Judgment Approved by the court for handing down
R (Bridges) v CCSWP and SSHD
might well be that such actions might entail no breach of Article 8(1). At
paragraph 43 he stated as follows.
“In R(Gillan) v Commissioner of Police for the Metropolis
… [2006] 2 AC 307 at [28] …] Lord Bingham referred to “an
ordinary superficial search of the person and an opening of bags,
of the kind to which passengers uncomplainingly submit at
airports”: another instance in which the putative violation of
Article 8 (if any violation were suggested) consists in something
familiar and expected. In cases of that kind, where the police or
other public authority are acting just as the public would expect
them to act, it would ordinarily no doubt be artificial and unreal
for the courts to find a prima facie breach of Article 8 and call on
the State to justify the action taken by reference to Article 8(2).”
In substance, SWP’s remaining points were to the effect that, qualitatively, its
use of AFR Locate was an activity of similar nature.
54.
We cannot see how what happened can be characterised in this way. AFR
Locate goes much further than the simple taking of a photograph. The digital
information that comprises the image is analysed and the biometric facial data
is extracted. That information is then further processed when it is compared to
the watchlist information. The fact that this happens when the Claimant is in a
public space is not a sufficient response. In PG v United Kingdom (2008) 46
EHRR 51, the European Court of Human Rights stated as follows (at [57]):
“57. There are a number of elements relevant to a
consideration of whether a person's private life is concerned by
measures effected outside a person's home or private premises.
Since there are occasions when people knowingly or
intentionally involve themselves in activities which are or may
be recorded or reported in a public manner, a person's
reasonable expectation as to privacy may be a significant,
although not necessarily conclusive, factor. A person who
walks down the street will, inevitably, be visible to any
member of the public who is also present. Monitoring by
technological means of the same public scene (for example, a
security guard viewing through closed-circuit television) is of a
similar character. Private-life considerations may arise,
however, once any systematic or permanent record comes into
existence of such material from the public domain …”
(emphasis added)
55.
The extraction and use of the Claimant’s biometric data takes the present case
well beyond the “expected and unsurprising”. In S v. United Kingdom (supra),
the European Court of Human Rights emphasised the significance of the
protection of personal data as part of protecting Article 8 rights. The Court
said (at [67] and [103]) (emphasis added):