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<\/p>\nBy Per Laleng<\/p>\n
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In Part I, I noted that the threshold question (\u201cDoes the conduct engage the public interest?\u201d), and the Patel<\/em> question, (\u201cWould allowing the claim damage the public interest?\u201d), are different inquiries. The first is conduct-based, and the second is systemic. The court\u2019s assertion that \u201cThe risk of producing inconsistency and disharmony in the law, and thereby damaging public confidence in the integrity of the legal system … is of central importance in determining the threshold in this case\u201d (Judgment<\/a> para [127]) blurs these questions. By importing systemic concerns into the threshold, the court conflates engaging<\/em> the public interest with damaging<\/em> it. That conflation deepens during the Patel<\/em> assessment. Applying Patel<\/em>, the Supreme Court arrives at what it calls the \u201cinevitable conclusion\u201d that the illegality defence applies (Judgment<\/a> para [170]). The conclusion was indeed inevitable, but not because the case was clear. It was inevitable because the Patel<\/em> framework has been rebuilt to produce only one answer.<\/p>\n As originally conceived by Lord Toulson, the Patel<\/em> test is a structured framework designed to answer an overriding question: would allowing recovery for something tainted by illegality produce inconsistency and disharmony in the law, thereby<\/em> damaging the integrity of the legal system (Patel v Mirza<\/a> [2016] UKSC 42 at [100]). (Note the absence of \u201cpublic confidence\u201d). To answer this question, courts consider whether denying the claim would: (a) enhance the policies underlying the rule broken by the claimant; and\/or (b) weaken any other relevant public policies; and if the balance favours denying the claim, whether (c) that denial would be a proportionate response. The first two stages balance competing policy considerations from the perspective of the legal system. The third is a case-specific fairness check, oriented to principle rather than policy.<\/p>\n When turning to stage (a) of Patel<\/em>, the Supreme Court said the purpose of the rule against taking human life is the preservation of life and the promotion of respect for the sanctity of life. The court identifies four public interests served by the rule: public protection, deterring unlawful killing, public condemnation of unlawful killing and punishment, and an acknowledgement of the wrong done to the victims, their family and friends (Judgment<\/a> para [141]).<\/p>\n The court recognized that the deterrent effect of the rule was questionable in relation to an insane claimant but echoed Lord Hamblen in Henderson<\/a>: \u201cthere may be some deterrent effect in a clear rule that unlawful killing never pays\u201d (Lewis-Ranwell<\/em> Judgment<\/a> para [143]). Or maybe not.<\/p>\n In Henderson<\/em>, Lord Hamblen paired condemnation with punishment (Henderson<\/a> para [129]). Henderson<\/em> was a diminished responsibility case, so punishment was still in play. The Supreme Court in Lewis-Ranwell<\/em> unbundles the pair. Instead, condemnation is paired with public protection: \u201cAlthough he is spared criminal responsibility for his conduct, and the law focuses on the protection of the public as opposed to punishment, his conduct is neither justified nor excused. His conduct is unlawful and deserves to be condemned\u201d (para [142]).<\/p>\n This passage is confusing. When it considered the threshold question, the Supreme Court said: \u201cThe claimant\u2019s acts were not justified by his insanity. He was simply excused criminal liability\u201d (para [130]). If condemnation rests on the premise that the conduct is \u201cneither justified nor excused\u201d, then that premise appears to have been undermined by the court\u2019s own earlier statement. The equivocation on \u201cexcused\u201d is compounded by the conflation of criminal responsibility and criminal liability throughout the judgment, a problem replicated by a similar conflation of civil responsibility and civil liability when the court turns to inconsistency.<\/p>\n If condemnation rests on the premise that the conduct was unlawful, it is difficult to see the functional distinction between the threshold question and Patel <\/em>stage (a). The unlawful conduct is sufficient to engage both the state\u2019s interest at the threshold and public condemnation at Patel<\/em> (a). But why should this claimant\u2019s conduct be condemned? He is not at fault, not blameworthy, not being censured. The only sense in which he is being \u201ccondemned\u201d is via his hospital order – imposed for public protection, not punishment. That hospital order is doing double, if not treble duty: at the threshold, for condemnation, and later for inconsistency.