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On 19 July 2016, the Supreme Court will hear the appeal in SXH v Crown Prosecution Service, in a case that considers whether the decision to prosecute an asylum seeker for entering the United Kingdom with false travel documents was contrary to ECHR, art 8.

Background

The appellant was forced to leave her home country of Somalia, after suffering extreme sexual and physical violence. She arrived in the United Kingdom using a false travel document, but did make an asylum application once she had entered. She was detained and charged with possessing a false document under the Identity Cards Act 2006, but a verdict of not guilty was entered at a hearing in the Crown Court, when the CPS offered no evidence. The appellant was granted asylum prior to this hearing.

The appellant had been detained pending the trial, and she contended that this caused her mental health to suffer. She argued that the decision to prosecute her had led to an unlawful interference with her ECHR, art 8 rights, and that she was entitled to damages under the Human Rights Act 1998.

Proceedings in the High Court and the Court of Appeal

Irwin J in the High Court held that ECHR, art 8 was not engaged on the facts. Alternatively, he found that even if it was engaged, the decision to prosecute was provided for in law, was necessary in a democratic society and was proportionate to the legitimate aim of preventing crime or disorder.

The Court of Appeal also took the view that there had been no breach of ECHR, art 8, and that Irwin J had been right to dismiss the claim.

The appeal before the Supreme Court

The Supreme Court will be asked to consider whether ECHR, art 8 was engaged at all by the decision of the CPS to prosecute. It will also have to consider the appropriate threshold for engaging ECHR, art 8, and whether the decision to prosecute was proportionate.