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Asylum seeker's human rights claim over dropped prosecution refused

12 April 2017

It is not a breach of the article 8 right to private and family life to detain someone on a matter which is properly the subject of the criminal law and for which there is sufficient evidence, the UK Supreme Court ruled yesterday.

Five judges unanimously dismissed an appeal by a Somali woman, SXH, who was charged under the Identity Cards Act 2006 with presenting a false passport on arriving in the UK in 2009, at which point she claimed asylum. She had been arrested and remanded in custody after an initial asylum screening interview.

A member of a minority clan, SXH and her family had suffered serious ill treatment in Somalia; SXH had been raped and beaten. In 2008 she had fled to Yemen and a year later travelled to Holland, from where she flew to the UK using the false passport. The Crown Prosecution Service considered she could not use the defence in s 31 of the Act (refugees who come directly from a country where under threat and who claim as soon as reasonably practicable), because of her year in Yemen. However criminal proceedings were adjourned when it was thought an asylum application was likely to be granted, and dropped after the CPS further researched the position in Yemen, at which point SXH was released.

The High Court and Court of Appeal held that the decision to prosecute could only engage article 8 if the prosecution targeted an activity which could credibly claim to be an exercise of an article 8 right; presenting an immigration officer with false papers was not an activity that formed part of SXH’s private life.

Lord Toulson, with whom Lord Mance, Lord Reed and Lord Hughes agreed (Lord Kerr gave a concurring judgment), said that although article 8 was broad, it was not so broad as to encompass everything done by a public authority which had the consequence of affecting someone’s private life in a more than minimal way. Neither the Strasbourg authorities nor domestic case law supported the contention that the institution of criminal proceedings, for a matter which was properly the subject of the criminal law and for which there was sufficient evidence, might be open to challenge on article 8 grounds. The criminalisation of conduct might amount to an interference with article 8 rights, but if it did not amount to unjustifiable interference, then neither did the decision to prosecute for that conduct.

He added: "The difficulty for the appellant in advancing the claim that the decision to prosecute her was a violation of her human rights is that it is accepted that the offence under s 25 is compliant with her Convention rights, and it was conceded in the courts below that the CPS was reasonably entitled to conclude at the time of the decision to prosecute that the evidential test was satisfied. It is difficult to envisage circumstances in which the initiation of a prosecution against a person reasonably suspected of committing a criminal offence could itself be a breach of that person’s human rights. It is true that the CPS is not bound to prosecute in every case, depending on its view of the public interest, but I do not see that the fact that in this jurisdiction a prosecution is not obligatory makes a difference. Whether it is in the public interest to prosecute is not the same as whether a prosecution would unjustifiably interfere with a right protected by article 8."

If article 8 was applicable, there was no breach: "even if the original decision to prosecute was an error of judgment by the CPS, it would not in my view have involved a breach of article 8. It would be a different thing if the state deliberately trumped up false charges against someone as a form of harassment. In terms of domestic law, that would involve the torts of malicious prosecution or misfeasance in public office or both, to which article 8 would add nothing; but no duty of care is owed by the police towards a suspect..., and the same applies to the CPS". 

Click here to access the judgments.

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