Sympathy rather than punishment

Roger Pearson looks at a decision in which a woman was granted relierf from forfeiture due to the peculiar circumstances of her case. A Court of Appeal decision in July gave new guidance on the law of forfeiture. It indicates that even if a criminal act has been involved there can be relief from forfeiture if the circumstances are exceptional.

The latest case to focus on this area of law was unique. But the final majority decision of the Court of Appeal, while given in what are probably one-off circumstances, undoubtedly gives further general guidance on the way the courts should approach forfeiture and the granting of relief from it.

The case centred on a suicide pact involving a couple living in Preston. They were engaged and had bought a home together. However, the woman fell under suspicion of false accounting in her job as an administration controller at Blackpool's Savoy Hotel, was accused of fraud and faced the threat of a jail sentence.

As a result of this she told her fiance she intended to commit suicide. He said that he would take his own life because he could not face living without her. Initially, they attempted, unsuccessfully, to kill themselves by inhaling car exhaust fumes.

The following morning they made two attempts to hang themselves. The man died on the second attempt.

The woman then cut her throat and wrists and jumped from a window, but survived. As the survivor, she became entitled to £17,000 – the value of a half share in the home – and was also the beneficiary of an insurance policy taken out by her fiance.

But her fiance's father, as administrator of his son's estate, brought proceedings under the Forfeiture Act 1982 in which he sought to prevent her from receiving the insurance money.

In December 1995 Judge Howarth, at Preston District Registry, upheld that move. But in the Court of Appeal, Lords Justice Phillips and Hirst, with Lord Justice Mummery dissenting, overturned the decision.

Lord Justice Phillips said he considered the woman was more deserving of sympathy than punishment, although she had been guilty of criminal complicity in the suicide of her fiance.

Christopher Metcalfe, senior partner at Eastbourne firm Hart Reade, acted for the woman, along with Christopher Bean from the same firm. The case was argued in court by counsel Nigel Thomas of 11 Stone Buildings.

Metcalfe says the Appeal Court decision backed the view he had taken from the outset. "My first reaction was that the parties involved would accept my client's right to receive the value of the insurance policy," he says. "I was surprised when the matter became contested."

He adds: "I always considered that morally and legally right was on her side. I felt that the nature of this woman's conduct altered the normal approach to forfeiture matters."

Of the court's decision he says: "I think the message at the end of the day was that the Appeal Court did not feel she was criminally to blame. It drew a distinction between someone who has gone out in a rage and killed someone and what happened here.

"In doing this they made it clear that while the wider principle of the forfeiture rule was that a person could not benefit from their own criminal act, not every criminal offence would bring that principle into play."

Metcalfe concludes: "This was an important distinction and one that will undoubtedly be of assistance in some future forfeiture cases."