The Round Up: Facial Recognition Technology and Failings by Prisons, Police and the CPS

30 January 2020 by Alethea Redfern

Civil liberties groups have responded with opprobrium to the Metropolitan Police’s plan to begin using live facial recognition (LFR) cameras on London’s streets as of next month. Purportedly, the Met’s technology compares the structure of faces to those recorded in a database of suspects, and alerts officers on the scene if a match is found. If no alert is generated, the image is deleted. The Met has claimed that the system is 70% effective at spotting wanted suspects and only produced a false identification in one in a thousand cases. In addition, it claimed 80% of people surveyed backed the move. 

Although the decision was welcomed in the the Evening Standard as “a major new move to fight violent crime,” it has been met with consternation elsewhere. Reporters for the Financial Times and the Guardian drew attention to the findings of an independent review commissioned by the Met last year, which warned that the results force’s facial recognition trials indicated the technology was only 19% accurate, and likely to contravene human rights. Pete Fussey, a criminologist at the University of Essex who authored the review, highlighted concerns that facial recognition algorithms do not perform equally across age, gender and ethnicity, and are therefore likely to result in misidentification and bias against women and people of colour. 

These concerns are shared by Liberty, which has stated that the technology “has no place on the streets of a free, rights-respecting democracy”. Silkie Carlo, the director of Big Brother Watch, called the move “an enormous expansion of the surveillance state and a serious threat to civil liberties in the UK.” Allen Hogarth, from Amnesty International UK, said that the technology “puts many human rights at risk, including the rights to privacy, non-discrimination, freedom of expression, association and peaceful assembly.”

In other news, the government’s plans to end the automatic release of serious violent and sexual offenders halfway through their sentences were criticised by the Prison Reform Trust, which warned the plans would increase pressure on overstretched prisons without improving public confidence and safety. The Trust director Peter Dawson commented that the proposal was misguided and “a coherent plan for reform is long overdue.” The announcement comes as Peter Clarke, the chief inspector of prisons, released a damning report on conditions in young offender institutions, where children are left in “harmful” solitary confinement for extended periods, and called for a “major overhaul” of policy. 

A number of other failings in the justice system made the news. A study conducted by Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) and HMICFRS warned that police and prosecutors are dropping domestic abuse cases too readily when victims become reluctant to pursue domestic abuse complaints against often violent partners. A report by Kate Brunner QC, the Leader of the Wester Circuit, has assessed the ways in which justice is being denied to victims, families, and other users of the criminal justice system. According to the report, courtrooms are “lying empty” and judges prevented from presiding over trials as government cuts contribute to a growing backlog of cases. In response, the Ministry of Justice denied that backlogs are increasing; the report’s author called this “somewhat surprising bearing in mind [the MoJ’s] own statistics.” The Chair of the Bar Council, Amanda Pinto QC, gave a statement emphasising that the “problems highlighted by the Western Circuit are by no means confined to one region. This is a national issue which is fast becoming a national crisis.”

In Other News 

The UN has recently issued two landmark decisions. 

In the first judgement of this kind, the UN Human Rights Committee has ruled that it is unlawful for governments to return people to countries where their lives might be threatened by the climate crisis. The ruling relates to the case of Ioane Teitiota, a man from the Pacific nation of Kiribati, which is one of the countries considered most at risk from rising sea levels. He applied for protection in New Zealand in 2013, claiming his and his family’s lives were at risk. Given that global heating is expected to displace tens of millions of people in the next decade, the decision has broad significance. It also indicates that, in years to come, climate change will have an increasing impact on the legal obligations of governments around the world under international law. 

