Judgment Approved by the court for handing down.
R (Bridges) -v- CC South Wales & ors
requirements of EU law: see e.g. [117], which cited the specific terms of Directive
2002/58, which expressly refers to a measure having to “be subject to adequate
safeguards”. Thirdly, that case concerned covert surveillance. It is common ground
that the present case, in contrast, is concerned with overt surveillance.
65.
Nor do we accept the Appellant’s suggested analogy with the retention of fingerprints
or DNA samples, which was considered by the European Court of Human Rights in S
v United Kingdom (2009) 48 EHRR 50. Although that case is often cited (and was cited
before us) in relation to the requirement that interference with Article 8 rights must be
in accordance with the law, it should be noted that the European Court of Human Rights
in fact declined to answer that question: see [95]-[99] of the judgment. This was
because it considered that the questions raised in that context were closely related to
the broader issue of whether the interference was necessary in a democratic society and,
in view of its analysis of that issue at [105]-[126], it was not necessary to decide whether
the wording of section 64 of the Police and Criminal Evidence Act 1984 was compatible
with the “quality of law” requirements of Article 8(2).
66.
When one turns to the Court’s assessment of the proportionality issue in that case, it is
clear, in our view, that its reasoning was heavily influenced by the particular sort of
interference which was in issue. That case concerned the retention of fingerprints and
DNA records. Furthermore, the legislation in issue permitted that retention even in the
case of people such as the applicants who, having been arrested, had been acquitted and
perhaps never even charged with an offence. The legislation permitted the blanket and
indiscriminate retention of such personal data. There were no time limits and no
restriction by reference to the type of offence. We consider, like the Divisional Court,
that the context of that case is far removed from that of the present case.
67.
On behalf of the Appellant Mr Squires also placed reliance on the judgment of Lord
Reed JSC in R (T) v Chief Constable of Greater Manchester and Others [2014] UKSC
35, [2015] AC 49, at [114], where he said:
“… in order for the interference to be ‘in accordance with the
law’, there must be safeguards which have the effect of enabling
the proportionality of the interference to be adequately
examined. Whether the interference in a given case was in fact
proportionate is a separate question.”
68.
A similar point was made again by Lord Reed in Christian Institute v Lord Advocate
[2016] UKSC 51; [2017] SC (UKSC) 29, at [80], where he cited his earlier judgment
in T.
69.
The short answer, in our view, to this submission is that the legal framework which
regulates the deployment of AFR Locate does contain safeguards which enable the
proportionality of the interference with Article 8 rights to be adequately examined. In
particular, the regime under the DPA 2018 enables examination of the question whether
there was a proper law enforcement purpose and whether the means used were strictly
necessary.
70.
Mr Squires also submitted, in reliance on Christian Institute, that it was not sufficient
that it is possible for a court or tribunal to assess the question of proportionality after