SXH v The Crown Prosecution Service (CPS) [2017] UKSC 30

A Somali refugee charged under the Identity Cards Act 2006 for using a false passport claimed the CPS's decision to prosecute breached her Article 8 rights. The Supreme Court dismissed her appeal, holding that prosecuting Convention-compliant offences does not engage Article 8.

Facts

The appellant, born in Somalia in 1991 and a member of a minority clan, suffered severe persecution including the murder of her father, rape in front of her disabled mother, and the later murder of her mother. She fled Somalia in December 2008, spending a year in Yemen before travelling via the Netherlands to the United Kingdom on a false British passport in December 2009.

On arrival at Stansted Airport, she was stopped at immigration control, immediately claimed asylum and gave her true identity. She was offered the option of returning to Holland without prosecution but declined and was arrested under section 25(1) of the Identity Cards Act 2006. A CPS lawyer applied the full Code test and decided to prosecute. The appellant was remanded in custody. After protracted consideration of the defence under section 31 of the Immigration and Asylum Act 1999, and following the grant of asylum on 10 June 2010, the CPS offered no evidence on 11 June 2010 and she was released after approximately six months in custody.

The appellant sued the CPS for damages, including under Article 8 of the ECHR. Irwin J dismissed her claim, and the Court of Appeal upheld that decision.

Issues

The Supreme Court identified two principal issues:

• Whether a decision by a public prosecutor to bring criminal proceedings falls potentially within the scope of Article 8 where (a) the prosecutor has reasonable cause to believe the person guilty and (b) the underlying offence is Article 8-compliant.
• If so, whether the CPS’s decision to charge the appellant under section 25(1) of the 2006 Act violated her Article 8 rights.

Arguments

Appellant

Mr Hermer QC argued that Article 8 has a broad reach with a low threshold. He advanced two reasons why it applied: (i) the prosecution targeted conduct which itself fell within Article 8, viewed in the wider context of a vulnerable young refugee escaping persecution, and (ii) the consequences of prosecution (detention, remand, psychological impact) interfered with her private life. He submitted that proper investigation would have shown that the section 31 defence was available and that prosecution was not in the public interest.

Respondent

The CPS contended that section 25 was Convention-compliant, that the evidential test was satisfied (as conceded below), and that a decision to prosecute a properly criminalised offence cannot itself engage Article 8.

Judgment

Lord Toulson (with whom Lord Mance, Lord Reed and Lord Hughes agreed) dismissed the appeal.

On the consequentialist argument, Lord Toulson held it was far too broad. Ordinary incidents of public administration may affect private life in more than minimal ways without engaging Article 8. There is no Strasbourg authority supporting the proposition that, where the underlying conduct falls outside Article 8, a prosecutorial decision may engage it because of its consequences.

Reviewing R v G [2009] 1 AC 92 and G v United Kingdom (2011) 53 EHRR SE25, the Court observed that the Strasbourg focus was on the nature of the conduct prosecuted, not the attendant consequences. Lord Toulson noted the striking absence of any reported case holding that the institution of criminal proceedings for a matter properly within the criminal law may be challenged on Article 8 grounds, citing Munby LJ in R (E) v DPP [2012] 1 Cr App R 6.

On the ‘targeting’ argument, the Court emphasised that section 25 is Convention-compliant and that the evidential test was conceded to be satisfied. Lord Toulson found it difficult to envisage circumstances in which the initiation of a prosecution against a person reasonably suspected of an offence could itself breach human rights, save where the state deliberately trumped up false charges as harassment (in which case the torts of malicious prosecution or misfeasance in public office would apply). Following Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335, no duty of care is owed by the CPS to suspects; its duty is to the public.

Even if Article 8 had applied, there was no breach. Although criticism could be made of the CPS’s delay in investigating the Yemen position and recognising the likely section 31 defence, this fell well short of an Article 8 breach in the decision to prosecute. Questions of remand and sentence are for the court, protected by Article 6.

Postscript

Lord Toulson noted that Mr Hermer had sought to extend the challenge to the continuation of the prosecution, but this had not been pleaded below. The Court declined to express a concluded view, suggesting that any complaint about prompt disposal of properly-commenced proceedings might lie under Article 6 rather than Article 8.

Lord Kerr’s concurrence

Lord Kerr agreed in the result but offered observations on the continuing duty to review prosecution. Drawing on Zenati v Metropolitan Police Comr [2015] QB 758 and Norris v Government of the United States of America (No 2) [2010] 2 AC 487, he suggested that detention pursuant to prosecution is capable of engaging Article 8, and that where prosecuting authorities know or ought to know that a complete defence is available, failure to act may constitute a failure to respect private life. However, because the case had been argued solely on the initial decision to prosecute, the appeal had to be dismissed. He expressed regret given the appellant’s harrowing history.

Implications

The decision establishes that, where an offence is Convention-compliant and the evidential test is reasonably satisfied, the initial decision to prosecute does not engage Article 8. The criminalisation of conduct, and not the decision to prosecute for that conduct, is the proper focus for Article 8 analysis. Consequential effects on private life arising from prosecution, including remand and the stress of proceedings, are matters for the criminal court under Article 6 and the bail regime, not for an Article 8 challenge to the prosecutorial decision itself.

The judgment confirms and aligns with the principle in Elguzouli-Daf that the CPS owes no duty of care to suspects, the rationale being to avoid conflicts of interest and collateral civil litigation that would impede the criminal justice process. Deliberate abuse of prosecutorial power remains actionable through the torts of malicious prosecution and misfeasance in public office.

The Court left open, expressly, whether Article 8 may be engaged in the continuation of a prosecution where circumstances change, although it indicated that Article 6 may be the more apt provision. Lord Kerr’s concurring observations indicate that where prosecutors fail to act on information showing a complete defence is available, Article 5 and possibly Article 8 issues may arise in respect of continued detention, though these were not before the Court.

The decision matters to prosecutors, criminal defence practitioners and asylum lawyers. It limits the use of Article 8 as a route to civil damages against the CPS for decisions to prosecute, while leaving intact the section 31 defence for refugees and the court’s responsibility to police fair process, bail and abuse of process. The case also illustrates the practical importance of the CPS investigating potential section 31 defences promptly in cases involving asylum seekers charged with document offences.

Verdict: Appeal dismissed. The Supreme Court held that a decision to prosecute a person reasonably suspected of committing a Convention-compliant offence does not engage Article 8 ECHR, and that even if Article 8 were engaged, there was no breach on the facts.

Source: SXH v The Crown Prosecution Service (CPS) [2017] UKSC 30