Scottish Court of Session Decisions

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 [1981] 1 Q.B. 758. In that case there came before the divisional court on an application for judicial review precisely the same question as fell to be resolved by him, namely, whether, when a claimant seeking widow's allowance had killed her husband by stabbing him with a knife, and was guilty of manslaughter, her claim should be rejected by the application of the general rule of public policy to which I have referred. The commissioner found, in particular, in the opinion of Lord Lane C.J. in that case, with which the other two members of a powerful court agreed, authoritative guidance which he then sought to apply, and from that opinion he quoted extensively in paragraph 8 of his own opinion. I do not repeat the quotation here. Suffice it to say that the commissioner recognised that not every crime of manslaughter or culpable homicide will result in the perpetrator being denied benefit as the result of the victim's death. He recognised, too, accepting the opinion of Pennycuick V.-C. in the case of Re Giles [1972] Ch. 544, at p. 552, that "neither the deserving of punishment nor carrying a degree of moral culpability has ever been a necessary ingredient of the crime, the perpetrator of which is disqualified from benefiting under the will or intestacy of the person whom he has killed". He then proceeded to allow the appeal of the insurance officer and his reasons for so doing are to be found in the following passage in his opinion:

"It appears to me that I must regard the incident as one in which the claimant, under provocation, inflicted intentional injury with the knife although there Was no intention to kill. Self-defence was not pleaded on the claimant's behalf and I am unable to regard the provocation as a circumstance altering the nature of the crime so as to render the rule of public policy inapplicable. Still less am I able to accept the view of the local tribunal that the history of previous violence was a circumstance having that effect. So regarding the case, I consider that there is no sufficient distinction between the nature of the crime in the present case and the nature of the crime considered in ex p. Connor which was held to give rise to the application of the rule of public policy to debar the claimant from recovering widow's benefit. I have come to the conclusion that the same result must follow in the present case and that I must accordingly uphold the appeal of the insurance officer in this case."

The appellant, taking advantage of the right conferred by section 14 (1) of the Social Security Act 1980, has now, with leave of the commissioner, appealed to this court. As the subsection shows an appeal lies upon a point of law only. Although four grounds of appeal were tabled by the appellant three were not insisted in. The single ground of appeal which survived the hearing before us was in these terms:

"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".

In support of that ground of appeal the main submission for the appellant was that the commissioner misdirected himself in proceeding upon the basis that there was no sufficient distinction between the nature of the crime in ex p. Connor and the nature of the crime in the present case to justify a different result. When all the relevant circumstances of his case are taken into consideration no reasonable commissioner, properly directing himself in law, would have held that the general rule of public policy should be applied to defeat the appellant's claim.

In developing this submission counsel for the appellant contended in the first place that there were distinctions between the circumstances of this case and the circumstances of ex p. Connor. There was provocation. There was the history of violence throughout the marriage. There was the fact that the target of the knife thrust by the appellant was the arm of the deceased. These distinctions were material yet the commissioner ignored the third and gave insufficient weight to the first and second which ought to be examined together and not separately. The correct starting point was, as the commissioner recognised, the opinion of Lord Lane C. J. in ex p. Connor, and counsel for the appellant founded in particular upon the opinion of Salmon L. J. (as he then was) in Gray v. Barr [1971] 2 Q.B. 554, at p. 581, the following passage from which the Lord Chief Justice quoted with approval:

"Although public policy is rightly regarded as an unruly steed which should be cautiously ridden, I am confident that public policy undoubtedly requires that no one who threatens unlawful violence with a loaded gun"

—that was the case in Gray v. Barr —"should be allowed to enforce a claim for indemnity against any liability he may incur as a result of having so acted. I do not intend to lay down any wider proposition. In particular, I am 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. Manslaughter is a crime which varies infinitely in its seriousness. It may come very near to murder or amount to little more than inadvertence, although in the latter class of case the jury only rarely convicts". That passage shows, said counsel, that the application of the general rule of public policy in any case of culpable homicide depends upon the whole surrounding circumstances and these must include the history of the antecedent relationship between the perpetrator and the victim, all the elements of the event itself, including provocation if it was one of these elements, and a consideration, in cases of assault, of what the assailant intended to do. Above all, however, the general rule should only be applied in cases of death resulting from assault if the act of assault was a "considered" act and not merely an act committed on the spur of the moment. For this proposition counsel for the appellant claimed to find support in the Lord Chief Justice's quotation from the judgment of Lord Denning M.R. in Gray v. Barr . It is in these terms ([1971] 2 Q.B. at pp. 568–569):

"Does this manslaughter mean that, as a matter of public policy, Mr Barr is not to be allowed to recover on the policy? In the category of manslaughter which is called ‘motor manslaughter’, it is settled beyond question that the insured is entitled to recover: see Tinline v. White Cross Insurance Association Ltd. [1921] 3 K.B. 327; James v. British General Insurance Co. Ltd. [1927] 2 K.B. 311. But, in the category which is here in question, it is different. If his conduct is wilful and culpable, he is not entitled to recover; see Hardy v. Motor Insurers' Bureau [1964] 2 Q.B. 745. I agree with the judge when he said [1970] 2 Q.B. 626, at p. 640: ‘The logical test, in my judgment, is whether the person seeking the indemnity was guilty of deliberate, intentional and unlawful violence, or threats of violence. If he was, and death resulted therefrom, then, however unintended the final death of the victim may have been, the court should not entertain the claim for indemnity’."

The judge, incidentally, who devised that logical test was Lord Lane himself. The particular word in that test upon which counsel for the appellant founded was the word "deliberate" which should, it was said, be regarded as a synonym for "considered". In all the relevant circumstances, and these are the whole circumstances set out in paragraph 3 of the commissioner's opinion, no reasonable commissioner would have upheld the appeal of the insurance officer.

I have no hesitation whatever, for the reasons given by counsel for the respondent, the Secretary of State for Social Services, in rejecting the submissions made on behalf of the appellant.

It is a recognised principle of the jurisprudence both of England and Scotland that a person may not benefit from his own crime. This is the general rule but it is not an absolute one. Not every crime will require the general rule to be applied to deny a claim for benefit. In particular, as was pointed out by Salmon L.J. in Gray v. Barr, supra, not every kind of culpable homicide will necessarily result in the application of the general rule. That being so, where is the line to be drawn? In some cases it may well be difficult but I see no difficulty at all in drawing the line in a case such as this. I quite accept that culpable homicide is a crime which varies infinitely in its seriousness for it consists in the causing of death by any unlawful or reckless act, and it is, in particular, complete where there has been an assault of any kind or degree causing death. The general rule is, however, based upon public policy and one is accordingly concerned in the first place to identify, to use the words of the Lord Chief Justice in ex p. Connor, the nature of the crime itself, and to ask whether it is one which falls to be regarded as a matter of serious public concern. In my opinion it is clear, when the opinions in ex p. Connor and Gray v. Barr are properly understood, that if the nature of a particular crime of culpable homicide is that it was committed by an assault with an offensive weapon, which is undoubtedly a matter of grave public concern, the general rule will and should be applied, save only, perhaps, in highly exceptional circumstances which I find it difficult to envisage. It will be observed that the passage from the opinion of Salmon L.J. in Gray v. Barr begins with an unequivocal declaration of the confidence that no one who threatens unlawful violence with a loaded gun should be allowed to enforce a claim of the relevant kind. The application of the "logical test" quoted by Lord Denning M.R. in Gray v. Barr, when it is recalled that it was devised with reference to a case involving assault with an offensive weapon, requires the court to refuse to entertain a relevant claim by the perpetrator. I observe, too, that the approach of the Lord Chief Justice in ex p. Connor was simply to ascertain "what happened here" and he proceeded to say this:

"On the verdict of the jury it is plain that this woman's act was a deliberate, conscious and intentional act. She was holding the knife in her hand and she deliberately thrust it into her husband's chest. It is not the same as discharging two barrels of a shotgun; no two situations will ever be the same. But, speaking for myself, I can see no distinction in principle between the situation in Gray v. Barr [1971] 2 Q.B. 554, which was sufficient to disentitle the plaintiff to recover, and the situation here, which also to my mind disentitles the applicant to recover".

