Alexander Lewis-Ranwell v G4S Health Services (UK) Limited & Ors

On 10 February 2019 Alexander Lewis-Ranwell attacked and killed three elderly men in their homes in Exeter. In November 2019, following a trial before May J and a jury at Exeter Crown Court, he was acquitted of murder by reason of insanity. He was ordered to be detained at Broadmoor Hospital, pursuant to sections 37 and 41 of the Mental Health Act 1983 (the “MHA”).

In February 2020, Mr. Lewis-Ranwell (hereafter “the Claimant”) commenced civil proceedings against G4S Health Services (UK) Limited (the First Defendant), the Chief Constable of Devon and Cornwall Police (the Second Defendant), Devon Partnership NHS Trust (the Third Defendant) and Devon County Council (the Fourth Defendant) 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 the ECHR as incorporated into domestic law by the Human Rights Act 1998. The Claimant sought damages for personal injury, loss of liberty, loss of reputation and loss of dignity, and indemnity in respect of any claim brought against him as a consequence of his violence towards others in the period 9-11 February 2019. The claim is opposed by all four Defendants.

The First, Third, and Fourth Defendants have applied for an order striking out the claim against them on the grounds of illegality, or, to use the Latin maxim, “ex turpi causa non oritur actio” (out of a dishonourable cause no action arises.) I heard arguments in support of, and in response to, those applications on 9 and 10 March 2022 and reserved my judgment. This is that judgment.

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”.

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.

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 Claimant’s case can be shortly summarised. I repeat that what follows is taken from the Claimant’s pleaded account of events only.

The Claimant was born on 17March 1991 and was 27 years old in February 2019. He had developed mental health symptoms in early adulthood, in 2016 and 2017, and was detained under the MHA. He was diagnosed with schizophrenia and psychosis and required treatment in a psychiatric intensive care unit. His condition responded to anti-psychotic medication.

On the morning of 8 February 2019, the Claimant was arrested on suspicion of burglary and, at 10.04, was detained at Barnstaple police station. A risk assessment was conducted. It was recorded that the Claimant denied having any mental health problems but stated that he had been “sectioned twice for psychosis, sectioned at North Devon District Hospital, Weston super Mare and Blackheath for 2-3 years.” He stated that he was “given meds for his mental health but isn’t currently medicated.” A police officer suggested that he needed to be seen by a Health Care Professional (“HCP”) and a mental health practitioner (“MHP”). He was seen by staff of the First Defendant, and by the Third Defendant’s Senior Mental Health Nurse, Ms Carren Dennis, during the morning. Ms Dennis noted that he had been referred for a “mental health crisis” and that he declined to engage.

On the afternoon of 8 February, it was recorded that the Claimant posed a risk of violent assault. During the afternoon he became increasingly agitated, irrational and paranoid. At 18.50 hours there was a confrontation between the Claimant and an officer during which she pushed him back into his cell. No medical review was sought during the afternoon and evening.

At 17.40 the Claimant asked to speak to his mother by telephone. He was agitated and delusional, saying she was not his “real mother”. The telephone call was cut off by the police. The Claimant’s mother telephoned the police station and spoke to a Detention Officer to whom she reported that her son was having a psychotic episode. She told him of her concerns given his previous behaviour when psychotic.

At 21.57 hours the Claimant’s mother telephoned the police station again and told an officer that the claimant had a history of being violent when unwell and said that she would have “grave concerns” should he be released.

At 02.00 hours on 9 February 2019, a police officer called the Claimant’s mother and told her that he was going to be released. She remonstrated strongly with the officer, pointing out that it was the middle of the night, the Claimant was unwell, the temperature outside was low, the Claimant had nowhere to go and was a risk. At 02.42 the claimant was woken, charged with the offences of burglary and with criminal damage to his cell. His property was returned to him. That property did not include a mobile telephone.

