Court of Appeal rules that the illegality defence does not bar insanity cases

The judgment of the Court of Appeal in Lewis-Ranwell v G4S Health Services (UK) Ltd and Others was handed down today. The Claimant, Alexander Lewis-Ranwell, had killed three men whilst experiencing a psychotic episode. He was tried for murder and found not guilty by reason of insanity. 

In the days before the killings, the Claimant had been twice arrested and released by the police, including, on the day before the killings, for assaulting an elderly man with a saw. Whilst under arrest, the Claimant behaved erratically and violently and was apparently very mentally unwell. The Claimant claims damages against the police and three further Defendants responsible for providing mental health services to him whilst in police custody on the basis that it was negligent to release him, rather than to take appropriate steps to safeguard his (and others’) wellbeing.  

Three of the Defendants sought to strike out the claim, relying on the illegality or ex turpi causa defence which had succeeded in previous cases where psychotic claimants had been convicted of diminished responsibility manslaughter  (Clunis v Camden & Islington HA [1998] QB 978; Gray v Thames Trains Ltd [2009] UKHL 33; Henderson v Dorset University NHS Foundation Trust [2020] UKSC 43). 

The Defendants’ application had failed before Garnham J in the High Court ([2022] EWHC 1213 (QB)). Their appeal to the Court of Appeal has now been dismissed (Underhill LJ and Dame Victoria Sharp in the majority, Andrews LJ dissenting). 

After a comprehensive review of domestic and foreign authorities, Underhill LJ, in the leading judgment, applies the now orthodox analysis described by the Supreme Court in Patel v Mirza [2016] UKSC 42.  

He accords full weight to public policy considerations including ensuring (i) consistency in the law and (ii) public confidence and concludes that this does not require dismissal of the claim.

Consistency: he accepts the Claimant’s “straightforward case” that the verdict of Not Guilty by Reason of Insanity is an acquittal. The Defendants had argued that although the Claimant was not criminally liable, the fact he had committed a criminal/ unlawful act was sufficient to engage the ex turpi causa defence. Underhill LJ considered that whilst the argument was superficially appealing, it does not accord with the fundamental justice of the matter nor reflect the basic perception in the previous authorities that there is a requirement for moral culpability. 

Dame Victoria Sharp agreed, focusing on the principled difference in criminal law between the defences of diminished responsibility manslaughter and insanity and the bright line between the two which was recognised in Clunis, Gray and Henderson.  

As to the wider public confidence principle, Underhill LJ states, at [104]: 

“…the values of our society are not reflected by debarring a claimant from seeking compensation in this kind of case. It is necessary… to go beyond “instinctive recoil” and to consider what justice truly requires in a situation which most humane and fair-minded people would recognise as far from straightforward. Taking that approach, although of course those who are killed or injured must always be treated as the primary victims, it is fair to recognise that the killer also may be a victim if they were suffering from serious mental illness and were let down by those responsible for their care…”

The Defendants sought permission to appeal to the Supreme Court. That application was rejected by the Court of Appeal.

The full judgment is available here

Christopher Johnson represented the successful Claimant. He was led by Selena Plowden KC and instructed by James Edmondson of Clarke Wilmott Solicitors. Invaluable analysis and critique was provided by Dr Matthew Dyson and by Rachel Woodward.