The Queen (on application of Edward Bridges) v The Chief Constable of South Wales Police
| Jurisdiction | England & Wales |
| Judge | Lord Justice Haddon-Cave,Mr. Justice Swift |
| Judgment Date | 04 September 2019 |
| Neutral Citation | [2019] EWHC 2341 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4085/2018 |
| Date | 04 September 2019 |
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and
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[2019] EWHC 2341 (Admin)
Lord Justice Haddon-Cave
Mr. Justice Swift
Case No: CO/4085/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
SITTING AT CARDIFF CIVIL JUSTICE CENTRE
2 Park Street, Cardiff, CF10 1ET
Dan Squires QC and Aidan Wills (instructed by Liberty) for the Claimant
Jeremy Johnson QC (instructed by South Wales Police) for the Defendant
Richard O'Brien (instructed by Government Legal Department) for the Interested Party
Gerry Facenna QC and Eric Metcalfe (instructed by the Information Commissioner) for the 1 st Intervener
Andrew Sharland QC (written submissions only, instructed by Government Legal Department) for the 2 nd Intervener
Hearing dates: 21 st May to 23 rd May 2019
Lord Justice Haddon-Cave and
A. INTRODUCTION
The algorithms of the law must keep pace with new and emerging technologies. This case raises novel and important issues about the use of Automated Facial Recognition technology (“AFR”) by police forces. The central issue is whether the current legal regime in the United Kingdom is adequate to ensure the appropriate and non-arbitrary use of AFR in a free and civilized society. At the heart of this case lies a dispute about the privacy and data protection implications of AFR. Counsel inform us that this is the first time that any court in the world had considered AFR.
Representation
The Claimant was represented by Dan Squires QC and Aidan Wills. The Defendant (“the SWP”) was represented by Jeremy Johnson QC. The Interested Party, the Secretary of State for the Home Department was represented by Richard O'Brien. The Interveners were represented respectively, by Gerry Facenna QC and Eric Metcalfe (for the Information Commissioner), and Andrew Sharland QC (for the Surveillance Camera Commissioner). We are grateful to all counsel and their legal teams for the extensive research and work that has gone into preparing the detailed written and oral submissions and for the co-operative, helpful and able way in which this case has been presented on all sides. The parties have brought these proceedings before the Court in order to seek the Court's early guidance as regards the legal parameters and framework relating to AFR, whilst it is still in its trial phase, and before it is rolled-out nationally. We commend the spirit in which these proceedings have been brought and fought on all sides.
Introductory observations
At the beginning of his submissions for SWP, Mr Johnson QC pointed out that it was fifty years since the establishment of the SWP. Fifty years ago, the world of forensics and policing was very different. The ability of the police to identify people suspected of criminal offences was largely limited to fingerprint or eyewitness evidence. Advances in modern technology have led to dramatic advances in forensic policing, in particular: the forensic use of deoxyribonucleic acid (“DNA”) evidence; closed circuit television (“CCTV”) evidence which is ubiquitous; automatic number-plate recognition technology (“ANPR”) which is widely used by police forces around the country; and cell-site evidence (“cell-site”) which is a feature of many police investigations.
Each advance has naturally given rise to civil liberty concerns. It was never seriously suggested, however, that the police should not be able to make use of those technologies, so long as their use was in accordance with the law. Specific legislative measures were brought into effect in relation to the forensic use of fingerprints, DNA and CCTV (see e.g. the Police and Criminal Evidence Act 1984 and the Protection of Freedoms Act 2012). By those measures, and through scrutiny by the Courts of the ways in which such information is gathered, used and retained, the law seeks to strike a sensible balance between the protection of private rights, on the one hand, and the public interest in harnessing new technologies to aid the detection and prevention of crime, on the other.
