Judgment Approved by the court for handing down.
R (Bridges) -v- CC South Wales & ors
there was no specific reason why it ought to have been assumed
it was possible that the NeoFace Watch software produced more
or less reliable results depending on whether the face was male
or female, or white or minority ethnic. As we have explained,
even now there is no particular reason to make any such
assumption. We note that although Dr Jain states that ‘bias has
been found to be a feature of common AFR systems’ he does not
provide an opinion on whether, or the extent to which, such bias
can be addressed by the fail-safe, such as ensuring that a human
operator checks whether there is in fact a match.
158.
In our view, the April 2017 Equality Impact Assessment
document demonstrates that due regard was had by SWP to the
section 149(1) criteria. The Claimant's contention that SWP did
not go far enough in that it did not seek to equip itself with
information on possible or potential disparate impacts, based on
the information reasonably available at that time, is mere
speculation. In any event, as matters had developed in the course
of the trial since April 2017, it is apparent from Mr. Edgell's
evidence that SWP continues to review events against the section
149(1) criteria. This is the approach required by the public-sector
equality duty in the context of a trial process. For these reasons,
the claim made by reference to section 149(1) of the Equality
Act 2010 fails.”
173.
With respect to the Divisional Court, we do not consider that there is “an air of
unreality” about the Appellant’s contention that there has been a breach of the PSED.
On the contrary, it seems to us to raise a serious issue of public concern, which ought
to be considered properly by SWP.
174.
The Divisional Court did not refer to any authority on the PSED, perhaps because the
relevant legal principles were not in dispute. In any event, those principles were set out
by McCombe LJ in R (Bracking) v Secretary of State for Work and Pensions [2013]
EWCA Civ 1345, [2014] Eq LR 60, at [26]. It is unnecessary to set out that passage in
full here. It is well known and has frequently been cited with approval since, including
in Hotak v Southwark LBC [2015] UKSC 30, [2016] AC 811, at [73] (Lord Neuberger
PSC).
175.
In that summary McCombe LJ referred to earlier important decisions, including those
of the Divisional Court in R (Brown) v Secretary of State for Work and Pensions [2008]
EWHC 3158 (Admin); [2009] PTSR 1506, in which the judgment was given by Aikens
LJ; and R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills
[2012] EWHC 201 (Admin); [2012] HRLR 13, in which the judgment was given by
Elias LJ. For present purposes we would emphasise the following principles, which
were set out in McCombe LJ’s summary in Bracking and are supported by the earlier
authorities:
(1) The PSED must be fulfilled before and at the time when a particular policy is being
considered.