No compensation for loss arising from a claimant’s criminal activity: the final chapter

Published 30 October 2020

This morning (30 October 2020) the Supreme Court has handed down its judgment in Ecila Henderson v Dorset Healthcare University NHS Foundation Trust. The Claimant’s appeal against the dismissal of her claim was rejected by all seven of the Justices who heard the case. DAC Beachcroft acted for the Defendant at the Supreme Court, having also successfully defended the case at the High Court in 2016 and at the Court of Appeal in 2018.

What was the case about?

A person commits a crime and they suffer harm as a direct result of it. Somebody else is also responsible for the harm they suffer. Should the first person be compensated by the second person?

For instance, a person is charged with a crime and taken into police custody, but they manage to escape. Whilst escaping, they run into the road and are hit by a car. Should the injured party be compensated? They were only in that situation because they were committing a crime (escaping lawful custody), so should they simply have to bear the consequences of their actions? If they were to be compensated, would that make any punishment for the crime less effective? On the other hand, is it right for the criminal – who may have suffered life-changing injuries – to be denied compensation?

The facts of Miss Henderson’s case are particularly stark. She had long been battling the effects of schizophrenia and at the relevant time she was receiving outpatient psychiatric treatment from the Defendant. Her condition deteriorated. The Defendant took steps to address this but (as was recognised in the report of an independent review) these steps were inadequate.

Tragically, several hours before the Defendant could intervene, Miss Henderson caused her mother's death. She was at that time experiencing the effects of a psychotic episode, such that her self-control was significantly impaired. She was convicted of manslaughter by way of diminished responsibility, it being recognised that she had some (reduced) measure of personal responsibility for her actions.

Miss Henderson brought a claim against the Defendant, arguing that she should be compensated for what happened. The Defendant argued that because the claim arose from Miss Henderson’s illegal conduct, she could not be compensated. Not only was this a long-standing principle of the law (known variously as the defence of illegality, or ex turpi causa), but also it would undermine the consistency of the law as a whole to compensate Miss Henderson for something for which she was also being punished.

Supreme Court judgment

The Court returned a unanimous judgment. It found that the operation of the illegality defence depended on weighing in the balance a range of public policy considerations. A particularly important one was the public policy in favour of the law as a whole being consistent. Where a claimant has committed and is being punished for a serious criminal offence there is a heightened risk of inconsistency if that claimant were to be compensated for it. This, together with other factors, justified denying Miss Henderson compensation.

Lord Hamblen put the issue as follows:

“…To allow recovery would be to attribute responsibility for that criminal act not, as determined by the criminal law, to the criminal but to someone else, namely the tortious defendant. There is a contradiction between the law’s treatment of conduct as criminal and the acceptance that such conduct should give rise to a civil right of reimbursement. The criminal under the criminal law becomes the victim under tort law.”

What does this mean in practice?

If a claimant is injured during, or as a consequence of, their own serious criminal act that claimant will in general not be permitted to receive compensation from the person who injured them. This applies even if that claimant has relatively little personal responsibility for the criminal offence (for instance because of mental illness).