Wednesday, December 29, 2010

Do criminals have 'human rights'?

According to the UK Court of Appeal, applying the UK Human Rights Act, yes.

Al Hassan-Daniel v HM Revenue and Customs [2010] EWCA Civ 1443 is a decision about the rights of a person who had swallowed, and was attempting to smuggle, 116 packages of cocaine. The decision was only on a preliminary point and not a full trial --- indeed the court held "grave doubts" about the future success of the action. A full summary can be found at the UK Human Rights Blog. (This post is a shameless reblog.) [Update: See also UK Law Society Gazette - it's a short, thorough, less opinionated case note.]

The decision is notable because generally in the UK --- and in other common law countries, such as Australia --- criminals are prevented from gaining legal benefit from their criminal behaviour. However, the court held that this criminality defence did not apply to human rights.

The comments of the court on the issue bear repeating verbatim. Emphasis mine.
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.  ...  
It is one thing to discountenance the manipulative use of a ... 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.
I believe it's a good decision, and the right one. To quote the UK Human Rights blog post:
A person’s criminal behaviour should not act as a green light for the state to treat them according to standards which would otherwise be unacceptable or negligent.
However, I accept that some people believe otherwise. (Links, from a quick search, are in descending order of comprehensibility/sanity.) 

Either way, given the lingering debate about the desirability of formal legal protection of human rights in Australia, it's an issue which needs some serious thought.

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