Judgment Approved by the court for handing down
R (Bridges) v CCSWP and SSHD
to which SWP will be held. As to the content of local policies, we take
account that AFR Locate is still in a trial period. The content of SWP’s
policies may be altered and improved over the course of this trial. The
possibility (or even the likelihood) of such improvement is not evidence of
present deficiency.
97.
Finally, under this heading, we refer to the comments by the Home Secretary
(in her Biometrics Strategy) as to the legal framework within which AFR
Locate presently operates (see above, at paragraph 67). In our view, when
considered in context, these comments should be considered as amounting to
pragmatic recognition that (a) steps could, and perhaps should, be taken
further to codify the relevant legal standards; and (b) the future development
of AFR technology is likely to require periodic re-evaluation of the sufficiency
of the legal regime. We respectfully endorse both sentiments, in particular the
latter. For the reasons we have set out already, we do not consider that the
legal framework is at present out of kilter; yet this will inevitably have to be a
matter that is subject to periodic review in the future.
(3)
Does SWP’s use of AFR Locate satisfy the four-stage test in Bank Mellat?
Bank Mellat test
98.
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
(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]).
99.
It is common ground that there is no issue as regards the first two criteria,
namely (1) that SWP uses AFR Locate for a legitimate aim, that the legitimate
aim is sufficiently important to justify interfering with the Claimant’s rights
under Article 8, and (2) that SWP’s use of AFR Locate is rationally connected
to the legitimate aim. The remaining issues are (3) whether a less intrusive
measure could have been used without unacceptably compromising the
objective, and (4) whether a fair balance has been struck.