Al Hassan-Daniel & Anor v HM Revenue and Customs & Anor

The common-law criminality defence does not bar a claim under the Convention or the Human Rights Act 1998. A claimant’s criminal conduct does not ordinarily prevent the court deciding whether the state breached a Convention obligation, although it may be relevant to just satisfaction. The central inquiry is causation: whether the claimant’s own voluntary conduct caused the harm, notwithstanding alleged failures by the state. Community-law principles against abusive reliance on rights cannot simply be imported into Convention law. The question of apportionment where both parties’ fault contributes to harm was left open.

The claimants, the widow and father of Anthony Daniel, brought proceedings under articles 2 and 3 of the Convention, given domestic effect by the Human Rights Act 1998. They alleged that inadequate management and care while Mr Daniel was detained after swallowing cocaine contributed to his death. HM Revenue and Customs sought to strike out the claim, relying principally on the criminality defence and alternatively on lack of breach and causation.

His Honour Judge Cowell struck out the claim in the Central London County Court on 29 October 2009, holding that the criminality defence applied and that the claimants lacked standing as Convention victims. The central issues on appeal were whether criminality barred the Convention claim and whether the claimants qualified as victims for section 7 purposes.

1. Appeal allowed. The common-law criminality defence does not operate in Convention law so as to bar a claim under the Human Rights Act 1998.
2. Strasbourg authority did not treat criminal conduct as preventing consideration of an alleged Convention breach. In Makaratzis v Greece (2005) 41 EHRR 1092, Jalloh v Germany (2007) 44 EHRR 667 and McCann v United Kingdom (1996) 21 EHRR 97, criminality was not treated as a bar and was relevant, if at all, to redress or just satisfaction.
3. Clunis v Camden & Islington H.A. [1998] QB 978 established only that applying the domestic defence did not make a domestic trial unfair under article 6. It did not adopt the defence as a bar to a Convention claim.
4. The court declined to transpose the Community-law rule against abusive or fraudulent reliance on rights from Dari and Tum [2007] INLR 473 into Convention law. Convention rights are not confined to the virtuous.
5. The better analysis is causation. The question is whether the claimant’s own conduct caused the harm, even if wrongful conduct by the defendant was also a necessary condition. The court left apportionment, where both parties’ fault may have contributed causatively, undecided; see Vellino v Chief Constable of Greater Manchester [2002] 1 WLR 218.
6. The standing ground also failed. Following Rabone v Pennine Care NHS Trust [2010] EWCA Civ 698, the autonomous Convention meaning of victim in sections 7(1) and 7(7) can include close relatives of the person directly affected.
7. The decision was interlocutory. It allowed the action to proceed but determined neither its ultimate success nor whether it should progress further. The court expressed grave doubts about success on causation and the merits.

• Court of Appeal (Civil Division) — allowed the interlocutory appeal.
• Central London County Court — on 29 October 2009, His Honour Judge Cowell struck out the claim on criminality and standing grounds.