At 02.47 a pre-release plan was recorded. It was noted that the Claimant had been reviewed by the HCP, who had no concerns, and had been seen by the MHP. It was noted that “mother has phoned in stating that she has grave concerns if he is released as she feels this was how his mental health declined last time. Currently although he has displayed some strange behaviour whilst he’s here, he has not caused me any immediate concerns for care on his release…(He) has positively engaged with me whilst here and has agreed to supported sleeping for the night.”

He was released on bail at 02.49 and taken to premises known as “The Freedom Centre”. After his release a police officer telephoned the Claimant’s mother and told her his whereabouts. The Claimant left the Freedom Centre after about three hours and the night manager informed the police of that fact.

On the morning of 9 February 2019, the Claimant visited a small holding in the Barnstaple area where he released sheep and alpacas from their enclosure. When challenged, he asked the 84-year-old owner of the small holding if he was a paedophile and then attacked him with a long double-handed saw. Shortly thereafter, he was arrested on suspicion of causing grievous bodily harm. He was detained for a second time at Barnstaple Police Station.

In a risk assessment undertaken by a Custody Sergeant at 10.38 it was noted that the Claimant suffered from mental health problems. At 11.05 the Claimant tried to grab an officer’s taser gun. He was restrained, taken to his cell, his clothing was cut from him and he was given a “self-harm suit”.

At the request of the police, HCP Allen Harness attended the Claimant in his cell. He noted the Claimant’s past mental health history, his “bizarre speech” and his “uncooperative mood” and was unable to tell if the claimant was orientated to time and place, or to comment on his memory or concentration. He wrote “attempt to deliberately misconstrue any attempts at conversation and refused to be seated to allow me entry into his cell”. He concluded he was fit to be detained, interviewed, transferred and charged, and that he did not require an appropriate adult.

The police contacted Ms Rebecca Ding, a mental health professional employed by the Third Defendant, who spoke to the Claimant by telephone at 14.40. Ms Ding indicated that the Claimant was agitated, paranoid and presenting with pressured speech. He was “thought-disordered” and lacked insight and presented a risk to the public. At 14.57 PS Samuel Davis noted in the detention log that the MHP had spoken to the Claimant and was intending to visit him in person. He noted that she was “of opinion he will need a full MH assessment.” At 15.02 Ms Ding recorded her findings in the custody records. She called the Fourth Defendant “to enquire if they would consider a MHAA without me having seen him in person…”

There were conversation over the following hour or so between the employees of the First, Second and Fourth Defendants concerning the arrangements necessary for a MHA assessment to be conducted on the Claimant. An employee of the Fourth Defendant was unwilling to provide the MHA assessment at Barnstable police station without a face-to-face assessment by the Liaison and Diversion services, but would provide such an assessment if, pursuant to s136 MHA, the Claimant was transferred to a place of safety in Exeter by the Second Defendant. The Third Defendant’s employee was unwilling to provide a face to face assessment as her shift was ending at 18.00 and she was in Exeter. The Second Defendant was unwilling to use its powers pursuant to s136 to transfer the Claimant to Exeter. The decision was made that the claimant would be reviewed by a medical examiner employed by the First Defendant, and, if sanctioned by him, a formal assessment would be arranged to take place in Barnstaple overnight.

The Third Defendant’s MHP, Ms Ding, noted that the Claimant was likely to be charged with the offence of grievous bodily harm. She noted that “custody staff were reluctant to use s136 as the charges were serious and he would have to be released under investigation. The police would then need to re-arrest him if he wasn’t detained to charge him with the offence.”

At 14.11 hours the Claimant’s detention was reviewed by Inspector Seear. He noted that the Claimant “made very little sense…We are in the process of arranging for his mental state to be assessed by an approved Mental Health Practitioner…The DP (the detained person) potentially presents a serious risk to the public if released. As such, until such time directed otherwise, we will seek to continue to deal with the criminal matter as it is deemed that DP should be sectioned. … At this time detention is lawful and necessary in order to assess fitness for interview and obtain evidence.”

