What just happened?
In a judgement handed down on 11th August 2020,[1] the Court of Appeal took a momentous step toward the protection of individual liberties, in a ground-breaking finding against the use of automated facial recognition technology (AFR). Standing steadfast as the first legal challenge of its kind, the Court in R (Bridges) v Chief Constable of South Wales Police[2] found that South Wales Police’s use of the technology not only failed to adequately protect privacy rights, but fatally, did not fully account for the ways in which use of the technology unjustly discriminates against BAME groups.
The Court ruled against SWP on a number of grounds,[3] inter alia:
a. Interference with the right to respect for privacy as per Article 8 of the European Convention of Human Rights 1950;
b. Interference with the respective right entrenched in domestic law by Schedule 1 of the Human Rights Act 1998;
c. Breaches of data protection legislation (Data Protection Acts 1998 and 2018) – in particular, Section 42 compliance;
d. Inadequate protections in accordance with the Equality Act 2010.
What does this mean?
The notion that human rights are universally non-derogable and absolute is misconceived.[4] In actuality, the protections afforded by human rights law sit upon a hierarchy, divided by those absolute, qualified and limited rights. Presenting a host of ambiguities, different human rights articles demand varying degrees of adherence. Applicable in Bridges, the right to privacy afforded by Article 8 ECHR engages a qualified right, owing to the provisions which seek to strike a balance between the individual and society as a whole. Stipulated under Article 8 subsection 2, interferences by public authorities may be justified on grounds such as “necessary for a democratic society”[5] or, pertinently, “in the interests of national security”.[6] In this way, authorities are provided with an ample margin of appreciation for dictating necessary security measures.
On this occasion, it was felt by the court that SWP provided insufficient evidence pursuant to the Article 8(2) justifications. The court ruled that upholding the rule of law and protecting individual liberties superseded arguments presented by the police. The extraordinarily low accuracy of the technology, with 92% providing incorrect identity matches, dangerously opens floodgates for racial profiling.[7] Likewise, the contextual sensitivity proved crucial for Bridges, in that the SWP use of AFR technology simply could not be rationally argued to fall within the confines of a national security justification.
The discord embodied by Bridges epitomises the enduring contention between the alleged mutual exclusivity of human rights and national security. Pertinent in criminal justice jurisprudence, issues surrounding the scope of stop and search powers, in particular those lacking suspicion under section 60,[8] and the protections afforded by the regulatory PACE Codes of Practice, embody a friction between the rights of the people, and the erosive powers of the police in securing order.
How does this impact the legal sector?
Patently, this decision will have significant impacts upon criminal practices in its establishment of a new legal boundary for police practice, undoubtedly engendering further debate surrounding the appropriacy of current regulatory systems, and the future of privacy in a world of ever-evolving technology.
On account of the pressing issues of racial discrimination posed by such technology, one must hope the legal sector will be affected, through pressure upon the government, or calls for Judicial Review, to reconsider the de facto efficacy of the Equality Act 2010, particularly with regard to the Public Sector Equality Duty under section 149. Owing to its success, the case is likely to become a beacon of hope for many marginalised groups, who seek protection from, or retribution for, the “disproportionate and discriminatory”[9] use of police powers imposed upon them. Accordingly, an influx of cases much like Bridges is likely to follow suit, yielding the potential to transform the human rights landscape and reconstruct how the courts consider civil liberties in all legal practices.
With the organisations such as Liberty garnering huge support from this victory, petitions for a ban on the use of AFR render the future of this technology uncertain.[10] Lacking higher authority, this unprecedented case has been hailed a “huge step” in the fight against the “oppressive surveillance tool”.[11] The importance of privacy should not be understated. Vital in democratic societies, the protection of privacy is essential for preventing the realisation of an Orwellian nightmare.[12] Ultimately, this momentous decision must be welcomed. The legal sector should relish future cases to come, and the opportunities these present in continuing to entrench individual liberties against the tyranny of the state.
Written by Holly Crowder
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References:
[1] R (Bridges) v Chief Constable of South Wales Police [2020] EWCA Civ 1058.
[2] Ibid
[3] Ibid
[4] John D Montgomery, ‘Is there a hierarchy of rights?’ [2002] Journal of Human Rights 373.
[5] European Convention on Human Rights, article 8(2).
[6] European Convention on Human Rights, article 10(2).
[7] A Hern, ‘IBM Quits Facial Recognition Market Over Police Racial Profiling Concerns’ (The Guardian, 9th June 2020).
[8] Criminal Justice and Public Order Act 1994.
[9] Ben Bowling, Coretta Phillips, ‘Disproportionate and Discriminatory: Reviewing the Evidence on Police Stop and Search’ (2007) 70 The Modern Law Review 936
[10] ‘Resist Facial Recognition’ (Liberty, 2020).
[11] Dan Squires QC and Aidan Wills, ‘Liberty Wins Ground- Breaking Victory Against Facial Recognition Tech’ (Liberty, 19 August 2020).
[12] G Orwell, Nineteen Eighty-Four (Penguin, 1949).
Disclaimer: This article (and any information accessed through links in this article) is provided for information purposes only and does not constitute legal advice.