He also, in the concluding paragraph of his opinion, commended the full judgment of the chief commissioner and was content to adopt his reasoning. The reason for the chief commissioner's decision was, simply, that the claimant was found to have committed manslaughter by assault with a knife. I have only to add that it is quite illegitimate to construe the word "deliberate" in the "logical test", and in the opinion of the Lord Chief Justice, to mean "premeditated" or "considered". The act of stabbing in ex p. Connor was no more "considered" than the appellant's act in this case and the word "deliberate" in its context means only that the act was not accidental but intended. From what I have said so far it will be understood that in my opinion no consideration whatever should be given, in deciding whether or not to apply the general rule, to any circumstances which are not directly relevant to the particular circumstance of an assault with an offensive weapon which has caused death.

Against the background of these general observations I ask myself whether upon a fair reading of his opinion, it can reasonably be said that the commissioner misdirected himself in any material respect. The answer is no. He asked himself the correct initial question: What was the nature of the appellant's crime? The nature of this crime was, as he was well aware, an assault with a knife which had been picked up by the appellant for no better reason than that the drunken victim had made an insulting observation about one of the parties' sons. The victim dared the appellant to stab him and she did, striking his arm, and causing the knife to penetrate to a depth of six inches. Having ascertained that this was the nature of the particular crime he was not, in my opinion, required to go any further in order to reach a decision adverse to the appellant's claim. He did go further, however, and considered both the alleged "provocation" (the insulting remark and the dare) and also the history of previous violence. His view clearly was, and I agree with him, that the so-called provocation and the history of previous violence did not materially alter the picture of this particular example of culpable homicide so as to render the general rule inapplicable. The history, indeed, was not relevant at all to the particular circumstances of the event. "So regarding the case", as he tells us, the commissioner considered that he could find no sufficient distinction between the nature of the appellant's crime and the nature of the crime considered in ex p. Connorwhich was held to require the application of the general rule. He was in my opinion well entitled to reach that conclusion having looked not only at all the relevant circumstances and others, said to be favourable to the appellant, which were not strictly relevant, and he gave a decision which, in my judgment, is untainted by any error of law and was a perfectly correct one.

Upon the whole matter I would refuse the appeal.

LORD CAMERON .—I agree that this appeal should be refused for the reasons set out in the opinion of your Lordship in the chair and would only add a few observations of my own.

When senior counsel for the appellant presented his submissions he sought to support only his third stated ground of appeal:

"That, in any event, the commissioner erred in law in holding that the appellant's conduct…was such that public policy debarred her from payment of widow's allowance".

As I understood senior counsel for the appellant's argument it amounted to this: where a person is convicted of culpable homicide it is at large for a tribunal or commissioner to determine whether the principle of public policy which operates to prohibit a person from taking benefit from his own crime, is to operate in any and every case of culpable homicide in which a decision on that matter is required of the tribunal or commissioner. That being so, past history of the parties and their relationships, provocation considered in the widest sense of the word, and the nature and circumstances of the wound or wounds or injury causing death are all not only relevant but necessary subjects of consideration before a decision may be reached. In presenting this argument senior counsel for the appellant sought to find comfort and foundation in observations of Salmon L. J. (as he then was) in the case of Gray v. Barr [1971] 2 Q.B. 554, at p. 581. These observations, with which I would respectfully agree, were cited with approval by Lord Lane C. J. in the case of R. v. Chief National Insurance Commissioner, ex p. Connor [1981] 1 Q.B. 758, at p. 765. It may be noted that Lord Lane was the judge of first instance in Gray v. Barr and that what he said there was quoted with approval by Lord Denning M.R. in Gray v. Barr at p. 569:

"The logical test, in my judgment, is whether the person seeking indemnity was guilty of deliberate, intentional and unlawful violence, or threats of violence. If he was, and death resulted therefrom, then, however unintended the final death of the victim may have been, the court should not entertain the claim for indemnity"

([1970] 2 Q.B. at p. 640). Phillimore L.J. also referred specifically to this statement by the judge, and I can find nothing in the judgment of Salmon L.J. which in any way casts doubt upon its accuracy as a statement of the law to be applied.

