To what extent does a decision to prosecute a person interfere with her private rights alex-bailinunder ECHR, art 8? That was the question which fell to be decided recently in SXH v CPS.  At first blush, the answer might seem to be pretty straightforward: although the criminalisation of conduct may constitute an interference with private rights, if the offence itself does not amount to a violation of art 8 (because it is justified by the need to prevent and punish crime), then how can a decision to prosecute someone for such an offence possibly amount to a violation of art 8?

In SXH’s case, she readily (and rightly) conceded that the offence for which she was prosecuted did not itself violate art 8. It is very hard indeed to establish that the substantive criminal law violates the ECHR. In SXH’s case she had entered the UK on a false passport, travelling from Somalia via Yemen and Holland. She and her family had suffered terrible minority clan violence and rape in Somalia.

The need to criminalise the use of false travel documents is clear but the law (Identity Cards Act 2006, ss 25-26) takes account of the fact that refugees fleeing persecution may have no alternative but to use forged documents in order to be able to escape: a statutory defence under Immigration and Asylum Act 1999, s 31 gives effect to the Refugee Convention, art 31. Providing a refugee claims asylum as soon as practicable then she has a statutory defence under s 31 if that was the reason false documents were used.  Here, the complicating factors were the fact that (i) SXH had travelled via Yemen (where an asylum claim was theoretically possible as she had spent a year there) and (ii) the CPS decided to prosecute SXH before having reviewed her position fully and concluding that a Yemeni asylum claim was not in fact reasonably practicable given the conditions in Yemen and its poor respect for the Refugee Convention.  Between the two CPS decisions, SXH had been remanded in custody.

The right to travel on false documents on its face would not seem to engage a person’s private rights. The Appellant argued for a broader focus and contended that the totality of her conduct in fleeing persecution and using false documents had a ‘more than minimal effect on her private life’.  The majority of the Court took a dim view of this extremely broad interpretation of the ambit of art 8 and dismissed it as “consequentialist” and “far too broad”. The Court held that the consequences of a prosecution are matters which fall within art 6, and, if the offence itself is art 8 compliant, then so will the prosecution for it.  Moreover although a prosecutor retains a discretion under the public interest stage not to prosecute a case which meets the evidential threshold, that discretion will not engage art 8 unless the offence itself violates art 8.  The majority of the Court therefore robustly rejected the applicability of art 8 to a prosecutorial decision for an art 8 compliant offence. Lord Kerr, dissenting on that aspect, pointed to decisions such as Zenati v MPC [2015] QB 758 (in which a dilatory decision to discontinue a false passport prosecution engaged Article 5 rights) and Norris v USA #2 [2010] 2 AC 487 (obiter dicta concerning the applicability of art 8 regarding detention for the purpose of prosecution).

The Appellant was highly critical of the final decision by the CPS (having reviewed the true position in Yemen), which she maintained could and should have been made earlier and prevented any prosecution and detention in the first place. But the Court unanimously held that this argument was raised only during oral argument and therefore the CPS was deprived of filing evidence in response. The Court therefore declined to consider the point and whether the ongoing duty of the CPS to review the continuation of the prosecution violated art 8.

On the core reasoning, the Court cannot be faulted: a decision to prosecute an art 8 compliant offence does not engage art 8.  Whilst there may be collateral prosecutorial factors which together engage art 8, somewhat tantalisingly, because the Court refused to consider the Appellant’s further arguments, there remains a lack of clarity about what such factors may be.  Lord Kerr suggests that investigating authorities who fail to bring to prosecutor’s attention factors which would stop a prosecution may violate art 5 and thereby art 8.  He also noted that publishing photographs of children who are suspected of crime in order to identify them will engage art 8 (although the Court was divided on the issue in JR38’s case [2015] UKSC 42).  But those examples do not seem directly on point.  Lord Toulson, for the majority, opined that prosecution on trumped up charges might constitute harassment, malicious prosecution or misfeasance in public office – to which art 8 would add nothing.  But that did beg the question of exactly on what art 8 would bite in such circumstances: the trumping up or the prosecuting?  Lord Toulson also pointed to lack of duty of care owed by a prosecutor in tort to the suspect (or the victim) as shaping the ambit of art 8. That analysis seems a little questionable given that there are very strong domestic policy considerations which limit the duties of care which may not be transmutable under the Convention.

The case was obviously a sad one, given the horrific mistreatment SXH and her family had suffered and the period of her UK detention, but the Court’s decision was nonetheless the correct one and Lord Kerr concurred in the result, even if not in all the reasoning. Although it is now clear that prosecution of an art 8 compliant offence will not engage art 8, the question of exactly what type of extraneous factors may bring prosecution within the scope of art 8 remains unclear.