Shaun Thompson & Anor v The Commissioner of Police of The Metropolis

MRS JUSTICE FARBEY DBE: Introduction

1. On 30 April 2025, I granted permission to the Claimants to apply for judicial review in relation to the Defendant’s policy governing the deployment of Live Facial Recognition technology (“LFR”) in the Metropolitan Police District. The policy is dated 11 September 2024. As the policy itself states, it concerns the Defendant’s deployment of overt LFR technology to locate persons on a watchlist.

2. The claim was launched on 24 May 2024 in relation to an earlier policy but was stayed by order of Sheldon J pending the Defendant’s policy review. Following that review, the earlier policy was withdrawn and the September 2024 policy came into force. The claim was amended in order to deal with the September 2024 policy. The grounds of challenge relating to the earlier policy were withdrawn by consent.

3. The grounds on which permission has been granted may be summarised (with renumbering) as follows: i. Ground 1: Article 8 of the European Convention on Human Rights (“the Convention”): The Defendant’s ongoing use of LFR since the introduction of the September 2024 policy breaches the Claimants’ right to respect for private life under article 8 of the Convention because, contrary to article 8(2), it permits the deployment of LFR in a way that is not “in accordance with the law.” ii. Ground 2: Articles 10 and 11 of the Convention : The Defendant’s ongoing use of LFR since the introduction of the September 2024 policy breaches the Claimants’ rights to freedom of expression under article 10 of the Convention because, contrary to article 10(2), it permits the deployment of LFR in a way that is not “prescribed by law.” Further or alternatively, it breaches the Claimants’ rights under article 11 of the Convention (freedom of assembly and association) because it breaches the “prescribed by law” element of article 11(2). It will readily be seen that both grounds of challenge raise the question whether the September 2024 policy has the quality of law.

4. The Defendant’s case is that the September 2024 policy is lawful. The Defendant accepts, however, that the court’s scrutiny at a substantive hearing of the claim is likely to serve the public interest and, in particular, the interests of “policing by consent.” Acknowledging the importance of the issues raised, the Defendant did not resist the grant of permission.

5. When granting permission, I directed that the following interim applications, made by the Claimants, should be determined at a hearing: i. An application to rely on expert evidence, namely a report by Professor Martin Utley (“the expert report” or “the report”). ii. An application for a costs capping order under sections 88 and 89 of the Criminal Justice and Courts Act 2015 (“ the Act ”); and iii. An application to rely on Ms Carlo’s Third Witness Statement.

6. At the hearing, Mr Dan Squires KC, Mr Aidan Wills and Ms Rosalind Comyn appeared on behalf of the Claimants. Ms Anya Proops KC and Mr Raphael Hogarth appeared on behalf of the Defendant.

7. After the parties’ submissions, I announced my decision that all three applications would be allowed for reasons that I would hand down at a later date. This judgment contains my reasons. Expert evidence

8. I shall turn first to the application to admit the expert report. Professor Utley is Professor of Operational Research at University College London. The report is dated 8 October 2024.

9. In their grounds of challenge, the Claimants contend that the report applies independent mathematical modelling to the terms of the September 2024 policy in order to show the extent to which LFR is permitted. In reliance on Professor Utley’s modelling, the Claimants contend that the extent of the places where, and the people who, may be subject to the intrusion of LFR is so broad that the policy provides no meaningful restraints on the exercise of police powers. They deploy Professor Utley’s models to advance the claim that, in the absence of meaningful restraints, the policy does not have the quality of law under the Convention.

10. In writing, Ms Proops accepted that Professor Utley’s evidence is closely inter-woven into the Claimants’ pleaded grounds of challenge. Nevertheless, she submitted in writing that the claim raises issues of law that are for the court alone to decide with no need for expert evidence. She submitted in writing that the report should be excluded because it is not reasonably required to resolve the proceedings (see CPR 35.1).

