Judgment Approved by the court for handing down.
R (Bridges) -v- CC South Wales & ors
Impact Assessment since April 2017. The focus of Mr Squires’s submissions before us
was on the point that the PSED is a continuing duty and, submits Mr Squires, there is a
continuing breach of it.
169.
This has always been part of the Appellant’s case: see para. 92 of the Statement of Facts
and Grounds, where it was made clear that the PSED is “an ongoing obligation.”
170.
The reasons of the Divisional Court for rejecting this ground of challenge were set out
at [153]-[158] of its judgment.
171.
At [153] the Divisional Court said:
“In our view, on the facts of this case there is an air of unreality
about the Claimant's contention. There is no suggestion that as
at April 2017 when the AFR Locate trial commenced, SWP
either recognised or ought to have recognised that the software
it had licensed might operate in a way that was indirectly
discriminatory. Indeed, even now there is no firm evidence that
the software does produce results that suggest indirect
discrimination. Rather, the Claimant's case rests on what is said
by Dr Anil Jain, an expert witness. In his first statement dated
30th September 2018, Dr Jain commented to the effect that the
accuracy of AFR systems generally could depend on the dataset
used to ‘train’ the system. He did not, however, make any
specific comment about the dataset used by SWP or about the
accuracy of the NeoFace Watch software that SWP has licensed.
Dr Jain went no further than to say that if SWP did not know the
contents of the dataset used to train its system ‘it would be
difficult for SWP to confirm whether the technology is in fact
biased’. The opposite is, of course, also true.”
172.
At [156]-[158] the Divisional Court said the following:
“156. Thus, SWP may now, in light of the investigation
undertaken to date by Mr. Edgell, wish to consider whether
further investigation should be done into whether the NeoFace
Watch software may produce discriminatory impacts. When
deciding whether or not this is necessary it will be appropriate
for SWP to take account that whenever AFR Locate is used there
is an important failsafe: no step is taken against any member of
the public unless an officer (the systems operator) has reviewed
the potential match generated by the software and reached his
own opinion that there is a match between the member of the
public and the watchlist face.
157.
Yet this possibility of future action does not make good
the argument that to date, SWP has failed to comply with the
duty under section 149(1) of the Equality Act 2010. Our
conclusion is that SWP did have the due regard required when in
April 2017 it commenced the trial of AFR Locate. At that time,