Anthony Daniel was a professional drug smuggler, attempting to bring into the UK one kilogram of cocaine secreted in his stomach. He was arrested at Heathrow Airport on 11th February 2006, charged after an X-Ray confirmed the presence of 116 packages inside him, and detained by HMC Revenue and Customs. In an effort to avoid passing the packets, Mr. Daniel refused all food and almost all drink for a week in spite of receiving medical advice to the contrary from two independent NHS General Practitioners. On 18th February he consumed some food and fluid, but began to suffer from acute cocaine poisoning which led to his death later that day. The claim under the Human Rights Act 1998 was brought by Mr. Daniel’s widow and his father, alleging that Articles 2 and 3 of the European Convention of Human Rights were breached due to the death having been caused by allegedly inadequate policy for handling such cases. HMRC successfully applied to strike out the claim on the ground that no claim could arise from Mr. Daniel’s criminal acts (the criminality defence). The Court of Appeal was concerned solely with the applicability to a human rights claim of the criminality defence.

The Court of Appeal characterised this defence as being one based on policy rather than principle, and causation rather than criminality. The Court accepted that Convention jurisprudence did not question the validity of the criminality defence when deployed against a claim in common law (as in Clunis v Camden & Islington H.A. [1998] QB 978), but was unable to find support for its application to human rights claims in Convention jurisprudence. The Court considered three ECtHR cases where the circumstances were ripe for the use of the criminality defence yet it was not put forward by the State nor considered by the ECtHR: Makaratzis v Greece (2005) 41 EHRR 1092, Jalloh v Germany (2007) 44 EHRR 667, McCann v United Kingdom (1996) 21 EHRR 97. The Court considered the silence as to the criminality defence in these cases ‘eloquent’ and illustrative of the defence not being applicable to human rights claims.

The Court also rejected the Respondent’s contention that the principle in Dari and Tum [2007] INLR 473, that Community law may not be relied on for abusive or fraudulent purposes, should apply to Convention cases so as to permit the criminality defence. The Court considered that there were "perceptible and sound policy reasons" why the defence ought not to apply to human rights claims, as it would "create a barrier which citizens of other member states do not face".

The appeal was allowed on the ground that the claim ought not to have been struck out on basis of the criminality defence. Nonetheless, obiter Lord Justice Sedley on behalf of the Court expressed "grave doubts" as to whether the claim ought to be taken forward in view of the difficulties arising from causation on the facts.

The Court of Appeal’s decision brings welcome clarity to the application of the criminality defence to human rights claims. The Court’s refusal to apply this common law defence to Convention jurisprudence may have implications for other domestic doctrines not yet expressly accepted within Convention jurisprudence.