A test of proportionality

Following the introduction of the Human Rights Act 1998, the term proportionality was imported into policing vocabulary to the extent that it is now accepted parlance, as Simon McKay, solicitor advocate, of McKay Law Solicitors & Advocates of Leeds, explains.

The term proportionality does not expressly appear within the text of any of the Convention rights. It is a defining characteristic, “inherent in the whole of the Convention” and is fundamental to the way in which the European Court of Human Rights approaches the protection of human rights.

It is at least anecdotally considered to be a test that can be answered formulaically: the level of intrusiveness was proportionate to the evidential or intelligence dividend likely to be yielded as a consequence, or words to that effect. This is a dangerous approach (indeed any use of stock phraseology is to be deprecated). Proportionality goes to the very core of operational planning, so an understanding of it is as essential as its proper application in every case.

Any interference with a Convention right must be proportionate. This flows from the use of the words in Article 8(2) and the other qualified rights “necessary in a democratic society”. It is a form of justification that Strasbourg has distilled into a number of factors. Starmer and Byrne summarised them in the following way: “In making [the assessment of proportionality], the following factors are relevant: (a) whether relevant and sufficient reasons have been advanced for the restriction; (b) whether there was a less restrictive, but equally effective, way of achieving the objective; (c) whether sufficient regard has been paid to the rights and interests of those affected – in some cases (eg, family cases) those affected should be consulted; (d) whether safeguards exist to guard against error or abuse (eg, in secret surveillance cases); and (e) whether the restriction in question destroys the very essence of the Convention right in issue.”

These are quintessentially linked to the nature of covert policing. Whether the first factor has been properly met will be determined by the quality of the intelligence relied upon and whether it has been graded effectively and reviewed. In R v Dawson (2006) the Court of Appeal placed emphasis on the conscientious approach officers had taken to the analysis of the intelligence they were considering and relying on and this was a factor the trial judge had regard to when he rejected an application to exclude the evidence and/or stay the indictment.

In every operation, less restrictive resources should always be considered before a decision is taken on what the actual deployment is to be. There is no requirement to have tried other options and failed: R v Mason (2002). Therefore, a balancing exercise takes place that requires a consideration of whether the interference with the right is greater than is necessary to achieve the aim. This is not an exercise in balancing the right against the interference, but instead balances the nature and extent of the interference against the reasons for interfering. This is an important point – it is not the right itself which is the subject of a balancing exercise. In Campbell v UK, a blanket rule on the opening of prisoners’ mail was held to be a disproportionate response to the problem of individuals using the postal system to secret contraband into the prison system and was in breach of Article 8. The Government’s position, that the interference was necessary to ensure that prohibited material was not contained in the mail, was rejected on the grounds that the same policy objective could have been met by opening the mail in the presence of the prisoner without actually reading it.

The third factor engages the notion of collateral intrusion and the need to respect third party interests in the planning and implementation of an operation where covert resources are to be used. This is an important part of the process.

The current regulatory regime creates