In any event, the principle, in the law of England at least, is well-established and of a long and respectable pedigree, as appears from the important judgment of Pennycuick V.-C. in the case of Re Giles [1972] Ch. 544. I should be surprised were it suggested, as it was not in this appeal, that in this matter of principle the law of Scotland should differ from that of England. The matter was put in a sentence by Lord Atkin in the case of Beresford v. Royal Insurance Co. Ltd. [1938] A.C. 586, at p. 599:

"the absolute rule is that the Courts will not recognise a benefit accruing to a criminal from his crime"

, i.e. when a necessary ingredient of conviction is proof of criminal intent. I do not think that anything which was said by Salmon L.J. in the case of Gray v. Barr is in conflict with this general statement. What the learned Lord Justice was doing was to point out that there are many categories of culpable homicide (if I may use our Scottish term of art) not all of which involve proof of intent to injure, i.e.criminal intent, and in agreeing with the Master of the Rolls he was agreeing in his approval of the trial judge's formulation of the principle. I am, with all respect to senior counsel for the appellant's argument, not disposed to follow him into semantic issues of interpretation of words such as "deliberate" or "intentional"; the meaning of Lord Lane C.J.'s statement of principle in the case of Connor is clear enough, as is also that of the chief commissioner in that case. When considering whether the observations of the trial judge that the "accused had suffered enough" or the fact that the claimant had been put on probation were either relevant or sufficient to permit relaxation in the application of the recognised rule of public policy he said "I am unable to hold that the circumstances of the manslaughter[emphasis added] are such that the rule of public policy should not be applied and on such application her claim to benefit is, in my opinion, to be disallowed". Lord Lane in his judgment, with which Griffiths and Webster JJ. concurred, said that "For my part, I would be content to adopt the reasoning which the chief commissioner sets out in that judgment".

If the judgment in question is correct in its statement of principle—a statement which already had the approval and authority of the Court of Appeal in Gray v. Barr —that once it is established that there was guilt of deliberate or intentional—for I think there is no difference in meaning of the words (see Lord Wright in Beresford v. Royal Insurance Co. Ltd. [1937] 2 K.B. 197, at p. 220)—violence and death results therefrom, then however unintended the final death of the vicim may have been, the court should not entertain the claim to benefit.

Nothing which was said by counsel for the appellant has in any way made me doubt that what has been authoritatively stated as the law of England does not also represent the law of Scotland. It would be unfortunate if there were any difference, and in my opinion there is none, and certainly, no authority was cited by counsel for the appellant to suggest the contrary. If then it should appear that the killing in this case was the result of a conscious, intentional or deliberate (for I regard the distinction as one without a difference) act of assault with a lethal weapon, and the precise circumstances of the assault are, in my view, relevant to this determination, then there is neither need nor right to proceed further; the rule of public policy operates and no benefit can accrue to the perpetrator of the deed from the victim's death by way of succession or otherwise.

Now in the present case what is to be found in the admitted facts? The appellant pleaded guilty to an admitted assault with a lethal weapon, i.e. a knife, with a blade sufficiently long to penetrate arm and chest of the deceased to a depth of six inches. An assault is by definition an intentional act and one intended, at least if carried out with a weapon, to inflict injury. Something was said by counsel for the appellant to suggest that the intended point of aim of the assailant was comparatively innocuous, i.e. the deceased's arm, and that this was a factor which was itself a "circumstance" to be taken into account in determining whether the rule of public policy should apply. That however is mere speculation, and even if correct, irrelevant to the criminal quality of the act, and therefore irrelevant to the issue of the applicability of the rule of public policy. However exiguous the statement of the facts may be, culled as they were in large measure from press reports, they leave no room for doubt that the appellant here pleaded guilty to an intentional act of assault with a weapon on the body of the deceased, which caused death. That being so I am clearly of opinion that the commissioner's decision was correct; he could find nothing in the circumstances of the offence themselves which could operate to elide the operation of the rule of public policy which debars the taking of profit or benefit from one's own criminal conduct. In my opinion the learned commissioner was perfectly correct in his likening of the case under review with that of Connor. In both there was an intentional use of a lethal weapon in an assault which resulted in death, and that being so, whatever the mitigating circumstances relevant to penalty, those circumstances were irrelevant to the issue of entitlement to benefit. I would only add however, that in the present case there is one element which is relevant to the question of intent which was not present in the case of Connor.The appellant was charged with another assault in the same indictment to which she also pled guilty—of assault with an axe and threatening to kill the deceased, an assault which took place on the same day and not long before that which caused his death.