At 16.21 Ms Ding made a further entry in the detention log which included the following “custody staff advised that if they are concerned about detainee’s mental health presentation and do not feel as though section 136 appropriate, the FME (Force Medical Examiner) should be requested if appropriate an MHAA should be requested by them. Advise Custody Sergeant that if detainee is held in policy custody and he hasn’t been seen by a MHP by tomorrow morning I can come up and see him…”

At 16.30 hours Custody Sargeant Davies contacted the First Defendant to request attendance of an FME. He was referred to Dr Pichiu, a doctor employed by the First Defendant in the role of FME. Sergeant Davies informed Dr Pichiu of the Claimant’s circumstances and of the fact that the Fourth Defendant’s Liaison and Diversion (“L and D”) services had advised that he “clearly needs some sort of assessment through the AMHPs.” Dr Pichiu advised that he would not be able to undertake a mental health assessment but agreed to attend.

The Claimant’s condition continued to deteriorate. He was seen by the First Defendant’s employee paramedic, Allen Harness, who noted that he was “behaving very bizarrely…mood deliberately obstructive, bleak, attention seeking; speech bizarre; evidence of delusions bleak hallucinations… .” On his medical form Mr. Harness recorded “behaving bizarrely but I believed this is premeditated and not as a function of any underlying physical defect. As such, [he] remained fit to detain, fit to interview. Consent withdrawn so no assessment of treatment possible.”

At 18.15 Dr Pichiu attended the police station and saw the Claimant in his cell. At 18.55 he spoke to Sam Buxton, the duty AHMP employed by the Fourth Defendant, and advised that as long as he was not suicidal or delusional, an MHA assessment was not appropriate. At 19.12 Dr Pichiu recorded on the Claimant’s medical form, “psychotic. No acute medical condition at the time of the examination.”

The Claimant’s agitated behaviour continued into the late evening and the early morning of 10 February 2019. At 22.56 hours the duty solicitor arrived and was told by PS Tearall that the Claimant has had “every opportunity to behave but has not done so and I believe now that if he were allowed out of his cell he would assault police staff and also [the appropriate adult] and solicitor.” At 23.28 the Claimant’s detention was reviewed by PS Tearall and he was arrested for criminal damage to his cell. During an interview through the cell door, the Claimant continued to spit and punch the hatch showing aggression towards the officers. When he was asked if he had attacked the male with a saw, he said “yes, I did, he’s a pervert.”

At 03.09 hours Police Constable Steven Wall telephoned the on-call Superintendent and requested a 12-hour extension of the Claimant’s detention. Superintendent Hawley decided an extension under PACE was not justified. She considered police powers to detain a person for assessment under s136 of the MHA. PC Wall told her that the Claimant’s mental health had caused concern but that he had been seen by the HCP, FME, and MHP and was deemed not to be psychotic although he would require a MHA assessment.

The following morning, Sunday 10 February 2019, the Claimant continued to deteriorate, acting in an agitated manner with “pressure of speech”. He required restraint and posed a risk to the health and safety of others. At 08.13 Ms Ding noted that he was due to be released on bail in the next hour. At about 09.12 the Claimant was forcibly restrained after clenching his fists with a view to punching an officer. During the course of the restraints, the Claimant injured the thumb of a police officer.

The Claimant was granted bail and his property was returned to him. At about 9.38 he was released to the street outside Barnstaple Police Station. In a pre-release plan it was noted that “the detainee has been spoken to by the MHP and also by the FME. They have requested that the detainee be provided with the L & D letter with contact details for L&D which I have provided.”

Soon after his release, the Claimant became involved in a series of incidents: he was removed from a supermarket; his presentation frightened a taxi driver; he caused concern to a number of members of the public. Later that same day the Claimant went on to kill the three innocent, elderly men in their homes whilst suffering delusional beliefs about them.

