Authored by Olivia Rogers (Trainee solicitor)
The High Court has ruled that the use of automated facial recognition technology ('AFR') by South Wales Police ('SWP') is lawful.
This is the first time that a court has considered the use of AFR after a judicial review claim was brought by Ed Bridges against the Chief Constable of South Wales alleging that SWP's use of AFR breached his human rights (constituting an interference with his rights under ECHR Article 8(1) respect for private and family life which was not in accordance with the law, necessary or proportionate) and data protection law (in failing to act in accordance with the data protection principles). SWP is the national lead on testing and trials of AFR. Critics claim that the legal framework for police use of AFR is insufficient and that it exists in a legislative, regulatory and policy lacuna.
Lord Justice Haddon-Cave and Mr Justice Swift ruled that the current legal regime is adequate to ensure the appropriate and non-arbitrary use of AFR, noting that '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.' The judgment confirmed that:
- there are three elements to the legal framework: primary legislation, secondary legislative instruments (in the form of codes of practice) and SWP's own local policies;
- when these three elements are considered collectively against the backdrop of the common law, the use of AFR by SWP is sufficiently foreseeable and accessible for the purpose of being 'in accordance with the law';
- the police do not need new express statutory powers to use AFR; and
- as AFR develops it will be necessary to periodically re-evaluate the sufficiency of the legal regime.
The court accepted that the mere storing of biometric data (which includes the image of a person's face) is enough to trigger Article 8 but it found the interference to be justified and proportionate on the basis that AFR was deployed in an open and transparent way, with significant public engagement and on each occasion, it was used in a limited space for a limited time. In addition, it was deployed for the safety of the public and for the specific and limited purpose of seeking to identify particular individuals whose presence was of justifiable interest to the police. The court noted that AFR had resulted in arrests in cases where the individual had not been capable of location by existing methods and so AFR had saved police resources which could be used in other ways to prevent crime and protect the public.
In relation to the Claimant's data protection claim, the court accepted that the processing of his image was processing of his personal data that 'individuates' him (but did not constitute processing of sensitive personal data). The court determined that the processing of this personal data is necessary for SWP's legitimate interests, taking into account the common law obligation to prevent and detect crime. The court held that data protection principles provide sufficient regulatory control to avoid arbitrary interferences with Article 8 rights.
The ruling will provide a level of legal certainty to other police forces, albeit the judgment noted that it will be open to any person who considers that their Article 8(1) rights have been the subject of interference because of AFR to call on SWP (or any other law enforcement agency) to demonstrate that the interference is justified on the particular facts of the case. This leaves the door open to further claims being brought to challenge the use of AFR on different facts.
Civil rights group Liberty who supported Bridges through his legal challenge has confirmed that he plans to appeal the decision. The debate on how to regulate technology for the safety of the public while protecting individual liberties looks set to continue.