These competing objectives are readily apparent from the leading cases. Lord Steyn's introductory observations in his speech in R(S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196, which concerned DNA, emphasised the public benefits in law enforcement agencies using new technology at [1]–[2]:
“1. It is of paramount importance that the law enforcement agencies should take full advantage of the available techniques of modern technology and forensic science. Such real evidence has the inestimable value of cogency and objectivity. It is in large measure not affected by the subjective defects of other testimony. It enables the guilty to be detected and the innocent to be rapidly eliminated from inquiries. Thus, in the 1990s closed circuit television (CCTV) became a crime prevention strategy extensively adopted in British cities and towns. The images recorded facilitate the detection of crime and prosecution of offenders. Making due allowance for the possibility of threats to civil liberties, this phenomenon has had beneficial effects.
2. The use of fingerprint evidence in this country dates from as long ago as 1902. In due course other advances of forensic science followed. But the dramatic breakthrough was the use of DNA techniques since the 1980s. The benefits to the criminal justice system are enormous. For example, recent Home Office statistics show that while the annual detection rate of domestic burglary is only 14%, when DNA is successfully recovered from a crime scene this rises to 48%. It is, of course, true that such evidence is capable of being misused and that courts must be ever watchful to eliminate risks of human error creeping in. But as a matter of policy it is a high priority that police forces should expand the use of such evidence where possible and practicable.”
The counterpoint is readily apparent from Lord Reed's observations in R(T) v Chief Constable of Greater Manchester [2015] AC 49 at [88]:
“The United Kingdom has never had a secret police or internal intelligence agency comparable to those that have existed in some other European countries, the East German Stasi being a well-known example. There has however been growing concern in recent times about surveillance and the collection and use of personal data by the state. … But such concern on this side of the Channel might be said to have arisen later, and to be less acutely felt, than in many other European countries, where for reasons of history there has been a more vigilant attitude towards state surveillance. That concern and vigilance are reflected in the jurisprudence of the European Court of Human Rights in relation to the collection, storage and use by the state of personal data. The protection offered by the common law in this area has, by comparison, been of a limited nature.”
AFR is another new and powerful technology which has great potential to be put to use for the prevention and detection of crime, the apprehension of suspects or offenders and the protection of the public. Its use by public authorities also gives rise to significant civil liberties concerns. Using AFR can involve processing the facial biometric data of large numbers of people. The raw power of AFR — and the potential baleful uses to which AFR could be put by agents of the state and others — underline the need for careful and ongoing consideration of the effectiveness of that framework as and when the uses of AFR develop. The judgment in this case is directed specifically to the way in which the technology has been used to date by SWP, in the form of a pilot project known as “AFR Locate”. Put very shortly, AFR Locate involves the deployment of surveillance cameras to capture digital images of members of the public, which are then processed and compared with digital images of persons on watchlists compiled by SWP for the purpose of the deployment. The debate in these proceedings has been about the adequacy of the current legal framework in relation to AFR Locate.
The Parties
The Claimant is Edward Bridges, a civil liberties campaigner who lives in Cardiff. He brings this claim supported by Liberty, the well-known independent civil liberties membership organisation. The Defendant is the Chief Constable of South Wales Police ( Heddlu De Cymru). SWP is the national lead on the use of AFR in policing in the UK and has been responsible for conducting trials of the technology since mid-2017.
The Secretary of State for the Home Department is responsible for policing nationwide and has concern for the development and lawful use of technology, such as AFR, which has the potential to assist in the prevention and detection of crime. The Secretary of State has provided funding to SWP to develop AFR and has published a Biometrics Strategy 1 and created an Oversight and Advisory Board to co-ordinate consideration of the use of facial images and AFR technology by law enforcement authorities. The Information Commissioner has specific statutory powers and responsibilities under the Data Protection Act 2018 (“ DPA 2018”) 2, and had like responsibilities under the predecessor legislation, the Data Protection Act 1998 (“the DPA 1998”). The Surveillance Camera Commissioner is the statutory regulator of surveillance cameras. He has specific powers and responsibilities under s.34 of the Protection of Freedoms Act 2012 (“PFA 2012”) with regard to encouraging compliance with the Surveillance Camera Code of Practice, reviewing its operation and providing advice about the Code of Practice. His responsibilities include, in particular, regulating the use of surveillance cameras and their use in...
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