Case Alerts

The Supreme Court has just handed down on 13 November 2020, a majority judgment (3:2) in Maughan v HM Senior Coroner for Oxfordshire regarding the standard of proof required in Inquests for verdicts of unlawful killing and suicide. By majority, the Supreme Court decided that the standard of proof required for such short form Inquest verdicts is the civil standard of “balance of probabilities” as opposed to the criminal standard of “beyond reasonable doubt” so such verdict findings will in future be much easier to establish than before.

The lower Courts in Maughan previously concluded that unlawful killing was a different category of verdict to suicide (as suicide was no longer a criminal offence) and found numerous reasons for unlawful killing to remain on the criminal standard of proof including:

• Inquests are not criminal proceedings and unlawful killing implies a crime. Unlawful killing can therefore be considered to have its own special status as an Inquest verdict.
• While an Inquest cannot determine any question of criminal liability on the part of a named person, the identity of the person will become knowledge as part of the Inquest process and therefore the higher criminal standard should apply.
• A conclusion of unlawful killing could cause the CPS to reconsider bringing criminal charges and therefore again the criminal standard is appropriate.

Although we are not surprised that the civil burden of proof has been found to be applicable in respect of suicide verdicts (as held by the lower courts in the Maughan case), the civil burden for “unlawful killing” has come as a significant change in the law which has potentially wide-ranging impacts.

Some of the potentially negative implications for corporate clients and insurers are set out below.

Unlawful killing/suicide verdicts

In respect of a verdict of suicide then there are two elements which a Coroner or Jury must establish that:

1. The deceased took their own life and;
2. They intended to kill themselves.

In respect of a verdict of unlawful killing then the elements that must be established are that:

1. Someone has been killed by one or more persons (known or unknown) and;
2. The killing was done without lawful excuse and;
3. The killing was in breach of criminal law.

Following the Supreme Court case of Maughan the Coroner or Jury can reach verdicts of unlawful killing or suicide when the evidence establishes, on the balance of probabilities, that this was the cause of death.

Practical implications

A verdict of unlawful killing is extremely serious indeed and could potentially lead to more individuals or organisations being charged with Gross Negligence Manslaughter or Corporate Manslaughter (under the Corporate Manslaughter and Corporate Homicide Act 2007) or alternatively serious health and safety breaches under the Health and Safety at Work Act 1974. Given that the criminal burden is no longer required for unlawful killing (as has always previously been the case), then this could lead to individuals and organisations not being prepared to properly engage with the Inquest process as there will be concerns that they could potentially incriminate themselves if unlawful killing is a potential Inquest verdict.

The other areas that could lead to difficulties arising from this Supreme Court decision in Maughan include:

1. The expectations of bereaved families who could be pushing for such verdicts.
2. More adversarial and/or defensive strategies pursued by Interested Parties despite an Inquest not strictly speaking being a forum to apportion blame or fault.
3. More detailed legal arguments at the Pre-Inquest Review hearing stage regarding disclosure, witnesses, the scope of the Inquest including the applicability or otherwise of Article 2 (“Right to Life”) and the need for a jury.
4. Concerns regarding individuals and corporations not engaging evidentially with the Inquest process due to concerns about criminal charges.
5. Any potential increase in challenges to such verdicts via Judicial Reviews.
6. There are already significant delays in the coronial system due to Covid-19 issues and this judgment could lead to greater delays in getting Inquests dealt with to the detriment of bereaved families.
7. Insurers will also have concerns about any potential findings of unlawful killing given that costs (both Claimants and Defendants) could significantly increase and any such verdict would significantly negatively impact civil claims.
8. The label of unlawful killing is also an extremely negative and emotive issue and should not be taken lightly given the adverse implications that it could have on both individuals and organisations personally and professionally and it could impact business generally and future tender opportunities.
9.  This decision could in future lead to inflationary pressures on commercial and D&O policies if costs relating to Inquest increase significantly.

