Campaigner wins ruling agains facial recognition trial
A civil liberties campaigner has won an appeal ruling that a trial deployment of automated facial recognition ("AFR") technology in Cardiff by South Wales Police was unlawful.
Master of the Rolls Sir Terence Etherton, Dame Victoria Sharp and Lord Justice Singh allowed an appeal by Edward Bridges against the dismissal by the Divisional Court of his claim for judicial review, brought on the basis that AFR was not compatible with the right to respect for private life under article 8 of the ECHR, data protection legislation, and the public sector equality duty ("PSED") under s 149 of the Equality Act 2010.
The specific type of AFR at issue, known as AFR Locate, extracts faces captured in a live feed from a camera and automatically compares them to faces on a watchlist. Watchlists in the trial included people wanted on warrants or who had escaped from custody, those suspected of having committed crimes, people who might be in need of protection, vulnerable persons, those of possible interest to the police for intelligence purposes, and those whose presence at a particular event caused particular concern.
AFR Locate is capable of scanning 50 faces per second. If no match is detected, the software automatically deletes the facial image captured from the live feed. If a match is detected, the technology produces an alert and the police officer or other person responsible will review the images to determine whether to make an intervention.
Mr Bridges was not included on any watchlist, but contended that given his proximity to the cameras on certain occasions, his image was recorded by the AFR system, even if deleted almost immediately after.
The Divisional Court found that although the right to privacy under article 8 was engaged, the interference with rights was in accordance with law and proportionate. It dismissed the data protection claims, and held that the PSED was not breached because there was no suggestion when the trial commenced that the software might operate in a way that was indirectly discriminatory.
In a unanimous judgment, the court upheld three of Mr Bridges' five grounds of appeal.
The judges held that the article 8 interference was not "in accordance with the law" for the purposes of article 8(2), because despite the legal framework there was no clear guidance on where AFR Locate could be used and who could be put on a watchlist. This was too broad a discretion to afford the police to meet the standard required by article 8(2).
They did not accept, however, that the use of AFR was a disproportionate interference with article 8 rights: the Divisional Court had correctly conducted a weighing exercise and found that the benefits from AFR were potentially great, while the impact on Mr Bridges was minor.
On data protection, the appeal succeeded on the ground that the police had not provided an adequate "data protection impact assessment" as required by s 64 of the Data Protection Act 2018, since it had been written on the basis that article 8 was not infringed.
Further, the Divisional Court was wrong to hold that the police complied with the PSED. The purpose of the PSED was to ensure that public authorities give thought to whether a policy would have a discriminatory potential impact, and the police erred by not taking reasonable steps to make enquiries about whether the AFR software had bias on racial or sex grounds – though the court noted that there was no clear evidence that it was so biased.
South Wales Police have confirmed that they do not seek to appeal against this judgment.