Burns v Secretary of State for Social Services
| Jurisdiction | Scotland |
| Judgment Date | 06 December 1984 |
| Date | 06 December 1984 |
| Docket Number | No. 17. |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Social securityWidow's allowanceWidow convicted of unintentional culpable homicide of husband by deliberate stabbing under provocationWhether debarred from payment by public policyWhether assault causing death required to be premeditatedWhether Commissioner obliged to consider background to homicide.
A widow who had claimed a widow's allowance under sec. 24 (1) of the Social Security Act 1975 appealed to the Court of Session against a decision of the social security commissioner. The latter had allowed an appeal by the insurance officer from a local tribunal which had in turn allowed the appellant's claim against the insurance officer's refusal to pay the allowance. The ground on which the insurance officer had refused the claim was that the appellant had been convicted of the culpable homicide of her husband and was thus not entitled to the allowance by reason of the rule of public policy that a person should not benefit from their own crime. The commissioner accepted that the deceased had died from a stab wound inflicted by the appellant with a knife which had pierced his upper arm and penetrated his chest. The appellant had been charged with murdering the deceased and with threatening earlier on the same day to strike him with an axe. She had pleaded guilty to the latter charge and to culpable homicide. It had been stated in mitigation that the appellant had been regularly assaulted by the deceased including an assault for which he had been imprisoned. The appellant had become an alcoholic as a result and had stabbed her husband after he had insulted one of the parties' children and had dared her to stab him. She had been sentenced to probation for two years. The commissioner held that the appellant had inflicted intentional injury with the knife and the provocation had not changed the nature of the crime. The appellant appealed with leave of the commissioner on the ground that he had misdirected himself in law. She contended that the application of the rule of public policy in cases of culpable homicide depended on the whole circumstances including any history between the parties and any provocation. It was also necessary that the assault causing the death should have been a considered act.
Held (1) that the rule that a person might not benefit from their own crime which applied in both Scotland and England was not absolute and did not even apply to all crimes of culpable homicide.
(2) That the application of the rule depended on the nature of that crime and whether the assault was with an offensive weapon or was otherwise deliberate or intentional; the latter words were synonymous and did not imply that the homicide had been premeditated.
Dictum of Geoffrey Lane J. in Gray v. BarrELR[1970] 2 Q.B. 626 at p. 640 approved.
(3) That, on the accepted facts, the commissioner had not misdirected himself in law in reaching his decision that the rule of public policy applied; there was nothing in the circumstances of the offence itself, including the use of the weapon and the degree of force used, which affected the nature of the crime; the provocation and the history of violence between the parties did not do so; and appeal refused.
R. v. Chief National Insurance Commissioner, ex parte Connor [1981] 1 Q.B. 758 followed.
Observed that the general rule of public policy might not be applied, even in a case involving an assault with a deadly weapon, if there were exceptional circumstances, but that these were difficult to envisage.
Christina Burns applied for payment to her of a widow's allowance under the Social Security Act 1975. Her claim was rejected by the insurance officer and she appealed to the local tribunal established under the 1975 Act. The tribunal by a majority allowed her appeal. The insurance officer appealed to the social security commissioner who, on 27th September 1982, allowed his appeal. The commissioner's decision was that "public policy precludes the payment of a widow's allowance to the claimant under section 24 of the Social Security Act 1975 in respect of the death of her husband Hugh Burns on 26th August 1981".
The grounds for his decision appear from the opinion of the Lord President.
The claimant appealed with leave of the commissioner to the Court of Session under section 14 of the Social Security Act 1980. Her grounds of appeal stated inter alia: "3. That, in any event, the commissioner erred in law in holding that the appellant's conduct in the present case was such that public policy debarred her from payment of widow's allowance".
The respondent pleaded inter alia: "2. The Commissioner not having erred in law the appeal should be refused".
The appeal was heard before the First Division on 14th November 1984.
The arguments of the parties appear from the opinions delivered.