 Future strategies

The national Plexus Regulatory Team is here to advise our corporate and insurance clients in respect of this judgment both in terms of current cases and future potential Inquests. The threat of an “unlawful killing” verdict however, needs to be taken very seriously indeed and detailed advice provided in respect of the evidence, strategies and potential outcomes and ramifications of such verdicts.

To view/download this Article as a PDF please click here.

If you would like to know more about this matter, please speak to your contacts at Plexus Law:

Anthony Baker, Partner

T: 0113 4681 702   |   M: 07811 545 321   |   E: anthony.baker@plexuslaw.co.uk

Whilst we take care to ensure that the material in this Legal Update  is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Legal Update do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Legal Update.

 

Defendant lawyers who regularly deal with credit hire cases are often left frustrated by bland, generic pleadings provided by claimants in relation to the often decisive issue of impecuniousity.

However, following the recent Court of Appeal ruling in Diriye v Bojaj [2020] EWCA Civ 1400 that should now change. In handing down his judgment Coulson LJ emphasised the need for claimants to engage with the litigation process and fully plead and particularise any assertion of impecuniousity at an early stage of proceedings. The appeal dealt with three points:

• Pleading of allegations of impecuniousity;
• The approach to relief from sanctions applications under CPR 3.9; and
• Whether “Signed for 1^st Class” service is covered by CPR 6.26.

Handing down judgment, Coulson LJ said that claimants were not entitled to “advance a rubbishy case in stages from pleading to witness statement to trial” in the hope that eventually defendants may take a commercial decision to settle the case.

Facts of the Case

The matter stemmed from a road traffic accident in May 2014 resultant from which the claimant/appellant, a minicab driver, brought a claim for damages which included a claim for credit hire charges pleaded at £12,048.29.

In the course of the litigation, the claim was allocated to the Fast Track and the court provided familiar directions in respect of credit hire which included an unless order in the following terms:

“The claimant shall be debarred from relying upon the facts of impecuniosity for the purposes of determining the appropriate rate of hire unless … By 4:00pm on the 4th April 2018, the claimant files and serves a reply to the defence setting out all facts in support of any assertion that the claimant was impecunious at the commencement of and during the hire of the vehicle in question.”

The Reply to Defence was posted to the respondent/defendant using the Royal Mail’s “Signed For 1^st Class Service” on the 4^th April 2018. However, the Reply was not signed for and not received by the Defendant until 9^th April 2018 putting the Claimant in breach of the order.

The Claimant made an application for relief from sanctions which was heard by DDJ Goodman at first instance who found that sending the documents by “Signed For 1st Class” was not effective service and dismissed the relief application applying the three-stage Denton test.

At the first appeal the decision was upheld, and the second appeal was heard by the Court of Appeal in October 2020.

Impecuniosity

The Claimant had advanced pleadings which are all too commonly seen in which the Claimant had made a one-line assertion to have been impecunious simply stating that the money he earned as a minicab driver was expended on bills and his family’s daily living.  Nothing else of relevance was provided and no figures offered. In addition, the Claimant’s witness statement had not taken the issue much further.

Coulson LJ referred back to the wording of the unless order which required a pleading of “all facts in support of any assertion” of impecuniousity. He added that:

“They [defendants] are entitled to know the case they have to meet. They should not be expected to have to prepare for a trial where the critical item of claim depends on a one line assertion, and hoping that, as a result of the cross-examination of the appellant, the judge will reject the claim. That is not how civil litigation is supposed to work post-CPR.”

He added:

“Therefore, in considering all the circumstances of this case, I conclude that the appellant and his solicitors have never engaged with the need properly to plead and prove his impecuniosity in support of the claim for credit hire charges. They did not do that at the outset of the claim; they did not do so when the subject of an Unless Order; and they have not done so subsequently. In those circumstances, there was no basis on which the court could grant the appellant relief from sanctions.”

