UK Social Security and Child Support Commissioners' Decisions

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Cite as: [1990] UKSSCSC CG_8_1988

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[1990] UKSSCSC CG_8_1988 (03 May 1990)

R(G) 1/91

Mr. D. G. Rice CG/8/1988

Forfeiture - manslaughter - whether there must be some relief from forfeiture

The claimant married for a second time in May 1972. On 4 February 1973 her husband died of poisoning and she was found guilty of his murder and sentenced to life imprisonment on 20 July 1973. However, on 10 June 1974 the Court of Appeal reduced the verdict to manslaughter but imposed a life sentence. She was released in 1982.

Held that:

just because there can be no relief in the case of murder it does not follow that there must be some relief in the case of manslaughter (para. 11).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the claimant is precluded by virtue of the forfeiture rule from receiving either widow's benefit or that portion of her retirement pension which she would otherwise have derived from her late husband's contribution record. Moreover I decline to modify the effect of the forfeiture rule.

Section 1(1) of the Forfeiture Act 1982 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. Section 4(1) of the Act further provides:

"4.- (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."

Regulation 8(1) of the Social Security Commissioners Procedure Regulations 1987, reads as follows:

"8.- (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) ... arrange for the case to be referred to a Commissioner to determine the forfeiture rule question;

(b) …

and shall inform the person . . . that his case is being referred to a Commissioner to determine that question."

Pursuant to the above statutory provisions the claimant's claim for (i) retirement pension and (ii) widow's benefit for the period prior to her date of retirement, have been referred to me.

I understand that on 16 November 1973 the insurance officer (now the adjudication officer) awarded widow's allowance from 6 February 1973 to 6 August 1973 and widow's pension from 7 August 1973 onwards. One week's payment only was made, namely from 6 February 1973, and all further payments were discontinued on account of the claimant's being in prison. The claimant was in fact released from prison in 1982. She has been in receipt of supplementary benefit rather than widow's benefit as the former was payable at a higher rate. However, the original awards for widow's benefit still subsist and must stand unless and until they are reviewed or set aside on appeal. They were, of course, made without any consideration of the effects of the common law rule of public policy i.e. the forfeiture rule, which then applied and has subsequently been statutorily enacted in the Forfeiture Act 1982 (see R(G) 2/79, upheld by the Divisional Court in R v. Chief National Insurance Commissioner Ex parte Connor [1981] QB 758). It will be open to the adjudication officer to review the awards in question in the light of my decision (see section 104(1A) of the Social Security Act 1975).

The facts of this case are briefly as follows. The claimant, who was then a widow, married for the second time in May 1972. On 4 February 1973 her husband died of poisoning by sodium chlorate (weed killer) and on 20 July 1973, after a trial lasting five days, the claimant, then aged 46, was found guilty of his murder, and sentenced to life imprisonment. The prosecution case was that this was a deliberate, cold blooded and planned killing (she had kept the weed killer for at least seven days prior to the date of the killing wrapped in a piece of tissue paper hidden in the pocket of her apron) that her statement that she merely intended to make her husband vomit was untrue and incredible, and that there was no basis for any suggestion (the burden of establishing which would rest on the defence) of diminished responsibility within the provision of the Homicide Act 1957.

However, on 10 June 1974 the Court of Appeal (Criminal Division) reduced the verdict to one of manslaughter. A doctor called for the defence, Dr. Spencer who had expressed the view that the claimant was suffering from a condition of arrested or retarded development of mind and that the resulting abnormality of mind was such as substantially to impair her mental responsibility for her acts in killing her husband, was questioned on three medical reports produced by three other doctors. Those reports indicated that there was no ground for saying that a finding of diminished responsibility was justified. One of the three doctors (Dr. Tetner) was a potential witness for the defence, whilst the other two (Dr. Beargroft and Dr. Stevenson) were witnesses for the prosecution. Unfortunately, the prosecution did not call the two doctors for the prosecution and their reports were therefore hearsay. Regrettably, the judge did not warn the jury about the need to disregard such evidence. The Court of Appeal said as follows:

"At that stage there is no doubt that the Prosecution, having possession of the reports of Dr. Beargroft and Dr. Stevenson, had it in mind that the doctors would be called in rebuttal of the defence case as to diminished responsibility, and that of course would have been a perfectly proper course to take, the burden of proof of diminished responsibility resting on the defence. If the doctors had been called in rebuttal, no complaint would have been made of the questions put to Dr. Spencer as to the effect of their reports. But at the end of the examination-in-chief, cross-examination and re-examination of Dr. Spencer, Counsel for the prosecution decided that he was not going to call rebutting evidence. He took the view, as he has frankly told us, that the evidence of Dr. Spencer at the end of the day was such that it did not require rebuttal on behalf of the Crown.

The result was that Dr. Spencer had been asked to give evidence as to the effect of the report by these two medical potential witnesses and had given evidence that they did not agree with his, Dr. Spencer's, conclusion. But those two persons were not themselves called to give evidence so that they could be cross-examined and their conclusions could be expounded or tested. It would, no doubt, have been better, looking at it in retrospect at any rate, if immediate complaint had been made on behalf of the defence when counsel for the prosecution indicated, as he did quite categorically, that he was not proposing to call any evidence in rebuttal. Had that been done the problem which has now arisen would, no doubt, not have arisen. However there it was.

In those circumstances, the jury had heard, without any indication to them of its inadmissibility, second-hand evidence as to opinions, adverse to the defence, of medical experts who were not in fact called as witnesses. In the view of this Court it was the responsibility of the judge in those unusual circumstances to make it quite clear to the jury, so that there could be no possible mistake or misunderstanding, that what the jury had heard with regard to the opinions of Dr. Stevenson, Dr. Beargroft and Dr. Tetner was not evidence which the jury could take into account in any way, because it simply was not evidence before them."

