GRAY v THAMES TRAINS LTD

When the victim of a large-scale train crash becomes subject to a manslaughter charge, the latent need for compensatory remedy is awoken with claims for damages stemming from the punishment dispensed by the courts.

Public policy, pain and suffering, diminished responsibility and the intricacies of criminal sentencing, are all brought to bear in a case broaching tortious claims and unlawful actions.

In 1999, the now cross-appellant, was one of a number of survivors travelling on the Thames Trains Turbo Train when it collided with a First Great Western High Speed Train near Paddington Station.

Known as the ‘Ladbroke Grove Train Crash’, the aftermath left thirty-one people dead and another five hundred injured.

Fortunate enough to sustain only minor injuries, the appellant later attempted to return to normality, despite suffering from panic attacks, mood swings, flashbacks, nightmares and grief symptoms; although within a number of months, he found himself unable to cope with work, travel, social interaction and even close relationships. 

After unsuccessfully attempting to hold down a number of jobs, the appellant wound up unemployed and a semi-functioning alcoholic, while it was during this period that he was attacked by a drunken stranger while driving his car.

After leaving the car to defend himself, the appellant was further subjected to hostile behaviour by a passing group; after which, he drove away in state of heightened fear.

Shortly afterwards, the appellant stole a knife from his partner’s parents, before finding the man and stabbing him repeatedly.

After the victim later died of his injuries, the appellant turned himself in, and was summarily convicted of manslaughter on grounds of diminished responsibility.

In passing sentence, the court chose to detain him using a section 37 hospital order and section 41 restriction order under the Mental Health Act 1983.

Such decisions were typical in instances where a defendant is found guilty of a criminal act while suffering from a recognised psychological abnormality; which in this case, had been established as Post-Traumatic Stress Disorder (PTSD) by a psychiatrist during the trial.

Roughly five years after his conviction, the appellant initiated proceedings against the respondents Thames Trains and Network Rail, for lost earnings arising from the PTSD during the period between the accident and his incarceration.

However, the claim was then extended to include lost future earnings as well as those during the period before and after the trial.

Relying upon the maxim ‘ex dolo malo non oritur actio’, meaning:

“No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted.”

The respondents made clear that while they admitted full liability for the period between the accident and the unlawful act, they were protected by public policy not to compensate a party who relied upon their own misdeeds when laying claim.

While there had been numerous cases touching upon the indivisible nature of tort and criminal matters, strong argument for the ‘novus actus interveniens’ principle suggested that tortious claims preceding criminal acts were by virtue of the unlawful event, separable and therefore distinct.

This gave rise to the notion that liability could extend only so far as the symptoms directly appropriate to, and displayed by the claimant, in relation to the cause of the tort.

However, it was equally held that whatever separating act took place, it must be of such magnitude that it ‘obliterates’ the wrong doing of the defendant’.

On this occasion, it was held by the appellant that without the accident and concluding PTSD, there would have been no loss of earnings, and no act of manslaughter, and so without sufficient evidence to the contrary, the respondents were still liable for the compensation claimed.

In the first instance, the judge awarded in favour of the appellant, while the Court of Appeal reversed the decision and allowed the respondents’ appeal.

Taken to the House of Lords, the appellant then cross-appealed, while the respondents pursued the same ends as before.

Having examined the position taken by the Court of Appeal, the House gave consideration to the manner of sentencing, and the rights of those convicted to claim for loss of earnings.

In R v Birch, Mustill LJ examined the principles behind section 37 hospital orders before explaining that:

“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.”

R v Birch

However, when coupled with a section 41 restriction order, it was further noted that:

“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 30 September 1983) and now to the Secretary of State and the Mental Health Review Tribunal.”

This meant that instead of proving an exception to the rule of unlawful conduct, the appellant was instead denied his right to earnings while detained, as was illustrated in British Columbia v Zastowny, where the Supreme Court held that:

“When a person receives a criminal sanction, he or she is subject to a criminal penalty as well as the civil consequences that are the natural result of the criminal sanction. The consequences of imprisonment include wage loss.”

