Judgment Approved by the court for handing down.
120.
R (Bridges) -v- CC South Wales & ors
The guidance does address the question of images of persons on a watchlist at paras.
14.1-14.3. We note, however, that the guidance does not contain any requirements as
to the content of local police policies as to who can be put on a watchlist. Nor does it
contain any guidance as to what local policies should contain as to where AFR can be
deployed. Those, as we have said, are the two critical defects in the current legal
framework.
SWP’s local policies
121.
As we have said, in principle a police force’s local policies can constitute relevant “law”
in the present context, provided they are published. The critical question, in our view,
is how much discretion the policies in this case leave to the police, particularly in
relation to the question who can be put on a watchlist and the question of the location
where AFR Locate can be deployed.
122.
When asked about these questions at the hearing Mr Beer helpfully drew our attention
to a number of documents.
123.
First, Mr Beer referred to the Privacy Impact Assessment produced by SWP. At para.
1.9, in addressing the question whether there is a specific business purpose that requires
the use of the information, the answer included the following in relation to those on the
watchlist:
“These individuals could be persons wanted on suspicion for an
offence, wanted on warrant, vulnerable persons and other
persons where intelligence is required.”
124.
While we can readily understand that the first three of those categories are objective,
the final category is not. In effect it could cover anyone who is of interest to the police.
In our judgement, that leaves too broad a discretion vested in the individual police
officer to decide who should go onto the watchlist.
125.
Matters are not assisted by the fact that the next document to which our attention was
drawn, the DPIA produced under the DPA 2018, does not include that last category (of
intelligence purposes) at all. That document (at page 5) says that the purpose of AFR
is to identify and locate:
(1) Individuals suspected of criminality and who are wanted by the courts and police.
(2) Individuals who may pose a risk to themselves and others.
(3) Individuals who may be vulnerable.
126.
Mr Beer also drew our attention to what is set out in page 16 of that same document.
That, however, seems to us not to be material in the present appeal, since that concerns
the application of the Regulation of Investigatory Powers Act 2000. As is common
ground, covert surveillance is governed by that legislation and would require authority
under the system of warrants created by that Act. Overt surveillance, in contrast, such
as AFR Locate (as it was carried out by SWP on the facts of the present case) does not
require such authorisation.