Relief against the Forfeiture Rule in respect of suicide with the assistance of Dignitas

February 25, 2019

The criminal offence of assisting or encouraging suicide has recently attracted press coverage and political discussion. That attention focuses on the risks of prosecution and imprisonment, but for many families the financial consequences will be of equal or greater importance.

Chief Master Marsh has handed down judgment in Ninian -v- Findlay [2019] EWHC 297 (Ch) in which John Critchley and Toby Bishop’s client was granted relief against forfeiture. The judgment offers useful guidance as to the Court’s approach to these applications including analysing whether the offence has been committed.

This article is written by and for estates practitioners, however for reasons which will become clear, it will be necessary to consider the criminal aspect first.

These are tragic cases which require grieving relatives to engage with the criminal and civil justice systems during the most challenging time in their lives. However, they are not as rare as might be hoped. Dignitas publishes statistics which reveal that as at 31 December 2018 1,341 of its 9,064 members were resident in Great Britain.

 

The brief facts

Mr Ninian was a highly intelligent, decisive and fiercely independent person who had had a long and successful career in business. In retirement he was a successful and prolific travel writer and gained a PhD in Sports Management when he was 80 (para 16-17). He was suffering from a progressive incurable disease and reached the decision to end his life with the assistance of the Dignitas clinic in Switzerland.

Mrs Ninian was opposed to her husband’s wish, she made every effort to dissuade him, but eventually provided him with reluctant assistance in the face of his determined wish to commit suicide (para 50(2)(iv)). Mr Ninian died in Switzerland on 16 November 2017.

 

The offence, investigation and decisions in respect of prosecution

On 3 August 1961 parliament passed the Suicide Act 1961, section 1 abrogated the offence of suicide. Section 2 criminalised acts capable of encouraging or assisting another’s suicide if they have been performed with the intention of encouraging or assisting the suicide. A person convicted of the offence may be imprisoned for up to 14 years.  There cannot be a prosecution without the consent of the Director of Public Prosecutions (s.2(4)). In R (on the application of Purdy) -v- Director of Public Prosecutions [2009] UKHL 45, the House of Lords required that the DPP clarify his position as to the factors he regarded as relevant for and against prosecution. In February 2010, the then DPP, Sir Kier Starmer issued the Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (“the Policy”). It was updated in 2014. Paragraphs 43-44 set out the factors tending in favour of prosecution, those at 45-48 are the factors tending against prosecution.

This is an unusual offence, it is a form of accessory liability, but in respect of which the primary participant does not themselves commit an offence. Section 2 of the Suicide Act 1961 was amended by section 59 of the Coroners and Justice Act 2009, with effect from 1 February 2010, bringing the text in line with the drafting of the Serious Crime Act 2007. The Law Commissions report which led to the 2007 Act is therefore of some assistance in interpreting the statutory language. The report is available here: Law Com No 300, dated 24 May 2006, titled: Inchoate Liability for Assisting and Encouraging Crime.

The Supreme Court has given some guidance on accessory or inchoate offences in R v Jogee [2017] AC 387, at 417-9. It is important in this context to distinguish between intention and desire (see para 90-2 of R v Jogee). A person will often have an extremely strong desire that their spouse or parent continue living and not commit suicide, but that alone would not deprive them of the requisite mens rea for the purposes of the offence.

The correct approach for those who have been involved in another’s preparations for suicide is to take specialist advice from a solicitor practicing in crime who has experience of these delicate and sensitive cases and, with their assistance, to report the circumstances to the police.

There would be serious disadvantages for a client who did not report the matter:

  1. Reporting the circumstances of the suicide to the police is a factor tending against prosecution (Policy para 45(6)).
  2. As will be seen under the heading Forfeiture and Relief below, it will be necessary for the person assisting to make an application to a Chancery judge. The outcome of the criminal investigation is material to the judge’s decision. If the circumstances have not already been reported to the police the client and their advisers lose credibility with the judge and the judge should be expected to refer the matter to the DPP. At that point the client has lost the benefit of one of the factors tending against prosecution.
  3. Their position in respect of both the criminal and the civil litigation is thereby undermined.

Toby and John’s client carefully collated all of the material relevant to her husband’s suicide, took specialist advice from a firm of criminal solicitors with relevant experience who assisted her in reporting the facts to the police, she then fully co-operated with the police investigation. The Metropolitan Police referred the matter to the Crown Prosecution Service’s Special Crime and Counter Terrorism Division. The head of that division concluded, applying the Policy, that the evidential test was met, but that it was not in the public interest to prosecute.

 

Forfeiture and Relief: the financial consequences of assisting or encouraging suicide.

The common law rule (“the Forfeiture Rule”) arises as a matter of policy, in Cleaver v Mutual Reserve Fund Life Assn [1892] 1 Q.B. 147 at 156 Fry LJ explained it in this way:

“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.”

