18/02/2026
Written by: Ian Helme
“You can’t ban technology. Sure, that might lead to a dystopian future or something, but you can’t ban it”: David Scalzo, co-founder of Clearview AI, quoted in Your Face Belongs To Us by Kashmir Hill, Simon & Schuster, 2023.
Background
In 2017 South Wales Police (“SWP”) began trialling the use of live automated facial recognition technology (“LFR”) as part of a series of deployments at large public events and in busy urban areas. LFR works by, in summary, capturing digital images of the faces of members of the public in real time and comparing them against a pre-defined watchlist. These watchlists typically included individuals suspected of involvement in criminal activity, and vulnerable persons such as missing people.
The images of members of the public whose biometric data did not match a watchlist entry were immediately and automatically deleted. Where a possible match was generated, the system would alert an officer, who then had to decide whether the person should be stopped and engaged with. The decision whether to intervene was ultimately made by the human officer, not by the system itself.
The deployments attracted controversy, particularly from civil liberties organisations, due to the indiscriminate scanning of the general public and concerns over the absence of a bespoke statutory framework governing the use of LFR. The Claimant, Ed Bridges, a civil liberties campaigner, brought a judicial review of South Wales Police’s use of LFR. He contended that his own face had been scanned and processed on at least two occasions: first, when he was Christmas shopping in Cardiff city centre, and second, when he attended a peaceful protest against the arms trade in 2018. He argued, in summary, that this amounted to an unlawful interference with his rights under Article 8 of the European Convention on Human Rights (the right to respect for private life), and further that the police’s use of LFR was not compliant with the Data Protection Act 2018 or the Public Sector Equality Duty (“PSED”) imposed by section 149 of the Equality Act 2010, as the Equality Impact Assessment undertaken had failed to take into account the risk of indirect discrimination on the basis of sex or race.
The Information Commissioner’s Office and the Surveillance Camera Commissioner had both called for clearer regulation and intervened in the proceedings, as did the Secretary of State for the Home Department and Police and Crime Commissioner for South Wales.
Decision
The Court of Appeal, overturning the Divisional Court, unanimously concluded that SWP’s previous and ongoing use of LFR was not in accordance with the law for the purposes of Article 8(2). In particular, it concluded that the use of this “novel” technology was not accompanied by sufficient safeguards to ensure its use was in accordance with the law for the purpose of Article 8, and that there were insufficient constraints on police discretion as to “where” LFR could be used and “who” could be placed on an LFR watchlist. That meant that “too much discretion [was] left to individual police officers. It is not clear who can be placed on the watchlist nor is it clear that there are any criteria for determining where AFR can be deployed”.
The Court of Appeal went on to consider whether the deployments of LFR constituted a proportionate interference with the Claimant’s Article 8 rights, and found that it did. It accepted that the interference with the Claimant’s Article 8 rights was limited to the near instantaneous algorithmic processing and discarding of the Claimant’s biometric data and that the impact was “negligible”. It also accepted that the same was true of other members of public in the same position as the Claimant, and that “[a]n impact that has very little weight cannot become weightier simply because other people were also affected.”
The appeal also succeeded on the basis that SWP had failed to comply with the PSED. The Court of Appeal held that the purpose of the PSED was to ensure that public authorities give thought to whether a policy will have a discriminatory potential impact. SWP erred by not taking reasonable steps to make enquiries about whether the AFR was biased. The Court of Appeal did note, however, that there was no clear evidence that AFR was in fact biased on the grounds of race and/or sex.
Comment
This was the first occasion on which domestic courts grappled with the legal implications of the use LFR by a police authority. While the Claimant succeeded on his claim, celebrations by civil rights advocates were muted. This was far from a blanket refusal to countenance such widespread surveillance. Instead, the judgment has to date served more as a roadmap to how the deployment of LFR might be put beyond legal challenge. In January 2026 a further claim for JR was brought in respect of the use of LFR in London, with the MPS relying heavily both upon the fact that the technology was no longer novel and upon the safeguards it had put in place on the use of LFR in light of Bridges. A decision is awaited. In the same month, the Home Secretary announced that LFR would be made available to all police forces in England and Wales. Defending the policy, she said that her vision was “to achieve, by means of AI and technology, what Jeremy Bentham tried to do with his panopticon”.
Matrix members
Dan Squires KC and Aidan Wills acted for the Claimant, Ed Bridges.