Service/Relief From Sanctions

Although the Court of Appeal held that “Signed for 1^st Class” did fall within the parameters of CPR 6.26, the Reply had still been served two days late. Coulson LJ referred to the Denton test and considered it appropriate to consider the breach at stage 1 of the test, concluding that the breach was both serious and significant.

It had been submitted that the breach was not significant because it had no effect on the court proceedings, but Coulson LJ firmly rejected the assertion that significance can only be measured by whether the court timetable had been imperilled. He said:

“If a breach was required adversely to affect the court timetable before it could be called serious or significant, that would be uncomfortably and unacceptably close to the pre-CPR regime, where the defaulting party could get away with repeated breaches of court orders simply because the other side could not show that they had suffered specific prejudice as a result. That is not now the law.”

Significantly he added:

“Even if the breach in this case had been confined to the delay in service, that would not make it insignificant. Parties to civil litigation need to make clear the important elements of their respective cases at an early stage. Gone are the days of ambush and keeping important points up your sleeve. The aim of much civil litigation is to bring about a cost-effective settlement. If a claimant delays in providing critical information, particularly where he has been ordered to provide it by way of an Unless Order, that delay adversely affects the other side’s ability to a take a view about the strength or weaknesses of the claim they face. The effect on the ligation in question should not be measured simply by whether or not the trial date can still be met; in properly run litigation, the aim must be to avoid having a trial date altogether.”

It was noted that there had been some delay in bringing the application the explanations for which were described as being of “the dog ate my homework variety”.

In dismissing the application, the Court of Appeal also made reference to the submissions made on behalf of the Claimant that the Defendants had been responsible for the breach because of an unreasonable refusal to allow an extension of time in respect of the unless order.  Coulson LJ concluded that the Defendants had in no way acted unreasonably. Whilst it had been said in Denton that mistakes should not be taken advantage of where the failure was neither serious or significant, Coulson LJ said that this was a “relatively high bar” and that it was emphatically not designed to give carte blanche to the defaulting party to blame the other side for the delays caused by its own breach.

Comment

This case firmly places the onus on claimants to fully plead and particularise credit hire claims and pleadings of impecuniousity at the outset of the action. Defendants, having previously had to wait until disclosure and beyond, before being in a position to credibly assess a claimant’s financial position should now be in a position to do so at an earlier stage, allowing for costs protective offers to be made sooner and with a greater degree of justification.

It is interesting to note that Coulson LJ in his judgment made repeated reference to the need for the Reply to set out all the facts in support of an assertion to be impecunious. This could be read in conjunction with the recent amendments to CPR PD16 which provides an obligation on the  particulars of claim to set out “relevant facts” in relation to credit hire claims which pleadings still all too often fail to do.

When making relief from sanctions applications, lack of disruption to the court timetable is often cited as a reason for such relief to be granted. Coulson LJ confirms this is not the overriding consideration. Defendants should further not be fearful of refusing extensions where it is appropriate to do so.

To view/download as a PDF please click here.

If you would like to know more about this matter, please speak to your contact at Plexus Law:

Chris Dibb, Associate 

T: 01422 394 280   |   M: 07970 282 901   |   E: christopher.dibb@plexuslaw.co.uk

Whilst we take care to ensure that the material in this Legal Update is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Legal Update do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Legal Update.

 

Two Claimants who supported the false injury claims made by their supposed passengers have had their own claims thrown out and been found to have acted dishonestly.

The man and the woman had been involved in a genuine accident with a Co-op policyholder back in July 2017 and had seemingly legitimate claims for personal injury.  However, they then supported the false claims made by the woman’s brother and father who had also alleged to have been in the vehicle at the time of the accident.

Following an application made by Plexus Law acting for Co-op Insurance, all four claimants were found to have acted dishonestly and had their claims for injury dismissed by a judge.

The case arose from a genuine accident; the policyholder was stationary and parked when his adult daughter, who was in the front passenger seat, opened her door into a collision with an oncoming Volvo containing two of the claimants. Following the collision, both the policyholder and his daughter got out of the vehicle as did the occupants of the Volvo. The occupants of the Volvo were known to the policyholder’s daughter and she was able to say who was driving.

