Court of Appeal to hear appeal over police use of automated facial recognition

The Court of Appeal will this week hear an appeal challenging police use of live Automated Facial Recognition (AFR) technology in public spaces.

In September 2019 the Divisional Court dismissed a challenge brought by Edward Bridges, who claimed his civil liberty was infringed when he was in Cardiff on two occasions when AFR was used, once in the vicinity of a football match and again near a defence equipment exhibition.

Mr Bridges, who was supported by the civil rights group Liberty, argued that the use of AFR was a breach of his rights under the Data Protection Act 1998 and article 8 of the European Convention on Human Rights.

He further claimed that using AFR was contrary to the police’s public sector equality duty.

In Bridges, R (On Application of) v The Chief Constable of South Wales Police [2019] EWHC 2341 (Admin) Lord Justice Haddon-Cave LJ and Mr Justice Swift said: “At the heart of this case lies a dispute about the privacy and data protection implications of AFR.”

The judges concluded that there had been many technological innovations that had become available to the police and they had not needed specific powers to use them.

“We consider the police's common law powers to be ‘amply sufficient’ in relation to the use of AFR,” they said. “The police do not need new express statutory powers for this purpose.”

The judges said there was a clear and sufficient legal framework governing AFR’s use and “the fact that a technology is new does not mean that it is outside the scope of existing regulation, or that it is always necessary to create a bespoke legal framework for it”.

They said they were satisfied both that the current legal regime was adequate and that South Wales Police's use of AFR had been consistent with the Human Rights Act, and data protection legislation.

Dan Squires QC and Aidan Wills of Matrix Chambers are acting for the appellant, Mr Bridges, instructed by Megan Goulding at Liberty.

The set said:  “In an appeal which has profound implications for the way that society is policed, it will be argued that the use of live AFR is not in accordance with the law because it is not subject to proper regulation and safeguards, and that its use by South Wales Police (SWP) on two occasions when the appellant was present was disproportionate.

“The appellant also contends that SWP’s use of AFR is incompatible with data protection law, and that SWP is in breach of the Public Sector Equality Duty as it failed to have due regard to the potential indirect discrimination arising from higher rates of false positive matches in relation to people of colour and women. This is thought to be the first case in the world concerning the use of AFR by police.”

The appeal will be heard over three days by the Master of the Rolls, the President of the Queen’s Bench Division and Lord Justice Singh.

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