(R) Bridges v South Wales Police 2020:Does the Current Legal Framework facilitate Facial Recognition

If there was an emblem of modern policing methods Automated Facial Recognition (AFR) would be it. Digital, variable and controversial. Bridges v South Wales Police (SWP) was the first court case challenging the use of AFR, not just in the UK but in the world[1].

The defendant, SWP, is at the forefront of this technological advancement. I shall briefly summarise how AFR is used in police operations:

AFR software locates ‘persons of interest’ (suspects or missing people) in a crowd by identifying faces with CCTV cameras and then comparing the biometric data collected from the facial features e.g. the distance between the eyes to a police database (‘watchlist’) consisting of ‘candidate images’ (still images of persons of interest)[2]. The operator is alerted when a ‘possible match’ is found and reviews it[3]. Faces that are not matched to the ‘watchlist’ are automatically deleted [4].

SWP has deployed AFR more than any other police force in the UK [5]. Between 2018 and 2019 alone, SWP implemented AFR over 30 times including Rugby Union matches and Ed Sheeran concerts [6]. The SWP are confident in this new technology, stating that ‘offenders [are now brought] to justice quicker than ever’ [7]. The SWP also boast that there have been no false arrests[8].

Others remain unconvinced despite the SWP’s claims. The claimant was a civil liberties campaigner who had been filmed twice at the shopping centre whilst AFR was in operation [9]. Bridges raised legal action, claiming that the use of AFR had not been in accordance with the law[10]. In September 2019, the High Court rejected these claims. The High Court ruled that the use of AFR had been lawful, ‘necessary, proportionate … [and did not] operate in a way that was indirectly discriminatory’ [11]. The claimant, backed by advocacy group Liberty [12], drew up five grounds of appeal that were then heard by the Court of Appeal in August 2020.

Though the Court of Appeal did not accept all five grounds, the Court ultimately ruled in the claimant’s favour. The successful pleas were:

1stAppeal: The High Court was incorrect in assuming that the breach of the claimant’s Conventional rights under Article 8(1) (right to private and family life[13]) was lawful under Article 8(2) (no public authority can interfere with those rights unless it is 'in accordance with the law’ and is ’necessary... [for] national security)[14]. As a result of “fundamental deficiencies” [15]in the current legal framework regulating AFR, operators have been granted too much discretion e.g. which individuals are put on the ’watchlist’. SWP’s current policies lack the "necessary quality of law[16]” to be upheld.

3rdAppeal: The High court had incorrectly ruled that the SWP’s Data Protection Impact Assessment (DPIA) complied with the Data Protection Act 2018 [17].

5thAppeal: The High court had erred in concluding that the SWP had fulfilled their Public Sector Equality Duty (PSED) [18]as provided by the Equality Act 2010 [19]. AFR runs the risk of racial and gender bias if the images in training datasets are not demographically diverse enough [20]. The Court of Appeal found that the SWP’s Equality Impact Assessment had been negligent in considering the risk of discrimination and thus fell short of their duty as a public authority to ensure their policies avert this risk[21].

Has Bridges v SWP ground AFR to a halt? Far from it. That was evident in the failure of the second ground of appeal claiming that the use of AFR was disproportionate. The Court of Appeal ruled that the High court had been correct in concluding that the potential benefits of AFR outweigh the effects AFR has on individuals[22]. The Surveillance Camera Commissioner stated that the case is part of the “evolutionary process”, highlighting current ‘legaldeficiencies” in the Home Secretary’s Surveillance Camera Code of Practice’ that can be ‘amend[ed]’ [23]. The commissioner admitted of their “frustration” with the Home Office’s indifference to the need of statutory reform [24], calling for a ‘review of the legal framework’[25]. Bridges v SWP demonstrates how decision-makers’ ignorance of the science behind AFR lead to policies that undermine the rule of law, the commissioner commenting ‘regulators... understand...more than those advising ministers’[26]. Unless the guidelines for police forces are reformed, it is likely Bridges v SWP will be the first of many cases from a distrusting public.

Bibliography

Journal articles

Purshouse, J. and Campbell, L. ‘Privacy, Crime Control and Police Use of Automated Facial Recognition Technology. Crim. Law Rev. 2019

Internet sources

‘Appeals court hands down the UK’s first judgment on automated facial recognition’ (Osborne Clarke, 24 Aug 2020) <https://www.osborneclarke.com/insights/appeals-court-hands-uks-first-judgment-automated-facial-recognition/> accessed 8th September 2020

‘Article 8: Respect for your private and family life’ (Equality and Human Rights Commission,15 November 2018) <https://www.equalityhumanrights.com/en/human-rights-act/article-8-respect-your-private-and-family life#:~:text=There%20shall%20be%20no%20interference,disorder%20or%20crime%2C%20for%20th> accessed 1 September 2020

Jennings R, ‘Facial Recognition Technology not “In accordance with Law”’, (UK Human Rights Blog, 13 August 2020), <https://ukhumanrightsblog.com/2020/08/13/facial-recognition-technology-not-in-accordance-with-law/> accessed 1st September 2020

‘Legal Challenge: Ed Bridges v South Wales Police’ (Liberty, 11 August 2020) <https://www.libertyhumanrights.org.uk/issue/liberty-wins-ground-breaking-victory-against-facial-recognition-tech/> accessed 8th September

‘Public Sector Equality Duty’ (Equality and Human Rights Commission, 20 April 2020) <https://www.equalityhumanrights.com/en/advice-and-guidance/public-sector-equality-duty> accessed 1 September 2020