Both the policyholder and his daughter were able to look inside the Volvo and saw that there were child seats in the back meaning that there could not have been any adult rear seat passengers in the vehicle.

Following Plexus Law’s investigations, the four claims were disputed, and the claimants issued proceedings. A Defence was filed in which a formal allegation of fraud was pleaded against the claimants; on the basis that two of the claimants were not in the vehicle and against the other two claimants on the basis that they were supporting two phantom passenger claims.

Following the filing of the Defence and receipt of case management directions the Claimants’ solicitors were granted an order which removed them from the record as acting on their behalf. The Claimants, who continued as litigants in person, failed to comply with the court’s directions and as such an application was made for summary judgment and a finding of fundamental dishonestly.

The Defendant was represented by Tim Sharpe, of Temple Garden Chambers, at the hearing which was heard by way of telephone conference and attended by all four claimants.  The order sought by the Defendant was approved by the District Judge who not only ordered the claimants to pay the Defendant’s costs of over £6,000 but also ordered one of the claimants to make repayment of an interim payment which had been sent prior to the submission of a CNF.

If you would like to know more about this matter, please speak to your contact at Plexus Law:

Chris Dibb, Associate 

T: 01422 394 280   |   M: 07970 282 901   |   E: christopher.dibb@plexuslaw.co.uk

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.

The Court of Appeal handed down their judgement on 9 October 2020 following the hearing of the appeal in Swift v Carpenter on 23-25 June 2020.

The Court of Appeal held it was not bound by the formula set out in Roberts v Johnstone, in place since 1989 as this does not result in fair compensation for Claimants.

In place of the Roberts v Johnstone formula which was based on the discount rate, damages for accommodation will now be calculated by reference to the additional cost of the new property less the present market value of the reversionary interest.

At first instance, Mrs Justice Lambert accepted the Claimant had a reasonable need for alternative accommodation following a road traffic accident in which she sustained injuries resulting in a below knee amputation of her left leg and serious injury to her right foot.  The increased capital costs of the required accommodation were £900,000.  However, due to the negative discount rate in place at the date of trial and bound by the decision in Roberts v Johnstone she made no award but did give permission for the Claimant to appeal the decision.

 

The issues for the Court of Appeal were:

 

1. Whether they were bound by Roberts v Johnstone?
2. If not, should they depart from Roberts v Johnstone?
3. If they should depart from Roberts v Johnstone what alternative is a fair and reasonable method of calculating compensation?

 

On the first issue the court held Roberts v Johnstone was authoritative guidance only.  This meant the Court of Appeal was entitled to revisit the guidance.  On whether they should depart from that guidance they held the Roberts v Johnstone formula no longer achieved fair and reasonable compensation and they should depart from this method.

A number of new methods for the calculation were considered including whether to award the full capital value of the reversionary interest or whether to reduce the capital award to reflect the notional revisionary interest value.  The Court of Appeal decided on the latter approach.

The Court held an appropriate rate for the reversionary interest was a more cautious rate of 5% than the return usually sought by investors in this market.

One constructive finding for insurers is the Court of Appeal’s comment that there may be cases where the guidance is inappropriate, leaving open an argument on the appropriate award, for example in cases involving a short life expectancy.  However, the Court did hold the guidance should only be revisited in the event of significant changes, and rarely by a first instance court.

The decision is not unexpected but will be disappointing for insurers who will be required to pay significantly more for accommodation claims, particularly at times when a negative discount rate is in force.  The court have arrived at a formula that appears simple but does not reflect the true loss to the Claimant and overcompensates Claimants in many ways.