British Columbia v Zastowny

This line or argument was bolstered by the outcome of Clunis v Camden and Islington Health Authority; in which, a former patient stabbed an innocent stranger within days of their release, before claiming diminished responsibility and suing the local authority for negligence.

There, it was held that:

“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 . . . 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…”

Clunis v Camden and Islington Health Authority

This decision had been given full support of the Law Commission in its consultation paper ‘The Illegality of Defence in Tort’; and so, it was for these reasons that the House reversed the decision of the Court of Appeal in lieu of the original judgment, and allowed the respondents’ appeal, while reminding the parties that:

“[A] civil court will not award damages to compensate a claimant for an injury or disadvantage which the criminal courts of the same jurisdiction have imposed on him by way of punishment for a criminal act for which he was responsible.”

R v KINGSTON

Sexual assault and involuntary intoxication of the accused become central to the question of defence when the mens rea remains equally present despite the influences of a third party.

In this House of Lords appeal, the idea that perhaps existing criminal law has overlooked the subjective effects of those liable for acts against the person, is explored before deciding how best to answer it.

In this case, the actions of two men were complicit to the sexual assault and degradation of a fifteen year-old boy, while under the influence of a powerful sedative.

The background to the matter stemmed from a business arrangement gone sour, and that left the respondent victim to the subterfuge of his colleague, who unknown to him, was acting on behalf of the slighted party.

Having been paid to place the respondent in a compromising position, the man had arranged for them to invite the teenager to a room, before using a number of drugs to induce the victim into a state of unconsciousness, whereupon the respondent engaged in a variety of lewd and sexually abusive acts as his colleague secretly filmed and took pictures of his assault upon the boy.

When the images and recorded film were obtained by the police, the two men were taken to court and charged with indecent assault.

Upon conviction, the the respondent pleaded a defence of involuntary intoxication, on grounds that the co-defendant had also plied him with a similar drug, and that by extension, his actions upon the victim were as a result of diminished responsibility.

It was on this premise that the respondent pleaded his innocence and sought acquittal on the fact that as previous case law provided, involuntary intoxication was sufficient enough to remove the contributory effect of mens rea; and so while the intention to carry out an indecent sexual act was latent within the respondent, it was only manifested through the actions of another, and not by conscious choice.

Precedent for a defence under voluntary intoxication rested upon the outcome of R v Majewski, where the court found that the informed decision to drink excessive amounts of alcohol was not suffice to exemption from the consequences of damage caused afterwards.

However, where a defendant has lost conscious reasoning through the act of another, it was held that mens rea could not logically exist as the decision to act unlawfully was not one of full cognisance but diminished thinking.

In this instance, the capability to sexually abuse minors was knowingly present within the respondent, and so reliance upon an unwittingly ingested drug prior to the act, reduced the foundation of that defence when used as a means of acquittal.

Having subsequently been challenged in the Court Appeal, the conviction was quashed, after which the Crown appealed to the House for reasons of public interest.

The question raised was whether a predilection for young boys negated the defence of involuntary intoxication; and if so, whether it was for the prosecution to establish, or that of the defendant.

Having traced the legal position from as far back as 1830, the idea that temporary insanity or ‘lunacy’ could provide sufficient defence to a criminal act was rebuked when it appeared that certain generosities were afforded those accused, albeit in circumstances contrary to their normal course of behaviour.

In this instance, there was clear evidence that the respondent was predisposed to engaging in deviant sexual acts, and so regardless of what volume or form of intoxication preceded the acts, it was not such that became the source of that unlawfulness, but rather the mindset and neurology of the accused at the point of origin when establishing mens rea.

