England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR. JUSTICE ELIAS

		Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 31st July 2001

LORD JUSTICE SCHIEMANN:

1. The issue in this case is whether the police owe to an arrested person a duty to take care that he is not injured in a foreseeable attempt by him to escape from police custody. Elias J concluded that the police owed no such duty. He found against the claimant on liability and the claimant appeals to this court.

2. The judge started his careful judgment as follows.

   "The claimant, Carlo Vellino, was something of a folk hero in his local community. He was frequently in trouble with the police and had a string of convictions for such offences as burglary and theft, drugs and motoring offences, occasional violence, and also for failing on numerous occasions to appear at court or surrender to bail. Given that record, he was inevitably very well known to the police. He lived at 159, Grange Avenue, which was a flat on the second floor, together with his girlfriend, Tracy Peel, and two children, the younger of whom was his own child. The claimant was frequently arrested at his flat but often, when the police came to arrest him, he would seek to evade arrest by jumping from the windows of his flat to the ground floor below. This was obviously a foolhardy and potentially highly dangerous activity. Generally it seems that he would descend by lowering himself from a balcony which adjoined the kitchen in the flat and, once by hanging from the balcony. He would drop to the ground below. Exceptionally it seems that he had even been known to jump from the second floor window without having the benefit of first being able to reduce the risk by hanging from the balcony. It is plain from the evidence that I have heard that his propensity for escaping by this method was very well known both to neighbours and friends within the community, and to the local police.

   On the evening of 17 September 1994 at about ten-thirty p.m. the claimant was arrested pursuant to a warrant issued by the Magistrates at Stockport on 12 September 1994 for failure to appear in court on that day. Almost immediately thereafter the claimant jumped from a second floor bedroom window of the flat, which was adjacent to the kitchen, and suffered an extremely tragic accident. Amongst other injuries, the claimant fractured his skull, suffered severe brain damage and tetraplegia. He is now totally dependent upon others for all his needs.

   He alleges that the defendant, who is the Chief Constable of Greater Manchester, is vicariously liable for negligent acts of certain police officers, namely Constable Illidge and Proudlove who, it is said, stood idly by as he was making his escape and let him jump from the flat to the ground below."

3. It seems that at about 9.30 p.m. Sgt Roberts was informed that the claimant was wanted on a warrant. He resolved to attempt to arrest him the following morning. At 10.20 p.m. a complaint was received by the police about a noisy party being held at the claimant's flat. Sgt Roberts went there with other officers. When Sgt Roberts saw the situation in the flat and saw the claimant he resolved to arrest him then and there. 2 officers took hold of the claimant who struggled and they arrested him. Someone else at the party then punched Sgt Roberts who let go of the claimant and tried to defend himself. However the other officer, PC Illidge, retained hold of the claimant. This was in a sitting room. Opposite the sitting room was a bedroom.

4. The evidence as to what happened thereafter was conflicting and the judge had little confidence in any of it. However he found that in due course the claimant leaped out of a window in a bedroom. Both Illidge and PC Proudlove were at that time in the bedroom.

5. The Judge said this:-

   "I am satisfied on the evidence that I have heard that the two officers were in the room with the claimant when he jumped from the window. Police Constable Proudlove in his evidence accepted that were he in the room, which he strongly denied, then he clearly would have been able to prevent the claimant from jumping from the window. This is plainly right. I can only infer, therefore, that they did permit the claimant to leap from the window for whatever reason, with the tragic consequences that ensued. Accordingly, in my judgment, if there is a duty of care on these policemen to prevent this kind of injury occurring to the claimant, then there is a breach of that duty by their failure to stop him from taking action which was so obviously and inherently dangerous to him."

6. The judge held that it was foreseeable that the claimant would suffer physical injury in the circumstances of the present case and that the police knew that the claimant had a tendency to jump from a window in a manner which inevitably risked serious injury.

7. The Judge said this in relation to the legal issues:

   "Analytically there are two different questions, was there a duty of care and, if so, is the defendant prevented from recovering damages by the application of the principle ex turpi causa non oritur actio. In fact, however, in my judgment the two questions inter-relate, but I will begin by considering them independently. There is no doubt that the police owe a duty of care to an arrested person. They must take reasonable care to ensure that he does not suffer physical injury as a consequence of their own acts, such as if they are driving carelessly or the acts of a third party, but the question here is whether they owed any duty to protect him from himself, in circumstances where the conduct of the claimant involves the commission of a criminal offence at common law, i.e. whether they must take reasonable care to ensure he does not injure himself, as a consequence of his own deliberate decision to escape from custody."

8. After considering Caparo v Dickman [1990] 2 A.C.605 at page 617 and 633, Stovin v Wise [1996] A.C.923 at 932 and Reeves v Police of the Metropolis [2000] 1 A.C.360, the judge concluded that the mere fact that the claimant suffered injury as a result of his own deliberate act did not automatically inhibit the imposition of a duty of care on the police. He concluded that the considerations which determine whether it is fair just and reasonable to impose a duty of care were essentially the same as those which determine whether the ex turpi causa defence is applicable.