 

Appendix: Example Calculation using figures from Swift

Reversionary interest = (Price of new property – Price of existing property) x 1.05 (to the power of the Claimant’s life expectancy taken from Ogden Table 1 or 2)

 

Cost of the property now required: £2,350,000

Value of the Claimant’s existing property: £1,450,000

Capital shortfall: £2,350,000 – £1,450,000 = £900,000

Claimant’s life expectancy per Table 2: 45.43 years

Value of the reversionary interest: £900,000 x 1.05 ^-45.43 = £98,087 ^*

Damages award = £900,000 – £98,087 = £801,913

For any further information regarding this matter please speak to your contacts at Plexus Law:

Julia Archer, Associate

T: 01 61 245 7929    |   E: julia.archer@plexuslaw.co.uk

Philip D’Netto, Partner

T: 0161 244 6915   |   M: 07970 318 434   |   E: philip.dnetto@plexuslaw.co.uk

Whilst we take care to ensure that the material in this Accommodation Update is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Accommodation Update do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Accommodation Update.

Mr and Mrs Backhouse v David Robert Earl (executor of the Estate of Mr Anthony Petersen (deceased) [01.09.2020]

On 1 September 2020, HHJ Berkley sitting as an Appeal Court Judge handed down his written Judgment, upholding the first instance decision of DJ Nichols dated 25 November 2019 in which he refused to grant the Claimants relief from sanctions, struck out the Claimants’ claim on the basis that the Claimants could call no factual evidence and awarded the Defendant costs of the proceedings.

The Claim

The Claimants brought a professional negligence claim against a building surveyor, who was instructed in 2001 to supervise the conversion works to a Grade II listed building, which included the installation of a damp-proofing system to prevent flooding to the basement kitchen area. The Claimants alleged that the Defendant was negligent in connection with the damp-proofing works, which had been carried out, such that their basement flooded on 6 January 2014. The Defendant died in May 2014. The Claimants issued proceedings on 17 January 2017 against his estate, alleging that the damp-proofing system was defective and had been inadequately installed. The proceedings were defended by Plexus in respect of limitation, breach of duty, causation and loss. On 3 December 2018, there was a Case Management Conference where the court gave procedural directions to advance the litigation to trial. The relevant procedural directions were as follows:

• Disclosure by 4pm on Friday 15 February 2019
• Inspection by 4pm on 22 February 2019
• Witness statements by 4pm on 19 April 2019
• Expert reports by 17 May 2019, with experts to meet to discuss their positions by 7 June 2019 and joint statement of issues by 21 June 2019
• Pre-Trial Settlement Hearing on the first open date after 5 July 2019
• Pre-Trial Review on the first available date after 30 September 2019
• Trial window 4 November 2019 to 31 January 2020

The Claimants failed to exchange lists of documents until 17 August 2019 and witness statements were served on the eve of the strike out hearing, and filed at court during the course of the hearing. The Pre-Trial settlement hearing had been lost and the remaining procedural directions were out by 7 months. The Defendant made an application to strike out the Claimants’ claim.

 The first instance decision

DJ Nichols considered the three-stage test set out in the Court of Appeal decision in Denton, as follows:

1. Serious or Significant Breach

DJ Nichols concluded that the Claimants’ failure to effect disclosure by 6 months and serve their witness statements by 5 months, despite being repeatedly chased by the Defendant, was serious and significant because the trial window had been lost. The Claimants reluctantly did not challenge this on appeal.

2. No good reason

The Claimants’ reason for their failure to comply with the directions was because of ongoing negotiations. This was not accepted by DJ Nichols. Negotiations was not a good reason for disregarding the procedural directions and, in fact, as the Defendant maintained, contrary to the Claimants’ submissions no offers to settle had been made. The Claimants reluctantly did not challenge this on appeal.

3. All the circumstances

The Claimants had failed in all the circumstances of the case to conduct the litigation efficiently and at proportionate cost, and had failed to enforce compliance with rules, practice directions and Orders.

DJ Nichols, in striking out the claim, gave an ex tempore Judgment, which characterised the Claimants’ breaches as “extreme” and “breath-taking” in nature, with the entire timetable having been affected to such an extent that the trial could not be heard within the trial window. DJ Nichols found that this had caused actual prejudice to the Defendant.

The Claimants sought permission to appeal.

