Threshold for engaging ECHR Article 8

April 11th, 2017 by James Goudie KC

In SXH v CPS [2017] UKSC 30 the Supreme Court held that, although ECHR Article 8 is broad, it is not so broad as to encompass everything done by a public authority which has the consequence of affecting someone’s private life in a more than minimal way. Neither the Strasbourg authorities nor domestic case law supports the contention that the institution of criminal proceedings, for a matter which is properly the subject of the criminal law and for which there is sufficient evidence, may be open to challenge on Article 8 grounds. It would be illogical; for if the matter is properly the subject of the criminal law, it is a matter for the processes of the criminal law. The criminalisation of conduct may amount to an interference with Article 8 rights. However, if it does not amount to an unjustifiable interference, then neither does the decision to prosecute for that conduct.

It was argued that Article 8 applied to the decision to prosecute for two reasons: it “targeted” conduct which was itself protected by Article 8, and its consequences were to interfere with the enjoyment of the appellant’s private life. It was submitted that the range of Article 8 is broad, that the threshold for it to apply is low, and that it is almost inevitable that the decisions of the CPS, as a public body, will impact on the private life of the defendant and so engage Article 8.  It was argued that anything done by a public body which has the consequence of affecting someone’s private life in a more than minimal way involves interference with respect for it within the meaning of Article 8.

The Supreme Court said that, broad as Article 8 undoubtedly is, the consequentialist argument advanced was far too broad. Lord Toulson took an example far removed from the present case. If a highway authority closes a road for roadworks, or introduces a partial closure, there may be a more than minimal effect on how long it takes residents to get to work, but that cannot be enough to make Article 8 applicable. “Such matters are part of the ordinary incidents of daily life in a community and involve no lack of respect for personal autonomy of the kind which Article 8 is designed to protect”.

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