9. He then considered Clunis v Camden and Islington Health Authority [1998] Q.B.978, Kirkham v Chief Constable of greater Manchester Police [1990] 2 QB 283, and Sacco v Chief Constable of South Wales Constabulary (unreported 15 May 1998 Beldam, Schiemann and Thorpe LJJ) and came to the conclusion that the existing authorities strongly support the view that escaping from custody was a sufficiently serious criminal offence to attract the operation of the ex turpi causa principle and that in those circumstances the police owed to an arrested person no duty to take care that he was not injured in a foreseeable attempt by him to escape from police custody. He accepted that the police were under a public law duty not negligently to permit a person to escape from custody but held that this was not a duty owed to the escaper.

10. The defence had however also pleaded contributory negligence on the part of the claimant. The judge held that if, contrary to his view, the police were under a duty owed to the claimant to take care that he did not hurt himself while trying to escape and if, contrary to his view, the principle of ex turpi causa could not avail the police, then the police were in breach of such a duty but he assessed the claimant as being two thirds to blame for his own misfortune.

11. A number of submissions which appeared in the skeleton argument for the claimant were not persisted in. The most important was a submission that the conduct of the officers went beyond negligent omission and amounted to active encouragement of the Claimant to take life threatening risks. The judge's findings do not justify the former assertion and there is no appeal against them. Nothing in this judgment is intended to contain any expression of view as to what rights a claimant might have in such circumstances. I record that the submissions based on an alleged breach of the claimant's rights under Article 2 of the European Convention on Human Rights were not pursued.

12. The essence of the claimant's case was that the officers were under a duty not negligently to let him escape. They were in clear breach of that duty. What followed was foreseeable. While the claimant accepted that he was two thirds to blame for what had happened, the judge had found that the officers were one third to blame. The claimant had suffered horrendous injuries and it was disproportionate to absolve the officers entirely in circumstances where their conduct had been in breach of their duty and where they had been negligent. In this context the following cases were drawn to our attention: Burrows v Rhodes [1899] 1 QB 816, at p.822, Lane v Holloway [1968] 1 QB 379 at pp 386 and 389, Shelley v Paddock [1980] 348 at 357, Saunders v Edwards [1987] 1 W.L.R. 1116 at 1127,1132H-1133A, Revill v Newbery [1996] QB 567 and Cross v Kirkby (unreported 18 February 2000 Beldam, Otton and Judge LJJ).

13. It is common ground that under our law two persons can stand aside and watch a third jump to his death: there is no legal duty to rescue. Not all legal systems adopt that as their approach but for better or for worse that is the established position in English law. It is common ground that, prior to uttering the words "I arrest you", the police owed him no duty to prevent him hurting himself while trying to escape.

14. How then is the position of the police in the present case to be distinguished from that of the ordinary citizen? The submission is that by arresting the claimant they notionally took him into their care and owed him a duty of care. The claimant relies on Reeves. There the claimant committed suicide whilst in a cell in a police station. It was accepted in the House of Lords that the police were in breach of their duty of care to the prisoner, a known suicide risk.

15. For my part I am content to assume, without so deciding, that when a police officer arrests a citizen the police officer puts himself in a relationship with that prisoner which can involve the police officer in having some duties for the breach of which the prisoner can sue. But in every case one has to identify the particular duty which it is that has allegedly been broken.

16. For instance if the officer detains the citizen then I would accept that he must take reasonable care that the citizen is not injured by lack of water. The officer might, if the roof showed signs of collapsing, be under a duty to take or let the citizen out of the flat where he was arrested The fact that the citizen would never have been detained had he not previously committed a crime would not prevent an action from succeeding. The reasoning behind that approach is that by the fact of detention the man is prevented from getting his own water or escaping danger. It is not the arrest which gives rise to the duty of care to the man. It is his detention. That is also why there is a duty to try and prevent known suicide risks in prison from committing suicide.

17. However, where a man breaks away from the arresting officer the position is manifestly different. By so doing the man commits a crime and he is no longer in the immediate power of the officer.

18. Mr Stockdale Q.C. who appeared for the claimant had a difficult case and had some difficulty in formulating his propositions as to the nature of the duty of care which was allegedly broken.

19. To suggest that the police owe a criminal the duty to prevent the criminal from escaping, and that the criminal who hurts himself while escaping can sue the police for the breach of that duty, seems to me self-evidently absurd. No policy reason has been suggested for the law adopting such a course. Mr Stockdale expressly disavowed this way of putting his case.

20. I understood him to submit that the police are under a duty owed to the claimant to prevent him from sustaining foreseeable injury whilst foreseeably attempting to escape from custody. This with respect seems to me equally untenable: it would require the police to hold him in the loosest of grasps so that there was no danger of him wrenching his shoulder as he struggled to break free. Again no policy reason has been suggested for declaring this to be the law.

21. Moreover, even this formulation does not cover the present case. The claimant injured himself after he had escaped from custody, if by that one means containment by the police in some physical sense rather some jurisprudential concept.

22. The difficulties which Mr Stockdale had in formulating the duty of care would only be intensified if his concepts were expressed in terms of the criminal's rights. In contexts such as this the police duties to the criminal give rise to correlative rights in the criminal. It would be difficult without making oneself sound foolish to formulate a right in the criminal against the police not to be exposed to danger whilst escaping which is perhaps why Mr Stockdale did not try.

23. Similarly in the context of prisoners there is in my judgment no right in a prisoner who hurts himself while leaping from a high boundary wall to be compensated on the basis that it is foreseeable that prisoners will try and escape and that if they leap off high walls they may well hurt themselves.

