Decision to prosecute didn’t breach the ECHR, art 8


Re: SXH v The CPS [2017] UKSC 30

On appeal from: [2014] EWCA Civ 90

This appeal considered whether the appellant’s entry into the UK as an asylum seeker and the decision to prosecute her for entering with false travel documentation engaged ECHR, art 8. It also considered what the appropriate threshold is for engaging art 8, and whether the decision to prosecute was disproportionate. The Supreme Court unanimously dismissed the appeal. The Court held that ECHR, art 8 rights are broad but do not encompass everything done by a public authority that has the consequence of impacting someone’s private life in a more than minimal way. There was no authority to suggest that the institution of criminal proceedings, for a matter which is the subject of criminal law and for which there is sufficient evidence, may be open to a challenge on ECHR, art 8 grounds. The Court held that the decision to prosecute did not amount to a breach of the ECHR, art 8 where it was accepted that there was an evidential basis for prosecution at the time of the decision. Likewise, it was submitted that it did not matter that prosecution is not obligatory in the UK, and whether it is in the public interest to prosecute is different to whether a prosecution would breach an individual’s ECHR, art 8 rights. A decision to prosecute does not itself involve a lack of respect for the autonomy of the defendant but rather places the question of their guilt before the court.

Richard Hermer QC, Raza Husain QC and Edward Craven were involved in this case.