Judgment Approved by the court for handing down.
R (Bridges) -v- CC South Wales & ors
Division Inspector and be detailed within the AFR Locate
Deployment Report.”
129.
Again, it seems to us, that does not govern the question of who can be put on a watchlist
in the first place.
130.
So far as the location of deployment is concerned, Mr Beer really was not able to draw
our attention to anything which specifies where AFR Locate may be deployed. He
drew our attention to the (unnumbered) paragraphs 7-9 and 11 of the Standard
Operating Procedure, again at page 6 of that document. He also drew our attention to
page 21 of the DPIA, where it is said:
“As we are testing the technology South Wales Police have
deployed in all event types ranging from high volume music and
sporting events to indoor arenas.”
That simply underlines the concern that we have in this context. First, it is a descriptive
statement and does not lay down any normative requirement as to where deployment
can properly take place. Secondly, the range is very broad and without apparent limits.
It is not said, for example, that the location must be one at which it is thought on
reasonable grounds that people on the watchlist will be present. These documents leave
the question of the location simply to the discretion of individual police officers, even
if they would have to be of a certain rank (a “Silver Commander”). For the above
reasons this appeal will be allowed on Ground 1.
Ground 2: Proportionality
131.
Strictly speaking, it is unnecessary for this Court to consider Ground 2 in this appeal,
which relates to the question of proportionality, since, if (as we have held) the
interference with the Appellant’s Article 8 rights was not in accordance with the law,
one never reaches the stage of asking whether that interference was proportionate.
Nevertheless, as we heard full argument on Ground 2, we will address it.
132.
The Divisional Court addressed the question of proportionality at [98]-[108]. It set out
the relevant principles for the objective justification of a limitation on a Convention
right at [98] by setting out four questions which are now very familiar:
“If an interference with Article 8(1) rights is to be justified it
must meet the four-part test in Bank Mellat v Her Majesty's
Treasury (No 2) [2014] AC 700, namely:
(1) whether the objective of the measure pursued is sufficiently
important to justify the limitation of a fundamental right;
(2) whether it is rationally connected to the objective;
(3) whether a less intrusive measure could have been used
without unacceptably compromising the objective; and