24. National Coal Board v England [1954]A.C. 403 shows that there can be circumstances where a claimant who is committing a criminal act nonetheless has a remedy against a defendant who is also committing a criminal act. In that case the House of Lords ruled that a claim by the injured claimant should succeed notwithstanding the fact that he and a fellow employee, acting in concert, had knowingly broken regulations under the Coal Mines Act 1911 designed to prevent workmen coupling up explosives. It proceeds from the principle that the purpose of Parliament in passing the relevant Act was to provide a remedy in circumstances such as those before the House. That case has been followed in a number of Factories Act cases. However in my judgment it is of no present assistance. No statutory provision to the effect that an escaping criminal who hurts himself in the very attempt of escape has a remedy against the police who negligently let him escape has been drawn to our attention.

25. The judge cited a passage from a judgment of mine in Sacco with which Thorpe LJ agreed which still represents my opinion.

    "There is, we are told, no case in which it has been established that a person in this situation is entitled to recover damages from the police. We are being asked to create a precedent to that effect. I see no reason why we should do so, but there is a number of reasons for my reluctance to give this plaintiff any relief. First, he seems to me to be guilty of his own misfortune. He did something which he knew or must be taken to have known was dangerous. In so far as his appreciation of the dangers involved was lessened by his intake of alcohol that was also his own fault.

    Second, he was engaged in a criminal act, namely attempting to escape from lawful custody. As a matter of legal policy, I see no reason to permit a man to recover damages against the police if he hurts himself as part of that illegal enterprise. The basis of such recovery must be either an allegation of a breach of duty owed to him not to let him escape, or of a duty owed to him to take care that he does not hurt himself if he tries to escape. I see no reason to create such a duty owed to him. It is common ground the policy of the law is not to permit one criminal to recover damages from a fellow criminal who fails to take care of him whilst they are both engaged in a criminal enterprise. The reason for that rule is not the law's tenderness towards the criminal defendant, but the law's unwillingness to afford a criminal plaintiff a remedy in such circumstances. I see no reason why that unwillingness should be any less because a defendant is a policeman and not engaged in any crime".

26. I am prepared to assume for the purposes of the present case that the police negligence in letting the claimant leap out of the window was such as to amount to a crime although, in fairness to the officers, I must make clear that I am making no finding to that effect and, so far as I know, no court has. That assumption however does not in my judgment have the effect of strengthening the claimant's case. If the police were not at the moment of arrest under a duty owed to the claimant to take care that he did not hurt himself whilst escaping then I fail to see how it can be said that the police had such a duty thrust on them at the moment he broke free.

27. Finally, I point out that, if we were to accept the submissions of Mr Stockdale, it would lead to the oddest results. Suppose that with the claimant there had been another man who thought that the police were after him for some crime. The police come in and arrest the claimant first. The other man rightly thinks he is about to be arrested. It is foreseeable, as it often must be, that those who think they are about to be arrested will make a run for it. Both the claimant and the other man leap out the window. The police just stand by and gaze instead of blocking the physical progress of either and without going on to arrest the other man. The claimant and the other man suffer injuries. Mr Stockdale accepts that the other man would have no remedy but asserts that the claimant has. That result would surely be indefensible.

28. At the conclusion of the argument I was of the view that the appeal must fail essentially for the reasons given by the judge. He pointed out that there is an overlap between the considerations which go to the question "is there a duty?" and those which attend the defence of ex turpi causa. I agree. He based his decision on absence of duty rather than on that defence. So would I.

29. Nevertheless, we reserved judgment because of the imminent publication of the Law Commission's Consultation Paper No 160 on The Illegality Defence in Tort. It draws attention to some cases to which no reference was made in argument and to various unsatisfactory features of some of the reasoning in relation to the ex turpi causa defence in some of the cases although it expressly states that it considers the outcome in the cases was correct - paragraph 4.87.

30. There is nothing in the Paper to suggest that in a case such as the present the law as it currently stands in this court entitles the claimant to succeed or that this court can or that the House of Lords or Parliament should, reform the law so as to enable someone in the present claimant's position to succeed.

31. Since preparing the above I have read Sedley L.J.'s judgment in draft. He considers that arresting officers owe a prisoner a duty not to afford both a temptation to escape and an opportunity of doing so when there is a known risk that the prisoner will do himself real harm. He considers that this duty was breached in this case.

32. Such a duty would be most attractively pronounced in a case where the arresting officer had provided the prisoner with a car known by the officer to be life-threateningly defective. I do not find it necessary to pronounce on such a case in the present case.

33. In the present case the judge made no finding that the officers had done anything positive to facilitate the escape by the claimant. Indeed that had not been alleged. All the officers were found to have done is that they stood idly by whilst the claimant made his escape through the window when they could, and should in pursuit of their duty as constables, have prevented him from making his escape.

34. I have also read Sir Murray Stuart-Smith's judgement in draft. I gratefully accept what he says concerning NCB v England.

