Do burglars have human rights?

4 April 2011 by Matthew Flinn

The proposition that burglars have rights incites debate, and sometimes anger, which is often directed towards the Human Rights Act 1998 and the European Convention of Human Rights. However, on closer examination, the idea of “burglars’ rights” is not a new phenomenon in English law, and nor has it been imposed upon us by Strasbourg. The rights that burglars enjoy have long been part of the fabric of English common law.

There is nothing new about the idea that criminals in general, and burglars in particular, have forfeited their human rights by virtue of their criminality.

As Michael Cholbi of the University of New York has described in his article discussing felon disenfranchisement in the United States, “A Felon’s Right to Vote”, the strong conviction held by some that criminals should not enjoy the benefit of human rights is founded upon a basic intuition that “criminal acts alter the moral status of wrongdoers, permitting us to do to them what is otherwise unjust”. Essentially, having demonstrated an unwillingness to regulate their own conduct, criminals cease to be an object of moral concern.

This is by no means a new idea, nor one which is necessarily associated with strict conservative thinking. John Locke himself wrote in his Two Treatises of Government that losing one’s rights is “the effect only of Forfeiture, which the Aggressor makes of his own Life, when he puts himself into the state of war with another”. Yet an acknowledgment that the moral status of a person is diminished by his or her criminal acts does not inevitably lead to the conclusion that they should be stripped of their rights, particularly their human rights, and indeed such a proposition has recently been emphatically rejected by the Court of Appeal.

As for burglars, they were singled out by David Cameron, who as leader of the opposition told the Politics Show in January 2010:

The moment a burglar steps over your threshold, and invades your property, with all the threat that gives to you, your family and your livelihood, I think they leave their human rights outside.

He went on to explain that under Conservative party proposals (not yet implemented by the Coalition), householders using defensive action against burglars would only face prosecution if they used “grossly disproportionate” force against a burglar, in contrast with the current state of the law under which only “reasonable” force is lawful.

This is now part of a wider debate which tends to focus on the utility of the Human Rights Act 1998 as it applies to criminals. Whilst undoubtedly of fundamental constitutional significance, the Act has been chastised for putting the rights of criminals above those of the law-abiding, and was threatened with repeal by our current Prime Minister when he was in opposition. Even one of the chief architects of the Act, Jack Straw (who was Home Secretary at the time of its passage), acknowledged in December 2008 that it had come to be seen as “a villain’s charter”.

One of the cases which would no doubt encourage David Cameron and Jack Straw in that view is the very recent case of Hassan-Daniel v HMRC [2010] EWCA Civ 1443. Mr. Daniel was detained on suspicion of drug smuggling, and an X-ray revealed that he had ingested no less than 116 sealed packages of cocaine. In the face of medical advice, he refused food and drink, apparently believing that if he could avoid passing the packages for long enough, he would be released. He was mistaken. After a week he died of cocaine poisoning. But his father and widow then brought a claim based on Article 2 and Article 3 of the European Convention of Human Rights, which respectively enshrine the right to life and protection from torture and inhuman or degrading treatment. It was argued that with a better policy for handling such cases and better care for Mr. Daniel, his life could and should have been saved.

The Court of Appeal stated clearly that the “criminality defence” (ex turpi causa non oritur actio), which holds that it is offensive to public notions of fairness to compensate someone for their own criminal conduct in civil claims, did not apply to claims brought under the Human Rights Act 1998. It found that there was no foundation in the jurisprudence of the European Court of Human Rights for the argument that the scope of human rights should be limited in such a way, and that such a limitation would “insulate wrongdoing from redress”. It therefore declined to create a “gateway to human rights through which only the virtuous may enter”.

This sits consonantly with the concept of a human right as a right bestowed upon someone simply by virtue of his/her human condition. If one accepts that criminals are human beings then logically they should enjoy human rights. This is true at the time of the commission of the offence, and remains true when the offender is imprisoned, as has been recognised in the case of Hirst v United Kingdom (No. 2) (2006) 42 EHRR 41. At paragraph 69 of its judgment the Strasbourg Court said:

…the Court would begin by underlining that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention.

