DECISION
OF THE UPPER TRIBUNAL
(ADMINISTRATIVE
APPEALS CHAMBER)
Before
Upper Tribunal Judge Gray
Decision
The
claimant is precluded by virtue of the forfeiture rule in section 1 of the
Forfeiture Act 1982 from receiving Category B retirement pension or graduated
retirement benefit on the basis of her deceased husband’s national insurance
contributions. However I relieve her from the effect of that rule entirely. I
remit the case to the Secretary of State for a determination to be made of the
amount of benefit payable in the light of my decision. The relief applies in
respect of any other relevant benefit claimed.
Reasons
The issues
- The
Secretary of State has referred this claim for a retirement pension and
graduated retirement benefit to the Upper Tribunal under section 4 (5) of
the Forfeiture Act 1982 and rule 26 of the Tribunal Procedure (Upper
Tribunal) Rules 2008 because the claimant was convicted of the
manslaughter of her late husband.
- There is a
rule of public policy that nobody who has unlawfully killed another may
benefit as a consequence that person’s death. This is called the
forfeiture rule, and it is set out in section 1 of the Forfeiture Act 1982
(the Act). There is, however, the possibility of what is called in legal
terms relief from forfeiture. This is a remedy under section 4 (1A) of
the Act which contains the power to modify the effect of the forfeiture
rule, where it is found to apply. That relief may be granted by a judge of
the Upper Tribunal.
- In this
case I have to decide initially whether or not the forfeiture rule
applies. If it does I then decide whether to refuse relief, which would
mean that the claimant could not rely on her late husband’s national
insurance contributions when claiming a pension or other contributory
benefit; whether I allow full relief from the effects of the forfeiture
rule, which would mean that she could rely on all his contributions when
claiming any benefit or I am able to grant partial relief, so that she
could rely on some of his contributions, allowing her to have only part of
the pension, or only for part of the time.
- I have
recently had the benefit of a letter from the claimant’s appointee, her
daughter, who is the daughter also of the deceased. I wish to express my
gratitude to the appointee for her fortitude in revisiting what have
clearly been very difficult times in her past in order to furnish me with
helpful information.
The
Secretary of State’s reference
- I need deal
neither with the details of the pension claim, nor the financial effects
of any forfeiture decision as these matters are adequately set out in the
Secretary of State’s reference. I will look simply at the relevant facts
for the purposes of the decision that I must make.
- I initially
had very little information, the Secretary of State having been unable to
obtain other than the essential relevant details due to the routine
destruction of court records. There is a brief press report in the
Secretary of State’s referral, and the death certificate, but nothing
else. As I have said above I now have some useful detail of the
background from the appointee.
- Whilst I
appreciate that the Secretary of State takes a neutral stance in such
cases merely referring the matter to the Upper Tribunal as he must, I gave
him the opportunity to comment upon the information from the appointee. I
am grateful to Mr Kendall, who provided the submission, for his sensitive observations.
In essence the Secretary of State is of the view that, whilst the matter
is one from me, it would not be unreasonable for any modification of the
forfeiture rule, which he rightly says is applicable, to reflect the
lenient view taken by the judge at the Central Criminal Court.
The facts
- During the
course of a violent argument which took place on the evening of 31 August
1993 the claimant stabbed her husband, who died from the wound that day.
- The death
certificate was issued in the registration district of Lewisham on
10/09/1993. The deceased’s details are given, including his date of birth
15/04/1926, which means that he was aged 63 at the time of his death. He
is said in the certificate to have been retired. The cause of death is
stated to have been a stab wound to the heart.
- The short
press report which I have adds a little to the background. It is from the
Bromley News of 8/09/1993. It states that a 59 year old local woman had
appeared in court charged with the murder of her husband. She had been
remanded on bail by Greenwich magistrates. The report indicates that
police were called to a local address by the ambulance service on Tuesday,
August 31 at 7:30 PM. The victim was taken to Lewisham Hospital, and pronounced dead on arrival. The post-mortem report found the cause of death to
be established as a stab wound to the heart. It asks for information,
giving a contact number.