For that reason, the House denied that the current boundaries of involuntary intoxication defence were to extend further than as before, and that in light of that fact the Crown’s appeal was to be upheld, while going further to remind the parties that:

“[I]t is no answer for the defendant to say that he would not have done what he did had he been sober, provided always that whatever element of intent is required by the offence is proved to have been present.”

R v AHLUWALIA

Victim to an arranged marriage and having endured years of systematic and debilitating abuse at the hands of her husband, the defendant in this appeal case found herself subjected to yet further suffering through the absence of vital medical evidence when her case was presented at trial.

Having been introduced by her brother and sister-in-law while abroad, the defendant, who had been previously studying towards a degree in law, was by cultural obligation and the wishes of her family, forced into marrying the man who later became the subject of her actions.

Prior to their starting a family, the husband began a campaign of mental and physical abuse spanning a decade, until such time as her spirit was broken and death seemed the only solution.

After two failed suicide attempts, the defendant, who herself had been subjected to continuous death threats and physical battery, discovered that her husband was now having an affair with another woman, while uncompromisingly flaunting it with little thought to how degrading and shameful such deceit was to both them and their children.

It was after pleading for him to remain in the marriage, that the defendant set aside a bucket of petrol and a bottle of caustic soda until the time came for her to retaliate.

Unable to sleep one evening, the defendant entered the marital bedroom and proceeded to throw the contents of the bucket over the husband, before lighting a stick and igniting the petrol, whereupon the husband ran screaming from the house before being taken to hospital suffering major burns and dying days afterwards.

At trial, the court found itself with no evidence to support her actions, and after examining both defences offered, the judge explored the argument that her actions represented the cumulative effect of years of provocation by the husband, and that the jury should interpret her actions as that of manslaughter and not murder.

Relying on the changes made to the Homicide Act 1957, there was greater emphasis on the expanse of time between causative actions and those of the defendant, rather than instantaneous responses to attacks.

However, insufficient emphasis was placed upon the mental state of the defendant at the time the act took place, which subsequently resulted in a murder charge, despite the background to the matter.

When taken to the Appeal Court, the judges held that arguments of misdirection were insubstantial to the effect that the jury might have mitigated the verdict.

However, there was the discovery of medically professional evidence that relied upon the Mental Health Act 1983 when describing the defendant as suffering from ‘a major depressive disorder’, thus allowing for diminished responsibility as an alternate defence.

Although the Court typically frowned upon the late presentation of key evidence, it made allowances on this occasion under the powers of section 23(1) of the Criminal Appeal Act 1968, before moving to request a new trial, on grounds that fair and balanced representation was critical to the maxim that ‘Justice should not only be done, but should manifestly and undoubtedly be seen to be done’, while reminding the parties that:

“The phrase “sudden and temporary loss of self-control” encapsulates an essential ingredient of the defence of provocation in a clear and readily understandable phrase.”

PEOPLE v. BERRY

First degree murder and involuntary manslaughter fall within the same category of unlawful killing; however, when the defendant is subject to the misdirection of a jury, the sentence can be one in excess of the prescribed term.

In this matter, a man convicted of strangling his wife challenged the trial court decision on grounds of both emotional and mental vulnerability, when in the summer of 1974, the appellant married a woman more than half his age, before she travelled back to her home country of Israel.

Upon her return, she declared her love for another man with whom she had enjoyed sexual intercourse with on a number of occasions. What then followed was a series of emotional inducements and sexual engagements with the appellant that preceded almost immediate emotional and physical rejections and spurning of his advances.

This pattern of behaviour lasted for a period of ten days; after which, the appellant choked his wife to the point of unconsciousness. Having reported him to the police authorities, the appellant was arrested and charged with assault likely to produce great bodily injury, as per s.245(a)(4) of the California Penal Code, which reads:

“Any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine…or by both the fine and imprisonment.”

