SHERIFFDOM OF NORTH STRATHCLYDE AT GREENOCK

 

Case Ref: A270/09

 

JUDGMENT OF SHERIFF DEREK D LIVINGSTON

 

In the cause

 

ANNE MELVILLE TANNOCK, residing at 7 Battery Park Avenue, Greenock, PA16 7UA

PURSUERPURSUER

 

Against

 

LINDA ANNE MCGHEE or TANNOCK, residing formerly at 47 Shore Street, Gourock and now at HM Prison, Cornton Vale, Stirling.

 

And

 

JAMES MITCHELL, Chartered Accountant, residing at 24 Union Street, Greenock.

 

DEFENDERS

 

And

 

GRAEME DAVID BRABSON, residing at 35 Rigby Street, Carntyne, Glasgow.

 

PARTY MINUTERMINUTER

 

Act: Neilson

Alt: McGowan (for minuterMinuter)

 

Greenock 2011

 

The Sheriff having resumed consideration of the cause sustains plea in law 1 for the Party MinuterMinuter; repels PursuerPursuer's pleas in law 2, 4 and 5 ; repels PursuerPursuer's plea in law 3 insofar as directed against the Party MinuterMinuter; dismisses crave 2 of the action and craves 3 and 4 of the action insofar as directed against the Party MinuterMinuter;

 

Assigns 2011 as a date for a hearing on expenses.

 

BACKGROUND

 

1.       Linda Anne McGhee or Tannock (Mrs Tannock), a Defender in this action, was married to John Grieve Tannock (Mr Tannock). On 7^th March 2006 Mrs Tannock killed her husband. She was subsequently convicted of culpable homicide. She was sentenced to 7 years imprisonment.

 

2.       Graeme David Brabson (Mr Brabson), the Party MinuterMinuter in this case is Mrs Tannock's son and was the stepson of Mr Tannock. He was not involved in the act of killing Mr Tannock but although there was a denial in the pleadings of same it appeared to be accepted by all sides at the debate that Mr Brabson was convicted of attempting to pervert the course of justice which had involved him removing the knife which his mother had used to kill Mr Tannock from his stepfather's neck, hiding it and then reporting to the police that he had found Mr Tannock's body. Again although it was not in the pleadings it was accepted on all sides that Mr Brabson had received a sentence of 240 hours community service.

 

3.       Mr Tannock left a will in which he appointed the Defenders as executors. He left the residue of his estate to Mrs Tannock whom failing his stepson Mr Brabson.

 

4.       The PursuerPursuer, who is the mother of the deceased, has raised this action in which she is seeking in short to interdict the executors from distributing the estate in terms of the will and with a view to excluding both Mrs Tannock and Mr Brabson from the proceeds of the estate.

 

5.       Mrs Tannock has not defended this action either in her capacity as a trustee nor in her personal capacity but Mr Brabson has lodged a minute disputing the claim. The remaining Defender, who is simply in this action quoad trustee has also not defended same.

 

6.       There was no dispute by either of the parties that crave 1 fell to be granted excluding Mrs Linda Tannock from inheriting from her late husband.

 

SUBMISSIONS

 

7.       The Debate took place on 6^th May 2011. Both parties had lodged Rule 22 Notes. During the course of the debate I was referred to the following authorities.

 

Forfeiture Act 1982

Maxwell on Interpretation of Statutes, 12^th Edition, P St. J Langan, Chapter 2.

Burns v Secretary of State for Social Services 1985 SLT 351

Hunter's Executors, Petitioners 1992 SLT 1441

Cleaver and Others v Mutual Reserve Fund Life Association [1892] 1 QB 147

Criminal Law by Sir Gerald Gordon (2^nd Edition)

Dunbar v Plant 1998 CA 412

 

SUBMISSIONS FOR THE PARTY MINUTER

 

8.       Section 1 of the Forfeiture Act states as follows: -

1.- The "forfeiture rule"

(1)    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.

(2)    References in this Act to a person who has unlawfully killed another include a reference to a person who unlawfully aided, abetted, counselled or procured the death of that other and references in this Act to unlawful killing shall be interpreted accordingly.

 

 

SUBMISSIONS FOR THE PARTY MINUTER

 

9.       Mr McGowan opened the debate on behalf of the partyParty minuterMinuter. He briefly ran through the factual side of matters including his client's conviction and explained that his main attack was on Article 5 of the PursuerPursuer's pleadings. His position was that Section 1 (2) of the Forfeiture Act 1982 which was prayed in aid of the case against the Pparty minuterMinuter was not applicable to his client's situation. He referred me to Section 1 of the Forfeiture Act (the Act).

