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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Henderson v Dorset Healthcare University NHS Foundation Trust [2018] EWCA Civ 1841 (03 August 2018) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2018/1841.html Cite as: [2018] WLR(D) 521, [2018] EWCA Civ 1841, [2018] 3 WLR 1651 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Jay J
Strand, London, WC2A 2LL |
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B e f o r e :
THE SENIOR PRESIDENT OF TRIBUNALS
and
LADY JUSTICE MACUR
____________________
Elicia HENDERSON (a protected party, by her Litigation Friend the Official Solicitor) |
Appellant |
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- and - |
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DORSET HEALTHCARE UNIVERSITY NHS FOUNDATION TRUST |
Respondent |
____________________
Angus Moon QC, Cecily White and Judith Ayling (instructed by DAC Beachcroft LLP) for the Respondent
Hearing dates : 10 and 11 July 2018
____________________
Crown Copyright ©
Sir Terence Etherton MR, Sir Ernest Ryder SPT and Lady Justice Macur :
The factual background
"On whatever analysis is made, this is a desperately sad and tragic case. In August last year, shortly after your 39th birthday, you repeatedly stabbed your 69-year-old mother, as a result of which she died.
"She had come to try to raise you in your flat when you had effectively locked yourself away for the previous few days. That she should die in these circumstances is the principal tragedy in this case, of course. What, however, is clear from all the evidence, expert and otherwise, is that when this awful event occurred you were in the midst of a serious psychotic episode, derived from the schizophrenia which has affected you for the best part of the last 15 years or so.
"For much of that time the condition has been kept under control with the assistance, including medication, that you have received from the local psychiatric teams with whom you have been in contact. Unfortunately the team was unable to get to you in time to prevent the terrible tragedy last year.
"There has, as Mr Grunwald has said, been a full review of the care being given to you at the time, and it is, I think, inappropriate for me to make any comment one way or the other about that, save to say that it is plain that lessons have been learned from it, as I understand, having read the report.
"The one thing that is clear, from the report, is a conclusion that there was little, if any, basis for believing that your mother would be a potential victim of any violence that you might display in a psychotic episode, and that conclusion and analysis seems to have been borne out by the two expert opinions that I have read in the context of this case.
"When you recovered from that psychotic episode, as you did, you appreciated fully what you had done, and you were distressed beyond measure.
"The very detailed and comprehensive reports I have seen from Dr Bradley and Dr Lord, to whom I express my appreciation, demonstrate clearly that your ability to act rationally and with self-control at the time of the incident was substantially and profoundly impaired, because of the psychotic episode to which I have referred, and to the extent that you had little, if any, true control over what you did.
"That means that the conviction for manslaughter by reason of diminished responsibility is obviously the appropriate verdict, and the prosecution has undoubtedly correctly accepted that is so.
"It is also that mental health background that informs and largely dictates how this case should be disposed of. It is quite plain that in your own interests, and in the interests of the public, if and when you are released, that the most important consideration is the successful treatment and/or management of your condition.
"I should say that there is no suggestion in your case that you should be seen as bearing a significant degree of responsibility for what you did. Had there been any such suggestion I would have given serious consideration to making an order under section 45A of the Mental Health Act 1983 , however, on the material and evidence before me that issue does not arise.
"The joint recommendation of Drs Bradley and Lord is that you should be made the subject of a hospital order under section 37 of the Act, with an unlimited restriction order under section 41 of the Act.
"Dr Bradley says in her report that your illness is difficult to treat and monitor and that 'A high degree of vigilance and scrutiny of mental state will be needed to ensure successful rehabilitation'.
"Dr Lord says in his report that the effect of such an order would be that you would be 'detained in secure psychiatric services for a substantial period of time in order for such treatment and rehabilitation to be completed and to ensure the safety of the public'. The restrictions imposed by section 41, he says in his report and has repeated in what he has said to me, would be 'invaluable in protecting the public from the risk of serious harm in the future'.
"Given those strong and firm recommendations from two experienced psychiatrists, who examined you and your psychiatric history with very considerable care, it seems to me that this is the order that I should make, and I will make it."
Legislative background
The criminal law
"... to establish a defence on the ground of insanity, it must be clearly provided that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong".
"(1) A person ("D") who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which
(a) arose from a recognised medical condition,
(b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and
(c) provides an explanation for D's acts and omissions in doing or being a party to the killing.
(1A) Those things are
(a) to understand the nature of D's conduct;
(b) to form a rational judgment;
(c) to exercise self-control.
(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.
(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.
(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter..."
