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Automated facial recognition and policing: a Bridge too far?

Published online by Cambridge University Press:  27 August 2021

Joe Purshouse  and
Liz Campbell Open the ORCID record for Liz Campbell [Opens in a new window]
Joe Purshouse*
Affiliation:
University of East Anglia, Norwich, UK
Liz Campbell
Affiliation:
Monash University, Clayton, Australia
*
*Corresponding author email: J.Purshouse@uea.ac.uk
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Abstract

Automated facial recognition (AFR) is perhaps the most controversial policing tool of the twenty-first century. Police forces in England and Wales, and beyond, are using facial recognition in various contexts, from evidence gathering to the identification and monitoring of criminal suspects. Despite uncertainty regarding its accuracy, and widespread concerns about its impact on human rights and broader social consequences, the rise of police facial recognition continues unabated by law. Both the Government and the domestic courts were satisfied that police use of this technology is regulated adequately by existing statutory provisions regulating the processing of data and police surveillance generally. That is, until the recent judgment of the Court of Appeal in R (Bridges) v Chief Constable of South Wales Police and Others [2020] EWCA Civ 1058, where it was held that the respondent's use of AFR was unlawful. This paper provides an analysis of AFR, reflecting on the outcome of that case and evaluates its nuanced findings. We suggest that the judgment leaves considerable room for police AFR to continue with only minor, piecemeal amendment to the legal framework. Drawing on comparative experience and relevant socio-legal scholarship, we argue that the relatively unfettered rise of police facial recognition in England and Wales illuminates deeper flaws in the domestic framework for fundamental human rights protection and adjudication, which create the conditions for authoritarian policing and surveillance to expand.

Keywords

criminal justicepolicingautomated facial recognition technology
Type
Research Article
Information
Legal Studies , Volume 42 , Issue 2 , June 2022 , pp. 209 - 227
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of The Society of Legal Scholars

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Footnotes

†

Thanks to Austin Bond for research assistance. The authors are also grateful to the anonymous reviewers for their insightful suggestions and comments.

References

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6 Ibid.

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14 Centre for Data Ethics and Innovation Snapshot Paper-Facial Recognition Technology (28 May 2020) para [5.2], available at https://www.gov.uk/government/publications/cdei-publishes-briefing-paper-on-facial-recognition-technology/snapshot-paper-facial-recognition-technology.

15 Universities’ Police Science Institute and Crime & Security Research Institute An Evaluation of South Wales Police's Use of Automated Facial Recognition (Cardiff, 2018) p 30, available at https://afr.south-wales.police.uk/wp-content/uploads/2019/10/AFR-EVALUATION-REPORT-FINAL-SEPTEMBER-2018.pdf.

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20 R (Bridges) v The Chief Constable of South Wales [2019] EWHC 2341 (Admin).

21 House of Commons Science and Technology Committee The Work of the Biometrics Commissioner and the Forensic Science Regulator, Nineteenth Report of Session 2017–19, HC 1970, 18 July 2019 (HMSO, 2019) at p 29.

22 N Lynch et al Facial Recognition Technology in New Zealand: Towards a Legal and Ethical Framework (November 2020); The Law Society Commission on the Use of Algorithms in the Justice System and The Law Society of England and Wales Algorithms in the Criminal Justice System (June 2019) p 4.

23 Purshouse, J and Campbell, L ‘Privacy, crime control and police use of automated facial recognition technology’ (2019) 3 Criminal Law Review 188Google Scholar.

24 C Garvie The Perpetual Line-Up: Unregulated Police Face Recognition in America in 2016.

25 For further detail see above n 23.

26 A Satariano ‘London police are taking surveillance to a whole new level’ (New York Times, 24 January 2020), available at https://www.nytimes.com/2020/01/24/business/london-police-facial-recognition.html?.

27 In London, the use of AFR surveillance by property developer, Argent, on its publicly accessible land in the Kings Cross area of the city prompted public disquiet and an investigation by the Information Commissioner's Office. See M Murgia ‘London's King's Cross uses facial recognition in security cameras’ (Financial Times, 12 August 2019), available at https://www.ft.com/content/8cbcb3ae-babd-11e9-8a88-aa6628ac896c. See also AR Cuthbert and KG McKinnell ‘Ambiguous space, ambiguous rights – corporate power and social control in Hong Kong’ (1997) 14 Cities 295; D Sabbagh ‘Regulator looking at use of facial recognition at King's Cross site’ (The Guardian, 12 August 2019), available at https://www.theguardian.com/uk-news/2019/aug/12/regulator-looking-at-use-of-facial-recognition-at-kings-cross-site?CMP=share_btn_link.