It then provided the following examples of rights retained by prisoners:

1. The right not be ill-treated, subjected to inhuman or degrading punishment or conditions (Article 3).

2. The right to respect for family life (Article 8).

3. The right to freedom of expression (Article 10).

4. The right to practise their religion (Article 9).

5. The right of effective access to a lawyer or to court (Article 6).

6. The right to respect for correspondence (Article 8).

7. The right to marry (Article 12).

It also decided, much to the ire of Parliament, that they may also retain, to some extent, the right to vote.

Unfortunately for burglars, however, the Courts have yet to recognise a human right to burgle. Indeed, in R v Saw [2009] EWCA Crim 1, (a recent decision of the Court of Appeal with which burglars have become all too familiar) the Court threw out appeals against sentence in six burglary cases. The court’s judgment, delivered by the Lord Chief Justice, referred to the “longstanding, almost intuitive” belief that our homes are our castles, and cited Sir Edward Coke’s Third Institute of the Laws of England in which he asserted that our homes should be our “safest refuge”. The crimes under consideration in the case of Saw were not extreme enough to have featured in the gruesome film franchise of the same name. Nevertheless, the Court of Appeal emphasised that burglary is a serious offence against both property and person, and should be punished accordingly. Such sentencing guidance was welcomed by those who considered that burglars were being treated too leniently, and that their “rights” were taking precedence to the rights of householders.

An analysis of the debate about “burglars’ rights” reveals it to be limited in two respects. First, it is centered on a concept which is limited in its temporal scope, being focused primarily on the situation arising specifically at the time the offence is being committed. Secondly, it is limited in substance. Few would object, or even give thought to a burglar retaining the right to marry, or to manifest his religion. Rather, the debate focuses on the rights and liabilities stemming from the situation where the offender may be met with violent defensive action by a householder.

Questions of both criminal and civil liability here come in to play. In the criminal context, the debate focuses on the extent to which a householder may use defensive force to protect himself and his property to prevent some other crime or to arrest the offender. Under both the common law defence of self-defence and section 3 of the Criminal Law Act 1967, a person may only use such force as is “reasonable in the circumstances” as the householder believes those circumstances to be. Where a person uses unreasonable force, or ceases to be acting in self-defence, he will be in difficulty.

This situation arose in the very recent case of R v Hussain [2010] EWCA Crim 94 – a case which attracted significant media attention. On 3 September 2008, as Mr. Munir Hussain was returning home from his local mosque, he was ambushed by three masked men, threatened at knifepoint, and held hostage with his wife and three children in the living room of their home. He was able to free himself, and with his brother, who lived nearby, he pursued and cornered one of this three assailants, Walid Salem, beating him with a stick and leaving him with brain damage. He was prosecuted for causing grievous bodily harm with intent, and sentenced to 30 months in prison. However, on appeal, the Court of Appeal, led by the Lord Chief Justice, reduced this sentence to 12 months suspended for two years, meaning that Mr. Hussain could be released immediately. This was explicitly based upon the exceptional facts of Mr. Hussain’s case, and the recognition that they required the court to “balance the ancient principles of justice and mercy”.

When harm has been caused stemming from action which goes beyond lawful defensive action (which must be “unreasonable” by definition), the question may also arise whether or not civil liability will follow. This question was addressed in Revill v Newberry [1996] QB 567. In the early hours of 12 March 1988, Mr. Mark Revill and an accomplice attempted to break into a brick shed owned by Mr. William Newberry. Mr. Newberry, who had been sleeping in the shed in order to protect his property from vandals, awoke and fired a single-barrelled 12-bore shotgun through a small hole in the door. The shot hit and injured Mr. Revill, who was standing only five feet away. Mr. Revill was subsequently prosecuted for the offences he had committed that night, and interestingly, Mr. Newberry was prosecuted on charges of wounding, but was acquitted. Mr. Revill then brought a civil claim, seeking damages in an action for trespass to the person, breach of duty under section 1 of the Occupier’s Liability Act 1984, and negligence. Mr. Newberry raised the criminality defence, self-defence, accident and contributory negligence.

