Jason Beer appeared for HM Revenue and Customs in the Court of Appeal case of Mrs. Ayesha Al Hassan-Daniel and Another v. Her Majesty’s Revenue and Customs [2010] EWCA Civ 1443. This is the only case (in domestic or Convention jurisprudence) to consider whether the common law defence of criminality (ex turpi causa non oritur actio) can be deployed in claims for breach of human rights.

Lord Justice Sedley, giving the judgment of the Court, considered this defence to be one of causation rather than criminality. Following an exhaustive review of Convention case law, the Court determined that the absence of any reliance on this defence in cases where the point was starkly open, either by the defendant States or the European Court of Human Rights, amounted to an ‘eloquent silence’ signifying the inapplicability of the defence. The Court also refused to extend the principle that Community law may not be relied on for abusive or fraudulent purposes to Convention cases, on the basis that this would create "a gateway to human rights which only the virtuous may enter".

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