Judgment Approved by the court for handing down
R (Bridges) v CCSWP and SSHD
fingerprints generally requires the cooperation of, or use of force on, the
subject and would otherwise amount to an assault, statutory powers were
enacted to enable the police to take fingerprints. Both involve physically
intrusive acts. By contrast, the use of AFR Locate to obtain biometric
information is very different. No physical entry, contact or force is necessary
when using AFR Locate to obtain biometric data. It simply involves taking a
photograph of someone’s face and the use of algorithms to attempt to match it
with photographic images of faces on a watchlist. The method is no more
intrusive than the use of CCTV in the streets.
76.
So far as watchlists are concerned, the lists in issue before us have comprised
imagery acquired by way of police photography of arrested persons. The
police have explicit statutory powers to acquire, retain and use such imagery
(see s.64A Police and Criminal Evidence Act 1984).
77.
As has been explained, the watchlists comprised “persons of interest” to the
police. The Claimant was not on any SWP watchlist: for the purposes of
section 7 of the Human Rights Act 1998, he is not a “victim” in this regard,
and therefore can have no personal complaint about the watchlists. Nor can
we see that there is any reasonable basis for complaint arising from the fact
that watchlists used by SWP have included not just known criminals but
persons of “possible interest” to SWP for intelligence purposes. The
compilation of watchlists is something well within the common law powers of
the police as enunciated e.g. by Lord Parker CJ in Rice, namely “all steps …
necessary for keeping the peace, for preventing crime or for protecting
property”.
78.
For these reasons, we consider the police’s common law powers to be “amply
sufficient” in relation to the use of AFR Locate. The police do not need new
express statutory powers for this purpose.
(2)
Is there a sufficient legal framework for the use of AFR Locate?
79.
The Claimant’s second submission is that there is no sufficient legal framework
for the use of AFR Locate such that its use lacks the necessary qualities of
foreseeability, predictability, and hence of legality. This requirement was
explained by Lord Bingham in R(Gillan) v Commissioner of Police of the
Metropolis [2006] 2 AC 307 at [34], as follows:
“ The lawfulness requirement in the Convention
addresses supremely important features of the rule of
law. The exercise of power by public officials, as it
affects members of the public, must be governed by
clear and publicly accessible rules of law. The public
must not be vulnerable to interference by public
officials acting on any personal whim, caprice, malice,
predilection or purpose other than that for which the
power was conferred. This is what, in this context, is
meant by arbitrariness, which is the antithesis of