• 14 May 2020 Death by dangerous driving and the forfeiture rule by Hannah Southon

    The court has clarified whether those found guilty of causing death by dangerous or careless driving are subject to the forfeiture rule (disbarring them from benefiting from the deceased’s estate or insurance policies)

    In the recent case of Amos v Mancini [EWHC]1063, an elderly widow, Mrs Amos, had found herself in the difficult position of having to plead guilty to a charge of accidentally causing her husband’s death by dangerous driving. It was in all respects a very sad and unfortunate chain of events. Mr and Mrs Amos had set off from their home in Wales at 6.30am in the morning to attend the funeral of Mr Amos’ sister in Canterbury. Mr Amos felt unwell, so Mrs Amos was driving. Having got lost in Slough en route to the funeral, Mr and Mrs Amos decided to turn around and head home. The accident happened at 4.30pm, when Mr and Mrs Amos had left the motorway and were approaching a roundabout. By this time it was getting dark, raining and Mrs Amos had been driving for about ten hours. She failed to slow down on approaching the roundabout and hit the stationery traffic on the approach at some speed. Mr Amos died that evening from his injuries. They had been happily married for 30 years and Mrs Amos was understandably devastated by the consequences of her actions. She was given a suspended sentence. Under the terms of Mr Amos’ will, his estate was to pass to Mrs Amos and their home, which was owned jointly, was also to pass to her via survivorship. Mrs Amos sought a declaration from the court as to whether or not the forfeiture rule applied to her, such that she was prevented from inheriting his share of the matrimonial home (which was jointly owned and so would pass by survivorship unless the forfeiture rule applied unmodified) and his other assets under his will.

    It is a long-standing principle of common law in England and Wales that a criminal should not be permitted to benefit from his – or her – crime. In cases in which someone has been unlawfully killed, that principle applies to prevent the killer benefitting from the victim’s death via inheritance or (broadly) insurance policies. It came to be known as the ‘forfeiture rule’, because in having unlawfully killed the victim, the perpetrator forfeited his or her right to an inheritance or other benefit.

    Whilst the rationale for the forfeiture rule as a matter of public policy is sound, its automatic application in all cases of manslaughter produced injustices. In particular, there was concern that it applied to financially impoverish a woman who, under extreme provocation such as to remove almost all moral culpability, had killed her husband. This led to the enactment of the Forfeiture Act in 1982 (the ‘1982 Act’), which placed the forfeiture rule on a statutory footing and importantly gave the courts the discretion to dis-apply it in deserving cases[1].

    Section 1(1) of the 1982 Act defines the “forfeiture rule” to mean “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.”

    Prior to the court’s decision in Amos v Mancini, there had been uncertainty, contributed to in part by the inclusion of the underlined words in the statutory definition of the rule, as to whether the forfeiture rule continued to apply automatically to all cases of manslaughter, and whether it applied at all to the offences of causing death by dangerous
    driving (s.1 of the Road Traffic Act 1988 s substituted by s.1 of the Road Traffic Act 1991) or death by careless driving (under section 2B of the Road Traffic Act 1988, inserted by the Road Safety Act 2006).

    The leading case on the forfeiture rule is the Court of Appeal’s 1998 decision in Dunbar v Phelps, which concerned its application to the survivor of a suicide pact, it being a crime under the Suicide Act 1961 to assist with a suicide. In giving the leading judgment Phillips LJ, having reviewed the authorities said:

    “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, 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.”

    Following Dunbar v Phelps, the courts have held that the rule applied to all cases of manslaughter, albeit there was uncertainty amongst academic commentators that the case was strict authority for that proposition (probably because the specific offence at issue in Dunbar was that of assisting a suicide, rather than manslaughter).

    The Court of Appeal separated out ‘motor cases’ from other manslaughter cases because its review of authorities had found that, going back to the case of Tinline v White Cross Insurance Association Co [1921] 3 KB in 1921, the court had decided not to apply the forfeiture rule to cases of manslaughter by reckless driving. The Court of Appeal in Dunbar v Phelps therefore left open the question whether the forfeiture rule applied at all to the offence of death by dangerous driving (then on the statute book) or the offence created subsequently of death by careless driving. Prior to the decision in Amos v Mancini, there was no direct authority as to whether these offences did or did not fall into the ‘certain circumstances’ under which s.1 of the 1982 Act stated the forfeiture rule applied.

    That question was answered decisively in April 2020 by the High Court in Amos v Mancini. When HHJ Jarman QC, having reviewed all the authorities, concluded that it would be illogical to draw a distinction in applying the forfeiture rule as between manslaughter and motor offences. It was now recognised that manslaughter could involve a range of moral culpability. It would be irrational if forfeiture applied automatically to a case of manslaughter with a low degree of culpability but did not apply to a case of death by careless or dangerous driving, in which there was a much higher degree of moral culpability. Whilst there was not in Mr Jarman QC’s judgment a lengthy discussion of the point, it does seem that in relation to earlier motor cases, the court had striven to avoid the application of the forfeiture rule when to do so would produce injustice, by setting up a competing public policy provision, that of ensuring that motor insurance policies could be relied upon by victims and their families. Following the enactment of the 1982 Act, the court has express power to waive the rule at its discretion (save for cases of murder, the perpetrators of which will always be subject to the rule) and therefore it seems the need to create a special category of cases for unlawful killing involving motor vehicles fell away at that point.

    Having held that the forfeiture rule applied to all cases of unlawful killing, HHJ Jarman QC held that the solution for those persons facing the application of the forfeiture rule to their rights of inheritance or under an insurance policy was to apply to the court for relief. In the circumstances of the relatively low degree of culpability on the part of Mrs Amos he granted her the relief sought and dis-applied the forfeiture rule. To do otherwise would, he ruled, have been ‘significantly out of proportion’ to her culpability. This was a judgment no doubt welcomed by Mrs Amos herself, but also to be welcomed more widely for providing clarification on the application of the forfeiture rule to those who find themselves in her position.

    [1] For any reader interested to learn in more detail of the genesis of the Act, which originated as a Private Members Bill, an account is given by Stephen Cretney, Law, Law Reform and the Family (1998).

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