Judgment Approved by the court for handing down.
R (Bridges) -v- CC South Wales & ors
157.
The Appellant’s criticism is that the Divisional Court was obliged to reach a finding on
whether the November 2018 Policy Document complied with section 42, and ought to
have found that it did not.
158.
We would reject this ground of appeal for reasons which can be shortly stated.
159.
The two specific deployments which are the subject of the Appellant’s claim took place
on 21 December 2017 (Queen Street) and 27 March 2018 (Motorpoint Arena). Those
were before the DPA 2018 came into force. There is no alleged failure to comply with
the DPA 1998 on this point.
160.
Accordingly, the only relevance of compliance with section 42 was in relation to any
future use of AFR in which the Appellant’s image might be captured and processed by
AFR. A section 42 document is an evolving document, which, in accordance with
section 42(3), must be kept under review and updated from time to time. At the time of
the hearing before the Divisional Court no guidance had been issued by the Information
Commissioner as to the contents of a section 42 document. The Divisional Court said
(at [140]) that it would be desirable to see specific guidance from the Information
Commissioner, in exercise of her powers under Schedule 13 to the DPA 2018, on what
is required to meet the section 42 obligation. The Information Commissioner herself
expressed the view to the Divisional Court that the November 2018 Policy Document
contained sufficient information to comply with the requirements of section 42(2), if
barely so. That view has been repeated by the Information Commissioner on this appeal.
In the event, on 4 November 2019, after the Divisional Court’s judgment, the
Information Commissioner did publish guidance on what a section 42 document should
contain – “Law Enforcement Processing: Part 3 Appropriate Policy Document
Template”. SWP have now revised their November 2018 Policy Document in the light
of that guidance.
161.
In those circumstances - particularly as the Information Commissioner had expressed
the view to the Divisional Court that the November 2018 Policy Document satisfied
section 42(2) but ideally should be more detailed and the Divisional Court itself was
uncertain whether or not it did meet the standard required by section 42 - it was entirely
appropriate for the Divisional Court to make no final judgment on the point and to leave
the SWP to make such revisions as might be appropriate in the light of any future
guidance by the Information Commissioner.
162.
For those reasons we would reject this ground of appeal.
Ground 5: Public Sector Equality Duty
163.
The terms of the PSED are set out in section 149(1) of the Equality Act 2010 as follows:
“A public authority must, in the exercise of its functions, have
due regard to the need to—
(a)
eliminate discrimination, harassment, victimisation and
any other conduct that is prohibited by or under this Act;