Judgment Approved by the court for handing down
R (Bridges) v CCSWP and SSHD
Submissions
50.
On behalf of the Claimant, Mr Squires submitted that use of AFR entailed
interference with the Claimant’s Article 8 rights. The Claimant was in a public
place engaged in lawful activities, and was not suspected of any wrongdoing.
Obtaining and using his facial biometric information (a unique identifier),
without his consent, is at odds with the protection afforded by Article 8(1).
51.
On behalf of SWP, Mr Johnson submitted that the Claimant could not establish
any interference with his rights under Article 8(1) for essentially four reasons.
The first reason was that there was no proof that the Claimant’s image had
been captured by the AFR on either occasion. If that were the case that would
be a complete response to the Claimant’s case. Ultimately, however, and for
pragmatic reasons (so that the Court would address the substantive legal issues
raised), Mr Johnson was willing to accept that it was more likely than not that
on one or other occasion the Claimant’s image had been captured and
processed. The second, third and fourth reasons were closely linked: that a
person could not have a reasonable expectation of privacy when walking in a
public place and could expect his image to be recorded for crime prevention
purposes; that AFR was a near-instantaneous process and a person’s biometric
data is not recorded and is never available to a human operator; and that
overall, taking a picture in such circumstances and processing the digital
information obtained from it in that manner did not meet the minimum
threshold of seriousness required by Article 8(1).
Discussion
52.
We do not accept the SWP’s submissions on this issue. As to the first point,
even if the pragmatic concession we have referred to had not been made, we
would have concluded that the Claimant has proved that he was within
reasonable proximity of the CCTV cameras on the days and at location in
question when AFR technology was deployed by SWP, namely on 21st
December 2017 at Queen Street and on 27th March 2018 at the Arms Fair.
Notwithstanding that the CCTV footage for each occasion was deleted well
before these proceedings were commenced (such footage is routinely deleted
after 31 days), the Claimant’s physical proximity to the location of the
cameras on both days is sufficient to give rise to a reasonable apprehension
that his image may have been captured and processed on one or both occasions
such as to entitle him to claim a violation of his Article 8 rights, either as an
individual present himself or as a member of a class of people who risked
being directly affected by the SWP’s use of AFR on either of those occasions
(c.f. Lord Reed, in AXA General Insurance v. HM Advocate [2011] UKSC 46;
[2012] 1 AC 868 at [111]).
53.
In Wood, Laws LJ rejected the submission that the “bare act of taking
pictures” amounted to an interference with Article 8(1) rights (see [36] and
[37]). He pointed to the need for what he described as “aggravating
circumstances”. In that case, and in the context of police activity, he suggested
that where state actions complained of were “expected and unsurprising”, it