THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 45049/98
by Christopher CLUNIS
against the United Kingdom
The European Court of Human Rights, sitting on 11 September 2001 as a Chamber composed of
MrJ.-P. Costa, President,
MrW. Fuhrmann,
MrL. Loucaides,
SirNicolas Bratza,
MrsH.S. Greve,
MrK. Traja,
MrM. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registar
Having regard to the above application introduced on 4 December 1998 and registered on 17 December 1998,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Christopher Clunis, is a British national, born in 1963 and living in London. He is represented before the Court by Mr Martin Taube, a lawyer practising in London. The respondent Government are represented by their Agent, Ms S. McCrory of the Foreign and Commonwealth Office, London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicants’ case history
The applicant has a long history of serious psychiatric illness. According to the applicant, he was treated as an in-patient at the Bellevue Hospital in Jamaica in 1986 where he was diagnosed as a paranoid schizophrenic. There would appear to be no records of the periods of the applicant’s hospitalisation and the diagnosis.
The applicant returned to England sometime in 1987. Between 1987 and 1992 he received psychiatric treatment at a large number of hospitals in the London area. He was detained and treated on a number of occasions under the provisions of the Mental Health Act 1983 (“the 1983 Act”). The applicant was first diagnosed in England as a paranoid schizophrenic on 12 July 1988 during his detention in Brixton Prison.
On the night of 4-5 May 1992 the applicant attacked a fellow resident at the Lancelot Andrewes House Resettlement Unit in London. He was remanded to Belmarsh Prison and then transferred to a secure unit at Kneesworth House Hospital under sections 48 and 49 of the 1983 Act. Following assessment and treatment at Kneesworth House, he was transferred under section 3 of the 1983 Act to Guy’s Hospital (“Guy’s”) in August 1992.
On 24 September 1992 the order under section 3 of the 1983 Act detaining the applicant was rescinded and he was discharged from Guy’s. Dr Gupta, a psychiatrist at Guy’s, sought to make arrangements for the applicant to be seen as an out-patient by the general as well as the forensic psychiatric services at Friern Hospital (“Friern”), a hospital now closed but then under the management and control of the Camden and Islington Health Authority (“Camden”).
Dr Gupta telephoned Dr Sergeant, an Associate Specialist at Friern, and fixed an out-patient appointment. Dr Gupta then telephoned Dr de Taranto, a forensic psychiatrist at Friern, and told her that an appointment had been made for an out-patient appointment for the applicant with Dr Sergeant and that he also wished to make a referral to the forensic psychiatric services. Following discussion with a senior colleague, Dr de Taranto the next day telephoned Dr Gupta and said that the applicant should attend Dr Sergeant’s out-patient appointment and that he would be referred to the forensic team if necessary. At the time of making the appointment Dr Sergeant did not know that she had been or was to be appointed as the applicant’s “key worker”.
An appointment was made for the applicant to be seen by Dr Sergeant on 9 October 1992. He did not attend the appointment on 9 October. He was sent another appointment for 6 November, which was later changed to 13 November 1992. The applicant failed to attend the appointment on 13 November.
Sometime at the beginning of October 1992, Friern received two section 117 forms which stated that the applicant was supposed to have after-care arrangements made under section 117 of the 1983 Act and that Dr Sergeant was to be the “key worker”. No such arrangement had been agreed with Dr Sergeant or with Friern. The out-patient appointment for 9 October had not been made by Friern in pursuance of any responsibilities under section 117 of the 1983 Act.
After the applicant failed to attend his out-patient appointment on 13 November 1992, Dr Sergeant telephoned the applicant’s General Practitioner, Dr Patel, who told her that the applicant had been removed from his list of patients because of his aggressive and threatening behaviour. She then telephoned Guy’s and spoke to Dr Gupta who advised her that the police should accompany her on any mental health assessment visit and added that the applicant had not been in touch with Guy’s since his discharge. After that conversation Dr Sergeant contacted Haringey Social Services and requested that a mental health assessment visit be arranged on a planned non-urgent basis and that this should be attended by the police. It was arranged that this should take place at the applicant’s address on 30 November 1992 at 3 p.m. It appears that the applicant was not informed of this arrangement.
On 27 November 1992 Haringey Social Services informed Dr Sergeant that the applicant had been off medication for some weeks and that his behaviour was threatening. She was reminded that the applicant had stabbed someone in the past. The start of the mental health assessment visit on 30 November 1992 was slightly delayed. The applicant left the premises without being recognised by anyone in the assessment team and without being approached to ascertain if he was Christopher Clunis. No arrangements were made for a further assessment and Dr Sergeant said that she would try to see the applicant informally in order to gain his goodwill.
On 1 December 1992 the applicant went to the offices of Haringey Social Services and a member of their staff contacted Dr Sergeant who arranged an appointment to see the applicant on 10 December 1992. She asked that a duty social worker attend the meeting but said that there was no need for an approved social worker (as defined in the 1983 Act) to attend. The applicant did not attend his out-patient appointment on 10 December. Although the applicant states that Dr Sergeant took no positive step in the face of this failure to attend, the Government observe, with reference to the findings contained in an official report (“the Ritchie Report”) drawn up following a public inquiry into the handling of the applicant’s treatment (“the Clunis Inquiry”), that the social worker who had attended for the appointment with the applicant “discussed the way forward with Dr Sergeant” after the applicant failed to appear. Dr Sergeant appears to have said that the alternatives were another Mental Health Assessment visit or an attempt to persuade the applicant to visit the social services department again and then to give him another outpatient appointment. The applicant was eventually invited by letter to attend an appointment on 24 December 1992. When told of the date, Dr Sergeant apparently expressed her dissatisfaction that it was so far in advance.
