Megan Griffiths and Achas Burin look at the defence of illegality as analysed in the recent Court of Appeal decision, Lewis-Ranwell v G4S Health and others [2024] EWCA Civ 138. The Court of Appeal found by a majority of 2-1 that a claimant acquitted of murder by reason of insanity was not prohibited from bringing a negligence action because, although they had committed a criminal act, they had not been deemed criminally responsible for it and it would be contrary to public policy to debar them.
Introduction
The Court of Appeal’s judgment in Lewis-Ranwell v G4S Health and others [2024] EWCA Civ 138 addresses a novel point of law and engages important public policy/public interest considerations. Underhill LJ’s judgment distils the nuanced authorities as well as anyone could hope to. Andrews LJ’s dissenting analysis of the competing public policy factors demonstrates the complexity of the balancing act and scope for disagreement.
The issue for the Court of Appeal to consider was: can someone who commits a criminal act but has been acquitted by reason of insanity be debarred, by the defence of illegality, from bringing a negligence claim founded on that criminal act? The Court of Appeal’s answer, by a majority of 2-1, was no.
Lewis-Ranwell: Facts
The facts of the case are undeniably sad. The claimant was schizophrenic and suffered from serious psychotic episodes. He was arrested twice within two days in 2019 and released on bail both times. The second arrest was for attacking an elderly man with a saw under the delusional belief that he was a paedophile. This action and delusion bore a striking similarity to the crime that eventually gave rise to the claim. Within hours of being released on bail for the second time, the claimant killed three elderly men under the delusional belief that all three were paedophiles. He was charged with the three murders but found not guilty by reason of insanity. The essential claim was that these murders could have been avoided had his condition been properly recognised and/or treated. Whilst under detention, he was seen / spoken to by a number of mental health professionals employed by G4S Health Services and the NHS Trust. He was behaving violently, erratically and was clearly seriously mentally ill. A face-to-face mental health assessment was discussed but never actioned.
The claimant brought a civil claim for personal injury and other losses against four defendants on the basis that they were vicariously liable and/or directly liable for the mental health treatment provided in custody, they should have recognised that he posed a real risk to the public if released on bail, and should have kept him in detention until it was safe to release him.
Three of the defendants applied to have the claimant’s claim struck out on the basis of illegality. At first instance Garnham J dismissed the application, essentially finding that because the claimant had been acquitted by reason of insanity he lacked the necessary moral “turpitude” to make out the elements of illegality. The defendants appealed to the Court of Appeal.
Illegality generally
Illegality is also known as ex turpi causa non oritur actio. It is a complete defence which is engaged where illegality underpins the civil claim: for example, one burglar cannot bring a claim for negligence against another burglar where the injury to him occurred in the course of their joint criminal enterprise. Competing public policy considerations are at the heart of the illegality defence (Hounga v Allen [2014] 1 WLR 2889) so it is not surprising that they were the crux of the disagreement between majority and minority in the Court of Appeal.
Patel v Mirza [2016] UKSC 42is a key modern authority on illegality. In Patel, the Supreme Court set out a “trio of necessary considerations” [101]: the purpose of illegality in the individual case, competing policy considerations, and the need to avoid a disproportionate result [120]. The Supreme Court made clear that Patel was not a new starting point and so there was still value in earlier authorities provided that they were Patel-compliant (see the later case of Henderson, [77]). It also clarified in Henderson that there was no need to consider proportionality if the policy analysis was clearly against applying the defence.
In Henderson v Dorset Healthcare Foundation Trust [2020] UKSC 43,the Supreme Court considered illegality in the context of mental illness, but in a different criminal context to Lewis-Ranwell. The claimant in Henderson was charged with murder but convicted of the lesser offence of manslaughter by diminished responsibility. The claimant in Lewis-Ranwell was charged with murder but acquitted by reason of insanity.
