Panopticon Generalis: Bridges & the lawfulness of Automated Facial Recognition (AFR) in public spaces in the UK

Samuel Street examines the lawfulness of automated facial recognition in the UK, the impact this poses for Article 8 rights, and the Court of Appeal’s decision in R (Bridges) v the Chief Constable of South Wales Police [2020].

A draft version of the upcoming EU artificial intelligence (AI) Act was recently leaked online, uncovering plans to prohibit the use of automated facial recognition (AFR) software by authorities in public spaces, except for the purposes of locating terror suspects, missing persons, and persons suspected of committing serious crimes.¹ AFR is described in the draft EU Act as posing an unacceptable risk to the social fabric of the Union.² In the UK there is yet no legislation which governs the use of AFR and other AI technologies in the way that the EU AI Act intends to do. 

This article explores the lawfulness of automated facial recognition technology (AFR) use by police forces in the UK, outlining how it engages with our Article 8 right to privacy, and how this was tested in the case of R (Bridges) v The Chief Constable of South Wales Police [2020]³. 

What is AFR? 

AFR works by capturing live images of facial features and matching them to a curated watchlist, drawn from photographic databases an authority may hold of a population. The automated technology is increasingly used by police forces in the UK, who create watchlists from police records they hold of members of the population, such as suspected criminals or terrorists. Any person in view of an AFR CCTV camera will have an image of their face taken, and their facial features scanned by the software. If their face matches the watchlist then the police will be alerted, but if there is no match then the person’s image is instantly deleted without an officer even seeing it. 

Proponents of the technology argue that allowing the police to identify actual and potential criminals in this way will reduce crime and make public spaces safer.⁴ However, AFR’s proliferation in the UK has been met with concern by many human rights and privacy groups. These groups see it as a dangerous ‘big brother’ technology which unacceptably interferes with our right to privacy and actualises the prospect of an Orwellian state mass surveillance system.⁵

AFR & Article 8 in the UK 

By capturing our data in real time, AFR clearly engages Article 8 of the ECHR⁶: The right to respect of our private and family life. Article 8(2) specifies that any interference with this right must be done so only ‘in accordance with the law’ and only when it is proportionate to do so. Police use of AFR in the UK is at present ‘in accordance with the law’ if it complies with certain provisions of Data Protection Act (DPA) 2018, the Surveillance Camera Code, and s.149 of the Equality Act 2010. s.35 of DPA 2018 requires that the police must either gain consent from members of the public to process their image using AFR or use it only when it is strictly necessary to do so. The test for ‘strictly necessary’ is severe, requiring that no less intrusive methods of surveillance are available and a proper, specific analysis on the proportionality of the AFR use is carried out.⁷ Section 35 also requires comprehensive guidance to be produced for any use of technology that intervenes with Article 8 rights. The interplay between the DPA 2018 and Article 8 is thus clear. 

R (Bridges) v The Chief Constable of South Wales Police [2020] 

The lawfulness of AFR use was tested in R (Bridges) v The Chief Constable of South Wales Police [2020] (“Bridges”). The case concerned AFR Located, a pilot AFR scheme conducted by South Wales Police (SWP). SWP deployed the technology in public spaces on about 50 occasions between 2017 and 2019. Edward Bridges, a civil liberties campaigner from Cardiff, was at two locations at which AFR was used in 2017 & 2018. Mr Bridges was not on any police watchlist, but he contended that simply by capturing him on camera SWP had violated his Article 8 right to privacy and contravened the Data Protection Act 2018. Bridges brought a claim for judicial review on these grounds, which was dismissed by the Divisional Court in September 2019. They found that although Mr Bridges’s Article 8 right had been interfered with, this had been done so in accordance with the law and was proportionate. The Court also rejected the data protection claims. 

Mr Bridges subsequently appealed on 5 grounds, and relevant to this article are grounds 1 and 2:  

1. The Divisional Court had erred in deeming SWP’s use of AFR on Mr Bridges to be in accordance with the law under Article 8. 

2. The Divisional Court was wrong to conclude that SWP’s use of AFR was proportionate under Article 8. 

The Court of Appeal allowed ground 1 because the guidance SWP had created for the AFR Locate scheme contained no directions for where the technology could be used and who was to be placed on the specific watchlists. The Court found this guidance to be inadequate and that it left far too much discretion in the hands of individual police officers, meaning the interference with Mr Bridges’s right to privacy was not in accordance with the law as required by Article 8(2). 

Perhaps more significantly, the appeal failed on ground 2 as the Court decided that the Divisional Court had correctly weighed up the actual and anticipated benefits of the technology’s use with the infringement upon Mr Bridges’s right. They agreed that the benefits of AFR Locate were potentially great for policing and general public safety, whereas the impact on Mr Bridges was minor. The Court refused to consider the potentials and hypotheticals of AFR use, and rejected Mr Bridges’s reference to Lord Kerr in Beghal v DPP⁸ that what is important is ‘the potential reach of the power’⁹. Indeed, the Court refused to make any general comment about the lawfulness of AFR, and instead opted to focus entirely on the specific and individual infringement on Mr Bridges’s rights in the two instances that he was caught on camera during the scheme. The Court agreed with the respondent that multiple negligible infringements on individual rights do not act cumulatively to become a major infringement – they remain negligible¹⁰ – and thus SWP’s use of AFR was proportionate in line with Article 8(2). 

The effect of Bridges 

So, while Bridges may show that Article 8 rights do not overtly prohibit the use of AFR in public spaces, it did at least specify that its use will only be lawful when governed by strict and clear legal guidance, and if in pursuit of a legitimate policing aim. Since Bridges, police use of AFR has expanded significantly across the UK. The impact of the judgment can be seen in the Met Police’s policy document on AFR technology, which sets out guidance and a legal framework for AFR use in terms that explicitly match the Court of Appeal’s requirements for lawfulness.¹¹ 

However, in absence of clear legislation that explicitly regulates AFR in the UK, and given the court’s refusal to rule on its general lawfulness in Bridges, police forces presently have a fairly wide discretion over when and how to use AFR in public spaces, as long as it is accompanied by clear guidance. For some, this places far too much power in the hands of the Police¹², an institution which has an apparent reputation for racism, discrimination, and an overall lack of transparency.¹³ Giving the police effective omnipresence in public spaces is a perhaps concerning prospect given that AFR technology functions using police watchlists; watchlists on which certain demographic groups (namely young Black men) are disproportionately placed¹⁴. The improperly regulated use of AFR may therefore reinforce and exacerbate extant policing failures, perhaps even resulting in a further ‘criminalisation’ of demographic groups disproportionately targeted by AFR. Indeed, in a report commissioned by the Ada Lovelace Institute, Matthew Ryder KC lambasted the current lacuna in regulatory safeguards for the use of AFR in the UK, suggesting that legislation which resembles the EU AI Act is desperately needed to ensure that AFR is safe and proportionate. His full report can be accessed here. 

Privacy campaigners can at least be reassured that general automated surveillance of the population by the Police, irrespective of whatever guidance they may release, is unlikely to ever be deemed lawful in a UK court, given Lord Sumption’s dictum in R (Catt) v Commissioner of Police of the Metropolis [2015]¹⁵ — that the first limb of Article 8(2), ‘in accordance with the law’, can never mean a legal basis ‘so wide or indefinite as to permit interference with the right on an arbitrary or abusive basis’. Perhaps this is why the Court of Appeal refused to consider the hypothetical arguments made by Mr Bridges on this matter. Of course, if Parliament were to legislate to specifically allow this kind of general surveillance, then there is little the courts could do to intervene. In any case, the somewhat narrow Bridges ruling will likely be revisited in the future as AFR technology becomes an increasingly normal part of policing.  

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1. Clara Hainsdorf, Tim Hickman, Dr. Sylvia Lorenz, Jenna Rennie, Clare Connellan, ‘The pre-final text of the EU’s AI Act leaked online’ (6^th February 2024) < https://www.whitecase.com/insight-alert/pre-final-text-eus-ai-act-leaked-online#:~:text=On%20January%2022%2C%202024%2C%20the,followed%20by%20a%20258%2Dpage > ↩︎
2. Chris Stokel-Walker, ‘Europe’s New AI Rules Could Go Global—Here’s What That Will Mean’ (7^th February 2024) < https://www.scientificamerican.com/article/europes-new-ai-rules-could-go-global-heres-what-that-will-mean/ > ↩︎
3. R (Bridges) v Chief Constable of South Wales Police and Secretary of State for the Home Department [2019] EWHC 2341 (Admin). ↩︎
4. Jeremy Swinfen-Green, ‘Facial Recognition in the City’ < https://www.business-reporter.co.uk/technology/facial-recognition-in-the-city >  ↩︎
5. Amnesty International, Press Release, ‘Ban dangerous facial recognition technology that amplifies racist policing’. (26^th January 2021) < http:// https://www.amnesty.org/en/latest/press-release/2021/01/ban-dangerous-facial-recognition-technology-that-amplifies-racist-policing/ &gt; ↩︎
6. Enshrined into UK law in the Human Rights Act 1998, Schedule 1, Part I, Article 8.  ↩︎
7. Data Protection Act 2018, s 35. ↩︎
8. Beghal v Director of Public Prosecutions [2016] UKSC AC 84, paragraph 102. ↩︎
9. R (Bridges) v Chief Constable of South Wales Police and Secretary of State for the Home Department [2019] EWHC 2341 (Admin), paragraph 59 ↩︎
10. Ibid, paragraph 143. ↩︎
11. MPS LFR Policy Document, Ongoing < https://www.met.police.uk/SysSiteAssets/media/downloads/force-content/met/advice/lfr/policy-documents/lfr-policy-document2.pdf > ↩︎
12. Purshouse, J. and Campbell, L. (2022) Automated facial recognition and policing: a Bridge too far? Legal Studies, 42 (2). pp. 209-227. ↩︎
13. Baroness Casey of Blackstock, 2023. ‘An independent review into the standards of behaviour and internal culture of the Metropolitan Police Service’ <https://www.met.police.uk/SysSiteAssets/media/downloads/met/about-us/baroness-casey-review/update-march-2023/baroness-casey-review-march-2023a.pdf &gt; ↩︎
14. Ibid. ↩︎
15. R (Catt) v Commissioner of Police of the Metropolis [2015] UKSC 9, paragraph 11. ↩︎

Photo credit: Stephen Johnson from Creative Commons

DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.

