UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CFP_2688_2004 (08 June 2005)

CFP/2688/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is that the claimant is precluded by virtue of the forfeiture rule, as defined in section 1(1) of the Forfeiture Act 1982, from receiving the inheritable component of his late wife's graduated retirement benefit. I do not modify the effect of that rule.

REASONS

2. Section 1(1) of the Forfeiture Act 1982 defines for the purposes of that Act the term "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) has the effect that it is for a Commissioner to decide whether, if a person would otherwise be entitled to certain social security benefits, including graduated retirement benefit, he is precluded by virtue of the forfeiture rule from receiving the whole or part of that benefit. Section 4(1A), inserted by the Social Security Act 1986, has the effect that, where the Commissioner is satisfied that the forfeiture rule applies, he may modify the effect of that rule. Regulation 14(1)(c) of the Social Security Commissioners (Procedure) Regulations 1999 (S.I. 1999 No. 1495) provides for the Secretary of State to refer to a Commissioner any question arising under section 4(1) or (1A) of the 1982 Act and in effect requires the Secretary of State to refer any case where entitlement to benefit arises out of an unlawful killing (R(G) 2/90). The case before me arises on such a reference.

3. On 8 September 2003, at Swansea Crown Court, the claimant pleaded guilty to the manslaughter of his wife on the basis of diminished responsibility. On 13 January 2004, Roderick Evans J made a hospital order under section 37 of the Mental Health Act 1983 with a restriction order under section 41 of that Act without limitation of time.
4. The Secretary of State has provided me with the transcript of the proceedings before Roderick Evans J on 13 January 2004. It is not disputed that the claimant killed his wife on 12 May 2003 by applying pressure to her face and her neck – "in effect by suffocation and strangulation", as counsel for the prosecution put it. It is also not disputed that the claimant was suffering, both in May 2003 and in January 2004, from mental illness in the form of a severe delusional disorder. It manifested itself both in a firmly fixed but erroneous belief, unamenable to any reason, that his wife was having an affair and in jealousy based upon the delusions, which was accepted by the consultant forensic psychiatrist who gave evidence to Roderick Evans J as "going beyond any normal or natural jealous emotion". There was also evidence of an early onset of dementia, which might have been linked to the delusions. The claimant remains in hospital.
5. It appears that the claimant killed his wife in the course of a row arising out of his belief she was having an affair. He then consumed a quantity of paracetamol and travel sickness tablets, together with alcohol, and telephoned one of his daughters. He told her that he had taken some tablets and said: "There's nothing you can do for me now – Mum's dead – there's nothing you can do for me." She rang 999 and police officers went to the claimant's house. Looking through the window, they saw him sitting unresponsively with a glass in his hand. His wife's body was on the floor. He did not respond to the presence of the police officers and they forced an entry. His wife could not be resuscitated. The claimant was taken to hospital because of his condition. While there, he admitted that he had killed his wife.
6. The claimant was then aged 73. His wife had been aged 70. They had been married for fifty years. They were both still engaged in part-time work; he as an insurance broker and she as a hairdresser. Relevant to this case is the fact that, in addition to her Category A retirement pension, the claimant's wife was entitled to graduated retirement benefit at the rate of 94 pence per week. By virtue of section 37 of the National Insurance Act 1965, as continued in force by regulation 3 of, and Schedule 1 to, the Social Security (Graduated Retirement Benefit (No. 2) Regulations 1978 (S.I. 1978 No. 393), a widower whose wife dies after they had both attained pensionable age normally becomes entitled to additional graduated retirement benefit equal to half his late wife's entitlement. The 1978 Regulations are made under a "relevant enactment" as that term is defined by section 4(5) of the Forfeiture Act 1982. Graduated retirement benefit therefore falls within the scope of section 4(1) and (1A) of the 1982 Act.
7. The principal question that arises on this reference is whether the forfeiture rule necessarily applies in a case where a hospital order has been imposed following a conviction for manslaughter based on diminished responsibility. In R(G) 3/84, the Commissioner held that it did not, but it is necessary to consider whether that decision should be followed in the light of subsequent decisions of the courts. If the forfeiture rule does not necessarily apply, the question will arise as to whether it should apply on the facts of this particular case. If it does apply, the question will arise as to whether the effects of the rule should be modified in this particular case.
