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The slayer’s bounty, the homicidal heir, and accelerated inheritance from Crippen to Nevin

Wellcome Trust image of Crippen and Le NeveHawley Harvey Crippen (pictured far left) was the first criminal to be captured in Britain with the aid of wireless communication. He was an American homeopath who fetched up in London at the turn of the 20th century with his wife, Cora, a former music-hall singer. After she disappeared in 1910, Hawley and his lover, Ethel le Neve (pictured left, with Hawley), were questioned by Chief Inspector Walter Dew of Scotland Yard, and they fled in panic, first to Brussels, and then via the steamship Montrose to Canada. Meanwhile, during a search of Hawley’s house, the police found human remains buried in the basement. On the Montrose, he and Ethel (who had tried to disguise herself as a boy) aroused the suspicion of the captain; and, since the ship was one of the few fitted with the new Marconi wireless, he was able to radio the authorities. Dew boarded the Laurentic, a faster ship which arrived in Canada ahead of the Montrose; and, with the help of the Canadian police, he apprehended Hawley and Ethel. They were returned to London (the picture, left, was taken at their arraignment). Hawley was convicted of murder, and his appeal was dismissed (R v Crippen [1911] 1 KB 149). However, Ethel was acquitted of aiding and abetting him, whereupon she changed her name, and vanished into obscurity.

After Hawley was hanged for Cora’s murder, her family sought to ensure that he would not succeed to her estate; and, in In re Crippen (deceased) [1911] P 108 Evans P granted administration of Cora’s estate to her next of kin, and not to Ethel (who was executrix of Hawley’s estate). In Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, 156, Fry LJ had held that “it is against public policy to allow a criminal to claim any benefit by virtue of his crime” (see generally Jones 1 Theoretical Inquiries in Law 59 (2000); Peart 31 Common Law World Review 1 (2002)); reflecting this, in Crippen, Evans P held

It is clear that the law is, that no person can obtain, or enforce, any rights resulting to him from his own crime; neither can his representative, claiming under him, obtain or enforce any such rights. The human mind revolts at the very idea that any other doctrine could be possible in our system of jurisprudence.

Rather more colourfully, “no man shall slay his benefactor and thereby take his bounty” (In re Hall; Hall v Knight and Baxter [1914] P 1, 7 (Cozens-Hardy MR)). The leading American case to the same effect is Riggs v Palmer 22 NE 188 (NY 1889) (wikipedia | blogpost); see Wade 49 Harv L Rev 715 (1936); Farber 3 SMU L Rev 31 (2000) (pdf); Cohen 92 Boston UL Rev 793 (2012)).

The Crippen principle has been regularly followed (Beresford v Royal Insurance [1938] AC 586; Gray v Barr [1970] 2 QB 626,[1971] 2 QB 554; Re Giles [1972] Ch 554; R v Chief National Insurance Commissioner, ex p Connor [1981] 1 QB 758; Oldfield v Transamerica Life Insurance Co of Canada [2002] 1 SCR 742, 2002 SCC 22 (CanLII) (8 March 2002)); it is not confined to murder cases, but in principle can extend, in appropriate cases, to any situtation in which the slayer accelerates his or her inheritance by homicide. It has been placed on statutory footing by statute in the UK: section 1(1) of the Forfeiture Act 1982 provides for a “rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing” (see Re K [1985] Ch 85; [1986] Ch 180; Davitt v Titcumb [1990] Ch 110; Re H [1991] 1 FLR 441; Re S [1996] 1 WLR 325; Dunbar v Plant [1998] Ch 412, [1997] EWCA Civ 2167 (23 July 1997); D v L [2003] EWHC 796 (Ch) (16 April 2003); see also In re DWS [2001] 1 Ch 568; cp Cook v Grierson 845 A2d 1231, 380 Md 502 (2004)) and it has recently been supplemented by the Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011 (enacting Law Commission proposals).

The Crippen principle has been followed in Ireland in Cawley v Lillis [2011] IEHC 515 (06 December 2011) [3.1], [3.3], [9.3] (Laffoy J), and there have been no statutory modifications to the principle, though Laffoy J in that case called for it to be established on a clear statutory footing ([11]).