The MHA 1983
"(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as "an application for admission for treatment") made in accordance with this section.
(2) An application for admission for treatment may be made in respect of a patient on the grounds that
(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and
(d) appropriate medical treatment is available for him.
(3) An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include
(a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and (d) of that subsection; and
(b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate.
(4) In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case."
"(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, or is convicted by a magistrates' court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order ...
(ii) (2) The conditions referred to in subsection (1) above are that
(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that either
(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; or...
(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section ...
(8)Where an order is made under this section, the court shall not
(a) pass sentence of imprisonment or impose a fine or make a community order (within the meaning of Part 12 of the Criminal Justice Act 2003) or a youth rehabilitation order (within the meaning of Part 1 of the Criminal Justice and Immigration Act 2008) in respect of the offence, ..."
"Once the offender is admitted to hospital pursuant to a hospital order or transfer order without restriction on discharge, his position is almost exactly the same as if he were a civil patient. In effect he passes out of the penal system and into the hospital regime. Neither the court nor the Secretary of State has any say in his disposal. Thus, like any other mental patient, he may be detained only for a period of six months, unless the authority to detain is renewed, an event which cannot happen unless certain conditions, which resemble those which were satisfied when he was admitted, are fulfilled. If the authority expires without being renewed, the patient may leave. Furthermore, he may be discharged at any time by the hospital managers or the "responsible medical officer." In addition to these regular modes of discharge, a patient who absconds or is absent without leave and is not retaken within 28 days is automatically discharged at the end of that period (section 18(5)) and if he is allowed continuous leave of absence for more than six [now 12] months, he cannot be recalled (section 17(5)).
Another feature of the regime which affects the disordered offender and the civil patient alike is the power of the responsible medical officer to grant leave of absence from the hospital for a particular purpose, or for a specified or indefinite period of time: subject always to a power of recall (except as mentioned above).
There are certain differences between the positions of the offender and of the civil patient, relating to early access to the Review Tribunal and to discharge by the patient's nearest relative, but these are of comparatively modest importance. In general the offender is dealt with in a manner which appears, and is intended to be, humane by comparison with a custodial sentence. A hospital order is not a punishment. Questions of retribution and deterrence, whether personal or general, are immaterial. The offender who has become a patient is not kept on any kind of leash by the court, as he is when he consents to a probation order with a condition of inpatient treatment. The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the result will be to avoid the commission by the offender of further criminal acts."
"In marked contrast with the regime under an ordinary hospital order, is an order coupled with a restriction on discharge pursuant to section 41. A restriction order has no existence independently of the hospital order to which it relates; it is not a separate means of disposal. Nevertheless, it fundamentally affects the circumstances in which the patient is detained. No longer is the offender regarded simply as a patient whose interests are paramount. No longer is the control of him handed over unconditionally to the hospital authorities. Instead the interests of public safety are regarded by transferring the responsibility for discharge from the responsible medical officer and the hospital to the Secretary of State alone (before September 30, 1983) and now to the Secretary of State and the Mental Health Review Tribunal. A patient who has been subject to a restriction order is likely to be detained for much longer in hospital than one who is not, and will have fewer opportunities for leave of absence."
The proceedings
Forfeiture Act 1982 Claim
The present proceedings
i) General damages for personal injury (a depressive disorder and post-traumatic stress disorder ("PTSD")) consequent on her killing of her mother;
ii) General damages for her loss of liberty caused by her compulsory detention in hospital pursuant to sections 37 and 41 of the MHA 1983;
iii) General damages for loss of amenity arising from the consequences to her of having killed her mother;
iv) Past loss in the sum of £61,944 being the share in her mother's estate which she is unable to recover as a result of the operation of the provisions of the FA 1982;
v) The cost of psychotherapy (by way of future loss);
vi) The cost of a care manager/support worker (by way of future loss).
Judgment under appeal
Grounds of appeal
Discussion
a) What is the ratio of Clunis?
b) What is the ratio of Gray and in particular were the reservations of Lord Phillips approved by the majority of the House of Lords?
c) Does Clunis survive the judgment of the Supreme Court in Patel? This issue requires us to consider whether Clunis cannot stand with Patel within the meaning of the third limb in Young.
Clunis
"We did not consider that the public policy that the court will not lend its aid to a litigant who relies on his own criminal or immoral act is confined to particular causes of action.
In our view the plaintiff's claim does arise out of and depend upon proof of his commission of a criminal offence."