8. The forfeiture rule is, as section 1(1) of the 1982 Act implies, a general rule of law which applies not only where entitlement to social security benefits is in issue. It was developed in cases where a person might be entitled to an inheritance under the will of a person he had killed. A similar approach was taken to the question whether a person was entitled to be indemnified under an insurance policy in respect of damages owed to a person he had killed. The rule is based on public policy, as perceived by judges, and the exact limits of the rule have never been definitively drawn. The principle lying behind it is that a person should not benefit from his own wrongdoing but, where a person has been suffering from mental illness, the question arises whether his culpability is sufficient to bring the rule into operation. A similar question arises where the causing of death is the unintended consequence of a relatively minor criminal act and some of the relevant cases were decided in that context.
9. In Re Houghton, Houghton v. Houghton [1915] 2 Ch. 173, the issue was whether a man who had been indicted with the murder of both his father and his brother was entitled to a statutory share of the estate of his father who had died intestate, where the indictment for the murder of his father had not been proceeded with because he had been found to have been insane when he killed his brother. Joyce J had serious doubts (wrongly held in the light of subsequent decisions) as to whether the forfeiture rule could have the effect of disapplying the statutory provisions normally applicable in a case of intestacy but he held that, in any event, the rule did not apply in the case before him because it was clear that the son would not have been found guilty of any criminal offence had he been tried for his father's murder.
10. In Gray v. Barr [1971] 2 Q.B. 554, the Court of Appeal affirmed a decision of Geoffrey Lane J [1970] 2 Q.B. 626 that a man was not entitled to be indemnified under an insurance policy which indemnified him against damages in respect of bodily injury caused by accident. The claimant under the policy had unintentionally shot a man whom he had been threatening with a shotgun. He had been acquitted of both murder and manslaughter, following a summing up by Melford Stevenson J that Salmon LJ described as "remarkable for failing to draw the jury's attention to the formidable evidence against Barr". The Court of Appeal proceeded on the basis that the claimant could properly have been convicted of manslaughter. Lord Denning MR and Phillimore LJ held that the shooting was not an "accident" but Salmon LJ agreed with Geoffrey Lane J and would have decided the case on the ground that the shooting was an accident but not of a type intended to be insured under the policy. In these circumstance's the Court of Appeal's views as to the scope of the public policy rule preventing a person from claiming on an insurance policy as a result of his own wrongdoing were obiter but none of the members of the Court took the view that the mere commission of a crime necessarily brought the rule into play. Lord Denning MR agreed with Geoffrey Lane J's test for the application of the rule: that a person was not to be indemnified if he was "guilty of deliberate, intentional and unlawful violence, or threats of violence". He referred to "motor manslaughter" cases in which it had been held that a person was entitled to be indemnified under a motor insurance policy, unless his conduct was wilful because, for instance, the insured had deliberately tried to run someone down (see Hardy v. Motor Insurers' Bureau [1964] 2 Q.B. 745). Salmon LJ made it clear that he was "not deciding that a man who has committed manslaughter would, in any circumstances, be prevented from enforcing a contract of indemnity in respect of any liability he may have incurred for causing death or from inheriting under a will or upon the intestacy of anyone whom he has killed". Phillimore LJ agreed with both Lord Denning MR and Salmon LJ that "manslaughter varies from conduct which is almost murder to conduct which is criminal in the technical sense" and considered it "would be foolish to attempt to lay down any general rule".
11. In In re Giles (decd.), Giles v. Giles [1972] Ch. 544, decided five weeks later, Pennycuick V-C took a more stringent approach. He accepted that it was "well established by authority" that the forfeiture rule had no application where the killer was insane but he held that the forfeiture rule applied to prevent a widow from taking any benefit under her husband's will where she had pleaded guilty to his manslaughter on the ground of diminished responsibility and a hospital order and restriction order had been made. That was so notwithstanding that he thought that the husband's death as the result of a single blow from a domestic chamber pot might have been unexpected. He said:

"It is accepted that a person convicted of manslaughter by reason of diminished responsibility has indeed been convicted of a crime. Therefore, on the face of it, such a person in the present connection is in precisely the same position as anyone who was convicted of manslaughter under the law as it stood before the introduction of the Homicide Act 1957. And the cases have established beyond question that a person so convicted of manslaughter is disqualified from taking a benefit under the will or intestacy of the person whom he has killed.

