“(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.”
“5 Right to liberty and security 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) ..... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) ... (e) ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
“25 (1) It is an offence for a person with the requisite intention to have in his possession of under his control – (a) an identity document that is false and that he knows or believes to be false; (b) an identity document that was improperly obtained and that he knows or believes to have been improperly obtained; or (c) an identity document that relates to someone else. (2) The requisite intention for the purposes of sub-section (1) is – (a) the intention of using the document for establishing registrable facts about himself … (6) A person found guilty of a offence under sub-section (1) … shall be liable, on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine or both …” (a) an identity document that is false and that he knows or believes to be false; (b) an identity document that was improperly obtained and that he knows or believes to have been improperly obtained; or (c) an identity document that relates to someone else. (2) The requisite intention for the purposes of sub-section (1) is – (a) the intention of using the document for establishing registrable facts about himself … (6) A person found guilty of a offence under sub-section (1) … shall be liable, on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine or both …”
“31 Defences based on Article 31(1) of the Refugee Convention (1) 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 – (a) presented himself to the authorities in the United Kingdom without delay; (b) showed good cause for his illegal entry or presence; and (c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom. (2) If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country …” (1) 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 – (a) presented himself to the authorities in the United Kingdom without delay; (b) showed good cause for his illegal entry or presence; and (c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom. (2) If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country …”
“2 Entering United Kingdom without a passport etc. (1) A person commits an offence if at a leave or asylum interview he does not have with him an immigration documents which – (a) is in force, and (b) satisfactorily establishes his identity and nationality and citizenship. … (3) But a person does not commit an offence under sub-section (1) … if – (a) the interview referred to in the sub-section takes place after the person has entered the United Kingdom, and (b) within the period of three days beginning with the date of the interview the person provides to an immigration officer or to the Secretary of State a document of the kind referred to in that sub-section. (4) It is a defence for a person charged with an offence under sub section (1) – (a) … (b) … (c) to prove that he had a reasonable excuse for not being in possession of a document of the kind specified in sub-section (1) …” (1) A person commits an offence if at a leave or asylum interview he does not have with him an immigration documents which – (a) is in force, and (b) satisfactorily establishes his identity and nationality and citizenship. … (3) But a person does not commit an offence under sub-section (1) … if – (a) the interview referred to in the sub-section takes place after the person has entered the United Kingdom, and (b) within the period of three days beginning with the date of the interview the person provides to an immigration officer or to the Secretary of State a document of the kind referred to in that sub-section. (4) It is a defence for a person charged with an offence under sub section (1) – (a) … (b) … (c) to prove that he had a reasonable excuse for not being in possession of a document of the kind specified in sub-section (1) …”
“The contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
“15. What, then, was the broad purpose sought to be achieved by Article 31? Self-evidently it was to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaching the law. In the course of argument my Lord suggested the following formulation: “Where the illegal entry or use of false documents or delay can be attributed to a bona fide desire to seek asylum, whether here or elsewhere, that conduct should be covered by Article 31.”
