Decision No: C1/90(WB)

	SOCIAL SECURITY (NORTHERN IRELAND) ACTS 1975 TO 1988

THE FORFEITURE (NORTHERN IRELAND) ORDER 1982

	WIDOWS BENEFIT

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a reference by the Department of Health & Social Services under the provisions of regulation 8 of the Social Security Commissioners Procedure Regulations (Northern Ireland) 1987, (the Commissioners Procedure Regulations), to determine whether the claimant is precluded by virtue of the forfeiture rule from receiving widows benefit after the death of her husband on 24 March 1989.

2.	Briefly, the facts are that a claim for widows benefit was received from the claimant on 7 September 1989.  As the Department was aware that she had been charged in connection with her husband’s death the claimant was notified that a decision on her claim would be deferred until the outcome of the trial was known.  On 1 December 1989 at Omagh Crown Court the claimant was acquitted of the murder of her husband and there was no alternative verdict.  The trial Judge had directed the jury to consider the question of manslaughter if they found the accused not guilty of murder and it is accordingly clear that the claimant was acquitted of all charges arising out of her husband’s death.

3.	Regulation 8(1) of the Commissioners Procedure Regulations provides as follows:-

		“(1)	Where a forfeiture rule question arises in a case before an adjudicating authority and that authority is not satisfied that the case can be disposed of without that question being determined, the adjudicating authority shall:-

			(a)	if not to the Department require the Department to arrange for the case to be referred to a Commissioner to determine the forfeiture rule question; and

			(b)	if the Department, refer the case to a Commissioner to determine that question,

			and shall inform the person in relation to whom the forfeiture rule question arises that his case is being referred to a Commissioner to determine that question.”

	Regulation 2(1) provides that a “forfeiture rule question” means any question referred to in Article 6(1) or 6(1A) to 6(1H) of the Forfeiture (Northern Ireland) Order 1982, (the Forfeiture Order).

4.	Article 3(1) of the Forfeiture Order defines the forfeiture rule as the 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.

	Article 6(1) of the Forfeiture Order provides as follows:-

		“6(1)	Where a question arises as to whether, if a person were otherwise entitled to or eligible for any benefit or advantage under a relevant enactment, he would be precluded by virtue of the forfeiture rule from receiving the whole or part of the benefit or advantage, that question shall (notwithstanding anything in any relevant enactment) be determined by a Commissioner.”

5.	Following the claimant’s acquittal on 1 December 1989 her solicitors, Messrs Millar, Shearer & Black of 40 Molesworth Street, Cookstown, requested the Department to arrange for all pensions and allowances (including arrears) to be made available to the claimant as soon as possible.  In a letter to the Department dated 18 January 1990 the Solicitors stated as follows:-

		“[The claimant] has not committed any unlawful act and we cannot see how this case falls into the category of those where public policy prevents an applicant from taking benefit.”

6.	The effect of an acquittal in cases of this nature has been considered by the Commissioners in Great Britain in a number of cases.  One view was that the Commissioner could not go behind an acquittal by a competent criminal court, which was to be regarded as conclusive proof that there had not been an unlawful killing, and that accordingly it must be held that the forfeiture rule did not apply for social security benefit purposes.  This view was rejected in two later cases decided by Tribunals of Commissioners where the subject was considered in depth:- CSG/1/87 and R(G) 2/90.  I respectfully agree with most of the conclusions reached in those decisions.  On the main point of the effect of an acquittal by a criminal court I agree that this should not in all cases be regarded as conclusive proof that there was no unlawful killing.  The verdict of the Court must always rank as a most important factor; but I fully accept that there could be exceptional circumstances in which, notwithstanding the claimant’s prior acquittal, it would be proper to invite the Commissioner to consider whether the killing was unlawful, and open to him to decide that it was.  In my view the definition of a “forfeiture rule question” is wide enough to embrace the preliminary question of whether there was an unlawful killing; without which the forfeiture rule could not arise.  This means that in a limited number of cases 2 different types of forfeiture rule questions may require consideration:-

	(a)	a preliminary question as to whether there has been an unlawful killing; and

	(b)	what I would describe as the normal or regular question as to whether the circumstances surrounding the unlawful killing were such that the forfeiture rule precludes the claimant from receiving benefit.

