The world's first case on automatic facial recognition by police: what does the High Court say?
For the past year, South Wales Police (SWP) and the Met Police have been trialing new technology called Automatic Facial Recognition (AFR) Locate. It involves the deployment of surveillance cameras to capture digital images of members of the public to identify individuals at risk or those linked to criminal activity – ranging from violent crime to less serious offences.
This raises the contentious issue of the use and processing of personal data, and it seems that any organization using software that can recognize and identify an identity from a face amongst a crowd is potentially at risk of facing claims pertaining to personal privacy. The case R (Bridges) v Chief Constable of South Wales Police [2019] EWHC 2341 (Admin) was recently decided in September 2019 and the High Court discussed this issue exactly, deeming AFR technology to be lawful. This case was apparently the first time that any court in the world has considered AFR.
The opening sentence of the judgment in Bridges succinctly highlights the spirit for the dismissal of the challenge to the SWP’s use of AFR: ‘The algorithms of the law must keep pace with new and emerging technologies’. The judgment contains pivotal lessons in how to apply data protection and privacy law to valuable but invasive technology while also recognizing the advanced and intrusive nature of AFR in harvesting biometric data.
The 69-page judgment considered convention rights, legal authority, proportionality, and legislation. In respect of convention rights (particularly Article 8), the court, among other authorities, noted S v UK (2009) 48 EHRR 50 and concluded that the AFR Locate did breach Article 8(1) rights of those who were in the position of the claimant. However, in relation to the legal basis, the court found that the SWP’s common law powers were ‘amply sufficient’ as to the use of facial recognition technology. Moreover, for the purpose of the four-part proportionality test in Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700, the court was ‘satisfied that there is no systemic or clear “proportionality deficit” such that it can be said that future use of AFR Locate by the SWP would be inevitably disproportionate’. On top of that, the data protection and Equality Act 2010 claims were also dismissed.
Therefore, the court was ‘satisfied both that the current legal regime is adequate to ensure the appropriate and non-arbitrary use of AFR Locate, and that SWP’s use to date of AFR Locate has been consistent with the requirements of the Human Rights Act, and the data protection legislation’.
Taking into account previous case law on the authority of police powers, this judgment perhaps does not come as a surprise. However, what may be surprising is the fact that AFR can be incorporated into law enforcement activities without the establishment of separate regulatory guidelines, and is able to be justified by pre-existing frameworks.
