Challenging decisions to prosecute criminal offences is notoriously difficult; and decisions to investigate still harder. At issue in SXH v CPS [2017] UKSC 30 was the availability of fundamental rights, and in particular article 8 ECHR, to bolster the arsenal of suspects and defendants.
The background
The facts were compelling. The appellant was a young Somalian woman, who, as Lord Kerr observed, had “had to endure experiences of the most horrific nature” in her short life. Set against the background of inter-clan violence in Somalia, she had suffered repeated severe violence, being raped, the murder of her father and two years later witnessing the murder of her mother with a rifle butt. Aged just 17, she fled Somalia and, in December 2009, she attempted to pass through Stansted airport using a false UK passport. She was detained and immediately claimed asylum.
She was subsequently arrested for and charged with an offence contrary to section 25(1) of the Identity Cards Act 2006. In the Crown Court, she raised a section 31 defence. Section 31 gives effect to Article 31 of the Refugee Convention and creates a defence for refugees who resort to criminality to reach a place of safety.
The CPS initially (and incorrectly) took the view that the defence did not apply because the appellant had spent a year in the Yemen before coming to the UK. The appellant was eventually granted asylum and the next day the CPS offered no evidence against her. She was released from custody almost six months after she was detained. She then sought damages against, inter alia, the CPS for breach of her article 8 rights arising from the decision to prosecute her.
Article 8
Suspects and defendants can undoubtedly rely on article 8 in some areas of criminal law. Private and family life is engaged by some investigatory steps (decisions to search persons, see Gillan v UK [2010] 50 EHRR 45, or property, see Niemietz v Germany [1993] 16 EHRR 97; the compulsory production of documents, see Hafner [2009] 1 WLR 1005), but not all (the decision to publish photographs to identify a young suspect, see JR38 [2015] UKSC 42; the police retention of biometric data, Goughran [2015] UKSC 29; the granting or refusal and conditions of police or court bail (Re HA’s [2014] NIQB 115).
The Court’s Decision
The question for the Supreme Court in SXH was whether a decision by a public prosecutor to bring criminal proceedings against a person falls potentially within the scope of article 8 in circumstances where:
(i) The prosecutor has reasonable cause to believe the person to be guilty of the offence with which they are charged; and
(ii) The law relating to the offence is compatible with article 8?
The answer to that question has divided the senior judiciary for some time.
In R v G [2008] UKHL 37, the House of Lords considered whether the decision to prosecute a child, following private consensual sexual intercourse with a younger child he thought was his own age, for a more serious sexual offence was disproportionate. The Court was split as to whether the decision engaged article 8 ECHR at all: Lord Hoffman and Lady Hale said it did not; Lord Hope and Lord Carswell (and Lord Phillips MR in the Court of Appeal) accepted it did and Lord Mance expressed no view, but agreed with Lord Hoffman and Lady Hale that the decision was not disproportionate. G’s appeal to Strasbourg was declared inadmissible – a decision consistent with the absence of any ECHR authority for article 8 applying to prosecutorial decision-making.
In SXH, the appellant argued that the implications that flowed from a decision to prosecute would interfere with the enjoyment of her private life. The Supreme Court unanimously rejected that consequentialist argument. Lord Toulson, giving the lead judgment with which Lords Mance, Reed and Hughes agreed, held that if the criminalisation of conduct does not itself amount to an unjustifiable interference with article 8 rights, then neither does a decision to prosecute for that conduct.
So, the prosecution of an article 8 compliant offence will not engage article 8. Intriguingly, however, the appellant attempted during oral argument to extend her challenge to the conduct of the CPS between the decisions to prosecute and to offer no evidence, i.e. the CPS should have realised sooner that the defence was unanswerable and the continuation of the prosecution engaged article 8. The appellant was not permitted at that late stage to broaden the question for the Court to consider and so it was left undetermined.
The future
Where does SXH leave challenges to investigatory and prosecutorial decisions? Rationality-based judicial review claims remain the weapon of choice for suspects and defendants (see most recently SOMA v SFO [2016] EWHC 2471), but SXH left the door open to further article 8 arguments. The Court’s reasoning that article 8 was not engaged relied on the concession that it was reasonable for the prosecutor to conclude that the evidential threshold was met at the time of the decision to prosecute. Where that concession is not made and the decision is not reasonable, or where the position has moved on after an initially sustainable decision, there is scope to argue that article 8 applies. In other words, and perhaps unsatisfactorily, article 8 could bite on bad investigatory and prosecutorial decision-making.
Support for this argument is found in the judgment of Lord Kerr, who has repeatedly contended for a more expansive approach to article 8 in criminal matters (see, Beghal [2015] UKSC 49 and JR38, supra). In SXH, Lord Kerr gave a concurring judgment, but dissented in his reasoning. He observed, citing existing authority, that the failure by the prosecution in its duty to act on a change in circumstances, which renders detention no longer justified, could engage and breach article 5, and it follows, article 8.
At the centre of the decisions in G and SXH is a reluctance to extend the scope of human rights to matters already catered for by the common law. Lord Hoffman put it bluntly in G:
“This case is another example of the regrettable tendency to try to convert the whole system of justice into questions of human rights.”
But today’s heresy is tomorrow’s orthodoxy, and it may not be long before we see article 8 biting on some prosecutorial decisions.
