(instructed by Messrs Hart Reade, Eastbourne, East
appeared on behalf of the Appellant/Defendant.
(instructed by Messrs Mendelsons, Manchester) appeared on behalf of the
- - - - - -
U D G M E N T
approved by the Court
is the first case in which the Court of Appeal has had to consider the effect
of the forfeiture rule and the impact of the Forfeiture Act 1982 (the 1982 Act)
on the right of a survivor of a suicide pact to acquire benefits in consequence
of the death of the other party to the pact.
questions arise for decision:-
the criminal offence of aiding and abetting the suicide of another committed by
the survivor, contrary to Section 2(1) of the Suicide Act 1961 (the 1961 Act) ?
the forfeiture rule apply to preclude the survivor from acquiring:-
beneficial ownership of a house previously held by the survivor and the
deceased on trust for themselves as beneficial joint tenants; and
proceeds of an insurance policy on the life of the deceased written for the
benefit of the survivor?
the Judge properly exercise his discretion under Section 2 of the 1982 Act to
modify the effect of the forfeiture rule in making an order limited to the
deceased's interest in the house and not including the life policy proceeds:
and, if not, how should that discretion have been exercised?
cold dry summary of the legal issues does not mean that the court is
insensitive to the tragic human aspects of the horrible events that happened on
the 24 and 25 of February 1991 to two young lovers and their families. It is a
matter of regret that, distressing though it may be, this appeal cannot be
determined without discussion and description of the detail of those dreadful
October 1987 Nanette Plant (Miss Plant) and Tony Dunbar (Mr Dunbar) met and
fell in love. They were both in their early twenties. At the end of 1987 they
moved into a flat above the Fairholme Restaurant in Preston operated by Miss
Plant's employer, First Leisure Corporation Ltd. Miss Plant went to work as a
Unit Administration Controller at First Leisure's Savoy Hotel in Blackpool.
When the couple first met Mr Dunbar was working as a porter. He later had a
job in an advertising agency, until he was made redundant. He then became a
self employed technical illustrator.
October 1988 they bought a house at 26 Staining Avenue, Ashton in Preston (the
house) in joint names with the assistance of a mortgage from the Newcastle
got engaged at Christmas 1989 and planned to marry on 10 August 1991. In
January 1991 things started to go seriously wrong. Miss Plant fell under
suspicion of false accounting and theft from First Leisure. On Friday 22
February 1991 she was called into the Savoy Hotel, questioned, accused of fraud
and theft and threatened with imprisonment. She was questioned by hotel staff
for 4 hours on Saturday 23 February and was again threatened with imprisonment.
that Saturday and on Sunday 24 February Miss Plant and Mr Dunbar discussed
their fears about the future. They thought that Miss Plant might be prosecuted
and sent to prison. They did not tell the rest of the family about their
problems. Late on the afternoon of 24 February Mr Dunbar talked to a
representative of First Leisure, who said that Miss Plant would be arrested the
next day. In the evening Miss Plant told Mr Dunbar that she had decided to
take her own life. His reaction was that he could not face life without her.
If she was going to end her life, he would take his too. They agreed to commit
Miss Plant's own words-
Tony and I discussed the position. The idea came to me of committing suicide.
The idea was mine, but for me only. I never once said, or suggested or
demanded that Tony should take his life. After that I had said that I was
scared of living, Tony replied that he was scared of dying. I said I had
nothing to live for and I was bound to go to prison. I told Tony that he would
be alright (meaning that he would not go to prison). Tony then asked me how I
would do it, and I said something like " the quickest and easiest way."
this point, Tony suggested that we used the car, because we would be able to
curl up and die in each others arms. We wanted to be together for ever. After
we had made the decision, it was not again discussed between us, except how we
would carry it out. After that Tony organised everything."
the evening of the 24 February they made their first suicide attempt. They
both left notes before driving into the country. They parked their car in a
field. Mr Dunbar attached a hose pipe which he had borrowed from neighbours to
the car exhaust and brought it through the driver's window of the car. They
then both sat in the back of the car for 3 hours with the engine running.
Although they suffered ill effects, the consequences of the attempt were not
fatal. They drove home.
events of the following day are described in Miss Plant's witness statement-
We woke about 8 am. We both believed that if I left the house that day we
would never see each other again. We decided to try again. Tony suggested
that because the car plan had not worked we should try something quick. I
suggested hanging. Tony went to the shed outside to see what he had got. He
found some wire, some cable. We went up into the loft. Tony rigged it all up.
I went up into the loft with him. The phone rang a couple of times but we
ignored it, the door bell rang. It was about 9 am. It was someone who had
called to collect work from Tony and Tony went down and gave him the work. I
waited in the loft. When he came back he tied the wire round my neck. We told
each other how much we loved each other, to wait for each other. Then he tied
the wire around his neck. We counted to three and jumped. We were each
standing on a ladder and we jumped at the same time. The wire snapped.
then suggested that we used bed sheets. He went down and got them. Tony then
tied them up. He first tied a sheet round my neck. I was scared that it would
not be tight enough. He hugged me and told me how much he loved me. I told him
the same. When he had done that, he did his own. We told each other again
that we loved each other and to wait for each other. We counted to three and
we both jumped. I just felt as if I had woken up and someone was holding me.
Then my noose was loose and became undone. I went over to Tony to try and get
him down. I climbed up onto the ladder to feel his pulse. I could feel no
pulse. I then fell through the floor, through the ceiling of the bedroom below.
My legs went through the plaster. I got up and again tried to get him down,
thinking he might be alive. Then the ladder went through the floor. I realised
that he was dead".
Plant then made further attempts to finish her life by cutting her throat and
wrists with a kitchen knife and jumping out of the back bedroom window. The
Judge described the injuries to Miss Plant's neck and her wrists as horrific.
Dunbar was 24 at the date of his death. He was survived by his parents. His
father, Mr John Dunbar (the father), is the Plaintiff in these proceedings. On
8 May 1991 Letters of Administration to the estate of Mr Dunbar, who died
intestate, were granted to the father out of the Liverpool District Probate
Registry. He started proceedings against Miss Plant to determine the legal
position about the ownership of the house, of various building society and bank
accounts and of 2 insurance policies, one with General Accident Life Assurance
Limited which was charged to the Building Society and the proceeds of which
were used after Mr Dunbar's death to pay off the mortgage on the house; and the
other with Allied Dunbar Assurance Plc. That policy was taken out on Mr
Dunbar's life and was written for the benefit of Miss Plant. The policy
matured on Mr Dunbar's death. It realised the sum which, together with
interest, now amounts to £31,801. Pending the resolution of the dispute
the proceeds have been placed in a joint deposit account. There was no dispute
in the court below and no point was taken in this court challenging the
entitlement of Miss Plant (apart from the possible operation of the forfeiture
rule and the provisions of the 1982 Act) to the insurance monies.
house has been sold for £35,000. It is not in dispute that the forfeiture
rule, unless modified under the 1982 Act, applied to effect a severance of the
beneficial joint tenancy in the house and that Miss Plant was therefore
entitled to an equal half share in the proceeds as tenant in common. (This
concession was correctly made: See
 Ch 85 at 100 F-H). There is no dispute about the use of the proceeds of
the General Accident Policy to pay off the mortgage for the benefit of both
Miss Plant and Mr Dunbar's estate (cf
 Ch 110). Miss Plant was accordingly paid just over £17,000 for her
half share. Almost all of that has gone in satisfaction of a default judgment
obtained against her in proceedings by First Leisure to recover misappropriated
funds. In later criminal proceedings Miss Plant pleaded guilty to charges of
false accounting. On 8 May 1992 she received a suspended prison sentence of 9
case was heard by His Honour Judge Howarth, sitting as a Judge of the High
Court in Manchester, on 19 September 1995. The case for the father was that
the couple had made a suicide pact, as a result of which his son was killed;
that Miss Plant had unlawfully aided and abetted his son's death; and that it
would offend public policy for Miss Plant to acquire a benefit in consequence
of committing that offence.