According to the Ritchie Report, it would seem that attempts were made to contact the applicant between 10 and 16 December 1992, but without success. On 15 December 1992 Dr Sergeant spoke to an official in the Housing Emergency Group and expressed concern that the applicant had been discharged so quickly from Guy’s in view of his violent past. The official’s colleague made enquiries as to the availability of space in a residential hostel for the applicant. The residential hostel indicated that it would get in touch with the applicant with a view to assessing his suitability for a place and then decide whether to offer him one.
On 17 December 1992 Haringey Social Services telephoned Dr Sergeant but was unable to speak to her. When she returned their call she was told that there had been a message from the local police that the applicant was “waving screwdrivers and knives and talking about devils”. Dr Sergeant advised that the Mental Health Assessment Team should assess the applicant as soon as possible but that she first wished to check which social services authority was responsible for the applicant.
Later that day at about 1.30 p.m. Dr Sergeant questioned Ursula Robins, the duty approved social worker, as to which social services authority was responsible for the applicant and whether Friern or Chase Farm Hospital should be dealing with the applicant. By about 4.30 p.m. she had persuaded Chase Farm Hospital to accept responsibility for the applicant in place of Friern. However, following further discussions with Ms Robins, Dr Sergeant reversed that position and agreed that Friern would continue with the applicant’s care. Ms Robins visited the applicant’s flat but there was no reply. At about 7 p.m. she returned with a letter asking him to call her the next day.
At about 3.45 p.m. on 17 December 1992 the applicant killed Jonathan Zito, who was a complete stranger to him, in an unprovoked attack at Finsbury Park Tube Station in North London. The applicant seems to have believed without any justification whatsoever that Mr Zito was about to attack him.
On 18 December 1992 Ms Robins waited at the applicant’s address for the applicant to return. She was informed later that day that he had been arrested for murder.
On 28 June 1993 the applicant pleaded guilty to Jonathan Zito’s manslaughter on the basis of diminished responsibility. The plea was accepted by the Crown. The trial judge, Mr Justice Blofeld, ordered that the applicant be detained pursuant to sections 37 (hospital order) and 41 (restriction order whereby discharge from hospital requires the consent of the Home Secretary) of the 1983 Act. The restriction order was expressed to be without limit of time.
2. The Clunis Inquiry and the Ritchie Report
On 27 July 1993 the North East and South East Thames Regional Health Authorities instituted an inquiry into the treatment and care of the applicant which was chaired by Miss Jean Ritchie QC. The Inquiry received evidence from one hundred and forty three witnesses over a five-month period and extended its investigation back to 1986. The Inquiry reported in February 1994 and in its report concluded, inter alia:
(a) There were significant deficiencies in the care given to the applicant. “As will have been clear from our comments throughout the narrative we are of the view on the evidence we have heard, that Christopher Clunis’ care and treatment was a catalogue of failure and missed opportunity ... In our view the problem was cumulative; it was one failure or missed opportunity on top of another” (pp. 105-7).
(b) The Mental Health Assessment Team should have been arranged more quickly, and Dr Sergeant should have ensured that an earlier date was fixed (p. 80).
(c) The gap between the first request for a Mental Health Assessment on 13 November 1992 and the visit that was arranged for 30 November 1992 was far too long. There was plenty of time to prepare preliminary information about Christopher Clunis so that alternative responses following his assessment could be planned (p. 86).
(d) “Indecision and procrastination is the hall mark of the failure of Haringey Social Services to have any responsible person making decisions and monitoring decisions that had been made.” Equally Dr Sergeant left too much to the Social Services department when she should have been taking an active role. She did not involve her consultant, Dr Taylor, in managing this difficult case. As the person named as key worker under the section 117 Mental Health Act 1983 aftercare plan, Dr Sergeant knew that if she did not do so, no one else would (p. 88).
The Inquiry made a total of 14 recommendations designed to ensure that the duties under section 117 of the 1983 Act were properly fulfilled (Section V of the Report). Further recommendations were made in respect of matters such as key workers, monitoring, the assessment of dangerous and mental illness and offending.
3. The applicant’s civil action
On 14 December 1995 the applicant issued a writ claiming damages for injury, loss and damage sustained by him as a consequence of Camden’s negligence. On 12 July 1996 Camden issued a summons in the High Court seeking to strike out the applicant’s Statement of Claim on the sole ground that it disclosed no reasonable cause of action in that the principle of ex turpi causa non oritur actio or an analogous principle of public policy prevented the applicant from recovering damages. Although Camden expressly conceded for the purposes of the summons that it owed the applicant a common law duty of care at the material time and that the Statement of Claim disclosed breaches of that duty, it argued that to establish the injury and loss asserted the applicant had to rely on his own criminal act and public policy prevented this.
On 12 December 1996 Mr Richard Mawbrey QC, sitting as a deputy High Court judge, dismissed Camden’s summons on the basis that:
(a) the absolute rule of ex turpi causa non oritur actio set out in Tinsley v. Milligan [1994] I AC 340 had no application in tort cases but that there was a rule of public policy analogous to the ex turpi causa rule in contract law that a court can exclude a tortuous claim by a person who, in order to assert it, has to rely on a crime committed by him;
(b) in applying the public policy rule the court had to make a judgment on a pragmatic basis as to whether it would be offensive to the public conscience for the claimant to base his claim on his own criminal activity or more offensive for him to be deprived of what would otherwise be his normal remedy;
(c) where a claimant brings a negligence claim based on an allegation that the defendant either caused or failed properly to treat severe mental disorder, he can in principle recover as a head of claim damages for personal injury (including mental deterioration) resulting from self-inflicted harm. If this harm itself results from harming others in a criminal manner, public policy does not preclude him from recovering damages for the harm to him even though he is guilty of crime;
(d) it would not offend the public conscience for the applicant’s claim to proceed.
On 9 January 1997 Camden appealed on the grounds that the judge was wrong in law in holding that the applicant was not precluded from recovering damages consequent on his criminal act, and that the judge ought to have held that the applicant was precluded from recovering such damages on grounds of public policy. When the appeal was heard, the applicant and Camden were invited at the commencement of the hearing to address the Court on the question of whether a duty of care was owed by Camden to the applicant. On the second day of the hearing Camden advanced an argument wholly inconsistent with its concession at first instance that whilst a duty of care was owed to the applicant, such a duty could only be owed pursuant to section 117 of the Act and that breach of that duty was not actionable in private law.
In delivering the judgment of the Court of Appeal, Lord Justice Beldam stated with respect to the applicant’s argument that Camden owed him a duty of care at common law 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 not confined to particular causes of action. Whether a claim is founded in contract or tort, public policy only required the court to deny its assistance to a plaintiff seeking to enforce a cause of action if he was implicated in the illegality and in putting forward his case he seeks to rely upon the illegal acts. Lord Justice Beldam did not accept the applicant’s contention that the test to be applied should be aimed at ascertaining whether the result in a particular case would be acceptable to “the public conscience”. He cited with approval the decision of the House of Lords in Tinsley v. Milligan ([1994]) 1 A.C. 340) as authority for the proposition that, in so far as the maxim ex turpi causa non oritur actio is directed at deterrence, the force of the deterrent effect was in the existence of the known rule and its stern application. He continued:
“In the present case we consider that [Camden] has made out its plea that the [applicant’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 [applicant’s] own criminal act and we would therefore allow the appeal on that ground.”
Lord Justice Beldam subsequently considered whether Camden owed a duty to the applicant under section 117 of the 1983 Act and, in the affirmative, whether a breach of that duty could give rise to a claim for damages. With reference to the wording of that provision and to the terms of section 124 of the same Act, Lord Justice Beldam found that the primary method of enforcement of the after-care obligations under section 117 was by complaint to the Secretary of State. He continued:
“The character of the duties created seem to us closely analogous to those described by Lord Browne-Wilkinson in X (Minors) v. Bedfordshire County Council ([1995] 2 A.C. 633, 747) as requiring:
‘exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties.’
In our view the wording of the section is not apposite to create a private law cause of action for failure to carry out the duties under the statute.”
Lord Justice Beldam then addressed the applicant’s argument that the relationship of doctor and patient which existed between the district health authority and the applicant while he was in hospital continued after discharge, so that a common law duty of care was owed by the defendant to continue the applicant’s treatment. In the opinion of Lord Justice Beldam, it was difficult to conclude that it was in the circumstances just and reasonable to superimpose such a common law duty in relation to the performance of its statutory duties to provide after-care. He considered, bearing in mind the ambit of the obligations under section 117 of the 1983 Act and their repercussions on a wide spectrum of health and social services, including voluntary services, that Parliament could not have intended so wide-spread a liability as that canvassed by the applicant. Lord Justice Beldam found that Camden’s actions through Dr Sergeant were essentially in the sphere of administrative activities in pursuance of a scheme of social welfare in the community. He concluded:
“... the statutory framework must be a major consideration in deciding whether it is fair and reasonable for the local health authority to be held responsible for errors and omissions of the kind alleged. The duties of care are, it seems to us, different in nature from those owed by a doctor to a patient whom he is treating and for whose lack of care in the course of treatment the local health authority may be liable. .... We have no doubt that it would not be right to hold Dr Sergeant or [Camden] liable to the [applicant] for failure to arrange the [applicant’s] assessment for the purposes of section 117 more speedily than she did. ... For these reasons we do not think that the [applicant] can establish a cause of action from a failure by [Camden] or Dr Sergeant to carry out their functions under section 117 of the Mental Health Act 1983. Nor do we think that it would be fair or reasonable to hold [Camden] responsible for the consequences of the [applicant’s] criminal act.”
The applicant was refused leave to appeal to the House of Lords by the Court of Appeal.
The applicant’s petition for leave to appeal to the House of Lords was refused by the Judicial Committee on 8 June 1998.
B. Relevant domestic law
1. The Mental Health Act 1983
A statutory duty on public authorities to provide for the care of the mentally ill after discharge from hospital was first provided for in section 28 of the National Health Service Act 1946. The Mental Health Act 1959 expanded the after-care function to include the provision of residential accommodation and the appointment of mental welfare officers. Following further enactments, the Mental Health Care Act 1983 was eventually passed. Section 3 of the 1983 Act provides:
“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 illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
(b) in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; 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.”
Section 117 of the 1983 Act provides:
“1. This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a transfer direction made under section 47 or 48 above, and then cease to be detained and leave hospital.
