The Court of Appeal has today held that South Wales Police’s (SWP) use of live automated facial recognition (AFR) technology is unlawful. Live AFR involves real-time scanning of the faces of people passing AFR-equipped CCTV cameras and comparing their facial biometrics to those of people on police watchlists. Edward Bridges – a civil liberties campaigner who lives in Cardiff – challenged SWP’s use of AFR during Christmas shopping in 2017, at an arms fair in 2018, and on an ongoing basis. His case is thought to be the first challenge in the world to the use of live AFR by law enforcement bodies. In a decision which has profound implications for the use of AFR by police in this jurisdiction, the Court (Sir Terence Etherton MR, Sharp P and Singh LJ) unanimously allowed Mr Bridges’ appeal against the Divisional Court’s judgment.
The Court held that SWP’s use of AFR breached the right to privacy under Article 8 of the ECHR because it is not in accordance with the law. There are, the judges concluded, insufficient constraints on officers’ exercise of discretion regarding where AFR can be deployed and who can be included on a watchlist – anyone of interest to the police, including for intelligence gathering purposes, could be placed on a watchlist. Further, the Court held that SWP has not complied with the Public Sector Equality Duty (PSED) because the force has failed to obtain the information necessary to assess whether its AFR system may have inherent biases on the grounds of race or sex.