At advising on 6th December 1984,
LORD PRESIDENT (Emslie).The appellant is the widow of Hugh Burns who died on 26th August 1981. As his widow she claimed widow's allowance under section 24 of the Social Security Act 1975. But for one circumstance the claim would have been allowed by the insurance officer because the statutory conditions for entitlement were met. That circumstance was that the appellant killed her husband. On 2nd November 1981 she appeared for trial in the High Court upon an indictment containing two charges. Charge 1 was a charge that on 26th August 1981 the appellant assaulted her husband by threatening to strike him with an axe. Charge 2 which related to a later period on the same day was a charge that she murdered her husband by stabbing him with a knife. To the first charge the appellant pled guilty as libelled. To the second she tendered a plea of guilty of culpable homicide and that plea was accepted by the Crown. The circumstances of this crime, the prosecutor's reason for accepting the appellant's plea, and the sentence imposed upon the appellant were explained in paragraph 3 of the opinion of the social security commissioner, printed in the record of this appeal, to which I shall return later. This is what he says: "The claimant's husband who was then aged 47 died on 26th August 1981 as a result of a stab wound inflicted by the claimant with a knife which pierced his upper left arm and passed inwards and slightly downwards to penetrate the side wall of the chest causing fatal injuries. Penetration of the wound extended some six inches in all from the point of entry in the arm to the point of exit on the medial side of the lung. The claimant, then aged 41, was charged with the murder of her husband and appeared at the High Court at Glasgow on 2nd November 1981 when she pleaded guilty to a reduced charge of culpable homicide and was placed 3on probation for two years on condition that she receive treatment for alcoholism. The court was informed that the claimant had been the victim of serious assault by her husband over a period of years and had sustained numerous injuries. She had become an alcoholic and had attempted suicide on more than one occasion. Her husband had been imprisoned for six months in March 1981 for an assault upon the claimant in the course of which he broke her arm. On the night of his death both parties had been drinking. Her husband had made an insulting remark about one of the parties' children. The claimant had stabbed her husband in the left arm under provocation, but tragically the blade of the knife passed through the arm and penetrated the deceased's chest. The advocate-depute on behalf of the Crown said that the reduced plea was accepted because it was felt that the claimant had no intention of killing her husband. Placing the claimant on probation the trial judge observed that she seemed more sinned against than sinning."
As was her right under section 100 of the Act of 1975 the appellant appealed to a local tribunal. By a majority, the chairman dissenting, her appeal was allowed because "the majority of the tribunal felt that the very substantial history of serious personal violence to the claimant by her husband over a period of time could reasonably be taken into account, and that looking at the circumstances as a whole the rule of public policy did not apply".
Against the decision of the local tribunal the insurance officer appealed to the social security commissioner. The right of appeal is conferred by section 101 of the Act of 1975 and it is a right of appeal on both fact and law. At the hearing there was placed before the commissioner certain information about the crime and about the history of the marriage. Paragraph 3 of the commissioner's opinion which I have already quoted was based upon that information which included the following account of the assault as reported in the Greenock Telegraph newspaper on 3rd November 1981: "on 26th August both had been drinking and Mrs Burns picked up a knife after her husband made an insulting remark about one of the children. He dared her to stab him and she jabbed at his arm, but tragically the blade went through the fleshy part of the arm into his chest. It was a freak occurrence". The question before the commissioner was whether the general rule of public policy that a person may not benefit from his own crime should or should not be applied in the relevant circumstances of this case, and the particular proposition for the appellant was that having regard to what was called "the provocation" which preceded the stabbing of Mr Burns and the long history of violence to which the appellant had been subjected at his hands this was a case in which the appellant's claim should not be defeated by the general rule. The commissioner appreciated, and this had been conceded, that the general rule of public policy was precisely the same, and fell to be applied in precisely the same way, both in England and in Scotland. He then addressed himself quite correctly to the case of R. v. Chief National Insurance Commissioner, ex p. Connor...
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