New York Police Department, and to improve training for European Police officers.
The Status of the College of Policing?
The College is a professional body, tasked with providing those working in policing with the skills and knowledge necessary for effective policing, including issuing guidance for the police force. The College is an operationally independent body of the Home Office, incorporated in 2012 as a company limited by guarantee. It will play a pivotal role in deployment of XR in training. Guidance issued by the College, and its status as a private company, have raised concern. Although the intention was to establish the College as a statutory body, this has not happened. Statutory body status enables functions to be tightly controlled and scrutinised by Parliament. Lord Blencathra recently voiced concern over the College, a powerful body, issuing guidance with little Parliamentary scrutiny. This, surely, needs to be addressed?
Inadequacy of the College’s Guidance and Human Rights
Recent Court of Appeal decisions have shed light on the inadequacy of the College’s guidance. These cases are brought by Judicial Review challenges to police action and demonstrate problems that can arise from poor guidance drafting and use of technology.
In R (Bridges) v The Chief Constable of South Wales Police, the Court considered the South Wales Police pilot of live automated facial recognition technology (AFR). The ‘AFR Locate’ system used surveillance cameras to capture digital images of the public, then subsequently processed this to extract facial biometric information. The information was compared to persons on police ‘watchlists’ including wanted persons and suspects. One aspect of the Court decision found this constituted an unlawful violation of the right to privacy under Article 8 of the European Convention of Human Rights. The College’s AFR guidance failed to specify who could be placed on the watchlist, and where AFR could be deployed. This left too much discretion to individual police officers, rendering their use of the technology unlawful.
The College’s guidance was again at the centre of judicial criticism in R (Miller) v The College of Policing. To seemingly conform with the College’s Hate Crime Operational Guidance, allegedly transphobic tweets made by Harry Miller were noted on the record as ‘non-crime hate incidents’, defined in the guidance as ‘any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice‘. The Court ruled that this recording of the incidents unlawfully violated Mr Miller’s right to freedom of expression. The guidance was inadequate: for example, it was unclear how much discretion the police had over when to record certain incidents. The Court warned that such confusion leads to an unacceptable lack of public transparency regarding what amounts to a ‘non-crime hate incident’. The guidance was revised between the first court decision and the Court of Appeal decision, but it was the original guidance that was under analysis. However, even the revised guidance was considered unsatisfactory. The court stated that:
The Guidance should truly reflect what the police are expected to do and should not mislead by omission either the police who have to use it or the public… (para. 123)
Lord Blencathra used Miller as an example of problems arising from the College’s non-statutory status. He said that if the guidance had ‘been debated in both Houses of Parliament rather than being merely a rule invented by a private limited company’ there would have been a much smaller possibility of it being struck down by Judicial Review.
Body-worn Cameras (BWC) and Human Rights
BWC are increasingly being used by the police. These are small, visible devices that can be attached to uniforms to record audio and video footage. The purpose is to capture and record behaviour, especially relevant if facts are later disputed. In 2014, the College issued guidance for the use of BWC and Body-Worn Video (BWV). Although it is yet to be subjected to legal challenge, this guidance has generated criticism, particularly relating to the wide discretion given to police officers as to when to use BWC given their undoubted privacy concerns.
Conclusion
The legal implications of XR’s use are vast. No cases have yet been litigated in the UK concerning its use by the police, but claims are bound to arise regarding its safety and surveillance capacities. What can be learnt about potential legal implications for XR from the College, its guidance, and human rights violations discussed here? Bridges, Miller, and criticisms of BWC demonstrate that wide or unclear scope of police discretion in guidance results in unlawful practices. Public trust in the police is paramount in a functioning legal system and transparency is required. In training, police are taught to excel at first responding, acting on behalf of society and citizens’ wellbeing and XR use should enhance, not detract, from that. We are currently identifying how trainees, the College, and the public – when this training is put into practice – may be exposed to unique social, technical and legal vulnerabilities because of XR. For example: trainees may be exposed to harms through the capture and further processing of personal sensitive information, and/or mental and physical damage as a result of the virtual training they experience; the police, the College, any others involved may face reputational damage, with resulting legal claims for injuries and rights’ violations as a result of inappropriate use of this technology; and our experience of policing as a society may be undermined by the delivery of flawed or unvalidated XR training that could result in unconscious bias, or have little-to-no transfer of training outcomes to practice. The legal team is continuing to uncover and interrogate the legal implications of XR use in this context and beyond.
A webinar discussing the wider project is taking place remotely on 26 May 2022 1-2pm BST. Please join us: https://www.eventbrite.co.uk/e/first-respondxr-digital-vulnerabilities-of-immersive-training-for-police-tickets-329485619357.
