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In R (Thompson and Carlo) v Commissioner of Police for the Metropolis [2026] EWHC 915 (Admin) the Divisional Court rejected a challenge to the Metropolitan Police’s (MPS’s) use of overt live facial recognition technology (“LFR”).
LFR involves the use of cameras which capture images of members of the public and expresses their facial features as unique biometric or numerical values. The software then compares those values with the biometric details of a number of persons sought by the police on a watchlist to assess whether they indicate a likely match.
If there is no match, the biometric data is automatically and immediately deleted (within micro-seconds).
If there is a match, specially trained officers consider what action to take (if any).
The MPS had developed a LFR policy setting out the circumstances in which the technology could be deployed.
The Claimant’s central submission was that the policy gave too much discretion to individual police officers in respect of when, where and against whom LFR may be deployed. The Claimant asserted the policy breached:
The parties agreed that the points boiled down to the same issue, such that, if the policy was in accordance with the law, it would also be prescribed by law.
The Court noted that, as held in R (Catt) v Association of Chief Officers of England, Wales and Northern Ireland (Equality and Human Rights Commission intervening) [2015] UKSC 9, the police have a common law power to obtain and store information for policing purposes.
The test for whether the policy was in accordance with the law/ prescribed by law is that set out in In Re Gallagher [2019] UKSC 3:
“The measure must not confer a discretion so broad that its scope is in practice dependent on the will of those who apply it, rather than on the law itself”
In the leading case of R (Bridges) v Chief Constable of South Wales Police (Information Commissioner and others intervening) [2020] 1 WLR 5037 (in which three members of 5 Essex acted), the Court of Appeal concluded that South Wales Police’s legal framework lacked the quality of law needed to avoid arbitrariness. The core issue in this case was whether the MPS’s new policy fell into the same legal error.
In summary, the Divisional Court ruled that the Metropolitan Police’s LFR policy was in accordance with the law and was lawful. Each of the main arguments raised by the Claimant are considered in turn.
First, the Claimant argued that the definition of a crime hotspot, which was one of the permitted areas within which LFR could be used, was too vague because ‘crime hotspot’ was partially defined based upon ‘operational experience as to future criminality’. The Court rejected that argument. In fact, the policy required a ‘crime hotspot’ to be a place where the crime rate and/ or the rate at which crime was rising is assessed to fall within the upper quartile for the relevant area. Whether an area met that definition had to be assessed in accordance with the MPS’ corporate knowledge, rather than the judgment of an individual officer.
Second, the Claimant argued that the MPS had used the same watchlist on more than one occasion and therefore presumably on multiple occasions. However, the Court considered that that argument did not assist with the core challenge that had been brought. This was an operational issue rather than one of legality.
Third, the Equality and Human Rights Commission suggested the technology might have become more intrusive since Bridges. However, the Court determined that there was no evidence of this and potential future developments (e.g. the integration of LFR with AI) was a hypothetical issue which was not before the Court.
Fourth, the Claimant submitted that LFR could be deployed arbitrarily and this could lead to disproportionate deployment of the technology in ethnic minority areas. However, the Court ruled that the Claimant had not brought a developed or meaningful challenge on this ground. There was no challenge concerning the Public Sector Equality Duty, for example.
Fifth, the Claimant argued the largescale effect of LFR meant that it could have a chilling effect on the right to political protest. The Court disagreed, stating the police did not need to set out all possible circumstances in which a discretion/ power could be exercised. The policy required chilling effects to be considered.
Sixth, the Claimant argued the policy failed to prevent the police from using LFR in a place which had no connection to the person they were trying to catch. The Court said that was a misreading of the policy, which required a link between the person and the area in which the LFR is deployed.
Finally, the Claimant argued that the policy simply restated the law and failed properly to consider proportionality. However, the Court noted that proportionality was considered at multiple stages within the policy and it also gave specific examples.
The MPS, and police forces more broadly, will no doubt be pleased with this judgment. This is the first domestic judgment upholding the police’s use of LFR on all grounds.
The case is not, however, the end of the story. It is notable that a discrimination challenge was not fully developed (perhaps because the statistics deployed by the MPS imply LFR is being used with a high degree of accuracy). Nor did the court focus on whether the MPS’s use of the technology was ‘necessary’ for the purposes of the Data Protection Act 2018. These issues are likely to recur in future, particularly as the technology develops further.
The Claimants have already indicated that they will be appealing this decision.
Robert Talalay (alongside Anya Proops KC and Raphael Hogarth of 11KBW) acted for the successful Metropolitan Police Service.
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