	I further agree that once an adjudicating authority has decided that a forfeiture rule question arises and it has been referred to a Commissioner under regulation 8 of the Commissioners Procedure Regulations, the Commissioner must undertake an enquiry as to the possible application of the forfeiture rule.

7.	I have, however, some reservations regarding the views of the GB Commissioners Tribunals on the approach of the Adjudication Officer to preliminary question (a) in a case such as this.  Paragraph 12 of decision CSG/1/87, which was expressly approved in R(S) 2/90, reads as follows:-

		“For the foregoing reasons we are satisfied that the claimant’s acquittal does not foreclose the question raised before us by the Adjudication Officer.  Moreover the raising of that question does not in our judgment place any onus of disproof on the claimant.  It is for the Adjudication Officer to justify the reference, and if it is maintained that there has been an unlawful killing the onus in that regard also rests on the Adjudication Officer.  But while the Adjudication Officer must in every case show that the circumstances properly give rise to the question referred, as we are satisfied he has done in this case, it is perfectly proper for him in circumstances such as the present to adopt a neutral stance thereafter and to leave the question referred before us on an open submission.”

	Despite the references to the onus in regard to an unlawful killing and the need to show that the circumstances properly give rise to the question referred, it seems to have been accepted in both cases that the Adjudication Officer was not required to challenge the jury’s verdict.  As I have indicated I agree that in certain circumstances it may be entirely proper to conclude that a killing was unlawful and that the forfeiture rule applies notwithstanding the claimant’s prior acquittal; but in my opinion it can only be right to do so where there are grounds for concluding that, despite the verdict of the jury, the killing was unlawful.  If the Adjudication Officer is unable to identify any such grounds I find it difficult to see how it could be contended that a forfeiture rule question arises.  Where there has been an acquittal and it is nevertheless maintained that a forfeiture rule question arises, I consider that it must also of necessity be maintained that there was an unlawful killing, and it seems to me that the Adjudication Officer would be quite unable to discharge the onus in that regard unless he could point to some circumstance which would indicate that the verdict should be ignored.  A neutral stance or an open submission on what I have referred to as the normal or regular question as to whether the Forfeiture Rule precludes the claimant from receiving benefit may well be entirely appropriate; but only after it has been demonstrated that the circumstances properly give rise to the question referred.  I am therefore of the opinion that in future cases of this nature, where the claimant has been acquitted of all charges arising from the death of the deceased, the adjudicating authority should not refer the case to the Commissioner on the basis that a forfeiture rule question arises unless there is some circumstance or factor which tends to suggest that, despite the verdict of the criminal court, the killing was unlawful.

8.	The instant case has been referred to me under regulation 8 of the Commissioners Procedure Regulations and as stated in paragraph 6 above, I accept that I am under an obligation to undertake an inquiry as to the possible application of the Forfeiture Rule.  My knowledge of the facts surrounding the death of the claimant’s husband has been derived from a reading of the Judge’s charge to the jury in the case at Omagh Crown Court.  I have also considered and taken full account of the points raised in the written submission on the claimant’s behalf.  It is unnecessary for me to refer to those points in detail but I feel it right to record that in many respects they reflect my thoughts on the case.  I have also had regard to the views expressed by the Tribunal of Commissioners in GB decision R(G) 2/90 on the standard of proof applicable in these cases and on the status of a jury verdict.  I respectfully agree with the conclusions reached by the Commissioners on these matters and having considered all the circumstances in the present case I find that it has not been established that the claimant unlawfully killed her husband.  The forfeiture rule does not therefore apply and the claimant is not precluded from receiving benefit as set out in form MF15(U) following the death of her husband.  The question of modification under the provisions of Article 6(1A) of the Forfeiture Order does not arise.

9.	I remit this case to the Adjudication Officer to make the appropriate award of benefit in the light of my decision as set out in paragraph 8 above.

	(Signed):  R R Chambers

	CHIEF COMMISSIONER

	2 October 1990