JUDGE REFUSES TO STRIKE OUT ACTION ON THE BASIS OF “ILLEGALITY”: THE CLAIMANT WAS NOT CAPABLE OF COMMITTING “CRIMINAL” ACTS

For the second time today I am writing about a case where the court has refused to strike out a statement of case. In Lewis-Ranwell v G4S Health Services (UK) Ltd & Ors [2022] EWHC 1213 (QB) Mr Justice Garnham refused to strike out a case where the defendant alleged illegality. The claimant had been judged to be insane and had never been committed of criminal acts.

“The defendants must point to a turpidinous act, an act of knowing wrongfulness. That means they must show that the claimant was guilty of criminal or quasi criminal acts, acts that engage the public interest. They have failed to do so.”

THE CASE

The claimant killed three elderly men in their homes. After a trial in the Crown Court he was acquitted of murder on the grounds of insanity. He was detained in Broadmoor Hospital under the Mental Health Act. He brought an action in negligence and for breach of his rights under the Human Rights Act against the defendants on the basis that they were negligent in their treatment of him, and breached his rights, in the period immediately before the murder. Three of the defendants sought to strike out the claim in negligence on the grounds of illegality.  The judge did not allow the applications on the grounds that the claimant had been found to be insane, he was not capable of committing criminal acts.

THE PROCEDURAL APPLICATION

1. 1. The application to strike out was brought by the three Defendants pursuant to CPR r3.4 (2)(a). The question is whether it appears to the court that, in whole or in part, the Particulars of Claim “disclose no reasonable grounds for bringing the claim“.

1. 1. It is to be noted that the Second Defendant made no such application and that, by the time of the hearing, the other three Defendants had conceded that the application could only be pursued in respect of the common law negligence claims, not in respect to the Human Rights Act claims. The issue for me therefore is whether the Particulars of Claim disclose any reasonable grounds for bringing the negligence action against the First, Third, and Fourth Defendants.

1. It was common ground that for the purpose of deciding these applications I should assume that the Claimant makes good all the allegations set out in the Particulars of Claim. Many of those allegations are vigorously disputed by the Defendants, but it is no part of my function on this application to give any indication about the strength or otherwise of the various defences.

THE JUDGE’S DECISION

The judge refused the Defendants’ application.   The fact of insanity meant there was no criminal act. The doctrine of illegality did not apply to these facts.

1. 1. Against that background, I consider the arguments advanced in this case.

1. 1. In my judgment, a verdict of not guilty by reason of insanity is unequivocally a verdict that a defendant is not guilty of the offence charged; and it follows such a verdict that that defendant bears no criminal responsibility for the killing. It may well be that the defendant knew the nature and quality of the act he was doing, but knowledge that what he was doing was wrong is an essential element of establishing criminal responsibility and that was not made out.

1. 1. In Traylor Johnson J pointed to a number of authorities which support a conclusion that the illegality defence only applies where the claimant knew that he was acting unlawfully:

(1)  In Adamson v Jarvis (1827) 4 Bing 66 130 ER 693 Best CJ said at 73: “… the rule that wrong-doers cannot have redress… is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act.”

(2)  In James v British General Insurance Co Ltd [1927] 2 KB 311 Roche J said (at 323) that the defence of illegality only applied to “a known unlawful act.”

(3)  In Hardy v Motor Insurers’ Bureau [1964] 2 QB 745 Lord Denning MR expressed the illegality defence as a “broad rule of public policy that no person can claim indemnity or reparation for his own wilful and culpable crime.” At 769 Diplock LJ said that the defence of illegality applied where there was “an intentional crime committed by the assured.”

(4)  In Grey v Barr [1971] 2 QB 554 , Lord Denning MR said (at 558): “If his conduct is wilful and culpable, he is not entitled to recover.”

(5)  In Pitts v Hunt [1991] 2 QB 24 at 39G it was said that there is a clear distinction between “deliberate intentional acts and those which are unintentional though grossly negligent.”

1. 1. None of these were cited to me (although Ms Plowden referred me to this passage in Johnson J’s judgment) but I agree with Johnson J that they illustrate what I have concluded follows from the cases discussed above, namely the need to establish that the Claimant knew that what he was doing was wrong. The Defendants have not established that. They have not established that the Claimant bears criminal responsibility for the three killings.

