- Bookmark
- Share
- CaseIQ
Bridges, R (On the Application Of) v South Wales Police
Factual and Procedural Background
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 processed and compared with images on a watchlist compiled by SWP for the deployment purpose. The technology was used overtly, not covertly, and accordingly issues under the Regulation of Investigatory Powers Act 2000 do not arise.
The appeal arises from the Divisional Court's order dated 4 September 2019 dismissing the Appellant's claim for judicial review challenging the legality of SWP's use of AFR Locate on two specific occasions and on an ongoing basis. The grounds of challenge included incompatibility with the right to respect for private life under Article 8 of the European Convention on Human Rights ("the Convention"), breaches of data protection legislation, and failure to comply with the Public Sector Equality Duty ("PSED") under section 149 of the Equality Act 2010.
The Appellant is a civil liberties campaigner supported by an independent civil liberties organisation. The Respondent is the Chief Constable of SWP. The Secretary of State for the Home Department is an Interested Party, responsible for policing nationwide and the lawful development of technologies like AFR. Two other interveners are the Information Commissioner and the Surveillance Camera Commissioner, both statutory regulators with responsibilities over data protection and surveillance cameras respectively. The Police and Crime Commissioner for South Wales also made written submissions as a third intervener.
The claim was filed on 3 October 2018 and issued on 18 October 2018. It challenged the unlawful use of AFR Locate on 21 December 2017 and 27 March 2018, and its ongoing use in public places within SWP's jurisdiction. The Appellant sought declarations and damages. Permission for judicial review was granted by consent.
The Divisional Court heard the claim over three days and delivered a comprehensive judgment on 4 September 2019, which forms the foundation for this appeal.
Legal Issues Presented
- Whether the interference with the Appellant's rights under Article 8(1) of the Convention occasioned by SWP's use of AFR Locate was in accordance with the law for the purposes of Article 8(2).
- Whether SWP's use of AFR at the December 2017 and March 2018 deployments constituted a proportionate interference with Article 8 rights.
- Whether SWP's Data Protection Impact Assessment complied with section 64 of the Data Protection Act 2018.
- Whether SWP has in place an appropriate policy document under section 42 of the Data Protection Act 2018 complying with statutory requirements.
- Whether SWP complied with the Public Sector Equality Duty under section 149 of the Equality Act 2010 in relation to AFR Locate's deployment.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R (Catt) v Association of Chief Police Officers [2015] UKSC 9 | Legal framework sufficiency for data retention and collection by police; "in accordance with the law" standard under Article 8. | The Court relied on this authority to confirm that a general legal framework with safeguards can satisfy Article 8(2) requirements even if not exhaustively codified. |
| R (P) v Secretary of State for Justice and Another [2019] UKSC 3 | Clarification of the "in accordance with the law" standard and its requirements of accessibility, foreseeability, and protection against arbitrariness. | The Court applied the principles to assess the sufficiency of the legal framework governing AFR Locate's deployment. |
| Bank Mellat v Her Majesty's Treasury (No 2) [2013] UKSC 39 | Four-part proportionality test for justifying interference with Convention rights. | The Divisional Court applied this test to evaluate whether AFR Locate's use was proportionate to the legitimate aim pursued. |
| Vidal-Hall v Google Inc [2015] EWCA Civ 311 | Definition of personal data in the context of biometric information and data processing. | Used to conclude that processing facial images by AFR constitutes processing of personal data. |
| Rynes v Urad (CJEU Case C-212/13) | Interpretation of personal data and data protection principles under EU law. | Supported the conclusion that AFR processing involves personal data requiring data protection safeguards. |
| Sunday Times v United Kingdom (1979) 2 EHRR 245 | Requirements of accessibility and foreseeability in the "in accordance with the law" standard. | Guided the Court's analysis of whether the legal framework governing AFR Locate met these requirements. |
| Silver v United Kingdom (1983) 5 EHRR 347 | Clarification of legal certainty and safeguards against arbitrariness. | Informed the Court's assessment of the discretion left to police officers in AFR deployment. |
| Malone v United Kingdom (1985) 7 EHRR 14 | Principles of legal protection against arbitrary interference with privacy rights. | Referenced in the Court's analysis of legal framework sufficiency. |
| Beghal v Director of Public Prosecutions [2016] AC 88 | Requirement for safeguards to prevent arbitrary discretion in interference with Convention rights. | Considered in evaluating the scope of discretion in AFR deployment policies. |
| Munjaz v United Kingdom [2012] MHLR 351 | Recognition that local policies can satisfy the "in accordance with the law" requirement under Article 8. | Supported the view that SWP's local policies may constitute relevant law. |
| Tele2 Sverige AB v Post-och telestyrelsen and R (Watson) v Secretary of State for the Home Department [2017] QB 771 | Conditions for compatibility of intrusive data retention legislation with fundamental rights. | Referenced to distinguish covert surveillance and large-scale retention cases from the overt AFR deployment. |
| S v United Kingdom (2009) 48 EHRR 50 | Consideration of retention of biometric data and Article 8 compliance. | Distinguished on facts from the present case; Court declined to decide "in accordance with the law" issue. |
| R (T) v Chief Constable of Greater Manchester [2014] UKSC 35 | Requirement for safeguards enabling adequate examination of proportionality. | Applied to affirm that legal framework must permit scrutiny of proportionality of interference. |
| Christian Institute v Lord Advocate [2016] UKSC 51 | Clarification on proportionality and timing of judicial review of interference with rights. | Referenced in submissions and considered regarding ability to challenge interference. |
| Brown v Stott [2003] 1 AC 681 | Importance of factual differences and degrees in assessing interference with rights. | Supported the Court's focus on the specific facts of the AFR deployments challenged. |
| R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 | Assessment of proportionality involving impact on appellant and others similarly situated. | Considered in argument about cumulative interference with Article 8 rights of multiple individuals. |
