Broad Police Discretion Doesn't Violate Article 8

The Divisional Court (Holgate LJ, Farbey J) has held, in the judicial review challenging the Met’s policy governing the use of life facial recognition (“LFR”), that the mere fact of a discretionary power being broad is insufficient to make that power not “in accordance with the law” (“IAWL”) or “prescribed by law” (“PBL”) for Article 8/10/11 ECHR purposes. It was this finding on the law against the claimants that mainly contributed to the claim being dismissed. I will argue in this post that there are arguments based primarily on authority, but also on principle, suggesting that the Divisional Court’s conclusion on this central legal issue is wrong.

The case is R (Thompson and Carlo) v Metropolitan Police Commissioner [2026] EWHC 915 (Admin).

Facts in summary

The claim challenged the lawfulness of the Met’s policy for deployment of LFR in London, adopted on 11 September 2024. LFR works by scanning faces in public places and comparing biometric data from the images with that held on police watchlists of specified persons. If no match is generated, the data is automatically deleted immediately. Images of people not matched are blurred, and the live CCTV feed is monitored in real time by a trained operator.

The two claimants were, respectively, Mr Thompson, a Black man living in London who had been wrongly identified by LFR, and Ms Carlo, the Director of Big Brother Watch, a civil liberties organisation campaigning on privacy and surveillance.

Their challenge was not directed at the principle of the use of LFR (it having been accepted that there is no in-principle legal objection to its use: [4]), nor the proportionality of the Met’s policy. Instead, similarly to the successful challenge in Bridges to South Wales’ Police use of LFR, the challenge here was solely on the issue of foreseeability: whether the policy gives too much discretion to police officers to determine where, why and against whom LFR would be used, contrary to Articles 8, 10 and 11 (privacy, expression and association) ECHR ([12]). This relates particularly to the IAWL/ABL requirements in those Articles; it was accepted that both raised the same issues ([8]).

The central legal issue differentiating parties was on the ambit of IAWL. Was it, as the claimant submitted, a key aspect of IAWL that an “excessively broad” discretion would ipso facto fall foul of the IAWL requirement ([54])? On this approach, the key IAWL issue was whether the policy contained sufficient constraints on officers on the deployment of LFR.

Or was it, as the defendant submitted (see [34] of the claimant’s skeleton argument here), that the sufficiency of constraints on officers’ discretion is not an IAWL issue at all? So long as discretion is not entirely unfettered, a discretion conferred – however broad – cannot of itself be not IAWL.

The Court’s decision

The most important domestic authority was Bridges. The Court of Appeal concluded that the applicable legal framework for LFR in that case lacked the quality of law needed to avoid arbitrariness. It was not clear who could be placed on the watchlist, nor was it clear that there were any criteria for determining where LFR could be deployed ([72]). The Court of Appeal laid out 6 principles, of which (2)-(4) are the most important here:

• (2) The legal basis must be ‘accessible’ to the person concerned, meaning that it must be published and comprehensible, and it must be possible to discover what its provisions are. The measure must also be ‘foreseeable’ meaning that it must be possible for a person to foresee its consequences for them and it should 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’ (Lord Sumption in Re Gallagher, ibid, at [17]).
• (3) Related to (2), the law must ‘afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise’ (S v United Kingdom, above, at [95] and [99]).
• (4) Where the impugned measure is a discretionary power, (a) what is not required is ‘an over-rigid regime which does not contain the flexibility which is needed to avoid an unjustified interference with a fundamental right’ and (b) what is required is that ‘safeguards should be present in order to guard against overbroad discretion resulting in arbitrary, and thus disproportionate, interference with Convention rights’ (per Lord Hughes in Beghal v Director of Public Prosecutions [2016] AC 88 at [31] and [32]). Any exercise of power that is unrestrained by law is not ‘in accordance with the law’. In the Divisional Court’s view, “it is important to note that in endorsing principles (2) and (3), the Court of Appeal [in Bridges ] accepted the breadth of a discretion is not a freestanding test for determining whether that power is IAWL. The key issue is whether the scope of, or the conditions for exercising, the discretion are defined sufficiently clearly so as not to authorise arbitrary decision-making” ([38]). Further, principle (4) was “not intended to elide the distinction between IAWL and proportionality” ([39]). The implication therefore is that reading the words “overbroad discretion” literally might allow an indirect consideration of proportionality under the aegis of IAWL.

