Case No: B3/2010/0188
Neutral Citation Number: [2010] EWCA Civ 1443
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE COWELL
7CLO5914
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15/12/2010
Before :

LORD NEUBERGER, MASTER OF THE ROLLS
LORD JUSTICE MAURICE KAY, VICE-PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
and
LORD JUSTICE SEDLEY
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Between :

	MRS AYESHA AL HASSAN-DANIEL  (Suing in her own right and as representative of the Estate of ANTHONY DANIEL deceased) and Another	Claimants/Appellants	
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	HER MAJESTY’S REVENUE AND CUSTOMS

JUSTICE	Defendant/Respondent

Intervener	

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Mr Hugh Southey QC (instructed by Messrs Hickman Rose) for the Appellant
Mr Jason Beer (instructed by Treasury Solicitors) for the Respondent
Mr Paul Bowen and Mr Alex Gask (instructed by Justice) written submissions only.

Hearing date: Monday, 4 October 2010 
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Judgment
Lord Justice Sedley : 

What follows is the judgment of the court.

The case in summary

1.	Anthony Daniel was a professional drug smuggler. He was also a drug user, with a cardiac debility probably caused by drug abuse. On 11 February 2006, not long after his release from a sentence (his 28th) of 11 years and 6 months imprisonment, he was stopped in the “Nothing to declare” channel at Heathrow airport and found to have traces of cocaine on his person. In his digestive tract, though the customs officers did not yet know this, was a kilo of raw cocaine in 116 sealed packages which he had swallowed. 
2.	Mr Daniel was arrested and detained in the defendants’ custody suite at Colnbrook. From there, on the same day, he was taken to Hillingdon hospital where an X-ray, to which he consented, revealed the contents of his stomach. With access to legal advice, he gave a no-comment interview. Next day he was charged and remanded in custody.
3.	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 own father that he could suffer severe harm if he had packets of cocaine in his system. According to the particulars of claim, this was because he believed or hoped that the X-ray had been inconclusive and that if he could hold on for long enough without passing the packets he would be released. Then on 18 February he gave up the attempt and took a little food and fluid. Although at autopsy none of the bags was found to have burst, Mr Daniel at about 12.30 pm began to show signs of acute cocaine poisoning. An ambulance was called promptly, but by 1.16 pm he had died. The cause of death was certified at the inquest as acute cocaine toxicity and cocaine-related heart damage.
4.	The claim is brought by Mr Daniel’s widow and his father. The nature of their claim is that with a better policy for handling such cases and with better care Mr Daniel’s life could have been saved. It is based not on common law negligence but on articles 2 and 3 of the European Convention on Human Rights, which are given domestic effect by the Human Rights Act 1998. The nature of the defence is threefold: first, that any claim based on criminal acts such as Mr Daniel’s is not justiciable; secondly and alternatively, that there was no failure to take sufficient steps to comply with the Convention; and thirdly, that even if there was such a failure, it did not cause Mr Daniel’s death – he was the sole author of his own misfortune.

The appeal in summary
5.	This appeal concerns only one aspect of the contest – the applicability to a human rights claim of what we will call the criminality defence, known to lawyers by the maxim ex turpi causa non oritur actio  (no claim arises from a dishonourable cause of action). In an understandable endeavour to prevent the case going to what is likely to be a long and expensive trial, the defendant moved to dismiss the claim as unarguable on its face or alternatively as bound to fail, in each case by reason of the criminality defence. In the Central London County Court on 29 October 2009 Judge Cowell upheld the submission and struck out the claim. It is against this decision that Hugh Southey QC now appeals with the permission of Wyn Williams J. The appeal comes before this court instead of the High Court by direction of the Master of the Rolls. If the appeal is allowed, it means that the case will continue, not that it will succeed.
6.	For reasons to which we will shortly come, we have concluded that the appeal has to succeed because it is clear that the common law defence of criminality does not operate in Convention law so as to bar a claim. But this finding, while it leaves the claim alive for the moment, does not address what we consider to be the real, but so far unaddressed, issue of causation. That issue can be put, at its most favourable to the claimants, in this way: did any deficiencies there may have been in the defendants’ management of the detention suite play a material part in Mr Daniel’s death, or was his death for all practical purposes the consequence of his own voluntary acts in ingesting potentially lethal matter, doing his utmost to retain it and retaining it for so long that it killed him?
7.	Because of what Jason Beer, for the defendants, accepts is the restricted basis on which he has sought to strike out the claim, the latter issue has not been before us. We are constrained to accept Mr Southey’s submission that we cannot deal with it because he may have evidence to deploy on it. He undertakes, as one would expect in all cases but particularly in a publicly funded one, that very careful consideration will be given to the merits of proceeding any further. For our part we will say no more than that the issue of causation, not of criminality, appears to us to be the critical preliminary issue, and that on the material before us we have difficulty in seeing how the claimants can expect to secure an answer in their favour to the question posed at the end of the previous paragraph.
8.	Without such an answer, Mr Southey’s contention that a bare finding of fault on the state’s part, without compensation, may be of sufficient value to justify the claim goes nowhere, not only because the sole effective fault will have been that of the deceased but because where, as here, the state’s investigative obligation under article 2 has already been amply fulfilled by a 3 week inquest, litigating at comparable length and expense for the identical purpose cannot possibly be justified.

