(B) THE FORFEITURE PRINCIPLE (i) The Ambit of the Forfeiture Principle

It is a fundamental principle of English law that a criminal is not able to enforce rights or recover benefits which accrue to him or her as a result of the commission of certain types of criminal offence.[1] [2] This is a rule of public policy. As Fry LJ said in Cleaver v Mutual Reserve Fund Life Association:143 ‘The principle of public policy invoked is in my opinion rightly asserted. It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.’

Where the defendant is entitled to benefits as a result of an unlawful killing, the rule which precludes him or her from obtaining those benefits is called the forfeiture rule.[3] But the principle which underlies the forfeiture rule is not confined to where the crime which has been committed is an unlawful killing. Fry LJ recognized in Cleaver that the general principle may also be invoked where the criminal has committed a crime involving fraud.145 The forfeiture principle is in fact potentially applicable in respect of all crimes, but the courts have accepted that it is only the commission of certain types of criminal conduct which will trigger its operation.[4] [5] The test which the courts have adopted is whether the offender intentionally committed the crime. This was recognized by Lord Denning MR in Hardy v Motor Insurers’ Bureau,1 7 where he said that ‘no person can claim reparation or indemnity for the consequences of a criminal offence where his own wicked and deliberate intent is an essential ingredient in it’.

Whilst the application of the forfeiture principle prevents the criminal from obtaining all benefits which accrue as a result of the commission of the crime, most cases are concerned with whether the criminal can obtain an indemnity under an insurance policy. Consistent with the forfeiture principle, such an indemnity will be denied where the criminal intentionally committed the crime,[6] but not where it was committed negligently or innocently.[7] So, for example, it has long been recognized that a criminal who deliberately sets fire to his or her own property to claim on an insurance policy for damage to that property will not be able to recover the money from the insurance company.[8] The forfeiture principle also prevents those who claim through the criminal from recovering benefits which arise from the commission of a crime.[9]

  • [1] Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, 156 (Fry LJ); Beresford v RoyalInsurance Co [1938] AC 586, 598 (Lord Atkin).
  • [2] [1892] 1 QB 147, 156. 144 Re K (deceased) [1986] Ch 180, 185 (Vinelott LJ).
  • [3] 145 Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, 156.
  • [4] See Lord Wright in Beresford v Royal Insurance Co Ltd [1937] 2 KB 197, 220.
  • [5] [1964] 2 QB 745, 760.
  • [6] Haseldine v Hoskin [1933] 1 KB 822. See also Geismar v Sun Alliance and London Insurance Ltd [1978]QB 383, 395 (Talbot J).
  • [7] Tinline v White Cross Insurance Association Ltd [1921] 3 KB 327; James v British General Insurance CoLtd [1927] 2 KB 311. See also Euro-Diam Ltd v Bathurst [1990] QB 1, 40 (Kerr LJ).
  • [8] Beresford v Royal Insurance Co Ltd [1938] AC 586, 595 (Lord Atkin).
  • [9] The Amicable Society for a Perpetual Life Assurance Office v Bolland (1830) 4 Bligh (NS) 194, 5 ER 70.
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