The Strasbourg authority reinforced this view. The main case was Gillan v UK, where the ECtHR disagreed with the House of Lords’ decision that stop and search powers under the Terrorism Act were IAWL for Article 8 purposes. The ECtHR indicated at [77], with respect to the IAWL requirement, that “the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise. The level of precision required of domestic legislation—which cannot in any case provide for every eventuality—depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed.”

The issue in Gillan was that the guidance provided only addressed the manner the stop and search was to be conducted, rather than the decision to stop and search ([56]). Such decision was made effectively only on the “hunch” of the officer, and it was in this context unsurprising that the ECtHR referred at [77] to an unfettered power. The key part of reasoning was thus that the unfettered power given to officers allowed them to make arbitrary decisions, and it was this “arbitrary” nature of the power’s exercise which made them IAWL ([57]).

The Divisional Court also relied heavily on the judgment of Lord Sumption in In Re Gallagher ** at [17] to reinforce its view on the ambit of IAWL:

“A measure is not “in accordance with the law” if it purports to authorise an exercise of power unconstrained by law. The measure must not therefore 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. Nor should it be couched in terms so vague or so general as to produce substantially the same effect in practice. The breadth of a measure and the absence of safeguards for the rights of individuals are relevant to its quality as law where the measure confers discretions, in terms or in practice, which make its effects insufficiently foreseeable. Thus a power whose exercise is dependent on the judgment of an official as to when, in what circumstances or against whom to apply it, must be sufficiently constrained by some legal rule governing the principles on which that decision is to be made. But a legal rule imposing a duty to take some action in every case to which the rule applies does not necessarily give rise to the same problem. It may give rise to a different problem when it comes to necessity and proportionality, but that is another issue. If the question is how much discretion is too much, the only legal tool available for resolving it is a proportionality test which, unlike the test of legality, is a question of degree.”

The above paragraph was considered by the Divisional Court to reinforce the conclusion that “the mere fact that a discretionary power is broad is insufficient to make that power not IAWL” ([60]).

Comment

This is an important decision on the fundamental ambit of the IAWL requirement as it applies to discretionary powers. However, there is real reason to doubt if the Divisional Court is right on this issue, both by reference to Strasbourg and domestic authority.

Strasbourg authority

At the Strasbourg level, it is the decision in Gillan ** which casts most doubt on the Divisional Court’s decision. As the Divisional Court observed, the challenged guidance focused only on the manner of, rather than the decision to stop and search. The European Court considered that the constraints identified by the House of Lords (which upheld the legislative scheme) did not “constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against arbitrary interference” ([79] of Gillan). The phrase explicitly foregrounds the “wide powers” as the object of control against “arbitrary interference”. The need for a “real curb” implies that the extent of the discretion is independently problematic.

At [83], the Court identified a “further concern” as being the “ breadth of the discretion conferred on the individual officer ”, with the “sole proviso” on the search being “for the purpose of looking for articles which could be used in connection with terrorism, “ a very wide category which could covery many articles commonly carried by people in the streets ”. This emphasis on the “very wide category…” arguably focuses on the failure of the existing legal framework to provide any meaningful limit on the stop and search power.

Further still, the Court observed at [85] that “… there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer …” The Court does not say that arbitrariness arises only because the discretion is insufficiently guided. Rather, it identifies the breadth of the discretion itself as generating the risk. The causal link is direct: it is the grant of such a broad discretion that creates the “clear risk”. Thus, contrary to the Divisional Court’s assertion at [177] that “there is no inherent link between the area covered by a policy and its lawfulness” (using the argument that 85% of London may be covered by application of the Met’s LFR policy), there is a clear link – or risk – engendered by the existence of a broad discretion and arbitrary decision-making. Everything else being equal, a discretion exercisable on large segments of the population increases the risk of arbitrary decision-making.

