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IN THE SUPREME COURT OF JUDICATURE CHANF 96/0046/B

Royal Courts of Justice

Wednesday, 23rd July 1997

Before:

LORD JUSTICE HIRST

LORD JUSTICE PHILLIPS

LORD JUSTICE MUMMERY

- - - - - - - -

JOHN ARNOLD DUNBAR

(AS ADMINISTRATOR OF TONY DUNBAR DECEASED )

Plaintiff

-v-

NANETTE ELIZABETH PLANT

Defendant

- - - - - - -

(Transcript of the Handed Down Judgment of Smith Bernal Reporting

Limited, 180 Fleet Street, London, EC4A 2HD. Telephone No:

0171-831 3183. Shorthand Writers to the Court.)

- - - - - - -

MR. N. THOMAS (instructed by Messrs Hart Reade, Eastbourne, East

Sussex) appeared on behalf of the Appellant/Defendant.

MR. P. CRICHTON-GOLD (instructed by Messrs Mendelsons, Manchester) appeared on behalf of the Respondent/Plaintiff.

- - - - - - -

J U D G M E N T

(As approved by the Court )

Crown Copyright

This 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.

Three questions arise for decision:-

(1) Was 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) ?

(2) Does the forfeiture rule apply to preclude the survivor from acquiring:-

(a) Absolute beneficial ownership of a house previously held by the survivor and the deceased on trust for themselves as beneficial joint tenants; and

(b) The proceeds of an insurance policy on the life of the deceased written for the benefit of the survivor?

(3) Did 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?

This 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 two days.

In 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.

In 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 Building Society.

They 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.

On 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 suicide.

In 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."

At 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."

In 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.

The 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.

I 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".

Miss 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.

Mr 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.

The 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 Re K [1985] 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 Davitt -v- Titcumb [1990] 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 months.

The 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.

Miss 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 Dunbar deceased.

2. Pursuant 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 proceeds thereof."

By 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 Act 1988 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 the proceeds.

The Judge's reasons for that order can be summarised as follows:

(1) Aiding 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-

"It 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 ."

In the passage immediately preceding that conclusion the Judge stated that the parties had made a suicide pact and that-

"Admittedly, 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."

(2) Forfeiture Rule

After 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-

"He [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 Crippen 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 this matter."

3) 1982 Act

After 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 said-

"I 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 cases."

After referring to two cases in which the exercise of the discretion had been considered ( Re K (Supra) and in the Court of Appeal at [1986] Ch 180 and Re H [1991] FLR 441) the Judge concluded that he had-

"no 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."

The Judge then stated that-

"trying to do justice between the parties"

it would be right to make the order which he proposed.

Although 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-

"(1) A 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."

The 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, as amended).

Section 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.

Mr 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 other.

In 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.

(2) Forfeiture Rule

This 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 violence." (See Gray -v- Barr [1970] 2 QB 626 at 640 E, as approved by the Court of Appeal [1971] 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.

Mr 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.

In support of his submission Mr Thomas cited the relevant authorities starting with the well known statement of principle by Fry LJ in Cleaver -v- Mutual Reserve Fund Life Association [1891] 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 Act 1882, 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."

Fry LJ said-

"The 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."

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 (See the observations of Lord Goff on the principle of "in pari delicto" in Tinsley -v- Milligan [1994] 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 injunction).

As 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-

"(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 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".

In 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.

All 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 suffice: In the Estate of Cunigunda Crippen deceased [1911] P 108: In the Estate of Julian Bernard Hall deceased [1914] P 1: Gray -v- Barr (Supra); Re Giles [1972] Ch 554; R -v- Chief National Insurance Commissioner Ex Parte Connor [1981] 1 QB 758; Re K (Supra); Davitt -v- Titcumb (Supra); Re H deceased [1991] 1FLR 441 and Re S deceased [1996] 1WLR 325.

The following propositions relating to the scope of the principle enunciated by Fry LJ in Cleaver (supra) and recognised by Section 1 of the 1982 Act may be stated-

(1) The 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-

"It 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."

See Crippen's case (supra) at page 112.

(2) The principle is not confined to murder cases, as was made clear by the Court of Appeal in the case of Hall (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 supposed 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".

Hamilton LJ said at page 7 that the principle could only be expressed in a 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 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."

(3) 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 Ex parte Connor (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. Gray -v- Barr (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 Gray -v- Barr in the Court of Appeal Salmon LJ stated at page 581-

"Manslaughter is a crime which varies infinitely in its seriousness. It may come very near to murder or amount to little more than inadvertence."

The 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-

"However 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."

That passage was specifically approved by Lord Denning MR in the Court of Appeal at page 568 H to 569 A.

It is strongly relied upon by Mr Thomas in support of his submissions.

(4) Subsequent cases on the application of the forfeiture rule to manslaughter by the intended beneficiary follow this approach. In Re K (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-

"the 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 or not."

