Facing up to the Future: Live Facial Recognition – An Update

BRIDGES

In June 2020, Jason Beer QC and I were privileged to appear in the Court of Appeal for the appeal in the first case in the world to examine the use by police of live facial recognition (“LFR”) technology:

R (on the application of Edward Bridges) v Chief Constable of South Wales Police (Respondent); The Secretary of State for the Home Department (Interested Party); (1) The Information Commissioner; (2) The Surveillance Camera Commissioner; (3) The Police and Crime Commissioner for South Wales (Interveners) [2020] EWCA Civ 1058.

Perhaps appropriately, given the technological subject matter, the case was heard remotely due to the Covid-19 pandemic.

Edward Bridges, a member of the public represented by Liberty, challenged the lawfulness of South Wales Police’s use of a type of LFR. The case was brought as “friendly litigation”, that is, both parties welcomed early judicial scrutiny of the way in which the police were beginning to deploy LFR. We – and all parties involved – were acutely aware of the cutting edge nature of both the technology and the law: the way in which facial recognition technology is permitted to be used will impact not only the law but society as a whole. It affects competing public interests: the ability of the police to catch criminals and protect the public, and individual privacy rights.

Whereas the Divisional Court had found that South Wales Police’s particular use of LFR was lawful, the Court of Appeal held primarily that the legal framework within which LFR falls was insufficiently precise regarding WHERE it could be used and WHO could be the subjects on the watchlist.

The implications of the appeal decision were that it was not necessary for primary legislation to be enacted to regulate the use of LFR. However, greater specificity was required to be given (either within the Surveillance Camera Code and/or in police policy documents) as to the categories of people in respect of whom LFR might be used and the locations of potential deployments.

BRIDGING THE BRIDGES GAPS

In December 2020, the outgoing Surveillance Camera Commissioner (the role is now the Biometrics and Surveillance Camera Commissioner) published best practice guidance pursuant to the Protection of Freedoms Act 2012 and the Surveillance Code of Practice – ‘Facing the Camera’ (the SCC Guidance) – which provided helpful indicators of likely remedies for the deficiencies identified in Bridges.

The SCC Guidance suggested that police policies must provide clarity as to the parameters of “what”, “why”, “when” and “how” LFR would be used, in addition to the “Where” and “Who” questions which were the focus of the Court in Bridges:

            What is the problem to be investigated or otherwise addressed by police action and what is sought to be achieved by the intended conduct?

            Why is it considered to be necessary and proportionate to conduct surveillance by means of a surveillance camera system enhanced with facial recognition technology against known individuals in the context of what the police seek to achieve?

When is it intended to operate in terms of times/days of the week etc and what is the duration/lifespan of the intended operational conduct?

How is it intended to conduct the use of facial recognition technology in the circumstances described and how will risk be managed?

The SCC guidance also provided guidance on necessity and proportionality, indicating that grounds of necessity “may for example be the prevention and detection of crime, public safety, national security etc.” and explained that police should set out why their operational conduct was “necessary rather than simply desirable, convenient, or is otherwise borne out of no other reason than having the technical capability at their disposal”. In terms of proportionality, it stated that it “is not only about balancing the effectiveness of LFR over other methods but of explaining why the particular technique or tactic is the least intrusive necessary to achieve the desired aim. This critical judgment can only properly be reached once all other elements and risks inherent in the intended LFR operation have been appropriately considered.” The Guidance referred to the Home Office Code of Practice for Covert Surveillance and Property Interference for the proportionality tests to be applied.

In June 2021, the Information Commissioner issued an Opinion on “The use of live facial recognition technology in public places”, which specifically addresses how the UK GDPR and Part 2 of the DPA 2018 apply to such use.

A BRIDGE INTO THE FUTURE OF LFR

In March 2022, the College of Policing issued national guidance in the form of Authorised Professional Practice (APP), to ensure police forces take a consistent approach to using LFR. The APP sets out why police use LFR: to support the location and arrest of people wanted for criminal offences; to prevent people who may cause harm from entering an area; and to support the location of people who may pose a risk of harm to themselves or others. It explains how LFR works. The APP explicitly states that it is consistent with the SCC Guidance and does not extend to types of facial recognition other than LFR. The APP sets out the full legal framework applicable to LFR.

