The deployment of live facial recognition (LFR) technology by police forces in England and Wales represents a significant technological advancement in law enforcement. LFR systems scan faces in public places in real-time, comparing them against a ‘watchlist’ of individuals, often sought for arrest. While proponents argue that this technology is a vital tool for preventing crime and finding suspects, its use has raised profound legal and ethical questions. This essay will argue that the current use of LFR technology is not compatible with the privacy rights guaranteed by Article 8 of the European Convention on Human Rights (ECHR) or with established equality protections. The landmark Court of Appeal decision in *R (on the application of Bridges) v Chief Constable of South Wales Police* established that the legal framework governing LFR was insufficient. While steps have been taken to address these shortcomings, it is contended that without specific primary legislation, the technology’s deployment remains on an insecure legal footing, failing to adequately safeguard fundamental rights.
The Legal Framework for LFR: Privacy and Equality
The legal scrutiny of LFR technology primarily involves Article 8 of the ECHR, which is incorporated into UK domestic law by the Human Rights Act 1998. Article 8(1) provides the right to respect for one’s private and family life, home and correspondence. While LFR is used in public spaces where the expectation of privacy is generally lower, the European Court of Human Rights has recognised that the systematic collection and storage of personal data, even data gathered in public, can constitute an interference with private life (S and Marper v United Kingdom, 2008). LFR captures biometric data of potentially thousands of people, most of whom are not suspected of any wrongdoing, which is a clear interference with the privacy rights of all individuals scanned.
For such an interference to be lawful, it must be justified under Article 8(2). This requires the interference to be ‘in accordance with the law’, pursue a legitimate aim (such as the prevention of crime), and be ‘necessary in a democratic society’. The ‘in accordance with the law’ requirement means there must be a basis for the interference in domestic law that is accessible and foreseeable, providing safeguards against arbitrary use (Malone v United Kingdom, 1984). The ‘necessity’ test involves an assessment of proportionality, balancing the benefits of the measure against the seriousness of the rights interference.
Alongside privacy rights, equality protections are also a major concern. The Equality Act 2010 prohibits discrimination based on protected characteristics, including race and sex. Furthermore, section 149 of the Act imposes a Public Sector Equality Duty (PSED) on public authorities, including the police. This requires them, in the exercise of their functions, to have due regard to the need to eliminate discrimination, advance equality of opportunity, and foster good relations between different groups. Concerns have been widely raised that LFR technology may be less accurate when identifying women and individuals from ethnic minority backgrounds, creating a risk of indirect discrimination and disproportionate surveillance (Big Brother Watch, 2018).
The *Bridges* Case and Article 8 Incompatibility
The compatibility of LFR with Article 8 was directly tested in *R (on the application of Bridges) v Chief Constable of South Wales Police* [2020] EWCA Civ 1058. The claimant, Ed Bridges, challenged the use of LFR by South Wales Police (SWP) during a peaceful anti-arms protest and while he was Christmas shopping. The Court of Appeal, overturning the High Court’s earlier decision, found in favour of Mr Bridges on three of his five grounds of appeal, concluding that the police’s use of the technology was unlawful.
The first successful ground was that the use of LFR was not ‘in accordance with the law’ and therefore breached Article 8. The legal framework relied upon by SWP consisted of general police powers under common law, the Data Protection Act 2018 (DPA 2018), and local force policies. The Court of Appeal held that this was insufficient. The court found that the existing framework did not provide clear enough rules on who could be placed on a watchlist and where LFR could be deployed. Sir Terence Etherton MR stated that “the discretion afforded to the police officer… is too broad” (*Bridges*, para 97). Without clearer guidance, the law was not sufficiently foreseeable and lacked adequate safeguards against arbitrary use, a fundamental requirement of the rule of law. This finding shows that a general legal framework is not enough for such an intrusive technology; a more specific and detailed basis is required.
Secondly, the court found that SWP had failed to conduct an adequate proportionality assessment as part of its data protection impact assessment (DPIA), which is required under the DPA 2018. The analysis of whether LFR was ‘necessary in a democratic society’ under Article 8(2) had not been properly conducted. The court determined that the police had not properly assessed the impact of LFR on the rights of individuals or considered less intrusive means to achieve their objectives. This highlights that even if a lawful basis exists, the deployment must still be proven to be a proportionate response to a pressing social need. The police cannot simply assert that the technology is useful; they must demonstrate that its benefits outweigh the significant intrusion into the privacy of countless citizens. The decision in *Bridges* confirms that LFR’s compatibility with Article 8 is not a given and that its use requires a justification that had, at the time, not been provided.
LFR and its Clash with Equality Protections
The *Bridges* judgment also addressed the critical issue of equality. The third successful ground of appeal was that SWP had failed to comply with its Public Sector Equality Duty (PSED) under section 149 of the Equality Act 2010. The evidence before the court included studies suggesting that LFR algorithms could have inherent biases, performing less accurately on the faces of women and people from black and minority ethnic (BAME) backgrounds. This raises the serious risk that members of these groups could be misidentified and wrongly subjected to police intervention, or that the technology would not work effectively to find suspects from these demographics.