Plant's case was that she was not a party to an unlawful act; that the
forfeiture rule did not apply in the circumstances to preclude her from taking
the entire beneficial interest in the house by survivorship; and that if,
contrary to her primary case, the forfeiture rule did apply, the court should
exercise its discretion to make a modification under the 1982 Act, so as to
allow her to take the joint property and the Allied Dunbar insurance monies.
The Judge gave an ex tempore judgment in which he clearly and carefully set out
his findings of fact and his conclusions on the legal issues. He made an order
in these terms-
1. That, save as hereinafter provided, the forfeiture rule has precluded the
defendant from acquiring any beneficial interest in property which (apart from
the forfeiture rule) the defendant would have acquired whether by way of
survivorship or otherwise in consequence of the death of the above named Tony
to the provisions of Section 2 of the Forfeiture Act 1982 this court does
modify the effect of the forfeiture rule so that the same shall not apply
either to the proceeds of the General Accident Policy upon the life of the said
Tony Dunbar deceased which was charged in favour of the Newcastle Building
Society or to the estate share and interest of the said Tony Dunbar of and in
the dwelling house premises known as 26 Staining Avenue Preston and the net
Notice of Appeal dated 8 January 1996 Miss Plant appealed against that order.
She also appealed against the costs order which has the practical effect of
depriving her of any benefit under the modification order. Both sides were
legally aided and an order for taxation of their costs under the Legal Aid Act1988 was made. The Judge decided that there should be no order as to costs down
to and including 9 June 1994, but that the costs of the father incurred from
and after 10 June 1994 should be taxed on the standard basis, in default of
agreement, and charged on the estate, share and interest of Mr Dunbar in the
house and the net proceeds of sale and should be deducted from that share in
Judge's reasons for that order can be summarised as follows:
and abetting point
He was satisfied,on applying the civil burden of proof, that Miss Plant had
committed an offence in relation to Mr Dunbar's death, namely that of aiding,
abetting, counselling or procuring his suicide contrary to Section 2(1) of the
1961 Act. There is no challenge on this appeal to the Judge's application of
the civil burden of proof. There is, however, an appeal from his conclusion
that, although no criminal proceedings had been against her, she was guilty of
a criminal offence. He said-
seems to be inescapable that on her own evidence - which I have heard and which
I have read in her witness statement - that Miss Plant must have committed an
offence under Section 2 of the Suicide Act ."
the passage immediately preceding that conclusion the Judge stated that the
parties had made a suicide pact and that-
Miss Plant formed the intention of committing suicide wholly and independently
of Tony, but from the moment she told Tony of it and he had given a fairly
instantaneous reply that if she was going to do that then he was going to do
the same, it seems to be inevitable that both of them had from that point a
common intention, a common agreement, that they would each end their own lives
simultaneously if they could achieve that. It was suicide pact, in my
judgment, and whilst there was no counselling or procuring of the suicide of
Tony Dunbar, to sit with him on the back seat of the car for 3 hours with
carbon monoxide coming into the car, each of them holding each others hands and
hoping to die in each others arms, there is an aiding and abetting there. To
go up into the roof space of a house or to climb up a ladder with a noose
around your neck, and to jointly count to "1,2,3" and then both jump, is giving
a clearest, it seems to me, instance of aiding and abetting suicide of another
that it is possible to have. To do it a second time merely reinforces that."
a helpful review of the authorities the Judge concluded that the forfeiture
rule applied, as Miss Plant had committed a criminal offence which was
deliberate, intentional and involved unlawful violence. The Judge said-
[Mr Dunbar] was guilty of aiding and abetting her attempt to commit suicide and
she was guilty of aiding and abetting his successful attempt to commit suicide
- the commission of it itself. In that way each by aiding and abetting is
aiding and abetting the other to commit deliberate and intentional and, so far
as the aider and abetter is concerned, unlawful violence. But it seems to me
the broadest principle which is stated in the case of
by Sir Samuel Evans is the right principle to apply anyway - that no person can
obtain or enforce any rights resulting to him (or her in this case) from her
own crime. It seems to me that the forfeiture rule does apply in regard to
considering the relevant provisions of the 1982 Act and deciding that Mr
Dunbar's half share in the house and in the proceeds of sale of the house and
the proceeds of the life policy with Allied Dunbar were "interests in property"
covered by the Act, the Judge identified the issue which he had to decide. He
have to, seems to me, then decide whether or not it is right that the
forfeiture rule in this case should apply with the full severity or otherwise
to Miss Plant. There is very little authority at all as to how this discretion
should be exercised and if one looks through the matter one sees a number of
referring to two cases in which the exercise of the discretion had been
(Supra) and in the Court of Appeal at  Ch 180 and
 FLR 441) the Judge concluded that he had-
doubt at all that it is right in the circumstances of this case to make an
order under Section 2 of the Forfeiture Act 1982. If one could bring Tony
Dunbar back to life and ask him what he would want to happen in these
circumstances to the money, I have little doubt in my mind that he would say
that his intended wife should have it. But I do not necessarily think that is
the only consideration. Miss Plant as I say has no assets as a result of the
sale of the house; it has all gone to a judgment creditor. On the other hand,
she has already had approximately £17,000 from the sale of the house.
Tony Dunbar's parents have had nothing and if the forfeiture rule were to be
applied in full they would take everything. Is it right in these circumstances
for me to exclude them entirely from the unwelcome windfall brought about by
Tony's sudden death ? I do not think it is."
Judge then stated that-
to do justice between the parties"
would be right to make the order which he proposed.
Aiding and Abetting Point
the 1961 Act abrogated the rule of law whereby it was a crime for a person to
commit suicide (Section 1), it preserved criminal liability for complicity in
the suicide of another. Section 2 provides-
person whose aids, abets, counsels or procures the suicide of another, or an
attempt of another to commit suicide, shall be liable on conviction of
indictment to imprisonment to a term not exceeding 14 years."
section also makes amendments, by reference to the 1st Schedule to the Act, to
provisions in the Homicide Act 1957 preserving the offence of manslaughter in
relation to a person who, in pursuance of a suicide pact, kills another or is
party to that other person being killed by a third person (Section 4, 1957 Act,
2(4) provides that no proceedings for an offence under Section 2 shall be
instituted except by or with the consent of the Director of Public
Prosecutions. No proceedings were instituted in this case.
