(Over)Policing the Pandemic

Last week Derbyshire Constabulary sparked controversy by Tweeting drone footage it had collected from Cubar Edge, a beauty spot in the Peak District. The footage shows vehicles parked in the car park, and people walking their dogs and taking pictures. On the video, these activities are branded ‘NOT ESSENTIAL’.

My view is that the police collection and publication of drone footage in these circumstances wasn’t just overzealous; it was also unlawful. This is not to say that physical distancing is unimportant, nor that the police do not have a role to play in enforcing the new emergency legislation enacted by Parliament. The police have a difficult job to do as part of our shared efforts to limit the spread of Coronavirus. That said, too robust a response risks undermining and public trust and draining support for the police, precisely at a time when this trust is most needed. Millions of ordinary citizens are making radical alterations to their lives to help stem the spread of Coronavirus. The police should be slow to clamp down on their efforts to make a bad situation more bearable, especially when these efforts stay within the law and pose minimal, if any, risk to public safety.

At the heart of the problem for Derbyshire Constabulary is that the walkers on Cubar Edge were not committing any offence in relation to the new public health provisions. The lockdown regulations can be found in The Health Protection (Coronavirus) (England) Regulations 2020, s.6:

The pertinent provisions for our purpose are 6(1) read in conjunction with 6(2)(b): No person can leave home without a reasonable excuse; leaving home to exercise constitutes a reasonable excuse. Thus, there is plainly no prohibition on travelling to take exercise, even if this involves the use of a car. The focus of the provision is on the overarching purpose for leaving home; it does not prohibit all activities that could be classed as ‘non-essential’ once outside.

In defending the use of the drone on the BBC Radio 4 PM show, Superintendent Steve Pont of the Derbyshire Police stated: ‘There are four reasons why you can leave your home. One of those is one form of exercise a day, alone [or] with members of your household. But, even whilst doing that, minimise time spent outside the home.’ 

This is not a statement of the law. In fact, Superintendent Pont’s comments appear to conflate the law with the advice issued by the Government. Whilst the Government has recommended exercising locally, this is not mandatory as far as the law is concerned, and the distinction between law and guidance is important. When the police treat Government guidance on how to practice physical distancing as though it is legally binding, they abuse their power. Such good practice guides have not been subject to the checks and balances of the law making process; they are imprecise in their scope; they are not designed as enforceable legal rules.

Derbyshire Constabulary’s shaming exercise led retired Supreme Justice, Lord Sumption – hardly a radical anti-establishment figure – to accuse the police of acting like ‘glorified school prefects’. He has a point. The walkers on Cubar Edge were not only abiding by the law, they were seeming to abide by the spirit of the new regulations. The walkers were not congregating; they appeared to maintain physical distance from each other; they were taking exercise.

The police did stop short of prosecuting anyone walking on Cubar Edge for contravening section 6. Some might argue that the police have the same right as anybody else to fly drones and disseminate their footage. The police, on this view, are merely ‘citizens in uniform’; they have the same residual freedom as anybody else to do anything that is not forbidden by law, including flying drones and uploading their footage to social media.

There are at least two issues with this line of reasoning. The first is that it is questionable whether the police constable is merely a ‘citizen in uniform’, free to do anything that is not legally forbidden. The epithet may have accurately described the part-time community constables of the thirteenth century, but it seems wholly inadequate for capturing the constitutional status of the representatives of a powerful state body, with extensive powers and resources at their disposal.

The police have general common law powers to fulfil their basic duties, including powers to do anything necessary to prevent crime, keep the peace and protect property. In R. (Bridges) v Chief Constable of South Wales Police [2019] EWHC 2341 (Admin), the High Court determined that these basic common law powers cover all ‘non-intrusive’ policing measures (i.e. measures that do not occasion a physical intrusion with a person’s rights). If the activity is ‘intrusive’ (e.g. collecting a DNA sample from a person or searching his or her home) then it falls outside the scope of the police constable’s common law powers, and requires a separate legal basis (typically, a statutory power).

