Judgment Approved by the court for handing down
R (Bridges) v CCSWP and SSHD
Lord Justice Haddon-Cave and Mr. Justice Swift:
A.
1.
INTRODUCTION
The algorithms of the law must keep pace with new and emerging
technologies. This case raises novel and important issues about the use of
Automated Facial Recognition technology (“AFR”) by police forces. The
central issue is whether the current legal regime in the United Kingdom is
adequate to ensure the appropriate and non-arbitrary use of AFR in a free and
civilized society. At the heart of this case lies a dispute about the privacy and
data protection implications of AFR. Counsel inform us that this is the first
time that any court in the world had considered AFR.
Representation
2.
The Claimant was represented by Dan Squires QC and Aidan Wills. The
Defendant (“the SWP”) was represented by Jeremy Johnson QC. The
Interested Party, the Secretary of State for the Home Department was
represented by Richard O’Brien.
The Interveners were represented
respectively, by Gerry Facenna QC and Eric Metcalfe (for the Information
Commissioner), and Andrew Sharland QC (for the Surveillance Camera
Commissioner). We are grateful to all counsel and their legal teams for the
extensive research and work that has gone into preparing the detailed written
and oral submissions and for the co-operative, helpful and able way in which
this case has been presented on all sides. The parties have brought these
proceedings before the Court in order to seek the Court’s early guidance as
regards the legal parameters and framework relating to AFR, whilst it is still in
its trial phase, and before it is rolled-out nationally. We commend the spirit in
which these proceedings have been brought and fought on all sides.
Introductory observations
3.
At the beginning of his submissions for SWP, Mr Johnson QC pointed out that
it was fifty years since the establishment of the SWP. Fifty years ago, the
world of forensics and policing was very different. The ability of the police to
identify people suspected of criminal offences was largely limited to
fingerprint or eyewitness evidence. Advances in modern technology have led
to dramatic advances in forensic policing, in particular: the forensic use of
deoxyribonucleic acid (“DNA”) evidence; closed circuit television (“CCTV”)
evidence which is ubiquitous; automatic number-plate recognition technology
(“ANPR”) which is widely used by police forces around the country; and cellsite evidence (“cell-site”) which is a feature of many police investigations.
4.
Each advance has naturally given rise to civil liberty concerns. It was never
seriously suggested, however, that the police should not be able to make use of
those technologies, so long as their use was in accordance with the law.
Specific legislative measures were brought into effect in relation to the
forensic use of fingerprints, DNA and CCTV (see e.g. the Police and Criminal
Evidence Act 1984 and the Protection of Freedoms Act 2012). By those
measures, and through scrutiny by the Courts of the ways in which such
information is gathered, used and retained, the law seeks to strike a sensible
balance between the protection of private rights, on the one hand, and the