Shaun Thompson & Anor, R (on the application of) v The Commissioner of Police of the Metropolis

The quality-of-law requirement under Articles 8, 10 and 11 does not impose a freestanding limit on the breadth of a public authority’s discretion. The question is whether the legal framework defines the circumstances and conditions of its exercise sufficiently clearly to prevent arbitrary decision-making. Foreseeability is assessed contextually, including the nature and intrusiveness of the power. A policy may rely on specialist operational judgment and need not prescribe every eventuality. Where a policy contains cumulative and interlocking restrictions on purpose, persons, location, authorisation and proportionality, it may satisfy the requirement even though it permits deployment across a substantial geographical area.

The claimants challenged the Metropolitan Police Service policy governing overt live facial recognition deployments in London. They alleged that the policy failed to satisfy the requirements that interference with Article 8 rights be in accordance with the law and that restrictions on Articles 10 and 11 rights be prescribed by law.

The challenge concerned the policy’s permitted use cases, watchlist construction, deployment locations and safeguards against arbitrary decision-making. The parties agreed that the same legal issues governed both Convention standards. The central question was whether the policy left excessive discretion to individual officers, particularly as to where live facial recognition could be deployed.

1. Claim dismissed. The policy was held to be both in accordance with the law for Article 8 purposes and prescribed by law for Articles 10 and 11 purposes. The claimants’ human rights had not been breached.
2. The relevant test was whether the policy had a basis in domestic law, was accessible and foreseeable, and afforded protection against arbitrary interference. A discretion is not unlawful merely because it is broad. The decisive question is whether its exercise is constrained by legal rules or principles so that decisions do not depend on the decision-maker’s will, whim or caprice. Foreseeability is distinct from proportionality and is an anterior legal question.
3. The court applied the contextual or relativist approach endorsed in R (Bridges) v Chief Constable of South Wales Police. The degree of precision required depends on the nature of the power and the intrusiveness of the interference. Live facial recognition involves biometric processing and is more intrusive than ordinary photography or CCTV, but it is not obtained by physical intrusion, bugging or DNA sampling.
4. Read as a whole, the policy imposed cumulative and interlocking constraints. It limited deployments to three defined use cases, connected watchlists to the relevant policing objectives and, in some categories, to relevant hotspot offences and locations. It prescribed permitted locations, required written authorisation and assessments, imposed a structured three-stage proportionality process, and required consideration of privacy expectations, chilling effects and the number of persons affected. These safeguards prevented arbitrary deployment.
5. The term “operational experience” was sufficiently clear in context. It referred to evidence-based specialist and corporate policing judgments, operating within the policy’s objective upper-quartile crime criteria. It was materially different from an individual officer’s unsupported hunch or professional intuition.
6. The expert evidence relied on by the claimants addressed only a limited geographical aspect of one use case and did not engage with the policy’s other constraints. Its geographical estimates did not establish arbitrariness. Under CPR 35.1, expert evidence in judicial review must be reasonably required to resolve a point of public law; the reports did not meet that requirement.

First-instance decision. No prior decision in the same claim was identified as determining the present amended grounds.