Diminished responsibility requires an individual to prove that at the time of their illegal killing they suffered an abnormality of mental functioning arising from a recognised medical condition which substantially impaired their ability to understand the nature of their conduct, form a rational judgment and/or exercise self-control, and which caused or significantly contributed to their killing [s.2, Homicide Act 1957, as amended by s.52(1) Coroners and Justice Act 2009]. Insanity requires an individual to prove that at the time of their illegal act s/he was “labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong” [M’Naghten’s Case (1843) 10 Cl & F 200, atp210].
In Henderson, the claimant had paranoid schizophrenia and had been admitted to various psychiatric wards including under the Mental Health Act 1983. She was under the care of a community mental health team with a care plan that imposed a low threshold for returning her to hospital. Whilst living in the community, she had a psychotic episode and stabbed her mother to death. She brought a civil claim against the NHS Trust on the basis that she should have been returned to a hospital setting by the time of the killing. The Trust admitted breach of duty but raised the defence of illegality. The Supreme Court heard the appeal with a panel of nine justices. The question for the court was the applicability of a prior House of Lords’ decision, Gray v Thames Trains Limited [2009] UKHL 33, which pre-dated Patel and held that illegality did arise from a conviction of manslaughter by diminished responsibility [83]. The claimant in Henderson sought to distinguish her case from Gray.
The Supreme Court in Henderson considered that policy considerations favoured allowing the defence: there was no inconsistency or incoherence in applying a different standard of responsibility in tort versus crime in circumstances where the claimant had been convicted albeit with a non-punitive sentence, a hospital order [101]. The Court found that it would be proportionate to allow the defence given that “unlawful killing is the most serious conduct imaginable. The appellant knew what she was doing and that it was legally and morally wrong … as to whether the conduct was intentional, there was intent to kill or to do grievous bodily harm. Whilst there has been no significant personal responsibility, there was nevertheless murderous intent” [139, 141].
The Supreme Court endorsed Gray as being Patel-compliant [90] and rejected the submission that Henderson was distinguishable from Gray because of the degree of personal responsibility: “it involved the same offence, the same sentence and the reasoning of the majority applies regardless of the degree of personal responsibility” [86]; although proportionality was not expressly considered in Gray proportionality would have supported illegality and “even more clearly in so far as the offending in that case involved significant personal responsibility” [143].
The Supreme Court then touched on insanity:
“As explained above, the key consideration as far as the majority in Gray were concerned was that the claimant had been found to be criminally responsible for his acts. That he had been convicted of manslaughter on the grounds of diminished responsibility meant that responsibility for his criminal acts was diminished, but it was not removed. It was not an insanity case and so, as Beldam LJ pointed out in Clunis (at p 989): ‘he must be taken to have known what he was doing and that it was wrong’.” [105].
So, the underpinning rationale behind Henderson was that because the claimant had been found to have criminal responsibility by the criminal justice system (because she was convicted), she was debarred by illegality in her civil claim. This was in line with the Court of Appeal’s view in the similar case of Clunis v Camden and Islington Health Authority [1998] QB 978. And this was the principle which ultimately prevailed in Lewis-Ranwell.
Lewis-Ranwell: the majority view
The leading majority judgment was given by Underhill LJ, with which Dame Victoria Sharp agreed and added her own supplementary analysis. There is no substitute for reading the judgment in full but the below summarises the essence of the majority view, that the claimant was not debarred by illegality, for two main reasons.
Firstly, there was no inconsistency or incoherence between the claimant having committed the unlawful act and being able to bring a civil claim arising from it, because the claimant had not been found to be criminally responsible. The relevant inconsistency was between punishing for a criminal act which the claimant was responsible for, and compensating him for the consequences of the criminal act. Criminal law was concerned with personal responsibility for criminal acts, not criminal acts on their own i.e. without a convicted perpetrator. There was no inconsistency in circumstances where the claimant had been acquitted such that no criminal responsibility had been ascribed to him [93-99]. The Court of Appeal shortly rejected the Respondent’s submission that there was a different kind of inconsistency arising from the fact that the claimant would be liable for the consequences of his actions if sued by the estate or dependants of his victims: principles of compensation would come before questions of moral culpability in that scenario [25, 101].
