Alexander Lewis-Ranwell v G4S Health Services (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lady Justice Andrews,Dame Victoria Sharp, P |
| Judgment Date | 20 February 2024 |
| Neutral Citation | [2024] EWCA Civ 138 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001259 |
[2024] EWCA Civ 138
Dame Victoria Sharp
(President of the King's Bench Division)
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
and
Lady Justice Andrews
Case No: CA-2022-001259
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Mr Justice Garnham
Royal Courts of Justice
Strand, London, WC2A 2LL
Selena Plowden KC and Christopher Johnson (instructed by Clarke Willmott) for the Claimant/Respondent
Gurion Taussig (instructed by G4S Legal Department) for the First Defendant/Appellant
Judith Ayling KC and James Goudkamp (instructed by DAC Beachcroft LLP) for the Second Defendant/Appellant
Andrew Warnock KC and Jack Harding (instructed by DWF Law LLP) for the Third Defendant/Appellant
Hearing dates: 20–21 June 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 20 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
The Claimant in this case, who is the Respondent to this appeal, is aged 32. He was diagnosed with schizophrenia in his mid-twenties and had spells in psychiatric intensive care in 2016 and 2017. On 10 February 2019, in the course of a serious psychotic episode, he attacked and killed three elderly men in their homes in Exeter in the delusional belief that they were paedophiles. He was charged with murder but following a trial in Exeter Crown Court he was found not guilty by reason of insanity: as explained more fully below, that meant that because of his mental illness he did not know at the time of the killings that what he was doing was wrong. He was ordered to be detained in Broadmoor Hospital pursuant to a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983.
In the two days before the killings the Claimant had twice been arrested by the Devon and Cornwall Police (“the Police”) and detained for some time at Barnstaple Police Station before being eventually released. In short:
(1) The first arrest, on 8 February 2019, was as a result of a suspected burglary. He was released on bail at about 2.30 a.m. on 9 February.
(2) The second arrest, later on 9 February, was for assaulting with a saw an elderly man whom he believed (like those whom he went on to kill the following day) to be a paedophile. He was released on bail at about 10 a.m. on 10 February.
During both periods of detention the Claimant behaved violently and erratically and was apparently mentally very unwell. He was seen or spoken to by mental health professionals employed by G4S Health Services (UK) Ltd (“G4S”) and Devon Partnership NHS Trust (“the Trust”). A face to face assessment by the mental health nurse employed by the Liaison and Diversion Service of the NHS Trust was discussed but did not take place. The need for a Mental Health Act Assessment was discussed with an Approved Mental Health Professional employed by the Council but was not arranged.
On 4 February 2020 the Claimant commenced proceedings in the High Court against G4S, the Police, the Trust and the Council. In broad terms it is his case that it should have been obvious to all concerned during both detentions that if he were released there was a real risk that he would injure other people, and that the necessary steps should have been taken to keep him in detention until it was safe for him to be released. The claims are advanced in negligence and under section 7 of the Human Rights Act 1998. The heads of damage pleaded in the Particulars of Claim are for personal injury, loss of liberty, loss of reputation, and “pecuniary losses”. The Claimant also seeks an indemnity in respect of any claims brought against him “as a consequence of his violence towards others on 9–11 February 2019”.
On 20 July 2021 the Council issued an application for the claim against it to be struck out, and similar applications were subsequently made by G4S and the Trust, though not by the Police. Those three Defendants are the Appellants in this appeal. In each case the ground for the application was, broadly speaking, that the Defendants were entitled to rely on “the illegality defence” – that is, the rule that the Court will not entertain a claim which is founded on a claimant's own unlawful act – because the claim was based on the consequences of the Claimant's three unlawful homicides. The illegality defence is often described as depending on “the ex turpi causa principle” (or “rule”), referring to the maxim ex turpi causa non oritur actio; and I will in this judgment use both labels indifferently.
The applications were heard at Exeter Crown Court by Garnham J on 9 and 10 March 2022. By that time the Appellants had accepted that the applications could only be pursued as regards the claim in negligence and that the claim under the 1998 Act would continue in any event. 1
By a judgment handed down on 20 May 2022 Garnham J dismissed the applications. The essence of his reasoning is that because the verdict of “not guilty by reason of insanity” meant that the Claimant did not know that what he was doing was wrong his conduct did not have the necessary element of “turpitude”. As he put it at para. 135:
“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 turpitudinous 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.”
This is an appeal against that decision. G4S has been represented by Mr Gurion Taussig; the Trust by Ms Judith Ayling KC and Mr James Goudkamp; and the Council by Mr Andrew Warnock KC and Mr Jack Harding. The Claimant has been represented by Ms Selena Plowden KC and Mr Christopher Johnson. The representation was the same before Garnham J, except that Ms Ayling and Mr Warnock appeared without juniors. Mr Taussig did not advance any oral submissions but, in addition to relying on his skeleton argument, adopted the submissions of Mr Warnock and Ms Ayling.
The question whether the illegality defence operates in a case where the claimant was insane at the time that he or she did the unlawful act is not the subject of any binding authority. In Clunis v Camden and Islington Health Authority [1998] QB 978 this Court held that a mentally ill person who had been convicted of manslaughter by reason of diminished responsibility was barred by the ex turpi causa principle from bringing a claim against his doctors for negligent treatment which was said to have caused or contributed to his committing the offence; and that decision has since been upheld by the House of Lords in Gray v Thames Trains Ltd [2009] UKHL 33, [2009] 1 AC 1339, and by the Supreme Court in Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43, [2021] AC 563. However, the reasoning in those decisions, though clearly relevant to this case, is not determinative because diminished responsibility is not the same as insanity. The issue has been directly considered in some U.S. and Commonwealth cases, and also in a recent decision of the High Court, Traylor v Kent & Medway NHS Social Care Partnership Trust [2022] EWHC 260 (QB), [2022] 4 WLR 35.
In those circumstances it will be necessary to consider the case-law – both the cases identified above and the general authorities on the illegality defence – in some detail. But before I embark on that exercise I need first to summarise the law on the distinct though related question of the liability, both criminal and tortious, of persons who commit unlawful acts as a result of mental illness. Accordingly the structure of this judgment is:
(A) Preliminary: Criminal and Tortious Liability of the Mentally Ill
(B) The Illegality Defence: Review of the Authorities
(C) The Judgment of Garnham J
(D) Discussion and Conclusion.
Since the issue is one of legal principle, I do not believe that it is necessary to set out more of the facts than appears at paras. 1–3 above: those interested can find a fuller account at paras. 7–35 of Garnham J's judgment. I should emphasise that since this is a strike-out application the Claimant's allegations against the various Defendants have not yet been determined. But it is easy to see how it is a cause for concern that he should have twice been released when he was on any view mentally very unwell and had on the second occasion already committed a serious assault on a stranger. In the course of his criminal trial the jury sent a note to the Judge in the following terms:
“We the Jury have been concerned at the state of psychiatric health service provision in our county of Devon. Can we be reassured that the failings in care for [the Claimant] will be appropriately addressed following this trial.”
(A) PRELIMINARY: LIABILITY OF THE MENTALLY ILL
CRIMINAL LIABILITY
Section 2 (1) of the Trial of Lunatics Act 1883, as originally enacted, provided that:
“Where in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such a person for that offence that he was insane, so as not to be responsible, according to law, for his actions at the time when the act was done or the omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when...
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