Updated: Oct 6
Today the Court of Appeal has handed down it’s judgment on South Wales Police use of automated facial recognition (R (Bridges) v Chief Constable of South Wales Police). Ed Bridges, supported by Liberty, has won on three grounds of his appeal. That the deployments were not in accordance with the law, that the South Wales Police Data Protection Impact Assessment didn’t comply with the Data Protection Act 2018 and they failed in their Public Sector Equality Duty.
A lot of time (and money) has been spent on reaching this judgment – 3 days at the Divisional Court in Cardiff in May 2019 and another 3 days in the Court of Appeal in late June this year. Not to mention the, I expect, hundreds of hours all parties and interveners have dedicated to researching and crafting arguments. The cost of the case has been large but worth it.
South Wales Police have said that they are not appealing the decision – in fact, they welcome it. I think this is a real credit to them, their position throughout the case has been one of openness and transparency and I know they will be taking stock to learn from the judgment.
This case has been very much focused on the specific deployments of AFR by South Wales Police, but the outcome is much more far-reaching with regard to the use of this technology by policing more generally.
The legal framework
I have long said that I am supportive of the police using technology to keep us safe but to do so that use needs to be lawful, justifiable and proportionate. With regard to the lawful use of AFR the court has found there to be deficiencies in the legal framework, this is where my main interest lies. Effectively they have said there needs to be more rigour around the creation of watchlists (who you are looking for) and where the technology can be deployed (do you have intelligence they will be there).
Like the Divisional Court, the Court of Appeal has placed great weight on my role in regulating the police use of surveillance cameras and their use in conjunction with AFR technology, the Home Secretary’s Surveillance Camera Code of Practice and the guidance I issued to police forces in October 2018 as key parts of the legal framework.
Update the Code.
But like me, the court has found the framework to be insufficient. This should not be news to you if you have tracked my work over recent years – I have been crying out for the Surveillance Camera Code of Practice to be updated. I first raised it in the review of the Code I carried out in 2015, I have raised in every year since in my Annual Report to the Home Secretary, I have written blogs about it, I’ve spoken to the press about it, I’ve written to Home Office officials and Ministers about it and I’ve even offered to update it myself.
All of this has not been heard by the Home Office. Well, that’s not true – in the June 2018 Biometrics Strategy there was a commitment to update the Code. Great I thought, I even wrote a blog about it! Over two years later – no sign of an updated Code which is 7 years old and woefully out of step with advances in technology. So, I’m extremely glad that the court suggests the Code can be updated to provide greater rigour around who is on a watchlist and where this technology can be deployed. I hope this gives the Home Office the impetus to update the Code and I stand ready to assist them in this endeavour.
Elsewhere, the court has raised concerns around the inherent racial and gender bias in facial recognition algorithms. This issue has been widely reported on in the past and in recent months we have seen some tech giants say they will do more to eliminate this and not allow use of algorithms until this happens. So, I will consider how I can amend my guidance to ensure police forces are aware for the potential bias in systems and also consider what more can be done with manufacturers of the technology to eliminate it.
Strengthen, don't weaken the legal framework.
Returning to the legal framework. You may have noticed that a recruitment exercise has been run to find mine and my colleague Paul Wiles’ (the Biometrics Commissioner) successor as a joint role – it closed yesterday. One person to do two roles independently of each other – itself a full-time job instead of two part-time Commissioners (although we both do three days a week so it’s more than a full-time role). You might be thinking what’s the connection between surveillance and biometrics? That is a question Paul and I have been asking ourselves!
The Home Office seems to have the answer though as the job description said:
"We have decided to appoint a single person to both roles because of the confluence of existing and emerging regulatory issues around police use of automated facial recognition…The Home Secretary has decided to appoint a single person to both roles to simplify the oversight regime as part of its commitment to empower the police to use new technologies like biometrics within a strict legal framework."
This is interesting for three reasons – firstly, no-one in policing has raised these issues with me or the Biometrics Commissioner, secondly, 95% of what I do is not related to facial recognition (although it is emerging technology with a degree of media scrutiny) and the Biometrics Commissioner doesn’t oversee ‘face’ as a biometric and lastly there has been no meaningful consultation with the incumbents in the role or anyone else for that matter that I am aware of. Unless a 30-minute conversation with someone who had little knowledge of what I do constitutes consultation. And it is being done with no Parliamentary oversight that I’m aware of. Someone on Twitter in a recent debate about one person carrying out both functions said:
"The HO's proposal is a bit like giving Trent Alexander-Arnold a hockey stick and saying, "Hey mate, bang in a few corners for us..."
I can’t help but agree with this sporting analogy and at a time where the legal framework needs to be strengthened, I fear this decision will weaken it in the long term – the judgment is clear the framework needs to be bolstered not diluted and I do not agree this will make the oversight regime clearer because they are still two distinct roles with little in common. There is a danger of policy being developed due to the hype around AFR and developing policy based on hype can never be a good thing.
Review the framework
I again reiterate my view – what is needed is a full review of the legislative landscape that governs the use of overt surveillance on which fully considered proposals can be made, proposals that are transparent in their formulation and properly consulted on. That said, as I come to the end of my tenure as Commissioner I continue to welcome and encourage debate from all involved in the use of surveillance algorithms used by the state. It is clear that there are opportunities for their use in society but there needs to be a balance to ensure any surveillance by the state keeps us safe whilst protecting our freedoms.
I sincerely hope that all parties, particularly the Home Office and the Home Secretary will finally reflect on the comments on the court and now act in the public interest in a manner in which they have so far failed to do and update the Surveillance Camera Code of Practice.