The Appellant’s criticism is that the Divisional Court was obliged to reach a finding on whether the November 2018 Policy Document complied with section 42, and ought to have found that it did not.
We would reject this ground of appeal for reasons which can be shortly stated.
The two specific deployments which are the subject of the Appellant’s claim took place on 21 December 2017 (Queen Street) and 27 March 2018 (Motorpoint Arena). Those were before the DPA 2018 came into force. There is no alleged failure to comply with the DPA 1998 on this point.
Accordingly, the only relevance of compliance with section 42 was in relation to any future use of AFR in which the Appellant’s image might be captured and processed by AFR. A section 42 document is an evolving document, which, in accordance with section 42(3), must be kept under review and updated from time to time. At the time of the hearing before the Divisional Court no guidance had been issued by the Information Commissioner as to the contents of a section 42 document. The Divisional Court said (at [140]) that it would be desirable to see specific guidance from the Information Commissioner, in exercise of her powers under Schedule 13 to the DPA 2018, on what is required to meet the section 42 obligation. The Information Commissioner herself expressed the view to the Divisional Court that the November 2018 Policy Document contained sufficient information to comply with the requirements of section 42(2), if barely so. That view has been repeated by the Information Commissioner on this appeal. In the event, on 4 November 2019, after the Divisional Court’s judgment, the Information Commissioner did publish guidance on what a section 42 document should contain – “Law Enforcement Processing: Part 3 Appropriate Policy Document Template”. SWP have now revised their November 2018 Policy Document in the light of that guidance.
In those circumstances - particularly as the Information Commissioner had expressed the view to the Divisional Court that the November 2018 Policy Document satisfied section 42(2) but ideally should be more detailed and the Divisional Court itself was uncertain whether or not it did meet the standard required by section 42 - it was entirely appropriate for the Divisional Court to make no final judgment on the point
and to leave the SWP to make such revisions as might be appropriate in the light of any future guidance by the Information Commissioner.
For those reasons we would reject this ground of appeal.
Ground 5: Public Sector Equality Duty
The terms of the PSED are set out in section 149(1) of the Equality Act 2010 as follows:
“A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act ; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”
The two protected characteristics that are relevant in the present case are race and sex. It is submitted on behalf of the Appellant that SWP are in breach of the PSED because they have never had due regard to the need to eliminate discrimination on those two grounds which may arise from the software which is used in the deployment of AFR Locate. It is said that there is scientific evidence that facial recognition software can be biased and create a greater risk of false identifications in the case of people from black, Asian and other minority ethnic (“BAME”) backgrounds, and also in the case of women.
It is important to be clear that it is not alleged that the software used by SWP does have that effect. There is no claim brought on the basis of the negative obligations in the Equality Act, not to discriminate (whether directly or indirectly). Rather the complaint is based on an alleged breach of the positive duty to have due regard to the need to eliminate such discrimination.
As we have mentioned above, Ground 5 in this appeal was formulated as follows:
“The Divisional Court was wrong to hold that the Respondent complied with the Public Sector Equality Duty in section 149 of the Equality Act 2010 in circumstances in which the Respondent’s Equality Impact Assessment was obviously inadequate and based on an error of law (by failing to recognise the risk of indirect discrimination) and the Respondent’s subsequent approach to assessing possible indirect discrimination arising from the use of AFR is flawed.”
In the Appellant’s skeleton argument for this appeal, at para. 47, the submission was maintained that the Equality Impact Assessment dated 13 April 2017 was erroneous in law because consideration was given only to the possibility that AFR might be directly discriminatory and no consideration was given to whether it might operate in an indirectly discriminatory manner. This argument was not pursued by Mr Squires at the hearing before us, although he did not formally abandon it. He made clear during the course of the hearing, when pressed by the Court, that his focus was on the alleged continuing failure to discharge the PSED, and not upon the Equality Impact Assessment of April 2017.
The Equality Impact Assessment of April 2017 was headed “Initial Assessment”. The use of the word “initial” did not mean that the assessment was only provisional or that there would be a further or fuller assessment in due course. It meant only that the initial assessment had not led to any concerns which were thought to require further investigation. In any event, as is common ground, there has been no further Equality Impact Assessment since April 2017. The focus of Mr Squires’s submissions before us was on the point that the PSED is a continuing duty and, submits Mr Squires, there is a continuing breach of it.
This has always been part of the Appellant’s case: see para. 92 of the Statement of
Facts and Grounds, where it was made clear that the PSED is “an ongoing obligation.”
The reasons of the Divisional Court for rejecting this ground of challenge were set out at [153]-[158] of its judgment.
At [153] the Divisional Court said:
“In our view, on the facts of this case there is an air of unreality about the Claimant's contention. There is no suggestion that as at April 2017 when the AFR Locate trial commenced, SWP either recognised or ought to have recognised that the software it had licensed might operate in a way that was indirectly discriminatory. Indeed, even now there is no firm evidence that the software does produce results that suggest indirect discrimination. Rather, the Claimant's case rests on what is said by Dr Anil Jain, an expert witness. In his first statement dated 30 th September 2018, Dr Jain commented to the effect that the accuracy of AFR systems generally could depend on the dataset used to ‘train’ the system. He did not, however, make any specific comment about the dataset used by SWP or about the accuracy of the NeoFace Watch software that SWP has licensed. Dr Jain went no further than to say that if SWP did not know the contents of the dataset used to train its system ‘it would be difficult for SWP to confirm whether the technology is in fact biased’. The opposite is, of course, also true.”
At [156]-[158] the Divisional Court said the following: