Judicial Review Challenge to the use of Facial Recognition

On the Legal Secretaries Diploma course, one of the first topics that is studied is judicial review. This is a process that allows the courts to review the legality of actions taken by public authorities. Although nearly 2,500 judicial review cases reach the court every year, there are only a handful which really highlight how the process protects the rights of the individual against the state. This month we are considering one of these rare examples with the case brought by Ed Bridges, who has taken the South Wales police to court for their use of facial recognition technology.

Mr Bridges’ case involves the use of mass surveillance technology by the South Wales Police. In one instance Mr Bridges was identified at a peaceful anti-arms trade protest in 2018. In another instance he was under police surveillance along with everyone else on the street in Cardiff while they were doing their Christmas shopping.

The use of facial recognition is not new, but it is more usually associated with authoritarian police states and not liberal Western democracies like the UK.

The police, as a public body, have a duty to detect and prevent crime, but in doing so they should take care to protect an individual’s personal rights. When the police fail to do this then it can be an abuse of their power, leading to legal claims being made against them. These types of claims are often brought to the courts as a judicial review, allowing an independent judge to decide whether a public body has made an illegal (ultra vires) decision.

In the Bridges case one of the arguments against the police’s use of this technology is that it is inaccurate. It has also been claimed that it is prone to bias, particularly when used against people of colour. No doubt it will be pointed out by the police that as an emerging technology accuracy can be expected to improve rapidly, but it is nonetheless a valid concern.

It has also been argued that allowing the police to monitor people’s activity in public without their consent has profound consequences for the protection of an individual’s privacy and data protection rights. Lawyers for Mr Bridges have argued that it is reasonable for an individual to expect that their face would not be scanned in a public space and processed without their consent. Any individual under Article 8 of the Human Rights Act should have a right to privacy from police investigation where they are not suspected of any wrongdoing.

It is interesting to note that it is not just Mr Bridges who is concerned about the police straying beyond their powers. The pressure group Liberty have also denounced automatic facial recognition as a technology with the potential to abolish any personal privacy in a public place. Further afield, the city of San Francisco has already barred the use of automatic facial recognition by law enforcement.

Mr Bridges himself has pointed out that he finds the police’s use of the technology “intimidating and intrusive.” He also noted that there was no guidance for the police on how it should be used, nor any independent oversight.

All of these are legitimate points, and the suggestion that a code of conduct should be drawn up for the police to follow may be welcomed by both individuals and the police. One can only wonder if Mr Bridges had not brought the case whether any changes would be made. Fortunately, having a judicial review process in place to allow challenges to how a public body behaves will, on this occasion, likely result in an improvement in the law. If a national code is created outlining how public bodies should perform large-scale processing of people’s data, then not only will this provide clarity, but it may also avoid the need for further costly trials.

In summing up, it is worth pointing out that the police in South Wales are not the only force who are being challenged over their use of facial recognition technology. The London Metropolitan Police have also spent more than £200,000 on claims relating to the technology. In these cases, there were instances of up to 96% of members of the public being misidentified as criminals, turning the concept of innocent until proven guilty on its head!