 The Appeal

The Claimants were initially refused permission to appeal. However, a hearing was requested and HHJ Berkley heard the application for permission to appeal and the appeal simultaneously. The hearing was conducted remotely in May 2020 due to Covid-19 restrictions. Essentially, this was a hearing about how the Court should deal with the third stage of the Denton test.

HHJ Berkley concluded that there was no question that the litigation had been conducted inefficiently and at disproportionate cost for a considerable time with directions being ignored, court time wasted and the Defendant being put to the waste of time and expense of chasing the Claimants. The persistent breaches was a relevant factor. The Claimants took no action to remedy their breaches and had ultimately forced the Defendant to make an application. Conversely, the Claimants were astonishingly slow with their application for relief from sanctions, despite warnings and invitations from the Defendant. HHJ Berkley importantly highlighted that the Defendant had initially agreed in May 2019 not to oppose any application.

The Defendant relied upon the decision in Clearway Drainage Systems Limited v. Miles Smith Limited [2016] EWCA Civ 1258. In that case, the defendant applied to strike out the claimant’s claim due to their two-month delay in serving witness statements. The claimants applied for relief from sanctions immediately after the defendant made the application, and served witness statements four days later. The Court of Appeal upheld the decision of the judge at first instance to refuse relief from sanctions, despite the fact that this would effectively terminate the claimant’s claim. The breach had been serious and significant despite the fact that the trial date had not been imperilled; there was no good reason for the breach; the application for relief had not been made promptly, and the need to ensure efficient conduct of litigation and compliance with court orders weighed against the grant of relief. However, the Claimants’ conduct of this matter had been, significantly more egregious than the conduct of the claimant in the Clearway case.

HHJ Berkley concluded that the Claimants’ brazen and unapologetic disregard of the Court’s Orders was such that DJ Nichols’ decision was almost inevitable. The learned Judge concluded that DJ Nichols was entitled to exercise his discretion and, given the Claimants’ egregious failures, there was no basis for suggesting that his decision was so unreasonable that it fell outside the wide discretion afforded to him. HHJ Berkley concluded that any appeal by the Claimants had no real prospect of success and, accordingly, the application for permission to appeal was dismissed.

Comment

This case serves as a useful reminder of the crucial importance of complying with rules, procedural Directions and Orders, and that deadlines are not missed, overlooked or simply ignored. Notably in the current-Covid-19 era where many people are working from home, it is of paramount importance that a robust diary management system is in place to ensure that procedural deadlines are appropriately recorded with timely reminders in place to avoid missing procedural deadlines. However, where there has been a breach, it is important that an extension of time is sought and that an application is made promptly to the court for relief from sanctions without delay (before the breach occurs) irrespective of whether or not the application is made with the consent of the other party.

The Defendant was represented by Alain Orengo, a Partner at Plexus Law, London.

To download this Case Alert as a PDF please click here.

If you would like to know more about this matter, please speak to your contacts at Plexus Law:

Alain Orengo, Partner

T: 020 7220 5861    |   M: 07816 073 864   |   E: alain.orengo@plexuslaw.co.uk

 

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.

Synopsis

The Court of Appeal ruling in this case has been long awaited, following the decision at first instance in favour of the Chief Constable. The Claimant argued that the use of automatic facial recognition (“AFR”) technology was unlawful in that it interfered with his Article 8 right to respect for his private life. He also alleged that it breached the Data Protection Acts of 1998 and 2018.

Upholding part of the appeal, the court found that the AFR system did constitute an interference with Article 8 rights, not in accordance with the law, but would be proportionate if a sufficiently narrow local policy were framed.

 Facts

AFR is a new technology being piloted by the police, to assess whether two facial images depict the same person.  “AFR Locate” is used at large gatherings. The police hand out leaflets and advertise on social media so as to alert the public to the use of AFR. Prior to the event, police will upload and process a ‘watchlist’ of:

(a)   persons wanted on warrants;

(b)   individuals who are unlawfully at large;

(c )   persons suspected of having committed crimes;

(d)   missing persons;

(e)   individuals whose presence at a particular event causes particular concern;

(f)    persons simply of possible interest to police for intelligence purposes; and

(g)   vulnerable persons.

