Al Hassan-Daniel & Anor v HM Revenue and Customs & Anor  EWCA Civ 1443 (15 December 2010) – Read judgment
The Court of Appeal has ruled that the family of a drug smuggler who died after being poisoned by 116 swallowed cocaine packages can bring a human rights claim against the state, despite his criminal behaviour.
The decision will anger those who say that the Human Rights Act is no more than a villains’ charter, doing more to protect the rights of “asylum seeker death drivers” and the murderers of headmasters. However, the court has done no more than confirm the basic principle that human rights are for all, not just for people we like.
The important point of principle arising from the judgment is that a doctrine known as the “criminality defence”, which means that ordinary civil claims cannot be brought to profit from criminal behaviour (see paras 9 and 10), does not apply to claims under the Human Rights Act. If it did, said Lord Justice Sedley, this would create a “gateway to human rights which only the virtuous may enter“.
116 packets of cocaine
Anthony Daniel was a professional drug smuggler and user. In 2006, not long after he was released from 11 years and 6 months in prison, he was stopped at Heathrow airport and found to have traces of cocaine on him. The custom officers did not know that he had also swallowed 116 sealed packages containing cocaine.
He was arrested and X-rayed, at which point the cocaine was discovered. For some reason he believed that the X-Ray had been inconclusive and refused food and drink, hoping that if he could hold up for long enough without passing the packets, he would be released. He did so for almost a week, against the advice of 2 doctors and his father, and eventually died from cocaine poisoning.
His widow and father brought a claim under articles 2 (right to life) and 3 (anti-inhuman and degrading treatment) of the European Convention on Human Rights, arguing that the customs system could have done more to save his life and protect him from suffering.
The claim was struck out in the Central London County Court on the basis of the criminality defence, a longstanding common law principle whose rationale includes maintaining the dignity of the courts, preventing a wrongdoer from profiting by his wrongdoing and deterring misconduct. Until now, it had never been brought to bear on a Human Rights Act claim.
The court of appeal robustly rejected the decision of the county court, and made clear that the criminality defence did not apply to human rights claims. It did so for three principle reasons.
First, the European Court of Human Rights had never authorised such an approach, although criminality can be relevant when deciding the appropriate remedy for a breach of rights.
The cases referred to are the kind which anger opponents of the Human Rights Act, including a Greek case where a man was shot after running a red light and causing a spectacular police car chase, and a German case involving a drug mule similar to Mr Daniel but in which the German state forced the smuggler to take an emetic. Although the European court had never explicitly dealt with the question of the criminality defence, a series of cases have been brought before it in which “the silence of the Strasbourg court… where the point was starkly open is eloquent“.
Secondly, it was not possible, as HMRC suggested, to use reasoning from a European Court of Justice case which had found Community law may not be relied on for abusive or fraudulent purposes. The court said:
It is one thing to discountenance the manipulative use of a Community right for a purpose for which it was not meant; it is another to create a gateway to human rights which only the virtuous may enter (para 21)
Finally, there were “perceptible and sound policy reasons” why the criminality defence had never been approved by the European court. If it had been, it would insulate “wrongdoing from redress“. In other words, many criminals would be unable to claim against the state. Some may say that this was their choice when they decided to carry out criminal acts. But the court raised a speculative example where a criminal had admitted his behaviour, but had essentially placed himself on a different strand of justice to a non-criminal:
an individual who, like Mr Daniel, had ingested drugs but who, on being arrested, admitted it and asked for help. If, through culpable neglect or worse, no help was given and grave harm resulted, Mr Beer [counsel for HMRC] accepted that, on his argument, such an individual (or his estate) would have no claim. That is an unattractive result because, by allowing criminality to trump causation, it insulates wrongdoing from redress. (para 22)
Not just for the virtuous
It should be emphasised that this decision was only on a preliminary point. The case can be brought but still needs to be heard in full, and the court of appeal expressed “grave doubts” whether it would succeed.
However, the court of appeal has taken the opportunity to confirm a fundamental principle of human rights law that, as Justice submitted, simply because “harm or detriment may have happened to an individual whose own merits are severely tainted” is irrelevant, and “Human rights are not just for the virtuous.” If the county court decision had stood, not all convicted criminals would have been barred from bringing human rights claims, but many whose claims were directly connected to criminal acts would have suddenly fallen outside of the act’s jurisdiction.
A person’s criminal behaviour should not act as a green light for the state to treat them according to standards which would otherwise be unacceptable or negligent. Moreover, the systemic problems which human rights claims often highlight do not just affect criminals, but everyone. So, even though human rights claims by criminals may be unattractive when reported in the press, there are good reasons to allow them to continue.
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