R(G) 1/98

Mr. P. L. Howell QC	CG/14509/1996
20.11.97
Commissioners’ jurisdiction - Forfeiture Act 1982 - whether Commissioner able to modify forfeiture of social security benefits in cases of unlawful killing - principles affecting exercise of discretion
The claimant, who had been convicted and sentenced to four years imprisonment for the manslaughter of her husband, claimed widow’s benefits on his contributions following her release from prison. On reference to the Commissioner under section 4 of the Forfeiture Act 1982 (as amended) of the questions whether the widow’s benefits were forfeited by operation of law, and if so whether the effect of the forfeiture should be modified,
Held, that:
1.	the forfeiture rule applied. The jury’s verdict showed that the claimant had caused her husband’s death by an intentional, violent and unlawful act, and this was outside the small category of exceptional cases of voluntary or excusable acts where the forfeiture rule had been held in the past not to apply: Re Giles decd. [1972] Ch 544, Re H decd. [1990] FLR 441 distinguished;
2.	the jurisdiction of the Commissioner to modify the effect of the rule now extended to giving total relief against forfeiture of benefits in a proper case: Dunbar v. Plant [1998] Ch 412, [1997] 4 All ER 289 applied; R(G) 3/90 not followed;
3.	however this was not a case where it was right to remove the operation of the rule in its entirety; but taking into account the circumstances (in particular that the claimant was doing her best to re-establish herself and provide a stable home base for the children) the justice of the case required a substantial modification by reinstating the widow’s benefits until the claimant reached pensionable age, after which she would be entitled to 50% of the Category B retirement pension on her husband’s contributions instead of losing it altogether.

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. 	My decision is that:
(1) 	the circumstances of the unlawful killing of the claimant’s late husband on 3 November 1990 were such as to give rise as to the operation of the rule of public policy known as the forfeiture rule which precludes the claimant from receiving widow’s benefit arising from his death;
(2) 	I modify the effect of that rule in exercise of the powers under s. 4(1A) Forfeiture Act 1982 as regards the widow’s benefit claimed by her on 16 October 1995 and pursuant to s. 4(1E) direct that this decision shall also apply in relation to any future claim by the claimant for a widow’s benefit or category B retirement pension under the Social Security Acts in respect of which it is necessary to found upon the death of her late husband;
(3) 	the extent of the modification is that notwithstanding the operation of the forfeiture rule the claimant is from the first day of the benefit week after the issue of this decision to be entitled to the full amount of any widowed mother’s allowance to which she would otherwise be entitled under s. 37 Social Security Contributions and Benefits Act 1992, the full amount of any widow’s pension otherwise payable to her under ss. 38‑39, the full amount of any widow’s invalidity pension that otherwise might become payable to her under s. 40, and 50% of any category B retirement pension to which she would otherwise have been entitled by virtue of his contributions under ss. 49‑50; and 
(4) 	pursuant to those modifications and the consent given on behalf of the claimant to the question of her immediate entitlement being dealt with by me on her claim dated 16 October 1995 without the need for the matter to be referred back to an adjudication officer, I determine that she is entitled to widowed mothers’ allowance under s. 37 from the first day of the benefit week after the issue of this decision for so long as she continues to satisfy the conditions for that benefit.
2.	This is a reference by the adjudication officer, under s. 4 Forfeiture Act 1982 as amended, of questions which have under that Act to be determined by a Commissioner. Such cases are fortunately rare and each one has to be determined on its own particular facts. In this case the claimant is a lady now aged 46 and the questions arise out of the death of her late husband in a violent struggle that took place between the two of them on 3 November 1990, which resulted in her being convicted of his manslaughter after undergoing two murder trials. She was sentenced to four years imprisonment, the whole of which she had in fact already served by the conclusion of the second trial.
3. 	I held an oral hearing at the request of the claimant’s representatives. Ruth Bamforth of the DSS solicitors’ office appeared for the adjudication officer. The claimant was represented by Keith Puttick, a solicitor and law lecturer acting as a consultant to her solicitors, Stephens Innocent. Nuala Cosgrove of that firm also attended the hearing and gave me concise and helpful information about the background to the case and other related proceedings in which her firm had been involved.
