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Bridges, R (On the Application Of) v South Wales Police
Neutral Citation Number [2020] EWCA Civ 1058
Sir Terence Etherton MR, Dame Victoria Sharp PQBD and Lord Justice Singh :
This appeal concerns the lawfulness of the use of live automated facial recognition technology (“AFR”) by the South Wales Police Force (“SWP”) in an ongoing trial using a system called AFR Locate. AFR Locate involves the deployment of surveillance cameras to capture digital images of members of the public, which are then processed and compared with digital images of persons on a watchlist compiled by SWP for the purpose of the deployment. On the facts of the present case, AFR Locate has been used in an overt manner. It was not deployed as a form of covert surveillance. For that reason it is common ground that this case does not raise issues that might otherwise arise under the Regulation of Investigatory Powers Act 2000 .
The appeal is from the order dated 4 September 2019 of Haddon-Cave LJ and Swift J in the Divisional Court of the Queen’s Bench Division dismissing the Appellant’s claim for judicial review challenging the legality of the use of AFR Locate on two particular occasions and on an ongoing basis. The grounds of challenge were that AFR is not compatible with the right to respect for private life under Article 8 of the
European Convention on Human Rights (“the Convention”), which is one of the
Convention rights set out in Sch.1 to the Human Rights Act 1998 (“HRA”); data protection legislation; and the Public Sector Equality Duty (“PSED”) in section 149 of the Equality Act 2010 .
The Divisional Court recorded in its judgment the co-operative and helpful way in which the case had been presented on all sides in order to ascertain the court’s early guidance as to the legal parameters and framework relating to AFR while it is still in its trial phase and before it is rolled out nationally. This appeal has been conducted on the same basis.
The Parties
The Appellant, Edward Bridges, who was the claimant in these proceedings, is a civil liberties campaigner who lives in Cardiff. He has been supported by Liberty, the wellknown independent civil liberties membership organisation. The Respondent is the Chief Constable of SWP ( Heddlu De Cymru ).
The Interested Party, the Secretary of State for the Home Department, is responsible for policing nationwide and has concern for the development and lawful use of technology, such as AFR, which has the potential to assist in the prevention and detection of crime. The Secretary of State has provided funding to SWP to develop AFR and in June 2018 published the Home Office Biometrics Strategy. The Secretary of State created an Oversight and Advisory Board to co-ordinate consideration of the use of facial images and AFR technology by law enforcement authorities.
There are two interveners who were also interveners before the Divisional Court, the Information Commissioner and the Surveillance Camera Commissioner. The Information Commissioner has specific statutory powers and responsibilities under the Data Protection Act 2018 (“the DPA 2018”), and also had responsibilities under the predecessor legislation, the Data Protection Act 1998 (“the DPA 1998 ”). The Surveillance Camera Commissioner is the statutory regulator of surveillance cameras. He has specific powers and responsibilities under section 34 of the Protection of Freedoms Act 2012 (“the PFA 2012 ”) with regard to encouraging compliance with
the Surveillance Camera Code of Practice, reviewing its operation and providing advice about the Code of Practice. His responsibilities include, in particular, regulating the use of surveillance cameras and their use in conjunction with AFR technology. In addition, this Court has received submissions (in writing only) on behalf of a third intervener, the Police and Crime Commissioner for South Wales.
AFR and its deployment by SWP
An impressive explanation of AFR and its deployment by SWP was given in considerable detail in the judgment of the Divisional Court. For a full account, reference should be made to that judgment at [23]-[40]. There has been no criticism of the accuracy of the Divisional Court’s account. We have, therefore, gratefully taken what follows from their judgment.
AFR Technology
AFR is a way of assessing whether two facial images depict the same person. A digital photograph of a person’s face is taken and processed to extract biometric data ( i.e. measurements of the facial features). That data is then compared with facial biometric data from images contained in a database.
In more detail, the technical operation of AFR comprises the following six stages:
Compiling/using an existing database of images . AFR requires a database of existing facial images (referred to in this case as “a watchlist”) against which to compare facial images and the biometrics contained in them. In order for such images to be used for AFR, they are processed so that the “facial features” associated with their subjects are extracted and expressed as numerical values.
Facial image acquisition . A CCTV camera takes digital pictures of facial images in real time. This case is concerned with the situation where a moving image is captured when a person passes into the camera’s field of view, using a live feed.