Judgment Approved by the court for handing down
R (Bridges) v CCSWP and SSHD
results were “impressive” and that the introduction of a new algorithm had
introduced a step-change in terms of what could be accomplished.
108.
F.
Although the Claimant seeks to contend that any future use of AFR Locate
would be unlawful, there is a limit to what can sensibly be said in respect of
possible future use of AFR Locate by SWP. Questions of proportionality are
generally fact sensitive. For present purposes, it is sufficient for us to say that,
on the evidence before us as to the manner in which AFR Locate is currently
deployed by SWP, we are satisfied that there is no systemic or clear
‘proportionality deficit’ such that it can be said that future use of AFR Locate
by the SWP would be inevitably disproportionate. It will, of course, be open
to any person who considers that their Article 8(1) rights have been the subject
of interference because of the use of AFR Locate by SWP (or other law
enforcement agency) to call on SWP to demonstrate that the interference was
justified on the particular facts of the case. In this regard, it should be noted
that the Information Commissioner and Surveillance Camera Commissioner
have wide powers of oversight (and, in the case of the former, enforcement).
THE DATA PROTECTION CLAIMS
Introduction
109.
The Claimant brings data protection claims under both the DPA 1998 and the
DPA 2018. The two occasions in respect of which the Claimant claims SWP
deployed AFR Locate when he was present (namely, December 2017 in
Queen’s Street and March 2018 at the Motorpoint Arena) were both before the
enactment and commencement of the DPA 2018 (23rd May 2018 and 25th May
2018, respectively). In fact, none of the deployments by SWP of AFR in issue
in these proceedings took place after the commencement of the DPA 2018.
Nevertheless, all parties have requested that we consider the legality of the
deployments of AFR Locate as if they had taken place after 25th May 2018.
We are content to do so. SWP’s pragmatic concession that the Claimant was
one of the persons whose image was captured by AFR Locate at Queen’s
Street and at the Motorpoint Arena extends to the data protection claims. We
address the data protection claims under three headings: (1) the claim under
the DPA 1998; (2) the claim under section 34 of the DPA 2018; and (3) the
claim under section 64 of the DPA 2018.
(1)
Claim under the DPA 1998
110.
The premise for the claim under the DPA 1998 is the obligation at s. 4(4) of
the Act on data controllers “to comply with the data protection principles in
relation to all personal data with respect to which he is the data controller”.
The data protection principles are at Part 1 of Schedule 1 to the DPA 1998.
The first principle is that
“personal data shall be processed fairly and lawfully and in
particular, shall not be processed unless -