The use of automated facial recognition (AFR) is welcomed by some as technology that assists in the prevention and detection of crime and objected to by others as an invasion of our human rights.

A recent case decided by the Court of Appeal involved a member of the public, who claimed that South Wales Police's (SWP) use of AFR infringed his human rights. While the challenge was successful the eventual use of AFR as a tool to fight crime looks likely.

What is AFR?

AFR compares two facial images and identifies whether they are of the same person. In SWP's case, officers were using this technology to compare images captured on a live feed with faces on a watchlist, to allow them to find individuals quickly within a vast crowd.

Typically, if no match is detected, the software automatically deletes the image captured on the live feed. Where a match isdetected, the technology alerts the operator (usually a police officer), who reviews the image to determine whether to intervene.

AFR Locate (the technology used by SWP), scans and compares 50 faces per second. This means that, on the 50 occasions that SWP deployed AFR between May 2017 and April 2019, 500,000 faces may have been scanned. The overwhelming majority of faces scanned will have been of people not on a watchlist, and therefore would have been automatically deleted.

The Court of Appeal observed that while it is not covert, it is reasonable to assume that a large number of people would have been unaware of their facial biometrics being captured and processed by SWP.

What was the claim against SWP?

Mr Bridges had been in and around Cardiff on two occasions that AFR was used by SWP. He was not on a watchlist, meaning that any pictures captured should have been immediately deleted. However, he contended that, as he was near cameras when they were operating, his photo must have been captured. SWP did not dispute this.

With the support of the human rights group Liberty, Mr Bridges brought a claim for judicial review alleging that the use of AFR constituted a breach against his right to respect for private life, under Article 8 of the European Convention of Human Rights (ECHR). He also said that use of the technology was in breach of the Data Protection Acts (DPA) of 1998 and 2018 and the Public Sector Equality Duty (PSED), set out in section149 of the Equality Act 2010. When the Divisional Court (similar to the Outer House in Scotland, but with two judges sitting) heard the case in the first instance they found against Mr Bridges, but gave him permission to appeal on five grounds.

What were the grounds of appeal?

Mr Bridges asked the Court of Appeal to consider that the Divisional Court had made errors by:

1. Concluding that the interference with Mr Bridges' right to respect for private life was in line with the law and therefore permissible under Article 8(2) of the ECHR;

2. Deciding that the use of AFR by South Wales Police was a proportionate interference with that right and therefore again permissible under Article 8(2);

3. Finding that the South Wales Police had provided an adequate "data protection impact assessment" (DPIA) as required by section 64 of the DPA 2018;

4. Deciding not to make a determination about whether South Wales Police had an "appropriate policy document" necessary under section 42 of the DPA 2018; and

5. Concluding that SWP had complied with the PSED; Mr Bridges contended that they had not properly considered discrimination on sex/race grounds that may arise from the use of AFR software.

    What did the appeal court find?

    The Court of Appeal rejected grounds two and four. It disagreed with Mr Bridges on proportionality, finding that the District Court had correctly decided that the easy identification of potential criminals outweighed the impact on Mr Bridges and his right to privacy. Furthermore, the Court of Appeal found that the District Court had been right not to determine whether SWP had in place an "appropriate policy document". The requirement for such a document, contained in the DPA 2018, had not yet come into force when the deployments of AFR complained about occurred.

    However, they did allow the appeal on the remaining three grounds – one, three and five. They found that there wasn't a sufficient legal framework for AFR to satisfy Article 8(2) of the ECHR. While there was primary and secondary legislation and the local policies of SWP, there was still no clear guidance on where AFR could be used and who could be put on a watchlist.

    Therefore, the court concluded that the police officers were given too broad a discretion to meet the standard of Article 8(2). The court also found that the DPIA carried out by the police had been deficient as it hadn't considered that Article 8 of the ECHR had been infringed or engaged. It therefore did not successfully consider the risks to the rights and freedoms of individuals like Mr Bridges (as required by section 64 of the DPA 2018).

    Finally, the court allowed the appeal on ground five, saying that SWP had not complied with the PSED. Mr Bridges had claimed that AFR software could cause discrimination on the grounds of sex or race because of evidence that there is a greater risk of false positives for people from ethnic communities and women. It is important to note that the court was not saying the software did have that effect, but that the police had not given thought to the risk that it might have such an effect. The court said that the purpose of the PSED was to ensure that public authorities consider whether a policy will have a discriminatory potential impact. SWP acted unlawfully by not taking reasonable steps to do so.

    What does this case mean?

    Should the policies on AFR be revisited and redrafted in light of this judgment, AFR could end up being used in a way that is consistent with human rights law.

    If public authorities undertake a sufficient DPIA and satisfy themselves that the software does not have an unacceptable bias, this could make the use of AFR technology lawful.

    In Scotland, this decision is important following the report of the Justice Sub-Committee on Policing of the Scottish Parliament, published this year, recommending that Police Scotland do not use AFR until it has been proven to be legal. What happens next in response to the Bridges case may demonstrate how this could happen.