The criminality defence
9.	It makes simple sense that, if a claim is brought to enforce or secure the benefit of a criminal transaction, the courts should have nothing to do with it, even if it means that one party secures an illicit benefit.  This is the basis of what we have called the criminality defence (though, since it is a point which the court itself will if necessary take, it is more correctly understood as a control on jurisdiction). Its rationale, as Mr Beer submits, has been variously stated but includes maintaining the dignity of the courts, preventing a wrongdoer from profiting by his wrongdoing and deterring misconduct. It reflects, as has been said by Lord Hoffmann in Gray v Thames Trains Ltd [2009] UKHL 33, §30, a policy rather than a principle.
10.	A good many problems of scope and content bedevil the criminality defence. Not least among them is the question whether it logically relates to justiciability rather than to causation. Lord Hoffmann’s formulation of the rationale (loc. cit. §51) – that it is offensive to public notions of fairness to compensate someone “for the consequences of his own criminal conduct” – would be just as forceful if the word “criminal” were omitted from it. That is a question which, as we have suggested, may yet arise in the present case. But it is not necessary to embark on it here because Mr Southey accepts that if the doctrine applies, his claim is caught by it. His case is that it has no application to a Convention claim.

Criminality and the Convention
11.	In this limb of the argument the claimants have the support of a written submission from the organisation Justice, which has been given permission to intervene in the appeal. It has been prepared by Paul Bowen and Alex Gask of counsel and Eric Metcalfe of Justice, and we record our indebtedness for it. It argues that, not by oversight but for good reasons of principle, the jurisprudence of the European Court of Human Rights does not allow the criminality of a victim to enter into the question whether a member state has violated the duties it owes him or her. It enters, if anywhere, only at the point of gauging just satisfaction. 
12.	The foundation of the argument is that a Convention claim is made not at common law but under statute. It is therefore not on the face of it subject to common law controls, at least at the level of jurisdiction. The right involved is a Convention right, and the entitlement of any victim (we will come at the end of this judgment to who that encompasses) to seek just satisfaction depends on showing that some recognised harm or detriment has been caused by the state’s failure to accord the material right. That such harm or detriment may have happened to an individual whose own merits are severely tainted is not, it is argued, relevant. Human rights are not just for the virtuous.
13.	Here the allegation is of breaches of articles 2 and 3 of the Convention. These provide in their material parts that everyone’s right to life shall be protected by law and that no-one shall be subjected to inhuman or degrading treatment.
14.	It is well established that the article 2 right carries an obligation on the state to investigate any death which may have resulted from a breach of its provisions. In England and Wales this duty is discharged by the coroner’s inquest, whose statutory functions are now designed to meet the requirements of the Convention. In the present case an inquest returned the cause of death set out above, together with a short narrative account of how the deceased came by his death. The coroner, again pursuant to statute, added a recommendation that a policy be developed for prisoners who are believed to have swallowed drugs and to be retaining them to consult an independent doctor. In the present case, as we have said, this had been done.
15.	It is common ground that the meaning and effect of the Convention rights patriated by the Human Rights Act is to be primarily determined by the jurisprudence of the Strasbourg court. We have accordingly been taken by both counsel to the following cases.
16.	Makaratzis v Greece (2005) 41 EHRR 1092. A police officer tried to stop a driver who had gone through a red traffic light near the US embassy in Athens. After a spectacular chase the police started shooting at his car. He finally stopped in a petrol station where the shooting continued until he was injured and arrested. The Court found a violation of both the substantive and the procedural limb of article 2 (notwithstanding that the applicant had survived). Neither in the state’s argument nor in the Court’s findings was it suggested that the applicant’s criminal conduct barred his claim. It features only in §92 as part of the Greek government’s submission on compensation; and even then it is not clear from §93 what part if any it played in the award.
17.	Jalloh v Germany (2007) 44 EHRR 667. This case was close on its facts to the present one in that the applicant, when arrested, had swallowed the drugs he was carrying. It differed in that the German police had had an emetic forcibly administered to him. He succeeded in his claim under article 3 – a decision which emphasises how careful the authorities have to be about personal autonomy in the kind of situation we are concerned with. But here again, neither the state nor the Court suggested that the claim was barred by criminal conduct. 
