Judgment Approved by the court for handing down.
R (Bridges) -v- CC South Wales & ors
135.
First, he submits that the “benefit” side of the proportionality balance needs to take into
account not only the actual results of an operation when AFR Locate is deployed but
its anticipated benefits. Although that may well be right as a matter of principle, it
seems to us that that is a point in favour of SWP rather than the Appellant. In any event,
it does not seem to us that the Divisional Court fell into error in its approach in this
way.
136.
Secondly, Mr Squires submits that the Divisional Court erred when examining the
“cost” side of the proportionality balance by taking into account only the impact of the
AFR deployment on this particular Appellant. He submits that, as a matter of common
sense, account needs to be taken of the interference with the Article 8 rights not only of
this particular Appellant but all other members of the public who would have been at
the two venues in question when AFR Locate was deployed on 21 December 2017 and
27 March 2018.
137.
In support of that submission Mr Squires cited several dicta from the Supreme Court.
In particular, he referred to R (Tigere) v Secretary of State for Business, Innovation and
Skills [2015] UKSC 57, [2015] 1 WLR 3820, at [33], [39] and [41] in the judgment of
Lady Hale DPSC. For example, at [39], Lady Hale referred to “the impact on the
appellant and others in her position” (emphasis added). Conversely, earlier in the same
paragraph, as Mr Beer pointed out to us, she referred to “the fair balance to be struck
between the effect on the person whose rights have been infringed and the interests of
the community” (emphasis added).
138.
Mr Squires also cited the Christian Institute case, at para. 90, where the Court set out
the familiar criteria for assessing proportionality and, under the fourth question,
summarised it as being:
“Whether, balancing the severity of the measure’s effects on the
rights of the persons to whom it applies against the importance
of the objective, to the extent that the measure would contribute
to its achievement, the former outweighs the latter (i.e. whether
the impact of the rights infringement is disproportionate to the
likely benefit of the impugned measure).” (Emphasis added)
139.
It seems to us that the answer to a human rights question cannot depend on semantics,
for example the use of the singular or the plural used by a judge in one passage in a
judgment rather than in another passage. The issue has to be addressed as a matter of
legal principle.
140.
It may well be that in cases such as Tigere, where what is under challenge is a general
measure, for example a policy or even a piece of legislation, it is appropriate for the
Court to assess the balance between the impact on every person who is affected by the
measure and the interests of the community. The present challenge, however, was not
to such a general measure. The challenge was to a very specific deployment of AFR
Locate on two particular occasions and the argument made in the Statement of Facts
and Grounds was simply that this Appellant’s Article 8 rights had been violated.
141.
It is significant that, in the Statement of Facts and Grounds, at para. 2, the complaint
brought by the Appellant was formulated in the following way: