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R v Wacker [2003] 1 Cr App R 329 Court of Appeal

The appellant was the driver of a lorry carrying 60 Chinese illegal immigrants from Rotterdam to England. The lorry had a concealed compartment in which the immigrants were placed. Once inside they were sealed in. The lorry was a refrigerated lorry which meant that there was no ventilation. There was one air vent. The immigrants were told that if the vent was shut, they must be silent to avoid detection. The appellant shut the vent 10 minutes before boarding the ferry. He did not re-open it. The lorry was on the ferry for 10 hours. Consequently 58 of immigrants suffocated. The appellant was convicted of gross negligence manslaughter for each of the deaths. He appealed on the grounds that one of the general principles of the law of negligence, known by the Latin maxim of ex turpi causa non oritur actio, was that the law of negligence did not recognise the relationship between those involved in a criminal enterprise as giving rise to a duty of care owed by one participant to another.

Held:

The principle of ex turpi causa did not operate in criminal law to negate a duty of care.

Kay LJ:
"the very same public policy that causes the civil courts to refuse the claim points in a quite different direction in considering a criminal offence. The criminal law has as its function the protection of citizens and gives effect to the state’s duty to try those who have deprived citizens of their rights of life, limb or property. It may very well step in at the precise moment when civil courts withdraw because of this very different function. The withdrawal of a civil remedy has nothing to do with whether as a matter of public policy the criminal law applies.

Thus looked at as a matter of pure public policy, we can see no justification for concluding that the criminal law should decline to hold a person as criminally responsible for the death of another simply because the two were engaged in some joint unlawful activity at the time or, indeed, because there may have been an element of acceptance of a degree of risk by the victim in order to further the joint unlawful enterprise. Public policy, in our judgment, manifestly points in totally the opposite direction."
 
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