Pilot project found to be compliant with European Convention on Human Rights and Data Protection Acts

On September 4, 2019, the UK High Court released its decision in R (Bridges) v CCSWP and SSHD, which was a judicial review and test case of sorts to determine the lawfulness of the use of automated facial recognition (AFR) by the South Wales Police (SWP).

AFR technology is an automated means by which images captured on CCTV cameras are processed to “isolate pictures of individual faces, extract information about facial features from those pictures, compare that information with the watchlist information, and indicate matches between faces captured through the CCTV recording and those held on the watchlist” (para 25). If there is no match, the captured facial images are discarded and flushed from the system within 24 hours, while the CCTV footage is retained for 30 days.

The South Wales Police was carrying out a pilot project of AFR, resulting in one arrest using real-time AFR deployment was of a wanted domestic violence offender in May 2017.

The principal objections against the use of AFR are rooted in the European Convention on Human Rights, which includes at Article 8:

Article 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Court specifically noted the impact of technology must be accounted for in its analysis:

46. AFR permits a relatively mundane operation of human observation to be carried out much more quickly, efficiently and extensively. It is technology of the sort that must give pause for thought because of its potential to impact upon privacy rights. As the Grand Chamber of the Strasbourg Court said in S v. United Kingdom (2009) 48 EHRR 50 at [112]:

“[T]he protection afforded by art.8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests … any state claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance in this regard”.

The court concluded that there was no violation of Article 8 as the police had a legal basis to use AFR. This is rooted in the common law powers and duties owed by the police to prevent and detect crimes, which “includes the use, retention and disclosure of imagery of individuals for the purposes of preventing and detective crime”. As a result, police can make reasonable use of such imagery for the purpose of preventing or detecting crime. The extent of the police’s power are construed broadly, and the court determined that that the police use of the images was reasonable. The court also found that new express statutory powers are necessary for the police to use AFR.

The court also considered AFR in the context of the Data Protection Act 1998 and Data Protection Act 2018. Following the Article 8 analysis, the court concluded that the processing of personal data inherent in AFR is conducted lawfully and fairly. The court also concluded “[t]he processing is necessary for SWP’s legitimate interests taking account of the common law obligation to prevent and detect crime” (para 127).

The applicant’s application for judicial review of the AFR program was dismissed.