336 / 494
335
his gunmen, it was reckless and irresponsible to fire mortars
within the
community of Tivoli Gardens
in circumstances where, on Maj. Dixon’s
own evidence, the safety distances were not respected
.
Their use
within the community was disproportionate. With respect to the
concept of proportionality, we note that the Constitution as it then was
in 2010 did not incorporate proportionality as a restriction on
fundamental rights and, in particular, the right to life. As such, it is
doubtful whether Counsel for the JDF can properly rely on that concept
in defence of their use of mortars. In any event, the concept of
proportionality formulated by Lord Sumption in
Bank Mellat (supra)
requires consideration of four questions.
(i)
Is the objective sufficiently important to justify
limitation upon a fundamental right?
(ii) Is the measure rationally connected to the objective?
(iii) Could a less intrusive measure have been adopted?
(iv) Has a fair balance been struck between individual
rights and the interests of the community?
10.188.
Out of an abundance of caution and, in deference to
Counsel’s submissions, we respectfully adopt Lord Sumption’s
formulation recently followed in
Beghal v DPP [2016] 1 All ER 483
and
answer the four questions thus: The fundamental right involved was
the residents’ right to life. The broad objectives of the internal security
operation were:
“The arrest of Coke, repel any resistance with the
least impact on the community, the country and the
security forces. Also to restore security and
confidence to the community…..and for the police to
provide normal policing service.” (per Operational