Domestic authority

As stated above, the main domestic authority is Bridges, both on the substance (concerning LFR) and the test applied (given it was found the LFR system South Wales Police used in that case was not IAWL). Contrary to the Divisional Court at [38] in this case, there is no explicit determination by the Court of Appeal in Bridges that the breadth of discretion afforded cannot be an IAWL issue (or indeed, conversely, that breadth can be an IAWL issue). Thus, the Divisional Court’s assertion at [38] that “it is important to note that in endorsing principles (2) and (3), the Court of Appeal [in Bridges ] accepted the breadth of a discretion is not a freestanding test for determining whether that power is IAWL” is, with respect, incorrect. Nowhere did the Court of Appeal “accept the breadth of a discretion is not a freestanding test for determining whether that power is IAWL”. There is nothing explicit in Bridges to that effect. Indeed, similarly to Gillan, there are at least two passages in Bridges that can be read as the Court of Appeal agreeing with the proposition that the breadth of discretion afforded can be an IAWL issue.

First, at [123] of Bridges, the Court of Appeal noted that the Privacy Impact Assessment produced by South Wales included the following four categories of persons the organisation would be interested in for LFR purposes: “persons wanted on suspicion for an offence, wanted on warrant, vulnerable persons and other persons where intelligence is required.” They considered (at [124]) that whilst “the first three of those are objective, the final category is not. In effect it could cover anyone who is of interest to the police. In our judgement, that leaves too broad a discretion vested in the individual police officer to decide who should go onto the watchlist” (emphasis added).

The objection by the Court of Appeal here is not simply that the final category (“other persons where intelligence is required”) lacked procedural controls, but that “in effect it could cover anyone who is of interest to the police ”. This focuses squarely on the sheer scope of the discretion: the category is so expansive that it collapses into near-unfettered choice. On this view, the Court of Appeal’s conclusion that this “leaves too broad a discretion” indicates that excessive breadth is itself incompatible with the requirement of legality, because it fails to meaningfully limit who may be targeted.

Second, a similar logic appears in relation to where LFR may be deployed. The Court of Appeal highlighted at [130] two concerns in relation to the Data Protection Impact Assessment’s statement that “As we are testing the technology South Wales Police have deployed in all event types ranging from high volume music and sporting events to indoor arenas.” First, this was “purely descriptive” and did not set out any normative requirement on where LFR can be used. Second, “the range is very broad and without apparent limits ”, leaving “the question of the location simply to the discretion of individual police officers”.

The Court of Appeal criticises not only the absence of any normative rules on where LFR may be deployed, but also the range of deployment being “very broad and without apparent limits.” This suggests that the breadth of an LFR power can be independently objectionable: if (for the sake of argument) a policy permitted deployment across virtually any setting, it expands the potential for interference with Convention rights in an indeterminate and potentially arbitrary way.

Conclusion

The Divisional Court’s decision in Thompson and Carlo seems superficially attractive as a matter of principle: questions of breadth seem on first sight more suited for proportionality analysis ([39]).

However, as Lord Reed observed in R (T) v Greater Manchester Police at [113]-[114], whilst the question of whether the law “gives the individual adequate protection against arbitrary interference” (i.e. the IAWL question) may have a “different focus” from whether the interference is “necessary in a democratic society” (i.e. the proportionality question), the two issues are “ inter-linked ” and will have an extent of “ overlap ”.

There is this “overlap” because, in extremis, a clearly demarcated policy can, by virtue of its very wide breadth of application, create a risk that arbitrary decisions will be made. This is the principled argument in favour of – pace the Divisional Court’s conclusions –considering the issue of breadth and sufficiency of constraints under the aegis of the IAWL assessment: a very broad discretion creates a lack of foreseeability, and thus also a greater risk of arbitrary decision-making.  This issue will benefit from further appellate consideration.

Gabriel Tan

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