Accordingly, the Court of Appeal quashed the conviction for murder and substituted a conviction for manslaughter. Nevertheless, they imposed a life sentence which indicated the view they took of the seriousness of the matter.

The claimant was released in 1982, and thereafter she suffered no financial loss, in that her supplementary benefit exceeded what she would have been entitled to by way of widow's benefit. She has an entitlement to a category A pension in her own right at 57% of the standard rate together with small amounts of additional pension and graduated retirement benefit. However, if she can rely on her deceased husband's contributions, she can establish title to 92% of the standard rate. Moreover, if she can show that she was entitled to a widow's pension immediately before the date of retirement, she will be able to claim a category B retirement pension. The claimant attained pensionable age on 31 October 1986. On 28 October 1986 she gave notice of retirement and claimed retirement pension from 31 October 1986.

The deceased died from poison administered by the claimant. She was convicted of his death, albeit the original conviction for murder was changed to that of manslaughter, and was given a sentence of life imprisonment. Manifestly, the forfeiture rule must apply in respect both of widow's benefit and also that portion of her retirement pension which she would otherwise have derived from her late husband's contribution record. However, that is not the end of the matter. For since the amendment of the Forfeiture Act 1982 by sections 76 and 88(5) of the Social Security Act 1986 I have a discretion, but only as from 25 July 1986, to relieve a person from the effect of the forfeiture rule. The relevant subsections introduced after section 4(1) read as follows:

"(1A) Where a Commissioner determines that the forfeiture rule has precluded a person (in this section referred to as 'the offender') who has unlawfully killed another from receiving the whole or part of any such benefit or advantage, the Commissioner may make a decision under this subsection modifying the effect of that rule and may do so whether the unlawful killing occurred before or after the coming into force of this subsection.

(1B) The Commissioner shall not make a decision under subsection (1A) above modifying the effect of the forfeiture rule in any case unless he is satisfied that, having regard to the conduct of the offender and of the deceased and of such other circumstances that appear to the Commissioner to be material, the justice of the case requires the effect of the rule to be so modified in that case.

(1C) Subject to subsection (1D) below, a decision under subsection (1A) above may modify the effect of the forfeiture rule in either or both of the following ways:

(a) so that it applies only in respect of a specified proportion of the benefit or advantage;

(b) so that it applies in respect of the benefit or advantage only for a specified period of time.

(1D) Such a decision may not modify the effect of the forfeiture rule so as to allow any person to receive the whole or any part of a benefit or advantage in respect of any period before the commencement of this subsection.

(1E) If the Commissioner thinks it expedient to do so, he may direct that his decision shall apply to any future claim for a benefit or advantage under a relevant enactment, on which a question such as is mentioned in subsection (1) above arises by reason of the same unlawful killing.

(1F) It is immaterial for the purposes of subsection (1E) above whether the claim is in respect of the same or a different benefit or advantage.

(1G) …

(1H) …"

It must be noted that the Commissioner is expressly forbidden, pursuant to subsection (1B), to modify the effect of the forfeiture rule unless he is satisfied that "having regard to the conduct of the offender and of the deceased and to such other circumstances as appear to the Commissioner to be material, the justice of the case requires the effect of the rule be so modified". Whilst the matter is at large, it is clear that there have to be factors which prevent the operation of the normal state of events, namely the application of the forfeiture rule. What factors are there in the present case suggesting that I should in some respects modify the effect of the rule? I am afraid that I find none.

This was a case of poisoning, a case where there was obvious premeditation. Moreover, the lethal dose was carried around by the claimant for at least seven days before it was given to the deceased. Further, there was no provocation. No violence was directed at the claimant by the deceased. He did not frighten or terrify her. He was not drunk. What complaints she did have e.g. that the claimant made undue sexual demands, were comparatively trivial, and, if not otherwise satisfactorily dealt with, easily resolved by a divorce. And when the Court of Appeal substituted a conviction for manslaughter for that of murder, they still imposed a life sentence.

I am, of course, aware that by virtue of the successful appeal the claimant was in the event not convicted of murder. Of course, if her appeal had failed, there would have been no question of any relief from forfeiture (R(G) 1/90). But just because there can be no relief in case of murder, it does not follow that there must be some relief in the case of manslaughter. That would be a complete non sequitur. Indeed, there will be no relief in the case of manslaughter either, unless it can be shown, pursuant to subsection (1A), that the justice of the case requires the effect of the rule to be modified. There are, needless to say, instances of manslaughter where the offence has been comparatively minor, and this has been reflected in a very short period of imprisonment, or even a suspended sentence or the imposition of probation. In that sort of case, one could readily envisage that there should be some degree of relief from the effect of the rule. But this is a particularly bad instance of manslaughter. Moreover, the claimant was married for less than a year; this was not a case of someone married for (say) 40 years, so that the moral right to the benefit of the deceased husband's contribution record is less obvious.

Furthermore, although the three medical reports suggesting that the claimant's mental condition did not justify a verdict of diminished responsibility should never have been referred to before the jury, since they constituted hearsay evidence, they are nevertheless something which I may take into account. I am not bound by the rules of hearsay (R v. Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 QB 456 [CA]), and I have to consider all the surrounding circumstances. I am satisfied that the weight of the medical evidence as to whether or not the claimant might be entitled to a finding of diminished responsibility was against her. Accordingly, I see no extenuating circumstances justifying my granting some relief against the effects of the forfeiture rule.

My decision is, therefore, as set out in paragraph 1. As requested, I remit the case to the adjudication officer to dispose of in the light of my decision.

Date: 3 May 1990 (signed) Mr. D. G. Rice

Commissioner