Detention – Drug trafficking – Right to life – Death of drug smuggler
Ayesha Al Hassan-Daniel (in her own right and as representative of the estate of Anthony Daniel, deceased) & Anor (appellants) v Revenue & Customs Commissioners (respondent) & Justice (intervener): CA (Civ Div) (Lords Justices Neuberger, Maurice Kay, Sedley): 15 December 2010
The appellants appealed against a decision to strike out their claim based on the European Convention on Human Rights 1950 as bound to fail because it arose out of criminal conduct. The appellants were the widow and father of a professional drug smuggler (D).
D was also a drug user, with a cardiac debility probably caused by drug abuse. He was detained at Heathrow airport. At the time his body contained a kilo of raw cocaine in 116 sealed packages which he had swallowed. He was X-rayed, charged and remanded in custody. In custody he refused all food and almost all drink for a week, despite being warned by staff, as well as by two NHS general practitioners, by his solicitors and by his father that he could suffer severe harm if he had packets of cocaine in his system. He then took a little food and fluid, but began to show signs of acute cocaine poisoning, although none of the packages had burst. An ambulance was called promptly, but D died. The cause of death was certified as acute cocaine toxicity and cocaine-related heart damage. The appellants brought a claim alleging breaches of articles 2 and 3 of the convention which protected the right to life and the right not to be subjected to inhuman or degrading treatment. Their case was that with a better policy for handling such cases and with better care D’s life could have been saved. The respondent successfully applied to strike out the claim on the basis of the maxim ex turpi causa non oritur actio because the events arose out of D’s own criminal conduct. The respondent argued that the absence of any affirmative jurisprudence in favour of a defence of criminality or ex turpi causa to a convention claim did not exclude it; the European Court of Justice had held that Community law could not be relied on for abusive or fraudulent purposes and there was no reason why the same should not be true of convention law.
Held: The common law defence of criminality did not operate in Convention law so as to bar a claim. The silence of the European Court of Human Rights in at least three cases where the point was starkly open was eloquent, McCann v United Kingdom (A/324) (1996) 21 EHRR 97 ECHR, Makaratzis v Greece (50385/99) (2005) 41 EHRR 49 ECHR and Jalloh v Germany (54810/00) (2007) 44 EHRR 32 ECHR considered. It was not permissible simply to read across from Community law to Convention law. It was one thing to discountenance the manipulative use of a Community right for a purpose for which it was not meant; it was another to create a gateway to human rights which only the virtuous could enter. There were perceptible and sound policy reasons why the criminality defence did not form part of the Strasbourg jurisprudence, save when it came to just satisfaction. To introduce it into a claim under the Human Rights Act 1998 would be to create a barrier which citizens of other member states did not face (see paragraph 21 of judgment).
Hugh Southey QC (instructed by Hickman Rose) for the appellants; Jason Beer (instructed by Treasury Solicitor) for the respondent; Paul Bowen, Alex Gask (instructed by the in-house solicitor) for the intervener.