“This woman, in her short life, has had to endure experiences of the most horrific nature,” is how Lord Kerr described the appellant’s ordeal. However, the Supreme Court dismissed the Somali refugee’s appeal. Giving the main judgment, Lord Toulson held that a decision to prosecute an asylum seeker for entering with false documents does not breach article 8 of the ECHR. A victim of rape and extreme violence, “SXH” belonged to the minority Bajuni community. The Darood clan murdered her father. Her mother died in Al-Shabaab related violence. She escaped from Somalia, spent a year in Yemen and travelled to Holland from where she flew to the UK using a false British convention travel document supplied by an agent. Upon being discovered at UK immigration control she disclosed her true identity and immediately claimed asylum. After her asylum screening interview, an immigration officer informed her that if she returned to Holland she would not be prosecuted for the offence of possessing an identity document relating to someone else, with the intention of using it to establish her identity as that person’s identity, under section 25(1) of the Identity Cards Act 2006. She refused the offer, pressed her asylum claim and was consequently arrested on suspicion of committing the offence.
A conviction under section 25 was punishable with up to ten years’ imprisonment (section 25 was re-enacted by section 4 of the Identity Documents Act 2010). UNCHR intervened in these proceedings The Prosecution of Offences Act 1985 created the CPS which is an autonomous body advising police, immigration and other officials on bringing criminal charges. The DPP heads the CPS and section 10 of the 1985 Act requires her to issue a Code for Crown Prosecutors which obliges prosecutors to apply a two-stage test in deciding whether someone should be prosecuted for an offence. Stage one is connected to considering whether sufficient evidence exists to provide a realistic prospect of conviction. Stage two turns on wide-ranging considerations and involves deciding whether a prosecution would be in the public interest.
Contracting states are prohibited, under article 31(1) of the Refugee Convention 1951, from penalising refugees fleeing persecution if they promptly submit themselves to the authorities and show good cause for their illegal entry or presence. This defence is replicated in section 31 of the Immigration and Asylum Act 1999 and the provision covers the section 25 offence if the refugee comes to the UK “directly from a country where his life or freedom was threatened”.
In R v Asfaw  UKHL 31, recalling the Refugee Convention’s broad humanitarian aims Lord Bingham explained that minority persons fleeing persecution “may have to resort to deceptions of various kinds (possession and use of false papers, forgery, misrepresentation, etc) in order to make good their escape.” His Lordship interpreted “directly” purposively and the defence is not excluded by a temporary stopover in an intermediate country. Initially it was thought that the defence was unavailable because SXH had spent a year in Yemen which is a party to the Refugee Convention. However, because she was granted asylum it was not in the public interest to prosecute her.
The Lower Courts
SXH instituted proceedings against the CPS for damages on numerous grounds including a breach of her article 8 rights. Iriwn J dismissed the claim because presenting an immigration officer with false papers was not an activity that formed part of SXH’s private life, but was self-evidently a matter affecting the business of the state. Article 8 was only engaged where a decision to prosecute meant that prosecutors targeted an activity which could credibly claim to be an exercise of an article 8 right. The Court of Appeal agreed. Pitchford LJ found that section 25 did not interfere with article 8 rights. His Lordship held that it did not impede SXH’s ability to claim asylum, and the possession of false identity documentation with intent to deceive at the point of border control was not an expression of personal autonomy.
The appeal raised the issue whether a decision by a public prosecutor to bring criminal proceedings against someone falls potentially within the scope of article 8 in circumstances where reasonable cause exists to believe that the accused person is guilty of the offence and the law connected to the offence is compatible with article 8.
The Supreme Court
The court did not allow the oral introduction of a new argument that SXH’s prosecution constituted a breach of her article 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 article 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 article 6 of the ECHR rather than to the broader structure of article 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 article 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 article 8 had a twofold application to prosecute. It not only “targeted” conduct which was itself protected by article 8, but its consequences also interfered with the enjoyment of the SXH’s private life. The width of article 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 article 8. However, the submission fell into difficulties for being “far too broad” because article 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  UKHL 37 concerned article 8’s application to prosecute an offence contrary to section 5 (rape of a child under 13) of the Sexual Offences Act 2003. 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 section 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  ECHR 1308, Strasbourg held that his complaint was inadmissible. The ECtHR explained that not every sexual act in private fell within article 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 article 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  EWHC 1465, Munby LJ observed an unmistakable absence of any reported case holding that article 8 could be used to challenge criminal proceedings for a matter falling squarely within the criminal law. As Lord Toulson elucidated:
32. … 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 article 8 rights. Reiterating the role of article 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 article 8, no more does a decision to prosecute for that conduct.
The lower courts had been right that article 8 did not apply to a decision to prosecute. Finding flaws with the initial decision to prosecute fell into difficulties because section 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 article 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 section 31 defence would succeed was worthy of criticism but the failure would not amount to a breach in the decision to prosecute even if article 8 was applicable. Article 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 article 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:
38. … 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 section 31 defence entailed an interference with her freedom of liberty under article 5 and article 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  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  UKPC 27 and R v Powell/English  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.