12. In In re K (Deceased) [1985] Ch. 85, Vinelott J pointed out that Pennycuick V-C had not been referred to Gray v. Barr in which Salmon LJ had expressly refrained from suggesting that all manslaughter cases should result in the application of the forfeiture rule in inheritance cases. He also pointed out that, in Regina v. Chief National Insurance Commissioner, Ex parte Connor [1981] Q.B. 758 (also reported as an appendix to R(G) 2/79), the Divisional Court had applied the Gray v. Barr approach when deciding that the forfeiture rule applied on a claim to widow's benefit made by a woman who had been convicted of manslaughter and placed on probation for two years after stabbing her husband. Vinelott J concluded that the Gray v. Barr test was as applicable in inheritance cases as in insurance cases but he decided that the forfeiture rule nonetheless did apply in the case before him where a woman, who had suffered some violence at the hands of her husband, unintentionally shot him with a shotgun with which she had been threatening him. That result is unsurprising given the similarity of the facts to those in Gray v. Barr itself. However, Vinelott J was able to rely upon section 2 of the recently introduced Forfeiture Act 1982 to grant the claimant relief from forfeiture. An appeal against his decision under section 2 was dismissed ([1986] Ch. 180). Subsequently, a Tribunal of Commissioners held that the forfeiture rule applied to prevent the widow gaining entitlement to an increased retirement pension based on her late husband's contributions and that section 4 of the Forfeiture Act 1982, as in force at the time of their decision in March 1986, did not allow them to modify the rule (R(P) 1/88).
13. In Re H (deceased) [1990] 1 F.L.R. 441, Peter Gibson J applied In re K (deceased) in preference to In re Giles (deceased) and held that the forfeiture rule did not apply unless the claimant had been guilty of deliberate, intentional and unlawful violence or threats of violence. In that case, the claimant had been suffering from depression and been prescribed an anti-depressant towards which one consultant psychiatrist found him to have had an idiosyncratic response. It appears that he had had an entirely happy marriage before his illness developed. He told the psychiatrist that, on the night of the killing, he had been unable to sleep, had become increasingly agitated and had come to believe his wife had been unfaithful to him. In the early hours of the morning, his wife had gone to the toilet but he had believed she had gone to a man in the next room. He had attempted to choke her and had then taken a knife from the kitchen and stabbed her. He had been found standing over her body. Two psychiatrists found the claimant to be suffering from a severe psychotic illness. The claimant's plea of not guilty of murder but guilty of manslaughter on the grounds of diminished responsibility was accepted by the Recorder of London, who said that he was "satisfied there was no responsibility left at all" and made a hospital order but no restriction order. Peter Gibson J agreed that the claimant "was not responsible for his acts which were not deliberate or intentional" and he held that the forfeiture rule did not apply in those circumstances.
14. All these cases were reviewed by the Court of Appeal in Dunbar v. Plant [1998] Ch 412, although that was in fact a case where the claimant had aided and abetted the deceased to commit suicide, rather than being a manslaughter case. Mummery LJ held that, although all the cases since Gray v. Barr had repeated the reference to acts or threats of violence, those references were explicable by the facts of the cases and that, for the forfeiture rule to apply, it was "sufficient that a serious crime has been committed deliberately and intentionally". Phillips LJ, with whom Hirst LJ agreed, approached the issue from a different angle. He pointed out that, before Re H (deceased), all the cases except the motor insurance cases had resulted in the forfeiture rule being applied and the motor insurance cases could be explained on the ground that an overriding public policy required the existence of valid insurance for the benefit of the family of the victim. He said:

"So far as the [forfeiture] rule is concerned, it is hard to seen any logical basis for not applying it to all cases of manslaughter. Lord Denning MR himself remarked in Gray v. Barr: 'In manslaughter of every kind there must be a guilty mind. Without it, the accused must be acquitted …'.

