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Articles | Fri 24th Jul, 2020
The Forfeiture Rule
It is a well-known principle of public policy that a person should not benefit from his or her criminal activity. As Fry L.J. put it in Cleaver v Mutual Reserve Fund Life Association  1 QB 147 at 156:
“…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…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.”
So, in our law of succession a person who has unlawfully killed another cannot in principle acquire a benefit in consequence of the killing. That is known as the “forfeiture rule”. In the leading case of Dunbar v. Plant  Ch. 412 Mummery L.J. said:
“It 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…”
It was because it may be unfair to penalise a person who kills, say, out of love rather than hate (one thinks of assisted suicide) that Parliament passed the Forfeiture Act 1982. By section 2, where the court has first determined that the rule applies, it has the power to modify its effect.
Fortunately, applications under the Act are not common but two have been reported recently.
Section 1(1) describes the rule as meaning (with my emphasis):
“…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.”
It seems then that there are circumstances in which an unlawful killing will not attract the application of the rule in the first place and it is for the court at the outset to determine whether or not such circumstances have arisen. If not, there is obviously no need to consider whether the effect of the rule should be modified.
Amos v. Mancini  EWHC 1063 (Ch)
In Amos v. Mancini  EWHC 1063 (Ch) Judge Jarman Q.C. had to decide whether the rule applied to a tragic case of an elderly woman convicted of causing the death of her husband by careless driving. Under the terms of his will she was the residuary legatee of his estate. Further, since they had purchased it in joint names, their home would pass to her under the doctrine of survivorship, unless the forfeiture rule were to apply unmodified. (Note that the rule has the effect of severing a joint tenancy: Re K  Ch 85.)
She asked the court to declare that in the circumstances the rule did not apply. She had an uphill task because, as the judge noted, all the relevant decisions since and including Dunbar v. Plant have held that the rule applied to all cases of manslaughter and her own counsel conceded that the offence of which she had been convicted amounted to unlawful killing for the purposes of section 1 of the Act. What she argued was that the words, “in certain circumstances”, indicated that not every circumstance of unlawful killing attracted the rule and such an offence should not do so.
There was no direct authority on that point. The claimant relied on remarks by Mummery L.J. in Dunbar v. Plant, suggesting that the rule might apply only where the crime has been committed deliberately and intentionally, and on passages in Williams, Sunnucks and Mortimer and Parry and Kerridge, Law of Succession (13th Edition), respectively suggesting that causing death by dangerous driving appears not to attract forfeiture and causing death by careless driving almost certainly does not.
The judge, however, noted what Phillips L.J. has said in Dunbar v. Plant:
“So far as the rule is concerned, I cannot see any logical basis for not applying it to all cases of manslaughter…in 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…caused the death of another by criminal conduct. It is in such circumstances that the rule…applies.”
Judge Jarman could not see a logical distinction in applying the rule to all cases of manslaughter (including those which involve little more than inadvertence) but not to a case of causing death by careless driving. He concluded that the rule did apply.
So he had to go on to consider whether or not he should make an order modifying the effect of the rule in accordance with section 2(2):
“The 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.”
The claimant’s lapse of concentration while driving had been significant, but nonetheless it had been a lapse of a few moments. Two of the alternative beneficiaries had not contested the application. The loss of the benefits of her husband’s will and the house would be significantly out of proportion to her culpability. The judge was satisfied that justice required him to modify the effect of the rule.
Challen v. Challen  EWHC 1330 (Ch)
The other recent case was more dramatic. In Challen v. Challen  EWHC 1330 (Ch) the claimant had violently killed her husband. They had been together for more than forty years. He had been unfaithful, violent towards her, had humiliated her and had exercised “coercive control” over her. Despite all, the claimant loved him very much and could not contemplate losing him. Judge Paul Matthews considered that without his appalling behaviour over so many years she would not have killed him.
The claimant was originally convicted of murder but on appeal that conviction was quashed and a re-trial ordered. On 5th April 2019 she pleaded not guilty to murder but tendered a plea of guilty to manslaughter by reason of diminished responsibility. On 29th May the prosecution indicated they were willing to accept that plea and on 7th June it was formally accepted and she was sentenced accordingly. She brought her claim under the Forfeiture Act on 6th September. The dates are important because section 2(3) forbids an order to be made under the section “unless proceedings…are brought before the expiry of the period of three months beginning with [the] conviction.” There is no power to extend that time-limit: Re Land  1 W.L.R. 1009. So judge first had to decide whether or not she was in time.
He dealt with the conviction for murder (section 5 providing that the application of the forfeiture rule cannot be affected in the case of a convicted murderer) and decided that where there is an initial conviction followed by an appeal and then a subsequent conviction, it is the subsequent conviction that is relevant for the purposes of section 2(3).
So when was the claimant convicted of manslaughter? Was it when she first pleaded guilty on 5th April (and so out of time) or on 29th May when the Crown indicated it was willing to accept that plea (and so out of time) or on 7th June when the plea was formally accepted and she was sentenced, so that the claim was brought it time? The judge reviewed the authorities on the meaning of “conviction” and noted that the word may mean different things in different contexts. He decided that for the purposes of section 2(3) a conviction refers not to the occasion of a plea of guilty to manslaughter but to the occasion when the plea is accepted and the defendant is sentenced (if they are at the same time). It was not strictly necessary for him to decide which is the relevant occasion if the plea is accepted and the defendant is sentenced on different days but he noted that a defendant may with the consent of the judge change his plea at any time up until sentence is passed. So it is only at the point of sentence and not, if this is earlier, when the court accepts the plea, that there is a ‘conviction’ within section 2(3) of the 1982 Act. Accordingly, the claimant was in time.
Having held that the forfeiture rule applied in this case the judge went on to exercise the power to modify its effect.
Points to Note
So what do we learn from all this? First, be aware of the existence of the 1982 Act and its provisions, particularly the time-limit. Second, it is only rarely that the forfeiture rule will not apply at all. Unlawful killing even through inadvertence will attract its force. Third, when contemplating an application to modify the effect of the rule bear in mind the matters in section 2(2) to which the court must have regard, namely, the conduct of both claimant and the deceased and other material circumstances. Obviously, what is “material” is a matter of judgment. The attitude of those who will benefit from the death if the effect of the rule is not modified is important. Three months is not a long time in which to draw together the evidence and then to decide whether it is strong enough to justify proceedings. So do not waste time. If there is to be an appeal against conviction it seems that time will still be ticking. In that case make an application and have it stayed pending the outcome of the appeal.