Thomas, on behalf of Miss Plant, submitted that the Judge was wrong to find
that Miss Plant had committed a criminal offence, contrary to Section 2(1) of
the 1961 Act. His argument was that Mr Dunbar's death resulted from a course
of action agreed upon by him and Miss Plant. He had made the arrangements for
the first attempt by suggesting the car as a means of committing suicide and by
obtaining the hose pipe. In the later attempts he obtained the electric cable
wire and tied the bed sheets into nooses. Mr Thomas also referred to extracts
from the witness statements already quoted. In those circumstances it was
submitted that this was not a case of either of them aiding or abetting the
my judgment, the Judge applied the right burden of proof and was correct in his
conclusion on this point. They had agreed to commit suicide. They made three
attempts. Miss Plant participated in each of those attempts. There can be no
doubt about her criminal complicity in Mr Dunbar's suicide. I would dismiss
the appeal on this ground.
ground of appeal raises a more substantial point. Does the forfeiture rule
apply to the case of a survivor of a suicide pact who has committed the offence
of aiding and abetting the death of the other party to the pact? The answer
proposed by Mr Thomas to this question is that it depends on the circumstances
and that, on a proper formulation and application of the forfeiture rule, the
circumstances of this case do not fall within the rule. He argued that,
according to recent authorities, the rule only applies where the offender is
"guilty of deliberate, intentional and unlawful violence, or threats of
 2 QB 626 at 640 E, as approved by the Court of Appeal  2 QB 554 at
568H and 569A-B and 581). On the facts of this case Miss Plant was not guilty
of deliberate, intentional and unlawful violence or threats of violence. Mr
Dunbar had killed himself. Miss Plant had not used any deliberate or
intentional violence or threat of violence against him.
Thomas submitted that the Judge had simply based his decision on his finding
that Miss Plant had committed the criminal offence of aiding and abetting
suicide.He had then applied what he had erroneously regarded as a definitive
statement of the legal principle that "a person cannot obtain or enforce rights
resulting to him from his own crime." The application of that principle
ignored later cases which held that a person might commit a crime, such as
manslaughter, but by reason of the circumstances (for example, diminished
responsibility) not be subject to the forfeiture rule precluding him or her
from taking a benefit in consequence of the death of the victim.
support of his submission Mr Thomas cited the relevant authorities starting
with the well known statement of principle by Fry LJ in
-v- Mutual Reserve Fund Life Association
 1 QB 147 at 156. The executors of the deceased, who had been murdered
by his wife, raised an objection to her maintaining action on a trust created
by an insurance policy in her favour under the Married Women's Property Act1882, Section 11. The executors' case was that "it is against public policy to
allow a criminal to claim any benefit by virtue of his crime."
principle of public policy invoked is in my opinion rightly asserted. It
appears to me that no system of jurisprudence can with reason include amongst
the rights which it enforces rights directly resulting to the person asserting
them from the crime of that person. If no action can arise from fraud it seems
impossible to suppose that it can arise from felony or misdemeanour.......
This principle of public policy, like all such principles, must be applied to
all cases to which it can be applied without reference to the particular
character of the right asserted or the form of its assertion."
is important to note that this is a statement of a principle of public policy,
the application of which may produce unfair consequences in some cases: it is
not a statement of a principle of justice designed to produce a fair result in
all cases (See the observations of Lord Goff on the principle of "in pari
 1 AC 340 at 355B). (This principle of public policy is different
from,for example, the equitable maxim that "he comes to equity must come with
clean hands",which is is a principle of justice designed to prevent those
guilty of serious misconduct from securing a discretionary remedy, such as an
observed in Goff and Jones Law of Restitution (4th Edition) at page 703 the
principle of public policy which prevents a criminal from becoming the
beneficiary of his own crime is imprecise and "has not been easy to apply".
The common law principle has been recognised by statute, but it has not been
enacted.The delimitation of its scope is a matter for judicial determination.
Thus, Section 1 of the 1982 Act refers to the "forfeiture rule" in these terms-
In this Act, the "Forfeiture rule" means the rule of public policy which in
certain circumstances precludes a person who has unlawfully killed another from
acquiring a benefit in consequence of the killing.
References in this Act to a person who has unlawfully killed another include a
reference to a person who has unlawfully aided, abetted, counselled or procured
the death of that other person and references in this Act to unlawful killing
shall be interpreted accordingly".
order to ascertain the "certain circumstances" in which the rule of public
policy applies, it is necessary to examine the cases cited by Mr Thomas, on
behalf of Miss Plant, and by Mr Crichton-Gold, on behalf of the father.
the leading English cases were discussed. It is unnecessary to review them on
a case by case basis or to quote extensively from them. A summary of the
salient points, which can be derived from the following authorities, will
the Estate of Cunigunda Crippen deceased
the Estate of Julian Bernard Hall deceased
 Ch 554;
-v- Chief National Insurance Commissioner Ex Parte Connor
 1 QB 758;
 1FLR 441 and
 1WLR 325.
following propositions relating to the scope of the principle enunciated by Fry
(supra) and recognised by Section 1 of the 1982 Act may be stated-
rule applies to a case where the benefit results from the commission of murder
by the intended beneficiary. Dr H.H. Crippen notoriously survived his wife.
Between the date of his conviction for her murder and the carrying out of the
death sentence passed on him, Dr Crippen made a will naming Ethel Le Neve as
the sole executrix and universal beneficiary. Not surprisingly Ethel Le Neve
was passed over on a motion for the grant of an administration to Mrs Crippen's
intestate estate. In holding that there were special circumstances justifying
this course Sir Samuel Evans the President, said-
is clear that the law is that no person can obtain, or enforce any right
resulting to him from his own crime; neither can his representative, claiming
under him, obtain or enforce any such right."
(supra) at page 112.
principle is not confined to murder cases, as was made clear by the Court of
Appeal in the case of
(Supra) at pages 6,7 and 8. The court unanimously rejected the contention that
a distinction should be drawn between cases of murder and manslaughter. Lord
Cozens-Hardy MR said at page 6 that he entirely failed to appreciate the
was a case of felony and I see no reason to draw a distinction between murder
and manslaughter in a case like this".
LJ said at page 7 that the principle could only be expressed in a wide form:
is that a man shall not slay his benefactor and thereby take his bounty; and I
cannot understand why a distinction should be drawn between the rule of public
policy where the criminality consists in murder and the rule where the
criminality consists in manslaughter........ the distinction seems to me either
to rely unduly on legal classification or else to encourage what, I am sure,
be very noxious - a sentimental speculation as to the motives and degree of
moral guilt of a person who has been justly convicted and sent to prison."
Later cases have held that the forfeiture rule does not apply to all cases of
manslaughter, any more than it applies to all other crimes regardless of their
nature. It was held by the Divisional Court in
(Supra) at 765 F and 766 B that what matters, in deciding whether the
forfeiture rule applies, is the nature and not the name of the crime.
(Supra) has been treated as introducing an important qualification to the
forfeiture principle, even though that case itself was one of an indemnity
claim under an insurance policy in relation to a crime and not an instance of
the forfeiture rule. In
in the Court of Appeal Salmon LJ stated at page 581-
is a crime which varies infinitely in its seriousness. It may come very near
to murder or amount to little more than inadvertence."