"In the present case the plaintiff has been convicted of a serious criminal offence. In such a case public policy would in our judgment preclude the court from entertaining the plaintiff's claim unless it could be said that he did not know the nature and quality of his act or that what he was doing was wrong. The offence of murder was reduced to one of manslaughter by reason of the plaintiff's mental disorder but his mental state did not justify a verdict of not guilty by reason of insanity. Consequently, though his responsibility for killing Mr. Zito [the victim] is diminished, he must be taken to have known what he was doing and that it was wrong. A plea of diminished responsibility accepts that the accused's mental responsibility is substantially impaired but it does not remove liability for his criminal act. We do not consider that in such a case a court can or should go behind the conviction The plaintiff in this case, though his responsibility is in law reduced, must in Best C.J.'s words be presumed to have known that he was doing an unlawful act."
"In the present case we consider the defendant has made out its plea that the plaintiff's claim is essentially based on his illegal act of manslaughter; he must be taken to have known what he was doing and that it was wrong, notwithstanding that the degree of his culpability was reduced by reason of mental disorder. The court ought not to allow itself to be made an instrument to enforce obligations alleged to arise out of the plaintiff's own criminal act and we would therefore allow the appeal on this ground."
Gray
"This distinction, between causing something and merely providing the occasion for someone else to cause something, is one with which we are very familiar in the law of torts. It is the same principle by which the law normally holds that even though damage would not have occurred but for a tortious act, the defendant is not liable if the immediate cause was the deliberate act of another individual. Examples of cases falling on one side of the line or the other are given in the judgment of Judge LJ in Cross v Kirkby [2000] CA Transcript No 321. It was Judge LJ, at para 103, who formulated the test of "inextricably linked" which was afterwards adopted by Sir Murray Stuart-Smith in Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218. Other expressions which he approved, at paras 100 and 104, were "an integral part or a necessarily direct consequence" of the unlawful act (Rougier J: see Revill v Newbery [1996] QB 567, 571) and "arises directly ex turpi causa": Bingham LJ in Saunders v Edwards [1987] 1 WLR 1116, 1134. It might be better to avoid metaphors like "inextricably linked" or "integral part" and to treat the question as simply one of causation. Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant? (Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218). Or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant? (Revill v Newbery [1996] QB 567)."
"... More difficult is the situation where it is the criminal act of the defendant that demonstrates the need to detain the defendant both for his own treatment and for the protection of the public, but the judge makes it clear that he does not consider that the defendant should bear significant personal responsibility for his crime. I would reserve judgment as to whether ex turpi causa applies in either of these situations, for we did not hear full argument in relation to them. In so doing I take the same stance as Lord Rodger."
"That is the appropriate approach on the facts of this case. The position might well be different if, for instance, the index offence of which a claimant was convicted were trivial, but his involvement in that offence revealed that he was suffering from a mental disorder, attributable to the defendants' fault, which made it appropriate for the court to make a hospital order under section 37 of the 1983 Act. Then it might be argued that the defendants should be liable for any loss of earnings during the claimant's detention under the section 37 order, just as they should be liable for any loss of earnings during his detention under a section 3 order necessitated by a condition brought about by their negligence. That point does not arise on the facts of this case, however, and it was not fully explored at the hearing. Like my noble and learned friend, Lord Phillips of Worth Matravers, I therefore reserve my opinion on it."
The effect of Patel v Mizra
"... whether Lord Mansfield CJ's maxim in Holman v Johnson (1775) 1 Cowp 341, 343, that "no court will lend its aid to a man who found his cause of action upon an immoral or illegal act" precludes a party to a contract tainted by illegality from recovering money paid under the contract from the other party under the law of unjust enrichment."
"The present appeal concerns a claim for the return of money paid by the claimant to the defendant pursuant to a contract to carry out an illegal activity, and the illegal activity is not in the event proceeded with owing to matters beyond the control of either party."
"Looking behind the maxims, there are two broad discernible policy reasons for the common law doctrine of illegality as a defence to a civil claim. One is that a person should not be allowed to profit from his own wrongdoing. The other, linked, consideration is that the law should be coherent and not self-defeating, condoning illegality by giving with the left hand what it takes with the right hand."
"So how is the court to determine the matter if not by some mechanistic process? In answer to that question I would say that one cannot judge whether allowing a claim which is in some way tainted by illegality would be contrary to the public interest, because it would be harmful to the integrity of the legal system, without (a) considering the underlying purpose of the prohibition which has been transgressed, (b) considering conversely any other relevant public policies which may be rendered ineffective or less effective by denial of the claim, and (c) keeping in mind the possibility of overkill unless the law is applied with a due sense of proportionality. We are, after all, in the area of public policy. That trio of necessary considerations can be found in the case law."