 

His submission regarding the Act not applying to his client was effectively twofold. In the first place it was his position that the Act was essentially there to provide some relief from the common law position known as the Forfeiture Rule whereby a person could never benefit under a will where the potential beneficiary had wrongfully killed the deceased. This was based upon the more general principle of public policy whereby a criminal is prevented from becoming the beneficiary of his own crime. The Act however did not in anyway impinge upon the common law whereby as a prerequisite of the potential beneficiary being subject to forfeiture, he had to have been involved in the criminal act which led to the death of the deceased. In support of his proposition that the common law still applied in relation to the scope of the Forfeiture Rule he referred to the case of Dunbar v Plant and to the dicta contained in that case on page 422 in which it was stated by LJ Mummery, "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". Secondly his position was his client's actions did not in any way involve aiding and abetting nor did his admittedly criminal behaviour fall within the scope of the other actions contained within section 1(2).

 

10.   In short Mr McGowan suggested that quite apart from the fact that his client had not aided or abetted nor come otherwise within subsection 2 he suggested that subsection 2 was in fact wider than the common law and it was a mistaken statement of same. His position was that relief had been given in all of the circumstances set out in subsection 2 because some English cases had gone too far regarding the circumstances under which the Forfeiture Rule applied. He did not elaborate regarding which cases he was referring to in this context.

 

11.   Mr McGowan went on to refer to the 2^nd Edition of Gordon's Criminal Law and to 5-15. He referred to the learned author's statement that, "aiding and abetting" is "only another way of describing art and part guilt". He quoted from Lord Patrick's statement referred to by the author at 5-01 in the case of HMA v Lappen and Others 1956 SLT 109, 110 in which his Lordship referred to a common plan and stated "if a number of men form a common plan whereby some are to commit the actual seizure of the property, and some according to the plan are to keep watch, and some according to the plan are to help to carry away the loot, and some according to the plan are to help dispose of the loot, then although the actual robbery may only have been committed by one or two of them, everyone is guilty of the robbery, because they joined together in a common plan to commit the robbery. But such responsibility for the acts of others under the criminal law only arises if it has been proved affirmatively ... that there was such a common plan and that the accused were parties to that common plan. If it has not been proved that there was such a common plan, or it has not been proved that the accused were parties to this previously conceived common plan, then in law each is only responsible for what he himself did, and bears no responsibility whatever for what any of the other accused or any other person actually did."

 

12.   Mr McGowan referred to the fact that whilst his client attempted to assist Mrs Tannock that only came about after the death and there was no suggestion that he was in any way involved in planning the death as opposed to attempting to hide her responsibility.

 

13.   Mr McGowan then turned to the case of Burns v Secretary of State for Social Services and to Lord Emslie's statement "It is a recognised principle of the jurisprudence both of England and Scotland that a person may not benefit from his own crime. This is the general rule but it is not an absolute one. Not every crime will require the general rule to be applied to deny a claim for benefit. In particular... not every kind of culpable homicide will necessarily result in the application of the general rule. "

 

14.   Mr McGowans position was that his client had not benefited from his crime. He had not been involved in the crime of killing Mr Tannock and therefore any benefit to him arising out of Mr Tannock's death was not attributable to his actions. The subsequent attempt to pervert the course of justice was not the issue here. He referred again to Dunbar v Plant and to page 425 of the judgement in which it was stated that no one can benefit from his own wrong. His position was his client was not benefiting from his own wrong albeit he had committed a wrong here.

 

15.   He referred to the second paragraph of Article 5 of the condescendence and to the statement that, "The forfeiture rule precludes the person guilty of the death or any person claiming through such person from obtaining benefit. That too is a rule of public policy. It applies so as to exclude form (sic) benefit the criminal guilty of causing the death and all other persons claiming under or through that person. In terms of the said will, Graeme David Brabson claims only through or under his mother the will having declared that he inherits [sic] his mother "whom failing". He is on that basis disentitled to inherit as someone who stands to inherit under or through the person who killed the deceased".

