Ex Turpi Causa and Gross Negligence Manslaughter
| Date | 01 April 2005 |
| Published date | 01 April 2005 |
| DOI | 10.1350/jcla.69.2.132.63522 |
| Subject Matter | Comment |
COMMENT
Ex Turpi Causa and Gross Negligence
Manslaughter
Alan Reed*
Criminal law developments, like fashions in clothes, are subject to
perceptible trends. In recent times the Court of Appeal has focused upon
the substantive offence of gross negligence manslaughter and the de-
fined role of judge and jury. The Court of Appeal in R v Misra; Srivastava1
has determined that the ingredients of the offence of manslaughter
through gross negligence were sufficiently clearly defined and did not
offend against the relevant provisions of the European Convention on
Human Rights. A differently constituted court in R v Willoughby2had to
grapple with the synergy between ex turpi causa and gross negligence
manslaughter principles, in the context of the victim himself engaged in
illegal activity causing death. The earlier precedent of R v Wacker3failed
to resolve dilemmatic issues engaged in this connection. This comment-
ary seeks to extrapolate the guiding principles that now govern this
arena, and to chart a path for reform.
The facts in Willoughby
The prosecution contended that the defendant had recruited a local taxi
driver to help him set fire to a public house he owned and on which he
owed mortgage arrears of more than £200,000. The two poured petrol
inside the premises which, when ignited, caused an explosion killing the
taxi driver and injuring the defendant. At trial, the judge directed the
jury that it was for them to decide whether a duty of care was owed by
the defendant to the victim, and focused on the ownership of the
property by the defendant as promulgating such a duty. Willoughby was
convicted in November 2003 at Maidstone Crown (Judge McKinnon
and a jury) of manslaughter for which he was imprisoned for 12 years to
run concurrently with a seven-year sentence imposed on his conviction
of arson being reckless as to whether life would be endangered, contrary
to s. 1(2) and (3) of the Criminal Damage Act 1971.
The focus of the appeal centred on a misdirection by the trial judge
identifying property ownership as the derivation of the duty of care
between the participants in the illegal activity. Further, the appellant
sought to distinguish the earlier decision in Wacker, considered below, on
the premise that in that case the driver of the vehicle and the illegal
immigrants hiding inside were not of equal status so that the driver had
* Professor of Law, Sunderland Business School.
1 [2004] EWCA Crim 2375, [2005] Crim LR 234. For full consideration of this case,
see above p. 126.
2 [2004] EWCA Crim 3365, The Times (21 December 2004).
3 [2002] EWCA Crim 1944, [2003] 4 All ER 295.
132
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