“Nevertheless, we are satisfied that the use of AFR Locate on 21 st December 2017 (Queen's Street) and 27 th 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.”
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.
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.
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.
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).
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)
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.
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.
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:
“… On at least two occasions, in December 2017 and March 2018, the Claimant was targeted by the Defendant’s use of AFR. Through this claim he challenges: (i) the unlawful use of this technology against him on both occasions, and (ii) the Defendant’s ongoing use of AFR in public places in the police area in which he resides, giving rise to a clear risk of the technology again being used against him .” (Emphasis added)
It is clear therefore that the substance of the complaint being made by the Appellant in this claim for judicial review was the impact of the use of AFR by SWP against him, not anyone else. This point was developed at paras. 17-22 of the Statement of Facts and Grounds, which set out more detail about the events of 21 December 2017 and 27 March 2018. The point was summarised as follows at the beginning of para. 17:
“It is the Claimant’s case that he has twice been the subject of the Defendant’s use of AFR technology …”
Further, and in any event, we accept the submission made by Mr Beer on behalf of SWP that the impact on each of the other members of the public who were in an analogous situation to this Appellant on the two occasions with which we are concerned for present purposes (in December 2017 and March 2018) was as negligible as the impact on the Appellant’s Article 8 rights. An impact that has very little weight cannot become weightier simply because other people were also affected. It is not a question of simple multiplication. The balancing exercise which the principle of proportionality requires is not a mathematical one; it is an exercise which calls for judgement.
For those reasons we would reject Ground 2.
Ground 3: Compliance with section 64 of the DPA 2018
This ground of appeal is limited to two alleged deficiencies in the DPIA. The first is that there was a material error of law “concerning the non-engagement of Article 8” of the Convention. The second is that there was a material error of law concerning “the processing of the (biometric) personal data of persons whose facial biometrics are captured by AFR but who are not on police watch lists used for AFR”.
Mr Squires made no oral submissions on this ground of appeal and relied upon his skeleton argument. Mr Facenna both relied on his skeleton argument and advanced oral submissions in support of this ground of appeal.