35. In the present circumstances I do not find it unjust to deny the claimant a right to damages. As I observed in Sacco in a passage cited by the Law Commission at paragraph 2.45:

    "Whether one expresses the refusal of a remedy as being based on absence of causation, absence of duty in these circumstances, absence of a breach of a wider duty, or as being based upon the application of a wider principle that a plaintiff as a matter of policy is denied recovery on tort when his own wrongdoing is so much part of the claim that it can not be overlooked, or because the plaintiff had voluntarily assumed the risk of it, is perhaps a matter of jurisprudential predilection on the part of the judge."

36. Like Elias J. I would find that in the present case that the officers did not owe the claimant any duty to bar his progress through the window.

37. I would therefore dismiss this appeal.

    LORD JUSTICE SEDLEY:

38. It is worth recalling, first of all, how the argument from turpitude entered this case. The claimant, who had no memory of the event, alleged on the basis of what was able to be pieced together that the officers who had him in their custody, knowing of his practice of jumping or dropping from a height to avoid arrest, stood by and let him do it when it was plain that he might injure himself. It was only as a fallback that the defendant pleaded that if that were the case his action was barred because escape was a crime. The real defences were that he had wrested himself from the grip of the arresting constables and was the sole author of his own injury, and that he was owed no duty of care by them. But Elias J concluded that in principle a duty of care was owed to an arrested person, and that the self-exculpating account given by the two arresting officers was untrue. That left open the question what had happened in the bedroom. With nobody on whose word he could rely, the soundest inference the judge could draw was that the officers had permitted the claimant to jump. He had found earlier in his judgment that they knew of his propensity to do so. As Schiemann LJ points out, the finding falls short of active encouragement. The action was dismissed because the judge, rightly treating the existence of a duty of care in the circumstances he had established as coextensive with the turpitude doctrine, held that the latter barred the claim. His clear findings, however, make it possible to disaggregate the two things for the purposes of this appeal.

39. So the claimant was guilty of the crime of escape from lawful custody and the officers were guilty of the crime of permitting a prisoner to escape. When therefore the defendant fell back on the turpitude doctrine he was relying on a finding which implicated his own officers in a crime which - as Elias J went on contingently to find - was a partial cause of the claimant's injuries. In this court neither side has sought to disturb the apportionment of liability, had the judge found it to exist, as resting one third on the police and two thirds on the claimant.

40. At the conclusion of the argument it appeared to me that on these facts this appeal had to fail, essentially for the reasons given by Sir Murray Stuart-Smith in his judgment. (I will indicate later in this judgment why I would respectfully differ in any event from some of Schiemann LJ's reasoning.) Putting it baldly, it appeared to be the law that if the claimant was engaged in criminal or immoral conduct (turpis means literally ugly and figuratively shameful) his claim is barred even if the defendant was also engaged in such conduct. But our decision has coincided with the publication of the Law Commission's consultation paper no. 160 on the defence of illegality in tort; and even in the short interval between our reserving judgment and the publication of the working paper, my own research had led me to doubt whether we had had all the help we needed on the law. Now that we have the benefit of the Law Commission's research and, at the court's invitation, of counsel's further written submissions, I have reached the conclusion that this appeal ought to be allowed and that the claimant should have judgment for the one third of his damages to which the trial judge considered his own contributory conduct reduced his entitlement.

41. It is well settled that the court will refuse its aid to a claimant who, for example, sues on a contract tainted by fraud, at least where the defendant too was implicated in the fraud. Here it is readily apparent that if it were to adjudicate the court would be compounding the litigants' misconduct and permitting one of them to profit by his own wrongdoing. Where the dishonesty is unilateral, it is in general only the dishonest party who will be prevented from suing, and for a similar reason. Applied to tort actions, the principle has been recently applied in undiluted and undifferentiated form in the recent decisions of this court in Pitts v Hunt [1991] 1 QB 24 and Sacco v Chief Constable of South Wales (15 May 1998, Beldam, Schiemann and Thorpe LJJ). In the latter case Beldam LJ, who had also given the principal judgment in the former case, cited the rule in its early form as stated by Lord Mansfield CJ in Holman v Johnson (1775) 1Cowp. 341, 342:

    "No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act."

42. He added Lord Lyndhurst's holding in Colburn v Patmore (1834) 1 Cr. and R 73, 83, that a person who is declared by law to be guilty of a crime cannot be allowed to recover damages against another person who has participated in its commission. Sacco itself concerned a claimant who had jumped from a moving police van in which he was being conveyed in custody to the police station, and who accordingly lost his claim.

43. While these three propositions appear in the present state of the law of tort to be parts of a single doctrine by which the court declines jurisdiction once it has found the claim to be tainted with illegality, reflection shows that they are not necessarily so. Even where the only illegal act is that of the claimant, it is a question of legal policy whether he should fail because (as was the case in Sacco) he is the author of his own misfortune or because (as held by Lord Mansfield and reiterated in Sacco) his act was criminal, or whether he should necessarily fail at all. In most cases the doctrine of voluntary acceptance of risk will prevent a criminal from suing a fellow offender for, say, injuries negligently inflicted on him in the course of a robbery. But it cannot, as Andrew Edis QC for the defendant accepts, cover the case of a criminal who is wantonly shot, whether by armed police or by a fellow criminal, albeit while committing a crime.

44. But why not? Because, it is argued, the cause of action will be assault rather than negligence. But that is not a relevant distinction in the turpitude doctrine: it applies across the board. The reason has to be that the tort is either unrelated or is out of proportion to the criminality. I do not accept the submission of Mr Edis that this reasoning applies only to offences so minor as to be on the fringe of true criminality. We know that, at least where the tort is trespass to the person, it may apply to claimants who are committing quite serious crimes.

