The Supreme Courtasad-khan

The court did not allow the oral introduction of a new argument that SXH’s prosecution constituted a breach of her art 8 rights in its continuation, if not in its commencement. Had this been a live issue, analysis would be required in relation to whether and, if so, in what circumstances art 8 may become applicable to the CPS in the continuation of a prosecution, if it was not applicable at the time of its commencement. Arguably, a defendant’s right to a prompt and fair disposal of properly instituted criminal proceedings gravitated more towards ECHR, art 6 rather than to the broader structure of art 8. However, the court preferred not to express a view on the point in the absence of considered argument.

(i) Lord Toulson

His Lordship rejected “the consequentialist argument” that art 8 is interfered with whenever a public body does something producing the consequence of affecting someone’s private life in a more than minimal way. It was said that art 8 had a twofold application to prosecute. It not only “targeted” conduct which was itself protected by art 8, but its consequences also interfered with the enjoyment of the SXH’s private life. The width of art 8 and its low threshold of applicability were presented as supporting the analysis that decisions made by a public body such as the CPS inevitably impacted SXH’s private life and engaged art 8. However, the submission fell into difficulties for being “far too broad” because art 8 is not so broad as to accommodate everything done by a public authority resulting in affecting someone’s private life in a more than minimal way.

R v G [2008] UKHL 37 concerned art 8’s application to prosecute an offence contrary to the Sexual Offences Act 2003, s 5 (rape of a child under 13). Aged 15, “G” pleaded guilty to a charge of rape of a child under 13. His victim was incapable of giving legal consent as she was 12 but his guilty plea, which the prosecution accepted, was tendered on the written basis that the intercourse was consensual. G appealed against his conviction and sentence arguing that his conduct amounted to a less serious offence under s 13 (child sex offences committed by children). G submitted that proceeding with the more serious charge, resulting in him having a criminal record as a rapist, constituted a disproportionate interference with his private life. By majority, the House of Lords upheld the Court of Appeal’s decision to dismiss G’s appeal against conviction and to substitute a non-custodial sentence.

In G v UK [2011] ECHR 1308, Strasbourg held that his complaint was inadmissible. The ECtHR explained that not every sexual act in private fell within art 8’s scope. However, G’s reasonable belief that his victim was his own age meant that the ECtHR was “prepared to accept” that the sexual activities concerned fell within the meaning of private life. Overall, G’s complaint was rejected as manifestly ill-founded because of the width of the state’s margin of appreciation regarding the means of protecting children from sexual exploitation.

Accordingly, Lord Toulson held that it is not possible to use art 8 to challenge a matter properly within the reach of criminal law sufficiently supported by evidence. The belief was misplaced and found no support in domestic and Strasbourg jurisprudence. In R (E & Ors) v DPP [2011] EWHC 1465, Munby LJ observed an unmistakable absence of any reported case holding that art 8 could be used to challenge criminal proceedings for a matter falling squarely within the criminal law. As Lord Toulson elucidated:

  1. … It would be illogical; for if the matter is properly the subject of the criminal law, it is a matter for the processes of the criminal law.

The nature of the conduct under scrutiny is the defining feature underpinning whether the criminalisation of conduct amounts to interference with art 8 rights. Reiterating the role of art 6 in protecting the defendant’s rights to a fair hearing, his Lordship held:

… If the criminalisation does not amount to an unjustifiable interference with respect for an activity protected by art 8, no more does a decision to prosecute for that conduct.

The lower courts had been right that art 8 did not apply to a decision to prosecute. Finding flaws with the initial decision to prosecute fell into difficulties because s 25 complies with the ECHR. The CPS was reasonably entitled to consider that the evidential test was met when the decision to prosecute was made. Difficulties also arose in contemplating circumstances where commencing a prosecution against someone reasonably suspected of committing a criminal offence could itself breach her human rights. The public interest in prosecution was asymmetric with whether a prosecution would breach an individual’s art 8 rights. Under the public interest principle, the CPS is not obliged to prosecute each and every case but that fact alone made no difference.

The CPS’s delayed admission that SXH’s s 31 defence would succeed was worthy of criticism but the failure would not amount to a breach in the decision to prosecute even if art 8 was applicable. Art 8 would not be breached even if the CPS made an error of judgment regarding the original decision to prosecute unless, of course, the state had deliberately trumped up false charges. The torts of malicious prosecution and/or misfeasance in public office covered these situations and art 8 added nothing in that regard.

Recognising a duty of care towards victims and suspects would create conflicts and legal dilemmas for the CPS. The criminal justice system’s smooth operation would be undermined and Lord Toulson stated that:

  1. … A decision to prosecute does not itself involve a lack of respect for the autonomy of the defendant but places the question of determining his or her guilt before the court.

Ultimately, the decided authorities pointed to the conclusion that “the duty of the CPS is to the public, not to the victim or to the suspect, who have separate interests.”

(ii) Lord Kerr

His Lordship thought that the prosecuting authorities were not entitled to shirk their responsibilities. The delay in recognising SXH’s successful s 31 defence entailed an interference with her freedom of liberty under art 5 and art 8 rights. Since argument was not heard on these questions and because SXH pleaded her case on the basis that the decision to prosecute breached article 8, Lord Kerr agreed that her appeal should be dismissed.


Lord Toulson retired as a justice of the court last July. His interview with Dan Tench and Lucy Hayes reveals that he takes a “long view” on Brexit and the Human Rights Act 1998. Although his Lordship is cautious about the courts taking an interventionist approach in human rights cases he is “much more willing” to intervene in matters involving pure common law.

He sees the momentous case of Jogee [2016] UKSC 8 as correcting a wrong turn in the common law and regards his landmark judgment (co-authored with Lord Hughes) as rectifying problems prevalent in the field of murder and joint enterprise for three decades. As Lord Toulson proudly explained in his interview, “we said very firmly, no” to the argument that Parliament should correct the law because:

… if the common law has gone wrong it’s the courts that have got it wrong, and the courts that should put it right.

Jogee corrected the historic mistake in Chan Wing-Siu [1984] UKPC 27 and R v Powell/English [1997] UKHL 57 of equating foresight with intent to assist in cases of alleged secondary participation. The correct approach is to treat foresight as evidence of intent.

Please see Part One here.

This post was originally published here.