Within twenty-four hours of her returning home, the two parties began arguing, whereupon the appellant again strangled his wife, instead using a telephone cord until she was dead. Having confessed, the appellant was charged with first degree murder under ss. 187 and 189 of the California Penal Code, which read:

“187(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought”

189. All murder which is perpetrated by means of…lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing…with the intent to inflict death, is murder of the first degree.”

Upon which, the appellant appealed on grounds that the jury were misdirected when failing to consider the defence submitted by his instructed psychiatrist of voluntary manslaughter under s.192 of the Penal Code, which states:

Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: (a) Voluntary – upon a sudden quarrel or heat of passion (b) Involuntary and (c) Vehicular…”

And that due to his mental instability, he was entitled to mitigation under a defence of diminished responsibility as per People v. Mosher; in which, malice was eliminated by way of mental defect.

Upon presentation, the California Supreme Court examined s.192 of the California Penal Code and drew reference to People v. Logan, in which the court held that:

“[I]t is left to the jurors to say whether or not the facts and circumstances in evidence are sufficient to lead them to believe that the defendant did, or to create a reasonable doubt in their minds as to whether or not he did, commit his offense under a heat of passion…[F]or the fundamental of the inquiry is whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion—not necessarily fear and never, of course, the passion for revenge—to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.”

People v. Logan

While noting that in People v. Valentine, it had been agreed that verbal provocation would be sufficient to constitute arousal of heat or passion.

With regard to the claim of diminished responsibility, it was also agreed that while diminished capacity typically required evidence of mental illness, mental defect or intoxication, it had been recently held in People v. Long, that mental illness or defect without intoxication was equally sufficient as a defence.

Unfortunately for the appellant, there had at no time, been any mention of mental deficiency within his defence; and so, while it was held that the jury were incorrectly directed to determine guilt without consideration of s.192, there could be no mitigation for diminished responsibility, therefore only the first element of the appeal was reversed.

R v BLAUE

The right to manifest one’s religious beliefs, and the right to prove ‘novus actus interveniens’ within a criminal trial are equally valid, and yet when brought together, the finer points of law and natural justice must always prevail.

In spring of 1974, the victim and now deceased, was a young eighteen year-old Jehovah’s witness, who by all accounts, considered herself a devout worshipper, and one clearly unafraid of death.

While resting at home, the appellant appeared before her and demanded sexual intercourse. After refusing to comply with his demands, the appellant stabbed her four times before fleeing the property.

When found staggering in the street outside, the victim was rushed to hospital, before being diagnosed as having a punctured lung and suffering severe blood loss.

In order to perform the required surgery, the surgical registrar confirmed that she would need an immediate blood transfusion; at which point, the deceased explained that due to her religious disciplines she would be unable to receive foreign blood; and that despite knowing the potential, if not unavoidable outcome, she was unwilling to accept the help offered.

Before passing, the deceased also acknowledged such a position in writing; and so, at trial the appellant had argued that the charge of murder be reduced to manslaughter on grounds of diminished responsibility when refusing to accept the transfusion.

Relying upon R v Smith to establish the possibility that her refusal of help had caused her own death, and that such an unreasonable act had broken the chain of causation, the judge directed the jury so as to ask themselves if, by virtue of her religious confines, the deceased had in fact been the primary contributor of her own death, or that despite her painful and somewhat illogical choices, the stab wound itself had caused her to die, and that anything afterwards was merely academic.

After returning a verdict in favour of the deceased, the appellant appealed; after which, the Court of Appeal reminded them that a long established principle of common law, as was written in ‘Hale’s Pleas of the Crown’ (1800) was that:

“He who inflicted an injury which resulted in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself…”

It was thus established and held, that that the primary cause of death was bleeding into the pleural cavity of the lung, that any decision taken after the fact was secondary to the victim’s passing; and that regardless of the role in which religion played, the deceased was entitled to express that belief as she saw fit.

It was for this fundamental reason that the appeal was dismissed and the murder charge upheld, while the Court reminded the parties that:

“It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man.”