11. I put to Ms Proops that I had granted permission to apply for judicial review on grounds that relied on Professor Utley’s evidence. I expressed concern that any requirement on the Claimants to forego reliance on expert evidence would undermine the scope of the grant of permission, which the Defendant had not resisted. After reflecting on the court’s concerns, Ms Proops diverged from her written position and did not submit orally that the report should be excluded. I will order that the report be considered de bene esse at the hearing of the claim. Costs capping order The parties’ positions

12. Following helpful correspondence between the parties, the issues relating to a costs capping order were narrow. There was no dispute about the meaning of any of the familiar criteria and factors that govern the imposition and terms of such orders under sections 88 and 89 of the Act . It was not in dispute that the court should impose reciprocal costs caps. The only question for me to resolve was the level of the cap on each side.

13. The Claimants sought an order that their adverse costs liability should be capped at £40,900 with the Defendant’s liability capped at £107,700. The Defendant accepted that the level of caps was a matter for the court’s discretion but invited the court to impose parity. Ms Proops submitted that both sides’ costs liability should be capped at £107,700. The evidence

14. The Claimants (whether individually or jointly) cannot afford to fund the litigation. The Defendant does not expect either of them to do so. However, Ms Carlo is employed as the Director of Big Brother Watch (“BBW”), a non-profit organisation that campaigns on (among other things) the use of LFR by police.

15. As set out in Ms Carlo’s witness statements, BBW supports the litigation and (at the time of Ms Carlo’s Fourth Witness Statement) it had raised £24,409 from crowdfunding (£23,299 after the fees of the crowdfunding platform are deducted). In addition, BBW has secured an offer of £15,000 from the organisation Law for Change. These combined sources of funding, together with a future fundraising effort, formed the basis of the Claimants’ proposal that their costs liability be capped at £40,900. The Claimants accepted that such a sum could be obtained to meet any costs order made against them.

16. The Claimants have said in witness statements that they do not have access to any other funding to meet an adverse costs award. I understood their position by the hearing to be that, unless their costs liability were capped at £40,900, they would withdraw the claim.

17. In addition to the Claimants’ evidence, the court has been provided with evidence from BBW. The most recent evidence comes from Lord Paul Strasburger who is the Chair of BBW’s Board of Directors. He has provided a detailed witness statement about BBW’s income and outgoings. He confirms that BBW has agreed to indemnify both Claimants against the risk of an adverse costs award up to £35,900 (which has, since his statement was signed, risen to £40,900). He sets out why BBW should not be exposed to £107,700.

18. Lord Strasburger explains that BBW’s funds fall into three parts: restricted funds, unrestricted funds and reserves. Restricted funds derive from project-specific grants. Plainly, BBW cannot use grants awarded for some other specific purpose to fund the present claim. I discount them as a source of litigation funding and need say no more about these funds.

19. BBW’s unrestricted funds derive from public donations. They are used to cover the organisation’s core operational costs such as staff salaries, office space, bills, and IT costs. As at the date of Lord Strasburger’s statement (4 July 2025), BBW held £235,221 in unrestricted funds which represents about four and a half months of the organisation’s running costs.

20. BBW’s reserves are a cushion against unexpected events. As at the date of Lord Strasburger’s witness statement, the level of reserves was £262,699 which is below the minimum six-month cushion required by the Board.

21. Lord Strasburger says that BBW is “currently projecting a significant financial deficit for 2025.” The organisation’s fundraising projections for the year are less than the expected costs of its staff and significantly less than BBW’s overall projected costs for the year. Lord Strasburger states that there is a real prospect that the organisation will have to use its reserves to cover its core operational costs and that there is “absolutely no margin for the organisation to absorb any additional costs beyond its core operational costs.” He says that the only funds that BBW can contribute to the present claim must come from separate and bespoke fundraising. A contribution from any other funds is not viable.

