The short answer, in our view, to this submission is that the legal framework which regulates the deployment of AFR Locate does contain safeguards which enable the proportionality of the interference with Article 8 rights to be adequately examined. In particular, the regime under the DPA 2018 enables examination of the question whether there was a proper law enforcement purpose and whether the means used were strictly necessary.
Mr Squires also submitted, in reliance on Christian Institute , that it was not sufficient that it is possible for a court or tribunal to assess the question of proportionality after the event, because a person whose Article 8 rights are interfered with may never know that the interference has taken place and should be put in a position where they are able to mount an effective challenge. It seems to us that the answer to that point is that, in the present context, as the Divisional Court found, SWP did all that could reasonably be done to bring to the public’s attention that AFR Locate was being deployed at a particular place at a particular time. As is common ground, AFR Locate was deployed in an overt manner. In any event, Christian Institute was concerned with particular legislation of the Scottish Parliament: what was said in that case cannot be taken out of context as if it were a rule of general application set out in a statute.
We must now turn to the decision of the Supreme Court in R (Catt) v Association of Chief Police Officers . That decision formed the mainstay of the submissions for SWP and the Secretary of State, as well as the reasoning of the Divisional Court.
Catt concerned the collection, retention and use of personal data about an individual on a database whose existence was not acknowledged to exist until the judicial review proceedings in that case itself. The police maintained what was described as an
“extremism database”. The claimant had been a regular attender at peace movement demonstrations since 1948. In 2005 he began participating in demonstrations of an organisation called Smash EDO, a number of which involved serious disorder and criminality. The applicant was arrested twice but never convicted of any offence. When he made a request to the police under the DPA 1998 , entries on the database concerning protests at which he had taken part were disclosed to him.
The database contained information about the claimant in the form of a single photograph, subsequently destroyed, and written references to him in a number of information reports on other people. In the majority of those reports all that was recorded about the claimant was the fact of his presence at a protest and his date of birth and address but some also described his appearance. The police undertook the collection of the data on the basis of general common law powers.
The retention and use of the data were regulated by the DPA 1998 , by the 2005 Code of Practice on the Management of Police Information issued by the Secretary of State pursuant to section 39 A of the Police Act 1996 , and by the associated administrative guidance. That framework of legal regulation was held by the Supreme Court to be sufficient. The main judgment was given by Lord Sumption JSC (with whom Lord Neuberger PSC agreed).
At [1], Lord Sumption began his judgment with the following:
“This appeal is concerned with the systematic collection and retention by police authorities of electronic data about individuals. The issue in both cases is whether the practice of the police governing retention is lawful …” (Emphasis added)
We therefore reject Mr Squires’s submission that Catt was concerned only with the retention of information and not with its collection.
Lord Sumption went on to note, in the same paragraph, that a particular feature of the data in that case was that they consisted entirely of records made of acts of the applicant which took place in public. The information had not been obtained by any intrusive technique such as bugging or DNA sampling. We accept that is a feature of the present case too.
At [7], Lord Sumption said that, at common law, the police have the power to obtain and store information for policing purposes, i.e. broadly speaking for the maintenance of public order and the prevention and detection of crime. Those powers do not authorise intrusive methods of obtaining information, such as entry on private property, but they were amply sufficient to authorise the obtaining and storage of the kind of public information in that case.
Lord Sumption considered the question of whether the interference in that case was in accordance with the law at [11]-[17]. He concluded that it was. He rejected the suggestion that the fact that the DPA was a statute of general application meant that it did not provide sufficient protection in the specific context of data obtained or stored by the police. As Lord Sumption said at [12]:
“… It lays down principles which are germane and directly applicable to police information, and contains a framework for their enforcement on the police among others through the Information Commissioner and the courts.”
Lord Sumption rejected the argument advanced on behalf of the appellant in that case that he was entitled to know precisely what data would be obtained and stored or for how long. He said that that was not realistic. “The infinite variety of situations in which issues of compliance may arise and the inevitable element of judgement involved in assessing them make complete codification impossible.” (See [14] and to similar effect [11]). Lord Sumption said that what is required is law which is “reasonably predictable, if necessary with the assistance of expert advice” but, except perhaps in the simplest cases, this does not mean that the law has to codify the answers to every possible issue which may arise. “It is enough that it lays down principles which are capable of being predictably applied to any situation.”
For the sake of completeness, it should be noted that, when the case of Catt went to the European Court of Human Rights, that Court found there to be a violation of Article 8 on the ground that the interference with the applicant’s right to respect for private life was disproportionate: see Catt v United Kingdom (2019) 69 EHRR 7, at
[128]. The Court concluded that the question of whether the interference was in accordance with the law was in that case closely related to the broader issue of whether it was necessary in a democratic society and, in view of its analysis on that question, the Court did not find it necessary to decide whether the interference was in accordance with the law: see [106]-[107].
Mr Beer QC urged upon us, on behalf of SWP, what he described as a “relativist approach”. He cited the judgment (in part dissenting) of Laws LJ in R (Wood) v Metropolitan Police Commissioner [2009] EWCA Civ 414 , [2009] 4 All ER 951, at [53], where he said:
“There is some suggestion in the cases of a relativist approach, so that the more intrusive the act complained of, the more precise and specific must be the law said to justify it.”
In his submissions in reply Mr Squires confirmed that he would accept the “relativist” approach. We too would be prepared to accept that as a matter of principle. The crucial question, as it seems to us, is the application of that principle to the particular context.