Having regard to the character of the crime, namely culpable homicide arising out of an intentional attack with a lethal weapon used with a very substantial degree of force which led very rapidly to death, I am of opinion that once these facts were established or admitted (and this factual account is not open to challenge nor was it seriously challenged) there was no room for escape from application of the well-established principle of public policy that no man shall benefit from his own criminal acts where these acts are the result of an established criminal intent such as assault. That being so, it was neither necessary nor open to the commissioner to go further into the surrounding or antecedent circumstances. I therefore think, with your Lordship, that the learned commissioner did not misdirect himself, and, alleged misdirections being the only surviving ground of appeal stated by the appellant, the appeal must be refused.

I would only add this, that it does not necessarily follow that even where actions, involving use of a lethal weapon, that are both intentional and unlawful, have been identified as having caused death, there may never be circumstances in which it would be competent for a tribunal seized of the issue to refrain from putting into effect the rule of public policy which debars the perpetrator from benefit from his own criminal acts. But I find it difficult to figure circumstances in which such a result would follow.

LORD GRIEVE .—This is an appeal by Mrs Burns under section 14 of the Social Security Act 1980 (hereinafter referred to as "the 1980 Act"), against a decision of the social security commissioner who upheld the decision of the insurance officer disallowing Mrs Burns's claim to widow's allowance under section 24 of the Social Security Act 1975 (hereinafter referred to as "the 1975 Act") in respect of the death of her husband Hugh Burns on 26th August 1981. Had it not been for the fact that Mrs Burns killed her husband, her claim for widow's allowance would have been allowed.

On 2nd November 1981 in the High Court of Justiciary at Glasgow, the appellant, who had been charged with the murder of her husband, pled guilty to the lesser charge of culpable homicide, that plea was accepted by the Crown, and the appellant was placed on probation for two years.

The decision of the commissioner was, in its turn, appealed to the Court of Session. That appeal was taken in accordance with the provisions of section 14 of the 1980 Act. The relevant provisions of that section of that Act were as follows:

"14 (1) Subject to subsections (2) and (3) of this section, an appeal in a question of law shall lie to the appropriate court from any decision of a Commissioner".

Subsections (2) and (3) do not affect this appeal. Section 14 (4) provides that "the appropriate court" for an appeal in Scotland is the Court of Session. As the appeal to this court is only on the question of law, it is for the appellant to demonstrate, if she can, that in reaching his decision the commissioner misdirected himself on the law which should be applied to the facts which were placed before him.

In paragraph 3 of the record relating to this appeal, the facts which were placed before the commissioner are set out. They were as follows. [His Lordship quoted the paragraph and the extract from the Greenock Telegraph, as narrated supra by the Lord President, and continued.]

In the proceedings before the commissioner, and in the debate before us, it was accepted as a recognised principle of law that a person may not benefit from his own crime. That principle is of universal application, and is a sound one. It is not, however, an absolute rule, and not every crime will attract its application. This is particularly true of the crime of culpable homicide which can result from vastly different unlawful acts. Public policy provides the basis for the principle. While public policy may vary from time to time, it will surely be repugnant to public policy in any civilised society that a person should benefit as a result of a criminal act which causes death unless it can be shown that that particular act should not, in the circumstances surrounding its commission, attract the veto of public policy. The question the commissioner had to decide was whether public policy was a bar to the appellant's claim on the facts which were placed before him, and we have to decide whether, in concluding that it was, he misdirected himself in law.

