Judgment Approved by the court for handing down.
R (Bridges) -v- CC South Wales & ors
(4) whether, having regard to these matters and to the severity of
the consequences, a fair balance has been struck between the
rights of the individual and the interests of the community.
(See per Lord Sumption at [20]; and especially on question (3),
per Lord Reed at [70] to [71] and [75] to [76]).”
133.
As before the Divisional Court, so before this Court there is no dispute as regards the
first two of those questions. Mr Squires did not make any submissions before us in
relation to the third question either. What he did submit was that the Divisional Court
fell into error in answering the fourth question, whether a fair balance has been struck
between the rights of the individual and the interests of the community. The Court
answered that question at [101] as follows:
“Nevertheless, we are satisfied that the use of AFR Locate on
21st December 2017 (Queen's Street) and 27th March 2018
(Motorpoint Arena) struck a fair balance and was not
disproportionate. AFR Locate was deployed in an open and
transparent way, with significant public engagement. On each
occasion, it was used for a limited time, and covered a limited
footprint. It was deployed for the specific and limited purpose of
seeking to identify particular individuals (not including the
Claimant) who may have been in the area and whose presence
was of justifiable interest to the police. On the former occasion
it led to two arrests. On the latter occasion it identified a person
who had made a bomb threat at the very same event the previous
year and who had been subject to a (suspended) custodial
sentence. On neither occasion did it lead to a disproportionate
interference with anybody's Article 8 rights. Nobody was
wrongly arrested. Nobody complained as to their treatment (save
for the Claimant on a point of principle). Any interference with
the Claimant's Article 8 rights would have been very limited. The
interference would be limited to the near instantaneous
algorithmic processing and discarding of the Claimant's
biometric data. No personal information relating to the Claimant
would have been available to any police officer, or to any human
agent. No data would be retained. There was no attempt to
identify the Claimant. He was not spoken to by any police
officer.”
134.
Mr Squires accepts that, on an appeal, it is not the function of this Court simply to make
its own assessment of whether an interference with a Convention right was
proportionate. The question for this Court is whether the assessment made by the
Divisional Court was “wrong”, bearing in mind that this appeal consists of a review
rather than a re-hearing. Mr Squires submits that the Divisional Court fell into error as
a matter of approach when addressing the question of proportionality. He makes two
main submissions on behalf of the Appellant.