Secondly, the balance of policy considerations fell against debarring by ex turpi. The Court of Appeal emphasised the principle of public confidence in the justice system which was at the “heart” of the appeal [103]. It made clear that this was not straightforward (as shown by Andrews LJ’s dissenting judgment), but considered that “it is fair to recognise that the killer may also be a victim if they were suffering from serious mental illness and were let down by those responsible for their care … the considered view of right-thinking people would be that someone who was indeed insane should not be debarred from compensation from the consequences of their doing an unlawful act which they did not know was wrong and for which they therefore had no moral culpability”[104]. This view was consistent with the emphasis, in previous authorities and earlier parts of the judgment, on the need for moral culpability for illegality to operate as a defence. In the absence of that culpability or knowledge, it would be contrary to public policy to debar someone on the grounds of illegality [102-105]. The Court endorsed the implication in Henderson that “the balance is quite different from in the diminished responsibility cases because the [insane] claimant has no moral culpability” [116, Henderson at 105]. Without the element of moral culpability, consistency concerns were not engaged and so other public policy considerations did not justify debarring [116]. The Court of Appeal also specifically rejected two submissions made by the unsuccessful Appellants. The first was that it would be an anomaly to allow a claimant to claim against a defendant in circumstances where that claimant’s own victims could not claim against that defendant. The Court of Appeal observed that a claimant’s own victims would be able to claim against that claimant and whether or not that claimant had sufficient funds to meet their claim was not a principled reason to deny that claimant’s own recovery for their own loss [106-108]. The second rejected submission was that it would allow an anomalous situation in which a claimant who attacked their treating doctor could sue their treating doctor for the fact and consequences of that attack: the Court acknowledged that this would seem unjust but ultimately was able to duck the issue as it would not arise in a “typical case” like Lewis-Ranwell’s, saying instead that the Court could deal with it if it needed to as a matter of public policy [109-111].
Lewis-Ranwell: the dissenting view
Andrews LJ’s dissenting judgment highlights the range of opinions on the application of public policy principles in a difficult case such as this. She had particular concerns about drawing a “bright line” between the criminal outcomes of not guilty by reason of insanity, and guilty of manslaughter by diminished responsibility, in circumstances of a deliberate killing. In her view, the absence of knowledge of wrongfulness was not a sufficient justification and she gave the example of the public being likely to consider the claimant as more morally culpable than a sane person convicted of death by careless driving. She also observed that a criminal defendant may decide to pursue a verdict of diminished responsibility over insanity for any number of reasons, including that it would not render them at risk of an indeterminate detention in a mental health unit. Her view was that the starting point was that the claimant had committed unlawful acts notwithstanding the lack of criminal responsibility ascribed to him; that the unlawful acts were the immediate and/or effective cause of the claimant’s heads of loss such that there was a greater and more obvious risk of inconsistency and harm to the coherence of the legal system if the claim could proceed; that there was general deterrent effect in “a clear rule that unlawful killing never pays” even if individuals who were insane would not realistically be deterred because any deterrent effect “is important given the fundamental importance of the right to life”; and that the public policy rule “should not rest on nice distinctions between having little or no personal responsibility for the killing because of the state of the claimant’s mental health at the time” [137].
Commentary
Insanity cases are both rare in practice and unusual at law. The acquittal is a special verdict, it is not an ordinary acquittal, so cannot necessarily be treated like one. It is also difficult to prove insanity in a criminal trial, and therefore not often pleaded. The effect of Lewis-Ranwell is that the civil illegality defence is engaged in principle only when the claimant has some subjective knowledge of wrongdoing. Andrews LJ’s main concern was whether this distinction should be imported into tort law from criminal law (and/or from moral reasoning more broadly), or whether the mere fact of having committed an unlawful act should instead suffice for the illegality defence. This is clearly an issue of public policy worthy of wider discussion.