"In the crime of manslaughter, the actus reus is causing the death of another. That actus reus is rendered criminal if it occurs in one of the various circumstances that are prescribed by law. Anyone guilty of manslaughter has, ex hypothesi, caused the death of another by criminal conduct. It is such circumstances that the rule against forfeiture applies."

"However, the harshness of applying the forfeiture rule inflexibly to all classes of manslaughter is such that I do not consider that, absent the statutory intervention which occurred, the rule could have survived unvaried to the present day. The obiter dicta of Salmon and Phillimore LJJ in Gray v. Barr and Lord Lane CJ in Ex parte Connor were straws in the wind. The rule is a judge-made rule to give effect to what was perceived as public policy at the time of its formulation. I believe that, but for the intervention of the legislature, the judges would themselves have modified the rule. Furthermore, it seems to me that that the only logical way of modifying the rule would have been to have declined to apply it where the facts of the case involved such a low degree of culpability, or such a high degree of mitigation, that the sanction of forfeiture, far from giving effect to the public interest, would gave been contrary to it. Alternative suggestions that the rule should be restricted to cases of deliberate killing, or deliberate violence leading to death, do not cater for cases of diminished responsibility or provocation, where the mitigating features may be such as to render it particularly harsh to apply the forfeiture rule.

"The pressure for judicial intervention of the type contemplated was removed by the Forfeiture Act 1982. The manner of operation of the Act and, in particular, of section 2(5), was considered by Vinelott J in In re K (deceased). …

"As Vinelott J demonstrated, the Forfeiture Act 1982 has given the court a greater degree of flexibility than could have been achieved by judicial modification of the rule. That modification had been foreshadowed but had not taken place when the Act was passed. I can see no reason now for the court to attempt to modify the forfeiture rule. The appropriate course where the application of the rule appears to conflict with the ends of justice is to exercise the powers given by the Act."

Accordingly, it was held that Peter Gibson had been wrong to hold that the forfeiture rule did not apply J in Re H (deceased) – his decision was inconsistent with the guilty plea – and that he should have held that the forfeiture rule applied and then granted relief from forfeiture.

15. In the light of Dunbar v. Plant, it is clear that the forfeiture rule should be taken to apply in all cases where a Commissioner is satisfied that the claimant is guilty of manslaughter, even if, as in Gray v. Barr, he has been acquitted in a crown court. It follows that R(G) 3/84, which has already been said to have been decided on its own special and particular facts and not to afford guidance in other cases (R(P) 1/88), can no longer be regarded as having been correctly decided.
16. However, I leave open the possibility of a Commissioner being satisfied that a finding by a crown court that a person was guilty of manslaughter on the ground of diminished responsibility was, on the facts of the case, inappropriate and that a finding that he was not guilty by reason of insanity would have been more appropriate. Re H (deceased) can, perhaps, be seen as such a case. The practical effects of a finding that a person is not guilty by reason of insanity are similar to those where a hospital order is made following a finding that a person is guilty of manslaughter on the ground of diminished responsibility. However, there are two important differences. A judge cannot accept a plea of not guilty by reason of insanity – the issue must be put to a jury – and sentences other than hospital orders may be imposed on people who are found guilty of manslaughter. In those circumstances, there are clear reasons why a person might plead guilty to manslaughter rather than plead not guilty by reason of insanity. However, it is unnecessary for me to consider this issue further because there is certainly no evidence upon which I could properly conclude that the present claimant had no responsibility at all for the killing of his wife.
17. As the forfeiture rule applies in the present case, I must consider whether its effect should be modified. In Dunbar v. Plant, it was held that the culpability of the claimant was the paramount consideration. Here the claimant's culpability is low. On the other hand, the amount of money at stake is very small – just 47 pence per week. The claimant himself does not seek relief from forfeiture of that small amount, although he reserves the right to resist forfeiture in any other case that might arise out of the killing. I do not consider that the forfeiture rule acts harshly in this case. On the contrary, it appears to me to be just that the claimant should not gain that small windfall as a result of killing his wife. Accordingly, I do not modify the effect of the forfeiture rule.

(signed on the original) MARK ROWLAND

Commissioner

2 June 2005