An NHS trust admitted that negligent care had allowed an event to occur which would otherwise have been avoided. Ms Henderson sought damages for losses resulting from her own offence of manslaughter and the order imposed by the criminal court. The Supreme Court considered where the illegality defence limited that claim.
The conviction and the civil claim
Ms Henderson was receiving psychiatric care. The trust admitted that she should have been returned to hospital before she killed her mother. It accepted that the killing would otherwise have been avoided.
Ms Henderson was convicted of manslaughter by reason of diminished responsibility. That finding reduced the offence from murder but left her criminally responsible for the killing.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
The criminal court made a hospital order with restrictions. The damages she later claimed included the consequences of her detention.
The claim
The trust admitted negligence in failing to return her to hospital because of her manifest psychotic state, and admitted that the killing would not otherwise have occurred. She claimed damages for a depressive disorder and post-traumatic stress disorder caused by the killing; loss of liberty during detention; loss of amenity arising from having killed her mother; £61,944, the share of her mother’s estate withheld by a court order under the Forfeiture Act 1982; and the future costs of psychotherapy and a care manager or support worker.
The trust said these losses were irrecoverable under the illegality principle, expressed as ex turpi causa non oritur actio: the law will not compensate a person for the consequences of that person’s own criminal act, or of a sentence lawfully imposed because of it. Master Cook ordered a preliminary issue. Jay J and the Court of Appeal decided it for the trust, holding that the facts were materially identical to Clunis v Camden and Islington Health Authority and Gray v Thames Trains Ltd.
Why Gray could not be distinguished
In Gray, a man who developed post-traumatic stress disorder after a railway accident later killed someone and was convicted of the same offence, with the same type of hospital and restriction orders. The House of Lords rejected both his narrow claim, for losses flowing from the sentence, and his wide claim, for other losses flowing from the killing.
Lord Hoffmann based the narrower rule on inconsistency. The criminal law treats the loss of liberty as justified by the person’s responsibility for the crime, so the civil law should not require someone else to pay for that loss. He based the wider rule on the public-policy objection to compensating someone, usually from public funds, for the consequences of that person’s own criminal conduct, and treated the intentional criminal act as the relevant cause even if earlier negligence was a but-for cause. Lord Rodger stressed consistency between the criminal and civil courts and the integrity of the legal system. Lord Hamblen, with whom the other members of the Court agreed, read both rules as resting on that consistency principle, together with a related concern for public confidence in the law.
Ms Henderson relied on reservations by Lord Phillips in Gray, including a case in which the sentencing judge said the defendant bore no significant personal responsibility. Lord Hamblen held that this was not a majority view. Lord Rodger had reserved his opinion only on a different situation: a trivial offence revealing a mental disorder and leading to a hospital order. For a crime as serious as manslaughter, the majority reasoning did not depend on the degree of personal responsibility. What mattered was that responsibility had been diminished, not removed. This was not insanity. The offence, sentence and reasoning were the same here, despite Foskett J’s finding about the degree of responsibility.
Why Gray was not departed from
Departure would have required the 1966 Practice Statement. Lord Hamblen said the Court is very circumspect before using it. He held that Gray was consistent with Patel v Mirza. Gray had examined public policy rather than applying the old reliance test, and Patel had treated it as a policy-based decision. Patel was not a year zero: existing decisions remain unless they cannot stand with its reasoning. Its central concern, like Gray’s, was harm to the integrity of the legal system.
The Court refused to limit Gray to significant personal responsibility or to sentences with a penal element. Recovery would treat the person held criminally responsible as a tort victim and attribute the killing to the negligent defendant. A separate civil test of responsibility, especially one departing from the M’Naghten approach to insanity, risked conflicting decisions. The lack of a section 45A direction did not mean she was blameless. The conviction still involved blame: without diminished responsibility the offence would have been murder, and the conviction was itself punitive.
Nor was there insufficient turpitude. The plea accepted an intention to kill or cause grievous bodily harm, and the psychiatrists agreed that she knew the stabbing was morally and legally wrong. Manslaughter is an indictable-only offence, punishable by life imprisonment, and a serious offence under the dangerous-offender provisions. A proposed capacity test was not justified and would have created uncertainty close to judicial legislation.
The Patel considerations
Lord Hamblen nevertheless applied Lord Toulson’s three considerations. Reasons for denying the claim included consistency, which was central and weighty, and public confidence. The seriousness of unlawful killing strengthened that concern, as did NHS resources: an award would take NHS funds to compensate her for the consequences of a conviction for unlawful killing. The connection was very close. The crime was the immediate and an effective cause of every head claimed and, on the causation approach agreed by the majority in Gray, the sole effective cause. The prohibition protects life and marks condemnation and punishment. Although a person with diminished responsibility may not be deterred by losing a compensation claim, a clear rule that unlawful killing never pays may have some broader deterrent effect.
The countervailing policies did not outweigh those reasons. Competent care was already required by a duty of care, and liability for damages up to the killing was admitted. Limiting the patient’s claim was unlikely to affect standards, particularly with possible claims by victims and regulatory sanctions. It was agreed that the killing of her mother could not have been predicted, and the injury was not the very thing the trust had been engaged to prevent. Concern for the integrity of the legal system prevailed over concern that the defendant be responsible.
The proportionality check also supported denial. The conduct was culpable homicide with murderous intent, by someone who knew it was legally and morally wrong. It was central to every head and intentional in the sense required for murder, even without significant personal responsibility. There was no marked disparity favouring the claim: negligence was admitted, but the staff had not done nothing in response to the relapse. Denial was proportionate. The same would have been true, even more clearly, in Gray.
Which losses were barred
Damages for loss of liberty, and for loss of amenity during detention, fell within the narrower rule. The other heads fell within the wider rule. The Forfeiture Act sum could not be recovered indirectly. It had been withheld by a court order made under that Act after consideration of the conduct of the offender and the deceased, other material circumstances and the justice of the case. Awarding it against the trust would subvert that regime.
Verdict: The Supreme Court unanimously dismissed the appeal. The illegality defence barred the losses in issue, which followed from the offence or its sentence. The decision did not bar compensation for an injury caused by the trust’s negligence before the killing.
Source: Ecila Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43
