When is the Government allowed to invade your privacy?

Mark Nelson is a car mechanic with five children. A Jamaican national who has lived in the UK for nearly 25 years, Nelson was jailed in 2017 – primarily for drug-related offences – and now faces being deported. He was released from prison in 2019 but has been wearing a GPS tag while he challenges the deportation decision.

Last week, the Upper Tribunal ruled the Government had acted unlawfully in tagging Nelson. But it ruled that his continued tagging is proportionate. Nelson is still wearing the tag.

There was no question that the GPS tag interfered with Nelson’s right to privacy, protected by Article 8 of the Human Rights Act 1998 and the European Convention on Human Rights. All the parties agreed on this. But was this interference justified?

Several conditions must be met for an interference with someone’s human rights to be justified.

One is that the interference must be “in accordance with the law”. Here, the Upper Tribunal decided that the Home Office had not acted in accordance with the law, because it had failed to properly conduct the regular reviews of the GPS tagging, as required by the policy.

The court said these regular reviews were “integral” to the tagging policy and were important safeguards to make sure the tagging complied with human rights. So failing to conduct these reviews properly was unlawful.

Another condition is that the interference must be a “proportionate means of achieving a legitimate aim”.

This involves the Court engaging in what is, essentially, a balancing exercise – trying to weigh up the rights of individuals against the interests of the public generally, or even the rights of others.

For example: we might say that laws preventing you from playing loud music late at night interfere with your right to freedom of expression, but this can be justified because it lets other people get a decent night’s sleep.

This only applies to certain human rights. Some rights are absolute. For example, torture can never be justified – even if it would save a million lives.

Courts, especially lower courts, are usually fairly deferential to the Government’s assessment of this balance and the weight they attach to their aims – indeed, sometimes perhaps too deferential. But the courts must still make this assessment for themselves.

In considering whether Nelson’s continued tagging was proportionate, the Upper Tribunal considered many factors. They noted the “importance of enforcing immigration control” and the risk Nelson might re-offend. The Tribunal also noted as a “particularly weighty factor” that Nelson was reaching the end of his appeals process in his deportation challenge, and so might abscond.

On the other hand, the Tribunal noted Nelson’s continued compliance with his conditions. As the Home Office accepted, the risk of his reoffending was low. Medical evidence suggested that the GPS tagging was impacting Nelson’s mental well-being and his family. The Tribunal also noted that Nelson had been wearing the tag for 18 months – a “significant” period of time.

Ultimately, the Tribunal concluded that the continued tagging was proportionate, but that this was “very finely balanced” and would need to be regularly reviewed as circumstances changed. Nelson plans to challenge this decision in the Court of Appeal.

This balancing exercise is illuminated by another extraordinary aspect of this case. On the first day of the hearing, the Home Secretary admitted – despite previous denials – that the GPS tag was broken for a six-month period while Nelson was wearing it, sending signals on only 11 days out of 197. The Government was aware of this fault but did not repair it.

According to the Upper Tribunal, this extended outage meant that the interference with Nelson’s rights was “essentially pointless.” During this period, the tag was “serving no useful purpose at all” and, therefore, could not possibly justify an interference with Nelson’s rights. This meant that forcing Nelson to wear a broken tag was disproportionate, and a violation of his Article 8 rights.

This delicate balancing act shows how interference with someone’s human rights must always be proportionate. But the focus in this case on making sure the Government is competent – following its own rules and procedures – is perhaps too low a bar. What we really need are rules and procedures that are just and fair, and that respect the rights we all have as individuals.