“24. When the bill which became the 1999 Act was before Parliament, the Divisional Court judgment in Adimi[2001] QB 607 loomed largely in the discussion … A number of statements made by the Attorney General on behalf of the Government were relied on in argument. The Government wanted an outcome which properly accommodated Article 31(1), asylum seekers and the difficulties raised by Simon Brown LJ (18 October, col 857). It was hoped to achieve this and avoid inappropriate prosecutions by giving administrative guidance to the prosecuting authorities (18 October, cols 855, 856) but if such prosecutions did occur the defence would exist (18 October, col 857). This was an appropriate and generous response and solution to difficult problems (18 October, col 857). On2 November 1999 , when the clause which became section 31 was (before amendment) introduced, the Attorney General said (col 784) that the purpose of the amendment was to ensure that someone who came withinArticle 31(1) of the Convention was properly protected and did not have a penalty imposed on him on account of his illegal entry or presence. He referred again to the administrative steps taken to identify Article 31(1) issues at an early stage. In relevant cases therefore the matter would never come to court. Sometimes the administrative procedures would fail, and the defence was a further safeguard. He acknowledged as an addition the requirement in sub-section (1) that a person would have applied for asylum as soon as was reasonably practical, which he considered a fair addition. This was a narrower definition than that adopted by the Divisional Court, but he thought the Government was entitled to take its own view and it had taken a different view. This did not mean (col 785) that every refugee that passes through a third country would be prosecuted, which did not and would not happen. There should be a limit on “forum shopping”, deciding to accept an offer of safety in country B or C, but not in country A. The definition of “coming directly” was a generous one. There had to come a time when an individual stopped running away, the Article 31 situation, and started to travel towards a preferred destination. The Attorney General believed that the Government had got it right, but if the list of offences in sub-sections (3) and (4) needed to be added to, this could be done by Order. 25. It is clear that in one respect, expressed in section 31(2), it was intended to depart from Adimi. Whether that sub-section is consistent with the Convention, interpreted in the light of the travaux, maybe open to question, but it is not a question which arises in this case, since it has never been suggested that in coming from Ethiopia the appellant stopped in any country outside the UK where she could reasonably have been expected to be given protection under the law of that country. Sub-section (2) apart, no indication was given of an intention to depart from Adimi. More importantly, no indication was given of an intention to derogate from the international obligation of the UK as fully expounded in Adimi, as would be expected if that was the legislative intention. The indication was, rather, of an intention to reflect in statute the obligations undertaken by the UK in the Convention. 26. I am of opinion that section 31 of the 1999 Act should not be read (as the respondent contends) as limited to offences attributable to a refugee’s entry into or presence in this country, but should provide immunity, if the other conditions are fulfilled, from the imposition of criminal penalties for offences attributable to the attempt of a refugee to leave the country in the continuing course of a flight from persecution even after a short stopover in transit. This interpretation is consistent with the Convention jurisprudence to which I have referred, consistent with the judgment in Adimi, consistent with the absence of any indication that it was intended to depart in the 1999 Act from the Convention or (subject to the exception already noted) Adimi, and consistent with the humanitarian purpose of the Convention. It follows that the jury in the present case, on finding the conditions in section 31 to be met, were fully entitled to acquit the appellant on count 1, as the respondent then accepted, even though the offence was committed when the appellant was trying to leave the country after a short stopover in transit.”
“25. In the present case section 31 provides a defence to charges made under various statutory provisions relating to the use of false documents, but in view of the specific nature of that defence, the particular mischief which Parliament had in mind when enacting that section must have been the use of false passports or other identity papers to obtain entry to this country. As to the practical considerations relating to the ease or difficulty of establishing refugee status, the defendant is in the best position to know whether he is afraid of persecution in the country of his nationality or former habitual residence, but it may be difficult for him to show that his fear of persecution for a Convention reason is objectively well-founded because he is unlikely to have access to the wider country information relevant to that question. Moreover on the face of it the language of subsection (1) draws a distinction between the defendant’s status as a refugee and what, as a refugee, he has to show. Further support for the appellant’s position can be gained from subsection (7) which provides as follows: “If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is.”
“It is a defence for a refugee to show that he has come directly from the country where his life or freedom was threatened, within the meaning of the Refugee Convention; presented himself to UK authorities without delay; showed good cause for entry or presence and made a claim for asylum as soon as practicable … Nevertheless, the court and more to the point, the CPS, in deciding whether to continue the prosecution, is necessarily obliged to have regard to the terms of the statute as laying down authoritatively the nature of this country’s obligations under Article 31. It remains the case that the CPS is reliant upon the UK Border Agency for information and evidence relevant to an assessment of whether a defence under section 31 may apply. This should include information about the current status of any application for asylum. However, the fact that the defendant’s application for asylum remains undetermined should not of itself prevent or delay prosecution or conviction. In this regard, prosecutors should also be aware where a suspect’s refugee status remains to be determined by the Home Office or is the subject of an appeal to the Immigration Appellant Authority, yet the suspect has complied with all the conditions set out in sub-sections 31(1) and (2) it would normally be appropriate to await the outcome of the asylum proceedings before commencing a prosecution.”