At 05.25 on 11 February 2019, the Claimant was arrested for an assault on the night manager of a hotel. He was taken to Exeter police station where he was seen again by Dr Pichiu who initially advised that there was no need for a MHA. He was subsequently assessed under the MHA and detained at Wonford House Hospital. At 23.00 on the 12 February 2019 he was arrested by the police at that hospital and taken to Exeter Police Station for questioning. He was charged with three counts of murder and remanded to Exeter Prison.

The Claimant’s trial was conducted in Exeter Crown Court between 19 November and 2 December 2019. The evidence of the three psychiatrists at the trial was that the Claimant knew what he was doing but not that what he was doing was immoral or unlawful. The issue for the jury was whether the Claimant was guilty of manslaughter, by reason of diminished responsibility, or not guilty of murder by reason of insanity.

Towards the end of the trial, before delivering their verdict, the Jury asked this question:

“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 ALR will be appropriately addressed following this trial?”

The jury found the Claimant not guilty by reason of insanity and he was acquitted of murder and manslaughter. As noted above, following his acquittal on the grounds of insanity, the court, acting in accordance with section 5 (1) and 5 (3) of the Criminal Procedure (Insanity) Act 1964, made a hospital order with restrictions and the Claimant was detained at Broadmoor hospital.

The Claimant makes numerous allegations of negligence against each of the Defendants, including the following:

As against the First Defendant, he complains about the allegedly negligent assessment and conduct of HCP Allen Harness on 9February and about the allegedly negligent assessment, conduct and advice of Dr Pichiu on 9 February.

As against the Third Defendant, he complains about the failures of Nurse Dennis to undertake adequate triage and screening of him on 8 February, the failure of Ms Ding to arrange proper assessments on 9 February, and the failure of Ms Ding on 10 February to conduct a proper risk assessment, give proper advice to the police and to visit and assess him.

As against the Fourth Defendant, he complains about the failures of the emergency duty team to arrange proper assessment of him and proper advice.

All these allegations are particularised, at enormous length, in paragraphs 91-104 of the Particulars of Claim. It is not necessary to repeat that detail here.

Section 2 Trial of Lunatics Act 1883 (as amended by the  Criminal Procedure (Insanity) Act 1964) provides that

Section 5 (2) Criminal Procedure (Insanity) Act 1964 (as amended) provides that

Section 2 Homicide Act 1957 (as amended by section 52 Coroners and Justice Act 2009) provides:

I had the benefit of detailed skeleton arguments on this application on behalf of all parties, and those arguments were developed orally. The task of advancing the common elements of the Defendants’ cases fell on Mr Warnock QC for the Fourth Defendants. Mr Taussig for the first defendant and Ms Ayling QC for the Third adopted Mr Warnock’s argument, adding brief additional remarks of their own. Ms Plowden QC responded on behalf of the Claimant. I am grateful to all counsel for their submissions.

All counsel developed their submissions primarily by reference to the following eight authorities: Clunis v Camden Islington HA [1998] QB 978; Hunter Area Health Service v Presland (2005) 63 NSWLR 22; Gray v Thames Trains [2009] 3 WLR 167; Les Laboratoires Servier v Apotex Inc [2015] AC 430; Patel v Mirza [2016] UKSC 42; [2017] AC 467; Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43; [2021] AC 563; Stoffel v Grondona [2020] UKSC 42; Traylor & anor v Kent & Medway NHS Social Care Partnership Trust [2022] EWHC 260 QB. I consider each of those decisions in the “Discussion” section below.