There is no broader residual freedom for the police, when acting as the police, to do anything that a citizen is free to do. The police are restricted to acting within the scope of their common law powers whenever they engage in activities that are ‘non-intrusive’. Such a residual freedom would make the common law powers of the constable otiose.[1] It does not exist. Thus, the police must show that they have a positive basis in law for engaging in aerial drone surveillance, even if this activity can be described as ‘non-intrusive’. Given that the walkers on Cubar Edge were not committing any offence, I cannot see how the surveillance was in anyway necessary to prevent crime, thus falling within the remit of police powers at common law.

Even if police officers do have such a residual freedom, the aerial surveillance may still have been prohibited in any event. Section 6 of the Human Rights Act 1998 makes it unlawful for the police to act in a way which is incompatible with an individual’s European Convention on Human Rights (ECHR) rights. Article 8 ECHR provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Without engaging in an exhaustive examination of how the jurisprudence of Article 8 would apply to this case (and drawing only on those facts surrounding the drone operation that have been made publicly available), I think there is a reasonable possibility that the activities of Derbyshire Constabulary contravened the Article 8 rights of the walkers. First, the drone surveillance appeared to be covert – the drone was flying at high altitude, far above the walkers who did not appear to notice it. The drone was used to record footage of the walkers, and the footage was disseminated to a wide audience through the use of Derbyshire Constabulary’s social media accounts. The walkers were not committing a crime. These factors point to an interference with the Article 8(1) rights of the walkers (see, for e.g. In re JR38 [2015] UKSC 42).

Given the ground covered in the preceding analysis – particularly, that the walkers were committing no crime and any risk they posed to themselves or general public safety was de minimis – it is inconceivable this interference by the police could be considered lawful, in the pursuit of a legitimate aim, and necessary for the purpose of Article 8(2).

In extraordinary times, the police may need to rely on extraordinary (temporary) powers to protect public health. As the need for excessive coercive powers ratchets up, so too does the need to guard against misuse and arbitrariness. If the police are to inspire public confidence that they are here to protect and not oppress, then now is simply not the time for trying out new surveillance tools on the public, with undue regard for the law.

[1] I am grateful to David Mead for making this point in a private conversation.


Facial Recognition Technology, the Metropolitan Police and the Law

The Metropolitan Police Service (MPS) is not immune to surveillance related controversy. From its role in the phone hacking scandal, to the sexual exploitation of activists by its ‘Special Demonstration Squad’, it may be no exaggeration to say that the force has attracted more criticism for its ill-fated surveillance activities than any other in recent years. Little wonder, then, that its decision to roll out live facial recognition technology (FRT) in public spaces has raised eyebrows. The MPS is introducing FRT in the face of fierce criticism, threatened legal action, and an independent evaluation, which dismantled almost every aspect of the methodology underpinning their ‘trial’ of the technology with forensic precision.

This is certainly a bold move, as FRT is deeply divisive. Is it legal? The MPS have published a ‘Legal Mandate’ for their use of live FRT. It identifies the general powers of a constable at common law to fulfil his basic duties as the legal basis for using the technology, and goes on to identify several statutes, secondary legislation, and internal policy documents that regulate how the MPS will use FRT. Others have considered the extent to which live FRT complies with existing statutory regulations. Here, the focus is on evaluating the common law as an adequate legal basis for using FRT.

To support its Legal Mandate, the MPS relied heavily on a decision of the High Court of Justice in R. (Bridges) v Chief Constable of South Wales Police [2019] EWHC 2341 (Admin) – where a campaigner from Cardiff failed to convince the Court that his human rights had been violated after his face was scanned on two occasions by the South Wales Police. This decision seems to have emboldened the MPS to operationalise FRT, relying solely on the basic common law powers of a constable to protect life, prevent and detect crime, and bring offenders to justice as the legal basis.

There is no question that Bridges supports the MPS’s position. In rejecting Mr Bridges’ contention that there must be some specific statutory basis for the use of live FRT, Haddon-Cave LJ and Swift J relied on the following passage from Rice v Connolly [1966] 2 QB 414 at 419:

“[I]t is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal damage. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice.”