There are two common practical consequences of the Rule:

  1. Any asset held jointly by the deceased together with the person who has assisted them will not pass by survivorship. Instead the joint tenancy will be severed in equity and the deceased’s interest will fall into their estate (see para 38-39 of Chief Master Marsh’s judgment in Ninian, applying Re K [1985] 1 Ch. 85, upheld on appeal, reported at [1985] 3 W.L.R. 234; and Dunbar v Plant [1998] Ch 412 Mummery LJ’s judgment at 418B. Although it was the dissenting judgment, the majority did not suggest the position was otherwise).
  2. Any interest the person assisting would otherwise have had in the estate of the deceased is forfeit.

It will be clear that the Forfeiture Rule can cause grave injustice. The harshness is ameliorated by the Forfeiture Act 1982. There had been judicial indications that the rule would not always apply in cases of unlawful killing, however in Dunbar v Plant [1998] Ch 412, at 436H Phillips LJ rejected that analysis, deciding that the appropriate course where the application of the rule conflicted with the ends of justice is to exercise the jurisdiction under the 1982 Act.

An offence of assisting or encouraging suicide contrary to the 1961 Act engages the Forfeiture Rule (see Dunbar v Plant at 437D).

The 1982 Act is an emollient statute, it does not purport to codify or amend the rule of public policy (see Chief Master Marsh’ judgment at para 5). Once the jurisdiction is engaged and the Court is satisfied, having regard to the conduct of the offender and of the deceased and any other relevant circumstances, that the justice of the case requires it, the effect of the rule may be modified or excluded (s.2).

Chief Master Marsh records that there are two stages to the application (para 13):

  • On the balance of probabilities, has there been an unlawful killing?
  • Should the Court exercise its power under the 1982 Act?

The Chief Master then identified the constituent parts of the offence (para 44):

(1) Did Mrs Ninian do an act that was capable of encouraging or assisting Mr Ninian’s suicide? An act can mean a course of conduct such that, when looked at together the actions were a course of conduct that was capable of encouraging or assisting the suicide.

(2) The act, including a course of conduct, is to be looked at objectively. It is not relevant whether it did encourage or assist the suicide. It is a question of whether it was capable of encouraging or assisting the suicide.

(3) The act of encouragement or assistance may be part of a chain of events; but a single act of encouragement or assistance will suffice.

(4) If she did an act that was capable of encouraging or assisting Mr Ninian’s suicide, did Mrs Ninian intend to encourage or assist the suicide of her husband?

Mrs Ninian had actively sought to discourage her husband from committing suicide. However, the Chief Master found that her reluctant practical assistance had, on the balance of probabilities, amounted to the offence and therefore the jurisdiction was engaged (para 45-6).

The Chief Master explained that it is helpful to have regard to paragraphs 43-5 of the DPP’s Policy Statement (para 49). He also had regard to the factors identified by Mummery LJ in Dunbar v Plant (para 51). In Dunbar v Plant, at 437G Phillips LJ expressed the view that:

“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.”

This adds weight to the argument that the circumstances must be reported to the police. Mrs Ninian’s starting point was stronger still, not only had there been no penal sanction, there had been a decision not to prosecute.

After considering all the circumstances, the Chief Master concluded this was a compelling case for the court to exercise its power to grant full relief (para 52).

 

Practical solutions for families

Mr Ninian did all he could to assist his widow in this process. He took legal advice (independent from Mrs Ninian). Mr Ninian’s solicitor assisted him in preparing a witness statement addressing the factual nexus of his decision to commit suicide with the assistance of Dignitas, the reasons for his decision and his wife’s involvement in that process.

It is an important feature of this application that Mr Ninian’s testamentary capacity and his capacity to decide about significant treatment options such as attending Dignitas were assessed by an eminent consultant psychiatrist (para 51(2), Dr James Warner).

Because of Mr Ninian’s careful preparation it was possible for the Chief Master to reach a decision at a relatively short disposal hearing (para 54-57).

 

Is an application necessary?

The position is stark: a person who commits the offence (on the balance of probabilities) forfeits their interest in the deceased’s estate and the jointly held assets are severed. Relief against the effect of the rule may only be obtained by an application.

As the law stands, there is no alternative to this process. An adviser may form the opinion that it is unlikely to be in the public interest to prosecute, but the decision is not theirs. Their client may have a compelling case in favour of granting relief, but the adviser does not have the power to grant it.

We emphasis the point because there appears to be considerable misunderstanding about the state of the law amongst entities offering support to those in Mr and Mrs Ninian’s position.

The consequences of failing to apply are serious. It would not be possible to execute a declaration to extract a grant of probate or letters of administration on the footing that joint assets had passed by survivorship or that the person assisting obtained any benefit under the estate. Further, there may be tax consequences if a spouse’s exemption is lost and contingent residuary beneficiaries (for example charities) may consider they are obliged to oppose relief. If an estate were incorrectly administered on the footing the Rule did not apply, the issue may arise decades later in the administration of the estate of the person assisting.

The only appropriate course is to seek relief promptly. However, there are very few judgments in respect of the jurisdiction under the 1982 Act which strongly suggests a considerable number of these cases are not being dealt with in accordance with law.