Assisting Suicide and Relief from Forfeiture

The tragedy of seriously ill or elderly people making the decision to take personal control over their own death is a reality we are increasingly seeing. But when they succeed in taking their own lives, where does this leave the bereaved family member who, out of love and compassion, takes practical steps to smooth the path for them – should there be relief from forfeiture?

This was the issue in a recent case¹ where the late Alexander Ninian (A), who was suffering from a terminal degenerative disease, travelled to the Dignitas clinic in Switzerland where he committed suicide. He and his wife (W) had enjoyed a long and loving marriage and had no children.

She was against his plan of action but he was a fiercely determined individual and was resolute about going through with the decision he had made. In fact, he had first contacted Dignitas himself without W’s knowledge. The judgment notes that there was contemporaneous evidence showing that she had tried to persuade him not to go ahead.

However, he wanted her to go with him to the Swiss clinic because he could not travel without help - he was deteriorating very quickly. W therefore made the necessary travel arrangements and travelled with him to Zurich. She also gave him practical help and went to his clinic appointments as he could not go without assistance. Importantly, she gave A no direct assistance in his actual death.

W was the sole beneficiary under his will. She successfully applied for relief against forfeiture under section 2 of the Forfeiture Act 1982 on the basis that her actions may have amounted to encouraging or assisting A to commit suicide (a serious offence under the Suicide Act) which brought into play the forfeiture rule. In the event, the Crown Prosecution Service did not press charges against her.

The issue before the court was whether W was precluded from benefitting under A’s will under the forfeiture rule and, if she was, whether she was entitled to relief.

Relieved from forfeiture
Chief Master Marsh gives a helpful analysis of the forfeiture rule and the court’s power to modify it, which practitioners will find useful. In relation to the steps W had taken, he found that objectively speaking, “such acts were plainly capable of assisting his suicide. It is equally plain that although she did not wish him to commit suicide, she intended to assist him in that enterprise”. On that basis, he ruled that the forfeiture rule was engaged by virtue of her acts.

However, he decided on the strength of the evidence that she was entitled to relief from forfeiture. The court considered paragraphs 43 (factors in favour of prosecution) and 45 (factors against) of the DPP's Policy Statement where a decision has been made that a prosecution is not in the public interest. Relevant to this case was the fact that of the 16 factors in paragraph 43 - only one was engaged (that A was unable to undertake himself some or all of the acts that amounted to W’s assistance); and five out of the six factors in paragraph 45 were present.

The court also considered the factors set out in Dunbar v Plant in relation to, for instance, the factual background, the motivations of the parties and the gravity of the offence. The Chief Master stated that there is no one determinative factor; and the factors are not of equal weight.

But when considering an application for relief against forfeiture, a powerful factor in W’s favour was the CPS’s decision not to prosecute her as it was not in the public interest. He was therefore satisfied in all the circumstances that W should be granted full relief.

¹Ninian (Deceased), Re [2019] EWHC 297 (Ch)



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