Relief effort: forfeiture and assisted suicide
Mark Pawlowski reviews the Court of Appeal's latest ruling on the application of the forfeiture rule in relation to assisted suicide and considers circumstances where judges will likely grant relief from the rule
The common law rule of public policy, which prevents a person who has unlawfully killed another from profiting from that death, is intended to act as a disincentive to criminal activity and to reflect public conscience. At the same time, the Forfeiture Act 1982 is intended to militate against the strict application of this rule by giving the court power to grant relief to persons found guilty of unlawful killing (other than murder) from forfeiture of their inheritance and other similar rights. Two recent cases have examined the question of relief in the specific context of assisted suicide.
Relief against forfeiture
The Forfeiture Act 1982 empowers the court to grant relief to a person who has unlawfully killed another and who is precluded, under the forfeiture rule, from acquiring a benefit in consequence of the killing. The rule extends to a person who has unlawfully aided, abetted, counselled or procured the death of another, so that the act applies to cases involving complicity in another’s suicide (s.1(2)).
However, the act does not affect the application of the forfeiture rule in the case of a person who stands convicted of murder (s.5). Where someone has been convictedof an offence involving unlawful killing, an order can only be made if proceedings for relief are brought within three months of the conviction (s.2(3)). In other cases, there is no such limitation period. The act gives the court no discretion to extend the time for commencement of the action. In Land v Land  EWHC 2069 (Ch), for instance, an application made four working days out of time was held fatal to the application under the 1982 Act.
Under s.2(1), the court must first determine whether the forfeiture rule precludes a person who has unlawfully killed another (regardless whether he is convicted or charged for the offence) acquiring an interest in property. Once this 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 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 (s2(2)). Although s.2(1) refers to “modifying” the effect of the forfeiture rule, this does not prevent the court from relieving an applicant from the operation of the rule in respect of the entirety of all interests affected by the rule (Re K Deceased  Ch. 85, at 100).
It is apparent that s.2(2) of the act requires the court to look at all the material circumstances in deciding whether the “justice of the case” requires modification of the forfeiture rule. These may include the degree of moral culpability attending the claimant’s criminal conduct, the relationship of the parties, the nature and gravity of the offence, the intentions of the deceased, the size of the estate and value of the property in dispute, the financial position of the offender and the moral claims and wishes of those otherwise entitled to the deceased’s estate (see, Dunbar v Plant  Ch. 412, at 427; and Re S Deceased  1 WLR 235, at 241).
In Dunbar, the Court of Appeal applied the forfeiture rule to a case where the parties had agreed to commit suicide. In each of the three attempts at suicide, the defendant had aided and abetted the other party contrary to s.2(1) of the Suicide Act 1961 and, therefore, there was no doubt regarding her criminal complicity in the parties’ joint venture. Both Mummery and Phillips L.JJ concluded that the forfeiture rule applied to cases involving assisted suicide under the 1961 Act. Significantly, this has now been taken to represent a binding statement of law so that the rule now applies to allcases of unlawful killing, except possibly cases involving a finding of criminal insanity (Dalton v Latham EWHC 796).
In Dunbaritself, since the parties’ suicide pact had been the result of the defendant’s irrational reaction to various allegations of fraud and theft made against her by her employer, the effect of forfeiture was modified so as to grant her full relief. In the course of his judgment, Phillips LJ stated, at 438:
“A suicide pact may be rational, as where an elderly couple who are both suffering from incurable diseases decide to end their lives together, or it may be the product of irrational depression or desperation. In neither case does it seem to me that the public interest will normally call for either prosecution or forfeiture should one party to the pact survive. In such circumstances the appropriate approach under the Forfeiture Act 1982 is likely to be to give total relief against forfeiture. Of course, this will not always be the case. One can think of instances of suicide pacts where one would not acquit the instigator of serious culpability.”
In Macmillan Cancer Support v Hayes EWHC 3110 (Ch), the husband (Peter) killed his wife (Sheila) and then took his own life pursuant to a suicide pact. The effect of that on Sheila’s will was that, under the forfeiture rule, Peter would not be able to benefit from her will and her distant relatives would be the beneficiaries. This would, in turn, have resulted in depriving the couple (both in their 80s) of achieving their wishes (under both their wills) of benefitting various charities including Macmillan Cancer Support on their deaths. In granting total relief from forfeiture, HH Judge Raeside QC (sitting as a Judge of the High Court) took the following, inter alia, factors into account:
- The relationship between Peter and Sheila was one of a happy marriage between two devoted people who were a loving couple over their long lives;
- His involvement in his wife’s death was based on his belief that they had per-agreed that, in the event that their “normal” lives were over, they would bring their lives to an end while capable of doing so;
- He had killed his wife by suffocating her while she was heavily sedated, so he had went out of his way to ensure that she did not suffer;
- He personally achieved no financial benefit from his wife’s death as he committed suicide afterwards;
- The parties had no children and the only beneficiaries were the various charities.
Most recently, in Ninian v Findlay  EWHC 297 (Ch), a widow applied for relief against forfeiture under the 1982 Act following the death of her husband at the Dignitas clinic in Switzerland. Her husband had been diagnosed with a terminal illness at the age of 80 and he had decided to proceed with an accompanied suicide with the help of his wife. She made the necessary travel arrangements and accompanied him on the journey because he was unable to travel on his own. After his death, a police investigation concluded that a prosecution under s.2(1) of the Suicide Act 1961 would not be in the public interest.
Chief Master Marsh held that the wife’s acts in facilitating her husband’s trip to Switzerland were capable of satisfying the requirements of s.2 of the 1961 Act. Having regard to all the circumstances, however, the Chief Master concluded that this was a “compelling case” for the exercise of the court’s discretion to grant relief from forfeiture of her husband’s estate. The Crown Prosecution Service’s decision not to prosecute was a powerful factor in favour of granting relief. Moreover, the publication, dated February 2010, issued by the DPP entitled ‘Suicide – Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide’ was particularly helpful in listing the factors that were relevant to the court’s exercise of its discretion:
- The husband had reached a voluntary, clear and informed decision to commit suicide;
- His wife was wholly motivated by compassion;
- She had sought to dissuade her husband from committing suicide;
- Her actions fell to be characterised as “reluctant assistance” in the face of her husband’s determined wish to end his life;
- She reported the suicide to the police and fully assisted them in their enquiries.
It was also relevant that the parties had been married for 34 years in a strong and loving relationship so that “she did what many persons would do for a loved one”. Her moral culpability was, therefore, limited. There was also no suggestion that she had been motivated by money in the assistance she provided.
Interestingly, the effect of the forfeiture, had it been applied, on the jointly owned property of the parties would have been to sever the joint tenancy in equity (see Re K Deceased, above). However, given that relief was granted, the severance of the jointly owned property fell to be treated as not having taken place so that it would pass to the wife automatically by way of survivorship.
- The forfeiture rule applies to all cases of unlawful killing, including cases of assisted suicide.
- The appropriate course, where the application of the rule conflicts with the ends of justice is to seek modification under s.2 of the Forfeiture Act 1982.
- The court will look at all the material circumstances in deciding whether the “justice of the case” requires modification of the forfeiture rule under the 1982 Act.
- In cases of assisted suicide, a decision by the CPS not to prosecute, because it is considered not to be in the public interest to do so, will be an important factor in in deciding whether to grant relief.
- In cases involving suicide pacts, the appropriate approach under the 1982 Act is likely to be to give full relief against forfeiture unless there is evidence of serious culpability.
Mark Pawlowski is a barrister and professor of property law, School of Law, University of Greenwich