4. 	Mr. Puttick made numerous submissions on the facts of the case and the circumstances surrounding the death of the claimant’s husband, and I must go into them to some extent in order to deal with the two main submissions he made, that this was not a case where the forfeiture rule was applicable at all or that if it was the right course was for me to grant total relief from its consequences as far as social security is concerned.
5. 	According to the careful and thorough summing up by the judge at the claimant’s second trial on 19 December 1994, of which I have a copy of the transcript at pages 20‑78, the claimant’s husband died in the small hours of the morning of Saturday 3 November 1990 in a terrible scene of violence in the living room of their house, while their teenage children were in bed upstairs. At the end of it he lay dead with fourteen hammer blows to the head and his skull fractured, and twenty eight knife wounds to the body, mainly in his left side and abdomen. The actual cause of his death had been a stab wound inflicted by the claimant which had involved the knife, some six or seven inches long, being plunged through his ribs up to the hilt, penetrating his ribcage and right through his lung into his liver. This caused internal bleeding from which he took ten or fifteen minutes to die, shouting and moaning while the claimant was apparently holding him down on the floor. She herself was also seriously injured, having two black eyes, bruising to her face and body and her front teeth knocked out, consistent with her being punched violently and repeatedly, although there did not appear to be any evidence of a knife or other weapon being used against her.
6. 	The judge drew the jury’s attention to the fact that there was some history of violence against the claimant by her husband, about half a dozen instances in the past three years including a black eye on at least one occasion, although the only evidence of anything serious enough to warrant medical attention had been some six months earlier, when she had been given a dressing by her GP for bruising on her foot consistent with it being stamped on. There was also some evidence of violence by her husband directed against their son, including an incident when a row between the two of them had ended in the boy barricading himself in his bedroom and his father breaking his way in and giving the boy a bleeding nose. The jury’s attention was also drawn to evidence that the claimant had been prescribed temazepam for symptoms of anxiety and loss of sleep, and that on the night he died the claimant’s husband had got hold of and swallowed a large dose of this medication, following which he had begun to act oddly and then had fallen asleep on the sofa for some hours, before he had apparently woken up shouting and the violence began.
7. 	The judge drew the jury’s attention to detailed evidence that had been put before them from a professor of psychopharmacology as to the possible paradoxical effects of this particular drug in making people angry, paranoid and aggressive after the initial sleeping effect has worn off, and directed them that it would not be unreasonable to suppose the claimant’s husband had been under its influence when he woke up. He also directed them in exemplary fashion about the necessary elements for the charges of unlawful killing they had to consider. He made it clear in particular that they had to be satisfied beyond reasonable doubt that the fatal blow was not inflicted accidentally and that the claimant had not been acting reasonably in self defence. If they were not so satisfied, he directed them specifically that they must acquit her, as she would not then be guilty of any crime as charged, either murder or manslaughter.
8. 	The jury returned unanimous verdicts of not guilty on the count of murder but guilty on the count of manslaughter, which meant that they were satisfied beyond reasonable doubt that the claimant’s stabbing of her husband was not accidental or in the course of reasonable self‑defence. As the judge pointed out in his observations on passing sentence at page 78b they plainly accepted that it was the claimant who was responsible for her husband’s death, and there were two (and only two) possible bases for their verdict of manslaughter; though he had directed the jury that it was not necessary for them to say which they considered to apply here, and they had not done so. Those two bases were either that the claimant had intended to harm her husband but not to cause his death or really serious harm; or that she had intended to cause him serious harm but had been provoked into doing so. In either event the judge concluded that a moderate sentence of imprisonment would be sufficient, although the claimant had committed a serious crime for which punishment was deserved. In the circumstances he held the appropriate sentence of imprisonment to be one of four years.
9. 	In my judgment there can be no doubt that the rule of public policy which at common law prevents the claimant from taking any benefit or advantage by reason of her husband’s death applies in those circumstances. On the jury’s verdict she caused his death by an intentional, violent and unlawful act which as the judge held amounted to the commission of a serious crime. There is in my judgment no question of such facts falling within the small category of exceptional cases of involuntary or excusable acts causing death where the forfeiture rule has been held in the past not to apply (see e.g. Re Giles decd. [1972] Ch 544, Re H decd. [1990] 1 FLR 441), and for recent authority that the rule is applicable generally to all cases of unlawful killing even though there is no intention to bring about the unlawful fatal consequences see Dunbar v. Plant [1997] 4 All ER 289, 300 e-j.
