R (Thompson and Carlo) v Commissioner of Police of the Metropolis [2026] EWHC 915 (Admin)

Two claimants challenged the Metropolitan Police Commissioner's September 2024 policy on live facial recognition technology, alleging it breached Articles 8, 10 and 11 ECHR by granting officers excessive discretion. The Divisional Court dismissed the claim, holding the policy was sufficiently foreseeable and non-arbitrary.

Facts

The claim concerned the legality of the Metropolitan Police Commissioner’s policy of 11 September 2024 governing the deployment of live facial recognition technology (LFR) in London (‘the Policy’). LFR uses cameras to capture images of members of the public, extracts biometric data, and compares it against a watchlist of ‘Sought Persons’. Non-matching data is immediately and automatically deleted.

The first claimant, Mr Shaun Thompson, a Black community volunteer, was stopped near London Bridge on 23 February 2024 after LFR matched him to his brother, who was on a watchlist. He was questioned, required to prove his identity and threatened with arrest when he declined to give fingerprints. The second claimant, Ms Silkie Carlo, is Director of Big Brother Watch and has campaigned against LFR, avoiding certain events and protests due to concerns about its deployment.

The Equality and Human Rights Commission intervened in writing. The claimants did not argue that LFR was unlawful in principle, nor did they pursue proportionality grounds.

Issues

The central legal question was whether the Policy satisfied the ‘quality of law’ requirement under the ECHR, specifically:

• Ground 1: Whether the Policy was ‘in accordance with the law’ (IAWL) under Article 8(2) ECHR, given its alleged interference with the right to respect for private and family life.
• Ground 2: Whether the Policy was ‘prescribed by law’ (PBL) under Articles 10(2) and 11(2) ECHR, given its alleged restriction on freedom of expression and assembly.

The parties agreed the IAWL and PBL issues raised identical analysis. The claim turned on foreseeability: whether the Policy conferred a discretion so broad that its scope was in practice dependent on the will of those applying it, enabling arbitrary decisions.

Arguments

Claimants

Mr Squires KC submitted that the Policy left too much discretion to individual officers, particularly regarding where LFR could be deployed. Relying on expert evidence from Professor Utley, the claimants argued that up to 85% (or 62% on revised calculation) of the Metropolitan Police District could qualify as a ‘crime hotspot’ or access route, meaning the MPS could select virtually any high-footfall area. The term ‘operational experience’ was said to be too opaque. The claimants also pointed to the repeat use of watchlists, the absence of a link between ‘who’ is on a watchlist and ‘where’ LFR is deployed, and a potential chilling effect on protest.

Defendant

Ms Proops KC submitted that the Policy contained interlocking constraints across its sections on ‘why’ (Use Cases A, B and C), ‘who’ (watchlist construction) and ‘where’ (permitted locations), together with mandatory proportionality assessments in section 6. ‘Operational experience’ referred to corporate MPS expertise, not individual whim. Professor Utley’s evidence regarding geographical coverage was irrelevant to the IAWL question.

Intervener

The Commission argued that LFR now enables ‘mass surveillance’ and urged a reappraisal of intrusiveness since Bridges, particularly regarding its chilling effect on Article 10 and 11 rights at protests.

Judgment

The Divisional Court (Holgate LJ and Farbey J) dismissed the claim.

Legal framework

The court reaffirmed the foreseeability test from In Re Gallagher [2019] UKSC 3, endorsing Lord Sumption’s formulation that a measure must not confer a discretion ‘so broad that its scope is in practice dependent on the will of those who apply it, rather than on the law itself’. The court distinguished foreseeability from proportionality, noting the claimants did not pursue the latter. It applied the ‘relativist approach’ from R (Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058 that the more intrusive the act, the more precise the law must be.

Evidence

The court refused to admit Ms Carlo’s third and fifth witness statements and Professor Utley’s reports, as well as Ms Chiswick’s third statement. Professor Utley’s mathematical modelling of geographical coverage was held irrelevant: the geographical proportion of London coverable by LFR has no inherent link to whether the Policy is IAWL. He had not addressed footfall, operational constraints, or the interlocking provisions of the Policy. Ms Carlo’s statements were largely opinion and advocacy rather than admissible evidence.

The Policy

The court analysed the Policy’s three Use Cases (A: hotspots; B: protective security operations; C: specific intelligence), the detailed watchlist criteria in section 4, the ‘where’ provisions in section 5, and the mandatory three-stage proportionality assessment in section 6. Crime hotspots were defined precisely by reference to fixed hexagonal grids and quartile-based crime scoring.

Rejection of claimants’ submissions

The court held:

• ‘Operational experience’ was not vague but reflected the MPS’s specialist corporate knowledge, far removed from individual ‘hunch’ or ‘whim’.
• Repeat use of watchlists concerned application of the Policy, not its quality as law.
• No material change in LFR technology since Bridges justified a different approach to intrusiveness.
• Discrimination concerns were only faintly asserted and unsupported.
• The ‘who’, ‘why’ and ‘where’ questions were rationally linked through the concept of Relevant Hotspot Offence Types.
• Section 6’s proportionality requirements, including recognition that greater numbers of affected people reduce the likelihood of proportionate deployment, provided a genuine, structured and effective safeguard against arbitrariness.

The Policy was therefore IAWL and PBL, and neither Article 8, 10 nor 11 was breached.

Implications

The judgment provides significant clarification of how the ‘quality of law’ requirement applies to modern police surveillance technologies. It confirms that:

• Foreseeability is not undermined merely because a discretion is broad; what matters is whether its exercise is constrained by principles preventing arbitrary decision-making.
• A multi-layered policy with interlocking ‘why’, ‘who’ and ‘where’ criteria, supplemented by a structured proportionality assessment, can satisfy the IAWL/PBL requirement even where the underlying technology affects large numbers of innocent members of the public.
• The relativist approach from Bridges remains authoritative, and LFR remains ‘somewhere in between the two poles on a spectrum’ of intrusiveness.
• Expert evidence in judicial review must be reasonably required to resolve a point of public law; geographical modelling detached from the legal question will not assist.
• Witness statements must contain admissible factual evidence, not advocacy or opinion.

The decision matters to police forces developing LFR policies, to civil liberties organisations, and to individuals affected by biometric surveillance. It does not, however, endorse any particular operational use of LFR: the court was careful to confine itself to the legality of the Policy and not its merits or application. Nor did the court consider proportionality, discrimination grounds, or hypothetical future uses such as permanent camera systems. The judgment leaves open challenges based on how the Policy is applied in individual cases, and does not foreclose future reconsideration should the technology or legal framework materially change.

Verdict: The claim for judicial review was dismissed. The Metropolitan Police Commissioner’s September 2024 LFR Policy was held to be ‘in accordance with the law’ under Article 8 ECHR and ‘prescribed by law’ under Articles 10 and 11 ECHR. Both grounds of challenge failed.

Source: R (Thompson and Carlo) v Commissioner of Police of the Metropolis [2026] EWHC 915 (Admin)