Upholding The Right To Protest In A New Era

Candace Manske reflects on the right to protest in the light of the Public Order Act and the Coronation

The death of Her Majesty Queen Elizabeth II in September 2022 marked a new era for Great Britain. The country saw significant shifts not only in the coronation of a new monarch, but also radical political and social upheaval, such as the cost of living crisis, affecting our society.  These changes inspired some to react against the shifts in power during the coronation of the new Head of State, King Charles III. Protesters from the leading anti-monarchy group, Republic, were highly visible with t-shirts emblazoned with slogans such as “Not my king” at events leading up to the coronation; and protests were held in different locations throughout the United Kingdom, including several planned in London on Coronation Day itself.  

The legal right to protest is protected under both articles 10 and 11 of the European Convention of Human Rights which puts an emphasis on “freedom of expression” and “freedom of assembly” ¹. This goes further to imply that every individual, regardless of the cause at hand, has the right to march, protest or demonstrate in a public space. 

Limits on the right to protest 

Even though protected both by the ECHR and the Human Rights Act 1998, limits are attached to the right of assembly, and therefore, the right to protest including those which are considered as peaceful. At the base, these limits have a common theme which aims to prevent disorder and crime as well as ensure public safety.  

The introduction of the Public Order Act 2023 was highly scrutinised by international judicial institutions, including the United Nations, when it received royal assent and became an Act of Parliament on 2 May 2023. This Act has been highly criticised due to the risk feared it will have on protests and protesters. It was, and still is, feared that the restrictions which this Bill puts in place would have a negative impact on the freedom of expression and public protests on subjects pertinent to human rights and environmental issues. These criticisms are based not only on the vague language used within this piece of legislation, but also additional powers given to the police during public assemblies.  

Revised policing powers through the Public Order Act 2023 

The powers already given to the police to preserve public order had already been outlined in the Public Order Act 1986². This Act goes as far as abolishing the “common law offences of riot, rout, unlawful assembly and affray” (Public Order Act, 1986). The abolition of these acts is in line with the limitations recognised as those which would cause general societal chaos and disorder – and unlawful violence. One of the main issues of the Public Order Act 2023 is the fact that it provides additional “stop and search” orders to the police during public assemblies³ in addition to the powers already bestowed upon the police by the Police and Criminal Evidence Act 1984 and the Public Order Act 1986.  

In summary, the language of the Bill suggests that the powers of the police during protests are subjective in nature, making policing powers easily abused by authorities.  

Conclusion 

During the protests preceding the coronation of the King in May 2023, 64 individuals were arrested. The Met later reported that there was insufficient proof that these protesters were either going to breach the peace, nor “lock on” (a protesting technique which is now forbidden).⁴ The anti-monarchy group “Republic” told the media that police did not provide a reason for the arrestation of anti-monarchy protest organizers⁵ (CNN, 2023). With such accusations where even the police question the powers they are given to act in times when the voice of the people wishes to be heard, it is important for those who believe in democracy to interrogate if this new piece of legislation will uphold the rights related to protest and freedom of expression as contained in human right law on both a national and international level. 

In a press release issued by the United Nations concerning the Public Order Act, the UN High Commissioner for Human Rights, Voker Türk, stated: “This new law imposes serious and undue restrictions on these rights that are neither necessary nor proportionate to achieve a legitimate purpose as defined under international law. This law is wholly unnecessary as UK police already have the powers to act against violent and disruptive demonstrations.”⁶ 

¹ European Convention on Human Rights, Article 11

² Public Order Act 1986, Part I 

³ Public Order Act 2023, s 10  

⁴ Sean Seddon, ‘Coronation : Met expresses ‘regret’ over arresting six anti-monarchy protesters’ (BBC, 9 May 2023) < https://www.bbc.com/news/uk-65527007> accessed 07 June 2023

⁵ Ivana Kottasovà, « London police express ‘regret’ over arrests of anti-monarchy protesters during coronation’ (CNN, 9 May 2023) <https://edition.cnn.com/2023/05/09/uk/london-police-regret-coronation-arrests-intl-gbr-ckc/index.html#:~:text=Police%20arrested%2064%20people%20on,no%20further%20action%2C%20police%20said.> access 08 June 2023

⁶ Office of the High Commissioner for Human Rights, “UN Human Rights Chief urges UK to reverse ‘deeply troubling’ Public Order Bill” (United Nations Human Rights Office of the High Commissioner, 27 April 2023) < https://www.ohchr.org/en/press-releases/2023/04/un-human-rights-chief-urges-uk-reverse-deeply-troubling-public-order-bill> accessed 08 June 2023

Photo Credit: Alex Radelich on Unsplash

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‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’