Judgment Approved by the court for handing down.
R (Bridges) -v- CC South Wales & ors
“There is some suggestion in the cases of a relativist approach,
so that the more intrusive the act complained of, the more precise
and specific must be the law said to justify it.”
83.
In his submissions in reply Mr Squires confirmed that he would accept the “relativist”
approach. We too would be prepared to accept that as a matter of principle. The crucial
question, as it seems to us, is the application of that principle to the particular context.
84.
We are conscious that the police have long used techniques to gather information which
are undoubtedly in accordance with the law. For example, they have the power to
observe what they see in a public place, to record that information and to retain it in
their files. Just as the human eye can observe a person in a public place, so the police
have the power to take photographs of people.
85.
We do not, however, accept the submission on behalf of SWP that the present context
is analogous to the taking of photographs or the use of CCTV cameras. The following
features of the present case lead us to conclude that it falls somewhere in between the
two poles on a spectrum which are represented by S v UK on the one hand and Catt on
the other.
86.
First, AFR is a novel technology.
87.
Secondly, it involves the capturing of the images and processing of digital information
of a large number of members of the public, in circumstances in which it is accepted
that the vast majority of them will be of no interest whatsoever to the police.
88.
Thirdly, it is acknowledged by all concerned that this is “sensitive” personal data,
within the meaning of the DPA 2018. That Act in turn reflects EU legislation. This
represents an institutional recognition of the sensitivity of the data concerned, a feature
which is not present for example for ordinary photographs.
89.
Fourthly, the data is processed in an automated way.
90.
We accept a large part of the analysis of the Divisional Court but not all of it. We
consider that the legal framework which the Divisional Court regarded as being
sufficient to constitute the “law” for the purposes of Article 8(2) is on further analysis
insufficient.
91.
The fundamental deficiencies, as we see it, in the legal framework currently in place
relate to two areas of concern. The first is what was called the “who question” at the
hearing before us. The second is the “where question”. In relation to both of those
questions too much discretion is currently left to individual police officers. It is not
clear who can be placed on the watchlist nor is it clear that there are any criteria for
determining where AFR can be deployed.
92.
The DPA 2018 and the relevant policies in substance require only that there has to be a
proper law enforcement purpose. The use of the measure must then be considered to
be necessary to achieve that purpose.
93.
We would also emphasise that one of the elements of the system as operated in South
Wales which is crucial, in our view, is that the data of anyone where there is no match