
Facial recognition use by South Wales Police 'unlawful' - asplake
https://www.bbc.co.uk/news/uk-wales-53734716
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DanBC
This isn't a particularly good result.

Here's a press summary:
[https://www.bailii.org/ew/cases/EWCA/Civ/2020/1058.image.pdf](https://www.bailii.org/ew/cases/EWCA/Civ/2020/1058.image.pdf)

Here's the case: [https://www.bailii.org/cgi-
bin/format.cgi?doc=/ew/cases/EWCA...](https://www.bailii.org/cgi-
bin/format.cgi?doc=/ew/cases/EWCA/Civ/2020/1058.html&query=\(facial\)+AND+\(recognition\))

Have a look at the claims.

> The appeal succeeded on Ground 1, that the DC erred in concluding that SWP’s
> interference with Mr Bridges’s Article 8(1) rights was “in accordance with
> the law” for the purposes of Article 8(2). The Court held that although the
> legal framework comprised primary legislation (DPA 2018), secondary
> legislation (The Surveillance Camera Code of Practice), and local policies
> promulgated by SWP, there was no clear guidance on where AFR Locate could be
> used and who could be put on a watchlist. The Court held that this was too
> broad a discretion to afford to the police officers to meet the standard
> required by Article 8(2).

This isn't saying "don't do it", it's saying "draw up a code of practice and
some guidance documents before you do it".

> The appeal succeeded on Ground 3, that the DC was wrong to hold that SWP
> provided an adequate “data protection impact assessment” (“DPIA”) as
> required by section 64 of the DPA 2018. The Court found that, as the DPIA
> was written on the basis that Article 8 was not infringed, the DPIA was
> deficient.

To me this feels like they're saying a better DPIA would have avoided the
problem.

> The appeal succeeded on Ground 5, that the DC was wrong to hold that SWP
> complied with the PSED [public sector equality duty]. The Court held that
> the purpose of the PSED was to ensure that public authorities give thought
> to whether a policy will have a discriminatory potential impact. SWP erred
> by not taking reasonable steps to make enquiries about whether the AFR
> Locate software had bias on racial or sex grounds. The Court did note,
> however, that there was no clear evidence that AFR Locate software was in
> fact biased on the grounds of race and/ or sex.

Again, this doesn't feel like they're saying this is a critical flaw of AFR.
It feels like they're saying that a better impact assessment for the PSED
would avoid legal problems.

Importantly the appeal failed this claim:

> The appeal failed on Ground 2, that the DC erred in determining that SWP’s
> use of AFR was a proportionate interference with Article 8 rights under
> Article 8(2). The Court held that the DC had correctly conducted a weighing
> exercise with one side being the actual and anticipated benefits of AFR
> Locate and the other side being the impact of AFR deployment on Mr
> Bridges.The benefits were potentially great, and the impact on Mr Bridges
> was minor, and so the use of AFR was proportionate under Article 8(2)

This is the court saying they don't have a problem with the principle of AFR.

Privacy campaigners have a lot more work to do if they want to see AFR banned.

