The Weekly Round-up: A-level Results, Facial Recognition, and Special Educational Needs

17 August 2020 by Rosalind English

In the news

This week has been awash with controversy over an unexpectedly harsh set of A-level results, with GCSEs set to follow this Thursday. Because students could not sit exams this year due to COVID-19, results were calculated on the basis of an algorithm taking into account mock exam results, predicted grades, and schools’ past performance. As a result, 40% of students have had their predicted grades lowered, with many losing university places as a result. Yet in a tour-de-force of algorithmic elitism, the number of independent school students securing A* or A grades has increased by 4.7%, compared to only 2.2% at state schools, and 0.3% at further education colleges. Multiple legal challenges are in contemplation; Jolyon Maugham QC’s Good Law Project is supporting 7 students in a judicial review of the exam regulator Ofqual’s failings.

Algorithmic injustice has been in the courts this week too, as civil liberties campaigner Edward Bridges won an important victory in the Court of Appeal against the use of facial recognition technology by the police.

Mr Bridges had launched a judicial review against the use of ‘AFR Locate’ facial recognition technology by South Wales Police after being photographed by automated cameras when Christmas shopping and subsequently when involved in a peaceful protest. His challenge had been dismissed by a Divisional Court in September 2019. The original decision was covered on the blog by Sapan Maini-Thompson here.

In handing down its judgement in favour of Mr Bridges, the Court of Appeal made two key findings. Firstly, the legal framework of the DPA 2018, Surveillance Camera Commissioner’s Code of Practice, and South Wales Police policy documents was, contrary, to the Divisional Court’s finding, not sufficient to govern the use of facial recognition technology by the police. It was therefore not ‘in accordance with the law’ under Article 8(2) ECHR. Secondly, South Wales Police had failed to comply with their anti-discrimination duties, as they had failed sufficiently to address concerns about the risk of gender or racial bias inherent in the technology’s matching algorithms. The court’s reasoning is discussed in more detail in a post on this blog by Rafe Jennings.

Reacting to the result, Mr Bridges has emphasised that “this technology is an intrusive and discriminatory mass surveillance tool”, and “we should all be able to use public spaces without being subjected to oppressive surveillance.” The court’s judgement will not, however, prevent the use of facial recognition technology in the long term; it will simply require government, regulators, and the police to put in place the necessary safeguards to ensure that the technology can be used lawfully.

South Wales Police have said that they will not be appealing. Chief Constable Matt Jukes has promised “a commitment to ensuring [the public] can see we are using new technology in ways that are responsible and fair”; this will include the continuation of academic analysis begun in 2019 of algorithmic bias in facial recognition technology. The police will be working with the Home Office and the Surveillance Camera Commissioner, Tony Porter, to create a new policy framework which complies with the court’s judgement.

In Hong Kong, activists are making use of the UK’s ‘universal jurisdiction’ on torture to bring legal action against five UK police officers who have been serving on Hong Kong’s police force since the 1990s. The officers in question are believed to have been involved in brutal actions taken against anti-government demonstrators, including beatings, stamping on protesters’ heads, kneeling on their necks, as well as torture, sexual assault and rape in custody. The British officers in question have stated in press interviews that they have not used excessive force, and that many police officers have been injured in trying to deal with violent crowds.

In the courts

With the courts in recess, few new decisions have been released this week. Apart from the Bridges case there is only one decision worth reporting.  

In Shaw & Anor, R (On the Application Of) v Secretary of State for Education, the claimant disabled children challenged a decision by the Secretary of State to modify the obligations on local authorities to make educational and health care (‘EHC’) provision for children with special educational needs and disabilities (‘SEND’) in England. The children in question had not been to school since March 2020, and had been receiving limited support during the pandemic.

In particular, the claimants challenged the enactment of (i) the SEND (Coronavirus) (Amendment) Regulations 2020, which temporarily relaxed time limits for steps taken to prepare EHC plans, and (ii) three statutory notices modifying the duty to secure provisions specified in EHC plans under s.42 Children and Families Act, ‘watering down’ the duty to a duty to use ‘reasonable endeavours’ to secure those provisions.

These measures were challenged on the basis of (1) breach of the duty to consult, (2) failure to make enquiries with relevant bodies, (3) irrationality in laying the Regulations before Parliament the day before they came into force; (4) irrationality in deciding the notices were appropriate and proportionate; and (5) breach of the duty to have in mind the aim of promoting the well-being of children under s.7 Children and Young Persons Act 2008.

The court rejected the challenge on all grounds.

On the UKHRB

• Rafe Jennings discusses the Court of Appeal’s decision in Bridges v SWP
• Rosalind English explains a data protection decision regarding disclosure by a charity of personal mental health information to the claimant’s GP  
• Rosalind English explores a Strasbourg decision on mandatory face-mask wearing