Court of Appeal approved the approach of Geoffrey Lane J at first instance to
the rule of public policy when he said at page 640 D-E-
to confine the operation of public policy to cases where there was an actual
intent to kill would be to exclude many cases of actual murder: that is to say
those cases where the killing was done with intent to do grievous bodily harm,
but not to kill. It would further include some cases of manslaughter, for
example, manslaughter where the killing was done intentionally but under the
stress of provocation, or killing in pursuance of a suicide pact. The logical
test, in my judgment, is whether the person seeking the indemnity was guilty of
deliberate, intentional and unlawful violence or threats of violence. If he
was, and death resulted therefrom, then, however unintended the final death of
the victim may have been, the court should not entertain a claim for indemnity."
passage was specifically approved by Lord Denning MR in the Court of Appeal at
page 568 H to 569 A.
is strongly relied upon by Mr Thomas in support of his submissions.
cases on the application of the forfeiture rule to manslaughter by the intended
beneficiary follow this approach. In
(Supra) Vinelott J held that the forfeiture rule applied in a case where death
was not brought about intentionally, but was the unfortunate consequence of
deliberate threats of violence with a loaded gun. At page 98 Vinelott J
applied the forfeiture rule and added at 98 F-
court cannot go further and evaluate the degree of moral culpability to be
attributed to her conduct in order to say whether the forfeiture rule applies
proceeded to consider the 1982 Act and to make a modification order which was
upheld in the Court of Appeal. The same approach was followed in other
manslaughter cases: in
(Supra), in which
was not cited, and in
(Supra) where it was conceded that " such was the deliberate nature of his
violent attack on his wife that the forfeiture rule of public policy applies so
as to disentitle the plaintiff from any benefit he would otherwise take as a
result of his crime." (p.237 G)
cases are to be compared with
(Supra) where the forfeiture rule was not applied to a manslaughter case in
which the offender, by reason of diminished responsibility, was held to have
had no responsibility at all for the death. After a comprehensive review of
the authorities Peter Gibson J posed the question at page 447 C "Was Mr H
guilty of deliberate, intentional and unlawful violence or threats of
violence?" He answered the question in the negative holding that the offender
was "not responsible for his acts which were not deliberate or intentional."
In those "highly unusual circumstances" the Judge held that, on the
test, the forfeiture rule had no application. The critical question is
therefore what is the scope of the
rule? Is it necessary, as Mr Thomas asserts, for the acts of the offender to
be not only deliberate and intentional but also to be accompanied by violence
or threats of violence ? All of the cases since
repeat the reference to acts or threats of violence. The Judge in this case
interpreted the formulation of the rule as requiring him to address the
question of violence, which he found to be present.
my judgment, however, the presence of acts or threats of violence is not
necessary for the application of the forfeiture rule. It is sufficient that a
serious crime has been committed deliberately and intentionally. The
references to acts or threats of violence in the cases are explicable by the
facts of those cases. But in none of those cases were the courts legislating a
principle couched in specific statutory language. The essence of the principle
of public policy is that (a) no person shall take a benefit resulting from a
crime committed by him or her resulting in the death of the victim and (b) the
nature of the crime determines the application of the principle. On that view
the important point is that the crime that had fatal consequences was committed
with a guilty mind (deliberately and intentionally). The particular means used
to commit the crime (whether violent or non-violent) are not a necessary
ingredient of the rule. There may be cases in which violence has been used
deliberately without an intention to bring about the unlawful fatal
consequences. Those cases will attract the application of the forfeiture rule.
It does not follow, however, that when death has been brought about by a
deliberate and intentional, but non-violent, act (eg poison or gas), the rule
is inapplicable. In
 OR 415 Kingstone J in the High Court of Ontario applied the forfeiture
rule to the survivor of a suicide pact in which both husband and wife drank
arsenical poison. The wife died. The husband survived and it was held that he
was not entitled to any share in his deceased wife's estate, as he was guilty
of aiding and abetting, counselling and procuring his wife's suicide.
rule was applied because no-one can benefit from his own wrong. It was
irrelevant that the husband, who was an accessory to his wife's suicide, did
not commit the offence with the intention or motive of benefitting from her
Trustee Company Ltd -v- Freedom from Hunger Campaign
 25 NSWLR which was rightly disapproved by the Court of Appeal in New
South Wales in
 33 NSWLR 1. As Meagher JA pointed out at p.299 the rule does not rest
on "a disapproval of greed" : "The basis of the doctrine is public policy, an
abhorrence of the notions that one may profit from killing another, an odium
occisionis. It is absolute and inflexible". See also Mahoney JA at p. 294-297
cf. Kirby P. who favoured a reformulation of the rule on a more flexible
equitable basis. In my judgment, English Law does not allow that approach,
save under the 1982 Act.
those reasons I would reject Mr Thomas's submission and hold that the Judge
correctly held this to be a case to which the forfeiture rule applies, although
Miss Plant did not use violence or threats of violence towards Mr Dunbar.
Order and Discretion under the 1982 Act
as the Judge held, the forfeiture rule applies to this case, the third, final
and most difficult question is whether the Judge erroneously exercised his
discretion under the 1982 Act in the making of the modification order. There
is no challenge by Mr Dunbar by way of cross appeal to the decision of the
Judge that it was right in the circumstances to make an order under Section 2
of the Act. The point of difference on this appeal by Miss Plant is whether it
was a proper exercise of that discretion for the Judge to limit his
modification order to the half interest in the house and to refuse to extend
its scope to the entirety of the proceeds of the Allied Dunbar Life Policy.
is common ground.
virtue of Section 2(1) of the 1982 Act the Judge had a discretion to make an
order modifying the effect of the forfeiture rule in a case where that rule had
precluded "the offender" (Miss Plant), who had unlawfully aided and abetted the
death of Mr Dunbar, from acquiring any interest in the property mentioned in
discretion is a wide one circumscribed only by sub-section (2) which provides-
court shall not make an order under this section modifying the effect of the
forfeiture rule in any case unless it is satisfied that, having regard to the
conduct of the offender and of the deceased and to such other circumstances as
appear to the court to be material, the justice of the case requires the effect
of the rule to be so modified in that case."
is accepted by Mr Crichton-Gold, for the father, that both the house and the
Allied Dunbar policy were, before the death of Mr Dunbar, held on trust for
Miss Plant and are interests in property within the meaning of Section 2(4)(b)
and sub-section (8) under which "property" includes any chose in action or
incorporeal or movable property.
argument on this appeal has focused on the manner in which the Judge exercised
his discretion on the scope of the modification order and on the reasons, or
rather the lack of reasons, given by the Judge in the passage already quoted,
for making a modification order limited to the house. Mr Thomas submitted that
the Judge had taken a wrong approach to his exercise of discretion and had
failed to give any relevant reasons for his order. He wrongly regarded himself
as involved in an exercise of "trying to do
between the parties
instead of deciding whether, in all the circumstances, it was a proper case for
relieving Miss Plant of all the consequences of applying the forfeiture rule.
