Sir Terence Etherton MR, Dame Victoria Sharp PQBD and Lord Justice Singh:
This appeal concerns the lawfulness of the use of live automated facial recognition technology (“AFR”) by the South Wales Police Force (“SWP”) in an ongoing trial using a system called AFR Locate. 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 a watchlist compiled by SWP for the purpose of the deployment. On the facts of the present case, AFR Locate has been used in an overt manner. It was not deployed as a form of covert surveillance. For that reason it is common ground that this case does not raise issues that might otherwise arise under the Regulation of Investigatory Powers Act 2000.
The appeal is from the order dated 4 September 2019 of Haddon-Cave LJ and Swift J in the Divisional Court of the Queen’s Bench Division dismissing the Appellant’s claim for judicial review challenging the legality of the use of AFR Locate on two particular occasions and on an ongoing basis. The grounds of challenge were that AFR is not compatible with the right to respect for private life under Article 8 of the European Convention on Human Rights (“the Convention”), which is one of the Convention rights set out in Sch.1 to the Human Rights Act 1998 (“HRA”); data protection legislation; and the Public Sector Equality Duty (“PSED”) in section 149 of the Equality Act 2010.
The Divisional Court recorded in its judgment the co-operative and helpful way in which the case had been presented on all sides in order to ascertain the court’s early guidance as to the legal parameters and framework relating to AFR while it is still in its trial phase and before it is rolled out nationally. This appeal has been conducted on the same basis.
Conclusion
For the reasons we have given this appeal will be allowed on Grounds 1, 3 and 5. We reject Grounds 2 and 4.
As to the appropriate remedy, we consider that declaratory relief to reflect the reasons why this appeal has succeeded will suffice. In the circumstances which have arisen, the parties agree that the only remedy which is required is a declaration but they have not been able to agree the precise terms of a declaration. Having considered the rival contentions, we have concluded that the declaration proposed by SWP more accurately reflects the judgment of this Court. We will grant a declaration in the following terms:
- The Respondent’s use of Live Automated Facial Recognition technology on 21 December 2017 and 27 March 2018 and on an ongoing basis, which engaged Article 8(1) of the European Convention on Human Rights, was not in accordance with the law for the purposes of Article 8(2).
- As a consequence of the declaration set out in paragraph 1 above, in respect of the Respondent’s ongoing use of Live Automated Facial Recognition technology, its Data Protection Impact Assessment did not comply with section 64(3)(b) and (c) of the Data Protection Act 2018.
- The Respondent did not comply with the Public Sector Equality Duty in section 149 of the Equality Act 2010 prior to or in the course of its use of Live Automated Facial Recognition technology on 21 December 2017 and 27 March 2018 and on an ongoing basis.