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Court: Queen's Bench Division (Divisional Court)

Judgment in the world’s first case on police use of live Automated Facial Recognition

R (Bridges) v South Wales Police [2019] EWHC 2341 (Admin)

A Divisional Court has handed down judgment in a landmark case on the use of live Automated Facial Recognition (AFR) by the police. Live AFR captures the facial biometrics of people passing within range of video cameras and compares this data to the facial biometrics of people on police watchlists. South Wales Police uses AFR in real time in areas with very large numbers of people in an attempt to locate persons of interest. The claimant challenged SWP’s use of AFR on the basis that he had twice been present when this technology was in use, as well as its ongoing use in his police area. The Court held that live AFR engages the Article 8 rights of anyone whose face is scanned (or is at risk of being scanned) and constitutes the (sensitive) processing of their personal data. The judges nevertheless concluded that SWP’s use of AFR did not breach the claimant’s privacy or data protection rights. The judgment recognises that a public authority data controller’s compliance with the duty to undertake a data protection impact assessment is amenable to judicial review but rejected the challenge to SWP’s assessment. A challenge to SWP’s discharge of the Public Sector Equality Duty was also dismissed.

Criminal Law test for self-defence applies in police misconduct proceedings

R (Officer W80) v Director General of the Independent Office for Police Conduct [2019] EWHC 2215 (Admin)

The claimant, a Specialist Firearms Officer in the Metropolitan Police, challenged the decision of the Independent Office for Police Conduct to bring misconduct proceedings against him alleging a breach of the Standards of Professional Behaviour amounting to gross misconduct. The claimant had fired a fatal shot at Jermaine Barker during an intervention.

The principal ground of judicial review contended that the decision of the IOPC was unlawful because, in determining that the claimant had a case to answer, it applied the wrong test in law as to whether the claimant had acted in self-defence. The IOPC sought to apply a civil law test applicable to the torts of assault or battery, that the officer’s belief his life was in danger must not only be honest but also objectively reasonable for self-defence to be available and for the claimant to have a defence to the charge of misconduct. The claimant alleged that the correct test for self-defence in police misconduct proceedings is the criminal law test, namely, that the claimant had no case to answer in circumstances where he had an honest, albeit mistaken belief that his life was in danger. Ground 2 of the appeal contended that even if the IOPC is correct as to the legal test, the IOPC’s assessment of the facts as giving rise to a case to answer was unreasonable and irrational.

The Court quashed the IOPC’s decision on the basis that it had wrongly applied the civil law test in determining that there was no case to answer. The criminal law test should have been applied. Ground 2 was purely academic but, if it were not, the claimant had failed to surmount the very high threshold of irrationality.

High Court dismisses appeal against extradition orders under Article 3 of the European Convention on Human Rights

Henriques v Judicial Authority of Portugal [2019] EWHC 1998 QB (Admin)

The Claimant appealed against two extradition orders to Portugal sought by two Judicial Authorities pursuant to two European Arrest Warrants.

The Claimant resisted extradition on the basis that prison conditions in Portugal were such that, especially in light of his state of health, his extradition would be incompatible with the European Convention on Human Rights, art 3 and that extradition would be oppressive on account of his health under the Extradition Act 2003, s25.

The Court dismissed the appeal. Taking into account the threshold presumption for medical care in prisons in extradition cases and assurances given by the Director General of Prisons, the court was satisfied that Portugal will provide care and treatment to the Claimant which are in accord with the requirements of the ECHR, art 3.

Wife’s claim for husband’s police pension if he predeceases her transferred to Queen’s Bench under Part 8

R (Carter & Anor) v Chelmsford Crown Court [2019] EWHC 1484 (Admin)

This matter arose in the context of a challenge to the Police Pensions Regulations 1987 which have the effect that, if he were to predecease her, Mrs Carter would not be entitled to Mr Carter’s police pension because they were married after he had retired.
The Court held that Mrs Carter’s contingent claim could and should have been the subject of a straightforward claim for declaratory relief under Parts 7 or 8 of the CPR. It also concluded that, contrary to the consideration of the lower court, Mrs Carter was not entitled to make a claim under regulation H5(1) instead. This is because the regulation carefully restricts the circumstances in which such an appeal can be made to a) a refusal to admit a claim as of right; b) a refusal to admit a claim to a larger award than that granted; c) a decision as to whether a refusal to accept medical treatment is reasonable and d) forfeiture of any award. The Court considered that the only one of these criteria which might have applied was a); however because Mrs Carter was not at the time entitled to any award, her claim could not fall under regulation H5(1). As such the Court concluded that the claim should not have been brought before the Crown Court under the regulation. Therefore, the case is to be transferred to a single judge of the Queen’s Bench, and treated as if it was a claim commenced under Part 8.

Court rejects habeas corpus writ and dismisses claim for judicial review in fraud extradition case

Jane v Westminster Magistrates' Court [2019] EWHC 394 (Admin)

This matter concerned an application for habeas corpus or, in the alternative, an application for permission to claim for judicial review.The court held that the appropriate procedure in the case was an application for permission to bring a claim for judicial review and not habeas corpus. This is because, considering the case law, the court determined that a complete answer to the writ of habeas corpus was provided by the fact that there was lawful authority for the applicant’s detention. Therefore the correct route to follow was to submit that the decision of the District Judge to refuse his application for discharge was flawed on various public law grounds, and these would be grounds of judicial review.As such, the granted permission for a claim for judicial review to be heard. However, the court dismissed the judicial review claim. The court considered the CJEU case of Vilkas but determined that it did not apply because that case concerned the obligation to release an individual from custody if delay meant that the ten day time limit for surrender to the requesting state under art 23 was not met, whereas in the instant case the applicant was on bail, not in custody. Rather, the court held that Vilkas provided authority that the mere expiry of the art 23 time limits cannot relieve the executing Member State of its obligation to carry on with the procedure for executing an EAW. The court concluded that the submissions advanced in relation to subsequent decisions from the Supreme Court of Ireland in Vilkas and Skiba fell to be rejected as they added nothing to what the CJEU said in relation to EU law, and their outcomes depended on questions of Irish law. It also concluded that the District Judge’s decision was open to him on the evidence and so was not irrational. Therefore the court rejected the claims for judicial review.