18.	McCann v United Kingdom (1996) 21 EHRR 97, the decision of the Grand Chamber on the shooting in Gibraltar of three IRA terrorists. For present purposes what is significant is not that the Court, by a single vote, found a breach of article 2, but that the United Kingdom government – which, whatever the domestic jurisprudence of Greece or Germany, will have been familiar with the criminality defence – did not advance it. Nor does anything in the judgment of the Court hint at it. Once again – see §219 – criminality went to redress alone.
19.	The doctrine is acknowledged as part of the English common law by the Court’s admissibility decision in Clunis v Camden & Islington H.A. [1998] QB 978, an article 6 claim made by an applicant who had unsuccessfully sued a health authority for failing to take adequate steps to prevent him, as a discharged but labile mental patient, from killing an innocent fellow citizen, Jonathan Zito. The court found nothing contrary to the Convention in his having lost his claim on the basis of the criminality defence: he had not been denied his article 6 right to a fair hearing. The decision does not represent an adoption of the criminality defence to a Convention claim: it recognises that a domestic trial is not rendered unfair by it.
20.	Mr Beer recognises the absence of any affirmative jurisprudence in favour of a criminality defence to a Convention claim. But he submits that this does not exclude it. He points out that the European Court of Justice (as it then was) in Dari and Tum [2007] INLR 473 held that Community law may not be relied on for abusive or fraudulent purposes. There is no reason, he submits, why the same should not be true of Convention law.
21.	We do not agree. We consider, first, that the silence of the Strasbourg court in at least three cases where the point was starkly open is eloquent. This is particularly so when one of the cases was a highly-charged case involving the United Kingdom, where the submission might have been decisive but was not made and the point was not taken by the Court. We do not consider, secondly, that it permissible simply to read across from Community law to Convention law. 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. In our judgment there are perceptible and sound policy reasons why the criminality defence does not form part of the Strasbourg jurisprudence, save when it comes to just satisfaction. To introduce it into a claim under the Human Rights Act would be to create a barrier which citizens of other member states do not face.
22.	We reach this conclusion without undue regret because, as was explained earlier in this judgment, it is our view that the core of the criminality defence is not criminality but causation. In the course of argument we put to Mr Beer the case of 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 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. By contrast, if an innocent person is mistakenly arrested and in protest stops taking essential medication with the result that he suffers a heart attack, Mr Beer’s defence would have no purchase: in the absence of criminality the claim would have to turn on causation. Everything, in other words, points to the good sense of asking, as Lord Hoffmann proposed in Gray, whether what the claimant himself did was the cause of the harm he suffered, even if there was also wrongful conduct on the defendant’s part without which the harm would not have occurred. The question of apportionment in cases where both parties’ fault has played a causative role (see Vellino v Chief Constable of Greater Manchester [2002] 1 WLR 218) does not arise for decision here.

The victim issue
23.	Judge Cowell also held that in any event neither claimant had locus standi, since neither could claim to be a “victim” of the asserted breaches of the Convention. He based this conclusion on dicta of Lord Scott in Savage v South Essex NHS Trust [2009] 1 AC 681, §4-5. In the light of this court’s subsequent decision in Rabone v Pennine Care NHS Trust [2010] EWCA Civ 698, §88-93, Mr Beer – in our view rightly – does not seek to uphold the strikeout on this further ground. In brief, the word “victim” in s.7(1) of the Human Rights Act is given its autonomous Convention meaning by s. 7(7), a meaning which the jurisprudence makes clear can include the close relatives of an individual who has allegedly fallen victim to a violation of his or her Convention rights. 

Conclusion
24.	This interlocutory appeal must therefore be allowed. We reiterate that this means no more than that the action can proceed. Not only does it not mean that the action will succeed: it does not mean that it will necessarily progress any further. That must depend on a realistic reappraisal, initially by the claimants’ lawyers and thereafter, we would assume, by the Legal Services Commission, of its prospects – as to which we have expressed grave doubts - of success on its merits.