“(iii) The term “coming directly” is to be interpreted in such a way that it does not impose an obligation solely on countries adjacent to countries of persecution. In practice the provisions of Article 31 are given a liberal interpretation, so that a person may actually travel through several countries until he eventually applies for asylum and recognition as a refugee in a country more or less of his choice, and may still get the benefit of those provisions. The implication is that if the refugee ends his journey in any of the transit countries, he would be able to invoke Article 31(1) there, too.”
“In light of all the objective information quoted above it is considered that conditions for Somalis who migrate to Yemen are very harsh. Therefore, it is considered reasonable to expect the claimant to attempt to make her way from Yemen to a country where the conditions are less desperate.”
“(i) Is Article 8 capable of being engaged by a decision to prosecute? (ii) If yes, is Article 8 engaged on the facts of this case? (iii) If yes, can the defendant justify the prosecution in the terms of Article 8(2)?”
“I fully accept that the question of consequences of prosecution arises often, and perhaps freely, when considering the justification for interference with our Article 8 rights. But there cannot be an Article 8(1) right to be considered by reason of the consequences of this prosecution. If there were, then such a right would need to be addressed in every decision to prosecute for any offence, at least where there was a potential for a custodial sentence or full remand in custody. I do not accept that is the law. Nor is it good sense. It would introduce a spongy and uncertain relativism into the criminal law.”
“2.6 The Crown Prosecution Service is a public authority for the purposes of theHuman Rights Act 1998 . Crown Prosecutors must apply the principles of the European Convention on Human Rights in accordance with the Act ….. 3.1 In most cases, Crown Prosecutors are responsible for deciding whether the person should be charged with a criminal offence, and if so, what that offence should be. Crown Prosecutors make this decision in accordance with this Code and the Director’s guidance on charging. In those cases where the police determine the charge, which are usually more minor and routine cases, they apply the same provisions ….. 5.8 Crown Prosecutors must balance factors for and against prosecution carefully and fairly. Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the suspect. Some factors may increase the need to prosecute but others may suggest that another course of action would be better.”
“Question 3: Will prosecution engage anyone’s convention rights? Answer – No. There is no need to continue with this check list. Answer – Yes. Then go to Question 4. Question 4: Will prosecution result in the restriction of a convention right? Answer – No. There is no need to continue with this check list. Answer – Yes. Then go to Question 5. Question 5: Is the right an absolute right? Answer – No. Then go to Question 6. Answer – Yes. The prosecution is NOT likely to be human rights compliant. Question 6: Is the right a qualified right? Answer – No. The prosecution is NOT likely to be human rights compliant. Answer – Yes. Then go to Question 7. Question 7: If the prosecution goes ahead will the right be limited or restricted only to extent set out in the relevant article of the ECHR? Ask: Is there a legal basis for the restriction? AND Does the restriction have a legitimate aim? AND Is the restriction necessary in a democratic society? AND Is the restriction proportionate to the legitimate aim to the achieved? Answer – No. The prosecution is NOT likely to be human rights compliant. Answer – Yes. The prosecution IS likely to be human rights compliant.”
“21. The notion of the personal autonomy of every individual marches with the presumption of liberty enjoyed in a free polity: a presumption which consists in the principle that every interference with the freedom of the individual stands in need of objective justification. Applied to the myriad instances recognised in the Article 8 jurisprudence, this presumption means that, subject to the qualifications I shall shortly describe, an individual’s personal autonomy makes him – should make him – master of all those facts about his own identity, such as his name, health, sexuality, ethnicity, his own image, of which the cases speak; and also of the “zone of interaction” (the Von Hannover case, 40 EHRR 1, para 50) between himself and others. He is the presumed owner of these aspects of his own self; his control of them can only be loosened, abrogated, if the state shows an objective justification for doing so.”