22. Lord Strasburger states: “From a governance perspective, it would be completely irresponsible for the [BBW] directors to permit [its] reserves to be deployed to meet an adverse costs award and further depleted. It would jeopardise the very existence of the organisation. The Board could not properly authorise that.”

23. In a witness statement dealing with the proposed cap of £107,700 on the Defendant’s costs liability, Mr Jules Carey (the Claimants’ solicitor) explains that, should such a cap be imposed, the Claimants’ legal representatives would be working at significantly discounted rates. I do not need to set out what solicitors and Counsel charge before any discount. The parties’ submissions

24. On behalf of the Claimants, Mr Squires submitted that there was no requirement for the respective caps to mirror one another. The statutory requirement is for reciprocal rather than identical limits to costs liability ( section 89(2) of the Act ). The limits should reflect the parties’ financial resources ( section 89(1) (a) of the Act ). He submitted that the Claimants could not affect the approach of the BBW Board of Directors to financial prudence.

25. Mr Squires emphasised the importance of legal representatives being financially able to take on public interest cases. He pointed out that, under agreed funding arrangements, the Claimants’ lawyers will not be paid at all if the Claimants lose whereas the Defendant’s lawyers will be paid irrespective of the outcome. He emphasised that, if the Claimants succeed, their Counsel team will, on a £107,700 cap, be paid at drastically reduced rates (approximately one tenth of their standard hourly rates) with Second Junior Counsel being paid at little above the London Living Wage.

26. Mr Squires submitted that the Defendant’s proposal of identical caps would act as a disincentive to lawyers taking cases in the public interest and would inhibit access to justice. He submitted that, in the absence of a costs capping order in the terms proposed by the Claimants, it would be reasonable for the Claimants to withdraw the claim ( section 88(6) (b) and (c) of the Act ).

27. As I have foreshadowed, Ms Proops contended that there should be identical caps of £107,700. She made three principal submissions in support of this position.

28. First, she submitted that BBW was effectively driving the litigation and so should expect to deploy at least some of its own funds to pay for it. On the evidence before the court, the suggested £40,900 cap on the Claimants’ costs liability would be paid entirely from funds raised for this particular case and would leave BBW’s own funds entirely untouched. Ms Proops submitted that such a situation would enable the Claimants to mount their claim without any meaningful financial constraints. Their lack of concern for costs had already been demonstrated by their resort to expert evidence which would require a costly response from the Defendant.

29. Secondly, Ms Proops submitted that the Claimants’ proposal represented an undue burden on the public purse. She relied on the judgment in Good Law Project v Secretary of State for Health and Social Care [2021] EWHC 997 (TCC) . In that case, O’Farrell J made the observation, at para 22, that the public purse is not a “bottomless pit” and that the court should not assume that a public authority will always be able to fund not only its own costs but also those of its opponents without any concerns.

30. Thirdly, Ms Proops submitted that BBW is not impecunious and has the funds to afford much more than the £40,900 offered in respect of the Claimants’ costs liability. Cap on Claimants’ costs liability

31. I turn to my conclusions on the appropriate level of cap on the Claimants’ costs liability. By virtue of section 89(1) (a) of the Act , the court must have regard to the financial resources of the parties including those of any person who provides, or may provide, financial support. In determining the maximum costs liability of the Claimants, I take into account the financial resources of BBW.

32. I agree with Ms Proops that the Claimants – supported by BBW – have initiated litigation in the High Court against a public authority whose resources are not a bottomless pit. The deployment of funds for this litigation inevitably has an impact on the resources available to the Defendant for other cases, or for frontline policing to protect those living and working in the Metropolitan Police District. A cap of £40,900 for the Claimants would be a heavy burden on the public purse if the Defendant were successful in defending the claim and the Claimants were ordered to pay costs.

