Judgment Approved by the court for handing down.
R (Bridges) -v- CC South Wales & ors
when the AFR Locate trial commenced, SWP either recognised or ought to have
recognised that the NeoFace Watch software it had licensed might operate in a way that
was indirectly discriminatory, and even at the date of the hearing there was no firm
evidence that the software did produce results that suggested indirect discrimination.
The Divisional Court concluded (at [158]) that the Equality Impact Assessment
prepared by SWP in April 2017 demonstrated that due regard was had by SWP to the
section 149(1) matters.
The appeal
53.
Permission to appeal has been given for all the following five grounds of appeal for
which permission was sought:
Ground 1: The Divisional Court erred in concluding that the interference with the
Appellant’s rights under Article 8(1) of the Convention, taken with section 6 of the
HRA 1998, occasioned by SWP’s use of AFR on 21 December 2017 and 27 March
2018 and on an ongoing basis, was/is in accordance with the law for the purposes of
Article 8(2).
Ground 2: The Divisional Court made an error of law in assessing whether SWP’s use
of AFR at the December 2017 and March 2018 deployments constituted a proportionate
interference with Article 8 rights within Article 8(2). The Divisional Court failed to
consider the cumulative interference with the Article 8 rights of all those whose facial
biometrics were captured as part of those deployments.
Ground 3: The Divisional Court was wrong to hold that SWP’s DPIA complied with
the requirements of section 64 of the DPA 2018. The DPIA is based on two material
errors of law concerning the (non)engagement of the rights in Article 8 of the
Convention and the processing of the (biometric) personal data of persons whose facial
biometrics are captured by AFR but who are not on police watchlists used for AFR.
Ground 4: The Divisional Court erred in declining to reach a conclusion as to whether
SWP has in place an “appropriate policy document” within the meaning of section 42
of the DPA 2018 (taken with section 35(5) of the DPA 2018), which complies with the
requirements of that section. Having in place such a document is a condition precedent
for compliance with the first data protection principle (lawful and fair processing)
contained in section 35 of the DPA 2018 where the processing of personal data
constitutes “sensitive processing” within the meaning of section 35(8) of the DPA.
Ground 5: The Divisional Court was wrong to hold that SWP complied with the PSED
in circumstances in which SWP’s Equality Impact Assessment was obviously
inadequate and was based on an error of law (failing to recognise the risk of indirect
discrimination) and SWP’s subsequent approach to assessing possible indirect
discrimination arising from the use of AFR is flawed. It is argued that the Divisional
Court failed in its reasoning to appreciate that the PSED is a continuing duty.