Crime XXXXXXXVI - Gross Negligence Manslaughter VIII
The
doctrine of ex turpi causa non oritur actio or where the act is illegal, a
legal remedy is not available, does not necessarily negate the duty of care
principle in criminal law. Let’s look at a civil case (tort) and a criminal
case to make a comparison.
In
Ashton and Turner (1981) (Tort (Civil)); the plaintiff was a passenger in a car
that the defendant was driving. The pair had jointly committed a burglary and
the defendant was drunk at the time. The car they were driving in subsequently
crashed and the plaintiff sued. The court held that the principle of ex turpi
causa prevented him from claiming.
The
defendant clearly owed a duty of care to his passenger, the same duty that any
driver owes to his or her passenger and breached the duty by not driving in the
appropriate manner or the manner prescribed by law and as a result of the
breach his passenger was injured.
Applying
the duty of care principle strictly, the defendant should be found guilty.
However, because the plaintiff and the defendant had jointly committed a
criminal act, the doctrine of ex turpi causa non oritur actio was applied
and the application of the doctrine negated the duty of care that was owed.
In
R v Wacker (2002) (Criminal) the defendant was transporting 60 illegal
immigrants on board a refrigerated truck from Rotterdam to the United Kingdom.
There was only one air vent available and prior to the truck boarding a ferry,
the air vent was shut and the passengers were told not to make any noise to
prevent detection.
The
air vent remained shut for 10 hours, the defendant forgot to reopen it and 58
of the passengers died as a result. The defendant was charged and convicted of
manslaughter.
The
defendant argued that the duty of care principle which is commonly used in tort
does not extend to criminal law. The argument from the duty of care perspective
was that the driver owes his passengers a duty of care like any other ordinary
driver to ensure that he takes reasonable care to ensure that his passengers
arrive at their destination safely. The only exception here was that the act of
taking the passengers i.e. the illegal immigrants was illegal.
It
was held that for public policy reasons the duty of care principle can be
extended to criminal law and the fact that the act was in itself illegal (ex
turpi causa non oritur actio) does not negate the application of the duty of
care principle. The defendant was accordingly convicted and sentenced.
Copyright
© 2019 by Dyarne Ward
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