Judgment Approved by the court for handing down
R (Bridges) v CCSWP and SSHD
Operating Procedure, (ii) SWP’s Deployment Reports and (iii) SWP’s Policy
on Sensitive Processing. Each has been produced for the purposes of the trial
of AFR Locate which has been in progress since April 2017, and which
remains in progress. We accept that, as the trial progresses, it is likely that
these documents will be revised to reflect knowledge and insight obtained in
the trial. None is a document in final form. However, taken together, they
provide additional information as to how, when and in what circumstances
AFR Locate may be used. Clearly it is open to SWP, from time to time, to
amend the contents of any policy document. Nevertheless, for the duration of
their lives, such policy documents provide legally enforceable standards
against which SWP’s use of AFR Locate can be judged.
93.
The most important of the three documents is the Standard Operating
Procedure. We have seen “Version 12” of this document. It includes the
following: (a) a statement that AFR Locate will only be used overtly; (b) an
explanation of the signage to be in place when AFR Locate is deployed; (c)
criteria for the compilation of watchlists and for the protection of information
in watchlists; (d) a statement of the time during which information obtained
from the CCTV feed can be retained; (e) explanations of the respective
responsibilities of the systems operator and the intervention officers; (f)
guidance on the steps to be taken when the AFR equipment indicates a face
match; and (g) information about Deployment Reports.
94.
Deployment Reports are the second type of policy document. These
documents are created, in part, in advance of any deployment and specify the
purpose of the deployment and the reasons for it; and in part are completed
after a deployment has finished to record the outcomes of the deployment. The
existence of this type of document reflects that, to date, SWP has used AFR
Locate as part of a trial exercise. However, the fact that a Deployment Report,
in advance of the deployment, records the purpose of and reasons for the
deployment is a material matter for present purposes.
95.
The third policy document is the SWP’s policy on Sensitive Processing. This
is a document required by section 35 of the DPA 2018. We refer to it in further
detail below, in the context of the Claimant’s data protection claims.
96.
Drawing these matters together, the cumulative effect of (a) the provisions of
the DPA, (b) the Surveillance Camera Code and (c) SWP’s own policy
documents, is that the infringement of Article 8(1) rights which is consequent
on SWP’s use of AFR Locate, occurs within a legal framework that is
sufficient to satisfy the “in accordance with the law” requirement in Article
8(2).
The answer to the primary submissions of the Claimant and the
Information Commissioner, is that it is neither necessary nor practical for
legislation to define the precise circumstances in which AFR Locate may be
used, e.g. to the extent of identifying precisely which offences might justify
inclusion as a subject of interest or precisely what the sensitivity settings
should be (c.f. Lord Sumption in Catt at [14]). Taking these matters as
examples, the Data Protection Principles provide sufficient regulatory control
to avoid arbitrary interferences with Article 8 rights. The legal framework that
we have summarised does provide a level of certainty and foreseeability that is
sufficient to satisfy the tenets of Article 8(2). It provides clear legal standards