R (Bridges) v Chief Constable of South Wales Police

The Court of Appeal allowed the appellant's challenge in part, holding that South Wales Police's overt use of Live Automated Facial Recognition (AFR) engaged Article 8 ECHR and was not "in accordance with the law" because the existing legal and policy framework left excessive discretion on two critical questions: (i) who may be placed on police watchlists for AFR and (ii) where AFR may be deployed. The court also found that the force's Data Protection Impact Assessment (DPIA) did not comply with section 64(3)(b) and (c) of the Data Protection Act 2018 and that the Public Sector Equality Duty in section 149 of the Equality Act 2010 had not been discharged. The appeal was dismissed on the proportionality ground and on the discrete question whether the force's section 42 policy document failed at that stage.

Background and parties. The appellant, Edward Bridges (a civil liberties campaigner), challenged South Wales Police's trial deployments of AFR Locate (overt, real‑time facial recognition linked to a police watchlist) on 21 December 2017 (Queen Street, Cardiff) and 27 March 2018 (Motorpoint Arena) and the force's ongoing use. Interested parties included the Secretary of State, the Information Commissioner and the Surveillance Camera Commissioner. The claim was an application for judicial review seeking declarations (and damages) that AFR use breached Article 8 ECHR, data protection law and the Public Sector Equality Duty (PSED).

Procedural history. The Divisional Court (Haddon‑Cave LJ and Swift J) dismissed the claim by judgment of 4 September 2019 ([2019] EWHC 2341 (Admin)). Permission to appeal was granted and the Court of Appeal heard full argument.

Issues for determination. The principal issues were: (i) whether AFR deployments were "in accordance with the law" for Article 8(2) purposes (the quality of law question); (ii) whether the specific deployments were proportionate; (iii) whether the DPIA met the requirements of section 64 DPA 2018; (iv) whether an appropriate policy document under section 42 DPA 2018 was in place; and (v) whether the PSED (section 149 Equality Act 2010) had been satisfied.

Court's reasoning and conclusions. The court accepted that AFR processing of facial biometrics engages Article 8. On the Article 8(2) "in accordance with the law" question the court endorsed the legal principles in R (Catt) and related authorities but concluded that the cumulative framework relied upon by the Divisional Court (DPA 2018, the Surveillance Camera Code and local SWP policies) was presently deficient because it did not give adequate clarity and safeguards on (a) who may be placed on watchlists (the "who question", including the problematic residual category of those of "intelligence interest") and (b) where AFR may be deployed (the "where question"). Those excessive discretions meant the interference failed the "quality of law" requirement. The court rejected the appellant's contest on proportionality in respect of the two deployments (finding the Divisional Court's assessment was not wrong). The court held the DPIA was defective because it proceeded on assumptions inconsistent with this judgment (notably treating Article 8 as not engaged and understating the risks to non‑watchlist members of the public) and so failed to assess risks and mitigations as required by section 64(3)(b)-(c). On the PSED the court held SWP had not done all that was reasonably required to discharge its non‑delegable duty, in particular it had not obtained or secured adequate information/tests to address potential racial or sex bias in the AFR system; reliance on an operator human check did not discharge the duty of due regard. The court declined to make a final determination on whether SWP's November 2018 policy fully complied with section 42, noting the Information Commissioner's subsequent guidance and revised policy work by SWP.

Remedy. The court made declarations to reflect these conclusions: that AFR use on the two dates and on an ongoing basis was not in accordance with the law for Article 8(2); that the DPIA did not comply with section 64(3)(b)-(c); and that SWP failed to comply with the PSED prior to and in the course of the deployments and on an ongoing basis.

Appeal allowed. The court held that South Wales Police's overt AFR deployments engaged Article 8 but were not "in accordance with the law" because the domestic legal and policy framework left excessive discretion on who may be placed on watchlists and where AFR may be deployed. The court also held the force's DPIA failed to comply with section 64(3)(b)-(c) DPA 2018 and that the force did not comply with the Public Sector Equality Duty. The court dismissed challenges on proportionality in respect of the two deployments and declined to make a final finding on the section 42 policy document, noting subsequent guidance and revision.

Appeal from the Divisional Court (Haddon‑Cave LJ and Swift J) judgment dismissing the claimant's judicial review challenge: [2019] EWHC 2341 (Admin). This Court (MR, President of QB, Singh LJ) allowed the appeal on Grounds 1, 3 and 5 and dismissed Grounds 2 and 4 ([2020] EWCA Civ 1058).