Mr Warnock advanced six principal arguments. First, he submitted that a verdict of not guilty by reason of insanity is not the same as a finding that the Claimant bears no legal responsibility for the killings; it is not akin to an outright acquittal. This was not a case where the Claimant did not understand that he was killing someone at all or had no control over his actions. Referring to the “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, he argued that the Claimant has been found guilty beyond reasonable doubt of committing the alleged crimes and bears some legal and moral responsibility for the killings. If that is the case, he argued, then Henderson and Gray are binding on this Court and the claim must necessarily fail. He says there is no sustainable distinction, for the purposes of the illegality doctrine, between the quality of intention in a defendant found guilty of manslaughter by way of diminished responsibility (Henderson) and a defendant found not guilty by reason of insanity. If there is no sustainable distinction on the facts, then the illegality defence must apply to bar this claim in the same way as it did in Henderson and Gray.

Second, he said that the illegality defence can apply to situations where there is no criminal responsibility, but where public interest and policy considerations dictate that the defence should succeed and this is such a claim. Regardless of the nature and extent of the Claimant’s criminal, civil or moral responsibility for the crimes (and they were still ‘crimes’ notwithstanding the verdict that was reached) a ‘bright line’ rule is preferable in all factually similar cases to avoid investigations into the quality of intention or blameworthiness that ought to attach in any given case. The ‘bright line’ established in Henderson would be seriously undermined were this claim be permitted to succeed.

Third, Mr Warnock argued, it would be incoherent for the law to award damages to the Claimant in this claim when the claims of his three victims or their families could not succeed. The criminal law has imposed a sentence on the Claimant which presupposes that he poses some risk to the public; it would therefore be incoherent to award him damages on the basis that he ought not to have been detained. It would be incoherent for tort law to regard the Claimant as responsible for his actions on the one hand (see Morriss v Marsden [1952] 1 All E.R. 925) whilst on the other allowing him to deny that responsibility. Drawing a distinction between Henderson and the Claimant’s claim would be incoherent on the facts of both cases. The differences between them are so fine and arbitrary as to make different treatment legally unsustainable.

Fourth, he argued that balancing competing public interests, this claim should not be allowed to proceed. He said 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. 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. The Claimant bears, at a very minimum, a degree of moral responsibility for his failure to manage his mental health, especially when compared with the complete blamelessness of his victims. The acts committed by the Claimant could not be more serious or more central to his claim.

Fifth, it was submitted that the ‘narrow claim’ (for heads of loss flowing from the consequences of the criminal sentence) is barred under the ratio of Gray as a matter of causation. The heads of loss which flow directly from the lawful imposition of a sentence under the criminal law (i.e. loss of earnings whilst incarcerated) are barred under the ratio of Gray (see [50]). As a matter of causation these heads of loss were caused by the operation of the criminal law which determined that the Claimant posed a risk to the public. The sentence imposed in Gray was the same as that imposed upon the Claimant and it was irrelevant whether the sentence was imposed for treatment or punishment.

Sixth, Mr Warnock said that there is an obvious deterrent effect in having a clear rule that killing a person never results in compensation. Given the fundamental importance of the right to life, such a bright-line rule is clearly beneficialImposing civil responsibility for the unpredictable and potentially criminal acts of a mentally unstable individual is likely to impact inappropriately on the decision-making process when considering whether to deprive an individual of their liberty on mental health grounds and may lead to overly-defensive practices. In both Henderson and Stoffel the Supreme Court accorded particular weight to the consideration of centrality of the illegal or immoral act to the claim. Plainly, the killings are of crucial and central importance to the claim and the conduct committed by the Claimant was of the most serious nature. The losses he claims flow directly from the killings.

Mr Warnock summed up his case in this way: the illegality defence is at heart a rule of public policy, concerned with ensuring coherence and consistency within the legal system. The defence applies not just to acts which are criminal, but to acts which “engage the interest of the state, or the public interest”. The nature of the killings engages the illegality defence as a matter engaging the public interest.

He identified the following polices in favour of denying the claim. First, consistency and coherence: although the Claimant was not criminally responsible for that act, it would be incoherent for the law to order 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, on the basis that he should not have been detained. 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 public confidence principle is also engaged: the Claimant is being detained by the state for public safety given that he killed three people. A claim for compensation leads to an instinctive recoil. The centrality of the killings is important here. There was intent, albeit not an understanding that what he did was wrong. Intent in any event is only one of the factors identified in the balancing act.