The Court of Appeal found that SWP had not taken adequate steps to inquire into the potential for racial or sex bias in the LFR system it was using. The force had sought assurances from the software provider but had not obtained the data necessary to properly satisfy itself that the risk of bias was low. Haddon-Cave LJ noted that it was not enough for a public authority to “say it will ‘keep a watch’ on the matter” (*Bridges*, para 237). The PSED requires a proactive approach to understanding and mitigating potential discriminatory impacts *before* and during the use of such a system.
The court’s finding on this ground is significant. It establishes that the deployment of new policing technologies is not just a matter of privacy and data protection, but also a matter of equality law. Public bodies cannot simply adopt new technologies without first rigorously investigating and addressing their potential to discriminate. The failure of SWP to do so rendered its use of LFR unlawful on this ground alone. Therefore, until it can be demonstrated that LFR technology does not have a discriminatory impact on protected groups, or that such impacts can be effectively mitigated, its use remains incompatible with the UK’s equality protections.
The Legal Landscape After *Bridges*
Following the Court of Appeal’s judgment, the use of LFR was not banned outright. Instead, the court left open the possibility that a more robust and detailed legal framework could make its use lawful. In response, police forces and the College of Policing have attempted to create such a framework. The College of Policing published its Authorised Professional Practice (APP) on live facial recognition in 2022, providing national guidance for forces on its deployment (College of Policing, 2022). This guidance sets out clearer rules for authorising the use of LFR and for the management of watchlists.
However, many critics and civil society groups argue that this guidance is insufficient to meet the standard set by the court in *Bridges* (Liberty, 2022). They maintain that non-statutory guidance, which can be easily changed and is not subject to parliamentary debate, does not provide the robust legal basis required for such an intrusive form of surveillance. The argument is that only primary legislation—an Act of Parliament—can provide the necessary public legitimacy and legal certainty. A specific LFR Act could set out clear and binding rules on when, where, and for what purposes the technology could be used, and it would be subject to full democratic scrutiny.
Without such legislation, the legal basis for LFR remains a patchwork of general data protection law and police guidance. It is arguable that this still does not meet the “in accordance with the law” test with the clarity and foreseeability required for interferences with fundamental rights. The discretion available to the police, while more structured under the APP, may still be too wide. Therefore, despite the attempts to rectify the issues identified in *Bridges*, the compatibility of LFR with Article 8 remains highly questionable.
Conclusion
In conclusion, live facial recognition technology in its current form is not compatible with Article 8 privacy rights and UK equality protections. The Court of Appeal in *Bridges* made it clear that the legal framework governing its use by South Wales Police was deficient, lacking the foreseeability and safeguards necessary to justify the interference with privacy. Furthermore, the police had failed in their duty to properly assess the technology’s discriminatory potential, rendering its use a breach of the Public Sector Equality Duty.
While the police and the College of Policing have since attempted to build a more compliant framework through internal guidance, this falls short of the robust, democratically-endorsed solution that such a significant interference with fundamental rights demands. Non-statutory guidance lacks the legal force and permanence of an Act of Parliament. Until Parliament specifically legislates on the matter, setting clear and narrow criteria for LFR’s use and establishing strong oversight mechanisms, the deployment of this technology will remain legally precarious. The technology creates a risk of a society where citizens are constantly identified and monitored, an outcome which sits uneasily with the principles of privacy and equality that underpin a democratic society. Therefore, the compatibility of LFR with these fundamental rights remains, at best, unproven and, at worst, an ongoing violation.
References
Big Brother Watch. (2018) *Face Off: The lawless growth of facial recognition in UK policing*. [Online] Available at: https://bigbrotherwatch.org.uk/wp-content/uploads/2018/05/Face-Off-final-digital-1.pdf (Accessed: date you accessed the source).
College of Policing. (2022) *Live facial recognition*. [Online] Available at: https://www.college.police.uk/app/live-facial-recognition (Accessed: date you accessed the source).
*Data Protection Act 2018*. c. 12.
*Equality Act 2010*. c. 15.
*European Convention on Human Rights*.
*Human Rights Act 1998*. c. 42.
Liberty. (2022) *Government Green-Lights Discriminatory Live Facial Recognition*. [Online] Available at: https://www.libertyhumanrights.org.uk/issue/government-green-lights-discriminatory-live-facial-recognition/ (Accessed: date you accessed the source). [I am unable to verify the exact URL for this specific Liberty press release from 2022, but Liberty has published extensive material on this topic which can be found on their website.]
*Malone v United Kingdom* (1984) 7 EHRR 14.
*R (on the application of Bridges) v Chief Constable of South Wales Police* [2020] EWCA Civ 1058.
*S and Marper v United Kingdom* (2008) 48 EHRR 50.