The Court of Appeal held that a duty of care was owed to the burglar Mr. Revill to take such care as was reasonable in all the circumstances to ensure that he did not suffer injury on the premises. (This is another decision close to burglars’ hearts). Noting that duties could be owed to trespassers under the Occupier’s Liability Act 1984, Neil LJ said at page 577:

It seems to me to be clear that, by enacting section 1 of the Act of 1984, Parliament has decided that an occupier cannot treat a burglar as an outlaw and has defined the scope of the duty owed to him.

He pointed out that in the Report on Liability for Damage or Injury to Trespassers, the Law Commission at paragraph 32 specifically rejected the suggestion that there should be no duty at all owed to a trespasser who has engaged in a serious criminal enterprise. He therefore rejected the application of the criminality defence.

Evans LJ also emphasised that the Defendant had used greater violence than was justified in lawful self-defence. In considering the application of the criminality defence he said at page 579:

…the underlying principle is that there is a public interest which requires that the wrongdoer should not benefit from his crime or other offence. But it would mean, if it does apply in circumstances such as these, that the trespasser who was also a criminal was effectively an outlaw, who was debarred by the law from recovering compensation for any injury which he might sustain. This same consideration also prompts the thought that it is one thing to deny to a plaintiff any fruits from his illegal conduct, but different and more far-reaching to deprive him even of compensation for injury which he suffers and for which otherwise he is entitled to recover at law.

It is abundantly clear, in my judgment, that the trespasser/criminal is not an outlaw, and it is noteworthy that even the old common law authorities recognised the existence of some duty towards trespassers, even though the duty was limited and strictly defined and was much less onerous than the common law duty of care.

Millett LJ summed it up in this way at page 580:

For centuries the common law has permitted reasonable force to be used in defence of the person or property. Violence may be returned with necessary violence. But the force used must not exceed the limits of what is reasonable in the circumstances. Changes in society and in social perceptions have meant that what might have been considered reasonable at one time would no longer be so regarded; but the principle remains the same. The assailant or intruder may be met with reasonable force but no more; the use of excessive violence against him is an actionable wrong.

What is striking about the cases of Hussain and Revill v Newberry is that they were not decided pursuant to any diktats of Strasbourg. Rather, they are based squarely on the common law and the interpretation of domestic statute law. Further, the decisions are based not on the idea that burglars have some special rights, but on the simple proposition that they are to be treated as equals before the law, and thus they enjoy all the rights and protections that the law allows.

Of course, this is not to say that the European Convention would not bite if this situation was to change. Undoubtedly, if the law was changed to reflect the view that burglars “leave their human rights outside”, and householders were entitled to assault or even kill intruders with impunity, then the UK would be in breach of its positive obligations under Articles 2 and 3 of the Convention, to establish and implement an effective system of criminal law to prevent the death and inhuman treatment of its citizens by other private individuals.

The Convention may also have something to say about the right of burglars and other criminals to bring civil claims following the exercise of unreasonable defensive force by a householder. In April 2000, the farmer Tony Martin was prosecuted for shooting Brendan Fearon and his 16 year old accomplice, who had broken into his farmhouse in Norfolk the previous November. The 16 year old died, and Mr. Martin was convicted of murder, although this was subsequently substituted by a verdict of manslaughter by reason of diminished responsibility, and he was sentenced to five years in prison (R v Martin (Anthony Edward) [2001] EWCA Crim 2245). Mr. Fearon then sought to bring a claim for damages against Mr. Martin stemming from the injury to his leg.

In the face of a number of administrative mistakes by his solicitors, District Judge Brian Oliver, sitting in Nottingham County Court, nevertheless allowed the claim to proceed, reportedly on the basis that curtailing the ability of Mr. Fearon to pursue his claim could breach his rights under Article 6 of the European Convention. Ultimately, however, the case was discontinued after photographs emerged undermining the veracity of Mr. Fearon’s injury claims, and Mr. Martin agreed to drop a counter-claim against him.