 

16.   Mr McGowan made reference to the case of Cleaver in which Mrs Maybrick had murdered her husband and having done that assigned the proceeds of an insurance company on her husband's life in her favour to a third party. The third party had then sought to claim under the policy and perhaps not surprisingly the Court of Appeal refused that claim taking the view that the policy was a trust in favour of Mrs Maybrick who had by her crime rendered the trust in her favour incapable of performance.

 

17.   Mr McGowan then quoted from the dicta from Lord Esher at page 152 when he stated "The person who commits murder, or any person claiming under him or her, should be allowed to benefit by his or her criminal act, would no doubt be contrary to public policy."

 

18.   Mr McGowan submitted that this was not applicable to the set of facts we had here with the word "through" being used to deal with a very different set of facts and asked hypothetically whether if Mr Tannock had left his money to his wife whom failing a charity the charity would have been disqualified. That was the logical consequence of arguing that a "whom failing" beneficiary received money through the original intended recipient who was disqualified through forfeiture. It was his position that the leaving of the money to his client on a "whom failing" basis was an independent testamentary provision.

 

19.   He referred to the case of Hunter's Executors at page 1143 and to the fact that in that case where forfeiture had taken place as a result of Mr Hunter murdering his wife and the will bequeathing to Mr Hunter had contained the words "whom failing should he predecease me" in relation to Mr Hunter the will was held to have fallen since Mr Hunter had not predeceased his wife but equally had no entitlement under the will. He contrasted that with the words here which do not contain the condition of the proposed beneficiary predeceasing the testator and his position was that the will remained extant. He also referred to Lord Ross's dicta at page 1143 where he stated "We agree with Counsel for the heirs on intestacy that such a rule of public policy should be carried no further than is necessary to achieve its object."

 

20.   He moved that craves 2, 3 and 4 insofar as affecting the partyParty minuterMinuter should be dismissed. He initially moved for expenses although subsequently accepted that a hearing on expenses would be more appropriate.

 

SUBMISSIONS FOR THE PURSUERPURSUER

 

21.   Mr Neilson moved for the granting of crave 1 ( to which there was no objection) together with the remaining craves.

 

22.   His position was that section 1 subsection 2 of the Act applied here. Section 1 (1) provided a rule of public policy and section 1 (2) essentially gave the term "unlawfully killed" a wide definition. His position was that the partyParty minuterMinuter had unlawfully aided, abetting or counselled or procured the death. He was an accessory after the fact.

 

23.   Mr Neilson went on to quote from Maxwell and to the fact that a UK statute should be interpreted as far as possible in the same way in Scotland and in England. Mr McGowan indicated at this point that he did not take issue with that proposition. It was Mr Neilson's submission that an accessory after the fact was regarded in England as a form of aiding and abetting and in order to determine this matter, if it required to be determined, a proof before answer would be necessary so that evidence could be led of English Law.

 

24.   Mr Neilson however submitted that if I was with him on his main point I could grant decree de plano. He argued that the proposition made in Cleaver to the effect that the person claiming "through or under" the wrongdoer was not entitled to benefit was applicable here. He referred to the facts in Cleaver and again quoted the statement "That the person who commits murder, or any person claiming under him or her, should be allowed to benefit by his or her criminal act, would no doubt be contrary to public policy." He pointed out that much of the case was taken up with the intricacies of the Married Women's Act 1882 but argued that the case did provide a principle in relation to matters which should be followed here.

 

25.   He referred to both the cases of Burns and to Hunter's Executors and to the proposition that the rule of forfeiture was a matter of public policy. He argued that the opinion of the court given by Lord Justice Clerk Ross in Hunter did not disagree with the suggestion that unworthiness rather than public policy may be the basis upon which a person does not inherit (1143F). He suggested the Party MinuterMinuter's behaviour made him unworthy.

 

26.   Mr Neilson then did however concede that although he was arguing the MinuterMinuter would be receiving through or under his mothers entitlement, that if the MinuterMinuter had not done anything wrong he would have been entitled to succeed. He initially conceded the analogy about the charity and then conceded the point in relation to the MinuterMinuter. His position however was that the MinuterMinuter was not entitled to succeed here because his mother had killed the testator and he had subsequently assisted her

 

27.   Mr Neilson then referred further to the case of Hunter's Executors and to the fact that Counsel had accepted in that case that the court had to look at what the testator's intention was in the will. His position was that it was inconceivable that the testator would have wanted the son of the woman who had killed him, and who had assisted in her attempting to escape justice, to succeed to his estate.

