Judgment Approved by the court for handing down.
R (Bridges) -v- CC South Wales & ors
2018 and section 64 of the DPA 2018; and (4) breach of the PSED. The Appellant
sought declarations as to those breaches and damages.
33.
In the event, ground 2 has not been pursued.
34.
SWP has not challenged the Appellant’s standing to bring these proceedings. It has not
been possible for SWP to check either whether the Appellant’s image was recorded by
CCTV on 21 December 2017 or 27 March 2018 or whether his facial biometric
information was processed by the AFR equipment on either occasion. For pragmatic
reasons SWP has accepted the Appellant’s evidence that he was present on both
occasions and that on those occasions his image was recorded. SWP does not dispute
that the Appellant is a victim for the purposes of section 7 of the HRA. Permission to
apply for judicial review was granted by consent, SWP and the Secretary of State
opposing the grounds for judicial review on the substantive merits.
The Divisional Court’s judgment
35.
The Divisional Court heard the claim over three days. It handed down an admirably
clear and comprehensive judgment on 4 September 2019. It is impossible in the
following brief summary to do justice to the judgment. We do no more than summarise
the principal points of the judgment in order to provide a context for this appeal and our
discussion and conclusions below.
Article 8 of the Convention
36.
The Divisional Court held that Article 8 was engaged. They considered that, like
fingerprints and DNA, AFR technology enables the extraction of unique information
and identifiers about an individual allowing his or her identification with precision in a
wide range of circumstances, and that AFR-derived biometric data is information of an
intrinsically private character. They said (at [57]) that the fact that the biometric data is
derived from a person’s facial features that are manifest in public does not detract from
that. They said (at [59]) that Article 8 is triggered by the initial gathering of the
information and that it is sufficient if biometric data is captured, stored and processed,
even momentarily.
37.
The Divisional Court found that the interference with rights in Article 8(1) was justified
by the conditions of Article 8(2). They rejected the Appellant’s primary argument that
the use of AFR Locate by SWP was not “in accordance with the law” for the purposes
of Article 8(2) because (1) there is no legal basis for the use of AFR Locate and so SWP
does not, as a matter of law, have power to deploy it, and (2) in any event, any
interference with Article 8 rights is not subject to a sufficient legal framework.
38.
The Divisional Court held (at [75] to [78]) that using cameras with AFR technology to
obtain the biometric data of members of the public in public falls within the common
law powers of the police to obtain and store information for policing purposes, and that
the compilation of the watchlists is both authorised under the Police and Criminal
Evidence Act 1984 and within the powers of the police at common law. This is not an
issue which we have to address in this appeal, since it is now common ground that SWP
do have the power to deploy AFR Locate.