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 © 2018 by Dyarne Ward