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Articles | Fri 28th Aug, 2020
On 11th August, the Court of Appeal handed down its judgment in the case of R (Bridges) v Chief Constable of South Wales Police [2020] EWCA Civ 1058, concerning police use of automated facial recognition (AFR) technology. At the end of June, I wrote about the appeal and set out some of the background and key issues in the case.
In its judgment, delivered by an eminent panel of the Master of the Rolls, the President of the Queen’s Bench Division and Lord Justice Singh (who in a different capacity presides over the Investigatory Powers Tribunal), the Court of Appeal allowed the Claimant’s appeal on three of the five grounds: they found that the challenged use of AFR by South Wales Police (SWP) had not been ‘in accordance with the law’ within the meaning of Article 8(2) ECHR; it followed that SWP’s Data Protection Impact Assessment was inadequate; and they separately found that SWP had not done all they reasonably could with respect to their Public Sector Equality Duty under the Equality Act 2010 (there had been evidence that AFR generally carried a greater risk of false identification of women and people from black, Asian and other minority ethnic backgrounds).
On the face of it, the outcome is a victory for human rights group Liberty who backed the Claimant/Appellant, but looking closely at the judgment, it is something of a Pyrrhic one, particularly when it comes to the findings under Article 8.
First, the Court rejected the Appellant’s arguments that when assessing the adequacy of the legal framework it was appropriate to hypothesise how the police might use AFR, rather than how they actually did use it. The Appellant had presented a dystopian scenario where the police could track any person of interest around the country to learn multiple details about his/her private life, using a network of thousands of CCTV cameras all feeding into AFR software running 24/7. In a quotable passage, the Court warned against the danger of reading what a judge says in a particular case as if it were a provision of general application (the Claimant had relied on a passage of Lord Kerr’s dissenting judgment in Beghal v Director of Public Prosecutions [2015] UKSC 49, who had said “It is the potential reach of the power rather than its actual use by which its legality must be judged”). The Court confirmed that an approach consistent with Strasbourg’s was to ask whether there had been a violation of the Appellant’s rights on the particular facts of the case.
Second, the Court rejected the reliance the Appellant and the Information Commissioner (who supported the Appellant on Ground 1) placed on the decisions of the CJEU and the Strasbourg Court in what they said to be comparator cases – Tele2 and Watson (Joint cases C-203/15 and C-698/15) and S v United Kingdom (2009) 48 EHRR 50. Like the Divisional Court, the Court of Appeal found that the context of SWP’s use of AFR was not equivalent to either that of bulk communications data (Tele2) or DNA sampling and fingerprinting (S v UK), and their relevance to the present case was dismissed somewhat summarily.
Third, the Court were satisfied that the legal framework which regulated the use of AFR did contain safeguards which enabled the proportionality of interference with Article 8 rights to be adequately examined, knocking out another of the Appellant’s key arguments.
Fourth, the Court were prepared as a matter of principle to accept the Respondent’s suggestion that when considering the adequacy of the legal framework under Article 8(2), it was appropriate to adopt a so-called ‘relativist approach’, as suggested by Lord Justice Laws in R (Wood) v Metropolitan Police Commissioner [2009] EWCA Civ 414. In essence, this meant that the sufficiency of the law which regulated the interference should be judged with regard to the level of violation: “the more intrusive the act complained of, the more precise and specific must be the law said to justify it”.
Fifth, the Court confirmed that the relevant ‘law’ for the purposes of Article 8(2) could include documents which did not have strict legal status, such as SWP’s own policy documents.
Sixth, and in relation to the Article 8(2) proportionality test, the Court rejected the Appellant’s arguments that the correct approach was to aggregate all the individual interferences with each member of the public caught on the AFR cameras and determine whether that aggregated interference outweighed the legitimate aim relied on. In a passage which one might expect being much referred to in future cases involving ‘mass’ or ‘bulk’ interference, the Court held:
“An impact that has very little weight cannot become weightier simply because other people were also affected. It is not a question of simple multiplication. The balancing exercise which the principle of proportionality requires is not a mathematical one; it is an exercise which calls for judgement.”
In all the above respects, the Respondent prevailed.
Where the Appellant did succeed, however, was in relation to what were labelled the ‘who’ and the ‘where’ questions governing AFR’s use and which, from judicial questioning at the hearing, had clearly occupied the minds of the panel. The Court were concerned by the fact that SWP’s criteria for who could be on a watchlist and for the locations where AFR cameras could be deployed left too much discretion for individual police officers. Because the current policies did not sufficiently set out the terms on which these discretionary powers could be exercised by the police they fell short of having the necessary qualities of law to meet what was mandated by the Article 8(2) jurisprudence.
It followed that the particular use of AFR against which the Claimant complained in Cardiff in 2017 and 2018 had not been ‘in accordance with the law’, and his Article 8 case was made out.
Having made a finding that the current framework was inadequate, the Court appropriately said that it was not for them to design the policies which would resolve the issue of legality; they did, however, suggest that a particular feature of SWP’s current use of AFR (the instantaneous deletion of data relating to people who were not matched with a watchlist) could be helpfully set out in a document as a normative principle rather than in its current form as a description – the document should spell out that deletion is what should happen, not just that deletion is what does happen.
Despite the overall loss, therefore, SWP retreated from this Borodino with a large proportion of the judgment of a distinguished panel in its favour. To continue the metaphor, by a decision not to appeal the judgment SWP have effectively set fire to their Moscow, removing the opportunity for the Claimant to take his case further and cutting off his chance of obtaining a more favourable result in the Supreme Court.
Thomas Yarrow was junior counsel for the Interested Party, instructed by the Government Legal Department for the Secretary of State.
