SXH v Crown Prosecution Service

A decision to prosecute may, in exceptional circumstances, engage Article 8 even where the underlying offence is Convention-compliant. Ordinarily, however, prosecution for possession of a false identity document does not interfere with private life where the conduct is not an expression of personal autonomy or subject to a reasonable expectation of privacy. Alternatively, prosecution may be justified as a proportionate measure pursuing the prevention of crime and disorder, including effective border control. The prosecutor need not anticipate every consequence of prosecution or defer proceedings until an asylum claim and statutory defence have been fully investigated, absent compelling personal circumstances.

The appellant, a Somali asylum seeker, was prosecuted under section 25 of the Identity Cards Act 2006 after arriving in the United Kingdom with a false identity document. She was remanded in custody, claimed that prosecution harmed her mental health, and brought proceedings under section 7 of the Human Rights Act 1998, alleging interference with her Article 8 rights. The prosecution offered no evidence after she was granted asylum.

Irwin J dismissed the claim, holding that Article 8 was not engaged and, alternatively, that the prosecution was justified under Article 8(2): [2013] EWHC 71 (QB). The appeal concerned whether a Convention-compliant offence and the decision to prosecute could engage Article 8, and whether this prosecution was proportionate.

The Court of Appeal unanimously dismissed the appeal. Lord Justice Pitchford gave the judgment, with Lord Justice Beatson and Lady Justice Gloster agreeing. Lady Justice Gloster expressly concurred that a prosecutorial decision may in some circumstances engage Article 8 even where the offence itself does not interfere with private life.

1. Article 8 engagement. The common-law reluctance to interfere with prosecutorial decisions did not prevent a challenge under the Human Rights Act 1998. The court adopted the broad conception of private life involving personal autonomy and psychological space, subject to seriousness and reasonable-expectation safeguards, reflected in R (Countryside Alliance & Others) v Attorney General and R (Wood) v Commissioner of Police. Possessing a false identity document with intent to mislead at border control was not an expression of personal autonomy or conduct in which the appellant could reasonably expect respect. Article 8 was therefore not engaged.
2. Exceptional cases. Pitchford LJ expressed the view, as an important qualification, that Article 8 might be engaged where the prosecutor knew of an unanswerable statutory defence or where prosecution of a dying person would be disproportionate. Those were hypothetical extremes and were absent here.
3. Statutory defence and proportionality. A short stopover in Holland was unlikely to defeat the statutory defence under section 31 of the Immigration and Asylum Act 1999, applying Adimi and Asfaw. The appellant’s year in Yemen raised the separate question under section 31(2), which required investigation and specialist analysis. The CPS was nevertheless entitled to commence proceedings where the evidential test was met and no compelling personal circumstances justified delay. The public interest in prosecuting false identity documents at border control remained substantial, even though the appellant lacked genuine documents and might later establish the defence.
4. Consequences of prosecution. The prosecutor was not required to assess every possible consequence. Detention pending trial and sentence were matters for the courts under Article 5; immigration status and citizenship consequences were matters for the Secretary of State. The prosecution was proportionate, and no breach of Article 8 occurred.

1. Court of Appeal (Civil Division). Appeal dismissed: [2014] EWCA Civ 90.
2. Queen’s Bench Division. Irwin J dismissed the claim, holding that Article 8 was not engaged or, alternatively, that the prosecution was justified: [2013] EWHC 71 (QB).