Philip Havers QC and Neil Sheldon appeared for the Crown Prosecution Service (CPS) in SXH v CPS. The Supreme Court held that Article 8 of the Convention did not apply to the CPS’s decision to prosecute.

Philip and Neil were instructed by the Government Legal Department.

The case involved the CPS’s decision to prosecute an individual who had used a false identity card to enter the UK, where she applied for asylum. The appellant claimed that the decision was a violation of her rights under Article 8 of the Convention. The Supreme Court refused her appeal.

Although Article 8 is broad, it is not so broad as to encompass everything done by a public authority which has affects someone’s private life, and there was no Strasbourg or domestic authority to support the argument that a prosecutorial decision may be open to an Article 8 challenge.

Lord Toulson considered that it was “difficult to envisage circumstances in which the initiation of a prosecution against a person reasonably suspected of committing a criminal offence could itself be a breach of that person’s human rights”. Even if Article 8 had been engaged, it would not have been breached. The CPS owes a duty to the public, not to the individual, and a decision to prosecute does not of itself involve a lack of respect for individual autonomy, rather, it puts the question of guilt before a court.