The watchlist database of  400 – 800 people is turned into biometric data unique to each face. CCTV is processed by AFR Locate to recognise human faces. It converts images of these faces into biometric templates and looks for a match with the templates on the watchlist. It can process up to 50 faces per second. Up to half a million faces can be scanned at a single event and compared with those on the watchlist.

If AFR Locate makes a match, it will alert its operator and display the images for comparison. No action is taken unless the human operator is satisfied of the need for it. A decision will be made as to whether to approach the potentially matched person. If no match is detected, the software will automatically delete the images with 24 hours. The biometric template is deleted immediately, and the CCTV feed and details of those matched is deleted after 31 days.

 Decision

The interference of the Art 8 right was in breach. The local South Wales Police (“SWP”) policy contained wide areas of discretion (watchlists and locations) where AFR may be deployed. This meant that the data protection impact assessment prepared by SWP did not meet the requirements of s. 64 DPA 2018.

The Court also held that SWP had not done all that they reasonably could to fulfil the Public Sector Equality Duty (PSED) pursuant to s 149 (1) EA 2010. It was held that, as AFR is a novel and controversial technology, all forces that intend to use it in the future should satisfy themselves that everything reasonable had been done in order to make sure that the software does not have a racial or gender bias.

 Legal analysis

Proportionality is key. A fair balance has to be struck between the rights of the individual and the interests of the community. This means that AFR Locate may lawfully be used in future, so long as the police put in place an appropriate policy, undertake adequate data protection and equality impact assessments and put in place a more detailed policy document.

SWP will now need to draft a compliant policy document which must take into account the provisions of the Data Protection Act 2018.

The impact assessment prepared by SWP did not meet the requirements of s.64 DPA 2018. It proceeded on the basis that Article 8 was not infringed. The equality impact assessment prepared by SWP did not demonstrate compliance with s.149(1) of the Equality Act 2010.

Practice points

Speaking for the South Wales Police, Chief Constable Matt Jukes welcomed the judgment, saying: “I am confident this is a judgment that we can work with”.

South Wales Police have already committed to adjust their policies in line with the Judgment and to work alongside the Surveillance Camera Commissioner, Home Office, College of Policing and National Police Chiefs Council to address the issues raised and to allow them to continue to make use of live facial recognition and biometric technologies.

The use of facial recognition will continue to draw public interest as there is significant opposition to this being used for any purpose. A ban on such technology has been suggested by Liberty with Megan Goulding, a lawyer for Liberty, commenting that: “The Court has agreed that this dystopian surveillance tool violates our rights and threatens our liberties … it is time for the Government to recognise the serious dangers of this intrusive technology. Facial recognition is a threat to our freedom – it needs to be banned.”

Police forces interested in the deployment of facial recognition have a difficult task in justifying the use of such technologies when balancing the potential benefits with the risks identified by the Court of Appeal and the potential to violate data protection, equality, and human rights laws.

Steps that need to be taken are as follows:

1. Draft a policy to narrow the breadth of discretion in relation to the selection of those on watchlists, and the locations where AFR may be deployed, so that AFR Locate may be said to be in accordance with the law;
2. Undertake an adequate data protection impact assessment;
3. Undertake an adequate equality impact assessment in compliance with s.149(1) EA 2010; and
4. Put in place a more detailed policy document which complies with s.42(2) DPA 2018.

To download this Case Alert as a PDF please click here.

If you would like to know more about this matter, please speak to your contacts at Plexus Law:

Andrew Steel, Partner

T: 0161 245 7965   |   M: 07557 232 419   |   E: andrew.steel@plexuslaw.co.uk

Amy Olive, Legal Assistant

T: 0161 244 6927   |     E: amy.olive@plexuslaw.co.uk

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.