High Court hands down first ever judgment on the use by law enforcement agencies of automated facial recognition technology

Today, a landmark judgment has been handed down in the High Court concerning the use of live automatic facial recognition (also known as ‘AFR locate’) in R (Bridges) v Chief Constable of South Wales Police (SWP). Jeremy Johnson QC represented the Chief Constable of South Wales Police.

This is the first legal challenge in the world on the use by law enforcement agencies of this technology, which SWP uses in different ways. AFR locate uses a live CCTV feed in conjunction with AFR technology, and a watchlist of people of interest, in order to alert police officers if anyone on the watchlist is detected by the system.

Typically used at sporting events, music festivals and busy shopping areas, those on the watchlist usually comprise those wanted on court warrants or those suspected of criminal offences.

Mr Bridges, a privacy campaigner living in Cardiff, was present on two occasions when SWP used it on him and complained that the use of AFR locate was unlawful because It was a breach of privacy rights under the Human Rights Act 1998 and Article 8 of the European Convention of Human Rights; and/or

It was a breach of information rights under the Data Protection Act 1998 (or, now, the Data Protection Act 2018); and/or

SWP did not have an adequate data protection impact assessment as required by s64 of the Data Protection Act 2018 and/or

SWP had not complied with the public sector equality duty under s149 of the Equality Act 2010.

In a searching analysis in its 72-page judgment, the Divisional Court found in favour of South Wales Police on all four of these grounds of challenge.  Specifically, it held that:

Although the use of AFR amounted to an interference with privacy rights, there was a lawful basis for it, the existing legal framework was sufficient and the use of AFR by SWP was both necessary and proportionate;

Although the use of AFR only amounted to sensitive processing of personal information, SWP had a sufficient policy in place to render that processing in accordance with the law; and the use of AFR was justified under the data protection principles;

SWP’s impact assessment was sufficient and fully complied with the requirements of the Data Protection Act 2018;

SWP’s equality impact assessment demonstrated that it had shown due regard to the need to eliminate discrimination.

This case should not be taken as a green light to go ahead with the use of AFR in all and any circumstances: it was decided on specific facts, within a specific legal framework applicable to certain public authorities, and by reference to SWP’s policy and other documents. There is much discussion to be had and advice to be given in relation to specific aspects of how businesses might lawfully employ AFR. It is not a matter of one size fits all.

Fiona Barton QC, a member of 5 Essex Chambers’s AFR Team, said:

“This is a very important judgment.  Not only for the police service and other public authorities who wish to use AFR for broadly law enforcement purposes, but also because of the potential for the wider use of AFR in a broad range of applications by companies and organisations.  Members of 5 Essex Chambers’s AFR Team will continue to advise the police service, other public authorities and others about the range of issues that arise in the uses of AFR”

Please contact clerks@5essexcourt.co.uk to arrange a meeting about how 5 Essex Chambers can assist with AFR