SXH v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford,Lord Justice Beatson,Lady Justice Gloster |
| Judgment Date | 06 February 2014 |
| Neutral Citation | [2014] EWCA Civ 90 |
| Docket Number | Case No: A2/2013/0530 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 February 2014 |
[2014] EWCA Civ 90
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
MR JUSTICE IRWIN, QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pitchford
Lord Justice Beatson
and
Lady Justice Gloster
Case No: A2/2013/0530
Richard Hermer QC, Richard ThomasandEdward Craven (instructed by Bhatt Murphy, Solicitors) for the Appellant
Philip Havers QC, Neil SheldonandAndrea Lindsay-Strugo (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 8 November 2013
Approved Judgment
The appeal
On 22 December 2010 the appellant brought an action for damages against the Crown Prosecution Service ("CPS"), relying on section 7 of the Human Rights Act 1998. On 29 December 2009, shortly after her arrival in the United Kingdom from Holland to claim asylum, the appellant was charged with an offence, contrary to section 25(1) of the Identity Cards Act 2006, that she was in possession of a false identity document with the intention of using the document for establishing a registrable fact within the meaning of section 25 (4). On 11 June 2010, at Chelmsford Crown Court, the prosecution offered no evidence and a formal verdict of not guilty was entered. In the meantime the appellant had been remanded in custody to await trial and it was her contention that her mental health had, for that reason, suffered. The appellant claimed that the decision by the respondent to prosecute her constituted an unlawful interference with the right of respect for her private life within the meaning of Article 8 (1) of the European Convention on Human Rights ("ECHR") which entitled her to damages.
In his judgment dismissing the claim, handed down on 1 February 2013, Irwin J held that Article 8 was not engaged on the facts of the case; alternatively, if it was, the decision to prosecute was in accordance with the law, necessary in a democratic society and proportionate to the legitimate aim of the prevention of disorder or crime. This appeal from Irwin J's decision raises, in particular, the questions: (1) whether Article 8 is engaged by a decision to prosecute for an offence that is Convention compliant, and (2) if so, whether the decision to prosecute in the appellant's case was proportionate for the purpose of Article 8 (2).
The facts
The background facts are fully described by Irwin J in his judgment ( [2013] EWHC 71 (QB)) at paragraphs 4–37 and I shall confine my summary to the essentials. The appellant was born on Koyama Island in Somalia on 26 December 1991. She is a member of the Bajuni minority clan. In 2005 her father was killed by members of the Darood clan. Her brother was a fisherman. In 2007 he did not return from fishing during rough weather and has not since been seen. In the same year, the home of the appellant and her disabled mother was again attacked by the Darood clan and the appellant was raped. With assistance from a family friend, Adam, the appellant and her mother fled to Subururu on the mainland where they were given shelter. In 2008 fighting took place between Al-Shabaab and the local Barawa people. During an attack on the house where the appellant was living her mother was killed and the appellant herself was injured by a blow to the head with a rifle butt. The appellant and Adam fled to Yemen in December 2008. Adam arranged for an agent, Abdul Rahim, to accompany the appellant to the United Kingdom. They embarked in a plane to Europe and transferred to a train. They arrived in Holland on Christmas Day 2009 where Abdul Rahim supplied the appellant with a false refugee travel document of British origin (false in that it had been issued to another person). The appellant flew from Eindhoven to Stanstead on 27 December 2009, the day after her 18 th birthday. Her travel document was examined by Immigration Officer Brennen. Neither the name nor the photograph matched the appellant. The appellant claimed asylum.
The appellant's screening interview took place at 12.35 pm the following day, 28 December. She told Immigration Officer Evans that she had come from Somalia for her safety. There was a war in Somalia and she belonged to a minority clan who were attacked by the Darood. The appellant was told by Immigration Officer Webb that she could return to Holland if she wished. If she did not do so she would be arrested. The appellant declined to return to Holland and at 2.15 pm she was arrested on suspicion of attempting to enter the United Kingdom in possession of a false document contrary to section 25 of the Identity Cards Act 2006. The appellant was interviewed under caution at 6.52 pm. She said that she had fled from Somalia to Yemen in December 2008 and had travelled to Europe in December 2009. She was asked to look at the travel document she had produced on arrival. She said that the agent had given it to her. She claimed that the agent had taken her to a place where her photograph was taken but she could not say whether the photograph in the document was hers, nor whether the document had been issued in her name. Asked why she had not claimed asylum in Holland, the appellant said she knew nothing about Holland and had been advised to come to the UK. She was subsequently charged and later remanded in custody by the magistrates court.
The police referred the circumstances of the appellant's case to the CPS. Between 7.35 pm and 8.00 pm on 28 December Ms Jo Golding reviewed the case under the Code for Crown Prosecutors. The police were advised that the evidential criteria were met. As to the public interest criteria Ms Golding advised that the offence was serious, it was likely to result in a "significant" sentence and that "prosecution would have [a] positive impact on community confidence". As a result the appellant was charged with the section 25 offence.
On 28 January 2010 the case was reviewed by Ms Charlotte Davison, a barrister employed by the CPS, specifically upon the question whether the statutory defence under section 31 of the Immigration and Asylum Act 1999 applied to the appellant. As to the appellant's journey from Yemen and Eindhoven, Ms Davison drew attention to the decision of the House of Lords in R v Asfaw (UN High Commission for Refugees Intervening) [2008] UKHL 31, [2008] 1 AC 1061 which held that a genuine refugee was not to be deprived of the section 31 defence merely because she was in transit in the UK to the country in which asylum would be sought. Ms Davison requested information from UKBA as to whether the section 31 defence was available to the appellant.
No response had been received from UKBA by 22 February 2010 when the appellant appeared at Chelmsford Crown Court for a plea and case management hearing. Ms Helen Booth, who appeared for the appellant, submitted a skeleton argument in which it was asserted that the appellant was a refugee entitled to rely on the section 31 defence. On 28 April 2010 Ms Davison, by email, sought specific information from UKBA as to the appellant's stay in Yemen. She enquired whether the transcript of interview, which recorded the date of her departure from Somalia as December 2008, was accurate. On the following day it was confirmed that the appellant had remained in Yemen for a year before making her journey to Holland. She was wrongly informed, however, that Yemen was not a signatory to the Refugee Convention. On 4 May Ms Davison advised that the CPS was minded to proceed with the prosecution. No explanation had been given as to why the appellant had not claimed asylum in Yemen.
The appellant's asylum interview took place on 26 May 2010. At some time between 1 June and 8 June, the CPS advocate, Ms Leslie Sternberg, was informed by Immigration Officer Webb of the difficulties encountered by Somalis living in Yemen. In Ms Sternberg's view the appellant would, as a result, satisfy the requirements of section 31(2). The appellant could not reasonably be expected to have been given protection under the Refugee Convention in Yemen. On 10 June the appellant was granted asylum. On 11 June the appellant's case was listed for mention at the Crown Court when the prosecution offered no evidence and the appellant was released from custody.
The statutory and Convention provisions
Section 6 of the Human Rights Act 1998 provides:
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section "public authority" includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament."
By section 8 a court may in civil proceedings award damages against a public authority which has acted unlawfully in relation to the claimant. Section 7, so far as is relevant, provides:
"7 Proceedings.
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6 (1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or...
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