Dunbar v Plant

The forfeiture rule applies where a survivor has unlawfully aided or abetted another’s suicide, including suicide pursuant to a pact. The degree of culpability does not determine whether the rule applies. It is considered when the court decides whether the justice of the case requires relief under section 2 of the Forfeiture Act 1982.

The statutory discretion is not an exercise in doing justice merely between competing claimants. The court must consider the case as a whole. Culpability is paramount, although the consequences of the order and all material circumstances may be considered. A survivor of a genuine suicide pact will ordinarily have strong grounds for complete relief, but each case depends on its facts.

Miss Plant and Mr Dunbar, an engaged couple who jointly owned their home, agreed to take their lives together after Miss Plant became desperate about possible prosecution. They made three joint attempts. Mr Dunbar died during the final attempt and Miss Plant survived. She was held to have aided and abetted his suicide contrary to section 2(1) of the Suicide Act 1961.

Mr Dunbar’s administrator claimed the property which Miss Plant would otherwise receive through survivorship and under a life policy. A High Court judge held that the forfeiture rule applied but, under section 2 of the Forfeiture Act 1982, modified it only in relation to Mr Dunbar’s share of the home and the mortgage policy. Miss Plant appealed, seeking complete relief, including the proceeds of the policy written for her benefit.

The central issues were whether her participation constituted an offence, whether that offence engaged the forfeiture rule, and how the statutory discretion should be exercised.

1. Appeal allowed by a majority. Phillips LJ, with whom Hirst LJ agreed, held that Miss Plant should receive complete relief from forfeiture. Mummery LJ would have dismissed the appeal concerning the extent of relief, although all three Lord Justices agreed that the offence and the forfeiture rule were established.

2. Miss Plant committed the offence under section 2(1) of the Suicide Act 1961. The couple had agreed to die together and she participated in each attempt. Her active, joint participation amounted to criminal complicity in Mr Dunbar’s suicide, notwithstanding that he organised much of the means used.

3. Per Phillips LJ, the forfeiture rule applies to the offence of aiding, abetting, counselling or procuring suicide. Section 1(2) of the Forfeiture Act 1982 confirms that unlawful killing includes such complicity. The common-law rule should not be reformulated by reference to culpability, deliberate killing or deliberate violence. Mitigating circumstances are addressed through the statutory power to modify the rule.

4. The rule therefore applied to the survivor of this suicide pact. Aiding another’s suicide can be extremely serious, but a genuine pact will often involve circumstances in which neither prosecution nor forfeiture serves the public interest. The survivor will ordinarily have strong grounds for total relief, subject to assessment of the individual facts.

5. The judge used the wrong approach by attempting simply to do justice between the parties. Section 2 requires consideration of whether the justice of the case requires modification. Per Phillips LJ, the paramount consideration is the culpability attending the beneficiary’s criminal conduct. The court may also consider all consequences of its order and other material circumstances.

6. Miss Plant’s decision arose from an irrational and tragic response to her predicament. Her participation did not warrant any continuing forfeiture. The assets were created by joint ownership and insurance arranged by Mr Dunbar for her benefit; they did not derive from his family. Their receipt by his family through forfeiture would be a windfall. The court granted relief from forfeiture of all rights accruing to Miss Plant on Mr Dunbar’s death and made the costs orders stated in the majority’s order.

• Court of Appeal: By a majority, allowed Miss Plant’s appeal concerning the extent of relief and granted relief from forfeiture of all rights accruing on Mr Dunbar’s death. Leave to appeal to the House of Lords was refused.
• High Court, Chancery Division: His Honour Judge Howarth held that Miss Plant had committed an offence under section 2(1) of the Suicide Act 1961 and that the forfeiture rule applied. He modified its effect under section 2 of the Forfeiture Act 1982, but did not extend relief to the Allied Dunbar life-policy proceeds.