Forfeiture and motor manslaughter

The rule of public policy, expressed by the maxim “ex turpi causa non oritur actio” [an action does not arise from a base cause], prevents a person who has unlawfully killed another from acquiring a benefit in consequence of that killing.

The rule is intended to act as a disincentive to criminal activity and to reflect public conscience.

In one of the leading authorities on the subject (Cleaver v Mutual Rescue Fund Life Association [1892] 1 QB 147), Fry LJ stated, at 156: “It appears to me that no system of jurisprudence can within reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.”

Apart from murder, the rule has been applied to cases where the killer has used violence or threats of violence against their victim even if the death was accidental: Gray v Barr [1971] 2 QB 554.

It has also been applied consistently to all cases involving manslaughter: see, Dunbar v Plant [1998] Ch 412; Dalton v Latham [2003] EWHC 796 (Ch); Land v Land (Deceased) [2006] EWHC 2069 (Ch); Chadwick v Collinson [2014] EWHC 3055 (Ch).

However, some doubt has remained as to whether the rule should be applied to cases where a driver has caused the death of a person through their reckless or careless driving.

In this connection, several insurance cases have proceeded on the basis that an insured driver who has committed motor manslaughter is not deprived from recovering under their insurance policy unless their conduct was wilful or culpable. (See Tinline v White Cross Insurance Association Ltd [1921] 3 KB 327; James v British General Insurance Co Ltd [1927] 2 KB 311; Hardy v Motor Insurers’ Bureau [1964] 2 QB 745)

More recently, the application of the rule has been judicially considered in the context of assisted suicide: see my earlier article: Relief Effort - Forfeiture and Assisted Suicide.

Relief from forfeiture

The Forfeiture Act 1982 gives the court power to grant relief to certain persons guilty of unlawful killing from the forfeiture of inheritance and other similar rights.

Under s.2(1), the court must first determine whether the rule of public policy precludes an offender (i.e., a person who has unlawfully killed another regardless whether he is charged or convicted of an offence) acquiring an interest in property.

The section has no application, however, to persons who are convicted of murder: s.5. Once the application of the rule has been established, it is then open to the court to make an order modifying the effect of the rule in the given case provided that it is satisfied that, having regard to the conduct of the offender and of the deceased and to such other circumstances as appear to be material, the justice of the case requires the effect of the rule to be so modified: s.2(2).

The interests in property in respect of which an order can be made are defined in s.2(4) of the Act and include any beneficial interest in property which (apart from the forfeiture rule) the offender would have acquired under the deceased’s will or the law relating to intestacy, or any beneficial interest in property which the offender would have acquired in consequence of the death of the deceased, being property which, before the death, was held on trust for any person.

The jurisdiction to grant relief has been applied in a number of cases, most notably, in Re K [1985] Ch 85, where it was held that the discretion conferred by s.2(1) required the court to investigate the moral culpability of the killing and the relative financial position of the persons claiming under the Act and those who would be entitled if the forfeiture rule was applied.

In the recent case of In the Estate of Royston Leonard Amos (Deceased) v Mancini [2020] EWHC 1063 (Ch), the forfeiture rule set out in s.1 of the 1982 Act was held to apply to a driver of a motor car who had caused the death of her husband by careless driving contrary to s.2B of the Road Traffic Act 1988.  The effect of the rule, however, was modified under s.2(1) in view of the circumstances in question.

The facts were, indeed, quite tragic. The claimant, who was 74, and her 81-year-old husband set off by car from their home in Wales to attend the funeral of the latter’s sister in Canterbury.

During the journey, the husband felt unwell, so they turned back. On the way home, they became lost. After they had been driving for about 10 hours and when it was raining and starting to get dark, they were involved in a collision.

The claimant failed to break when approaching a line of queueing traffic. She lost consciousness and was subsequently unable to remember why she did not stop. Her husband was killed.  By his will, he left his estate, which largely comprised the matrimonial home, to the claimant. If she did not survive him, the beneficiaries were the couple’s children (and grandchild) by former marriages.

The claimant accepted that the offence of causing death by careless driving amounted to “unlawful killing” for the purpose of s.1 of the 1982 Act, but argued that the phrase “in certain circumstances” (contained in s.1) meant that the rule did not apply to every instance of unlawful killing and that it should not apply to her situation.

She also submitted that, if the rule did apply, the court should modify its application pursuant to s.2(1). On the first point, HH Judge Jarman QC (sitting as a judge of the High Court) held, applying Dunbar, above, that the forfeiture rule applied to all cases of manslaughter and that some instances of manslaughter might involve little more than inadvertence.

Significantly, Dunbar was decided before the offence of causing death by careless driving came into existence and, at the time, causing death in such a manner was dealt with by way of a manslaughter charge.

In his view, therefore, it would be illogical to apply the rule to all cases of manslaughter but not to cases of causing death by careless driving: see, at [19].  The rule, therefore, applied in the claimant’s case.

On the second point, it was apparent that the collision had taken place in the rain and the dark after the claimant had been driving for a very long time. She pleaded guilty at the first opportunity and, at the sentencing hearing, counsel did not seek to play down her part.

The sentencing judge described the collision and its consequences as a tragedy resulting from a significant lapse in concentration. So far as the family home was concerned, the claimant and her husband had purchased it in their joint names. The property had been dilapidated when they bought it and they had both worked to turn it into their dream home.

Significantly, each intended that, when they died, the survivor would become entitled to it. It was also not without significance that two of the alternative beneficiaries had not contested the claim.

In the circumstances, the learned judge had no doubt that it would be unjust for the forfeiture rule to apply. In the result, the rule was modified to allow the claimant to take her husband’s interest in the matrimonial home and to inherit under her husband’s will.

Modification of the rule

The decision is clearly in line with earlier authority that all forms of manslaughter (regardless of intent or moral culpability) fall within the definition of “unlawful killing” for the purpose of s.1 of the 1982 Act.

Although the insurance cases, notably, Tinline, referred to above, were relied on by the claimant as demonstrating a reluctance to debar a driver found guilty of manslaughter by reckless driving from relying upon a certificate of insurance, this (and other similar cases) of unlawful killing by the manner of driving a motor car could be justified on the basis of public policy requiring there to be valid insurance for the benefit of the family of the victim.

They did not, therefore, govern the applicability of the forfeiture rule arising under the 1982 Act.

Given the tragic circumstances surrounding the claimant’s conviction, this was equally an obvious case for modification of the forfeiture rule, especially as the loss to the claimant (in being disinherited from her husband’s share in the home and under his will) would have been significantly out of proportion to her culpability in the offence.

Mark Pawlowski is a barrister and professor of property law at the University of Greenwich