Ms Ayling substantially adopted Mr Warnock’s submissions. She accepted that there had been no criminal trial of the assault charge, and that this could not properly form the basis of a strike out application. As to Mr Warnock’s first and second points, the circumstances in which the principle applies, she said the fact that the Claimant was found not guilty by reason of insanity does not entitle him to recover damages. If he was not criminally responsible for the killings, they were deliberate and unlawful acts, and the assault on the owner of the small holding was a serious criminal act. The fact that he was found not guilty of murder by reason of insanity does not render his acts lawful or moral. For the purposes of the criminal law he had mens rea. She said that public policy mandates a conclusion that all heads of loss should be denied; the act does not have to be illegal to engage the defence, and an immoral or illegal act may also engage it.

On his third point, she said the consistency principle and the public confidence principles are engaged and the wrongdoing was of the utmost gravity. To compensate the Claimant for detention designed and intended to protect the public from the risk of serious harm in the future would be incoherent and self-defeating, and would mean the law giving with the right hand what it took away with the left. NHS funding is an issue of significant public interest and importance and, if recovery from the Trust is permitted, funds will be taken from the NHS budget to compensate the Claimant for the consequences of the killings, including for the consequences of a disposal no different to what it would have been had the Claimant been guilty of manslaughter by reason of (even very substantially) diminished responsibility. Ms Ayling argued that the public policy factors relied on by the Claimant plainly outweighed those identified by the defendants.

On his fifth issue, causation, she said liability for each head of damage was denied by the Trust on the basis that the damage complained of is the consequence of the disposal of the criminal court under the Criminal Procedure (Insanity) Act 1964 and/or is the consequence of the Claimant’s own unlawful conduct. She said that the proximate cause of the Claimant’s detention and remand to hospital and its consequences was his own deliberate and unlawful act in killing the three men and the disposal of the criminal court; and the assault on Mr Ellis would likely have led to a criminal disposal. There is a very close connection between the claim and the killings were the immediate and effective cause of all heads of loss claimed, and the sole effective cause of such loss. The Claimant, she argues, is seeking redress in respect of damage lawfully inflicted on him by the criminal court with the result that his claim, if allowed, would bring tort law into direct conflict with criminal law.

Pointing to the seriousness of the killings, the centrality of that conduct, the fact that the first limb of M’Naghten was met and the disparity of the parties conduct, she said thatdenial of the claim would be a proportionate response to the illegality.

Mr Taussig adopted the submissions of Mr Warnock and Ms Ayling.

In response, Ms Plowden began by emphasising that the illegality/ex turpi defence is draconian in that it prevents the Court from adjudicating civil issues between parties. The dual underlying purpose of the defence is to prevent a Claimant profiting from his wrongdoing and to prevent incoherence between the civil and the criminal law.

She said that the illegality defence has not (in modern times) in this jurisdiction been applied to debar a tortious claim on the basis of conduct other than criminal conduct. Even criminal conduct does not automatically engage the defence. The courts have repeatedly emphasised the importance of establishing that, at the time of the conduct, the claimant knew that what he was doing was wrong. To apply the illegality defence to this case and to debar the Claimant from litigating his legitimate common law claim would run counter to established principles; would introduce incoherence between the operation of the criminal and civil law; would extend the doctrine of illegality and judicial abstention when there is no good public policy reason to do so; would run counter to the public interest in ensuring that the failings in care for the Claimant are appropriately addressed and would be a disproportionate response to a perceived but unfounded perception of moral opprobrium.

There are, Ms Plowden says, important qualitative differences between a conviction for diminished responsibility manslaughter and an acquittal on grounds of insanity which go to the heart of the illegality defence. In addition to the central fact that one involves a conviction and the other an acquittal, the first involves behaviour which the claimant knew to be wrong and the second involves behaviour which the claimant did not know to be wrong. She says that what distinguishes those verdicts, namely whether the individual knew his behaviour was wrong, is also central to establishing the illegality defence.

