Judgment Approved by the court for handing down.
R (Bridges) -v- CC South Wales & ors
European Court of Human Rights, which usually asks whether there has been a
violation of an applicant’s rights on the particular facts of the case before it. As Lord
Bingham of Cornhill said in Brown v Stott [2003] 1 AC 681, at 704:
“The case law shows that the court has paid very close attention to the
facts of particular cases coming before it, giving effect to factual
differences and recognising differences of degree.”
61.
We also accept the submission made in particular by Mr Sharland QC, on behalf of the
Surveillance Camera Commissioner, that what is in issue in this appeal is the local
deployment of AFR within the area of SWP. This appeal is not concerned with possible
use of AFR in the future on a national basis. As Mr Sharland submits, it is wellestablished in the caselaw of the European Court of Human Rights that local policies
can be relevant to satisfy the requirement of “in accordance with the law”. Such policies
do not necessarily have to be at a national level. He cited the decision of the European
Court of Human Rights in Munjaz v United Kingdom [2012] MHLR 351, at [83]-[95].
In that case what was in issue was the policy on seclusion of patients at a “special
hospital”, Ashworth, which was a high security hospital. The European Court of
Human Rights concluded that the hospital’s policy of seclusion did give sufficient
indication of the scope of discretion which the hospital enjoyed and that the manner of
that discretion was exercised with sufficient clarity to protect the applicant against
arbitrary interference with his Article 8 rights.
62.
Particular reliance was placed by Mr Facenna QC, on behalf of the Information
Commissioner, on the decision of the Court of Justice of the European Union in Tele2
Sverige AB v Post-och telestyrelsen and R (Watson) v Secretary of State for the Home
Department (joint cases C-203/15 and C-698/15) [2017] QB 771. That case, so far as
it concerned the UK, concerned the compatibility of the Data Retention and
Investigatory Powers Act 2014 with EU law, including the Charter of Fundamental
Rights. Article 7 of that Charter contains a guarantee which is similar to Article 8 of
the Convention. The legislation empowered the Secretary of State to issue a “retention
notice” on a public telecommunications operator to retain “relevant communications
data” if the Secretary of State considered that the requirement was necessary and
proportionate for one or more of the purposes specified in the legislation. This in effect
permitted the large scale and indiscriminate retention of electronic communications
data of members of the public. Although this did not include the content of
communications, it did include much other personal data, sometimes called “metadata”:
it would be possible, for example, to trace and identify the source of a communication;
the date, time, duration and type of communication; and the location of mobile
communications equipment (see [98]).
63.
The Court of Justice laid down a series of strict and detailed conditions for the
compatibility of such intrusive legislation with EU law: see [102]-[122]. For example,
at [120], the Court said that what was required in that context, except in cases of
urgency, was “a prior review carried out either by a court or by an independent
administrative body”.
64.
We consider, however, that the Court’s reasoning was principally directed to the
question of proportionality rather than the requirement that an interference with rights
must be in accordance with the law. Secondly, it was concerned with the specific