The International Court of Justice (ICJ) in The Hague imposed emergency “provisional measures” on Myanmar and ordered the country to prevent genocidal violence against its Rohingya Muslim minority. The outcome of the case, which was brought to the ICJ by the Gambia, a predominantly Muslim West African state, amounts to an outright rejection of Nobel peace prize winner and former human rights icon Aung San Suu Kyi’s defence of her country. Although the decision has been welcomed by groups such as Amnesty International, which characterised it as a clear message that Mynamar’s “atrocities” would not be tolerated, it has also been met with criticism. Peter Sturm, editor at the German newspaper Frankfurter Allgemeine Zeitung, commented that The Gambia’s intervention highlights the inaction of Western democracies. Conversely, the government and citizenry of Myanmar have responded defiantly to the ruling. This is a cause for concern given that although the ICJ’s measures are binding and not subject to appeal, the court has no means of enforcement. Guardian journalist Francis Wade and international lawyer Priya Pillai draw a parallel with similar rulings from the ICJ during the Bosnian war, which entirely failed to prevent the Srebrenica genocide. 

In the Courts 

JH v MF (Rev 1) [2020] EWHC 86 (Fam): In a disturbing case, the High Court allowed an appeal from an order made following proceedings for child arrangement at the Central Family Court in London. The judge’s handling of allegations of domestic abuse and serious sexual abuse had been deeply concerning. During the trial, without giving any reasons for doing so, he took the “inexplicable” step of denying the Appellant the opportunity to give evidence using the witness box and screens. He failed to give sufficient consideration to police records, and disregarded evidence from a friend and a neighbour out of hand because they were the Appellant’s “friends”. Additionally, in rejecting the contention that sexual assault had occurred, the judge said there was “nothing unusual” about the fact that the Appellant was upset afterwards, which was common ground, and that although the Appellant “told [the Respondent] to stop … she took no physical step to encourage [him] to desist.” In light of the case, The President of the Family Division will be making a formal request to the Judicial College for family judges likely to hear cases involving allegations of serious sexual assault in family proceedings to be given training based on that which is already provided to criminal judges.

A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent) [2020] EWFC 3: On the basis that the case represented important issues of public interest, Mr Justice Hayden delivered a short ex tempore judgement on a case which involved five children, raised in an ultra-Orthodox community, whose father left the home to live finally as a transgender woman. She (the father) made an application for an order allowing her to have contact with the children, but ultimately decided that pursuing the application would be “emotionally harmful” to them. Without offering detail, the judge said the public should know that litigation had ended. 

MM v NA (Declaration as to Marital Status) [2020] EWHC 93 (Fam): The High Court granted a couple married in Somaliland in 2012 in a religious ceremony, a further ceremony attended by family and friends, and finally by registration in the local district court in Hargeisa, a declaration that their marriage was valid, subsisting, and entitled to formal recognition according to the law of England and Wales. 

Casamitjana v The League Against Cruel Sports [2020] UKET 3331129/2018: In this landmark Employment Tribunal ruling, it was held that ethical veganism is a philosophical belief which qualifies as a protected belief within the meaning of Section 10 of the Equal Act 2010. The case was unusual in that the Respondents had conceded the issue. Specifically, the Claimant was a firm believer in the ancient Jainist concept of Ahimsa, meaning “to cause no injury and to do no harm”.

On the UKHRB 

• Samuelo Scarmarch provides an overview of Norwich Employment Tribunal Judge Postle’s headline-grabbing finding, mentioned above, that “ethical veganism is a philosophical belief which qualifies as a protected belief within the meaning of section 10 of The Equality Act 2010”. 
• Angus McCullogh QC comments on the Government’s failure to implement a review of Closed Material Procedures, which he characterises as a departure from the fundamental principles that justice should be open and transparent, and that a party should know the evidence and case against them. 
• Alice Irving assess the significance of a unanimous Court of Appeal judgement reaffirming the rights of the Romany and Traveller community to live in accordance with their traditional nomadic way of life. 
• In a two part series, Euan Lynch first analyses the Central London Employment Tribunal’s decision last month that a woman’s belief that “sex is biologically immutable” was not protected as a philosophical belief under the Equality Act 2010, and then discusses its significance and Lord Sumption’s comment on the ruling in the Times. 
• Sapan Maini-Thompson offers a human rights analysis of the Home Office’s proposal to legislate for a new criminal offence relating to the “possession of the most serious material glorifying or encouraging terrorism”.
• In the latest episode of Law Pod UK, Rosalind English brings together 1 Crown Office Row’s James Badenoch QC and David Hart QC to discuss concerns over the inflation in damages awards in clinical negligence claims.