(iii) The Rationale of the Forfeiture Principle
A number of explanations have been given for the existence of the forfeiture principle.[1] One explanation is that it exists to deter potential criminals from committing crimes in order to obtain benefits.[2] This may explain why the application of the forfeiture principle is confined to where the criminal has intentionally committed the crime, since it is only in this situation that the threat of forfeiture of benefits is likely to have any deterrent effect at all. But it is most unlikely that this principle of private law would constitute any greater deterrent than that already provided by the criminal law. Another explanation of the principle is that it stems from a desire to punish the criminal for committing the crime, but it is surely inappropriate for private law to punish the criminal, this being a function for which only the criminal courts are suited. If the civil courts seek to punish the criminal in addition to the punishment which is imposed by the criminal courts, there is an obvious danger of excessive punishment.[3] A final explanation for the forfeiture principle is that it is justified on the ground simply that no criminal should be able to resort to the law to recover benefits to which they have become entitled as a result of their crimes.[4] [5] This is probably the main reason for the existence of the rule, namely a general distaste that the law should be used to assist criminals in any way.
- [1] See J Shand, ‘Unblinkering the Unruly Horse: Public Policy in the Law of Contract’ (1972) 30 CLJ 144.
- [2] Beresford v Royal Insurance Co Ltd [1938] AC 586, 598 (Lord Atkin); Gray v Barr [1971] 2 QB 554, 581(Salmon LJ); Re H (deceased) [1990] 1 FLR 441, 446 (Peter Gibson J).
- [3] As recognized by Devlin J in St John Shipping Corp v Joseph Rank Ltd [1957] 1 QB 267, 292.
- [4] Gray v Barr [1970] 2 QB 626, 640 (Geoffrey Lane J). See also Euro-Diam Ltd v Bathurst [1990] QB 1, 35(Kerr LJ).
- [5] As Wilmot CJ said in Collins v Blantern (1767) 2 Wils 347, 350; 95 ER 859, 852: ‘no polluted hand shalltouch the pure fountains of justice’.
