Judgment Approved by the court for handing down.
R (Bridges) -v- CC South Wales & ors
Discussion
Ground 1: Sufficient Legal Framework
54.
The Divisional Court addressed what is now the subject of Ground 1 in this appeal at
[79]-[97] of its judgment, where it asked the question: “Is there a sufficient legal
framework for the use of AFR Locate?”
55.
The Divisional Court set out the general principles on this issue at [80]:
“The general principles applicable to the ‘in accordance with the
law’ standard are well-established: see generally per Lord
Sumption in Catt, above, [11]-[14]; and in Re Gallagher [2019]
2 WLR 509 at [16] – [31]. In summary, the following points
apply.
(1) The measure in question (a) must have ‘some basis in
domestic law’ and (b) must be ‘compatible with the rule of law’,
which means that it should comply with the twin requirements
of ‘accessibility’ and ‘foreseeability’ (Sunday Times v United
Kingdom (1979) 2 EHRR 245; Sliver v United Kingdom (1983)
5 EHRR 347; and Malone v United Kingdom (1984) 7 EHRR
14).
(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’.