2. It shall be the duty of the district health authority and of the local social services authority to provide, in co-operation with relevant voluntary agencies after-care services for any person to whom this section applies until such time as the district health authority and the local social services authority are satisfied that the person concerned is no longer in need of such services.”
The section places a duty to consider the after-care needs of each individual to whom the section applies and is therefore quite distinct from other statutory duties to provide for the after-care of the generality of mentally disordered persons. The Mental Health Act 1983 – Code of Practice, issued by the Secretary of State under the provisions of section 118 of the 1983 Act, explains that the purpose of after-care is “to enable a patient to return to his home or accommodation other than a hospital or nursing home, and to minimise the chances of him needing any further in-patient hospital care.”
The Code of Practice requires that a key worker be appointed from either the district health authority or social services authorities to be responsible for the discharged patient. The key worker is responsible for monitoring the implementation of the patient’s care plan and liasing and co-ordinating where necessary between the individuals and agencies involved in the care plan. After-care services are not defined in the Act but could include social work support, the provision of domicilary services, the use of residential or day centre facilities. An essential component is continuing psychiatric treatment and care if the declared objective of minimising the chances of the patient returning to hospital is to be achieved.
The Government in the instant case have highlighted the various measures that have been adopted to ensure improvements in the care of the mentally ill following the recommendations made in the Ritchie Report.
There are several means by which individuals or their representatives can have complaints regarding their discharge by a local authority of its duties under section 117 of the 1983 Act investigated: a complaint to the Health Service Commissioner, a complaint to the Mental Health Act Commission or a complaint to the Commissioner for Local Administration.
2. Duty of care
According to the applicant, his relationship with Camden was one governed by both common law principles and by statute. A common law duty of care was owed to him inasmuch as a doctor-patient relationship existed between Dr Sergeant (for whose acts or omissions Camden are vicariously liable) and the applicant. Once Dr Sergeant had accepted that she and/or Friern would provide him with out-patient treatment, a duty of care arose (see Jones v. Manchester Corporation [1952] 2 All E.R. 121 per Denning LJ).
The applicant states that a duty of care was also owed to him pursuant to the duties owed under section 117 of the 1983 Act. The Court of Appeal in his case characterised these duties as being closely analogous to those described by Lord Browne-Wilkinson in X (Minors) v. Bedfordshire CC ([1995] 2 AC 633 at 747) as requiring “exceptionally clear statutory language” to indicate a parliamentary intention that the breach of such duties would give rise to an actionable claim for damages. It determined that the wording of section 117 of the 1983 Act was not apposite to create a private law cause of action for failure to carry out the duties under the Act. It also rejected the argument that a common law duty of care should be superimposed in relation to the performance of its statutory duties to provide after-care, on the basis that the duty of providing after-care services was different in nature from that owed by a doctor to a patient whom he is treating. The court held that it would not be just and reasonable to superimpose a common law duty of care on Camden in relation to the performance of its statutory duties to provide after-care.
3. Ex turpi causa / public policy
Prior to the Court of Appeal’s determination, the rule of public policy that the court will not lend its aid to a litigant who relies on his own criminal or immoral act was confined to particular causes of action. It has its origins in contractual claims. The principle was modified in relation to tortuous claims by the application of “the public conscience test”. This was applied in a line of cases in the Court of Appeal between 1986 and 1994 where it was held to be right “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.” (Saunders v. Edwards [1987] 1 WLR 1116 per Bingham LJ).
In Reeves v. Commissioner of Police for the Metropolis ([1998] 2 WLR 401), the Court of Appeal applied the “public conscience test” to determine whether ex turpi causa, or an analogous rule of public policy, would prevent the estate of a detainee who had committed suicide whilst in custody from recovering damages. In doing so the court was aware that the test had been disapproved by the House of Lords in Tinsley v. Milligan which was, however, a contractual claim, being the locus classicus for the application of the maxim.
In Meah v. McCreamer (No. 1) ([1985] 1 All ER 367) substantial damages were awarded to a plaintiff who had suffered head injuries in a road accident and who claimed that, but for the consequent personality change, he would not have committed the offences of sexually assaulting and maliciously wounding two women and raping and maliciously wounding a third woman for which he was sentenced to life imprisonment. In Meah (No. 2) ([1986] 1 All ER 943) the plaintiff’s action to recover damages, which had been awarded against him to two of the victims of his crimes, was dismissed on the grounds that the damages awarded to the victims were too remote to be recoverable and that such an award would be contrary to public policy. Woolf J rejected the contention that such an argument would have affected the award of damages he had made in Meah (No. 1).
The offence of manslaughter is a crime which varies infinitely in its seriousness and the underlying intentionality of the act. Public policy must reflect the variety in degree of culpability. Such a principle was endorsed by the Court of Appeal in Gray v. Barr ([1971] 2 QB 554) when it considered the application of the forfeiture rule in relation to the rights of inheritance, and by the Divisional Court in R. v. Chief National Insurance Commissioner ex parte Connor ([1981] QB 758). In the case of forfeiture Parliament intervened by passing the Forfeiture Act 1982 to prohibit the inflexible application of public policy. In Dunbar v. Plant, Phillips LJ observed that:
“the harshness of applying the forfeiture rule inflexibly to all classes of manslaughter in all circumstances is such that I do not consider that, absent the statutory intervention which occurred, the rule could have survived unvaried to the present day... Furthermore, it seems to me that the only way of modifying the rule would have been to have declined to apply it where the facts of the crime involved such a low degree of culpability, or such a high degree of mitigation, that the sanction of forfeiture, far from giving effect to the public interest, would have been contrary to it. Alternative suggestions that the rule should be restricted to cases of deliberate killing, or deliberate violence leading to death, do not cater for cases of diminished responsibility or provocation, where the mitigating features may be such as to render it particularly harsh to apply the forfeiture rule.”