10.	I therefore reject Mr. Puttick’s first main submission and hold that the forfeiture rule is applicable in this case so that the claimant is precluded from receiving any benefit or advantage under the Social Security Acts by virtue of her husband’s death, except insofar as those consequences are modified in the exercise of the discretion conferred under s. 4 of the Forfeiture Act.
11. 	Mr Puttick next sought at some length in oral and written submissions to establish that the discretionary power of modification conferred on me by ss. 4(1A)‑(1H) of the Act as amended in 1986 and applicable to this reference extended to removing the effects of the rule altogether, and said I ought to do so in this case. He submitted that I ought to determine the extent of the jurisdiction by reference to Hansard, applying the principles in Pepper v. Hart [1993] AC 593. This was opposed by Miss Bamforth who drew my attention to the decision of a tribunal of Commissioners in case R(G) 3/90 which had held that the Act permitted a limited modification only. Notwithstanding this Mr. Puttick pursued his submission that Hansard would show a wider intent but without referring me to any specific passages. In view of this I gave him leave to identify in a further written submission after the date of the hearing any specific statement he had in mind as admissible on the Pepper v. Hart principle in support of his proposition, though without prejudice to any argument by the adjudication officer that the conditions for taking account of such material were not met.
12. 	In the event, Mr. Puttick lodged further written submissions dated 30 September 1997 at pages 121‑133 and 29 October 1997 at pages 140‑147 reiterating and amplifying various submissions he had already made and merely giving a general list of Hansard references, without identifying any that specifically supported his proposition in the clear and unambiguous terms which alone make reference to Hansard permissible under the Pepper v. Hart principle, see in particular per Lord Browne‑Wilkinson [1993] AC 640C.
13. 	This method of invoking reference to Hansard is unacceptable before the Commissioners as it would be before any other court of law. It appears to me just the sort of inappropriate use of such material Lord Browne‑Wilkinson had in mind at page 637E, as likely to result in ordinary litigation in an order for costs against those putting the other side to unnecessary trouble and expense in dealing with it. Matters were made no better when the Court Service left out the “not” from a letter I had directed to be written indicating that reference to Hansard might not be needed in any case in view of Dunbar v. Plant. In fact, when the solicitors to the adjudication officer with their usual care and objectivity carried out some systematic research for which I am very grateful, it transpired that the Parliamentary material did contain two specific references, which so far from supporting Mr. Puttick’s proposition explicitly negated it.
14. 	However I have reached the conclusion that the submissions on the extent of the jurisdiction were in every sense academic and it is not necessary for me to dwell on them further, for two reasons. The first is that in Dunbar v. Plant cited above the Court of Appeal held on 23 July 1997 that the Court’s discretion under s. 2 of the Forfeiture Act, which for this purpose is exactly comparable, extended to giving total relief against the operation of the rule in a proper case. In my judgment that decision is binding on me and has the effect of overruling the decision of the tribunal of Commissioners to the contrary in R(G) 3/90, even though the Court of Appeal’s attention was unfortunately not drawn to it. If the question of the extent of the jurisdiction under ss. 2 and 4 of the 1982 Act should come to be considered again at some higher level it may be necessary to decide whether account should be taken of the clear and unambiguous statements by the promoter of the legislation in the House of Lords on 29 June 1982 (432 HL Deb col 198) and the Solicitor‑General in the Commons (9 July 1982, 27 HC Deb col 584) which appear to show that its intended effect was as held by the Commissioners and not the Court of Appeal; but that is not a matter for me.
15. 	The second reason is that Mr. Puttick has not satisfied me that this could be a case where it would be right to modify the forfeiture rule so as to remove its operation in its entirety even though I may have the power to do so.
16. 	I come therefore to the only real issue which is the way in which the discretion under s. 4(1A) should be exercised in this case. As with the parallel jurisdiction of the ordinary courts under s. 2 my discretion is a complete one, but I am enjoined by s. 4(1B) that I may not exercise it unless satisfied that having regard to the conduct of the claimant and of the deceased and to such other circumstances as appear to me material, the justice of the case requires the effect of the rule to be modified in some way.