He had failed to have regard to factors relevant to the exercise of his
discretion. In particular, he had not taken account of the fact that Mr Dunbar
had killed himself in furtherance of a course of action on which both of them
had agreed. He had not been killed by Miss Plant. She had not used or
threatened to use any violence or coercion against him. She had not urged or
persuaded him to kill himself. There was no intention that he should die and
that she should survive. Further, as the Judge himself recognised in deciding
that it was right to make an order of some kind under Section 2, Mr Dunbar, if
asked what he would want to happen to his money, would no doubt have said that
Miss Plant, as his intended wife, should have it. The Judge had wrongly taken
into account the fact that Mr Dunbar's parents had had nothing from their son's
estate and that, if the forfeiture rule were applied without modification, they
would be entitled to everything. The Judge wrongly asked himself whether it
was right in the circumstances to exclude them entirely from their son's estate.
this, Mr Crichton-Gold argued that the Judge had a wide discretion which he had
exercised for the reasons given by him and that this court should not
interfere, since it had not been demonstrated that he misinterpreted the
relevant statutory provisions of the 1982 Act or that he erred in principle or
that he reached a conclusion which was plainly wrong. He relied on the
decision of the Court of Appeal in
(Supra), which dismissed the appeal against the exercise of discretion by
Vinelott J at first instance. After hearing a detailed argument as to why the
Judge had not properly exercised his discretion in making a modification order
which applied to all the interest accruing to a widow on the death of her
husband, Griffiths LJ concluded at page 196 D-
discretion given to the Judge by section 2(2) is couched in the widest
language. I, too, would like to pay tribute to the great care and lucidity with
which the Judge reviewed all the material circumstances in this case. I have
not been persuaded that any grounds have been demonstrated which would justify
this court in interfering with the exercise of his discretion."
same conclusion was reached by Ackner and Browne-Wilkinson LJJ.
cited three reported cases on the exercise of discretion under the 1982 Act:
is apparent from those cases, as it is from the language of Section 2(2)
itself, that the relevant question for the court is: does "the justice of the
case require" that the effect of the forfeiture rule be modified? In my view,
the Judge erroneously regarded himself as under a duty to try and do "
between the parties"
That is not the approach required by Section 2(2). The provision requires that
the Judge should look at the case in the round,pay regard to all the material
circumstances, including the conduct of the offender and the deceased, and then
ask whether "the justice of the case requires" a modification of the effect of
the forfeiture rule. Having taken the wrong approach, the Judge failed, in my
view, to give consideration in his reasons to all the factors material to the
exercise of his discretion. In those circumstances it is open to this Court to
exercise the discretion afresh on the basis of the relevant material. On doing
that, I have in fact reached the same conclusion as the Judge on the limited
scope of the modification order. It is difficult to draw the line with
confidence. The point at which the Judge drew it is not obviously wrong. The
court is entitled to take into account a whole range of circumstances relevant
to the discretion, quite apart from the conduct of the offender and the
deceased: the relationship between them; the degree of moral culpability for
what has happened; the nature and gravity of the offence; the intentions of the
deceased; the size of the estate and the value of the property in dispute; the
financial position of the offender, and the moral claims and wishes of those
who would be entitled to take the property on the application of the forfeiture
rule. On consideration of all those circumstances I conclude that the appeal
should be dismissed on this point for these reasons:-
starting point is the application of the forfeiture rule as a rule of public
policy, without regard to whether the consequences flowing from the application
of the rule are just or unjust. The discretion introduced by section 2 is
intended to be exercised to modify the consequences of the application of the
rule and to produce a result which the justice of the case requires.
of the material circumstances is that the conduct of Miss Plant was unlawful.
She committed a criminal offence which resulted in death. It is difficult to
adjudicate on the relative moral culpability of her and Mr Dunbar. Mr
Crichton-Gold submitted that she was more morally culpable since it was she who
first brought up the question of suicide, leading Mr Dunbar to enter into the
pact under which they would both commit suicide. I see the force of that
point, but the pact which they made and the relationship between them was such
that I find it impossible to adjudicate on the issue of relative
intention of Mr Dunbar was rightly regarded by the Judge as material. Joint
beneficial ownership of the house and the fact that the life policy was written
for the benefit of Miss Plant, show that his intention was that she, rather
than anyone else, should have that property on his death. The intention factor
is not, however, determinative of the justice of the case, which must take
account of the circumstances in which that intention takes effect. Miss Plant
was criminally implicated in the death which attracts the application of the
forfeiture rule and gives rise to the discretion to redirect the destination of
the property. Mr Dunbar's intentions must be considered in that context.
wishes of the father and family of Mr Dunbar are material and should be given
weight.It is significant that in the case of the modification orders in the
three cases -
A, Re H
those who were otherwise entitled to receive property on the application of the
forfeiture rule did not oppose the making of the modification order. Mr
Dunbar's father does oppose it.It is not unreasonable for him to oppose the
claim by Miss Plant that an order should be made entitling her to the whole of
the house and insurance monies. Mr Dunbar's father and family were naturally
distressed by what happened.The court is entitled have regard to their wishes.
Miss Plant should have regard to them. They have a legitimate interest in a
decision on the scope of the modification order. Justice requires due weight to
be given to their wishes.
paucity of the evidential material makes it impossible to reach any firm
conclusion on other factors which may be relevant, such as the relative
financial position of Miss Plant and Mr Dunbar's family. Having regard to the
matters set out above, the Judge would have been entitled to conclude that the
justice of the case required a modification order in the form in which he made
it, not some other order more generous to Miss Plant.
Miss Plant appealed against the order for costs. The Judge had a discretion on
costs.It cannot be said that he erred in principle or was obviously wrong in
directing that the costs should be borne by Mr Dunbar's share of the house,
which would go to her, in respect of the period after the 10 June 1994 when a
letter was written on behalf of the father offering to settle the matter on a
50/50 division of the property in question. Miss Plant rejected the offer and
contested the case without achieving a more generous order than was proposed in
letter. I would dismiss the appeal against the order for costs, adding that
it is unfortunate that,in a dispute about a modest amount, the costs of
litigation are now such that Miss Plant will derive no benefit from the terms
of the modification order.
facts of this tragic case have been recounted by Mummery L.J. For the reasons
that he has given I agree that Miss Plant committed the criminal offence of
aiding and abetting the suicide of Mr Dunbar, contrary to Section 2(1) of the
Suicide Act 1961. The more difficult questions are whether the commission by
Miss Plant of that offence brought into operation the forfeiture rule and, if
it did, whether the manner in which the Judge exercised the discretion granted
by the Forfeiture Act 1982 is open to attack.
forfeiture rule is defined in the Forfeiture Act as meaning:
rule of public policy which in certain circumstances precludes a person who has
unlawfully killed another from acquiring a benefit in consequence of the
rule as so formulated is an example of a wider principle that a person cannot
benefit from his own criminal act. As Sir James Evans, President, said in
 P.108 at p.112:
is clear that the law is that no person can obtain, or enforce, any rights
resulting to him from his own crime; neither can his representative, claiming
under him, obtain or enforce any such rights. The human mind revolts at the
very idea that any other doctrine could be possible in our system of
is a difference between obtaining rights and enforcing them, and there is scope
for debate as to the extent to which the forfeiture rule differs from the
similar principle that a litigant cannot base a cause of action on his own
wrong. The two principles are frequently confused, and I do not find it
necessary in this judgment to explore the differences between them. The
difficulty of so doing is exemplified by the following passage in the judgment
of Fry L.J. in
v Mutual Reserve Fund Life Association
 1 Q.B. 147 at p.156:
appears to me that no system of jurisprudence can with reason include amongst
the rights which it enforces rights directly resulting to the person asserting
them from the crime of that person. If no action can arise from fraud, it
seems impossible to suppose that it can arise from felony or misdemeanour."
is important is that the neither principle is absolute. It is not every
criminal offence which will bring the principle into play. The issue raised on
this appeal is whether aiding and abetting the suicide of another necessarily
brings the forfeiture rule into operation. That question can be considered in
the context of the rule as formulated in the Forfeiture Act, i.e. in the
context of crimes which consist of unlawfully killing another.