4. Insanity and diminished responsibility
Under the rules set out in M’Naghten’s Case ([1843]10 Cl. & F. 200). (“the M’Naghten” rules), the accused must prove on the balance of probabilities (or to counter his claim of diminished responsibility the prosecution may prove, but beyond reasonable doubt) that at the time of the act he was “labouring under such 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 it was wrong”.
The sentence for manslaughter by reason of diminished responsibility is at large unlike murder where the penalty is fixed by statute as being a life sentence. Section 2 of the Homicide Act 1957 provides that the accused must be suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind, or any inherent cause, or induced by disease or injury) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing.
According to the applicant, the distinction between conviction of guilty of manslaughter by reason of diminished responsibility and acquittal of murder by reason of insanity can, in practice, be artificial. The applicant observes that, until recently, the consequences of a verdict of insanity were so unattractive that an accused would very rarely accede to such a verdict or enter such a plea. In the applicant’s view, this was because, until the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, a court would be required to admit such an individual to a hospital subject to a restriction order without limit of time and with no flexibility or discretion given to the sentencing judge.
COMPLAINTS
The applicant complains of a violation of his rights under Article 8 of the Convention in that the authorities failed to comply with their positive obligation to ensure effective protection for his right to respect for his private life, in particular his psychological and psychiatric well-being.
The applicant also maintains that he was denied an effective remedy for the breach of his rights under Article 8. He invokes Article 13 of the Convention in this connection and points to the fact that his negligence action was barred on public policy grounds.
The applicant further complains under Article 6 § 1 of the Convention that he was denied a right of access to a court to argue his case against the defendant local authority (Camden). He states that the Court of Appeal implicitly accepted that Camden owed him a duty of care under section 117 of the 1983 Act and that a common law duty of care could be superimposed on the statutory duty. However, although he had asserted a substantive right in the litigation, the Court of Appeal struck out his claim in application of public interest considerations which in effect bestowed a blanket immunity on Camden in relation to its duties under section 117. Furthermore, in so far as he had an arguable claim that Camden owed him a common law duty of care, such a claim could only have been struck out as having no reasonable prospects of success if the maxim ex turpi causa or an analogous principle of public policy was strictly and consistently applied by the courts. This was not so in his case.
THE LAW
1. Article 6 § 1 of the Convention
The applicant complains that he was denied access to a court for a determination of his civil claim against the defendant Health Authority (Camden), since his cause of action was struck out for reasons of public policy. He relies on Article 6 § 1 of the Convention, which provides as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
A. Applicability
The Government contend in reply that the applicant had no substantive right under domestic law to sue the Health Authority. They draw attention to the Court of Appeal’s decision in this connection and maintain that any claim which the applicant might have had under common law was extinguished on account of the application of the ex turpi causa non oritur actio rule, a rule which was described by that court as “the clear and well recognised legal principle”. Admittedly, the rule had the effect of denying a cause of action to a particular category of persons, namely known perpetrators of serious crimes who bring actions in relation to loss suffered by them in consequence of their crimes. However, in the Government’s view, the rule is nonetheless substantive for that. In the instant case, the Court of Appeal defined the scope of the rule with considerable care, had close regard to precedent and the application of the rule by the domestic courts, and properly interpreted its application to the circumstances of the instant case in line with the tradition of the common law.
The Government also observe that the Court of Appeal found, in addition, that Camden neither had a statutory obligation to the applicant nor owed him any parallel duty of care capable of giving rising rise to a claim in damages. This conclusion was reached through a process of statutory construction and with the aim of delineating the substantive limits of the law of tort.
They acknowledge, in line with the Court’s Fayed v. the United Kingdom judgment (judgment of 21 September 1994, Series A no. 294), that there may be scope under Article 6 § 1 to review a domestic provision removing a whole range of civil claims from the domestic courts or conferring an immunity from civil liability on large groups or categories of individuals, where to do so would undermine the rule of law. This consideration however did not apply in the instant case. In the first place, the rules on the basis of which the Court of Appeal struck out the applicant’s claims did not impact on established categories of action. Secondly, there was no question of imposing immunity from civil liability on whole groups or categories of persons. Thirdly, it could not be said that the rules applied by the Court of Appeal had the effect of undermining the rule of law.
In the Government’s primary submission, Article 6 § 1 is not applicable in the absence of a substantive right under domestic law.
The applicant, for his part, maintains that the ex turpi causa rule is a defence to a cause of action and is premised on the existence of a plaintiff’s substantive right against a defendant. Transposed to the circumstances of his case, the applicant contends that Camden owed him a common law duty of care since there was a doctor-patient relationship between Dr Sergeant and himself, Camden being vicariously liable for the acts and omissions of Dr Sergeant. The evidential basis for the existence of this relationship was never examined by the Court of Appeal since that court had recourse to the above-mentioned public policy rule to defeat his cause of action.
