Surveillance technology unlawful

Ruling in R (Bridges) v Chief Constable of South Wales Police [2020] EWCA Civ 1058, the court held the police had been wrong to use automatic facial recognition (AFR) technology to scan Ed Bridges’s face when he was shopping in Cardiff and at an anti-arms protest in the city.

AFR Locate takes images of faces from a live feed and compares them to faces on a watchlist. If no match is found, the image is deleted.

Bridges, represented by civil rights group Liberty, argued the technology was incompatible with his Art 8 right to private life, data protection legislation and the public sector equality duty under the Equality Act 2010.

The court held the use of AFR was not in accordance with the law, that there was no clear guidance on where AFR Locate could be used and who could be put on a watchlist. The court said it was too broad a discretion to afford to police officers under Art 8. It held South Wales police had not fulfilled the requirements of the Data Protection Act 2018, and had not taken reasonable steps to enquire whether the software had bias on racial or sex grounds.

However, the court also held the police’s use of AFR was a proportionate interference with Art 8 since the impact on Bridges was minor whereas the benefits were potentially great.

Anne Studd QC, of 5 Essex Court Chambers, said: ‘The judgment is a significant one because the court declined to rule that, in order lawfully to use live AFR, primary legislation needs to be enacted (in order to regulate processing of images in the same way as fingerprints or DNA is processed by the police service).  

‘Instead, the court has identified the relatively modest changes to the policy framework that are needed in order that live AFR can continue to be used. It is noteworthy that this case arose in the course of a pilot of the system by South Wales Police―as part of that trial, through a co-operative and consensual process by which the issues were brought before the court, the police service has been able to obtain a very helpful decision that maps the way ahead.’