45. If this is right, the suicide cases such as Reeves v Commissioner of Metropolitan Police [2000] 1 AC 360 have a bearing despite the fact they are predicated on suicide no longer being a crime. (The criminality of suicide, at least as a secular offence, was no more than a legal fiction necessary to give a foundation to the crimes of attempting and abetting suicide.) They establish that the state owes a duty of care to those whom, against their will, it takes into its custody. Of course a ubiquitous duty of care does not imply a uniform standard of care. The standard is heavily affected in general by the circumstances and in particular by the custodians' knowledge or ignorance of the detainee's tendencies to self-harm.

46. Arrest is different from prolonged detention in degree, but not in kind. The sometimes unbearable pressure of isolation which detention in custody can create is not present in the moments following a lawful arrest, and the appropriate standard of care is accordingly quite different. But this is not to say that the only duty owed by arresting officers is to the public, nor that the standard of care is so low that the duty cannot in practice be breached. The present case, on the judge's uncontested contingent finding, is a good example. And suppose for a moment that the facts in Sacco had been that the van had set off with the rear doors open and the drunk claimant seated by them without a firm police hold on him. There is no obvious reason why there should not have been a breach of the duty of care owed to him whether he fell out or jumped out, since in his drunken state either will have been foreseeable. A large share of the blame would have rested on him, drunk or not, if he had jumped, but little or none if he had fallen out. Given the ability of the law for over half a century to apportion blame, I see little substantial justice in such circumstances in sacrificing a judicial apportionment of responsibility on the altar of a doctrinaire refusal to adjudicate. There is no residual or underlying injustice in apportionment: indeed where it is the claimant who has effectively put the defendant in breach of duty, his contributory fault may extinguish his claim entirely.

47. The approach I have described was taken by the majority of the Court of Appeal (Evans and Millett LJJ) in Revill v Newbery [1996] QB 567, in which an award of damages to a burglar who was shot by the occupier was upheld. Evans LJ considered that to deny the claimant compensation for an assault which went beyond self-defence was a different thing from denying him the fruits of his crime and was akin to outlawing him. Millett LJ took the view that in such a case there was simply no room for the turpitude doctrine. It was only Neill LJ who, albeit concurring in the result, based himself on the Occupier's Liability Act 1984; but he too started from a common law position which excluded the turpitude doctrine. In my respectful view the Law Commission is wrong in paragraphs 2.49-52 to allocate this decision to the head of statutory techniques for limiting the doctrine: it is a common law case, and one which seems to me difficult to reconcile with the reasoning of the majority (Dillon and Beldam LJJ; Balcombe LJ took a different and pragmatic line) in Pitts v Hunt [1991] 1 QB 24, the progenitor of Sacco.

48. Equally significantly, in the field of what one can call ordinary personal injury litigation the turpitude doctrine has been consciously eliminated by the courts on policy grounds. In road accident cases, for example, it is common enough to find that the injured claimant has contributed to the accident by speeding or driving with faulty brakes; but I know of no decision that such a claimant cannot sue another driver who has negligently caused his injuries. Nor can I see any justice in so deciding when the criminal law is there to deal with his criminality and the power to apportion damages will deal with his own contribution to his injuries.

49. It is only since the conclusion of oral argument that we have had submissions on the decision of the House of Lords in National Coal Board v England [1954] AC 403. There the employer sought to use the turpitude doctrine to answer the claim of a miner who had been injured in a premature detonation but who was himself (as the House went on to hold) one quarter to blame for his injury because in breach of regulations - a criminal act - he had coupled the cable to the detonator himself instead of leaving it to the shotfirer. Lord Porter, at 418, said:

    "My Lords, save in one case I cannot find that such a plea has ever been put forward in circumstances similar to these as excusing common law negligence. If it were sound it would be a defence to many actions in which it was not raised and might also be a defence to many claims for compensation. Conceivably it may be a defence in certain cases between the participes criminis, but the argument that it may be a defence between the two persons involved does not support a conclusion that a third party whose servant is one of two involved in disobeying a regulation and so participating in a criminal offence is thereby absolved from liability."

50. He cited with approval what had been said by Cohen LJ in Cakebread v Hopping Bros. Ltd [1947] KB 641, 654:

    "The maxim ex turpi causa is based on public policy, and it seems to me plain on the facts of this case that public policy, far from requiring that this action shall be dismissed, requires that it shall be entertained and decided on its merits."

51. "Like him," Lord Porter went on,

    "I cannot believe that a breach of a statutory obligation drafted to ensure the adoption of a careful method of working is a 'turpis causa' within the meaning of the rule. Indeed, the adage itself is generally applied to a question of contract and I am by no means prepared to concede where concession is not required that it applies also to the case of a tort. This view is, in my opinion, in conformity with the Law Reform (Contributory Negligence) Act 1945 which, after enacting that a claim shall not be defeated by reason of the fault of one person where the damage is caused partly by the fault of another, then goes on to define 'fault' as meaning 'negligence, breach of statutory duty or other act or omission…'."