17. 	As regards the conduct of the claimant and of her late husband it seems to me that I must be guided by the findings of the jury having regard to the evidence before them as set out in the judge’s summing up and the issues in the case, as regards which Miss Cosgrove helpfully confirmed that the transcript before me was accurate. This means as I have said that the unlawful killing with which I am concerned was the result of a violent criminal act, and was not accidental or in self‑defence; although either the intention to cause really serious harm had not been proved, or it had but what took place had been partially mitigated by provocation on the part of the husband.
18. 	Mr. Puttick sought to urge on me that should take a less serious view of these events than did the jury or the judge, saying in particular that knowledge of “battered wife syndrome” and the possible adverse effects of temazepam had advanced since the trial in December 1994 and justified looking at the whole matter in a different light. The only actual evidence put forward in support of these submissions is the report of an experienced pharmacist on general advances in the knowledge of temazeparn since 1994, which I gave leave to submit after the oral hearing, pages 131‑132 of the appeal file.
19. 	I am quite unpersuaded that on these points or any others the justice of the case requires me to take any view of the circumstances of the death of the claimant’s husband that diverges from the verdict and sentence of the judge and jury. Domestic violence by men against women has unhappily been well known to the courts for many years before the expression “battered wife syndrome” was even thought of but even the expression was in use in the parliamentary proceedings in 1982, and in legal proceedings at any rate ten years before this particular trial; see Re K decd. [1985] Ch 85, 92D. The possible paradoxical effects of temazepam in making the claimant’s husband aggressive and violent when he woke up were the subject of specific evidence given at the trial and were emphasised to the jury by the judge, in terms to which the pharmacist’s report at pages 131‑132 adds nothing at all. In any case, the only relevance of these two points would be to substantiate a defence of provocation which it appears highly likely the jury in fact accepted. Neither point could have been relevant to the alternative possible basis for the manslaughter verdict, since that would have depended on the particular intent the claimant had at the time of striking the fatal blow; not on the causes or likelihood of her getting into the violent struggle with her husband.
20. 	I therefore reject Mr. Puttick’s submissions that I should approach the question of modification on any other basis than that the claimant was responsible for an intentional, violent and unlawful act which caused the death of her husband and was not accidental or in self‑defence; though it took place in the context of some past history of violence towards her and the children, and undoubted immediate violence towards her in the course of the struggle itself which it appears quite probable the husband was responsible for starting. I also take account of the judge’s view that a moderate sentence of imprisonment was the appropriate punishment for this crime, and of the sentence he imposed being one that resulted in her immediate release. The implication of this is that he took the view that she had by then been punished enough, and no further punishment was called for or appropriate.
21. 	This must carry implications as to the severity with which the forfeiture rule should be allowed to operate as regards the claimant, but I do not think it at all follows that its operation should be removed altogether. While the function of the rule is not in any sense to impose an additional punishment on an offender which is the province of the criminal law, it does remain the rule that as a matter of public policy a person should not be allowed to obtain a benefit from their own unlawful act which they would not be getting otherwise. The allowing of some benefit in such circumstances in spite of the reasons that give rise to it is a matter of discretion, not entitlement.
22. 	Thus I have to take into account that the benefits the claimant is seeking as her husband’s widow will, if paid, impose a very considerable extra burden on the national insurance fund which her fellow contributors and tax payers are asked to shoulder as the direct result of her own unlawful act. Without in any way dragging notions of punishment into the reckoning it does seem to me that there is a distinction to be drawn, in social security as well as in any other form of collective insurance or provision, between some external event or risk giving rise to a claim and the claimant seeking payment on a claim that his or her own intentional and unlawful act has caused. To put it another way, it does not seem to me that fairness and justice require the claim for widow’s benefit in circumstances such the present to be treated as no different from a claim by a widow whose husband has died from some unexpected accident or other external cause. Even though I fully accept that the purpose of the rule is not to impose additional punishment I cannot accept the further step that a total lifting of all forfeiture can be appropriate in such circumstances.
23. 	It is however also necessary to have regard to the conduct of the claimant since the terrible events that gave rise to the forfeiture, and to the likely effects on her and her family of its continuing to operate unmodified. According to what I was told she has done her best to re‑establish herself and provide a home for the children since her release, and more recently as only the youngest one now aged 17 is still with her has managed to cope with a part‑time job and is buying her own council property. There were separate proceedings for modification of the forfeiture rule as regards her husband’s estate, which were compromised by her abandoning all claims to his assets apart from a half share in the net equity in the matrimonial home which came to just under £15,000 and has been put into her house purchase. Her seventeen year old daughter is in full‑time education and living at home, and the claimant is receiving family credit and child benefit to supplement her part‑time earnings.