The applicant further submits that this common law duty of care co-existed with statutory duties on account of section 117 of the 1983 Act. In the alternative, he maintains that it would be “fair, just and reasonable” to impose a common law duty of care on Camden, and on Dr Sergeant in particular, as the key worker for the performance of the section 117 duties.
For the above reasons, the applicant maintains that he had a substantive right and that Article 6 § 1 must be considered applicable in his case.
The Court recalls that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no.18, p. 18, § 36). This right to a court “extends only to ‘contestations’ (disputes) over (civil) ‘rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law; Article 6 § 1 does not in itself guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States” (see, inter alia, the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, pp. 46-47, § 81, and the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p.16, § 36). Article 6 § 1 will however apply to disputes of a “genuine and serious nature” concerning the actual existence of a right as well as to the scope or manner in which it is exercised (see the Benthem v. the Netherlands judgment of 23 October 1985, Series A no. 97, p. 15, § 32).
These basic principles have recently been re-affirmed by the Court in its Z and Others v. the United Kingdom judgment of 10 May 2001 ([GC], application no. 29392/95, to be published in ECHR 2001).
In the instant case the applicant contended before the domestic courts that he had a right to recover damages from Camden on account of the harm he suffered as a result of its negligence. He based his claims on breach of a common law duty of care and on breach of a statutory duty owed to him. These claims were derived from the tort of negligence, which is largely developed through the case-law of the domestic courts.
The Court is prepared to assume for the purpose of the proceedings before it that the domestic courts were asked to rule on a serious and genuine dispute about the existence and scope in domestic law of a right, asserted by the applicant, to sue Camden on the grounds alleged and that the domestic courts had not at the material time settled definitively the issues as to whether, firstly, the ex turpi causa rule could be invoked in a tort action and, secondly, whether a civil action lay against a local authority in respect of its alleged negligence in the performance of its statutory after-care duties. It notes in this respect that the High Court judge was unwilling to strike out the applicant’s claim on the grounds of ex turpi causa and that Camden conceded at first instance that it owed a common law duty of care to the applicant. It further notes that this was the first occasion on which the domestic courts were taxed with the interpretation of section 117 of the 1983 Act and that the courts’ jurisdiction on this matter was invoked against the background of the highly critical findings of the Ritchie Report in regard to Camden.
Accordingly, Article 6 § 1 of the Convention is applicable to the proceedings at issue in the present case.
B. Compliance
The Government maintain that the requirements of Article 6 § 1 were complied with and that the applicant had effective access to a court. They submit that the ex turpi causa rule applied in the instant case pursued a legitimate aim, namely to ensure that those who commit serious crimes are not able to profit from them, thereby ensuring the continued confidence of the public in the legal system and in the rule of law. Furthermore, the rule was proportionate in its effect since it did not apply in relation to all crimes, but only to the perpetrators of serious crimes. Nor did it apply to cases where the perpetrator did not knowingly commit such crimes or which he did not know were wrong or unlawful. As to the Court of Appeal’s finding that no cause of action arose either in respect of section 117 of the 1983 Act or on the basis of a common law duty of care superimposed on that section, the Government reiterate that the section at issue was properly construed as providing no private-law action against a health authority. Aggrieved individuals were rightly expected to have recourse to other, more appropriate means of redress in respect of their complaints about the operation of section 117. Moreover, clear reasons for this finding were given by the Court of Appeal.
The applicant disputes the Government’s conclusion on compliance. He maintains that they have failed to address his complaint about the inconsistent application by the domestic courts of the ex turpi causa rule. Thus, the Court of Appeal when deciding his case rejected the public conscience test applied by the Court of Appeal around the same time in the case of Reeves v. Commissioner of Police for the Metropolis ([1998] 2 Weekly Law Reports 401), the latter ruling in itself being inconsistent with the House of Lords ruling in the Tinsley v. Mulligan case ([1944] 1 Appeal Cases 340). In the applicant’s opinion, any limitation of the entitlement to damages is only proportionate and fair if applied fairly and consistently. Furthermore, and as to the Government’s view of the proportionality of the rule, the applicant observes that the Court of Appeal made an artificial and unfair distinction between the application of the rule to a person like the applicant who was found guilty of manslaughter by reason of diminished responsibility and someone acquitted of murder by reason of insanity.
The applicant refutes the reasons given by the Government for the proportionality of the restriction on his cause of action under section 117 of the 1983 Act. As to their reliance on the availability of alternative remedies, he points out, in view of his psychotic condition at the material time, it would have been wholly unrealistic to have expected him to launch judicial review proceedings against Camden or to complain to the Secretary of State. In addition, the Government’s concern that potential liability in damages could act as a deterrent to the provision of valuable after-care services by charitable or other bodies is a factor which should not affect the decision whether a duty should be imposed, especially as it overlooks the seriousness or otherwise of the damage, the nature or degree of the negligence alleged and the fundamental rights of the applicant involved.
The Court notes that the applicant had a full opportunity to state his case before the High Court and then to contest Camden’s grounds of appeal before the Court of Appeal. The Court of Appeal gave careful consideration to the question of whether the applicant had a sustainable action in domestic law and had close regard to the case-law precedents drawn both from the law of negligence and the law of contract.