‘Safer Community’ (South Wales Police) <https://afr.south-wales.police.uk/> accessed 8 September 2020

‘Smarter recognition’ (South Wales Police) <https://afr.south-wales.police.uk/smarter-recognition/> accessed 8 September 2020

‘South Wales Police use of facial recognition technology was proportionate rules Court of Appeal’ (SCL, 11 August 2020) <https://www.scl.org/news/12026-south-wales-police-use-of-facial-recognition-technology-was-proportionate-rules-court-of-appeal> accessed 1st September 2020

Surveillance Camera Commissioner and Porter, T. ‘Response to court of appeal judgment’(Speech, 11 August 2020) <https://www.gov.uk/government/speeches/surveillance-camera-commissioners-statement-court-of-appeal-judgment-r-bridges-v-south-wales-police-automated-facial-recognition> accessed 1 September 2020

‘What is AFR?’ (South Wales Police) <https://afr.south-wales.police.uk/> accessed 8 September 2020

‘What is Captured?’ (South Wales Police) <https://afr.south-wales.police.uk/what-is-captured/> accessed 8 September 2020

White, L. and Regan, J. ‘Key takeaways for the private sector from The Bridges v South Wales police facial recognition case’ (Norton Rose Fulbright Data Protection Report, 27th August 2020) <https://www.dataprotectionreport.com/2020/08/key-takeaways-for-the-private-sector-from-the-bridges-v-south-wales-police-facial-recognition-case/> accessed 1 September 2020

[1]‘Legal Challenge: Ed Bridges v South Wales Police’ (Liberty, 11 August 2020) <https://www.libertyhumanrights.org.uk/issue/liberty-wins-ground-breaking-victory-against-facial-recognition-tech/> accessed 8th September. [2]‘What is Captured?’ (South Wales Police) <https://afr.south-wales.police.uk/what-is-captured/> accessed 8 September 2020. [3]‘What is AFR?’ (South Wales Police) <https://afr.south-wales.police.uk/> accessed 8 September 2020. [4]ibid. [5]Joe Purshouse and Liz Campbell ‘Privacy ‘Crime Control and Police use of Automated Facial Recognition Technology’ (2020) Crim. Law Rev, 4. [6]What is AFR?’ (South Wales Police) <https://afr.south-wales.police.uk/> accessed 8 September 2020. [7]‘Safer Community’ (South Wales Police) <https://afr.south-wales.police.uk/safer-community/> accessed 8 September 2020. [8]‘Smarter recognition’ (South Wales Police) <https://afr.south-wales.police.uk/smarter-recognition/> accessed 8 September 2020. [9]‘Appeals court hands down the UK’s first judgment on automated facial recognition’ (Osborne Clarke, 24 Aug 2020) <https://www.osborneclarke.com/insights/appeals-court-hands-uks-first-judgment-automated-facial-recognition/> accessed 8th September 2020. [10]ibid. [11]Laura White and Janine Regan, ‘Key takeaways for the private sector from The Bridges v South Wales police facial recognition case’ (Norton Rose Fulbright Data Protection Report, 27th August 2020) <https://www.dataprotectionreport.com/2020/08/key-takeaways-for-the-private-sector-from-the-bridges-v-south-wales-police-facial-recognition-case/> accessed 1 September 2020. [12]‘Legal Challenge: Ed Bridges v South Wales Police’ (Liberty, 11 August 2020) <https://www.libertyhumanrights.org.uk/issue/liberty-wins-ground-breaking-victory-against-facial-recognition-tech/> accessed 8 September. [13]‘Article 8: Respect for your private and family life’ (Equality and Human Rights Commission, 15 November 2018) <https://www.equalityhumanrights.com/en/human-rights-act/article-8-respect-your-private-and-family-life#:~:text=There%20shall%20be%20no%20interference,disorder%20or%20crime%2C%20for%20th> accessed 1 September 2020. [14]White and Regan (n 1) [15]‘Legal Challenge: Ed Bridges v South Wales Police’ (Liberty, 11 August 2020) <https://www.libertyhumanrights.org.uk/issue/liberty-wins-ground-breaking-victory-against-facial-recognition-tech/> accessed 8th September. [16]White and Regan (n 2) [17]ibid. [18]ibid. [19]‘Public Sector Equality Duty’ (Equality and Human Rights Commission, 20 April 2020) <https://www.equalityhumanrights.com/en/advice-and-guidance/public-sector-equality-duty> accessed 1 September 2020. [20]Rafe Jennings, ‘Facial Recognition Technology not “In accordance with Law”’, (UK Human Rights Blog, 13 August 2020), <https://ukhumanrightsblog.com/2020/08/13/facial-recognition-technology-not-in-accordance-with-law/> accessed 1st September 2020. [21]White and Regan (n 3) [22]‘South Wales Police use of facial recognition technology was proportionate rules Court of Appeal’ (SCL, 11 August 2020) <https://www.scl.org/news/12026-south-wales-police-use-of-facial-recognition-technology-was-proportionate-rules-court-of-appeal> accessed 1st September 2020. [23]Surveillance Camera Commissioner and Tony Porter ‘response to court of appeal judgment’(Speech, 11 August 2020) <https://www.gov.uk/government/speeches/surveillance-camera-commissioners-statement-court-of-appeal-judgment-r-bridges-v-south-wales-police-automated-facial-recognition> accessed 1 September 2020. [24]ibid. [25]ibid. [26]ibid.