28 L Kelion ‘Met police gave images for King's Cross facial recognition scans’ (BBC, 6 September 2019), available at https://www.bbc.co.uk/news/technology-49586582.

29 K Hill ‘The secretive company that might end privacy as we know it’ (New York Times, 18 January 2020), available at https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html.

30 R Mac et al ‘Clearview's facial recognition app has been used by the Justice Department, ICE, Macy's, Walmart, and the NBA’ (Buzzfeed News, 27 February 2020), available at https://www.buzzfeednews.com/article/ryanmac/clearview-ai-fbi-ice-global-law-enforcement; A Bogle ‘Documents reveal AFP's use of controversial facial recognition technology Clearview AI’ (ABC News, 13 July 2020), available at https://www.abc.net.au/news/2020-07-13/afp-use-of-facial-recocognition-sofware-clearview-ai-revealed/12451554; Australian Federal Police Clearview – Section 44 of the Privacy Act 1988 – Notice to give information and/or produce documents to the Information Commissioner (2020), available at https://www.afp.gov.au/sites/default/files/PDF/Disclosure-Log/02-2020.pdf.

31 Office of the Australian Information Commissioner ‘OAIC and UK's ICO open joint investigation into Clearview AI Inc’ (Media Release, 9 July 2020), available at https://www.oaic.gov.au/updates/news-and-media/oaic-and-uks-ico-open-joint-investigation-into-clearview-ai-inc/.

32 Biometrics and Forensics Ethics Group Ethical Issues Arising From the Police Use of Live Facial Recognition Technology (February 2019).

33 House of Commons Science and Technology Committee The Work of the Biometrics Commissioner and the Forensic Science Regulator, Nineteenth Report of Session 2017–19, HC 1970, 18 July 2019 (HMSO, 2019) at para 37.

34 The Human Rights, Big Data and Technology Project Independent Report on the London Metropolitan Police Service's Trial of Live Facial Recognition Technology (July 2019).

35 Metropolitan Police Service and National Physical Laboratory Metropolitan Police Service Live Facial Recognition Trials (2020) p 3.

36 See ICO investigation into how the police use facial recognition technology in public places 31 October 2019, https://ico.org.uk/media/about-the-ico/documents/2616185/live-frt-law-enforcement-report-20191031.pdf; https://www.gov.uk/government/news/automated-facial-recognition; https://videosurveillance.blog.gov.uk/2019/11/01/regulating-law-enforcement-use-of-automatic-facial-recognition/.

37 Automated Facial Recognition Technology (Moratorium and Review) Bill 2019–2021.

38 O Williams ‘The Met and NCA “used Clearview AI's facial recognition database”’ (New Statesman, 28 February 2020), available at https://tech.newstatesman.com/security/the-met-and-nca-used-clearview-ais-facial-recognition-database.

39 Bridges (Divisional Court), above n 20.

40 ‘Police transformation fund: successful bids 2016 to 2017’ (Web Page), available at https://www.gov.uk/government/publications/police-transformation-fund-successful-bids-2016-to-2017.

41 R (Bridges) v SWP (2020) EWCA Civ 1058 at [53].

42 Ibid, at [84].

43 Here, R (Catt) v Association of Chief Police Officers [2015] UKSC 9 at [11]–[14] per Lord Sumption was cited with approval.

44 Beghal v Director of Public Prosecutions [2016] AC 88 at [31] and [32] per Lord Hughes.

45 Bridges, above n 41, at [85]–[90].

46 Ibid, at [96].

47 Ibid, at [136].

48 Ibid, at [143].

49 Ibid, at [161].

50 Ibid, at [199].

51 See above n 23. J Buolamwini and T Gebru ‘Gender shades: intersectional accuracy disparities in commercial gender classification’ (Conference Paper, Conference on Fairness, Accountability, and Transparency, 2018) p 2; J Buolamwini, ‘Response: racial and gender bias in Amazon Rekognition — commercial AI system for analyzing faces’ Medium (25 January 2019), available at https://medium.com/@Joy.Buolamwini/response-racial-and-gender-bias-in-amazon-rekognition-commercial-ai-system-for-analyzing-faces-a289222eeced.

