‘Human Rights are Not Just for the Virtuous’: Will Criminal Conduct Prevent a Claim for Breach of Human Rights?
Al Hassan-Daniel & Anor v HM Revenue and Customs & Anor [2010] EWCA Civ 1443 (15 December 2010)
This case concerned the death in custody of Anthony Daniel, a drug smuggler and user. Mr Daniel's widow and father brought a claim under arts 2 and 3 of the European Convention on Human Rights against Her Majesty's Revenue and Customs, the UK's customs and tax department. The England and Wales Court of Appeal held that the 'criminality' defence – which makes a claim brought to secure or enforce the benefit of a criminal transaction non-justiciable – does not operate to prevent human rights claims under the European Convention.
Facts
Anthony Daniel, a drug smuggler and user, was stopped at Heathrow airport and traces of cocaine were detected on his person. Unbeknownst to customs officers, Mr Daniel had one kilo of raw cocaine in 116 sealed packages in his digestive tract. Mr Daniel was arrested, detained and taken to hospital, where an X-ray revealed the contents of his stomach. Mr Daniel gave a no-comment interview and was subsequently charged and remanded in custody. Whilst in custody, Mr Daniel ignored warnings from staff, doctors, his solicitors and his father that packets of cocaine in his system could cause him serious harm, and he refused all food and almost all fluids for a week. On 18 February, after consuming some food and fluid, Mr Daniel demonstrated signs of acute cocaine poisoning and died soon after. At a coronial inquest, the cause of Mr Daniel's death was certified as acute cocaine toxicity and cocaine-related heart damage.
Mr Daniel's widow, Ayesha Al Hassan-Daniel, and his father (the appellants), brought a claim under arts 2 and 3 of the European Convention, against Her Majesty's Revenue and Customs (the respondent). They submitted that Daniel's life could have been saved with improved care and a better policy for handling such cases. In its defence, the respondent submitted that: (i) claims based on criminal acts such as those committed by Mr Daniel are not justiciable; (ii) there was no failure to take adequate steps to comply with the European Convention; and (iii) even if there was such a failure, it did not cause Mr Daniel's death. The appellants appealed against the 29 October 2009 decision of Judge Cowell in the Central London County Court to strike out their claim as unarguable on its face or as bound to fail due to the criminality defence. The issue on appeal was the applicability of this defence to a human rights claim.
Decision
The Court of Appeal upheld the appeal, concluding that the common law defence of 'criminality' – that a claim brought to secure or enforce the benefit of a criminal transaction should not be heard by the courts – does not operate to prevent a claim based on the European Convention. The Court characterised the criminality defence as a 'policy rather than a principle', and described it as a 'control on jurisdiction' which serves to uphold the integrity of the courts, to deter misconduct and to prevent wrongdoers from benefiting from their wrongdoing.
The Court stressed that the real, 'critical preliminary' issue for determination in this case was that of causation, rather than criminality – whether deficiencies in the respondent's management of the prison materially contributed to Mr Daniel's death, or whether his death was caused by his own voluntary acts in ingesting the cocaine and attempting to keep it in his body. However, as the respondent did not seek to strike out the claim on this basis, the Court merely commented in obiter that the appellants would be unlikely to succeed on the causation issue on the basis of the evidence before the Court.
The Court received a written submission from the human rights organisation Justice, which was granted permission to intervene in the appeal. The submission contended that, for reasons of principle, European Court of Human Rights jurisprudence does not permit a victim's criminality to bear on the question of whether a member state has breached its duties owed to the victim. The basis of this argument is that a claim brought under the European Convention is made under statute, not at common law. As the right invoked is a Convention right, it is for the victim to demonstrate that the state's failure to uphold that right resulted in some recognised detriment or harm. On this view, 'human rights are not just for the virtuous', and it is irrelevant that such detriment or harm may have been inflicted upon an individual with 'severely tainted' merits.
Article 2 of the European Convention provides that everyone's right to life shall be protected by law, and that no one should be intentionally deprived of his or her life except upon conviction for a crime which provides for such a sentence. Further, art 2 will not have been breached where deprivation of life results from the use of force which is no more than absolutely necessary in defence of any person from unlawful violence; or so as to effect a lawful arrest or prevent escape of a lawfully detained person; or in lawful action taken to subdue a riot. Article 3 provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. These articles are given domestic effect in the UK by the Human Rights Act 1998 (UK).
The Court found that the State had satisfied its obligation under art 2 to investigate any death which may have been caused by a breach of this provision through a three-week coroner's inquest into Mr Daniel's death. The coroner recommended that a policy be developed whereby prisoners who are suspected of having ingested and internally concealed drugs consult an independent doctor, which occurred in Mr Daniel's case.
The Court examined three decisions of the European Court in which victims who had engaged in unlawful activity successfully invoked arts 2, 3 and 6 of the European Convention in their claims against the state. The Court emphasised that in each of the cases, neither the court nor the state suggested that the victim's criminal conduct barred the claim; criminality was only relevant, if at all, to the issue of redress. According to the Court, 'perceptible and sound policy reasons' existed for the absence of the criminality defence from human rights jurisprudence, and introducing the defence into a claim under the Human Rights Act 1998 (UK) would construct a barrier for UK citizens:
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.
The Court further held that the appellants had standing to bring the present action, as they satisfied the definition of 'victim' in s 7(1) of the Human Rights Act 1998 (UK), which is given an independent meaning under the European Convention by s 7(7), and can include close relatives of an individual whose rights under the Convention have allegedly been violated.
The Court thus allowed the appeal, emphasising that this merely enabled the action to proceed and expressing 'grave doubts' about the claim's prospects of success on the merits.
Relevance to the Victorian Charter
If the criminality defence were invoked by the State of Victoria in a rights-based complaint pleaded under the Victorian Charter, the Victorian Supreme Court may adopt the approach taken by the Court in Al-Hassan Daniel and hold that an applicant's criminal conduct is no bar to claims under the Charter. Such an approach emphasises that human rights must be protected and upheld irrespective of a person's criminal behaviour.
Sections 9 (right to life) and 10 (protection from torture and cruel, inhuman or degrading treatment) of the Victorian Charter are analogous to arts 2 and 3 of the European Convention. The Court in Al-Hassan Daniel placed considerable emphasis upon European Court jurisprudence in interpreting the relevant Convention rights. The absence of comparable jurisprudence in Victoria provides scope for the development of domestic principles to govern the relationship between criminal behaviour and human rights under the Victorian Charter.
The decision is at www.bailii.org/ew/cases/EWCA/Civ/2010/1443.html.
Georgina Dimopoulos is a lawyer with Allens Arthur Robinson