<\/p>\n To these weak justifications grounded in deterrence and condemnation, the court adds the public interest in acknowledging that a grievous wrong has been suffered (para [141]). This consideration is new in Lewis-Ranwell<\/em>, unsupported by cited authority, and never developed. It may be doing the heaviest lifting in the first part of the stage (a) analysis and may also explain why the court spent considerably more time focusing on inconsistency and public confidence.<\/p>\n As noted above, the overarching question the Patel<\/em> test is designed to answer is whether allowing the claim would produce inconsistency, disharmony and thereby damage the integrity of the legal system. Stage (a) was focused narrowly on the policies underlying the specific prohibition transgressed. In Henderson<\/em>, Lord Hamblen expanded stage (a) to include \u201cother general policy considerations that impact on the consistency of the law and the integrity of the legal system … In the present case, for example, that would encompass the public policy considerations identified in Gray<\/em><\/a> … namely the consistency principle and the public confidence principle\u201d (Henderson<\/a>, para [119]). Quite apart from the uneasy conflation of policy and principle, what Lord Hamblen appears to be doing is placing the concept the test is supposed to evaluate – consistency – inside the test itself. Henderson<\/em> closed the distance between the test and the question it is supposed to answer.<\/p>\n Lewis-Ranwell<\/em> completes this collapse. The court writes: \u201cThe court is entitled and required to take a broad view of the underlying policies, including those relating to the internal consistency of the law and the integrity of the legal system\u201d (para [144]). The court then identifies five specific inconsistencies across nine paragraphs (paras [144-150]). This is all done within<\/em> stage (a). The court appears to be identifying inconsistencies in order to demonstrate that allowing the claim would lead to inconsistencies. It is difficult to see why this isn\u2019t circular.<\/p>\n In addition to inconsistency, the court considers public confidence, with which inconsistency is \u201cclosely bound up\u201d (para [151]). At [127], the court said inconsistency risks damaging public confidence. Inconsistency is a risk factor for public confidence. But in its conclusion on stage (a), the court breaks this connection: \u201cFor these reasons, in particular for reasons of consistency and public confidence, we conclude that there are very weighty considerations supporting the view that the underlying purpose of the prohibition would be enhanced by denying the claim\u201d (para [154]). Consistency and public confidence are here identified as distinct<\/em> reasons supporting a conclusion about the purpose of the prohibition – itself a sub-question within the very framework designed to test for inconsistency. More circularity.<\/p>\n If stage (a) already asks \u201cwould permitting the claim lead to inconsistencies?\u201d, the overarching question is substantially answered before reaching (b) or (c). At para [151], the court says the identified inconsistencies are \u201cnecessarily detrimental\u201d. The outcome was effectively decided. Stage (b) gets three short paragraphs and stage (c) gets two: it is difficult to see what independent work remains for counter-policies or proportionality. The tripartite structure of the Patel<\/em> test becomes illusory.<\/p>\n This matters beyond Lewis-Ranwell<\/em> because the Patel<\/em> framework must work across future illegality cases. The test was designed as a structured framework that requires judicial judgment: courts examine the situation through three lenses and then assess consistency. Henderson<\/em> began collapsing the framework by putting the conclusion concept inside stage (a). Lewis-Ranwell<\/em> completes the collapse. The result is a test that predetermines its own conclusion using undefined or loosely defined policy labels – consistency, public confidence, condemnation – that are open-ended enough to support almost any conclusion. The Unruly Horse.<\/p>\n The Supreme Court may not have needed to take the route it adopted. In Gray<\/em>, Lord Hoffmann argued that causation analysis might offer an alternative understanding of why claims like these fail: the claimant\u2019s own acts may present insurmountable causation hurdles (Gray<\/a>, paras [51-4]). The claim under the Human Rights Act 1998 proceeds despite the denial of the negligence claim. Given the tiny number of claims of this nature, one is left to wonder whether the financial and analytical cost of ventilating this issue in the Supreme Court was worth it.<\/p>\n In Patel<\/em>, Lord Toulson stated \u201cThe public interest is best served by a principled and transparent assessment of the considerations identified\u201d (Patel<\/a>, para [120]). It is questionable whether the Supreme Court achieved either despite its \u201cinevitable\u201d conclusion.<\/p>\n","protected":false},"excerpt":{"rendered":"The purpose of the prohibition<\/h2>\n
Condemnation without punishment<\/h2>\n
Consistency and circularity<\/h2>\n
The inevitable collapse<\/h2>\n