"109 The courts must obviously abide by the terms of any statute, but I conclude that it is right for a court which is considering the application of the common law doctrine of illegality to have regard to the policy factors involved and to the nature and circumstances of the illegal conduct in determining whether the public interest in preserving the integrity of the justice system should result in denial of the relief claimed. I put it in that way rather than whether the contract should be regarded as tainted by illegality, because the question is whether the relief claimed should be granted."
"The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary (a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, (b) to consider any other relevant public policy on which the denial of the claim may have an impact and (c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Within that framework, various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate."
"I have come to the conclusion that the approach suggested by Lord Toulson JSC in para 101 above provides as reliable and helpful guidance as it is possible to give in this difficult field. When faced with a claim based on a contract which involves illegal activity (whether or not the illegal activity has been wholly, partly or not at all undertaken), the court should, when deciding how to take into account the impact of the illegality on the claim, bear in mind the need for integrity and consistency in the justice system, and in particular (a) the policy behind the illegality, (b) any other public policy issues, and (c) the need for proportionality."
Conclusion
Background to the claim
The offence
The aftermath
"On whatever analysis is made, this is a desperately sad and tragic case. In August last year, shortly after your 39th birthday, you repeatedly stabbed your 69-year-old mother, as a result of which she died.
"She had come to try to raise you in your flat when you had effectively locked yourself away for the previous few days. That she should die in these circumstances is the principal tragedy in this case, of course. What, however, is clear from all the evidence, expert and otherwise, is that when this awful event occurred you were in the midst of a serious psychotic episode, derived from the schizophrenia which has affected you for the best part of the last 15 years or so.
"For much of that time the condition has been kept under control with the assistance, including medication, that you have received from the local psychiatric teams with whom you have been in contact. Unfortunately the team was unable to get to you in time to prevent the terrible tragedy last year.
"There has, as Mr Grunwald has said, been a full review of the care being given to you at the time, and it is, I think, inappropriate for me to make any comment one way or the other about that, save to say that it is plain that lessons have been learned from it, as I understand, having read the report.
"The one thing that is clear, from the report, is a conclusion that there was little, if any, basis for believing that your mother would be a potential victim of any violence that you might display in a psychotic episode, and that conclusion and analysis seems to have been borne out by the two expert opinions that I have read in the context of this case.
"When you recovered from that psychotic episode, as you did, you appreciated fully what you had done, and you were distressed beyond measure.
"The very detailed and comprehensive reports I have seen from Dr Bradley and Dr Lord, to whom I express my appreciation, demonstrate clearly that your ability to act rationally and with self-control at the time of the incident was substantially and profoundly impaired, because of the psychotic episode to which I have referred, and to the extent that you had little, if any, true control over what you did.
"That means that the conviction for manslaughter by reason of diminished responsibility is obviously the appropriate verdict, and the prosecution has undoubtedly correctly accepted that is so.
"It is also that mental health background that informs and largely dictates how this case should be disposed of. It is quite plain that in your own interests, and in the interests of the public, if and when you are released, that the most important consideration is the successful treatment and/or management of your condition.
"I should say that there is no suggestion in your case that you should be seen as bearing a significant degree of responsibility for what you did. Had there been any such suggestion I would have given serious consideration to making an order under section 45A of the Mental Health Act 1983 , however, on the material and evidence before me that issue does not arise.
"The joint recommendation of Drs Bradley and Lord is that you should be made the subject of a hospital order under section 37 of the Act, with an unlimited restriction order under section 41 of the Act.
"Dr Bradley says in her report that your illness is difficult to treat and monitor and that 'A high degree of vigilance and scrutiny of mental state will be needed to ensure successful rehabilitation'.
"Dr Lord says in his report that the effect of such an order would be that you would be 'detained in secure psychiatric services for a substantial period of time in order for such treatment and rehabilitation to be completed and to ensure the safety of the public'. The restrictions imposed by section 41, he says in his report and has repeated in what he has said to me, would be 'invaluable in protecting the public from the risk of serious harm in the future'.
"Given those strong and firm recommendations from two experienced psychiatrists, who examined you and your psychiatric history with very considerable care, it seems to me that this is the order that I should make, and I will make it."