Finally, there may be some room for a little flexibility in the application of the Crippen principle (see Tinline v White Cross Insurance [1921] 3 KB 327; Marles v Trant [1954] 1 QB 29; Hardy v Motor Insurers’ Bureau [1964] 2 QB 745; Schobelt v Barber (1970) 60 DLR (2d) 519; Gray v Barr [1971] 2 QB 554; Troja v Troja [1994] 33 NSWLR 1; Spivak here, update and here), but not much, as the courts lean against the unjust enrichment of the homicidal heir in such circumstances. As section 45 of the recently promulgated Restatement (Third) of Restitution and Unjust Enrichment, puts it:

A slayer’s acquisition, enlargement, or accelerated possession of an interest in property as a result of the victim’s death constitutes unjust enrichment that the slayer will not be allowed to retain.

A key question in such cases – adverted to but not decided in Crippen (and see also Kelly v Ireland [1986] ILRM 318; Breathnach v Ireland [1989] IR 489) – is whether the slayer’s criminal conviction can be admitted in the subsequent civil proceedings as proof of the unlawful death of the deceased. Incredibly, in Hollington v Hewthorn [1943] 1 KB 587, the Court of Appeal held that the fact that a defendant in a civil action has been convicted of a criminal offence cannot normally be adduced in evidence in the civil action. The Court took the view that the conviction merely proved that another court acted on evidence which was unknown to the court trying the civil action, and that the reception of the conviction as evidence infringed the hearsay rule as well as the rule against opinion, effectively disapproving whatever Crippen might have implied to the contrary. The decision was abrogated in the UK by section 74 of the Police and Criminal Evidence Act 1984, but there is no equivalent provision in Ireland.

In Nevin v Nevin [2013] IEHC 80 (1 March 2013) Kearns P was faced with the question of whether the defendant’s conviction in connection with the notorious murder of her husband was admissible in an action by the husband’s siblings seeking a declaration that she was disinherited by means of the principle in Crippen from taking any share in her deceased husband’s estate. Roundly criticised judically (Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961; Hunter v Chief Constable of the West Midlands Police [1982] AC 529; British Columbia v Malik [2011] 1 SCR 657, 2011 SCC 18 (CanLII) (21 April 2011)) and by a great many law reform bodies, Kearns P had little difficulty in rejecting the rule in Hollington v Hewthorn, in this context and more generally:

To rule out the conviction as completely inadmissible would, in my view, be contrary to logic and common sense and offend any reasonable person’s sense of justice and fairness. An alternative interpretation whereby it is admitted as prima facie evidence is clearly open on the authorities in this jurisdiction. There is the clearest public policy consideration for so holding and it is set out starkly and unambiguously in s. 120 of the Succession Act 1965. That policy consideration may be characterised as being no more and no less than that the perpetrator of the crime of murder should not be the beneficiary of it.

However, having concluded that evidence of the conviction of Catherine Nevin for murder is admissible in the plaintiff’s various civil claims against her, I would go no further than did the Court of Appeal in New Zealand [in Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961] to say that the conviction is prima facie evidence only that Catherine Nevin murdered her husband. It is still open to Catherine Nevin on the trial of the civil proceedings to contend that she did not murder Tom Nevin and that she should not have been convicted.

Kearns P ended his judgment – as Laffoy J did in Cawley v Lillis – with a call for further legislation to clarify anomalies in this area. The courts are working out the various issues here, but the clarity of legislation would certainly be welcome. As for Hawley Harvey Crippen, doubts have been raised by DNA testing as to the identity and gender of the body buried in the cellar, but the prospect of a reference to the Court of Appeal, a century after his execution, was decisively scotched by the Criminal Cases Review Commission. And so he remains the first criminal to be captured in Britain with the aid of wireless communication. And the case concerning Cora’s estate remains the leading authority preventing the slayer’s bounty and averting the homicidal heir’s accelerated inheritance!

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

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