The Supreme Court held that a prosecutor’s decision to charge someone does not, of itself, fall within article 8 of the European Convention on Human Rights where there is reasonable cause to believe the person guilty and the offence is compatible with article 8. SXH, a young Somali woman who claimed asylum on arrival in the United Kingdom, was charged with possessing a false identity document and remanded in custody; the prosecution later offered no evidence and she was found not guilty. Her damages claim that the decision to prosecute breached article 8 failed.
SXH fled Somalia and spent time in Yemen before travelling to the UK on a passport that was not her own. When stopped at the border, she immediately claimed asylum and identified herself.
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An immigration officer told her that she would not be prosecuted if she returned to Holland. She refused and maintained her asylum claim. She was then arrested on suspicion of possessing an identity document relating to someone else, with intent to use it as her own, contrary to section 25(1) of the Identity Cards Act 2006. That offence carried a maximum of ten years’ imprisonment. On the evening of 28 December 2009 a Crown Prosecution Service lawyer applied the two-stage test in the Code for Crown Prosecutors: whether there was enough evidence for a realistic prospect of conviction, and whether a prosecution was in the public interest. She concluded that both stages were met. It was later accepted for SXH that the Service was reasonably entitled to regard the evidential test as satisfied when it decided to prosecute.
Domestic law already contained a specific protection for some refugees. Article 31 of the Refugee Convention restricts penalties imposed on refugees for illegal entry or presence. Section 31 of the Immigration and Asylum Act 1999 gives effect to that protection as a defence to certain offences, including the identity-document offence. In broad terms, the defendant must show that she came directly from a country where her life or freedom was threatened, presented herself without delay, showed good cause for her illegal entry or presence, and claimed asylum as soon as was reasonably practicable. In an earlier case, Asfaw, the House of Lords had held that this protection is not lost merely because of a short-term stopover in another country.
SXH was remanded in custody. In January 2010 another prosecutor asked what consideration had been given to the section 31 defence. The prosecutor later took the view that a year in Yemen took SXH outside that defence. After SXH’s full asylum interview, an immigration officer told the prosecution advocate that asylum was likely to be granted. The advocate researched the position of Somali refugees in Yemen and concluded that, if asylum was confirmed, continuing the prosecution would not be in the public interest. Asylum was granted on 10 June 2010. The next day the prosecution offered no evidence. SXH was found not guilty and released.
The claim
SXH sought damages from the Crown Prosecution Service under article 8. The trial judge accepted that arrest and remand had caused real harm. He nevertheless held that, on the information available when the charge was authorised, the decision to prosecute did not give rise to an article 8 claim.
The Court of Appeal agreed. Pitchford LJ accepted that article 8 can apply to a law which criminalises conduct that is itself an exercise of an article 8 right, but held that section 25 did not do so: it did not impede an asylum claim, and using false identity documents to deceive at border control was not an expression of personal autonomy. A prosecution might engage article 8 in an extreme case, such as where the prosecutor knew there was no proper basis for it. A decision to prosecute for an offence compatible with the Convention did not otherwise do so. If article 8 was engaged, there was still no breach.
The Supreme Court’s reasoning
Lord Toulson, with whom Lord Mance, Lord Reed and Lord Hughes agreed, identified the main question as whether a decision to prosecute can fall within article 8 where the prosecutor has reasonable cause to believe the person guilty and the offence itself is compatible with article 8.
For SXH, it was argued that the prosecution both targeted protected conduct and interfered with private life through its consequences. Lord Toulson rejected the second argument as far too wide. An effect on daily life, even more than a minimal one, is not enough. He used the example of roadworks delaying a resident’s journey to work: that is an ordinary incident of community life, not a lack of respect for personal autonomy of the kind article 8 protects.
The Court looked to R v G, concerning the prosecution of a 15-year-old for sexual activity with a younger child. The House of Lords was divided on whether article 8 applied, but the conviction stood. The European Court of Human Rights treated the complaint as inadmissible. Lord Toulson drew from that reasoning that attention falls on the nature of the conduct prosecuted. He found no support for saying that, where the conduct itself is outside article 8, the decision to prosecute nevertheless comes within it because of its consequences.
Starting a prosecution places the question of guilt before a court. Lord Toulson noted the absence of authority holding that the institution of proceedings, for conduct properly the subject of the criminal law, can itself be challenged under article 8. If creating the offence is not an unjustifiable interference with an article 8 activity, neither is the decision to prosecute for it. Bail, remand and sentence are for the court. Article 6 separately protects the right to a fair hearing within a reasonable time.
The alternative argument, that this prosecution targeted protected conduct, also failed. The challenged act was the initial decision to charge. It was accepted that section 25 was compatible with the Convention, and conceded that the evidential test was reasonably regarded as met. Lord Toulson found it difficult to see how beginning a prosecution against someone reasonably suspected of a criminal offence could itself breach that person’s human rights. A prosecutor’s judgment about the public interest is not the same question as whether the prosecution unjustifiably interferes with article 8. He agreed with the courts below that article 8 did not apply.
He also agreed that there was no breach if it did apply. The case could have been handled better, and it was regrettable that a vulnerable young woman spent the time she did in custody. The Service could be criticised for how long it took to investigate Yemen and conclude that she was likely to succeed with the section 31 defence. That fell well short of an article 8 breach. Even an error of judgment in the original decision would not, in his view, have been such a breach. Deliberately inventing charges as harassment would be different, but that would already be covered by malicious prosecution or misfeasance in public office. Neither the police nor the Service owes a suspect a duty of care. The Service’s duty is to the public. A decision to prosecute does not itself show a lack of respect for the defendant’s autonomy; it leaves guilt, and questions such as bail, to the court.
The argument raised too late
In oral argument, counsel sought to say that continuing the prosecution, even if commencing it was lawful, breached article 8. That had not been the case below, in the written case, or in the agreed issues. The Court therefore did not undertake its own factual examination of the Service’s conduct during the prosecution, and it heard no argument on when article 8 might apply to continuation if it did not apply at the start. Lord Toulson declined to decide that question. He noted that a defendant’s right to a prompt and fair disposal of properly commenced proceedings might lie in article 6 rather than article 8, but said that it was better to say no more without considered argument.
Lord Kerr
Lord Kerr agreed that the appeal had to be dismissed, but he added observations which were not the majority’s decision. He said that prosecutors must keep the propriety of continuing a prosecution under review. He regarded the view that time in Yemen precluded the section 31 defence as misconceived, for reasons he attributed to Lord Toulson, and said there was a real question whether detention after an unanswerable section 31 defence should have been recognised breached article 5. That question had not been part of the case. He considered that detention for a prosecution is at least capable of engaging article 8, and that a failure to act once the basis for prosecution has gone, or a complete defence is or ought to be known, can be a failure to respect private life. He nevertheless held that this appeal could not be enlarged to cover continuation: the respondents had not produced evidence for that case, and it would have been unfair to require them to do so. He recorded his regret, given the horrific experiences described in the evidence and the fact that her incarceration came when she was vulnerable.
Verdict: The Court unanimously dismissed the appeal. The initial decision to prosecute gave SXH no claim for damages under article 8 on these facts. Whether continuing the prosecution could have infringed article 8 was a different issue, raised too late for the Court to decide.
