Judgment Approved by the court for handing down
R (Bridges) v CCSWP and SSHD
100.
In our view, it is appropriate when applying the third and fourth criteria in the
context of the facts of this case to apply a close standard of scrutiny. As we
explain below, the use of AFR Locate does entail sensitive processing of
personal data of members of the public, within the meaning of section 35 of
the Data Protection Act 2018. This must not be undertaken other than for
cogent and robust reasons. In particular, we see no reason in this regard, to
draw any distinction between the levels of protection for individual rights
under the Human Rights Act 1998 and the Data Protection Act 2018.
101.
Nevertheless, we are satisfied that the use of AFR Locate on 21st December
2017 (Queen’s Street) and 27th March 2018 (Motorpoint Arena) struck a fair
balance and was not disproportionate. AFR Locate was deployed in an open
and transparent way, with significant public engagement. On each occasion, it
was used for a limited time, and covered a limited footprint. It was deployed
for the specific and limited purpose of seeking to identify particular
individuals (not including the Claimant) who may have been in the area and
whose presence was of justifiable interest to the police. On the former
occasion it led to two arrests. On the latter occasion it identified a person who
had made a bomb threat at the very same event the previous year and who had
been subject to a (suspended) custodial sentence. On neither occasion did it
lead to a disproportionate interference with anybody’s Article 8 rights.
Nobody was wrongly arrested. Nobody complained as to their treatment (save
for the Claimant on a point of principle). Any interference with the Claimant’s
Article 8 rights would have been very limited. The interference would be
limited to the near instantaneous algorithmic processing and discarding of the
Claimant’s biometric data. No personal information relating to the Claimant
would have been available to any police officer, or to any human agent. No
data would be retained. There was no attempt to identify the Claimant. He
was not spoken to by any police officer.
Conclusions on the Claimant’s specific submissions
102.
We turn to deal with the Claimant’s submissions on proportionality, seriatim.
First, the Claimant submits that part of the rationale for the deployment of
AFR Locate at the Motorpoint Arena was that the area had only limited CCTV
footage and this could have been met by the provision of additional CCTV
without an AFR facility. However, the Claimant ignores two other specific
purposes behind the deployment of AFR Locate on that occasion. First, the
safety of the public: the event had previously attracted disorder and some of
those involved in the previous protests (who were on the watchlist) had caused
criminal damage and made bomb hoax calls. Second, the detection of crime:
the apprehension of suspects wanted on warrant and suspects in the South
Wales area. CCTV alone could not have achieved these aims: CCTV could not
have identified whether those at the event were on the watchlist.
103.
Second, the Claimant submits the use of AFR Locate was not limited to those
who were being sought in respect of serious crime. This argument is, with
respect, misconceived. The makeup of the watchlist did not have any impact
on the Claimant: the impact on him would be the same if the watchlist had
been limited to those sought in respect of serious crime. In fact, by including