“A power on which there are insufficient legal constraints does not become legal simply because those who may have resort to it exercise self-restraint. It is the potential reach of the power rather than its actual use by which its legality must be judged.” (Emphasis added)
Apart from the fact that Lord Kerr’s was a dissenting judgment, there is always a danger of reading what a judge says in a particular case as if it were a provision of general application in a statute. We do not accept that, in the present case, it is either necessary or helpful to consider hypothetical scenarios which may arise in the future, as Mr Squires urged us to do. We consider that what must be examined is the particular interference with Article 8 rights which has arisen in this present case and in particular whether that interference is in accordance with the law. Whether other uses of police power in other contexts will be lawful in the future will be a matter to be considered if the facts of such a case arise in practice. This is consistent with the approach of the European Court of Human Rights, which usually asks whether there has been a violation of an applicant’s rights on the particular facts of the case before it. As Lord Bingham of Cornhill said in Brown v Stott [2003] 1 AC 681, at 704:
“The case law shows that the court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree.”
We also accept the submission made in particular by Mr Sharland QC, on behalf of the Surveillance Camera Commissioner, that what is in issue in this appeal is the local deployment of AFR within the area of SWP. This appeal is not concerned with possible use of AFR in the future on a national basis. As Mr Sharland submits, it is well-established in the caselaw of the European Court of Human Rights that local policies can be relevant to satisfy the requirement of “in accordance with the law”. Such policies do not necessarily have to be at a national level. He cited the decision of the European Court of Human Rights in Munjaz v United Kingdom [2012] MHLR 351, at [83]-[95]. In that case what was in issue was the policy on seclusion of patients at a “special hospital”, Ashworth, which was a high security hospital. The European Court of Human Rights concluded that the hospital’s policy of seclusion did give sufficient indication of the scope of discretion which the hospital enjoyed and that the manner of that discretion was exercised with sufficient clarity to protect the applicant against arbitrary interference with his Article 8 rights.
Particular reliance was placed by Mr Facenna QC, on behalf of the Information Commissioner, on the decision of the Court of Justice of the European Union in Tele2 Sverige AB v Post-och telestyrelsen and R (Watson) v Secretary of State for the Home Department (joint cases C-203/15 and C-698/15) [2017] QB 771. That case, so far as it concerned the UK, concerned the compatibility of the Data Retention and Investigatory Powers Act 2014 with EU law, including the Charter of Fundamental Rights. Article 7 of that Charter contains a guarantee which is similar to Article 8 of the Convention. The legislation empowered the Secretary of State to issue a
“retention notice” on a public telecommunications operator to retain “relevant communications data” if the Secretary of State considered that the requirement was necessary and proportionate for one or more of the purposes specified in the legislation. This in effect permitted the large scale and indiscriminate retention of electronic communications data of members of the public. Although this did not include the content of communications, it did include much other personal data, sometimes called “metadata”: it would be possible, for example, to trace and identify the source of a communication; the date, time, duration and type of communication; and the location of mobile communications equipment (see [98]).
The Court of Justice laid down a series of strict and detailed conditions for the compatibility of such intrusive legislation with EU law: see [102]-[122]. For example, at [120], the Court said that what was required in that context, except in cases of urgency, was “a prior review carried out either by a court or by an independent administrative body”.
We consider, however, that the Court’s reasoning was principally directed to the question of proportionality rather than the requirement that an interference with rights must be in accordance with the law. Secondly, it was concerned with the specific requirements of EU law: see e.g. [117], which cited the specific terms of Directive 2002/58, which expressly refers to a measure having to “be subject to adequate safeguards”. Thirdly, that case concerned covert surveillance. It is common ground that the present case, in contrast, is concerned with overt surveillance.
Nor do we accept the Appellant’s suggested analogy with the retention of fingerprints or DNA samples, which was considered by the European Court of Human Rights in S v United Kingdom (2009) 48 EHRR 50. Although that case is often cited (and was cited before us) in relation to the requirement that interference with Article 8 rights must be in accordance with the law, it should be noted that the European Court of Human Rights in fact declined to answer that question: see [95]-[99] of the judgment. This was because it considered that the questions raised in that context were closely related to the broader issue of whether the interference was necessary in a democratic society and, in view of its analysis of that issue at [105]-[126], it was not necessary to decide whether the wording of section 64 of the Police and Criminal Evidence Act 1984 was compatible with the “quality of law” requirements of Article 8(2).
When one turns to the Court’s assessment of the proportionality issue in that case, it is clear, in our view, that its reasoning was heavily influenced by the particular sort of interference which was in issue. That case concerned the retention of fingerprints and DNA records. Furthermore, the legislation in issue permitted that retention even in the case of people such as the applicants who, having been arrested, had been acquitted and perhaps never even charged with an offence. The legislation permitted the blanket and indiscriminate retention of such personal data. There were no time limits and no restriction by reference to the type of offence. We consider, like the Divisional Court, that the context of that case is far removed from that of the present case.
On behalf of the Appellant Mr Squires also placed reliance on the judgment of Lord Reed JSC in R (T) v Chief Constable of Greater Manchester and Others [2014] UKSC 35 , [2015] AC 49, at [114], where he said:
“… in order for the interference to be ‘in accordance with the law’, there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined. Whether the interference in a given case was in fact proportionate is a separate question.”
A similar point was made again by Lord Reed in Christian Institute v Lord Advocate [2016] UKSC 51 ; [2017] SC (UKSC) 29, at [80], where he cited his earlier judgment in T .