forfeiture rule in relation to unlawful killing is of comparatively recent
(1994) NSWLR 269 at p.278 Kirby P explained the reason for this and made some
comments on the forfeiture rule which I would endorse. Having observed that
common law forfeiture in England finally disappeared with the Forfeiture Act1870, he said:
a time of attainder, forfeiture, and common exaction of the death penalty
following conviction for murder, the niceties of the civil property claims of
the perpetrator of a homicide tended to be given less prominence. The
abolition of criminal forfeiture, the repeal of the civil impediments upon
suing, and the reduction, and final abolition, of the death penalty, have
presented the legal system with new problems affecting property law. The
so-called "forfeiture rule" was one of the solutions devised to fill the gaps
left following the abolition of the old rule.
difficulty was that the new rule was devised by judges to solve the necessities
of particular cases. It developed without a great deal of consideration,
either of its scope, or of its exceptions, or of its fundamental underlying
rationale. The result has been controversy as to the scope, uncertainty about
the exceptions, and confusion as to the rationale.
the forfeiture rule was first applied by the courts any unlawful killing
consisted of one or other of two crimes - murder or manslaughter, and the ambit
of the crime of murder was much wider than it is today. The forfeiture rule
was always applied in a case of murder and, in
v. Royal Insurance
 2 K.B;  A.C. 586 it was applied in a case of suicide. In giving
the decision of the Court of Appeal, Lord Wright explained the reason for the
application of the rule as follows:
when sane is by English law a felony. This has been so from very early times.
The law is thus succinctly stated by Stephen in his Digest of the Criminal Law
(art. 319): "A person who kills himself in a manner which in the case of
another person would amount to murder is guilty of murder, and every person who
aids and abets any person in so killing himself is an accessory before the
fact, or a principal in the second degree in such murder." Hence, where there
has been what is called a suicide pact between two persons and one survives the
survivor is guilty of murder....
being the nature of felo de se by English law, and as the plaintiff, as
personal representative, stands in the shoes of the assured who has committed,
as it were, murder on himself, the present claim is equivalent technically to a
claim brought by a murderer or his representative or assigns on a policy
effected by the murderer on the life of the murdered man. In the latter case
it is, we think clear that neither the murderer nor his estate nor his assigns
could take a benefit under the policy.
v. Knight and Baxter
 P.1 the question appears to have been raised for the first time of
whether the forfeiture rule applied to a person convicted of manslaughter. The
Court of Appeal had no doubt that it did. Cozens-Hardy M.R. observed at p.6,
referring to the case of
is said that that was a case of murder, and not manslaughter. I entirely fail
to appreciate that distinction. It was a case of felony and I see no reason to
draw a distinction between murder and manslaughter in a case like this."
principle can only be expressed in that wide form. It is that a man shall not
slay his benefactor and thereby take his bounty; and I cannot understand why a
distinction should be drawn between the rule of public policy where the
criminality consists in murder and the rule where the criminality consists in
the cases to which I have referred were decided, there have been significant
changes in the law in relation to unlawful killing which reflect the public
appreciation of the different degrees of culpability that attend conduct that
used to be designated as murder. In particular:
Homicide Act 1957 abolished constructive malice.
same Act provided for a conviction of manslaughter rather than murder in the
case of diminished responsibility.
same Act provided for a conviction of manslaughter rather than murder in the
case of provocation.
same Act, by Section 4, made special provision in relation to suicide pacts.
Under this section, the survivor of a suicide pact, who would previously have
been guilty of murder, whether he killed the other party to the pact or merely
aided, abetted, counselled or procured his suicide, became guilty of
Suicide Act 1961 abrogated the rule of law whereby it was a crime to commit
suicide and provided that a person who aids, abets, counsels or procures the
suicide of another commits, not manslaughter, but an indictable offence subject
to a maximum term of imprisonment of 14 years.
change in attitude reflected by the statutory gradation of offences of unlawful
killing and, in particular, the mitigation that was sometimes present in cases
of diminished responsibility or provocation, led to justifiable dissatisfaction
with the application of the forfeiture rule indiscriminately in every case of
unlawful killing. As Kirby P. put it in
search for a rule more flexible than the absolute legal rule stated in
and in subsequent English cases, was soon seen to be necessary because of the
grossly unjust consequences which that rule, in its full rigour, produced, both
for the perpetrator of the homicide, and others taking through that person. In
a word, the absolute rule, whilst apparently defensive of human life, paid no
regard to the virtually infinite variety of circumstances in which a homicide
may occur, and the ameliorative circumstances that may sometimes exist,
especially in a domestic situation.
desire on the part of the courts to avoid the rigour of the forfeiture rule was
first manifest in
v. White Cross Insurance
 3 K.B. 327. The issue in that case was whether a plaintiff, who had
been convicted of manslaughter by reckless driving, was debarred by public
policy from obtaining an indemnity under his insurance policy in respect of his
civil liability. Bailhache held that he was not. He observed at p.331:
the law is not logical, public policy is even less logical, for, by common
consent, these third party indemnity insurances have been treated as valid and
it has proved possible to justify this and other similar decisions in relation
to unlawful killing by the manner of driving a motor vehicle on the ground that
an overriding public policy requires the existence of valid insurance in such
circumstances for the benefit of the family of the victim - see the comment of
Greer L.J. in
 1 K.B.822 at 838.
v. Motor Insurers' Bureau
 2 Q.B. 745 the Court of Appeal was concerned with the question of
whether insurance pursuant to the Road Traffic Act 1960 would provide valid
cover for the benefit of a third party injured by deliberately criminal conduct
on the part of the driver. Diplock L.J. observed at pp.767 and 768:
rule of law on which the major premise is based - ex turpi causa non oritur
actio - is concerned not specifically with the lawfulness of contracts but
generally with the enforcement of rights by the courts, whether or not such
rights arise under contract. All that the rule means is that the courts will
not enforce a right which would otherwise be enforceable if the right arises
out of an act committed by the person asserting the right (or by someone who is
regarded in law as his successor) which is regarded by the court as
sufficiently anti-social to justify the court's refusing to enforce that right.
court's refusal to assert a right, even against the person who has committed
the anti-social act, will depend not only on the nature of the anti-social act
but also on the nature of the right asserted. The court has to weigh the
gravity of the anti-social act and the extent to which it will be encouraged by
enforcing the right sought to be asserted gainst the social harm which will be
caused if the right is not enforced.
 2 Q.B. 626, counsel for the defendant made a submission which may have
been inspired by this passage. Geoffrey Lane J. summarised it as follows at
was urged...that public policy should be applied not upon any broad ground of
principle, but according to the view taken by the court of the degree of
culpability or wickedness of the claimant in any particular case."
that case the defendant had used a shotgun to threaten a man and the gun had
accidentally gone off and killed him. The issue was whether the defendant
could recover in respect of his liability under a policy of insurance. The
Judge held that, on the facts, the defendant had committed manslaughter and
rejected the suggestion that the defendant was not seriously culpable. He also
rejected, however, the submission that culpability was the relevant test. He
difficult it may be, nevertheless one must attempt to find some principle upon
which public policy can be based".
to that principle, the Judge cited the reference of Lord Denning M.R. in
at p.760 to:
broad rule of public policy that no person can claim indemnity or reparation
for his own wilful and culpable crime"
Judge went on to refer to the fact that the death had resulted from:
deliberate and intentional assault and probably also an unlawful battery."
satisfied the following test that the Judge had earlier advanced at p.640:
logical test in my judgment is whether the person seeking the indemnity was
guilty of deliberate, intentional and unlawful violence or threats of violence.