| R (Wood) v Metropolitan Police Commissioner [2009] EWCA Civ 414 | Relativist approach to precision of law required depending on intrusiveness. | Accepted by the Court as relevant principle in assessing legal framework sufficiency. |
| R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 | Principles governing the Public Sector Equality Duty (PSED). | Used to clarify the continuing, non-delegable nature of the PSED and its procedural requirements. |
| R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293 | Importance of advance consideration of race discrimination in public policy decisions. | Referenced in relation to the PSED obligation on SWP. |
| R (Hotak) v Southwark LBC [2015] UKSC 30 | Further authority on PSED's procedural nature and importance. | Supported the Court's analysis of PSED in the context of AFR deployment. |
| R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 | Requirement for substantive, rigorous, and open-minded exercise of the PSED. | Supported principles applied to the PSED challenge. |
| R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 | Further elaboration of the PSED requirements. | Referenced as part of the legal framework for PSED analysis. |
| R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293 | Emphasizes the importance of PSED as an integral mechanism for anti-discrimination. | Used to underline the significance of due regard in equality matters. |
| R v Turnbull [1977] QB 224 | Warnings regarding the reliability of identification evidence. | Referenced in discussion of human failsafe in AFR match confirmation. |
| Ladd v Marshall [1954] 1 WLR 1489 | Criteria governing the admissibility of fresh evidence on appeal. | Applied in procedural considerations regarding new documents and evidence. |
| Terluk v Berezovsky [2011] EWCA Civ 1534 | Application of Ladd v Marshall principles in appellate procedure. | Referenced in procedural matters concerning fresh evidence applications. |
Court's Reasoning and Analysis
The Court began by acknowledging the Divisional Court's detailed factual and legal analysis, particularly regarding the operation of AFR Locate and the legal framework governing its deployment. It accepted that AFR technology engages Article 8 rights due to the processing of biometric data capable of uniquely identifying individuals.
Regarding the "in accordance with the law" requirement under Article 8(2), the Court summarized established principles: the legal basis must be accessible, foreseeable, and provide adequate protection against arbitrariness. The Divisional Court had found that a three-layered framework—comprising primary legislation (notably the Data Protection Act 2018), secondary legislation in the form of codes of practice (such as the Surveillance Camera Code), and SWP's local policies—collectively provided sufficient legal standards.
However, the Court identified fundamental deficiencies in this framework. Specifically, it found excessive discretion left to police officers concerning who could be placed on watchlists ("the who question") and where AFR Locate could be deployed ("the where question"). The existing policies and legislation did not adequately circumscribe these discretionary powers, undermining the foreseeability and legal certainty required by Article 8(2).
The Court emphasized the importance of the automatic and near-instantaneous deletion of biometric data of individuals not matched on watchlists, considering this a critical safeguard that should be clearly mandated rather than merely described in policy.
On proportionality, while the Court acknowledged the Divisional Court's comprehensive application of the four-part test from Bank Mellat, it rejected the Appellant's submission that the cumulative impact on all persons scanned should be considered. The Court held the claim was focused on the Appellant's own rights and that the negligible impact on each individual could not be aggregated to outweigh the public interest.
Regarding data protection claims, the Court agreed with the Divisional Court that AFR Locate processing constitutes sensitive processing under the DPA 2018 and that the processing was strictly necessary for law enforcement purposes. Nonetheless, the Court found the Data Protection Impact Assessment (DPIA) deficient because it failed properly to assess risks arising from the broad discretion in watchlist inclusion and deployment locations, thereby breaching section 64 of the DPA 2018.
On the adequacy of SWP's policy document under section 42 of the DPA 2018, the Court upheld the Divisional Court's decision not to make a final determination, noting the evolving nature of the document and ongoing guidance from the Information Commissioner.
Concerning the Public Sector Equality Duty, the Court recognized the importance of the duty as a continuing, non-delegable procedural obligation requiring rigorous and substantive consideration of potential indirect discrimination. The Court found that SWP had not sufficiently investigated or addressed the risk of racial or gender bias inherent in AFR software, especially given the inability to access the training data for independent assessment. The Court rejected reliance on the "human failsafe" as insufficient to discharge the PSED. It concluded that SWP had not fulfilled its duty to have due regard to eliminating discrimination.
The Court declined to admit fresh evidence relating to a dispute over the role of an Oversight and Advisory Board, considering it peripheral and not affecting the core legal issues.
Holding and Implications
The Court's final decision was as follows:
- The appeal is allowed on Grounds 1, 3, and 5.
- Grounds 2 and 4 are dismissed.
- There shall be no order as to costs.
The Court made the following declarations:
- The Respondent's use of live automated facial recognition technology on 21 December 2017 and 27 March 2018 and on an ongoing basis, engaging Article 8(1) of the European Convention on Human Rights, was not in accordance with the law for the purposes of Article 8(2).
- Consequently, the Respondent's ongoing use of AFR technology did not comply with section 64(3)(b) and (c) of the Data Protection Act 2018 concerning its Data Protection Impact Assessment.
- The Respondent did not comply with the Public Sector Equality Duty in section 149 of the Equality Act 2010 prior to or during its use of AFR technology on the specified dates and ongoing.
The direct effect of this decision is to require SWP to revise its legal and policy framework governing AFR Locate to ensure compliance with Article 8, data protection law, and the PSED. The ruling does not establish new precedent beyond clarifying the insufficiency of the current framework and the necessity for clear, precise, and foreseeable legal standards limiting discretion in watchlist inclusion and deployment locations. It also underscores the procedural rigor required under the PSED to address potential indirect discrimination risks in novel technologies.
Alert