Judgment Approved by the court for handing down
R (Bridges) v CCSWP and SSHD
Although it is no part of the requirements of section 64 that an impact
assessment identifies the legal risks arising from the proposed processing, the
SWP’s assessment specifically considers the potential for breach of Article 8
rights. The Claimant’s criticism on this point is therefore without foundation.
Nor do we accept the Claimant’s other criticism of the Data Protection Impact
Assessment Document. It is correct that the treatment of the personal data of
those on watchlists is a particular focus of the document. However, the
document does recognise that personal data of members of the public will be
processed, and identifies the safeguards that are in place in terms of the
duration for which any such data will be retained, the purpose for which it will
be used, and so on. See for example at pages 19 to 22 of the document.
G.
THE PUBLIC-SECTOR EQUALITY DUTY CLAIM
Introduction
149.
SWP first sought funding for its trial of AFR Locate in January 2017. By
April 2017, SWP had in place both funding, and an agreement with NEC for
use of its automatic facial recognition software application, NeoFace Watch.
150.
By section 149(1) of the Equality Act 2010, public authorities must in the
exercise of their functions have due regard to three matters: (a) the need to
eliminate discrimination, harassment, victimisation and any other conduct that
is prohibited by or under the 2010 Act; (b) the need to advance equality of
opportunity between persons who share a relevant protected characteristic and
persons who do not share it; and (c) the need to foster good relations between
persons who share a relevant protected characteristic and persons who do not
share it. What those criteria require is further explained in the remainder of
section 149.
151.
In April 2017, SWP prepared a document titled “Equality Impact Assessment Initial Assessment”. It relies on this as evidence of its compliance with the
section 149(1) duty. The fact that the document is described as an “Initial
Assessment” is immaterial. It is well-established that public authorities should
seek to consider the section 149(1) criteria at the earliest realistic stage of a
decision-making process. In this instance, as at April 2017 SWP was
commencing a trial of AFR technology. It was entirely appropriate for SWP to
undertake early assessment of the possible consequences in section 149 terms
of that trial leaving open the possibility of further evaluation by reference to
the section 149(1) criteria as the project developed.
152.
The Claimant’s criticism of SWP is that it did not in its assessment, consider
the possibility that AFR Locate might produce results that were indirectly
discriminatory on grounds of sex and/or race because it produces a higher rate
of false positive matches for female faces and/or for black and minority ethnic
faces. Thus, contends the Claimant, due regard was not had either to the need
to eliminate discrimination or the need to foster good relations.
Discussion