52. He went on to point out that if turpitude was a complete answer in personal injury cases, the House would have had of its own motion to dismiss the action in the then recent case of Stapley v Gypsum Mines Ltd [1953] AC 663.

53. Lord Oaksey and Lord Tucker agreed, without elaboration, that the turpitude doctrine had no application to a case such as the one before the House. But Lord Reid, at 424, highlighting the words "his claim shall not be defeated", held that in tort actions the 1945 Act had shut out the turpitude doctrine in favour of apportionment. Pointing out that the 1945 Act covers all forms of fault, viz "negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort…", and that almost all breaches of statutory duty are crimes, he said:

    "Reading the appropriate part of this definition back into section 1 makes it provide that where a person suffers damage as the result partly of his own breach of statutory duty which would, apart from this Act, give rise to the defence of contributory negligence his claim shall not be defeated…. [W]hatever the former position may have been, it is now clear that the appellants cannot rely on this defence [viz turpitude]."

54. Lord Asquith (at 428) agreed with both Lord Reid and Lord Porter. The decision is thus arguably binding authority not simply for the proposition that the maxim does not apply in industrial accident cases (a proposition which, if I may say so, lacks a discernible rationale) but for Lord Reid's view that the 1945 Act has eliminated the turpitude defence in tort. Even if not, it certainly establishes that the criminality of an act which has contributed to the claimant's own loss does not without more bar the claim. If, alternatively, it establishes – as Schiemann LJ considers it does – that a claimant who is committing a criminal act nonetheless has a remedy against a defendant who is also committing a criminal act, then that is precisely the present case. In either event I do not consider that we are bound by the recent cases in which this court, apparently without having had its attention drawn to National Coal Board v England, has held that criminality, at least if it is serious, bars a tort claim without more. The legal reality has become what Bingham LJ described in Saunders v Edwards [1987] 1 WLR 1116:

    "Where issues of illegality are raised, the courts have … to steer a middle course between two unacceptable positions. On the one hand it is unacceptable that any court should aid or lend its authority to a party seeking to pursue or enforce an object or agreement which the law prohibits. On the other hand, it is unacceptable that the court should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss nor how disproportionate his loss to the unlawfulness of his conduct."

55. If so, what test should fill the space? The authorities are in my view not reconcilable: in their present state, as the Law Commission says (paragraph 1.5), "it is difficult to predict an outcome or to explain the outcome in terms of the apparent rationale of the illegality defence". It is clear that since the passage of the Law Reform (Contributory Negligence) Act 1945 the power to apportion liability between claimant and defendant in tort actions of all kinds has afforded a far more appropriate tool for doing justice than the blunt instrument of turpitude. In many cases, classically where both parties have been involved in a single criminal enterprise, the outcome would be the same. But the present case is unusual in that the offences committed by claimant and defendant, while causally connected, were not joint. The claimant's offence was able to be committed only because the constables' had been committed first. This, it seems to me, while not in terms what the House of Lords in NCB v England had in mind, is also not what Lord Mansfield and Lord Lyndhurst had in mind. Nor is it the same situation as in Sacco, where the sole causative act was the claimant's own. Albeit escape cases are a long way from the suicide cases, the logic of the law cannot properly differ. Of course one can postulate untenable cases, as Schiemann LJ does in paragraphs 19 and 22 to 23 of his judgment; but parody is not the same as paradigm. In respectful disagreement with him I consider that arresting officers owe a prisoner a duty not to afford both a temptation to escape and an opportunity of doing so when there is a known risk that the prisoner will do himself real harm, even if much of the blame for hurting himself will ultimately come to rest on the prisoner himself. That duty was breached in this case, and I do not believe that a legal system which shuts its eyes to such things is doing justice, especially - but not only - where the officers' neglect is also a crime. To deny the claimant redress in such a situation because of his own offending is both to make him an outlaw and to reward the misconduct of his captors. To apportion responsibility, as Elias J would have done had he not considered his path to be blocked by doctrine, is in my view to do justice.

56. While I respectfully accept that the exegesis of the present state of the law set out in the concluding passage of Sir Murray Stuart-Smith's judgment is the nearest one can come to a consistent account of it, for the reasons I have given I do not think that the authorities are consistent or, therefore, that it is an analysis that we are bound to adopt. The approach suggested in the preceding paragraph is not only open to us on existing authority but corresponds with the two most helpful pointers noted in the Law Commission's paper (which, again in respectful disagreement with Schiemann LJ, seems to me to point to a real need for clarification and reform of the law in this field). One is the search for a consistent and defensible principle to be found in Hall v Hebert [1993] 2 SCR 159 where McLachlin J, writing for the majority of the Canadian Supreme Court, spoke (at 179-80) of:

    "… a need in the law of tort for a principle which permits judges to deny recovery to a plaintiff on the ground that to do so would undermine the integrity of the justice system. The power is a limited one. Its use is justified where allowing the plaintiff's claim would introduce inconsistency into the fabric of the law, either by permitting the plaintiff to profit from an illegal or wrongful act, or to evade a penalty prescribed by criminal law. Its use is not justified where the plaintiff's claim is merely for compensation for personal injuries sustained as a consequence of the negligence of the defendant."