In reaching his decision the commissioner said, "It appears to me that I must regard the incident as one in which the claimant, under provocation, inflicted intentional injury with the knife although there was no intention to kill. Self-defence was not pleaded on the claimant's behalf and I am unable to regard the provocation as a circumstance altering the nature of the crime so as to render the rule of public policy inapplicable. Still less am I able to accept the view of the local tribunal that the history of previous violence was a circumstance having that effect. So regarding the case I consider that there is no sufficient distinction between the nature of the crime in the present case and the nature of the crime considered in ex p. Connorwhich was held to give rise to the application of the rule of public policy to debar the claimant from recovering widow's benefit. I have come to the conclusion that the same result must follow in the present case and that I must accordingly uphold the appeal of the insurance officer in this case."

The case of ex p. Connor, more fully described as R. v. Chief National Insurance Commissioner, ex p. Connor[1981] 1 Q.B. 758, was a case which on its facts was very similar to this one. In Connor's case a wife, who had stabbed a husband with a knife and by so doing caused his death, was charged with murder. On the direction of the trial judge that charge was reduced to one of manslaughter. Neither the report nor the transcript of the judge's summing up makes it clear why he so directed the jury, but the fact remains that he did. The accused in that case maintained that the stab wound had been accidental and not intentional. The trial judge put the case to the jury on that basis. He told them that if they accepted the pursuer's evidence that the stabbing had been accidental they must acquit her, but if they considered she was lying they could convict her. The jury returned a verdict of guilty of manslaughter from which the clear inference to be drawn is that they considered the stabbing had been intentional and not accidental. The local tribunal and the chief national insurance commissioner held that Mrs Connor's claim for a widow's allowance under section 24 (1) of the 1975 Act was inadmissible on the ground that it would be contrary to public policy to admit it. The divisional court upheld the decision of the commissioner and dismissed Mrs Connor's appeal.

Counsel for the appellant submitted that it was apparent from the commissioner's ground of decision that he had misdirected himself in finding no sufficient distinction between the facts in this case and the facts in the case of Connor. In Connor's case, if the jury rejected the defence of accident, which they must have done, there were no mitigating factors. If the blow struck by Mrs Connor was not accidental it must have been calculated and deliberate. In equiparating this case with that of Connor this commissioner had simply looked at the fact that in both cases a wife had caused the death of her husband by stabbing him. He had ignored the fact that in this case, unlike that of Connor, there was a history of violence by the husband, provocation to Mrs Burns into picking up the knife by insulting their son, and thereafter daring her to stab him. When Mrs Burns did what she had been dared to do, she had aimed at her husband's arm, and not at a more vulnerable part of his body.

Senior counsel for the appellant, while adopting the submissions of his junior, maintained that to be blameworthy enough to attract the veto of public policy the criminal act must be a "considered" act. He submitted that an act which had been provoked, even in the colloquial sense, could not be a "considered" act and therefore was not a "deliberate" or "intentional" act. In making these submissions, counsel referred to the opinion of Lord Lane at pp. 765–766 in the report of ex p. Connor. In that case the Lord Chief Justice had been referred to a quotation from the opinion of the Master of the Rolls, Lord Denning, in the case of Gray v. Barr [1971] 2 Q.B. 554, at pp. 568–569, where his Lordship said:

"Does this manslaughter mean that, as a matter of public policy, Mr Barr is not to be allowed to recover on the policy? In the category of manslaughter which is called ‘motor manslaughter’, it is settled beyond question that the insured is entitled to recover: see Tinline v. White Cross Insurance Association Ltd. [1921] 3 K.B. 327; James v. British General Insurance Co. Ltd. [1927] 2 K.B. 311. But, in the category which is here in question, it is different. If his conduct is wilful and culpable, he is not entitled to recover; see Hardy v. Motor Insurers' Bureau [1964] 2 Q.B. 745. I agree with the judge when he said [1970] 2 Q.B. 626, 640: ‘The logical test, in my judgment, is whether the person seeking the indemnity was guilty of deliberate, intentional and unlawful violence, or threats of violence. If he was, and death resulted therefrom, then, however unintended the final death of the victim may have been, the court should not entertain the claim for indemnity.’"