It is to be observed that at no stage of the proceedings did the Court of Appeal rely on a doctrine of immunity to shield Camden from the consequences of a civil action against them. The Court of Appeal took the view that, in the circumstances of the case, it would not be appropriate to enforce obligations against Camden where those obligations arose out of the applicant’s own criminal act. It is true that this view differed from the decision reached by the High Court judge in application of the public conscience test. However, that of itself does not disclose any element of unfairness with the meaning of Article 6 § 1, and even less so a restriction on access to court. What is important for the Court is that the Court of Appeal gave clear reasons for its decision to depart from the ruling of the High Court judge with specific reference to the facts alleged by the applicant. It does not consider either that any issue arises under Article 6 § 1 merely because the Court of Appeal concluded that the applicant, notwithstanding his mental condition at the time of the killing of Jonathan Zito, must be taken to have known that what he was doing was wrong. Where to draw the boundaries between the application of the rule and its displacement is primarily a matter for the domestic courts. For the Court, the Court of Appeal’s decision was in accordance with the development of the common law through judicial decision in the area of tortuous liability and its adaptation to new situations. That decision did not have as its result, as contended by the applicant, the conferment of an immunity on the defendant local authority.
As to the Court of Appeal’s approach to the applicant’s claim under section 117 of the 1983 Act, the Court notes that the Court of Appeal found, as a matter of statutory construction, that Parliament did not intend to confer on individuals a cause of action against a local authority in the event of failure to comply with the requirements of that provision. This decision was reached in the light of the parties’ contentions and it has not been alleged by the applicant that he was denied any of the procedural guarantees contained in Article 6 § 1 in the proceedings.
As to whether a common law duty of care operated alongside the statutory duties imposed on Camden under the 1983 Act, the Court observes that the Court of Appeal found that the issue had to be seen in the context of the surrounding statutory framework and whether or not it was fair and reasonable for Camden to be held responsible for errors and omissions of the kind alleged. The Court of Appeal considered that, having regard to the ambit of the obligations under the section 117 of the 1983 Act and to the fact that they affect a wide spectrum of health and social services, including voluntary services, it could not have been Parliament’s intention to create a cause of action against either Camden or its health professionals. Once again, the Court considers that the Court of Appeal balanced carefully the policy reasons for and against the imposition of liability on Camden in the circumstances alleged. It analysed the applicant’s claims from the standpoint of whether it would be just and reasonable to allow them to proceed to a determination on the merits. In sum, his claims under this head were properly and fairly examined in the light of the applicable domestic legal principles governing the law of negligence as applied to the exercise by the defendant local authority of its statutory powers.
It is the Court’s conclusion, therefore, that the applicant was able to test the arguability of his claims under domestic law. Following an adversarial procedure, the fairness of which has not been contested, the domestic courts ruled against him, finding that he had no substantive right to assert. Article 6 § 1 of the Convention does not guarantee the applicant more in the circumstances. The decision ended the case, without the factual matters being determined on the evidence. However, if as a matter of law there was no basis for the claim, the hearing of evidence would have been an expensive and time-consuming process which would not have provided the applicant with any remedy at its conclusion. There is no reason to consider the striking out procedure which rules on the existence of sustainable causes of action as per se offending the principle of access to court. In such a procedure, the plaintiff is generally able to submit to the court the arguments supporting his or her claims on the law and the court will rule on those issues at the conclusion of an adversarial procedure (see the above-mentioned Z and Others judgment, § 97). The applicant requests the Court to find that it would have been fair, just and reasonable to allow a civil action to lie against Camden. It is not for the Court to find that this should have been the outcome of the striking out action, since this would effectively involve substituting its own view as to the proper interpretation and content of domestic law.
It follows that the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. Article 8 of the Convention
The applicant maintains that section 117 of the Mental Heath Act 1983 makes provision for persons such as himself who suffer from psychiatric disorder by envisaging their compulsory detention and treatment where appropriate and the provision of after-care services on their discharge. In his submission, the authorities’ failure to implement their duties under that section amounts to a breach of the respondent State’s positive obligations under Article 8, having regard to the harm which he has suffered.
Article 8, insofar as relevant, states:
“1. Everyone has the right to respect for his private ... life, ... .
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... public safety or ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government maintain the applicant has failed to show any direct link between the alleged failure to provide him with adequate after-care treatment and any harm caused to his psychological and psychiatric well-being. They submit, accordingly, that there is no appearance of any breach of Article 8 in the circumstances, even assuming that that provision could be considered applicable from the standpoint of any possible positive obligations inherent in that Article. In this latter connection, the Government dispute that Article 8 can be read in a way which imposes a right not only to healthcare, but, and as canvassed for by the applicant, to fully effective healthcare. The Government assert that such a wide-ranging construction goes far beyond any previously recognised category of physical and moral integrity in the Convention case-law on the notion of private life.
In so far as the applicant maintains that section 117 of the 1983 Act imposes a positive obligation on the State to provide him with care on account of the fact that he was detained by the authorities and was suffering from mental health problems, the Government aver that this feature does not improve the applicant’s case under Article 8. In the first place, the positive obligation relied on by the applicant is still inconsistent with the Convention case-law and its acceptance would represent an unwarranted development of that notion as well as the notion of “physical integrity.” Secondly, the applicant did not respect the out-patient appointments which had been arranged for him following his release from detention. In the Government’s view, these factors argue against the applicability of Article 8 in this case.
