South Wales Police use of facial recognition technology was proportionate rules Court of Appeal

Though the court found that their DPIA and consideration of discriminatory effect was lacking, and that the interference in Article 8 rights was not in accordance with the law, South Wales Police have indicated that they do not intend to appeal.

The Court of Appeal has issued its decision in R (Bridges) -v- CC South Wales [2020] EWCA Civ 1058.

The High Court was asked to decide whether the current legal regime in the UK is adequate to ensure the appropriate and non-arbitrary use of automated facial recognition (AFR) in a free and civilised society. The case was the first time any court in the world had considered AFR. The parties brought the proceedings before the High Court to seek early guidance on the legal parameters and framework relating to AFR, whilst it is still in its trial phase, and before it is rolled out nationally. 

The judgment was directed specifically to the way in which the technology had been used by South Wales Police (SWP), in a pilot project known as "AFR Locate". In summary, AFR Locate involves the use of surveillance cameras to capture digital images of members of the public, which are then processed and compared with digital images of people on SWP watchlists. The question for the court was about the adequacy of the current legal framework in relation to AFR Locate, concerning human rights, data protection and equality legislation. The first instance court dismissed the claim for judicial review on all grounds. 

Appeal

There were five grounds of appeal. The decision of the Court of Appeal was unanimous.

The appeal succeeded on Ground 1, that the first instance court erred in concluding that SWP’s interference with Article 8(1) rights was “in accordance with the law” for the purposes of Article 8(2). The Court held that although the legal framework comprised primary legislation (DPA 2018), secondary legislation (the Surveillance Camera Code of Practice), and local policies published by SWP, there was no clear guidance on where AFR Locate could be used and who could be put on a watchlist. The Court held that this was too broad a discretion for police officers to meet the standard required by Article 8(2).

The appeal failed on Ground 2, that the first instance court erred in determining that SWP’s use of AFR was a proportionate interference with Article 8 rights under Article 8(2). The Court of Appeal held that the court had correctly conducted a weighing exercise with one side being the actual and anticipated benefits of AFR Locate and the other side being the impact of AFR deployment on individuals. The benefits were potentially great, and the effect on individuals was minor, and therefore the use of AFR was proportionate under Article 8(2).

The appeal succeeded on Ground 3, that the first instance court was wrong to hold that SWP provided an adequate data protection impact assessment (DPIA) as required under section 64 of the DPA 2018. The Court of Appeal found that, as the DPIA was written on the basis that Article 8 was not infringed, the DPIA was deficient.

The appeal failed on Ground 4, that the first instance court was wrong to not reach a conclusion as to whether SWP had in place an appropriate policy document under section 42 DPA 2018. The Court held that the first instance court was correct to not reach a conclusion on this point because it did not need to be decided. The two specific deployments of AFR Locate which were the basis of the claim took place before the DPA 2018 came into force.

The appeal succeeded on Ground 5, that the first instance court was wrong to hold that SWP complied with the PSED. The Court held that the purpose of the PSED was to ensure that public authorities give thought to whether a policy could have a discriminatory effect. SWP should have taken reasonable steps to make enquiries about whether the AFR Locate software had racial or sex bias. However, the Court noted that there was no clear evidence that AFR Locate software was, in fact, biased on the grounds of race and/or sex.

The Court granted a declaration to reflect the points on which the appeal succeeded. SWP have confirmed that they do not seek to appeal against the judgment. 

Published: 2020-08-11T15:00:00

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