 

28.   At this point in Mr Neilson's submission I asked whether the term "whom failing" had been defined and both parties indicated that they had not been able to find a definition. However Mr Neilson did subsequently concede that he was not suggesting that it could be regarded as the equivalent of "in the event that she predeceases me" and therefore that of itself could not take matters to the situation insituation in Hunter.

 

29.   Mr Neilson went on to state that he did not see the Act as being exhaustive. His position was that it was still open to a court to determine that as a matter of common law payment to the minuterMinuter would be contrary to public policy. He indicated that Hunter suggested that there was room for a wider approach based upon unworthiness.

 

30.   Mr Neilson moved for me to sustain his fifth plea in law and to repel the defence as irrelevant and to grant decree. If however I was not with him in relation to the suggestion that the minuterMinuter was not entitled to receive anything through his mother standing his behaviour I should allow him a proof before answer in relation to the question of whether or not the partyParty minuterMinuter had been an accessory after the fact constituted aiding and abetting. At this point he moved an amendment in order that he could insert some averments in relation to that aspect of matters which allowed, there being no objection by the third party's solicitor. Mr Neilson asked me, if I were to determine that a proof before answer was required here, to reserve all pleas.

 

RESPONSE BY MINUTERMINUTERS AGENT

 

31.   In a brief response Mr McGowan admitted that Dunbar v Plant was their authority for the fact that the statue was simply there for relief purposes and did not write, or rewrite, the law of forfeiture.

 

32.   He submitted that Cleaver was determined upon its own circumstances and the fact that there was an assignation. In any event that had been superseded by the case of Burns in Scotland and Dunbar in England.

 

33.   He referred to the fact that in Hunter there had been a specific clause in the will regarding the person forfeiting predeceasing the deceased. That had not happened here.

 

DISCUSSION AND DECISION

 

34.   It seems to me that the first point that the court has to decide is whether forfeiture is now defined by statute or whether, as Mr McGowan argued, the Act simply provides a relief mechanism in certain circumstances for those who would otherwise be disinherited under the common law of forfeiture. In my opinion both the wording of the Act and the dicta in Dunbar v Plant confirm that the 1982 Act did not change the definition of forfeiture but simply was there to provide a means for a court, in cases where there were strong mitigating circumstances, to allow the person who had carried out the killing to inherit.

 

35.   In the first place the long title states that the Act, is "An Act to provide for relief for person guilty of unlawful killing from forfeiture of inheritance and other rights;...". Accordingly it does not appear to me that the intention of the Act was to put on a statutory basis the rule of forfeiture itself but instead the purpose was to provide relief. Secondly in Section 1(1) it is stated that "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. " In my opinion Parliament did not make a new rule or amend an existing one. It simply referred to the existence of a public policy. L J Mummery clearly takes the same view with his statement at page 422 in Dunbar v Plant when he refers to the principle of public policy which prevents a criminal from being a beneficiary of his own crime as being imprecise. He goes onto state "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."

 

36.   Mr Neilson in his careful submission put forward a number of other arguments here as to why the minuterMinuter should not inherit. He referred to the dicta in Hunter's Executors that the court should look at the intentions of the testator and opined that it would never have been Mr Tannock's intention that the minuterMinuter should inherit when the minuterMinuter had been involved in covering the testator's unlawful killing. It seems to me however that this is to misunderstand the position taken in Hunter when the intention of the testator required to be looked at due to the fact that case was dealing with the interpretation of the deceased's will in which he had included the words "whom failing should he predecease me". Quite apart from the fact it seems to me that Mr Neilson's position here has to be supposition - we can never know what view Mr Tannock would have taken of his stepson's actions - it further seems to me that the court is only entitled to go beyond what are in this case the clear terms of a will where there is an existing rule or statute allowing it to do so. In short, it is not appropriate to look what his stepfather would havewould have wanted him in these circumstances, unless as in Hunter he already fell within the Rule of Forfeiture.

 

37.   Mr Neilson also argued that the minuterMinuter be disqualified standing the decision in Cleaver on the basis that his legacy came "through or under" Mrs Tannock. My impression was that to a great extent Mr Neilson gave up on this argument by his concession that a charity or indeed the minuterMinuter himself would have been entitled to have succeeded under the "whom failing" clause provided there was no suggestion of their behaviour being in any way reprehensible. In my opinion either the words "whom failing" come within the "through or under" situation outlined in Cleaver for everyone or they do not.