1. 1. The reference to the old “Special verdict where accused found guilty, but insane at date of act or omission charged, and orders thereupon”, provided for by s2(1) of the 1883 Act, takes the Defendants nowhere. That provision was amended to make it clear that insanity eliminates criminal responsibility. There is, in my 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.

1. 1. Furthermore, the disposal in the Claimant’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.

1. 1. I accept that it is possible that the illegality defence could apply in situations where there is no criminal responsibility. But to do so there would have to be quasi-criminality, conduct that raises similar public interest objections to those prompted by criminality. That provides, to adopt Mr Warnock’s phrase, an adequate ‘bright line’ rule and there is no warrant for inventing one that disregards the necessity of establishing that the claim in question is based on a criminal act or one very similar in nature. The ‘bright line’ established in Henderson would not be undermined if this claim were to proceed. The distinction between Henderson and the Claimant’s claim is not arbitrary but fundamental, turning as it does on the presence or absence of criminal responsibility.

1. 1. The Defendants can show that the death of the three men was the result of deliberate acts of the Claimant. But it is not sufficient to exclude liability that the immediate cause of the damage was the deliberate act of the claimant. The defendants must point to a turpidinous act, an act of knowing wrongfulness. That means they must show that the claimant was guilty of criminal or quasi criminal acts, acts that engage the public interest. They have failed to do so.

1. 1. To permit this claim to proceed would not enable the Claimant 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.

1. 1. The submission that the ‘narrow claim’ (for heads of loss flowing from the consequences of a criminal sentence) is barred under the ratio of Gray as a matter of causation misstates the test. The narrow claim as described in the authorities prohibits loss which flow directly from the lawful imposition of a sentence for breach of the criminal law. Here, by contrast, there is no breach of the criminal law and no sentence. The criminal law has not imposed a sentence on the Claimant; it has imposed certain restrictions made necessary by his mental illness. It will be a question for the court hearing the substantive action whether, as a matter of fact, it was the Claimant’s underlying illness that made his detention in hospital necessary, or whether the negligence of the defendants, if such negligence is proved, aggravated that illness or provided the occasion for that illness to manifest itself as it is said it did on 10 February 2019.

1. 1. Promoting legal consistency and avoiding legal incoherence are underlying objectives of the illegality policy. There would be legal incoherence between the criminal law and the law of tort if a Claimant could found a claim on his own criminal or quasi-criminal act. But there is nothing incoherent in permitting a claim founded on a third party’s negligence if that negligence was the substantial cause of injury or loss, and the Claimant’s insanity meant no blameworthiness attached to him, as is the case here. It may well be the case that claims by the three victims or their families could not succeed against the Defendants in the present case, but they might succeed against the Claimant. It would not be incoherent for tort law to regard the Claimant as responsible for his actions (see Morriss v Marsden) whilst criminal law provides a defence founded on his insanity; the criminal law demands more of the state before penal sanctions are applied, than the civil law does before awarding damages.

1. 1. 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. In my judgment 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.

1. 1. It was suggested that there is an obvious deterrent effect in having a clear rule that killing a person never results in compensation. I see no such deterrent. The conduct of a person in respect of whom insanity is proven is unlikely in the extreme to be affected by such a principle. Nor do I regard it as realistic that a court would allow the possibility of a claim for damages to impact their decision-making when considering whether to deprive an individual of their liberty on mental health grounds.

1. 1. It was suggested that this claim would be highly likely to offend public notions of the fair distribution of resources were the Claimant to be compensated out of public funds and that public confidence is likely to be shaken by the “obvious injustice” of the Claimant receiving damages for the killings, whilst the victims and their families would receive nothing. As noted above the origin of the test whether an outcome would be offensive to public notions of the fair distribution of resources is the speech of Lord Hoffman in Gray. However, what he regarded as potentially offensive was that a claimant should be compensated for the consequences of his own criminal conduct, and the claimant here has been found not guilty of any criminal conduct.

1. 1. If there was any element of responsibility remaining in the actions of the Claimant (in other words if he was a person with diminished responsibility) other relevant public policies such as those prayed in aid by Ms Plowden would be readily be outweighed. But there is no such element. In those circumstances the question of proportionality does not arise.

Conclusion

1. In those circumstances, these three claims for orders order striking out the claim on the grounds of illegality must fail