Tenancies and the murdering heir
Craig McCreight is a convicted murderer. His victim was his cohabitant, Yvonne Bessant. Ms Bessant was the sole tenant of 5 Fairinsfell, Broxburn, West Lothian under a secure tenancy held from West Lothian Council. While originally unsuspected of the murder Mr McCreight was accepted as tenant of the property in succession to Ms Bessant, and two months after his conviction in June 2002 McCreight applied to exercise his right to buy. West Lothian Council originally accepted the application but after the first application lapsed, and the council became aware of McCreight's role in the death of the previous tenant, the Council rejected a subsequent application. McCreight applied to the Lands Tribunal in response to this rejection, and – after losing his case there – subsequently appealed to the Inner House in McCreight v West Lothian Council [2009] CSIH 04.
The decision of the Second Division is a narrow one with Lord Justice Clerk Gill noting the statutory jurisdiction of the Tribunal. It is held that while the Tribunal can decide whether or not a tenant is entitled to exercise the right to buy the question of whether or not the individual is a tenant (if that matter is in dispute) is a preliminary question that falls outwith the Tribunal jurisdiction. The problem is familiar to those from other jurisdictions of the Lands Tribunal for Scotland.
Prior to the passage of the Title Conditions (Scotland) Act 2003, s 90 (1)(a)(ii) the Tribunal had no authority to decide whether real burdens were valid. This meant that where an applicant to the Lands Tribunal sought variation or discharge of an invalid burden the action had to be dismissed because the Tribunal had not authority to address the preliminary question: see Murrayfield Ice Rink Ltd v Scottish Rugby Union 1972 SLT (Lands Tr) 20; Solway Cedar Ltd V Hendry 1972 SLT (Lands Tr) 42 and McCarthy and Stone (Developments) Ltd v Smith 1995 SLT (Lands Tr) 19.
In the case of McCreight it means the Tribunal have to sist the application pending a decision by the ordinary courts on whether or not McCreight has succeeded to the tenancy. On this question Lord Justice Clerk Gill (not Clerk Gill, LJ!) notes that the council has
"a stateable case on the forfeiture rule. A secure tenancy of a public sector dwellinghouse is a valuable right. Its incidents include the right to a fair rent, the prospect of a succession to the tenancy by an entitled relative and, not least, the right to purchase the dwellinghouse at a discount to open market value. In my opinion, it is arguable, to say the least, that the right to such a tenancy should not be available to one whose claim to it has been made possible by his own crime. " (para [15])
Although the Lord Justice Clerk notes that personal bar may also be an issue in any court hearing (para [16]).
It would perhaps be surprising if Mr McCreight was be successful before the court given the strength of the forfeiture rule prohibiting succession of murderers to the estates of those murdered and the application of that rule in a variety of contexts: see Bankton, II, 331, 30; Smith, Petr 1979 SLT (Sh Ct) 35; Burns v Secretary of State for Social Services 1985 SC 143; and Hunter's Executors Petrs 1992 SLT 1141. And certainly in English law in cases of statutory interpretation there is a powerful presumption that no one should gain an advantage from his or her own wrong that serves to displace even clearly worded statutes (see R v Chief National Insurance Commissioner ex p Connor [1981] 1 All ER 769 – where the absolute entitlement to a widow's allowance under s 24 of the Social Security Act 1975 was held not to apply where the widow's new status arose as a result of her own actions).
The rationale for these rules lies in public policy: see Laws of Scotland: Stair Memorial Encyclopaedia Volume 25 "Wills and Succession" paras 668 – 671 – although one other blogger (Judge Richard A Posner) suggested an alternative justification in his Economic Analysis of Law (7th edn, 2007). He writes (at p 544),
"A person who thinks that someone might if named in his will murder him is unlikely (to say the least) to name that person in his will (though he might name him, but add that the bequest fails if the person named murders him – why might this be even better than not naming him at all?). hence, the probability of being murdered by someone one does name in one's will is very low. The rule against allowing the testator's murderer to inherit thus serves the by now familiar function of reading into a contract or conveyance an implied term to govern remote contingencies. If this analysis is correct, the principal effect of the rule is simply to reduce the cost of drafting wills."
And to reduce the costs involved in drafting legislation too?