The court was asked whether the current legal regime in the United Kingdom is adequate to ensure the appropriate and non-arbitrary use of Automated Facial Recognition technology in a free and civilized society. At the heart of this case lies a dispute about the privacy and data protection implications of AFR.
Held:
The court set out the general principles applicable to the ‘in accordance with the law’ standard: ‘The general principles applicable to the ‘in accordance with the law’ standard are well-established: see generally per Lord Sumption in Catt, above, [11]-[14]; and in Re Gallagher [2019] 2 WLR 509 at [16] – [31]. In summary, the following points apply.
(1) The measure in question (a) must have ‘some basis in domestic law’ and (b) must be ‘compatible with the rule of law’, which means that it should comply with the twin requirements of ‘accessibility’ and ‘foreseeability’ (Sunday Times v United Kingdom (1979) 2 EHRR 245; Silver v United Kingdom (1983) 5 EHRR 347; and Malone v United Kingdom (1985) 7 EHRR 14).
(2) The legal basis must be ‘accessible’ to the person concerned, meaning that it must be published and comprehensible, and it must be possible to discover what its provisions are. The measure must also be ‘foreseeable’ meaning that it must be possible for a person to foresee its consequences for them and it should not ‘confer a discretion so broad that its scope is in practice dependent on the will of those who apply it, rather than on the law itself’ (Lord Sumption in Re Gallagher, ibid . ..
(3) Related to (2), the law must ‘afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise’ (S v United Kingdom, above . ..
(4) Where the impugned measure is a discretionary power, (a) what is not required is ‘an over-rigid regime which does not contain the flexibility which is needed to avoid an unjustified interference with a fundamental right’ and (b) what is required is that ‘safeguards should be present in order to guard against overbroad discretion resulting in arbitrary, and thus disproportionate, interference with Convention rights’ (per Lord Hughes in Beghal v Director of Public Prosecutions [2016] AC 88 . . Any exercise of power that is unrestrained by law is not ‘in accordance with the law’.
(5) The rules governing the scope and application of measures need not be statutory, provided that they operate within a framework of law and that there are effective means of enforcing them (per Lord Sumption in Catt . .).
(6) The requirement for reasonable predictability does not mean that the law has to codify answers to every possible issue (per Lord Sumption in Catt at . . ‘
[2019] EWHC 2341 (Admin), [2020] 1 Cr App R 3, [2020] 1 WLR 672, [2019] HRLR 16, [2019] WLR(D) 496, [2020] 1 All ER 864
Bailii, WLRD
England and Wales
Cited by:
Appeal from – Bridges, Regina (on The Application of) v South Wales Police CA 11-Aug-2020
. .
Cited – Miller v The College of Policing CA 20-Dec-2021
Hate-Incident Guidance Inflexible and Unlawful
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this . .
Lists of cited by and citing cases may be incomplete.
Police, Information
Updated: 30 December 2021; Ref: scu.640832