“22. This cluster of values, summarised as the personal autonomy of every individual and taking concrete form as a presumption against interference with the individual’s liberty, is a defining characteristic of a free society. We therefore need to preserve it even in little cases. At the same time it is important that this core right protected by Article 8, however protean, should not be read so widely that its claims become unreal and unreasonable. For this purpose I think there are three safeguards, or qualifications. First, the alleged threat or assault to the individual’s personal autonomy must (if Article 8 is to be engaged) attain “a certain level of seriousness”
“Everyone charged with a criminal offence shall be presumed to be innocent until proved guilty according to law.”
“31. Salabiaku was decided, in accordance with the practice of the Strasbourg Court, on its own particular facts. In so far as principles can be deduced from the decision, they might seem to be as follows: i) A provision of law imposing strict liability will not infringe article 6.1 or 6.2. ii) An evidential presumption that a criminal offence has been committed may infringe article 6.1 or 6.2. iii) An evidential presumption is more likely to infringe article 6.1 and 6.2 if it is irrebuttable than if it is rebuttable”
“40. In R v Gemmell[2002] EWCA Crim 1992 ;[2003] Cr App R 23 this court dismissed the argument that a direction that, for the purposes of recklessness, two boys were to be judged by the standard of the reasonable man, infringed Article 6. Dyson LJ held, at paragraph 33: ‘The position is quite clear. So far as Article 6 is concerned, the fairness of the provisions of the substantive law of the Contracting States is not a matter for investigation. The content and interpretation of domestic substantive law is not engaged by Article 6. It may, however, be engaged by other articles of the ECHR.’” ‘The position is quite clear. So far as Article 6 is concerned, the fairness of the provisions of the substantive law of the Contracting States is not a matter for investigation. The content and interpretation of domestic substantive law is not engaged by Article 6. It may, however, be engaged by other articles of the ECHR.’”
“9. Assuming this to be right, the case has in my opinion nothing to do with article 8 or human rights. Article 8 confers a qualified right that the state shall not interfere with what you do in your private or family life. Any interference with your conduct by the state must be necessary and proportionate for one of the purposes mentioned in article 8.2. But you either have such a right or you do not. If the state is justified in treating your conduct as unlawful, for example, because you are beating your wife or sexually abusing children, article 8 does not generate an additional right that the state shall not be too hard on you for whatever you have done because it happens to have been done at home. 10. Prosecutorial policy and sentencing do not fall under article 8. If the offence in question is a justifiable interference with private life, that is an end of the matter. If the prosecution has been unduly heavy handed, that may be unfair and unjust, but not an infringement of human rights. It is a matter for the ordinary system of criminal justice. It would be remarkable if article 8 gave Strasbourg jurisdiction over sentencing for all offences which happen to have been committed at home. This case is another example of the regrettable tendency to try to convert the whole system of justice into questions of human rights. 11. It is true that in Laskey, Jaggard and Brown v UK(1997) 24 EHRR 39 (the sado-masochism case) the Strasbourg court, in deciding whether prosecution was a proportionate interference with indulgence in such practices in private, noted (at para 49) that "reduced sentences were imposed on appeal". And in KA and AD v Belgium (Application Nos 42758/98 and 45558/99) (unreported17 February 2005 , BAILII:[2005] ECHR 110 ), a similar case from Belgium, the court also noted that the sentences were not disproportionate. But the issue in both cases was whether such activities should be criminalised at all. The judgments contain no explanation of why the sentences were thought to be relevant.”
