Use of automatic facial recognition software

On 4 September Haddon-Cave LJ and Swift J in the Divisional Court had to grapple with the legal issues surrounding automatic facial recognition (AFR) when considering a South Wales Police (SWP) national pilot scheme surrounding AFR. R (Bridges) v Chief Constable of South Wales Police (Information Commissioner and another intervening) [2019] EWHC 2341 (Admin) was apparently the first time that any court in the world had considered AFR. 

As the court indicated: ‘The judgment in this case is directed specifically to the way in which the technology has been used to date by SWP, in the form of a pilot project known as “AFR Locate”’. In summary, ‘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 watchlists compiled by SWP for the purpose of the deployment’. 

However, as the court noted: ‘If during a deployment of AFR Locate the software identifies a possible match between a face captured on the CCTV and an image on the watchlist, the two images are reviewed by an AFR operator [who is a police officer] to establish whether he believes that a match has in fact been made’. As the judges indicated: ‘In our view, the fact that the human eye is used to ensure that an intervention is justified, is an important safeguard.’

The claimant was Edward Bridges, a Cardiff-resident civil liberties campaigner. He was supported by Liberty. The defendant was chief constable of SWP, which is the national lead on AFR use in UK policing (assisted by government funding) and has been responsible for conducting trials of AFR technology since mid-2017. The claimant challenged the lawfulness of SWP’s use of AFR Locate generally and complained regarding two particular occasions (both part of the SWP pending trial) when AFR Locate was used in Cardiff by SWP when he was present.

The claimant claims to have been present and to have been caught on camera on each of these two occasions. His overall contention was that SWP’s use of AFR Locate, on the two occasions in question and generally, is contrary both to convention rights and the requirements of data protection legislation. The claimant also contends that when deciding to implement use of AFR Locate, SWP failed to comply with the public sector equality duty (that is, the obligation on public authorities such as SWP, under section 149(1) of the Equality Act 2010, to have ‘due regard’ to certain prescribed matters when exercising their functions).

It appeared that if the claimant’s data had been processed on the material occasions, his biometric data and facial image would have been immediately deleted from the AFR system. In addition, he had not been included on an SWP watchlist in its deployments of AFR to date and SWP does not hold any of his personal data (except as a result of the instant legal proceedings).

The judgment (running to 69 pages) deals with all the legal issues in considerable detail and with reference to relevant authorities and is well worth studying by all those with a professional interest in this area. Space permits only a brief overview of key findings.

In respect of convention rights (and in particular article 8 – right to respect for personal and family life and so on), the court noted (among other authorities) S v United Kingdom (2009) 48 EHRR 50. The European Court of Human Rights emphasised the significance of the protection of personal data as part of protecting article 8 rights and indicated that: ‘The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of article 8’. In all the circumstances, the court found that the use of AFR Locate did entail infringement of the article 8(1) rights of those in the position of the claimant in this case.

However, as to the legal basis for SWP’s use of AFR, the court found that the police’s common law powers were ‘amply sufficient’ in relation to the use of AFR Locate. Moreover, the police did not need new express statutory powers for this purpose. The court also considered that there was a clear and sufficient legal framework governing whether, when and how AFR Locate may be used. This comprised three elements: primary legislation; secondary legislative instruments; and SWP’s own policies. Each provides legally enforceable standards.

For the purpose of the four-part proportionality test in Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700, the court was ‘satisfied that there is no systemic or clear “proportionality deficit” such that it can be said that future use of AFR Locate by the SWP would be inevitably disproportionate’.

The data protection and Equality Act 2010 claims were also dismissed. As to the latter, the court considered the April 2017 equality impact assessment document to have demonstrated that due regard was had by SWP to the section 149(1) criteria. So, for the reasons detailed in the judgment, the court dismissed the claimant’s claim for judicial review on all grounds. The court was ‘satisfied both that the current legal regime is adequate to ensure the appropriate and non-arbitrary use of AFR Locate, and that SWP’s use to date of AFR Locate has been consistent with the requirements of the Human Rights Act, and the data protection legislation’.

Nicholas Dobson writes on local authority law and governance