If he was, and death resulted therefrom, then, however unintended the final
death of the victim may have been, the court should not entertain a claim for
test was approved by Lord Denning M.R. when the case reached the Court of
Appeal -  2 Q.B. 554 at 568. Salmon L.J. agreed that the appeal should
be dismissed, but in the course of his judgment said this:
public policy is rightly regarded as an unruly steed which should be cautiously
ridden, I am confident that public policy undoubtedly requires that no one who
threatens unlawful violence with a loaded gun should be allowed to enforce a
claim for indemnity against any liability he may incur as a result of having so
acted. I do not intent to lay down any wider proposition. In particular, I am
not deciding that a man who has committed manslaughter would, in any
circumstances, be prevented from enforcing a contract of indemnity in respect
of any liability he may have incurred for causing death or from inheriting
under a will or upon the intestacy of anyone whom he has killed. Manslaughter
is a crime which varies infinitely in its seriousness. It may come very near
to murder or amount to little more than inadvertence, although in the latter
class of case the jury only rarely convicts.
case  P.1 may seem to be an authority for the proposition that anyone who
has committed manslaughter, in any circumstances, is necessarily under the same
disability as if he had committed murder. The facts however are not stated in
the report and they are of vital importance in order to understand the
decision. They have now been ascertained from the record. A man named Julian
Hall kept a woman named Jeannie Baxter and had made a will in her favour. They
had had many quarrels. He had promised to marry her but had not done so. On
April 13, 1913, she took his revolver and, whilst he was in bed, shot him dead
with four or five shots. She was acquitted of murder but convicted of
manslaughter. It is small wonder that the court held that, on grounds of
public policy, she could not take under Hall's will. The only surprising thing
about the case is that she was acquitted of murder, apparently for no reason -
except, perhaps, that she was defended by Mr. Marshal Hall.
 3K.B. 327 and
 2 K.B. 311, in which it was held that persons convicted of manslaughter
for reckless and drunken driving could nevertheless recover indemnity from
their insurers, were doubted in
 1 K.B. 822 but approved by this court in
v Philip Trant & Sons Ltd,
 1 Q.B. 29. It seems now to be settled law that a motorist can rely on
his policy of insurance to indemnify him in respect of his liability for any
injuries which he has caused otherwise than on purpose:
v Motor Insurers' Bureau
 2 Q.B. 745. These road traffic cases may be sui generis. In any event,
although motor cars have sometimes been called lethal weapons, these cases are
not in my view akin to the cases in which injuries are caused in the course of
unlawfully threatening a man with a loaded gun. Public policy is not static.
Even if the crime of suicide had not been abolished by statute, it may be that
case  A.C. 586 would have been differently decided. In any event,
threatening violence with a loaded gun would, I am sure, now be generally
regarded as much more shocking and necessary to be deterred than what the
unfortunate Major Rowlandson did in
case. I am confident that, in any civilised society, public policy requires
that anyone who inflicts injuries in the course of such an act shall not be
allowed to use the courts of justice for the purpose of enforcing any contract
of indemnity in respect of his liability in damages for causing injury by
L.J., when dealing with public policy, added this at p.587:
any case, however, I am satisfied that on the facts of this case the judge was
right in finding that the defendant Barr was precluded by public policy from
recouping himself from the Prudential against the claim of the plaintiff.
Lord Denning M.R. and Salmon L.J. have said manslaughter varies from conduct
which is almost murder to conduct which is only criminal in the technical
sense. It would be foolish to attempt to lay down any general rule. It is
wiser I think to confine decision to the facts in this case.
these dicta, the full rigour of the rule against forfeiture was applied by
Pennycuick V-C. in
re Giles Decd.
 Ch. 544. In that case a woman had killed her husband, but been
convicted of manslaughter rather than murder on grounds of diminished
responsibility. A hospital order was made under the Mental Health Act 1959.
It was argued that in these circumstances the forfeiture rule should not apply.
The Judge rejected that argument. He said at p.552:
I do not think that I am concerned to analyse the ground upon which the courts
have established the rule of public policy. It is sufficient to say that the
rule has been established and that the deserving of punishment and moral
culpability are not necessary ingredients of the type of crime to which the
rule applies, that is, culpable homicide, murder or manslaughter"
years later, in
 1 Q.B.758 the issue arose before the Divisional Court of whether the
rule against forfeiture applied so as to disentitle an applicant from receiving
a widow's allowance when she had killed her husband with a knife. She had been
held guilty of manslaughter but simply placed on probation. Lord Lane C.J.
referred to the passage of the judgment of Salmon L.J. in
which I have cited above and commented:
would respectfully agree with that dictum, and I would agree that in each case
it is not the label which the law applies to the crime which has been
committed, but the nature of the crime itself which in the end will dictate
whether public policy demands the court to drive the applicant from the seat of
justice. Where that line is to be drawn may be a difficult matter to decide,
but what this court has to determine is whether in the present case what this
applicant did was sufficient to disentitle her to her remedy."
court held that, as the applicant had been found by the jury deliberately to
have stabbed her husband, the rule applied.
is time to pause to take stock. Thus far, apart from the motor cases, there
has been no instance of the court failing to apply the forfeiture rule to a
case of unlawful killing. So far as the rule is concerned, it is hard to see
any logical basis for not applying it to all cases of manslaughter. Lord
Denning himself remarked in
at 568 :
manslaughter of every kind there must be a guilty mind. Without it the accused
must be acquitted"
the crime of manslaughter, the actus reus is causing the death of another.
That actus reus is rendered criminal if it occurs in one of the various
circumstances that are prescribed by law. Anyone guilty of manslaughter has,
ex hypothesi, caused the death of another by criminal conduct. It is in such
circumstances that the rule against forfeiture applies.
the harshness of applying the forfeiture rule inflexibly to all classes of
manslaughter in all circumstances is such that I do not consider that, absent
the statutory intervention which occurred, the rule could have survived
unvaried to the present day. The "obiter dicta" of Salmon L.J. and Phillimore
and Lord Lane C.J. in
were straws in the wind. The rule is a judge made rule to give effect to what
was perceived as public policy at the time of its formulation. I believe that,
but for the intervention of the legislature, the judges would themselves have
modified the rule. Furthermore, it seems to me that the only logical way of
modifying the rule would have been to have declined to apply it where the facts
of the crime involved such a low degree of culpability, or such a high degree
of mitigation, that the sanction of forfeiture, far from giving effect to the
public interest, would have been contrary to it. Alternative suggestions that
the rule should be restricted to cases of deliberate killing, or deliberate
violence leading to death, do not cater for cases of diminished responsibility
or provocation, where the mitigating features may be such as to render it
particularly harsh to apply the forfeiture rule.