52 National Institute of Standards and Technology Face Recognition Vendor Test (FRVT) Part 3: Demographic Effects (No 8280, 2019).

53 Ibid, p 2.

54 South Wales Police ‘Response to the Court of Appeal judgment on the use of facial recognition technology’ (Media Release, 11 August 2020), available at https://www.south-wales.police.uk/en/newsroom/response-to-the-court-of-appeal-judgment-on-the-use-of-facial-recognition-technology/.

55 Metropolitan Police ‘Live Facial Recognition’ (Web Page), available at https://www.met.police.uk/advice/advice-and-information/facial-recognition/live-facial-recognition/.

56 According to MPS's own data, approximately 180,000 people were scanned across their 10 trials of AFR, leading to 27 people being engaged following an alert and just 9 arrests or other actions being taken based on an AFR match: Metropolitan Police Service and National Physical Laboratory Metropolitan Police Service Live Facial Recognition Trials (2020) p 3.

57 See Lynch et al, above n 22; above n 23.

58 R Lippert and K Walby ‘Governing through privacy: authoritarian liberalism, law, and privacy knowledge’ (2016) 12 Law, Culture and the Humanities 329 at 331.

59 For a broader discussion of how human rights law and discourse can accommodate authoritarian government practices see Hamilton, C and Lippert, R, ‘Governing through human rights in counter-terrorism: proofing, problematization and securitization’ (2020) 28 Critical Criminology 127CrossRefGoogle Scholar.

60 P Roberts ‘Law and criminal investigation’ in T Newburn et al (eds) Handbook of Criminal Investigation (Oxford: Willan, 2007) p 97.

61 Malone v Metropolitan Police Commissioner [1979] Ch 344 at 357; Collins v Wilcock [1984] 1 WLR 1172 at 1178.

62 See Home Office Royal Commission on Police Powers and Procedure (Command Paper 3297 1929) 6. As Roberts describes: ‘Just as you or I can stop a stranger in the street to request directions, to ask the time, to solicit a donation to charity or for any other lawful purpose, the police are similarly entitled to stop a stranger in the street and ask him or her what he or she is doing, whether he or she has seen anything suspicious, where he or she lives’: P Roberts ‘Law and criminal investigation’ in Newburn et al, above n 60, p 97.

63 Malone v Metropolitan Police Commissioner [1979] Ch 344 at 357.

64 See generally R v Somerset County Council, ex p Fewings [1995] 1 All ER 513. For a fuller discussion of the historical roots of this conception of the constable and the residual liberty of police officers to do everything ‘except what is expressly forbidden’ see V Aston ‘Conceptualising surveillance harms in the context of political protest: privacy, autonomy and freedom of assembly’ (PhD Thesis, University of East Anglia, 2019).

65 See Malone v United Kingdom (1984) 7 EHRR 14 at [79].

66 Murray v Ministry of Defence [1987] NI 219, as quoted in Murray v United Kingdom (1995) 19 EHRR 193 at [30].

67 Murray v United Kingdom (1995) 19 EHRR 193 at [88].

68 R (on the application of Wood) v Commissioner of Police of the Metropolis [2010] 1 WLR 123.

69 Ibid, at [54].

70 See for example Peck v United Kingdom (2003) 36 EHRR 41; S and Marper v United Kingdom [2008] ECHR 1581; MM v United Kingdom [2012] ECHR 1906.

71 Bridges, above n 41, at [85].

72 See for example MPS Live Facial Recognition: Legal Mandate (Version 1-01, 2020) para 2.2. Aston engages in detail with the seeming juridical tension between these two competing conceptions of the common law, and elucidates the difficulty in either of them providing an adequate legal basis for overt surveillance in the related context of overt police photography of public protests. See Aston, above n 64.

73 Rice v Connolly [1966] 2 QB 414 at 419.

74 R (Catt) v Association of Chief Police Officers [2015] AC 1065 at para 7.

75 Ibid.

76 Ibid.

77 Bridges (Divisional Court), above n 20, at [74].

78 Bridges, above n 41, at [77], [91].

79 Bridges (Divisional Court), above n 20, at [73].

80 Catt v United Kingdom App no 43514/15 (ECtHR, 24 January 2019) at [98].

81 See for example Davis v Lisle [1936] 2 KB 434; Kenlin v Gardiner [1967] 2 QB 510; Walker v Commissioner of Police of the Metropolis [2014] EWCA Civ 897.