If the bright-line distinction between diminished responsibility and insanity is maintained for the purposes of the ex turpi defence, then the verdict reached in a criminal court will determine whether a subsequent civil claim is debarred by illegality or not. Andrews LJ’s concern about the accused’s tactical choice between pursuing the partial defence of diminished responsibility or full defence of insanity is an interesting one. In theory, the Court of Appeal’s view could affect criminal pleading decisions where there is potential for a tort claim in the background. On the other hand, as Underhill LJ recognised, the incentives of tort law are unlikely to weigh more heavily in a defendant’s mind than the incentives of the criminal law.
Even though there was no binding case on the point, Underhill LJ observed that the general tendency of the case-law is against illegality applying in an insanity case (at [87] and [105]) and indeed Andrews LJ agreed with him [121]. This suggests that, no matter how finely balanced the issue, the majority of the Court of Appeal came to the correct decision as a matter of law. An analogy can be drawn with the forfeiture rule. The forfeiture rule is a rule of public policy that prevents a murderer inheriting from their victim. Someone who murders while insane is exempted from the operation of the forfeiture rule (Re Houghton [1915] 2 Ch 173; Re Pitts [1931] 1 Ch 546). This is a common law rule, now partly amended by statute (Forfeiture Act 1982), which evolved historically from the rule that a felon’s property was forfeit to the Crown. While the forfeiture rule is related to the ex turpi causa defence, they are distinct; this was made clear in Henderson [134]. However, to the extent that they are related, the forfeiture doctrine provides ancillary support for the Court of Appeal’s conclusion that insanity falls outwith the illegality rule. Notably, Underhill LJ did cite some forfeiture cases in his summary of the law (see e.g. [35]), albeit not Re Houghton or Re Pitts.
It is also quite right to recognise that this appeal does not dispose of the claim, as it is confined to the availability of a particular defence. Issues arise for claimants in terms of causation, contributory negligence and quantum. On other facts, there may well be arguments that there was no duty of care or that any duty is too limited in scope to accommodate the claim. An interesting point in Lewis-Ranwell is the head of loss by which the claimant sought an indemnity from future claims arising from his violence. Indemnities are not unusual in civil litigation; for example, a main contractor indemnified by a sub-contractor for claims arising from damage caused by the sub-contractor’s employee. But it is quite novel to claim an indemnity for unspecified and unknown extents of loss and damage which may or may not be brought by third parties in the future. The Court of Appeal’s passing comment on this head of loss raised no eyebrows in principle [108] but Underhill LJ was unwilling to firmly decide the point. This head of loss was firmly rejected in Gray v Thames Trains [2009] UKHL 33 at [50] and [84], based on precedent which was the foundation of Lord Hoffmann’s “narrow rule”. The authors suspect that any such indemnity, even if recoverable in principle, would have to be narrowly defined and made more certain.
If this case, or an appeal on similar facts, does go to the Supreme Court, it will be instructive to see how that court approaches the balance of public policy considerations. However, it is questionable whether the Supreme Court would wish to be drawn into what is essentially a balancing exercise of public policy, with little question of pure law. Underhill LJ recognised at [116] that essentially all that divided the majority and minority was the appropriate balance of policy considerations. Whilst the Supreme Court’s say on this might be determinative for a little while, policy is sensitive to changes in society. The Court of Appeal in Lewis-Ranwell was swayed by modern attitudes to mental health, and – even though the claimant in Henderson was ultimately unsuccessful – the Supreme Court was recently willing to entertain a fullscale attempt to overturn Gray v Thames Trains in the modern era. The lesson is that policy-based reasoning only invites appeals.
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Megan Griffiths (2018)
Achas Burin (2012)
The judgment in Patel can be found here
The judgment in Henderson can be found here
The judgment in Lewis-Ranwell can be found here