“46. Thus there is not strict liability in relation to the conduct involved ... There is nothing unjust or irrational about a law which says that if he chooses to put his penis inside a child who turns out to be under 13 he has committed an offence (although the state of his mind may again be relevant to sentence). He also commits an offence if he behaves in the same way towards a child of 13 but under 16, albeit only if he does not reasonably believe that the child is 16 or over. So in principle sex with a child under 16 is not allowed. When the child is under 13, three years younger than that, he takes the risk that she may be younger than he thinks she is. The object is to make him take responsibility for what he chooses to do with what is capable of being, not only an instrument of great pleasure, but also a weapon of great danger. ... 48. What difference can it make that the possessor of the penis is himself under 16? There was a great deal of anxiety in Parliament about criminalising precocious sexual activity between children. The offences covered by section 13 in combination with section 9 cover any sort of sexual touching however mild and however truly consensual. As sexual touching is usually a mutual activity, both the children involved might in theory be prosecuted. Indeed, section 9 expressly contemplates that the person penetrated may be the offender. Obviously, therefore, there will be wide variations in the blameworthiness of the behaviour caught by sections 9 and 13. Both prosecutors and sentencers will have to make careful judgments about who should be prosecuted and what punishment, if any, is appropriate. In many cases, there will be no reason to take any official action at all. In others, protective action by the children's services, whether in respect of the perpetrator or the victim or both, may be more appropriate. But the message of sections 9 and 13 is that any sort of sexual activity with a child under 16 is an offence, unless in the case of a child who has reached 13 the perpetrator reasonably believed that the child was aged 16 or over. There are many good policy reasons for the law to convey that message, not only to adults but also to the children themselves.”
“54....In my view this does not engage the article 8 rights of the appellant at all, but if it does, it is entirely justified. The concept of private life "covers the physical and moral integrity of the person, including his or her sexual life" (X and Y v The Netherlands, para 22). This does not mean that every sexual relationship, however brief or unsymmetrical, is worthy of respect, nor is every sexual act which a person wishes to perform. It does mean that the physical and moral integrity of the complainant, vulnerable by reason of her age if nothing else, was worthy of respect. The state would have been open to criticism if it did not provide her with adequate protection. This it attempts to do by a clear rule that children under 13 are incapable of giving any sort of consent to sexual activity and treating penile penetration as a most serious form of such activity. This does not in my view amount to a lack of respect for the private life of the penetrating male. 55. Even supposing that it did, it cannot be an unjustified interference with that right to label the offence which he has committed "rape". The word "rape" does indeed connote a lack of consent. But the law has disabled children under 13 from giving their consent. So there was no consent. In view of all the dangers resulting from under age sexual activity, it cannot be wrong for the law to apply that label even if it cannot be proved that the child was in fact unwilling. The fact that the appellant was under 16 is obviously relevant to his relative blameworthiness and has been reflected in the second most lenient disposal available to a criminal court. But it does not alter the fact of what he did or the fact that he should not have done it. In my view the prosecution, conviction and sentence were both rational and proportionate in the pursuit of the legitimate aims of the protection of health and morals and of the rights and freedoms of others.”
“34. The Court must first determine whether Article 8 is applicable. It recalls that the concept of “private life” is a broad one and includes an individual's sexual life (see Dudgeon v. the United Kingdom,22 October 1981 , Series A no. 45; S.L. v. Austria, no. 45330/99, ECHR 2003-I), although the Court has observed that not every sexual activity carried out behind closed doors would necessarily fall within the scope of Article 8 (see Laskey, Jaggard and Brown, cited above, § 36). The concept of private life also covers the physical and moral integrity of the person, respect for which the state may be required to secure through its domestic law (see X and Y v. the Netherlands, no. 8978/80, § 22,26 March 1985 ).”
“39...Nor does the Court consider that the authorities exceeded their margin of appreciation by deciding to prosecute the applicant for this offence, particularly since the legislation permitted for a broad range of sentences and the mitigating circumstances in the appellant’s case were taken into consideration by the Court of Appeal.” [Emphasis added]