Drawing on more recent authorities in R (Wood) v Commissioner of Police of the Metropolis [2010] 1 WLR 123 and R (Catt) v Association of Chief Police Officers [2015] AC 1065, the High Court held that this general power of the police covers the use, retention, and disclosure of imagery of individuals for any of the duties articulated in Rice. Haddon-Cave LJ and Swift J observed that, in his leading majority judgment in Catt, Lord Sumption held that there is an important distinction between ‘intrusive’ and ‘non-intrusive’ methods of gathering personal information. Live FRT was the latter and only the former fell outside the common law powers of the police. The High Court ruled that the distinction turned on whether there was a physical intrusion with a person’s rights vis-à-vis his or her home or interference with his or her bodily integrity [74]. It seems that only these forms of ‘physical’ intrusion require a statutory legal basis.

This is a significant finding, as it permits the police to use new overt surveillance technologies like live FRT operationally, without Parliament authorising this use. It puts the police collection and processing of biometric data by FRT in a separate category to other forms of biometric surveillance, such as DNA and fingerprint collection. These tend to require ‘physical intrusion’ and, as such, have a statutory legal basis. The effect of the High Court’s interpretation of these cases is that statutes are only relevant in so far as they place limitations on how live FRT is used by the police. Thus, the police are free to trial and use these new technologies in the absence of the democratic mandate that legislation passed by Parliament provides. If this is the case, there is no need for police live FRT to be approved by our elected representatives, usually following robust debate on the implications this use, and consideration of expert evidence scrutinised by Select Committees. The decision to use live FRT is a matter for police to decide for themselves; their discretion on this matter is fettered only by the limits of their common law powers which, as the Court in Bridges acknowledged, are expressed in ‘very broad terms’ [73].

It is difficult to fault Haddon-Cave LJ and Swift J’s interpretation of recent authorities in Wood, and Catt. These authorities do suggest that the general common law powers of the police set out in Rice extend to the collection, use, retention and dissemination of facial images. The problem is that, in interpreting the common law powers of the police so broadly, these authorities have sent the law down a wrong path.

Notwithstanding the rulings in Catt and Wood, it is not clear that the passage in Rice was conferring a broad discretion upon the police in this way. In Rice, the appellant successfully argued that the offence of obstruction of justice was not made out in circumstances where he merely refused to provide his name or other assistance to a police constable in the course of his investigation into a series of breaking offences. Lord Parker CJ held that police constables have a duty to take steps which appear necessary to prevent and detect crime. However, as Val Aston notes, this finding was categorical. Lord Parker CJ also held that there are clear limits on this power; one being that citizens are not under a general legal duty to assist the police by providing them with information. This was the unambiguous ratio of Rice.

It is one thing to hold that the common law power to prevent crime and bring offenders to justice is good enough for the police to ask for identifying particulars of a person seen in the vicinity of reported criminality (even though the person may be under no legal obligation to comply with the request). It is quite another for this same power to support the use of myriad biometric and/or algorithmic technologies, which facilitate the use and collection of ever-more sensitive personal information by public authorities. Live FRT enmeshes physical and informational forms of surveillance by collecting information from the physical body of the person and breaking this down into an information structure, which can then be processed. The High Court’s distinction for fleshing out the scope of the common law powers of the police, between physical and informational intrusions, seems unfit for this novel policing landscape. It has allowed the powers of the police enunciated in Rice to be extended too far.

For now, the MPS can rely on broad common law powers to use live FRT, but its decision to do so may prove unwise. Bridges was qualified and is subject to appeal. The Court acknowledged that the legal framework governing live FRT should be strengthened further and, since this judgment, the Information Commissioner has called for the use of FRT to be placed on a statutory footing. In recent years, the European Court of Human Rights has also expressed concern that the common law powers of the police are so broad as to create a risk of ambiguity or extensive interpretation (See S and Marper v United Kingdom [2008] ECHR 1581 at [99]; Catt v United Kingdom [2019] ECHR 76 at [96]-[99])

We are at an embryonic stage in our efforts to regulate the police use of algorithms. Given the legal uncertainty, it is curious that the MPS has chosen this moment to begin incorporating FRT into its operational surveillance arsenal. It may soon find itself on the wrong side of the law.