In case the court was against her on these fundamental submissions, Ms Plowden addressed the competing public interests. She contended that on a proper application of the range of public policy factors/ trio of considerations identified in Patel v Mirza and modified in Henderson the balance fell in the Claimant’s favour and he should not be debarred from bringing his claim. To allow the defence in this case would introduce incoherence into the civil law. The criminal court draws a clear legal line between a conviction for manslaughter and an acquittal for insanity. Permitting the claim would not introduce inconsistency: the criminal law has tried and acquitted the Claimant of legal and moral responsibility for the killings. Disharmony would not arise as a result of the civil law recognising the criminal law’s findings and refusing to bar a legitimate tortious claim on the basis of defence of illegality/ moral turpitude. Debarring the claim would introduce inconsistency: it would be incoherent for the criminal courts to acquit the Claimant of legal and moral responsibility for his actions but for the civil courts to debar him from bringing a legitimate claim on the basis he bears legal and/or moral responsibility.

Ms Plowden acknowledges that it is plainly in the public interest that everything is done to enhance protection of the right to life and to prevent the killing of innocent victims by mentally disordered persons. But, she says, debarring this claim would not enhance that protection; it would not serve to deter an insane person from killing whilst acting under delusions. On the other hand, permitting the claim may very well enhance that protection by exposing what went wrong in this case and enabling lessons to be learned so that high risk psychotic patients are not released without assessment into the community. She argued that the function of the law of tort is not only to compensate claimants but also to delineate and vindicate civil rights. The role of tort in holding state authorities to account and of exposing weaknesses in public health systems serves an important public interest.

She argues that it would not be an affront to the public conscience to allow the claim. She pointed out that the jury in this case considered harrowing evidence as to the violent deaths of the deceased. That did not cause them to hold the Claimant in moral opprobrium. Instead, having considered his state of mind, they acquitted him of responsibility and raised questions at the heart of the claim as to the provision of mental health services. Denying the Claimant the right to bring this claim would be to deprive the public as well as the Claimant of a full and adequate investigation and hearing of this legitimate and serious concern.

If, Ms Plowden submits, the result of weighing the factors above is in the Claimant’s favour, the Defendants’ applications must fail and there is no need to go on to consider the further limb of proportionality. Referring to Stoffel, she says that if the result of the exercise is in the Defendants’ favour, the Court must go on to consider a final safeguard: whether debarring the claim would be disproportionate. She says that barring the claim at this stage would not be based on illegal or immoral behaviour, but on the Court’s own assessment of what is likely to offend public notions of unfairness. That would be to disregard the clear sentiment expressed by the Jury in both their verdict and their note to the Judge and would do a disservice to the current state of public opinion. Permitting the claim to be brought would not prevent a fair consideration of other issues raised by the Defendants relating to the duty and standards of care, the factual issues and questions of causation.

Ms Plowden summed up her submissions in this way: the effect of the illegality defence is to bar an otherwise good claim. As a matter of principle, because of this draconian effect, the court should be wary of any extension to the illegality defence.

To accede to Defendants’ applications in this case would be to apply the defence in circumstances where it has never previously been applied in England and Wales and where all authority has been against its application. The law must be predictable, and this predictability is undermined by uncertain or expansive application of discretionary doctrines such as the illegality defence. It would mark a significant extension of the law of ex turpi in circumstances which would not enhance – and indeed would run counter to, the public polices underlying the defence– the consistency principle and public confidence principle.

It would also run counter to the public interest in protecting the civil rights of mentally ill patients to appropriate medical care, particularly when detained in police stations. It would risk conflating behaviour caused by the most severe mental illness with criminality, despite the finding of the criminal court acquitting the Claimant of criminal responsibility.