pressure for judicial intervention of the type contemplated was removed by the
Forfeiture Act. The manner of operation of the provisions of the Act and, in
particular, of Section 2(5), was considered by Vinelott J. in
 1 Ch. 85. In that case a wife had used a loaded shotgun to deter a
brutal husband from violence. The gun had accidentally gone off and killed
him. The issue was whether she could recover under his will. Vinelott J.,
following the approach in
held that the rule against forfeiture applied, but that, in the circumstances
of the case, he would modify the effect of the rule so as to relieve her of its
consequences altogether. As to his power to do this in the light of the
provisions of Section 2(5), he said:
construed paragraph (a) gives the court power to modify the effect of the
forfeiture rule where more than one interest in property is affected by it in
respect of some but not all those interests; and under paragraph (b) in
relation to any given interest in property the court can modify the rule in
respect of part of it. So it is said the court cannot relieve the applicant
from the consequence of the rule altogether. The most the court can do is to
relieve against the operation of the rule if there is more than one interest in
property in respect of all the interests except one (under paragraph (a)); and
then under paragraph (b) relieve against the operation of the rule in respect
of a part, however large, of the remaining interest (or the only interest if
there is only one). The court, like the donee of a non-exclusive power of
appointment before the passing of the Illusory Appointments Act 1830 (11 Geo. 4
& 1 Will. 4, c.46) and before the absurdities created by that At were cured
in 1874 by the Act of 37 & 38 Vict. C.37, can cut off the person entitled
by the operation of the forfeiture rule with a shilling but cannot cut him off
altogether. I cannot believe that the framers of this Act intended a result as
bizarre as that. The answer to this submission in my judgment is that
subsection (4) is intended to enlarge the power conferred by subsection (1) by
making it clear that the court is not bound either to relieve against the
operation of the forfeiture rule altogether or not to relieve against the
operation of the rule at all. The draftsman assumed that subsection (1) alone
conferred power to relieve an applicant from the operation of the rule in
respect of the entirety of all interests affected by the rule. Subsection (5)
then in effect enlarges the court's powers.
Court of Appeal upheld his decision, although the challenge was to the exercise
of his discretion, rather than to his construction of the sub-section - 
1 Ch. 180.
Vinelott J. demonstrated, the Forfeiture Act has given the Court a greater
degree of flexibility than could have been achieved by judicial modification of
the rule. That modification had been foreshadowed but had not taken place when
the Act was passed. I can see no reason now for the court to attempt to modify
the forfeiture rule. The appropriate course where the application of the rule
appears to conflict with the ends of justice is to exercise the powers given by
the Forfeiture Act.
conclusion was not shared by Peter Gibson J. in
 1 WLR 235. In that case the Plaintiff had stabbed his wife to death
when under the illusion, induced by a reaction to an anti-depressant drug, that
she had just committed an act of infidelity. At his trial, a plea to guilty of
manslaughter by reason of diminished responsibility was accepted. A hospital
order was made and the trial judge expressed the view that "there was no
responsibility left at all". Before Peter Gibson J. the issue was whether the
forfeiture rule applied so as to prevent the plaintiff from inheriting from his
wife. The Judge held that it did not, on the basis that the plaintiff had not
acted deliberately or intentionally. With respect to the Judge, I do not see
how this conclusion can be reconciled with the acceptance of the guilty plea.
In my judgment the Judge ought, on the facts of this case, to have held that
the rule applied, but that in the circumstances the plaintiff should be
relieved of its effect under the Forfeiture Act.
and Abetting Suicide
far I have been considering the application of the forfeiture rule in cases of
manslaughter. My reasoning leads, however, to the conclusion that the rule
applies equally to the offence of aiding and abetting suicide contrary to
Section 2 (1) of the Suicide Act. This conclusion seems to have been shared by
those who drafted the Forfeiture Act. Section 1(2) of the Act provides:
in this Act to a person who has unlawfully killed another include a reference
to a person who has unlawfully aided, abetted, counselled or procured the death
of that other person..."
the Act does not apply to the crime of murder, these words can only have been
intended to apply to the crime of aiding, abetting, counselling or procuring
the suicide of another, contrary to the Suicide Act. That offence can be very
serious, as the maximum sentence of fourteen years imprisonment indicates.
When the Act is considered, however, it gives clear indication that the
circumstances in which the offence is committed may be such that the public
interest does not require the imposition of any penal sanction. This, in my
judgment, is the logical conclusion to be drawn from the provision in Section
2(4) of the Act that:
proceedings shall be instituted for an offence under this section except by or
with the consent of the Director of Public Prosecutions".
the public interest requires no penal sanction, it seems to me that strong
grounds are likely to exist for relieving the person who has committed the
offence from all effect of the forfeiture rule.
as I believe, the forfeiture rule applies to offences under the Suicide Act and
the application of the rule is not dependent upon the degree of culpability
attaching to the crime, it must follow that the rule applies to aiding and
abetting the suicide of another in pursuance of a suicide pact. Such an
offence is likely, however, to fall into the category of those in respect of
which the public interest does not require the imposition of a penal sanction.
In 1957 the Homicide Act recognised that aiding and abetting the suicide of
another pursuant to a suicide pact called for a degree of leniency. Where two
people are driven to attempt, together, to take their lives and one survives,
the survivor will normally attract sympathy rather than prosecution. 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 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.
is common ground that it was appropriate for the Judge to make an order under
the Act modifying the effect of the forfeiture rule, if it applied. The issue
that arises is whether he exercised his discretion according to the correct
principles. As to these, the Judge had little guidance, either from the Act or
from previous authority as to the relevant factors to be taken into account.
Nor did he explain in any detail how he arrived at his decision. He indicated
that his approach was to attempt "to do justice between the parties". I agree
with Mummery L.J. that this is not the appropriate approach to the exercise of
the discretion given by the Act. The discretion is a broad one, and it is
legitimate to have regard to all the consequences of the order, but it is not
right to approach the exercise of the discretion as if dealing simply with an
inter partes dispute. In these circumstances it is for this court to exercise
afresh the discretion given by the Forfeiture Act.
first, and paramount consideration, must be whether the culpability attending
the beneficiary's criminal conduct was such as to justify the application of
the forfeiture rule at all. The question of the extent to which the criminal
should be blamed for committing the crime is a familiar one for the sentencing
judge in the criminal jurisdiction, but not one that the judge exercising a
civil law jurisdiction welcomes as the test for determining entitlement to
property. I have already given my reasons for suggesting that it is likely to
be appropriate to relieve the unsuccessful party to a suicide pact of all
effect of the forfeiture rule. Each case must be assessed on its own facts.
Had Miss Plant's decision to take her own life been an understandable reaction
to the pending consequences of her theft, a case could well have been made out
for saying that this gave to her participation in the suicide pact a
culpability that should properly be reflected by the application, at least to a
degree, of the forfeiture rule. I do not, however, see this case in that
light. The desperation that led Miss Plant to decide to kill herself, and
which led to the suicide pact, was an irrational and tragic reaction to her
predicament. I do not consider that the nature of Miss Plant's conduct alters
what I have indicated should be the normal approach when dealing with a suicide
pact - that there should be full relief against forfeiture. The assets with
which this case is concerned were in no way derived from Mr Dunbar's family.
They are the fruits of insurance taken out by Mr Dunbar for the benefit of Miss
Plant. So far as his family is concerned, the Judge rightly described the
consequence of the forfeiture rule to be the conferring on them of an unwelcome
windfall. While I can appreciate, and sympathise with, the emotions which I
suspect underlie this litigation, I have reached the conclusion that there
should be full relief against the forfeiture rule, and I would allow this
appeal so as to grant that relief.
agree with the Judgment of Phillips L.J.
Appeal allowed to the extent shown in the majority decision; pursuant to
section 2 of the Forfeiture Act 1982 the court hereby grants the defendant
relief from forfeiture of all rights accruing to her on the death of Tony
Dunbar deceased; costs to be the appellant's costs in the Court of Appeal and
the court below, not to be enforced without the leave of the court; legal aid
taxation of the costs of the appellant and the respondent; application for
leave to appeal to the House of Lords refused.