The claim
PRESS SUMMARY
Ecila Clare Henderson (A Protected Party, By Her Litigation Friend, The Official Solicitor) (Appellant) v Dorset Healthcare University NHS Foundation Trust (Respondent) [2018] EWCA Civ 1841
On appeal from: [2016] EWHC 3275 (QB)
JUDGES: Sir Terence Etherton MR, Sir Ernest Ryder SPT, and Lady Justice Macur
DATE OF JUDGMENT: 3 August 2018
BACKGROUND TO THE APPEAL
This appeal considers the circumstances in which the common law doctrine of illegality/public policy prevents a claimant from bringing claims for negligence for loss arising out of the claimant's own illegal act.
Ms Henderson was born on 10 August 1971. She was diagnosed at different times as suffering from paranoid schizophrenia or schizoaffective disorder. She began experiencing problems with her mental health in 1995. From about 2003 she had various formal and informal hospital admissions pursuant to the Mental Health Act 1983. Her condition had recently worsened when, on 25 August 2010, whilst experiencing a serious psychotic episode, she stabbed her mother to death. She was subsequently convicted on her guilty plea of manslaughter by reason of diminished responsibility and was made the subject of a hospital order and a restriction order under sections 37 and 41 of the 1983 Act.
Ms Henderson brought a claim for damages in the tort of negligence against the NHS Trust. Liability was admitted but the Trust argued that the heads of damage which included compensation for depression, PTSD and loss of amenity consequent upon the killing, loss of liberty by her compulsory detention, costs of therapy and care and a share in her late mother's estate, were barred by the doctrine of illegality. Mr Justice Jay, sitting in the High Court, agreed.
JUDGMENT
The Court of Appeal unanimously upholds the decision of Mr Justice Jay. The Court of Appeal holds that Ms Henderson cannot claim for any of the heads of damage which are all barred by the doctrine of illegality.
REASONS FOR THE JUDGMENT
In Clunis v Camden and Islington Health Authority [1998] QB 978 the claimant, who had been convicted of manslaughter on the ground of diminished responsibility, claimed damages from a health authority for loss and damage which he said he had suffered as a result of his conviction and which he said should have been prevented by the provision of proper care by the health authority. His claim was dismissed. The Court of Appeal held that courts are required by public policy to deny their assistance to claimants seeking to enforce a cause of action in tort if the claimant was implicated in the illegality and in putting forward his case he seeks to rely upon the illegal acts. The seriousness of the illegal act and the degree of personal responsibility was held to be irrelevant, unless the claimant had been found not guilty of the illegal act by reason of insanity [42-44].
In Gray v Thames Trains Ltd [2009] UKHL 33, [2009] AC 1339, a majority of the House of Lords agreed on the following. First, Clunis was correctly decided. Secondly, in the context of a criminal conviction for unlawful killing, there is a wider and a narrower form of public policy which precludes a claim by the killer from recovering damages in proceedings for negligence against the person whose act or omission is alleged to have been responsible for bringing about the claimant's unlawful conduct in carrying out the killing. Thirdly, the narrower form is that there can be no recovery for damage which flows from loss of liberty, a fine or other punishment lawfully imposed in consequence of the unlawful act since it is the law, as a matter of penal policy, which causes the damage and it would be inconsistent for the law to require compensation for that damage. Fourthly, the wider form is a combination of public policy and causation. If the tortious conduct of the defendant merely provided the occasion or opportunity for the killing, but (in causation terms) the immediate cause of the damage was the criminal act of the claimant, it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for such damage [45 and 64].
The consequence of those principles, which bind this court, is that Ms Henderson cannot claim for damages under any of the heads of loss because (1) Ms Henderson has been convicted of a serious criminal offence; (2) it cannot be said that she did not know the quality and nature of her act or that what she was doing was wrong since her mental state did not justify a verdict of not guilty by reason of insanity; (3) in such a case the court cannot and should not go behind the conviction in order to ascertain whether she had no responsibility for the serious crime to which she pleaded guilty; and (4) she seeks to rely on her illegal act of manslaughter to advance her claims. The critical elements of the present case, Clunis and Gray are materially identical so far as concerns the application of public policy [46, 65 and 76].
It is impossible to discern in the majority judgments of the Supreme Court in Patel v Mirza [2016] UKSC 42; [2017] AC 46 any suggestion that Clunis or Gray were wrongly decided or to discern that they cannot stand with the reasoning in Patel. On that basis, Gray remains binding on the Court of Appeal and so does Clunis [89-92].
References in square brackets are to paragraphs in the judgment
NOTE:
This summary is provided to assist in understanding the Court of Appeal's decision. It does not form part of the reasons for the decision. The full judgment of the Court of Appeal is the only authoritative document. Judgments are in the public domain and are available at [2018] EWCA Civ 1841.