Philip Morris v James Morris, Kate Shmuel and Gregory White [2024] EWHC 2554 (Ch)
These proceedings concerned the forfeiture rule under section 2(2) of the Forfeiture Act 1982 as it applies to the estates of people who travel to Switzerland for assisted dying (the 1982 Act). Mrs Myra Morris had ended her own life with the assistance of the staff at the Swiss clinic and the assistance of her husband Philip. She had been suffering from Multiple System Atrophy, a rare and degenerative neurological disorder with no known cure.
It was accepted between the parties that the role played by Philip engaged Section 2(1) of the Suicide Act 1961, which makes the assistance of suicide a criminal offence. The forfeiture rule under Section 1 of the 1982 Act precludes a person who has unlawful acted in the killing of another from acquiring a benefit from that killing. Section 2 of the 1982 Act allows for the modification of that rule if the justice of the case calls for such mercy.
Before Myra died, her solicitor assessed her as having the mental capacity to make an informed and voluntary decision to end her own life according to the Mental Capacity Act 2005. She said that she was satisfied that Myra was able to understand the decisions she was making and was under no undue influence, pressure or encouragement when she did so.
Her husband Philip sought advice from solicitors regarding his position should he accede to Myra’s wish for him to accompany her to Switzerland and he was reassured that, in the light of the DPP’s guidance on Section 2 of the Suicide Act, he would not be prosecuted, and indeed the Police Constable who interviewed Philip on his return from Switzerland told him that there was nothing to report and confirmed the position in writing.
Then there arose the question of the forfeiture rule. There are very few reported decisions on the approach the court should take on an application to modify the forfeiture rule, but the 1982 Act requires the court to have particular regard to the conduct of both the deceased and the person assisting the death when determining the justice of the case. In Dunbar v Plant [1998] Ch 412, Philips LJ explained that there were clear indications in the Act that there were circumstances in which the public interest did not require the imposition of any penal sanction, a consideration which he linked directly to the proper application of the forfeiture rule:
“Where the public interest required no penal sanction, it seems to me that strong grounds are likely to exist for relieving the person who has committed the offence from all effects of the forfeiture rule.” [para 437]
On the basis of the evidence regarding Myra’s intentions and Philip’s response, the Court concluded that Philip should not be denied access to Myra’s estate, and therefore relief should be granted in respect of the operation of the forfeiture rule. It was also modified in relation to the other family members who had travelled with Myra to Switzerland.
Comment
Once again, we see in action the guidelines put forward by Sir Keir Starmer, then DPP, regarding the criminal offence of travelling with a person to Switzerland to seek doctor-assisted death (which is the factual context of most of these cases). As former Court of Appeal judge Sir Stephen Sedley observed,
“In modern public law the value of policy as a way to blunt the sharp corners of the law without sacrificing consistency has been recognised by the courts as creating a legitimate expectation that published policies will be adhered to. But none of this constitutes an alchemy that can turn policy into law. This has consequences that I will come to.” (A Decent Death, London Review of Books)
Sir Stephen is himself suffering from Parkinson’s disease.
He points out in his article that not only are the guidelines insufficient to protect a person who out of compassion has stepped into the criminal realm of Section 2 of the Suicide.
“Not only this; if the helper – a spouse, say – would have inherited the deceased person’s estate, the law may step in to disinherit them. Whether it actually does so depends on the applicability of forfeiture legislation, which itself defers to what it recognises as a principle of public policy – that is to say, a principle developed and applied by the courts – that denies a wrongdoer the fruits of his or her own crime ‘in certain circumstances’, as the statute reticently puts it. What these circumstances are is nowhere spelled out: do they for instance include manslaughter by reason of diminished responsibility? A dependant who helps a patient die may escape prosecution but end up penniless.
In principle, the law continues to treat as a criminal anyone who, albeit out of compassion, provides the assistance needed by someone in unendurable pain to die.”
This judgment is another nail in the coffin of the criminalisation of assisted suicide. But it should never have been necessary in the first place for Myra’s widow and other family members to incur the expense and delay of court proceedings to ensure that he was not denied access to her estate.
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