SXH v The Crown Prosecution Service (CPS): SC 11 Apr 2017

The Court was asked: ‘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?’ The appellant a Somali national fled and sought asylum here. Her identity papers were false, and she was charged under the 2006 Act despite agreement that she would not have been able to obtain proper papers.
Held: The appeal failed. When deciding whether to institute criminal proceedings, the Crown Prosecution Service (‘CPS’) must to apply a two stage test; first, whether there is enough evidence to provide a realistic prospect of conviction; if so whether the prosecution would be in the public interest.
Article 8 while broad was not so broad as to include all acts of a public authority even when they might encroach more than minimally on the lives of individuals.
Lord Toulson said: ‘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.’
Lord Mance, Lord Kerr, Lord Reed, Lord Hughes, Lord Toulson
[2017] UKSC 30, [2017] WLR(D) 270, [2017] Crim LR 712, [2017] 1 WLR 1401, UKSC 2014/0148
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video Summary
Identity Cards Act 2006, European Convention on Human Rights
England and Wales
CitedRegina v Fregenet Asfaw HL 21-May-2008
The House considered the point of law: ‘If a defendant is charged with an offence not specified in section 31(3) of the Immigration and Asylum Act 1999, to what extent is he entitled to rely on the protections afforded by article 31 of the 1951 . .
Appeal fromSXH v Crown Prosecution Service CA 6-Feb-2014
The claimant challenged being charged with an offence under the 2006 Act, saying that it engaged and interfered with her Article 8 Human Rights. A Somali national, she fled, claiming asylum here, but her travel documents were found to be false. All . .
CitedRegina v G (Secretary of State for the Home Department intervening) HL 18-Jun-2008
The defendant was fifteen. He was convicted of statutory rape of a 13 year old girl, believing her to be 15. He appealed saying that as an offence of strict liability he had been denied a right to a fair trial, and also that the offence charged was . .
CitedG v The United Kingdom ECHR 30-Aug-2011
The appellant aged 15, had sexual intercourse with a girl aged 12. He pleaded guilty to a charge of rape of a child under 13, contrary to section 5 of the 2003 Act, on the written basis that the intercourse was consensual in fact (although by reason . .
CitedMichael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
CitedCalveley v Chief Constable of the Merseyside Police HL 1989
Police officers brought an action in negligence against a Chief Constable on the ground that disciplinary proceedings against them had been negligently conducted. They claimed that the investigating officers had negligently failed to conduct the . .
CitedElguzouli-Daf v Commissioner of Police of the Metropolis and Another CA 16-Nov-1994
The Court upheld decisions striking out actions for negligence brought by claimants who had been arrested and held in custody during criminal investigations which were later discontinued. The Crown Prosecution Service owes no general duty of care to . .
CitedE and Others, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Jun-2011
Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. . .
CitedBrooks v Commissioner of Police for the Metropolis and others HL 21-Apr-2005
The claimant was with Stephen Lawrence when they were both attacked and Mr Lawrence killed. He claimed damages for the negligent way the police had dealt with his case, and particularly said that they had failed to assess him as a victim of crime, . .
CitedHertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .

Cited by:
CitedRobinson v Chief Constable of West Yorkshire Police SC 8-Feb-2018
Limits to Police Exemption from Liability
The claimant, an elderly lady was bowled over and injured when police were chasing a suspect through the streets. As they arrested him they fell over on top of her. She appealed against refusal of her claim in negligence.
Held: Her appeal . .
CitedJames-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.581648