SXH v The Crown Prosecution Service

A decision to prosecute a person reasonably suspected of a Convention-compliant criminal offence does not engage article 8 merely because the prosecution may affect the person’s private life. Ordinary consequences of criminal proceedings, including possible remand or punishment, are governed through the criminal process and the specific protections of articles 5 and 6.

Article 8 may be engaged where the criminal law itself unjustifiably interferes with protected conduct. That does not make the prosecutor’s separate public-interest assessment an article 8 proportionality exercise. The court left open whether article 8 could apply to the continuation of proceedings after their proper commencement.

The appellant, a vulnerable Somali asylum seeker, entered the United Kingdom using a false passport and immediately claimed asylum. The Crown Prosecution Service prosecuted her under section 25(1) of the Identity Cards Act 2006. After she was granted asylum and the likely availability of the statutory refugee defence became clear, the prosecution offered no evidence and she was acquitted.

She sought damages for breach of article 8 of the European Convention on Human Rights. Irwin J dismissed the claim. The Court of Appeal upheld that decision in [2014] EWCA Civ 90, reported at [2014] 1 WLR 3238.

The principal issue was whether the initial decision to prosecute could engage article 8 where the prosecutor reasonably believed that the offence had been committed and the offence itself was compatible with article 8.

1. Appeal dismissed unanimously. Lord Toulson, with whom Lord Mance, Lord Reed and Lord Hughes agreed, held that article 8 did not apply to the initial decision to prosecute. Lord Kerr agreed that the appeal had to be dismissed.
2. A consequential effect upon private life is insufficient by itself to engage article 8. Many lawful public decisions have more than minimal effects upon daily life without showing the lack of respect for personal autonomy against which article 8 protects. Strasbourg authority did not support applying article 8 to a prosecution merely because of its attendant consequences.
3. Where conduct is properly subject to Convention-compliant criminal law, commencing proceedings places guilt and ancillary questions before an independent court. If criminalisation does not unjustifiably interfere with an activity protected by article 8, neither does a decision to prosecute that conduct. Article 6 protects the right to a fair hearing, while detention and remand are addressed by article 5.
4. The offence under section 25(1) of the Identity Cards Act 2006 was accepted to be Convention-compliant. It was also conceded that the CPS reasonably regarded the evidential test as satisfied when proceedings began. The prosecutor’s separate discretion to decide whether prosecution was in the public interest did not convert that decision into an article 8 proportionality assessment.
5. Even if article 8 had applied, there was no breach. The CPS could have acted more promptly in investigating the refugee defence under section 31 of the Immigration and Asylum Act 1999, but delay or an error of judgment fell far short of an article 8 violation. Deliberately fabricated charges used as harassment would be materially different and could engage established public-law torts.
6. The CPS owes its duty to the public, rather than a private duty of care to either suspects or victims. A private duty would create conflicting obligations and encourage collateral civil proceedings detrimental to the criminal justice system.
7. The argument that continuing the prosecution became a breach was raised too late and had not been developed evidentially or legally below. The Court therefore expressed no concluded view on whether article 8 could become applicable during the continuation of proceedings properly commenced. Lord Kerr observed that prosecutors must keep the propriety of continued prosecution under review and that an unjustified continuation of detention could raise issues under articles 5 and 8.

• United Kingdom Supreme Court: Dismissed the appeal unanimously and affirmed that article 8 did not apply to the initial prosecutorial decision.
• Court of Appeal: In [2014] EWCA Civ 90, reported at [2014] 1 WLR 3238, upheld Irwin J’s dismissal of the claim.
• High Court: Irwin J dismissed the damages claim on 1 February 2013, holding that the decision to prosecute was incapable of engaging article 8 and, alternatively, was justified.