33. The court is not limited to the consideration of funds available from crowdfunding or specific donations but can consider the financial resources of BBW more widely. Looking at the wider picture, the best evidence is that BBW has unrestricted funds of over £235,000. It spends about £2,500 per month from unrestricted funds on legal fees for its other campaigning work, which may or may not come to court. Mr Squires told me on instructions that this money is raised by other specific fundraising efforts but the evidence in Lord Strasburger’s witness statement is that the money for lawyers comes from funds that are not restricted in what they can be used for. At any rate, I was not provided with an adequate explanation as to why some of the funds currently used for other legal work should not be put towards any costs order made against the Claimants.

34. The use of some of BBW’s unrestricted funds to finance the present claim may be sub-optimal for BBW. However, any organisation will at times have to make strategic choices about its spending priorities. It is not unreasonable to expect BBW to take strategic decisions about what it will and will not prioritise. The court can expect that the present claim for judicial review – with its draw on both Police and expert resources – be prioritised.

35. On the evidence before me, BBW has over £262,000 in its reserves. I accept that good governance requires the maintenance of healthy reserves. I accept too that reserves should not lightly be depleted. However, support for High Court litigation is not a light matter. It is not unreasonable to expect BBW to take the risk of a modest dip in its reserves to cater for the eventuality that the Claimants are ordered to pay costs.

36. The court can expect BBW’s approach to financial prudence to accommodate a High Court costs order in litigation which it has chosen to drive forward. To the extent that Lord Strasburger suggests that it would be irresponsible to earmark even a modest draw on reserves for that eventuality, he goes too far.

37. For these reasons, the Claimants can reasonably be expected to seek from BBW some further, modest sum. BBW can reasonably be expected to provide a further modest sum from its unrestricted funds and reserves.

38. In all the circumstances of the case, I have concluded that a total cap on the Claimants’ costs liability of £70,000 strikes an appropriate balance between the comparative resources of the parties. It strikes a fair and just balance between the competing interests of access to justice for the Claimants and the call on public funds that will be needed to defend the claim.

39. By virtue of section 88(6) (b) and (c) of the Act , I must consider not only whether the Claimants would withdraw the claim on a £70,000 cap but also whether it would be reasonable for them to do so. Given that £40,900 can be achieved by fundraising, BBW would need to divert less than £30,000 from the nearly £500,000 that it has in unrestricted and reserve funds. BBW can reasonably be expected to take such a course. In these circumstances, I am not satisfied that it would be reasonable for the Claimants to withdraw the claim. The cap on the Claimants’ costs liability will therefore be £70,000. Cap on Defendant’s costs liability

40. I agree with Mr Squires that parity between the parties is neither necessary nor fair in the present case. The cap on the Defendant’s costs liability should be higher than £70,000. In the interests of the efficient and focused progress of the litigation, the difference should be clear but moderate. I shall order a reciprocal cap on the Defendant’s costs liability of £100,000.

41. The court appreciates the hard work of the Claimants’ solicitors. The court is also grateful to the three members of the Claimants’ counsel team (all of whom appeared at a short procedural hearing). I have nevertheless concluded that the discount to their fees does not defeat the public interest in limiting the level of the Defendant’s cap to this amount.

42. To this extent, the Claimants’ cost capping application is allowed. Ms Carlo’s Third Witness Statement

43. Ms Carlo’s Third Witness Statement sets out her views of the policy and its effects. The Defendant properly accepted that the Witness Statement should be considered by the court de bene esse and I shall allow the Claimants’ application to rely on it to this extent. Its relevance to the issues in the claim, and the weight to be attributed to the evidence contained within it, will be for the court to determine in due course. Conclusion

44. In conclusion: i. The expert report will be considered de bene esse. ii. The application for a costs capping order is allowed. Costs recoverable from the Claimant shall be capped at £70,000. Costs recoverable from the Defendant shall be capped at £100,000. iii. Ms Carlo’s Third Witness Statement will be considered de bene esse.

45. Counsel should provide an agreed draft order for my approval, which should reflect the terms of this judgment and include the further case management directions that I made at the hearing for the progress of the claim. Failing an agreed draft, the case will be listed for a short hearing.