Ninian v Findlay & Ors

The forfeiture rule may apply where a person assists another’s suicide, even without a criminal conviction. The court should first decide, on the balance of probabilities, whether unlawful killing occurred. It should then decide whether justice requires modification or exclusion of forfeiture under section 2 of the Forfeiture Act 1982.

The discretion is limited but permits consideration of all material circumstances. Relevant factors include the parties’ relationship, moral culpability, the deceased’s intentions, the nature of the assistance, the estate, competing claims and the decision of the Crown Prosecution Service not to prosecute. That decision is important, but not determinative. Relief may operate retrospectively so that jointly owned property passes by survivorship.

The claimant was the widow and sole residuary beneficiary of a man who died by assisted suicide at Dignitas in Switzerland. She had helped with arrangements and accompanied him to Switzerland and to appointments with Dignitas. She had consistently opposed his decision, but accepted that her assistance might engage the forfeiture rule.

She brought a Part 8 claim under section 2 of the Forfeiture Act 1982. The Crown Prosecution Service had decided that prosecution was not in the public interest. The central issues were whether her conduct amounted to unlawful assistance for the purposes of the forfeiture rule and, if so, whether relief should be granted.

The court granted full relief from forfeiture.

1. The definition in section 1 of the Forfeiture Act 1982 describes the rule for the purposes of the Act but does not codify its full scope. The rule applies to unlawful assistance in suicide. The court treated the Court of Appeal’s reasoning in Dunbar v Plant as settling that issue.
2. Where there has been no criminal conviction, the court should proceed in two stages: first, determine on the balance of probabilities whether there has been unlawful killing; secondly, determine whether relief is justified under section 2, applying the statutory criteria.
3. Under section 2(1) of the Suicide Act 1961, the actus reus is an act, including a course of conduct, objectively capable of encouraging or assisting suicide. The mens rea is an intention to encourage or assist it. Actual encouragement or assistance is unnecessary, and a single act in a chain of events is sufficient. Encouragement and assistance are distinct concepts.
4. The claimant’s assistance was objectively capable of assisting the suicide and she intended to assist her husband in travelling to Switzerland and attending the Dignitas appointments. The court decided the issue on the totality of her conduct and did not determine whether each administrative act would independently satisfy the actus reus.
5. The discretion under section 2(2) of the Forfeiture Act 1982 is limited, but the court may consider any material circumstances. Relevant matters include the relationship, moral culpability, the nature and gravity of the offence, the deceased’s intentions, the size of the estate, the offender’s financial position and the claims of those who would otherwise benefit.
6. The CPS decision not to prosecute was a powerful factor supporting relief, but remained only one factor. The claimant’s compassion, her efforts to dissuade her husband, his settled and informed decision, the absence of financial motivation and the support of the alternative beneficiaries made this a compelling case for full relief.
7. Relief operated retrospectively. The severance of the jointly owned property was treated as not having occurred, and the property passed to the claimant by survivorship.