SXH v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Toulson,Lord Mance,Lord Reed,Lord Hughes,Lord Kerr |
| Judgment Date | 11 April 2017 |
| Neutral Citation | [2017] UKSC 30 |
| Date | 11 April 2017 |
| Court | Supreme Court |
[2017] UKSC 30
Lord Mance
Lord Kerr
Lord Reed
Lord Hughes
Lord Toulson
Appellant
Richard Hermer QC
Richard Thomas
Edward Craven
(Instructed by Bhatt Murphy Solicitors)
Respondent
Philip Havers QC
Neil Sheldon
(Instructed by The Government Legal Department)
Intervener (United Nations High Commissioner for Refugees)
Raza Husain QC
Paul Luckhurst
Jason Pobjoy
(Instructed by Baker & McKenzie LLP)
Heard on 19 July 2016
(with whom Lord Mance, Lord Reed and Lord Hughes agree)
Does 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? That is the primary question raised by this appeal and it is one of general importance.
If that question is answered in the affirmative, the question arises whether in the present case the decision by the respondent ("the CPS") to charge the appellant with the offence of possessing a false document under section 25(1) of the Identity Cards Act 2006 was a violation of her article 8 rights.
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, section 1. 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: section 3(2)(a)(aa)(e) and (ec). 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.
The CPS is a body independent of the investigating authority, whether it be the police or immigration or other authority, and also independent of the court before which any prosecution may be brought.
Under section 25(1) of the Identity Cards Act 2006 (now substantially re-enacted by section 4 of the Identity Documents Act 2010), it was 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. But it has long been recognised that those fleeing persecution may have to resort to deceptions such as possession and use of false papers in order to make good their escape: R v Asfaw (United Nations High Commissioner for Refugees intervening) [2008] 1 AC 1061, para 9, per Lord Bingham. Article 31(1) of the 1951 Convention and Protocol relating to the Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906) ("the Refugee Convention") prohibits contracting states from imposing penalties, on account of their illegal entry or presence, on refugees coming directly from a territory where their life or freedom was threatened, provided that they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
Article 31 of the Refugee Convention has been given effect in domestic law by section 31 of the Immigration and Asylum Act 1999, which applies to offences including those under section 25 of the Identity Cards Act 2006. Section 31(1) of the 1999 Act provides:
"It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he —
i) presented himself to the authorities in the United Kingdom without delay;
ii) showed good cause for his illegal entry or presence; and
iii) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom."
Although on a literal reading the defence might not be thought to apply to a person who stopped over in an intermediate country en route from the country of persecution to their country of intended refuge, in Asfaw the House of Lords held that article 31 of the Refugee Convention and section 31 of the 1999 Act were to be given a purposive interpretation consistent with their humanitarian aims, and that the protection given by them was not excluded by a short-term stopover in an intermediate country.
The appellant was born on an island in Somalia on 26 December 1991. She is a member of a minority clan. She and her family suffered severe violence from majority clans over many years. The violence included the murder of her father in 1995 and, two years later, the rape of the appellant herself in front of her disabled mother. After that attack she and her mother moved to the mainland, but in 2008 another militant gang murdered her mother and beat the appellant senseless with a rifle.
In December 2008 the appellant fled from Somalia with a friend and she spent the next year living in Yemen. On 25 December 2009 the appellant left Yemen with an agent and flew to an unknown destination in Europe, from where she travelled to Eindhoven in Holland. On 27 December she flew from Eindhoven to the UK on a false passport provided to her by an agent.
On arrival at Stansted Airport on the evening of 27 December the appellant attempted to pass through immigration control using a British passport. She was stopped and challenged by immigration officers from the United Kingdom Border Agency (UKBA), part of the Home Office. She immediately claimed asylum and gave her true name and date of birth. She was detained overnight.
On 28 December the appellant had an initial asylum screening interview in which she described how she had left Somalia and come to the UK. She explained her reasons in summary and said that she was in fear of her life if she were to return home. Later that day the appellant was told by an immigration officer, IO Webb, that she could return to Holland and, if so, she would not be prosecuted. The appellant declined to return to Holland and maintained her claim for asylum. Thereafter she was arrested on suspicion of committing an offence under section 25(1) of the 2006 Act.
On the same day the appellant was interviewed at Stansted Airport Police Station by IO Webb. The appellant was represented at that stage by a duty solicitor. Her account of her movements and her personal circumstances was consistent with her earlier account. When asked why she had not claimed asylum in Holland, she said that she knew nothing about Holland and had been advised to travel to the UK to claim asylum.
On the evening of 28 December a CPS lawyer, Ms Jo Golding, 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.
It was accepted on the appellant's behalf in the courts below that the CPS was reasonably entitled to consider that the evidential test was satisfied at the time when the decision to prosecute was taken.
On 29 December the appellant appeared before a magistrates' court and was remanded by the court in custody. On 11 January 2010 she attended a preliminary hearing at Chelmsford Crown Court and was again remanded in custody.
On 28 January another CPS lawyer, Ms Charlotte Davison, conducted a full review of the case. She raised a question about what consideration UKBA had given to the availability of a defence under section 31. On 22 February a Plea and Case Management Hearing took place at the Crown Court. The appellant's counsel served the CPS with a skeleton argument that the proceedings should be dismissed because her case fell within the scope of the section 31 defence. It appears from the Crown Court minute sheet that the prosecution had not received the skeleton argument in advance and it was agreed that the application should be adjourned.
After further exchanges between the CPS and UKBA, Ms Davison's view was that the period of a year spent by the appellant in Yemen took her outside the scope of section 31 and that she was minded to proceed with the prosecution.
On 26 May the appellant's full asylum interview took place. Six days later, on 1 June, the appellant appeared before Chelmsford Crown Court. The CPS was on this occasion represented by a CPS advocate, Ms Lesli Sternberg. At the hearing IO Webb told Ms Sternberg that a decision on the appellant's asylum application was expected shortly and that it was likely to be granted. In those circumstances the appellant's application to dismiss the proceedings was adjourned until 14 June.
After the hearing Ms Sternberg researched the position of Somali refugees in Yemen. Although Yemen was party to the Refugee Convention it appeared that the procedure for bringing it into effect was poor. Ms Sternberg's view was that, subject to confirmation of the grant of asylum, the prosecution should not continue because it would not be in the public interest.
On 10 June the appellant was granted asylum. On the next day the prosecution offered no evidence at a mention hearing at the Crown Court. The appellant was found not guilty...
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