The APP is specific to police forces and practical: as well as setting out governance arrangements for the authorisation and use of LFR, it lists a suite of documents which forces must develop and provides a schematic to illustrate the steps to be taken when planning an LFR deployment.

The APP sets out general criteria for deployment (targeted; intelligence-led; time-bound and geographically limited when set within the context of the relevant use case) and more specifically, contains a “Watchlist” document, which addresses the WHO question identified in Bridges. Firstly, watchlists are subject to specific requirements such as being based on the intelligence case, meeting necessity and proportionality tests, not excessive, and consisting of up to date images lawfully held by police. Secondly, the APP adopts the SCC’s advocation of the need for specific considerations relating to persons with protected characteristics being placed on a watchlist, in particular children and those with disabilities, and provides guidance. Thirdly, the APP lists the types of police-originated images that may be included on a watchlist: primarily custody images of persons:

• wanted by the courts
• suspected of having committed an offence, or where there are reasonable grounds to suspect that the individual depicted is about to commit an offence, or where there are reasonable grounds to suspect an individual depicted to be committing an offence (as further explained by the APP)
• subject to bail conditions, court order or other restriction that would be breached if they were at the location at the time of the deployment
• missing persons deemed at increased risk of harm (as defined by the APP)
• presenting a risk of harm to themselves or others (the APP gives specific guidance on the factors that will apply)
• a victim of an offence or a person who the police have reasonable grounds to suspect would have information of importance and relevance to progress an investigation, or who is otherwise a close associate of an individual and that individual would fall within people wanted by the courts and presenting a risk of harm to themselves or others (the APP gives specific guidance on the factors that will apply, including the high threshold for the necessity and proportionality criteria here and the fact that the use of this category would be exceptional – and provides examples from the SCC Guidance)

There is guidance that non police originated images should only be included on a watchlist with specific authorisation and a list of factors to be considered is provided.

The APP also addresses the WHERE question identified in Bridges. It confirms that policy documents should publicise the use of LFR to alert members of the public before they enter the zone of recognition so that they have sufficient time to exercise their right not to enter if they wish, unless critical threat prevents this. It also sets out privacy considerations relevant to locations, including the fact that some places attract greater privacy expectations than others, e.g. places of worship, schools, hospitals etc; and that some locations are likely to locate children or persons with protected characteristics. The APP discusses mitigations and considerations required for authorisations relevant to locations.

Whilst there undoubtedly remains scope for challenge to the use of LFR – and one envisages the latter categories of WHO can be included on a watchlist being more controversial than those wanted for or suspected of crime, in my view this national guidance does provide the structure for which police forces have been waiting, to bridge the gaps in the legal framework identified in Bridges.

When Bridges concluded, those of us involved in this area of law realised that there was significant work to be undertaken but, from a police perspective, it was welcome that the changes needed could be brought about by police policy rather than primary legislation, as the police are best placed to determine operational requirements. It seems that appropriate challenge to, and scrutiny of, the national guidance has been provided by consultation and collaboration, for example, between the National Police Chiefs Facial Recognition Board (which will guide individual forces), the Biometrics and Surveillance Camera Commissioner, and the Information Commissioner’s Office. This is likely to give police forces the impetus now to use LFR in the investigation, detection and prevention of crime, confident that strict adherence to the APP is likely to result in lawful and consistent use of this rapidly developing technology. This is both an exciting development from a law enforcement perspective, and a reassuring one from a privacy point of view.

Jason Beer QC and Francesca Whitelaw appeared for the Chief Constable of South Wales Police in the Court of Appeal in Bridges.

---

Authors

Jason Beer KC

Call 1992 | Silk 2011

Francesca Whitelaw KC

Call 2003 | Silk 2023

Related areas

Police Law

---