Without a record of the judge’s decision, the precise reasoning upon which it was based is uncertain. Undoubtedly, an arbitrary refusal to allow a claim to proceed because Mr. Fearon was a criminal would have violated his right of access to the courts under Article 6 of the Convention. However, it is possible that the decision was again based on a straightforward application of domestic law, in this case relating to the Civil Procedure Rules. In any event, the right of access to the courts has long been enshrined in domestic constitutional law (see the judgment of Lord Diplock in AG v Times Newspapers Limited [1974] AC 273 at 310).

Another area of interest and controversy relates to the rights of burglars (and criminals in general) in respect of the publication of private information about them by the police, whether pending their arrest, or following their release or escape. The media periodically report, often with great indignation, the refusal of the Police to identify escaped or released offenders on the grounds that it would interfere with their human rights.

This is undoubtedly an area in which the Article 8 rights of burglars (and other criminals) to respect for their private lives may come into play. In R (Ellis) v The Chief Constable of Essex Police [2003] EWHC 1321 (Admin) the High Court considered a scheme established by an officer in charge of the Burglary and Motor Crime section in the Brentwood and Harlow Division of the Essex Police. Under the proposed “Offender Naming Scheme” posters containing photographs of offenders were to be placed at train stations and other locations “where it is thought they will have the greatest effect on the itinerant criminal”. The objectives of the scheme included deterring potential offenders, reminding them that crime can result in custodial sentences, and reassuring the public that the police were arresting and convicting criminals who operated in the area.

It was accepted that the scheme would infringe the Article 8(1) right to respect for the private life of the offenders concerned so the court was therefore asked to consider whether in principle such a scheme could amount to a proportionate interference under Art 8(2).

Predictably the Court declined to do so, but the case is interesting because the Court’s review of the relevant law focused almost entirely on the pre-HRA caselaw. In particular it noted the decision of Laws J in Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804, in which the police provided photos to shopkeepers of individuals known to be causing trouble in the area so that they could recognise them. The traders were told not to display the photographs and show them only to staff. Laws J held that although the photographs were confidential information and their use could in principle give rise to a breach of confidence, the police were permitted to make use of the photographs for the purposes of crime prevention, detection and investigation, and to capture suspects and escapees. He said at page 810:

In my judgment, the use which the police may make of a photograph such as this is limited by their obligations to the photograph’s subject as follows. They may make reasonable use of it for the purpose of the prevention and detection of crime, the investigation of alleged offences and the apprehension of suspects or persons unlawfully at large. They may do so whether or not the photograph is of any person they seek to arrest or of a suspected accomplice or of anyone else. The key is that they must have these and only these purposes in mind and must, as I have said, make no more than reasonable use of the picture in seeking to accomplish them.

All this establishes, we think, two basic propositions:

First, burglars, and indeed all criminals, enjoy (almost) all the rights enjoyed by other citizens, unless they get caught.

Secondly, this springs not from the HRA but from our domestic law, so it is unfair for politicians and others to blame the HRA and the Convention for the ills which they perceive.

So, criminals in general, and burglars in particular, do not exist outwith the law. Nor should they, for to sanction the deprivation of their rights would serve no social objective other than to appease the Daily Mail. In his writings on Forfeiture, Locke himself said that “by performing acts contrary to natural law one forfeits that portion of one’s own right against others that will make an interference in one’s own life, proportionate to one’s interference in others’ lives, morally permissible”. It is just that proportionate interference, and no more, which both the common law and now the Convention seek to maintain.

Of course, what burglars would really like is an extra Article added to the Convention guaranteeing their right to burgle. That is probably more than even the most successful burglar could hope for.

This post is adapted from a talk given to Inner Temple students at Highgate House, Nottingham, by Philip Havers QC and Matthew Flinn on 12 February 2011.

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