Judgment Approved by the court for handing down
R (Bridges) v CCSWP and SSHD
subject to appropriate safeguards, such data … could be
collected … in a manner amounting to a serious
interference with privacy rights.”
61.
The Surveillance Camera Commissioner’s AFR Guidance states that Article 8
is a “fundamental consideration” in the context of the “overt operation of
surveillance camera systems”; and the “use of AFR … in crowded places and
selected sites will significantly enhance the capabilities of a surveillance
camera system to intrude and gather private information of a citizen”
(paragraphs 2.1 – 2.2). He refers to the “intrusive capabilities of AFR”
(paragraph 9.2) and expresses the view that “potential for intrusion arising
from AFR is arguably consistent with that arising from some forms of covert
surveillance tactics and capabilities” (paragraph 10.2). It is clear that this is
not confined to persons whose images are contained on watchlists.
62.
For these reasons, in our view, the use of AFR Locate does entail infringement
of the Article 8(1) rights of those in the position of the Claimant in this case.
The points we have made above have focussed on the position of members of
the public, such as the Claimant whose images are digitally recorded by
CCTV, and then processed by the AFR Locate technology. For sake of
completeness we note that the effect, in Article 8(1) terms, for those people
who are on the watchlist, is the same, albeit that the information that is
processed is drawn from a database of custody photographs held on SWP’s
Niche Record Management System. Neither SWP nor any other party before
us sought to contend otherwise.
(2)
Is the SWP’s use of AFR in accordance with the law?
63.
The Claimant’s primary argument on his Article 8 case was that the use of
AFR Locate by the SWP is not “in accordance with the law” for the purposes
of Article 8(2). Mr Squires QC’s submission was both to the effect: (a) that
there is no legal basis for the use of AFR Locate, such that SWP does not, as a
matter of law, have power to deploy it (or for that matter, to make any other
use of AFR technology); and (b) that even if SWP’s use of AFR Locate is not
ultra vires, any interference with Article 8(1) rights is not subject to a
sufficient legal framework such that it is capable of being justified under
Article 8(2). In support of this latter argument, the Claimant contends that the
generic legal framework provided, successively, by the DPA 1998 and the
DPA 2018 is insufficient.
64.
The Claimant points to the provisions of the Police and Criminal Evidence Act
1984 (“PACE”), and in particular to Code D “Revised Code of Practice for the
Identification of Persons by Police Officers” issued under section 66 of PACE,
and Annex F to Code D which he contends, collectively, regulate obtaining
and use of fingerprints and DNA samples. His case is that absent comparable
provision for AFR technology, its use is not in accordance with the law. If this
requirement under Article 8(2) is to be satisfied, there must be a legal
framework that specifies: (a) when AFR Locate may be deployed, for example
only when there is “reasonable suspicion” or a “real possibility” that persons
who are sought may be in the location where AFR Locate is deployed; (b)