Not guilty of murder by reason of insanity: what place ex turpi causa?

August 2, 2022

Louis Browne KC

Lewis Ranwell v G4S Health Services (UK) Limited & Others [2022] EWHC 1213 (QB)

Background

1. The Claimant (“C”) had a history of mental health problems. On 10 February 2019 he attacked and killed three elderly men in their homes.
2. Following a jury trial in November 2019, he was acquitted of murder by reason of insanity. He was ordered to be detained pursuant to sections 37 and 41 of the Mental Health Act 1983.
3. In February 2020, he commenced proceedings against four Defendants, G4S Health Services (UK) Limited (“D1”), the Chief Constable of Devon and Cornwall Police (“D2”), Devon Partnership NHS Trust (“D3”) and Devon County Council (“D4”) alleging against all four that they were negligent in their treatment of him in the period 8-10 February 2019 and that they acted in breach of his rights under Articles 3 and 8 of ECHR. He sought damages for personal injury, loss of liberty, loss of reputation and loss of dignity, and an indemnity in respect of any claim which might be brought against him as a consequence of his violence towards others in the relevant period.
4. Ds 1, 3 and 4 applied for an order striking out the claim as disclosing no reasonable grounds for bringing the claim, on the grounds of illegality. For these purposes, the Court assumed that C could make good all the allegations set out in his Particulars of Claim.
5. C complaints centred around what he alleged were negligent failures in the assessment conduct of and advice given to him by D1’s staff. As against D3’s staff he complained about alleged inadequate triage and assessment of him, the failure to give proper advice to the police and to visit and assess him.  As against D4, he complained about the failures of the emergency duty team to arrange to give proper assessment of him and proper advice.
6. The essence of the Defence arguments was as follows. At the heart of the illegality defence was a rule of public policy, concerned with ensuring coherence and consistency within the legal system. The defence applied not just to acts which are criminal, but to acts which ‘engage the interest of the state’ or the public interest. Here, the nature of the killings engaged the illegality defence as a matter engaging the public interest.
7. It was further argued that while C was not criminally responsible for the act, it would be incoherent for the law to award damages for the consequences of the order imposed by the criminal justice system, on the basis that he is presumed to pose a risk to the public. There would also be an inconsistency with tort law on the one hand saying that he can recover damages because he is not responsible for his actions, and on the other saying that he is.

The Judge’s ruling

8. Following a review of the authorities, Garnham J. identified the following points of principle;

i)There are two policy reasons for the common law doctrine of illegality as a defence to a civil claim: a person should not be allowed to profit from his own wrongdoing, and the law should be coherent, not self-defeating, and should not condone illegality.

ii) It is not sufficient to exclude liability that the immediate cause of the damage was the deliberate act of C himself.

iii) The starting point is to determine what acts constituted “turpitude” for the purpose of the defence.

iv) The defendants must show, as a minimum, that C was guilty of criminal or quasi criminal acts, (the latter being acts that engage the public interest).

v) A civil court will not award damages to compensate a claimant for an injury or disadvantage which the criminal courts of the same jurisdiction have imposed on him by way of punishment for a criminal act for which he was responsible.

vi) The narrower expression of the rule is that a person should not recover for damage that was the consequence of a sentence imposed on him for a criminal

vii) The wider expression of the rule is that it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct.

viii) The fundamental policy consideration is the need for consistency so as to maintain the integrity of the legal system. An inconsistency would arise between the civil and criminal law regimes if a claimant was allowed to recover damages resulting from a sentence imposed on him for an intentional criminal act for which he had been held responsible.

ix) Whether allowing a claim would be harmful to the integrity of the legal system depended on whether the purpose of the prohibition that had been transgressed would be enhanced by denying the claim; whether denying the claim might have an impact on another relevant public policy; and whether denying the claim would be a proportionate response to the illegality.

x) Where a proportionality assessment was necessary, it would involve close scrutiny to the detail of the case in hand, including the seriousness of the impugned conduct and its centrality to the claimed breach of contract or duty.

9. Applying those principles here, in order to establish their defences of illegality Ds’ would need to establish that C knew that what he was doing was wrong. They had not established that.  They had not established that C bore criminal responsibility for the three killings.
10. There was, in the Judge’s view, an obvious distinction between the nature and quality of intention in a defendant found guilty of manslaughter by way of diminished responsibility and in a defendant found not guilty by reason of insanity. In the former case responsibility is diminished but not eliminated; in the latter case it is eliminated because insanity means the defendant does not know that what he was doing was wrong and that knowledge is essential to affix responsibility.
11. Furthermore, the disposal in C’s case, namely a hospital order and a restriction order under Section 5 (2) Criminal Procedure (Insanity) Act 1964, is not a punishment for a criminal act. It is instead a disposal for public protection made when an insanity defence is made out.
12. Ds’ could show that the death of the three men was the result of deliberate acts of C. But it is not sufficient to exclude liability that the immediate cause of the damage was the deliberate act of C. D’s must point to a turpidinous act, an act of knowing wrongfulness. That means they must show that C was guilty of criminal or quasi criminal acts, acts that engage the public interest. They failed to do so.
13. To permit the claim to proceed would not enable C to profit from his own wrongdoing. Wrongdoing implies knowledge of wrongfulness and that was excluded by the jury’s verdict. The law would not be condoning wrongdoing because the jury’s verdict means there was none.
14. In considering whether allowing a claim would be harmful to the integrity of the legal system it is necessary to decide whether the purpose of the prohibition that had been transgressed would be enhanced by denying the claim; whether denying the claim might have an impact on another relevant public policy; and whether denying the claim would be a proportionate response to the illegality. The prohibition being transgressed is the prohibition on the taking of life. That prohibition is not enhanced by preventing a claim in the present circumstances because the claim flows from the actions of someone who is insane and not amenable to the rationale of the prohibition.
15. If there was any element of responsibility remaining in the actions of C (in other words if he was a person with diminished responsibility) other relevant public policies would readily be outweighed. But there was no such element. In those circumstances the question of proportionality did not arise.
16. The claims for orders order striking out the claim on the grounds of illegality failed.