He 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 Re Giles (supra) and Re Royce (Supra), in which Gray-v-Barr was not cited, and in Re S (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)

Those cases are to be compared with Re H (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 Gray-v- Barr test, the forfeiture rule had no application. The critical question is therefore what is the scope of the Gray -v- Barr 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 Gray -v- Barr 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.

In 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 Whitelaw -v- Wilson [1934] 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.

The 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 estate (cf Permanent Trustee Company Ltd -v- Freedom from Hunger Campaign [1991] 25 NSWLR which was rightly disapproved by the Court of Appeal in New South Wales in Troja -v- Troja [1994] 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.

For 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.

(3) Modification Order and Discretion under the 1982 Act

If, 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.

There is common ground.

(1) By 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 Section 2(4).

(2) The discretion is a wide one circumscribed only by sub-section (2) which provides-

"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."

(3) It 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.

The 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 justice 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.

Against 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 Re: K (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-

"The 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."

The same conclusion was reached by Ackner and Browne-Wilkinson LJJ.

Counsel cited three reported cases on the exercise of discretion under the 1982 Act: Re K , Re H and Re S (supra).

It 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 " justice 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:-

(1) The 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.

(2) One 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 moral culpability.

(3) The 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.

(4) The 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 - Re A, Re H and Re S, 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.

The 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.

Finally, 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 Calderbank 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 the Calderbank 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.

The 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.

The forfeiture rule is defined in the Forfeiture Act as meaning:

"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."

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 Crippen's case [1911] P.108 at p.112:

"It 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 jurisprudence."

There 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 Cleaver v Mutual Reserve Fund Life Association [1892] 1 Q.B. 147 at p.156:

"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."

What 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.

The forfeiture rule in relation to unlawful killing is of comparatively recent manifestation. In Troja v. Troja (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 Act 1870, he said:

In 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.

The 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.

When 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 Beresford v. Royal Insurance [1937] 2 K.B; [1938] 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:

....suicide 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....

This 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.

In Hall v. Knight and Baxter [1914] 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 Cleaver:

"It 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."

Hamilton L.J. agreed:

"The 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 manslaughter".

Since 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:

1) The Homicide Act 1957 abolished constructive malice.

2) The same Act provided for a conviction of manslaughter rather than murder in the case of diminished responsibility.

3) The same Act provided for a conviction of manslaughter rather than murder in the case of provocation.

4) The 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 manslaughter.

5) The 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.

The 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 Troja at p.282:

A search for a rule more flexible than the absolute legal rule stated in Cleaver, 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.

A desire on the part of the courts to avoid the rigour of the forfeiture rule was first manifest in Tinline v. White Cross Insurance [1921] 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:

"If 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 effective".

Nonetheless 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 Haseldine v. Hosken [1933] 1 K.B.822 at 838.

In Hardy v. Motor Insurers' Bureau [1964] 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:

The 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.

The 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.

In Gray v. Barr [1970] 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 p.641:

"It 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."

In 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 observed:

"however difficult it may be, nevertheless one must attempt to find some principle upon which public policy can be based".

As to that principle, the Judge cited the reference of Lord Denning M.R. in Hardy at p.760 to:

"the broad rule of public policy that no person can claim indemnity or reparation for his own wilful and culpable crime"

The Judge went on to refer to the fact that the death had resulted from:

"a deliberate and intentional assault and probably also an unlawful battery."

That satisfied the following test that the Judge had earlier advanced at p.640:

"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."

This test was approved by Lord Denning M.R. when the case reached the Court of Appeal - [1971] 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:

Although 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. Hall's case [1914] 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.

The case of Tinline [1921] 3K.B. 327 and James [1927] 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 Haseldine v Hosken [1933] 1 K.B. 822 but approved by this court in Marles v Philip Trant & Sons Ltd, [1954] 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: Hardy v Motor Insurers' Bureau [1964] 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 today Beresford's case [1938] 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 Beresford's 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 accident.

Phillimore L.J., when dealing with public policy, added this at p.587:

In 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.

As 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.

Despite these dicta, the full rigour of the rule against forfeiture was applied by Pennycuick V-C. in In re Giles Decd. [1972] 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:

"Now 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"

Eight years later, in Ex parte Connor [1981] 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 Gray v.Barr , which I have cited above and commented:

"I 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."

The court held that, as the applicant had been found by the jury deliberately to have stabbed her husband, the rule applied.

It 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 Gray v. Barr at 568 :

"In manslaughter of every kind there must be a guilty mind. Without it the accused must be acquitted"

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, ex hypothesi, caused the death of another by criminal conduct. It is in such circumstances that the rule against forfeiture applies.

However, 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 L.J. in Gray v. Barr and Lord Lane C.J. in Connor 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.

The 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 In re K. [1985] 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 Gray v. Barr , 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:

Literally 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.

The 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 - [1986] 1 Ch. 180.

As 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.

This conclusion was not shared by Peter Gibson J. in Re H Deceased [1996] 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.

Thus 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:

"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..."

As 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:

"...no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions".

Where 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.

If, 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.

It 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.

The 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.

I agree with the Judgment of Phillips L.J.

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