- Although
she may initially have been charged with murder, the claimant was
convicted of the manslaughter of her husband at the Central Criminal Court
on 14/03/1994. She was convicted upon her own plea of guilty, and was not
sentenced, but was placed upon probation for three years with a condition
of regular treatment with a named psychiatrist, the extent of the
treatment being at his direction. I phrase the result of the case in that
way, because a probation order is not a sentence as such, and that itself
is a relevant factor in my determination. The claimant had been on bail
whilst awaiting trial.
- The lenient
manner in which this crime was dealt with speaks volumes as to the judge’s
view of claimant’s culpability, and due to that I have no hesitation in
accepting the account of the appointee, which sets out what might be termed
mitigating circumstances.
The
appointee’s evidence
- I should
say at the outset that the appointee has been frank and seemingly
objective in her account to me. She has not sought to exonerate her mother
from all responsibility for either the death of her father or the
difficult domestic circumstances from which this tragic event arose. She
quite naturally has an attachment to both of her parents. I am firmly of the
view that she has tried to be impartial and accurate in her account to me.
- I can
summarise her evidence. She explains that her mother and father had four
children, she being the youngest. There had been a long history of
domestic violence within the family. Her mother had originally been the
victim of that, although she then became an abuser. The violence was so
severe that she wished that they would leave each other, but as she grew
older she understood the difficulties of their relationship, and had the
realisation that they could neither live together nor apart. She told me
about the injuries that her mother had suffered from her father’s violence
towards her, which was regular and severe. She also told me about injuries
that her mother had inflicted upon her father.
- The
violence stemmed from alcohol abuse. She has explained to me that at the
time of the fatal violent incident both were drunk.
- The case clearly
acquired some notoriety, and the appointee, who would have been a young
woman at that time, recalls the unwanted attention of the press. Her
mother was offered very considerable sums of money, from one newspaper
£10,000, which in 1994 was indeed a large sum, for her story, but the
family wished to put the past behind them.
- The
children have stood by their mother. The appointee tells me that had the
position been reversed they would have stood by their father too. She
explains that when they were not in drink they were both good parents.
Despite the difficulties of their upbringing they clearly are a close and
supportive family.
- Within the
family the matter was considered to be closed following the court case.
The
Trial
- It has been
very difficult for the appointee to relate her memories of the court case.
She tells me, and I accept, that the plea was made upon the basis of
diminished responsibility.
- Each child
gave evidence in the witness box at the Old Bailey. They all were asked to
give their interpretation of the life of their mother and father. She
recalls that each of them said that they felt that the violence within the
family was at such a level that one day one of their parents would be
killed. There was additionally evidence from the family’s GP, and
consultants.
- She recalls
the judge saying in his sentencing remarks that the situation was one
where it was only a matter of time before one or the other died, and that
her mother, to whom he referred as “this lady” had quite clearly suffered
extreme violence all of her married life. She suffered from diminished
responsibility, a moment of mental relapse. He said that the court could
as easily have been dealing with a case where the father had been the
perpetrator and the mother the victim.
- I have
already referred to the lenient way in which the court dealt with. the
claimant
Other matters
- The
claimant’s current circumstances can be taken into account. She claimed retirement
pension on 10/10/2011, following a long period of deferral. She is now
approaching 80 years of age, having been born on 16/11/1934. .
- She suffers
from dementia and chronic obstructive pulmonary disease. She also has
orthopaedic problems, which the appointee feels relate to the violence
that she suffered during her marriage.
My
decision
- Clearly the
forfeiture rule applies to the claimant; there is no dispute that she
caused the death of her husband, however this is a case where it is proper
for me to grant full relief from the effects of the forfeiture
provisions.
- It is
appropriate and just for me in my decision to reflect the fact that the
claimant was not sentenced but offered support and medical treatment by
the court. I do so. The humane and lenient treatment of the mother by a
judge of very considerable seniority is a clear indication that, whilst no
taking of life can be condoned, this death occurred in the context of a
continual pattern of violent abuse which had so affected the claimant that
in this confrontation she was not able to offer rational defence. Her
attack upon her husband occurred during a time when she was not fully
accountable for the consequences of her actions. That is the effect of the
acceptance of her plea on the basis of diminished responsibility.
- Any claim
for pension or other relevant contributory benefit made by or on behalf of
the claimant is to be met in full without any deduction because of her
conviction in 1994 of her husband’s manslaughter in 1993.
PA Gray
Judge of
the Upper Tribunal
Signed on
the original on 15 May 2014