(It is interesting to note that the judge referred to in the penultimate sentence of that quotation was Lord Lane himself when he was but Geoffrey Lane J.) Lord Lane also referred to what the Master of the Rolls went on to say in the case of Connor at p. 776 which was this:

"One turns then to see what it was that happened here. On the verdict of the jury it is plain that this woman's act was a deliberate, conscious and intentional act. She was holding the knife in her hand and she deliberately thrust it into her husband's chest."

He submitted that both Lord Lane and Lord Denning must have considered that the words "deliberate" and "intentional" were not synonymous. I do not think that that follows from what their Lordships said. In any event I am clearly of opinion that the words "deliberate" and "intentional" have the same meaning, and are synonymous. If support for that view is required, it can be readily found in Collins' English Dictionary. On the agreed facts of this case there can be no doubt that the stabbing was an intentional act, whether it was provoked or not.

Counsel went on to submit that the historical background could not be ignored and that the commissioner, if he had not altogether ignored it, had not given it sufficient weight. Lastly the commissioner had not given sufficient weight to the target area of the blow, a fact which formed a material distinction between this case and that of Connor.

Junior counsel for the respondent, whose clear and concise submissions were specifically adopted by senior counsel for the respondent, accepted, when dealing with cases of culpable homicide, that the circumstances of the actual crime were the most important features at which to look. The nature of the criminal act which constituted the crime was the first thing to look at; not the label given to the crime. On that approach the history of previous assaults by Mrs Burns's husband on her was irrelevant; it could not alter the nature of the criminal act which was the critical factor in deciding whether or not her claim should be allowed, nor could the provocation which was contemporaneous with that act. If you took away the past history and the provocation, the circumstances were almost indistinguishable from those which prevailed in Connor. So far as the target of the blow was concerned, the fact remained that it had penetrated not only part of the deceased's arm but his chest wall to a depth of some six inches. That fact alone demonstrated a forceful, deliberate and intentional act. In any event all those so-called mitigating circumstances had been considered by the commissioner as was evident from that part of his decision which I have already quoted.

Senior counsel for the respondent submitted that it would be difficult to find guidelines as to where the line should be drawn in cases where a right was claimed by someone who had become entitled to it only by committing a crime. That is to say it was difficult to find guidance as to where the line should be drawn when considering whether public policy was to prevent the right being accorded to the person in question. Neither moral culpability nor disposal by way of sentence were satisfactory guidelines. All the circumstances had to be looked at, but in some cases, for example those where death results from assault with an offensive weapon, prima facie public policy required that no right should flow from such an act. In this case the commissioner had looked at all the circumstances correctly, considered and applied the law, and after doing so had reached a reasonable decision.

In my opinion, agreeing with respect with what Salmon L. J. (as he then was) said in the case of Gray, which I do not need to repeat herein, the crime of culpable homicide covers such a wide spectrum of acts that it does not follow that in all cases of the kind a claim following upon that crime must be rejected on the ground of public policy. In considering such claims one must first look at the nature of the act or acts constituting the crime. Thereafter one must look at the circumstances surrounding the commission of the act or acts. On that approach, if the criminal act involves the use of an offensive weapon then there will be few surrounding circumstances which could so mitigate such an act as to prevent the principle being applied. As at present advised, I am not prepared to go so far as to say there could not be such circumstances. At the other end of the spectrum, if the criminal act, which gives rise to the death, though intentional, is of such a nature that death results from it only through inadvertence, there will not need to be much in the surrounding circumstances to allow a claimant to succeed in a claim to a right from which public policy would otherwise bar him.

In this case the commissioner, in reaching his decision, has used the phrase "the nature of the crime" when it is apparent from the context that what he really means is "the nature of the criminal act". The nature of the criminal act, in this case, as in the case of Connor, was a blow with a knife. The commissioner has considered the special circumstances of this case, the alleged provocation, the previous history, and the fact that the appellant had no intention to kill her husband. Taking all these matters into account he says he could find no sufficient distinction between this case and that of Connor. In my opinion he was well entitled to reach that conclusion and accordingly this appeal must be refused.