57. (It will be observed that this corresponds with the distinction drawn by Evans LJ in Revill v Newbery, above.) The other pointer is what Bingham LJ went on to say in the passage I quoted earlier from Saunders v Edwards:

    "…on the whole the courts have tended to adopt a pragmatic approach to these problems, seeking where possible to see that genuine wrongs are righted so long as the court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn. Where the plaintiff's action in truth arises directly ex turpi causa, he is likely to fail… Where the plaintiff has suffered a genuine wrong, to which the allegedly unlawful conduct is incidental, he is likely to succeed…"

58. These two approaches run comfortably in parallel. Adopting them, as I consider we are free to do, they do not in my judgment point to the barring of the court's door to this claimant, who is seeking not to profit by his own wrong but to be compensated to such extent as is appropriate for the defendant's wrong. They point to a fair apportionment of blame between his captors, who illegally gave him the opportunity to jump from a dangerous height when it was predictable that he would do so, and the claimant himself, who recklessly and illegally took advantage of the opportunity and was in the judge's view twice as much to blame for his dreadful injuries as his captors.

59. I mentioned at the start of this judgment the potential disaggregation of the duty of care from the turpitude doctrine. If one is driven, as Elias J considered he was, to dismiss the claim, it does not matter whether it is because there is no duty of care or no cause of action or no jurisdiction. This corresponds, I think, with Schiemann LJ's reasoning both in Sacco and in the present case. But once turpitude is understood, as I believe the modern common law understands it, not as an indiscriminate barrier to unworthy claimants but as a large-mesh filter for criminality in claims, the difference becomes critical. Once through it, as I consider this claim is entitled to go, the next and discrete questions are whether there was a duty of care; if there was, what standard of care it imported in the situation facing the court; whether in the light of the standard the duty was broken; and whether, if it was, the claimant is nevertheless partly or wholly responsible for his own loss. The judge's and my own answers to these, set out above, entitle the claimant to an appropriate fraction of his damages.

60. The House of Lords in Tinsley v Milligan [1996] 1 AC 340 rejected the "public conscience" test articulated by Hutchison J in Thackwell v Barclays Bank Ltd [1986] 1 All ER 676 as a filter on claims with a criminal dimension. We are not now required, in other words, to look over our shoulders at what we fear the press will make of our decisions in this already difficult field. The public conscience, an elusive thing, as often as not turns out to be an echo-chamber inhabited by journalists and public moralists. To allow judicial policy to be dictated by it would be as inappropriate as to let judges dictate editorial policy. It is not difficult, for example, to visualise how some sections of the media would choose to report a decision along the lines which I have proposed. The Law Commission's scholarly and constructive working paper has so far been reported under the headline "Law paves way for thugs to sue victims" (Daily Express, 30 June 2001) and has earned the Law Commission the soubriquet "Enemy of the people" (Sunday Times, 1 July 2001). In a free society such comment is perfectly permissible and its influence on public opinion no doubt considerably greater than that of a judgment or a Law Commission paper. The public may one day have to decide through the democratic process whether it wants the law to legitimise the use of firearms against intruders in a society which at present has a gun homicide rate 150 times lower than the United States. But to expect a judiciary to modify its decisions as to what the law and justice require because of what it fears the media would make of them is to ask for the surrender of judicial independence. The "fair, just and reasonable" test is now the established judicial control on ground-breaking in tort. If the law were ever to revert to an exogenous test, it should be one which gauges the response of people who actually know what the court's reasoning is; and no court which has confidence in its own reasoning should be worried about that.

61. For the reasons I have given I would allow this appeal, remit the case for the assessment of damages and direct the entry of judgment for the claimant for one third of the sum assessed

    SIR MURRAY STUART-SMITH:

62. I agree that this appeal should be dismissed for the reasons given by Schiemann LJ. I will also state my own reasons since we are not all in agreement. It is common ground that if the facts are such that the maxim ex turpi causa non oritur actio is applicable, it does not matter whether the correct legal analysis is that the Defendants owed no duty of care, because the third limb of the test in Caparo Industries PLC v Dickman [1990] 2 AC 605, namely that it is just fair and reasonable to impose a duty of care, is not satisfied, or that the maxim affords a free standing reason for holding that the cause of action does not arise or cannot be pursued. The question in this appeal therefore is whether the Judge was correct in holding that the maxim did apply.

63. There are many statements of the principle to be found in the reports. In Pitts v Hunt [1991] 1 QB 24 at p 41 Beldam LJ said, after reviewing the authorities:

    "I have quoted at some length the considerations which have led courts to refuse on grounds of public policy to permit a person to enforce a claim to indemnity, for they illustrate to my mind how the courts have adjusted the application of the maxim to changing social conditions and in particular to the policy underlying the Road Traffic Acts. They establish, I believe, that it is the conduct of the person seeking to base his claim upon an unlawful act which is determinative of the application of the maxim."

64. In Sacco v Chief Constable of South Wales CA transcript 15 May 1998, a case where the claimant sustained injury when he escaped from police custody by jumping from the police van, Beldam LJ said at p 10:

    "Finally, I would reject Mr Rees' submission that the decision of this Court in Reeves renders the judge's conclusion on public policy untenable. The actions of the deceased in that case were not unlawful, nor were they criminal. In Scott v Brown, Doering, McNab & Co [1892] 2 QB 724 at 728, Lindley LJ said of the maxim ex turpi causa non oritur actio:

    "This old and well-known legal maxim is founded in good sense, and expresses a clear and well-recognised legal principle, which is not confined to indictable offences. No Court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the Court, and if the person invoking the aid of the Court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality the Court ought not to assist him."

