Making Homicide Pay?
| Author | Phillip Kenny |
| DOI | 10.1177/002201838304700406 |
| Published date | 01 November 1983 |
| Date | 01 November 1983 |
| Subject Matter | Article |
MAKING
HOMICIDE
PA
Y?
Phillip Kenny"
Criminals pay for their crimes by being sentenced under the
criminal law
but
at common law they used also to suffer
other
penalties, e.g. disenfranchisement or forfeiture of property.
It is also a clear principle of common law that acriminal should
not be allowed to profit from his
crime-ex
turpi causa non oritur
actio. A specific
and
well-known example of this principle is the rule
that aperson guilty of homicide is
not
allowed to keep
the
profits
accruing to him as a consequence of his crime.
Offences of homicide cover a wide range of culpability
and
it
seemed to many
that
ex turpi operatedharshly in treating all cases of
homicide alike.
The
Forfeiture
Act
1982 was passed to redress
apparent injustices in this area.
Before looking at the provisions of the Act it is helpful to examine
the scope of the common law rule.
At
common law the forfeiture
rule is comprehensive. Its
breadth
was well summarised by Lord
Mishcon introducing
the
Forfeiture Bill in the Houseof Lords:
"it
is
a good and
proper
doctrine-that
if a man or woman is criminally
responsible for the death of another, neither he
nor
she,
nor
their
personal representatives, can be entitled to
reap
any financial
benefit from that act"
and
he
then
quoted
the reason given by
Salmon L.J. in Gray v. Barr [1971] 2 All
E.R.
974 that it would
"shock the public conscience if a man could use the courts to
enforce amoney claim
either
under acontract or will by reason of
his having committed such acts". Lord Mishcon then went on to
explain the reason for introducing
the
Forfeiture
Bill-that
is that
"experience has shown
that
there
are
cases-few
they may be,
but
they are hard
cases-where
the public conscience would not, in my
submission, want these forfeiture provisions to
apply"-and
then,
this Act was introduced to mitigate the supposed rigour of the
common law.
• LL.M. Solicitor,
Head
of the School of Law, Newcastle upon Tyne Polytechnic.
271
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