 

38.   It is my view however that Mr Neilson's concession insofar as it went was properly made. The case of Cleaver involved its own special circumstances and the principle enunciated was in my view intended to that type of situation where the killer had assigned her rights. In the circumstances of Cleaver and Mr Neilson's own concession a "whom failing" beneficiary will not lose his or her rights to succeed merely because the succession comes "under" the killer if indeed that is the case. I do however in any event have strong doubts that the word "under" can be stretched that far.

 

39.   Mr Neilson also referred to the concept of unworthiness as was mentioned by Hunter and to the fact that Lord Ross did not reject it outright. It is fair to say, from my reading of the case he did not accept it either and his comments, as far as they went in relation to this, were obiter but instead he indicated that in Hunter the case was being dealt with on the basis of public policy. I would point out that there is absolutely nothing in the PursuerPursuers pleadings relating to unworthiness but in any case it appears to me at most the concept of unworthiness refers to someone who has killed the testator and not someone whose behaviour may have otherwise been morally reprehensible. In other words a proposed beneficiary might have swindled, beaten or otherwise misbehaved towards a testator but except in the very limited circumstances where that behaviour led to a will with provisions in favour of the proposed beneficiary which would not otherwise have been made, and that is a different matter altogether, then however unworthy that individual may be he or she will still be entitled to succeed. Mr Neilson also suggested that the matter was one of public policy and that it was still open to the court to determine that as a matter of common law payment to the minuterMinuter would be contrary to public body. I was not addressed at any length on the policy and as I understand it public policy is an unsafe basis for a decision except where there is precedent. It appears to me there is no precedent for forfeiture except where someone is involved in the actual planning of the killing or its execution rather than in an unplanned and belated attempted to cover it up.

 

40.   Even if I am wrong about the 1982 Act and it does enact or re-enact the rule of forfeiture I would still have been reluctant to have allowed a proof before answer as to whether or not the Defender did amounts to aiding and abetting. I accept that generally it is helpful for Acts of Parliament to be interpreted similarly in Scotland to England. However it seems to me that what was being suggested here goes beyond that. In my opinion where a term of UK Act is the subject of a decision in a Scottish court the appropriate way to deal with it is to refer to English authorities on that termthat toterm to assist with its interpretation rather than offering to provide evidence. The fact that the Act uses certain terms which are more frequently used in England than in Scotland does not in my opinion mean that evidence has to be led as to the law in England of aiding and abetting. The court is not being asked to deal with an English statute but with an UK one and in my view this is not a matter of English law but is a matter of Scots law in which English decisions may have a bearing. However standing the dicta of Sir Gerald Gordon I have difficulty in seeing how the words "aid and abet" could be extended in the way Mr Neilson urged upon me although it may be there is English authority to the contrary. This point is however in any event academic standing the view I expressed earlier that the 1982 statute does not enact or re-enact the Law of Forfeiture and that the concept, although not the relief provisions, are not statutory. Had it not been academic I would have been inclined to have asked for further submissions to satisfy me that the term "aiding and abetting" could be in interpreted to include the actions of the Party MinuterMinuter.

 

1.             

 

41.   In short it seems to me that for the Party Minuter to be disqualified here he would have required to have been involved in some way in the killing whether that was in the planning or execution, procurement of same. There are no averments bringing him within the common law Forfeiture Rule. I am of the view that the 1982 Act did not change the Forfeiture Rule but simply provided relief from it. I do not consider that any of the other propositions, so ably argued by Mr Neilson, come close to providing a basis for the Party Minuter to be disqualified from inheriting from the estate of the late Mr Tannock.

 

42.   In the circumstances I consider that the words in Article 5 of the condescendence from "In terms of Section 1(2) of the Forfeiture Act ... surrounding the death" all fall to be deleted. In addition the next two sentences fall to be deleted in relation to the minuterMinuter. Further the words "All other persons ..." to the end of that article also fall to be deleted. That leaves the PursuerPursuer with an irrelevant case against the minuterMinuter and her pleas in law numbers 2, 3, 4 and 5 all require to be repelled quoad the Party MinuterMinuter and plea in law 1 for the MinuterMinuter sustained and the action as directed against the Party MinuterMinuter falls to be dismissed. That simply leaves crave 1 to be granted which is granted of consent as well as possibly an interim interdict and interdict againstinterdict against the two executors against distributing the estate to Mrs Tannock about which I was not addressed and which can be dealt with at the hearing on expenses.