82 See Aston, above n 64, p 77.

83 Collins v Wilcock [1984] 1 WLR 1172 at 1178; see also R v Waterfield [1964] 1 QB 164 at 170 per Ashworth J.

84 Donnelly v Jackman (1970) 1 WLR 562.

85 Ibid, at 565.

86 Bridges, above n 41, at [131].

87 Ibid, at [136].

88 Ibid, at [140], citing R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57.

89 Ibid.

90 Stec v United Kingdom 65731/01 (2006) 43 EHRR 47 at [52]: ‘a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs … the Court will generally respect the legislature's policy choice unless it is “manifestly without reasonable foundation”’; Meers, J ‘Problems with the “manifestly without reasonable foundation” test’ (2020) 27 Journal Social Security Law 12Google Scholar criticises domestic courts for transposing the ‘manifestly without reasonable foundation’ test into domestic cases pertaining to general measures of economic/social policy, instead of doing a full proportionality analysis, effectively setting a very low bar for legislators.

91 Bridges, above n 41, at [143].

92 Ibid, at [36] citing HC [57]–[59].

93 Ibid, at [152].

94 Eg Catt v Metropolitan Police Commissioner; R (RMC and FJ) v Metropolitan Police Commissioner [2012] EWHC 1681.

95 Reklos v Greece [2009] EMLR 16 at [300].

96 PG and JH v United Kingdom (2001) 46 EHRR 127 at [57].

97 Above n 23.

98 See for example Tsakyrakis, S ‘Proportionality: an assault on human rights?’ (2010) 7 International Journal Constitutional Law 468Google Scholar; Khosla, M ‘Proportionality: an assault on human rights? A reply’ (2010) 8 International Journal Constitutional Law 298CrossRefGoogle Scholar.

99 See Lynch et al, above n 22; Mann, M and Smith, M ‘Automated facial recognition technology: recent developments and approaches to oversight’ (2017) 40 University of New South Wales Law Journal 121CrossRefGoogle Scholar.

100 For further discussion of the regulation of AFR in New Zealand, see Lynch et al, above n 22.

101 See Lynch et al, above n 22, p 74.

102 Police Scotland and Scottish Police Authority Policing 2026: Our 10 year strategy for policing in Scotland (2017), available at https://www.scotland.police.uk/spa-media/jjkpn4et/policing-2026-strategy.pdf?view=Standard.

103 Justice Sub-Committee on Policing, Facial recognition: how policing in Scotland makes use of this technology SP Paper 678 1st Report, 2020 (Session 5) 11 February 2020.

104 Letter from Assistant Chief Constable Duncan Sloan to Justice Sub-Committee Convener, 8 April 2020, available at https://www.parliament.scot/S5_JusticeSubCommitteeOnPolicing/Inquiries/20200410_PStoJF_Facial_Recognitio....pdf.

105 S and Marper v United Kingdom [2008] ECHR 1581.

106 See Police and Criminal Evidence Act 1984, ss 62–63.

107 Criminal Justice Act 2003, s 10.

108 Criminal Justice and Police Act 2001, s 82 (as it was originally enacted).

109 See Campbell, L ‘A rights-based analysis of DNA retention: “non-conviction” databases and the liberal state’ (2010) Criminal Law Review 889Google Scholar.

110 S v United Kingdom (2009) 48 EHRR 50 at [119].

111 Ibid, at [109]–[110].

112 Criminal Procedure (Scotland) Act 1995, s 18.

113 Criminal Procedure (Scotland) Act 1995, s 18A (as inserted by the Police, Public Order and Criminal Justice (Scotland) Act 2006).

114 Bridges, above n 41, at [65].

115 Cf Biometrics and Forensics Ethics Group Ethical Issues Arising From the Police Use of Live Facial Recognition Technology (February 2019), where the pilot project had begun already.

116 Home Office Covert Surveillance and Property Interference: Revised Code of Practice (August 2018), available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/742041/201800802_CSPI_code.pdf.

117 Bridges, above n 20, at [1].