65. The rule was stated by Lord Mansfield CJ in Holman v Johnson [1775] 1 Cowp 341 at 342 to be a rule of public policy that:

    "No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act."

66. There are many other statements to the same effect. I point for example to the observations of Lord Lyndhurst in Colburn v Patmore [1834] 1 CRM & R 73 at 83 where he said that a person who is declared by law to be guilty of a crime cannot be allowed to recover damages against another who has participated in its commission.

    "I can see no reason, for my part, why a defendant, who is not participating in a crime, should be in a less favourable position."

67. And in Sacco v Chief Constable of South Wales Constabulary (unreported 15^th May 1998) at p 11 Schiemann LJ giving the second of three grounds upon which the claim failed:-

    "Second, he was engaged in a criminal act, namely attempting to escape from lawful custody. As a matter of legal policy, I see no reason to permit a man to recover damages against the police if he hurts himself as part of that illegal enterprise. The basis of such recovery must be either an allegation of a breach of a duty owed to him not to let him escape, or of a duty owed to him to take care that he does not hurt himself if he tries to escape. I see no reason to create such duties owed to him. It is common ground that the policy of the law is not to permit one criminal to recover damages from a fellow criminal who fails to take care of him whilst they are both engaged on a criminal enterprise. The reason for that rule is not the law's tenderness towards the criminal defendant, but the law's unwillingness to afford a criminal plaintiff a remedy in such circumstances. I see no reason why that unwillingness should be any the less because the defendant is a policeman and not engaged in any crime."

68. In Tinsley v Milligan [1994] AC 340 Lord Goff of Chieveley at p 361, in the part of his speech agreed by Lord Browne-Wilkinson at p 369, reaffirmed the principle and decisively rejected the public conscience test which had originated in the judgment of Hutchinson J in Thackwell v Barclays Bank Plc [1986] 1 AER 676 and approved by Nichols LJ in the Court of Appeal in Tinsley.

69. In Cross v Kirby (unreported CA 18 Feb 2000) Judge LJ said at paragraph 103:

    "In my judgment, where the claimant is behaving unlawfully, or criminally, on the occasion when his cause of action in tort arises, his claim is not liable to be defeated ex turpi causa unless it is also established that the facts which give rise to it are inextricably linked with his criminal conduct. I have deliberately expressed myself in language which goes well beyond questions of causation in the general sense."

70. Since the conclusion of the oral argument, the Court has invited further submission on the case of National Coal Board v England [1954] AC 403. There are many industrial injury cases which are based on breach of statutory duty on the part of the Defendant and where the Defendant relies on breach of statutory duty by the Claimant as amounting to contributory negligence. A breach of statutory duty can only give rise to liability in tort, if the statutory duty is imposed for the benefit of a class of persons, the Claimant falls within that class and it is apparent that the criminal sanction is not intended to be the sole remedy. Most, if not all, safety and health legislation falls within that compass, and gives rise to liability in tort for its breach and can be relied upon as 'fault' within the definition contained in Section 4 of the Law Reform (Contributory Negligence) Act 1945. That section does not refer to crime, but to 'breach of statutory duty …… which gives rise to liability in tort'. The crime of escape does not give rise to any liability in tort. Nor is it a statutory offence. Neither is it an 'act which gives rise to liability in tort'.

71. In my judgment the 1945 Act has no bearing on the present case. There is nothing inconsistent with NCB v England in the Judge's decision. In that case their Lordships may have doubted whether the maxim ex turpi causa had any application in tort. Many decisions of this Court since hold that it does.

72. From these authorities I derive the following propositions:

    1. The operation of the principle arises where the claimant's claim is founded upon his own criminal or immoral act. The facts which give rise to the claim must be inextricably linked with the criminal activity. It is not sufficient if the criminal activity merely gives occasion for tortious conduct of the Defendant.

    2. The principle is one of public policy; it is not for the benefit of the Defendant. Since if the principle applies, the cause of action does not arise, the Defendant's conduct is irrelevant. There is no question of proportionality between the conduct of the Claimant and Defendant.

    3. In the case of criminal conduct this has to be sufficiently serious to merit the application of the principle. Generally speaking a crime punishable with imprisonment could be expected to qualify. If the offence is criminal, but relatively trivial, it is in any event difficult to see how it could be integral to the claim.

    4. The Law Reform (Contributory Negligence) Act 1945 is not applicable where the Claimant's action amounts to a common law crime which does not give rise to liability in tort.

73. Applying these principles it is common ground that the Claimant has to rely on his criminal conduct in escaping lawful custody to found his claim. It is integral to the claim. The crime of escape is a serious one; it is a common law offence for which the penalty is at large. It is almost invariably punished by a sentence of imprisonment, although the length of the sentence is usually measured in months rather than years. In my judgment it is plainly a sufficiently serious offence for the purpose of the application of the maxim. I would have reached this conclusion in any event; but it accords with the judgments of the Court of Appeal in Sacco.
    ORDER: Appeal dismissed with costs; Section II determinations by costs judge; funded client assessment. Permission to appeal to the House of Lords refused. (Order does not form part of approved Judgment)