Judgment Approved by the court for handing down
R (Bridges) v CCSWP and SSHD
67.
In addition, the Claimant points to the following: (a) that the Secretary of State’s
Biometrics Strategy (June 2018) acknowledged that “governance and oversight
of these [AFR] applications and the use of facial images as a biometric by law
enforcement could be strengthened further”12; (b) that the Information
Commissioner has expressed her concern “about the absence of national level
co-ordination in assessing the privacy risks and a comprehensive governance
framework to oversee [AFR] deployment.”13; and (c) that the Surveillance
Camera Commissioner queried the legal basis for the use of AFR and stated that
he does not consider the existing legislation governing the use of AFR by police
to be wholly satisfactory.14
(1)
Legal basis for SWP’s use of AFR: Is AFR Locate ultra vires the SWP?
68.
The Claimant’s first contention is that there must be some specific statutory
basis for the use of AFR Locate – i.e. to permit the use of the CCTV cameras,
and the use of the software that processes the digital information that the
cameras collect. SWP and the Secretary of State rely on the police’s common
law powers as sufficient authority for use of this equipment.
69.
The relevant principles at common law are well-established. First, a police
constable is a creature of the common law15. Police constables owe the public
a common law duty to prevent and detect crime. That duty reflects a
corresponding common law power to take steps in order to prevent and detect
crime. As Lord Parker CJ said in Rice v Connolly [1966] 2 QB 414 at 419B C:
“ [I]t is part of the obligations and duties of a police
constable to take all steps which appear to him
necessary for keeping the peace, for preventing crime or
for protecting property from criminal damage. There is
no exhaustive definition of the powers and obligations
of the police, but they are at least those, and they would
further include the duty to detect crime and to bring an
offender to justice.”
70.
Second, this general power of the police includes the use, retention and
disclosure of imagery of individuals for the purposes of preventing and
detecting crime. In R (Wood) v Commissioner of Police of the Metropolis
[2010] 1 WLR 123, the police took and retained photographs of the claimant
in the street for the purpose of gathering evidence about possible disorder and
criminal conduct. Laws LJ and Lord Collins held that this was lawful (see
[50]-[55] and [98]-[100] respectively). As Lord Collins observed ibid at [98],
“The taking of the photographs in the present case was lawful at common law,
and there is nothing to prevent their retention”.
12
Biometrics Strategy (June 2018), p.12.
Information Commissioner’s Office, Blog: facial recognition technology and law
enforcement.
See the National Surveillance Camera Strategy for England and Wales, para. 303.
See Halsbury’s Laws, Vol 84 (Police and Investigatory Powers), paragraph 1.
13
14
15