Judgment Approved by the court for handing down.
R (Bridges) -v- CC South Wales & ors
(5) The rules governing the scope and application of measures
need not be statutory, provided that they operate within a
framework of law and that there are effective means of enforcing
them (per Lord Sumption in Catt at [11]).
(6) The requirement for reasonable predictability does not mean
that the law has to codify answers to every possible issue (per
Lord Sumption in Catt at [11]).”
56.
There was no material dispute between the parties before this Court that that was an
accurate statement of the relevant principles. In applying those principles to the present
context, the Divisional Court concluded as follows, at [84]:
“In our view, there is a clear and sufficient legal framework
governing whether, when and how AFR Locate may be used. …
The legal framework within which AFR Locate operates
comprises three elements or layers (in addition to the common
law), namely: (a) primary legislation; (b) secondary legislative
instruments in the form of codes of practice issued under primary
legislation; and (c) SWP's own local policies. Each element
provides legally enforceable standards. When these elements are
considered collectively against the backdrop of the common law,
the use of AFR Locate by SWP is sufficiently foreseeable and
accessible for the purpose of the ‘in accordance with the law’
standard.”
57.
The Divisional Court considered the legislation and policy documents and concluded
as follows, at [96]-[97]:
“96. Drawing these matters together, the cumulative effect of
(a) the provisions of the DPA, (b) the Surveillance Camera Code
and (c) SWP's own policy documents, is that the infringement of
Article 8(1) rights which is consequent on SWP's use of AFR
Locate, occurs within a legal framework that is sufficient to
satisfy the ‘in accordance with the law’ requirement in Article
8(2). The answer to the primary submissions of the Claimant and
the Information Commissioner, is that it is neither necessary nor
practical for legislation to define the precise circumstances in
which AFR Locate may be used, e.g. to the extent of identifying
precisely which offences might justify inclusion as a subject of
interest or precisely what the sensitivity settings should be (c.f.
Lord Sumption in Catt at [14]). Taking these matters as
examples, the Data Protection Principles provide sufficient
regulatory control to avoid arbitrary interferences with Article 8
rights. The legal framework that we have summarised does
provide a level of certainty and foreseeability that is sufficient to
satisfy the tenets of Article 8(2). It provides clear legal standards
to which SWP will be held. As to the content of local policies,
we take account that AFR Locate is still in a trial period. The