Rights of prisoners; Do burglars have human rights? « UK Human Rights Blog

Do burglars have human rights? « UK Human Rights Blog

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One of the cases which would no doubt encourage David Cameron and Jack Straw in that view is the very recent case of Hassan-Daniel v HMRC [2010] EWCA Civ 1443. Mr. Daniel was detained on suspicion of drug smuggling, and an X-ray revealed that he had ingested no less than 116 sealed packages of cocaine. In the face of medical advice, he refused food and drink, apparently believing that if he could avoid passing the packages for long enough, he would be released. He was mistaken. After a week he died of cocaine poisoning. But his father and widow then brought a claim based onArticle 2 and Article 3 of the European Convention of Human Rights, which respectively enshrine the right to life and protection from torture and inhuman or degrading treatment. It was argued that with a better policy for handling such cases and better care for Mr. Daniel, his life could and should have been saved.

The Court of Appeal stated clearly that the “criminality defence” (ex turpi causa non oritur actio), which holds that it is offensive to public notions of fairness to compensate someone for their own criminal conduct in civil claims, did not apply to claims brought under the Human Rights Act 1998. It found that there was no foundation in the jurisprudence of the European Court of Human Rights for the argument that the scope of human rights should be limited in such a way, and that such a limitation would “insulate wrongdoing from redress”. It therefore declined to create a “gateway to human rights through which only the virtuous may enter”.

This sits consonantly with the concept of a human right as a right bestowed upon someone simply by virtue of his/her human condition. If one accepts that criminals are human beings then logically they should enjoy human rights. This is true at the time of the commission of the offence, and remains true when the offender is imprisoned, as has been recognised in the case of Hirst v United Kingdom (No. 2) (2006) 42 EHRR 41. At paragraph 69 of its judgment the Strasbourg Court said:

…the Court would begin by underlining that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention.

It then provided the following examples of rights retained by prisoners:

1. The right not be ill-treated, subjected to inhuman or degrading punishment or conditions (Article 3).

2. The right to respect for family life (Article 8).

3. The right to freedom of expression (Article 10).

4. The right to practise their religion (Article 9).

5. The right of effective access to a lawyer or to court (Article 6).

6. The right to respect for correspondence (Article 8).

7. The right to marry (Article 12).

It also decided, much to the ire of Parliament, that they may also retain, to some extent, the right to vote.

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