According to the latest figures between April 2009 and January 2019, there have been 148 cases of Assisted Suicide referred to the CPS by the police. Whilst the law surrounding Assisted Suicide has been widely considered what is perhaps not as often considered is the effects of the Forfeiture Rule upon those relatives left behind.

The law on forfeiture:

The “Forfeiture Rule” is a public policy rule preventing, in certain circumstances, a person who has unlawfully killed another from benefiting from the consequences of that action. Under the Suicide Act 1961, the phrase “unlawful killing” is also taken to include an individual who has unlawfully “aided, abetted, counselled or procured the death of another”. However, this general rule is subject to modification by the Courts under certain circumstances.

The case of mr and mrs ninian (Ninian v Findlay & Others [2019] EWHC 297 (Ch))

Mr Ninian, who was described by his wife as “a fiercely independent individual” and who had been living with Progressive Supra-Nuclear Palsy (a progressive incurable disease) died on the 16th Nov 2017 after travelling, with his wife, to Dignitas. Mrs Ninian was the sole residuary beneficiary of his estate which amounted to £1,840,557.24 (inc joint assets).

Whilst Mrs Ninian was unaware of her husband’s initial approach to Dignitas and, upon becoming aware actively attempted to discourage him, she did assist with a number of administrative tasks. Throughout the whole process Mr Ninian was judged by multiple respected physicians to have full capacity to make and understand both his available choices and the ultimate consequences of those decisions but, being the determined individual that he was known to be, he remained resolute in his decision.

Mrs Ninian also assisted her husband by making the transport arrangements to Switzerland as, by this point, he was unable to speak. Thus, whilst Mrs Ninian did not encourage her husband, she did assist him in his enterprise as, he would have been unable to travel without her. Therefore, even though she played no direct role in administering the drugs which ultimately killed him, her actions still met the requirements of being an “unlawful killing”.

Upon her return to the UK, Mrs Ninian herself reported the circumstances of her husband’s suicide to the police and cooperated with their investigation throughout. She did not receive a criminal conviction as, in the opinion of the CPS, a prosecution would not be in the public interest following the guidance laid out in the DPP’s Policy Statement.

The issue before the court therefore was whether Mrs Ninian was precluded from receiving a benefit from her late husband’s estate under the Forfeiture Rule and, if she was, was she entitled to relief.

Relief from forfeiture:

In determining whether relief from the forfeiture rule can be provided by the court, regard must be given to the overall conduct of the “offender” and to any other circumstances which they consider to be material. Particularly relevant in this case was the fact that out of the 16 factors referred to in paragraph 43 (factors in favour of prosecution) of the Policy Statement, only one was engaged namely that Mr Ninian would have been unable to travel to Switzerland but for the assistance of his wife. Equally, five out of the six factors referred to in paragraph 45 (factors against prosecution) were also present. However, the court did make it clear that there is no one determining factor upon which a judgement can be based and, not all the factors referred to within the DPP’s statement are of equal weight. As a result, there can be no “one size fits all” approach to determining whether relief can be granted in such cases with each individual situation needing to be judged on its own circumstances.

The other circumstances considered in this case were namely that Mrs Ninian was also independently wealthy with assets of approximately £6.2 million in her own name and, there was no opposition to the relief sought as the default beneficiaries fully supported Mrs Ninian’s claim.

Overall, the court was satisfied that the circumstances, taken as a whole, provided a compelling case under which to exercise its power to grant relief.

Implications:

As has always been the case, issues relating to the implementation of the forfeiture rule and assisted dying in particular have always been extremely emotive however, as highlighted at the beginning of this article, due to advances in medical science enabling a patients life to be prolonged coupled with a generally aging population, it is likely to be an issue which is brought to the courts attention with much more frequency in the coming years.

It is clear that the forfeiture rule does still have a place in our modern society in order to prevent often vulnerable people being preyed upon by mercenary relatives. However, what is also clear is that such a general rule needs to be tempered with the possibility for relief in situations where the primary objectives were love and a desire to prevent potentially unimaginable suffering.

Contact: Lucy Cortis on 01484 821 300 or lucycortis@eatonsmith.co.uk