“Let The Hand Receiving It Be Ever So Chaste. …”1

AuthorT. K. Earnshaw,P. J. Pace
Publication Date01 Sep 1974
DOIhttp://doi.org/10.1111/j.1468-2230.1974.tb02398.x
THE
MODERN
LAW
REVIEW
Volume
37
September
1974
No.
5
''
LET THE HAND RECEIVING IT
BE
EVER
n
1
SO
CHASTE.
.
.
.
SINCE
the inception of modern equity during Lord Nottingham's
Chancellorship, the beginnings of
a
rule of public policy that a man
shall not profit by his crime
or
fraud are perceptible.* As Lord
Hardwicke observed in
Bn'dgman
v.
G~een,~
"
it
is incumbent on a
court of equity to act by such rule as tends most
to
discountenance
the crime.
. .
."
This ,equitcable dictate may be regarded as the
precursor of the nineteenth-century common law rule that a man
who criminally slays his benefactor shall be precluded from benefit-
ing thereby. Thus, in
Cleaver
v.
Mutual Reserve Fund Life
Asso-
ciation
the Court of Appeal, basing itself upon the scant authority
of
Pauntleroy's Case,=
formulated a rule of public policy which pro-
vides that
"
No system of jurisprudence can with reason include
among the rights which
it
enforces rights directly resulting to the
person asserting them from the crime
of
that
person."
Although
one might have expected this later extension to have been the first
in time,
it
was not until the Forfeiture Act
1870,
which abolished
the rule that
a
felon's property was forfeit to the Crown, that there
was any need for such extension.
The failure satisfactorily to explain the basis of this common
law rule has not prevented judicial investigation throughout the
Commonwealth of its possible ramifications. In particular,
attempted inroads into the rule, exemplified most recently by
Re
Holgate
and
Re Giles,g
have served only to emphasise the uncom-
promising rigidity of its application. In the former case, a decision
of Burgess V.-C. in the then Lancaster Palatine Court, a son, Alan,
had strangled his father who had made a will in his favour. The
1
Per
Lord Commissioner Wilmot in
Bridgeman
v.
Green
(1757)
Wilm.
68,
65.
2
cf.
Ville78
v.
Beaumont
(1G82) 1
Vern.
100, 101.
3
(1765)
2
Ves.Sen.
627,
628.
4
[l892] 1
Q.B.
147.
6
(1830)
4
BL(N.8.)
194.
6
Per
Pry
L.J.
at
p.
156.
7
1971,
unreported.
We
are grateful
to
Messrs. Snell
&
Son
of
Menchester,
Shorthand Writers,
for
providing
a
transcript
of
Burgess V.-C.'s judgment
delivered on January
13, 1971.
8
[1971]
3
A11
E.R.
1141.
VOL.
37
(5)
481
482
THE
MODERN
LAW
REVIEW
VOL.
a7
Vice-Chancellor had to decide whether Alan could take under the
will
or
whether the property would go on intestacy. In the latter
case the question for Pennycuick
V.-C.
was whether
a
wife who had
killed her husband was precluded from benefiting under his will.
DIMINISIIED
RESPONSIBILITY
In both
Holgate
and
Giles
the intended beneficiaries had been
charged with murdering their respective testators but had success-
fully pleaded not guilty to murder but guilty of manslaughter on the
ground of diminished responsibility. This plea was introduced into
English law by section
2
of the Homicide Act
1957,
which provides
that on
a
murder charge a person who was suffering from such
abnormality of mind
as substantially impaired his mental respon-
sibility for his acts and omissions
.
,
.
shall be liable
. . .
to be con-
victed of manslaughter.” Accordingly, both offenders having been
convicted of manslaughter, they were committed to a mental hos-
pital under section
60
of the Mental Health Act
1959.’
Although
it
was not disputed in
Giles
that the widow had com-
mitted and been convicted of manslaughter,
it
was contended that
the form of the verdict and the consequent order under section
60
should not invoke the rule.
In
particular, an order under section
60
was designed to lead to remedial, not punitive, treatment. This
resultant absence of
a
punitive element was, therefore, evidence
that the offender’s conduct was neither
‘(
deserving of punishment
nor did
it
involve
a
‘‘
degree
of
moral culpability.” Pennycuick
V.-C.
rejected this argument because
it
was a novel and untenable
concept. Thus (and
IIoZgate
was based upon this premise), the rule
is clearly absolute and dependent solely upon the commission of a
crime. As Lord Atkin said,
the absolute rule is that the courts
will not recognise
‘~t
benefit accruing to a criminal from his crime.”
lo
Prima facie the question posed by
Giles
was answered by
In the
Estate
of
a Court of Appeal decision prior to the Homicide
Act
1957.
There
it
was held, following
Cleaver,
that all cases of
manslaughter, like murder, invoked the rule. This would have dis-
posed of counsel’s submission that there were varying degrees of
manslaughter and therefore the
court
should attempt to differentiate
between degrees
of
culpability. The key to the refusal to distinguish
degrees of manslaughter is contained in a dictum of Hamilton
L.J.
in
Hall
denouncing the encouragement of what
‘‘
would be very
noxious-a sentimental speculation as to the motives and degree of
moral guilt of
a
person who has been justly convicted
and sent to
prison.”
l2
In
Giles
thce court could have distinguished
Hall.
Since
Giles
was
9
In both
Holgate
and
Giles
a
restriction order was made under the Mental
Health Act
1059,
8.
65.
10
Beresford
v.
Royal
Insurance
Co.
Ltd.
[1938]
2
All
E.R.
602,
607.
12
Ibid.,
at
p.
7.
Italics supplied.
11
rioi4-j
P.
1.
The
words
italicised were not cited
in
Giles.

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