24. 	It seems to me that by far and away the most important factor that I should take into account under s. 4(1B) is the present need of the claimant for all the support she can get to re‑establish herself and provide a stable home base for the children, to give the best possible chance for them all to recover from the tragedy. In my view the justice of the case does require that nothing should be done to impede that, or to allow the operation of the forfeiture rule to impose further avoidable suffering on the children.
25. 	For that reason, it seems to me that it is right to allow a substantial modification of the rule and to apply that modification predominantly in the early years to assist the family so far as possible to re‑establish themselves, on the basis of benefits to which there is an entitlement as of right without depending on means testing. The major part of any operation of the rule should be deferred until later years, by which time if the claimant has successfully re‑established herself in work she should be able to have made at least some additional provision for herself without having to rely entirely on the pension benefits from her husband’s contributions.
26. 	The claimant’s husband had, I was told, a full contribution record, so that the insured benefits to which she would have become entitled by virtue of his death if there were no forfeiture rule and she had claimed at the proper time were as follows:
(l) 	a widow’s payment of £1,000, under s. 36;
(2) 	widowed mother’s allowance under s. 37 for so as long as her daughter is living with her and child benefit remains payable (as it is at present: the current weekly rate is I think £73.35 including the addition for her daughter);
(3) 	widow’s pension under s. 38 which would become payable when the widowed mother’s allowance ceased (this would be subject to a reduction by almost half because of her age, making the current weekly rate £31.85; a widow’s invalidity benefit might also become payable under s. 40 if she became incapable of work);
(4) 	category B retirement pension on his contributions, for life from 
6 September 2011 when she will be 60¾; the present weekly amount of this is £62.45.
27. 	However the claimant did not make any claim for widow’s benefits until 
17 October 1995, nearly five years after the death of her husband and twelve months after she herself was released from prison. Because of the rules about late claims and the suspension of entitlement to benefits for a person detained in lawful custody, her actual entitlement apart from the forfeiture rule could only be to the weekly benefits from her release from prison in December 1994, and no lump sum could in any event be payable.
28. 	Since the date of her release from prison the claimant has of course not been left destitute and has been receiving weekly means tested social security benefits. I was told that her current rate of family credit was £72.45, or almost the same as the widowed mother’s allowance she would have been receiving but for the forfeiture rule. However it seems to me undesirable in principle that she should continue to be left to depend on means tested benefits alone, and that the justice of the case does require some mitigation of the effects of the forfeiture rule.
29. 	Having regard to all the circumstances I have indicated and the submissions made to me, the fair and just solution is to lift the operation of the forfeiture rule completely from now on for the remaining period while she is still of working age, so as to give her and her family the stability of entitlement to benefits as of right (I see no practical point in doing so retrospectively as she has already received means tested benefits of virtually the same amount), and to restrict the operation of the rule to her personal benefits later in life dependent on her husband’s contributions.
30. 	My decision therefore is that the rule is to be modified so that she becomes entitled to widowed mother’s allowance at the normal rate from the start of the first benefit week after the issue of this decision, and so that the rule shall not apply to deprive her of any entitlement to widow’s pension under s. 38, or if applicable widow’s invalidity benefit under s. 40, should she meet the other conditions for those benefits in due course. As regards the category B retirement pension under s. 49 my decision is that the effect of the rule is modified so that she becomes entitled to 50% of the benefits that would otherwise have applied instead of losing them altogether.
31. 	I would emphasise that the way the discretion under the Forfeiture Act is used in any particular case has to depend very much on the individual facts, so that the way the task has been approached by other Commissioners or the ordinary courts in their parallel jurisdiction in different cases can never be of more than limited assistance. While I have in this case taken account of the fact that the claimant has not sought to press for any very large provision for herself out of her husband’s estate or the former family assets, I do not think that what is done about the private property rights in conssequence of a forfeiture can or should be a major determining factor in relation to social security benefits, for which the considerations are separate.

Date: 20 November 1997	(signed) Mr. P. L. Howell QC
	Commissioner