The Government maintain that should the Court consider Article 8 applicable, it should rule that that provision has not been breached. In their view, the treatment which the applicant received following his release from detention, even if it did not comply with the mandatory requirements of section 117 of the 1983 Act, was not so inadequate as to amount to a lack of respect for his private life. The Government stress in this connection that there were numerous individuals and organisations involved in caring for the applicant. There were, admittedly, errors of judgment and the administration of care was hampered by lack of resources and failures of communication. However, any failings of the care service identified in the Ritchie Report cannot be considered to amount to a breach of any positive obligation which may have been owed to the applicant, and there is nothing to substantiate that the level of care provided actually caused the applicant to kill Jonathan Zito or that his act led to him to suffer more severe psychological harm that he would otherwise have experienced.
The Government further contend that the failures of the care service were fully addressed at the domestic level in the context of the Clunis Inquiry, criticism was levelled at those responsible for those failures and recommendations were set out in the Ritchie Report to avoid their recurrence in the future. In these circumstances, the applicant can no longer claim to be a victim under Article 34 of the Convention of a lack of respect for his private life.
The applicant contests the grounds invoked by the Government to have his case declared inadmissible.
In the first place, the Ritchie Report concluded on the evidence it heard that the applicant’s treatment was “a catalogue of failure and missed opportunity” and that the applicant had received “care and treatment that was not effective in keeping him well or the public safe.” This conclusion was also borne out by expert psychiatric evidence tendered in the course of the domestic proceedings including at his criminal trial. It must be concluded therefore that the applicant would not have killed anyone if he had been given adequate after-care and that his psychological and psychiatric well-being would have remained better that it is now, and will be in the future, had he not killed Jonathan Zito.
Secondly, the applicant maintains that his essential argument is not that there should be a positive obligation on the State under Article 8 to secure the right to general health-care. His argument is that, in the particular circumstances of his case, the respondent State failed to comply with its positive obligation to provide adequate treatment and supervision for his schizophrenic illness following his release from detention and that the development of his personality was thereby compromised. In the applicant’s view, this proposition finds support in the Convention case-law on the notion of positive obligations.
Thirdly, and contrary to the Government’s assertion, the applicant continues to be a victim of a breach of Article 8 since he is detained without limit of time, has to contend with the consequences of the authorities’ failure to treat him and cannot seek compensation for the deterioration in his mental health that resulted in and from the killing of Jonathan Zito. The Inquiry cannot be considered an effective remedy since it had no power to award compensation.
The Court must determine whether the right asserted by the applicant falls within the scope of the concept of “respect for private life” set forth in Article 8 of the Convention.
It recalls in this connection that “private life” includes a person’s physical and psychological integrity (see the Botta v. Italy judgment of 24 February 1998, Reports of judgments and decisions 1998-I, p. 422, § 32). It further recalls that while the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see the X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, § 23). However, the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the State has, in any event, a margin of appreciation (see the above-mentioned Botta judgment, p. 422, § 33).
The Court has held that a State has obligations of this type where it has found a direct and immediate link between the measures sought by an applicant and the latter’s private and family life (for a review of the authorities see the above-mentioned Botta judgment, pp. 422-423, § 34). Thus, in the above-mentioned X and Y v. the Netherlands case, which concerned the rape of a mentally handicapped person and accordingly related to her physical and psychological integrity, the Court found that because of its shortcomings the Netherlands Criminal Code had not provided the person concerned with practical and effective protection (ibid., p. 14, § 30).
However, the Court considers that in the instant case there is no direct link between the measures which, in the applicant’s view, should have been taken by Camden and the prejudice caused to his psychiatric well-being attendant on the realisation of the gravity of his act, his conviction and subsequent placement in a mental hospital without limit of time. The Court acknowledges that the assumption of responsibilities by the authorities of a Contracting State for the health of an individual may in certain defined contexts engage their liability under the Convention with respect to that individual (see, for example, the D. v. the United Kingdom judgment of 2 May 1997, Reports 1997-III, p. 793, § 52) as well as with respect to third parties (see mutatis mutandis the Osman v. the United Kingdom judgment of 28 September 1998, Reports 1998-VIII, p. 3164, § 128).
However, in the Court’s opinion it cannot be said that Camden’s failure to discharge its statutory duty under section 117 of the Mental Health Act 1983 led inevitably to the fatal stabbing of Jonathan Zito. It is a matter of speculation as to whether the applicant would have consented to become an in-patient on a voluntary basis or followed a prescribed course of medication or co-operated in any other way with the authorities. In these circumstances, and without prejudice to the question as to whether Article 8 is applicable in the circumstances of this case, the Court finds that the applicant’s complaint does not disclose an appearance of a violation of that Article. On that account the complaint is inadmissible as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
3. Article 13 of the Convention
The applicant submits that the only effective remedy would have been the opportunity to have his complaints investigated in adversarial proceedings. However, his claim was struck out by the Court of Appeal. He reiterates his view that the Ritchie Inquiry cannot be considered an effective remedy having regard to its shortcomings. There has accordingly been a breach of Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government contend that Article 13 cannot apply, given that the applicant had no arguable claim under Article 8. In the alternative, they maintain that the full and thorough investigation carried out by the Clunis Inquiry provided an effective remedy for the purposes of Article 13 and that it was neither necessary nor appropriate for damages to be awarded to the applicant in the very particular circumstances of this case.
According to the Court’s case-law, Article 13 only applies where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, § 52).
The Court notes that it has found the applicant’s complaint under Article 8 manifestly ill-founded. For similar reasons, the applicant did not have an “arguable claim” that his enjoyment of that right was breached in the circumstances of the case. Article 13 is therefore inapplicable to his case. It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy