Whilst deployment of AFR is not covert, it is nevertheless reasonable to suppose that a large number of people whose facial biometrics are captured and processed by SWP’s use of AFR are unaware of this taking place. Biometric Data
The use of AFR technology involves the collection, processing and storage of a wide range of information, including (1) facial images; (2) facial features ( i.e. biometric data); (3) metadata, including time and location, associated with the same; and (4) information as to matches with persons on a watchlist. AFR entails the processing of biometric data in the form of facial biometrics. The term “biometrics” is described in the Home Office “Biometrics Strategy – Better Public Services Maintaining Public Trust” published in June 2018 (para. 1) as “the recognition of people based on measurement and analysis of their biological characteristics or behavioural data”.
Biometric data enables the unique identification of individuals with some accuracy. It is this which distinguishes it from many other forms of data. Facial biometrics are one of the primary forms of biometric data, alongside fingerprints and DNA.
Facial biometrics bear some similarity to fingerprints because both can be captured without the need for any form of intimate sampling and both concern a part of the body that is generally visible to the public. A significant difference, however, is that AFR technology enables facial biometrics to be procured without requiring the cooperation or knowledge of the subject or the use of force, and can be obtained on a mass scale.
Oversight and Advisory Board
The Secretary of State has set up an Oversight and Advisory Board, comprising representatives from the police, the Home Office, the Surveillance Camera Commissioner, the Information Commissioner, the Biometrics Commissioner, and the Forensic Science Regulator, to co-ordinate consideration of the use of facial imaging and AFR by law enforcement authorities.
The specific incidents giving rise to these proceedings
In addition to challenging the lawfulness of SWP’s use of AFR Locate generally, the Appellant complains about two particular occasions when AFR Locate was used in Cardiff by SWP and, he maintains, he was caught on camera. Those two occasions were: (1) on 21 December 2017 at Queen Street, a busy shopping area in Cardiff; and (2) on 27 March 2018 at the Defence Procurement, Research, Technology and
Exportability Exhibition (“the Defence Exhibition”) which was held at the Motorpoint Arena.
21 December 2017 Deployment
On 21 December 2017 SWP deployed a single marked AFR-equipped van at Queen Street in Cardiff city centre. The AFR system was live from 8:00 am to 4:00 pm. There were three watchlists for this deployment: one was of a person suspected of having committed a serious crime, another comprised 382 people wanted on warrants, and the third comprised 536 suspects (in effect, every person suspected of committing a crime in SWP’s area). There were ten possible matches during the deployment. Of these two were not true matches. In one of those cases there was no intervention. Of the eight true matches there were two arrests.
The Appellant says he was present at Queen Street on 21 December 2017, that he was approximately 6-10 feet from the van and that he was, accordingly, in range of the cameras. He states that he did not see signage and was given no other warning indicating that AFR was in use prior to his being in close proximity to AFR-equipped vans.
27 March 2018 deployment
On 27 March 2018 the Defence Exhibition took place at the Motorpoint Arena in Cardiff. In previous years the event had attracted disorder and persons involved in past protests had caused criminal damage and made two bomb hoax calls to disrupt the event. AFR was live between 8:30 am and 4:00 pm with the cameras focusing on the arena’s entrance.
There were again three watchlists: one comprised subjects of interest who had been arrested at the same event the previous year, five of whom had been convicted of a variety of offences, another comprised 347 persons wanted on warrants, and the third comprised 161 suspects (linked to crimes in SWP’s area ranging from summary only offences to the most serious indictable offences). No arrests were made during this deployment. There were no false alerts. There was one correct match: one of the six people who had been arrested the previous year was correctly identified as being at the event. She had made a false bomb report the previous year, and had been convicted of that offence and sentenced to a suspended sentence order of 18 months’ imprisonment. The information that the offender was at the event was passed to the Event Commander, but no further action was taken.
The Appellant’s evidence was that he attended a protest outside the Motorpoint Arena. He stated in his witness statement that he was 25-30 metres away from the AFR-equipped van, but at one point he would have been closer than that. He said that, prior to seeing the van, he was not aware that AFR was in use, and he did not observe SWP officers providing any information about the use of AFR.
Relevant legal framework
Relevant legal and other material is set out in the Annex to this judgment.
The proceedings
The claim was filed by the Appellant on 3 October 2018 and issued on 18 October 2018. It was accompanied by a detailed Statement of Facts and Grounds, in which it
was stated that the Appellant challenged (1) the unlawful use of the technology against him on the two occasions mentioned above, and (2) SWP’s ongoing use of AFR in public places in the police area in which he resides, giving rise to clear risk of the technology again being used against him. It was stated that the grounds for the challenge were (1) breach of Article 8 of the Convention; (2) breach of Articles 10 and 11 of the Convention; (3) breaches of data protection law, namely section 4(4) of the DPA 1998 taken with the first data protection principle in Schedule 1, section 35(1) of the DPA 2018 and section 64 of the DPA 2018; and (4) breach of the PSED. The Appellant sought declarations as to those breaches and damages.
In the event, ground 2 has not been pursued.
SWP has not challenged the Appellant’s standing to bring these proceedings. It has not been possible for SWP to check either whether the Appellant’s image was recorded by CCTV on 21 December 2017 or 27 March 2018 or whether his facial biometric information was processed by the AFR equipment on either occasion. For pragmatic reasons SWP has accepted the Appellant’s evidence that he was present on both occasions and that on those occasions his image was recorded. SWP does not dispute that the Appellant is a victim for the purposes of section 7 of the HRA. Permission to apply for judicial review was granted by consent, SWP and the Secretary of State opposing the grounds for judicial review on the substantive merits.
The Divisional Court’s judgment
The Divisional Court heard the claim over three days. It handed down an admirably clear and comprehensive judgment on 4 September 2019. It is impossible in the following brief summary to do justice to the judgment. We do no more than summarise the principal points of the judgment in order to provide a context for this appeal and our discussion and conclusions below.
Article 8 of the Convention