UK Supreme Court on Article 8 of ECHR


The question before the Supreme Court was whether a decision by a public prosecutor to bring criminal proceedings against a person fall potentially within the scope of article 8 of the European Convention on Human Rights in circumstances where a) the prosecutor has reasonable cause to believe the person to be guilty of the offence with which they are charged and b) the law relating to the offence is compatible with article 8?

The appellant was born in Somalia and was a member of a minority clan. She and her family suffered severe violence from majority clans over many years which included the murder of her parents. The appellant fled from Somalia with a friend and she spent the next year living in Yemen. Then she left Yemen with an agent and flew to an unknown destination in Europe, from where she travelled to Eindhoven in Holland and then she flew from Eindhoven to the UK on a false passport provided to her by an agent. She attempted to pass through immigration control using a British passport but was stopped and challenged by immigration officers from the United Kingdom Border Agency (UKBA). She immediately claimed asylum and gave her true name and date of birth. She was arrested on suspicion of committing an offence under section 25(1) of the 2006 Act which makes it an offence punishable with up to ten years’ imprisonment for a person to be in possession of an identity card relating to somebody else, with the intention of using it to establish his identity as that person’s identity. Then a CPS lawyer reviewed the file. She applied the full code test under the Code for Crown Prosecutors and concluded that both the evidential test and the public interest test were satisfied. Later the appellant was granted asylum. On the next day the prosecution offered no evidence at a mention hearing at the Crown Court and the appellant was found not guilty and released from custody. Then she issued proceedings against the CPS for damages on various grounds including breach of her rights under article 8. She was unsuccessful in the lower courts.

The Supreme Court observed that different states who are parties to the Convention have different institutions and processes for the investigation and prosecution of offences. The CPS was established by the Prosecution of Offences Act 1985. Its essential functions are to advise the police and others, including immigration officers, on the institution of criminal proceedings and to take over the conduct of such proceedings. The head of the CPS is the Director of Public Prosecutions (DPP). Under section 10 the DPP is required to issue a Code for Crown Prosecutors. The code requires prosecutors to apply a two-stage test in deciding whether a person should be prosecuted for an offence. The first stage involves considering whether there is enough evidence to provide a realistic prospect of conviction. If that requirement is satisfied, the second stage involves deciding whether a prosecution would be in the public interest, which may entail weighing a wide variety of considerations.

Dismissing the appeal, the Supreme Court held that the duty of the CPS is to the public, not to the victim or to the suspect, who have separate interests. To recognise a duty of care towards victims or suspects or both, would put the CPS in positions of potential conflict, and would also open the door to collateral interlocutory civil proceedings and trials, which would not be conducive to the best operation of the criminal justice system. Similar considerations are relevant when considering the applicability of article 8 in the context of a decision to prosecute. A decision to prosecute does not of 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, which will itself be responsible for deciding ancillary questions of bail or remand in custody and the like.