On 11 August 2020, the UK Court of Appeal overturned the High Court’s ruling on the use of Automated Facial Recognition (AFR) by South Wales Police (SWP), finding the use of AFR in that case to be unlawful and a violation of human rights.
BACKGROUND
On 4 September 2019, the High Court handed down the world’s first ruling concerning the human rights implications of AFR. The request for judicial review was bought by Edward Bridges, a privacy campaigner, who argued that the use of AFR in this instance violated the right to private and family life as found in Article 8 of the European Convention on Human Rights (ECHR), failed to comply with the Data Protection Act (DPA) 2018, and failed to exercise due regard to the Equality Act 2010.
The High Court dismissed the judicial review on all counts, stating that the “current legal regime is adequate to ensure appropriate use of AFR.” The Court of Appeal (“the Court”) agreed to hear the case on 20 November 2019.
THE FACTS
In his appeal to the court, Mr Bridges challenged the legality of SWP’s use of AFR on five grounds, arguing that they were illustrative of AFR being “unlawfully intrusive” under Article 8 of the ECHR and demonstrated a clear violation of the DPA 2018 and Equality Act 2010. The grounds of appeal were as follows:
Ground 1: The High Court was wrong to conclude that the interference with Mr Bridge’s Article 8 rights was “in accordance to the law.”
Ground 2: The High Court failed to consider the "cumulative interference” with the Article 8 rights of all those whose biometrics had been captured by AFR.
Ground 3: The High Court was wrong to hold that SWP’s Data Protection Impact Assessment was sufficient in fulfilling the requirements of the DPA 2018.
Ground 4: The High Court was wrong to rule that the “appropriate policy document” fulfilled the “first data protection principle” (lawfulness, fairness and transparency).
Ground 5: The High Court was wrong in its view that SWP’s Equality Impact Assessment was sufficient with regards to fulfilling the provisions of the Equality Act 2010.
COURT DECISION
In deciding the case Lord Justice Singh ruled in favour of Mr Bridges, accepting grounds one, three and five of the appeal.
In addressing ground one, Justice Singh determined there to be “fundamental deficiencies” in the High Court ruling. The Court observed that “current policies do not sufficiently set out the terms on which discretionary powers can be exercised by the police.” It also confirmed that the current framework for AFR deployment affords too much discretion to individual police officers in deciding who will be placed on watchlists, and in deciding on the locations where AFR may be deployed. This determination led the court to conclude that the scope of discretion was “impermissibly wide.” It consequently informed the Court’s view that the use of AFR contravened the provisions of Article 8 of the ECHR. Since the court found the use of AFR to be unlawful on ground one, it determined that it was not necessary to rule on the second ground relating to proportionality.
In addressing ground three, Justice Singh ruled that it was wrong for the High Court to rule that SWP’s Data Protection Impact Assessment was in compliance with section 64 of the Data Protection Act 2018. While the court did not accept all of Mr Bridges’ arguments, pointing to the DPIA’s specific reference to Article 8 issues, Justice Singh determined that notwithstanding, “the DPIA failed to properly assess the risks to the rights and freedoms of data subjects”, thus accepting ground three of appeal.
The Court rejected ground four of the appeal, determining that the High Court’s approach to the first data principle was appropriate.
Finley is a Politics and International Relations Graduate from Queen Mary University of London and currently an MSc Candidate in International Planning at UCL. He has a keen interest in the intersection of urbanity, human rights and justice.