Mack v Lockwood & Ors

This is an application made under s.2 of the Forfeiture Act 1982 for relief from the consequences of the application of the forfeiture rule. The Claimant, Kenneth Mack, is the husband of the late Lorraine Mack. The couple were married for about 23 years and had two sons, David and Simon. Unhappily, in the early hours of the morning on 13^th December 2006 Mrs Mack died at the hands of her husband in circumstances that led to him being charged with her murder, and ultimately to his pleading guilty to her manslaughter on grounds of provocation. He claimed at the time (as he claimed in evidence before me) that he stabbed her in self-defence after she came at him with a knife in the course of a domestic argument. However, the ferocity of the assault– the post-mortem report indicated that Mrs Mack was stabbed around 54 times – was such that, even if a Jury believed that she was or may have been the initial aggressor, it was unrealistic to expect them to find that the Claimant had used reasonable force to defend himself.

Prior to the murder trial Mr Mack, who was born on 16^th February 1926 and was nearly 81 years old at the time of the incident, was diagnosed with prostate cancer. At the time of that trial the prognosis was not good and all indications were that he was unlikely to survive for much longer, but more recent medical evidence obtained on 17^th April 2009 indicates that the cancer is now reasonably controlled, and that the condition should not trouble him for the next year or two. Apart from his prostate, his physical condition is good for his age. His mental condition, however, does give rise to cause for concern. There is a progressive deterioration and the same medical report shows a significant decline even over the past two years. The cause of his mental condition is an important factor in this case.

At and after the time of his arrest, Mr Mack’s mental state appeared to be fragile, not least because of the bizarre way in which he behaved in the immediate aftermath of the killing, a matter to which I will return later in this judgment. Whilst the central elements of his account of the incident given to the police in the course of a series of interviews conducted in the days after it occurred were broadly consistent, some of the underlying details varied considerably, and even then he appeared to be having difficulties with his short-term memory. Those difficulties have increased with the passage of time, as one might expect in the light of the medical evidence.

In the course of investigating their client’s mental state (in particular with a view to ascertaining his fitness to plead, over which there was then some question) his legal team obtained expert medical evidence from Dr George Tadros, a consultant in Old Age Psychiatry, that suggested that the Claimant was exhibiting signs of significant impairment in his frontal lobe function, in consequence of his having suffered a minor stroke in August 2006. Frontal lobe is the chief area of the brain responsible for behaviour, judgment, and abstract thinking. According to Dr Tadros, such an impairment would lead to personality changes, and a distortion of Mr Mack’s perceptions that could impair his judgment. Dr Tadros could find no signs of psychosis or any other evidence of mental illness (as opposed to mental impairment or dysfunction). He recommended a full neuropsychological assessment with special focus on frontal lobe function.

That recommendation was taken up, and in due course an eminent clinical neuropsychologist, Dr Nathaniel-James, carried out a full neuropsychological assessment of Mr Mack with special focus on frontal lobe functioning. That assessment was carried out in July 2007, some 7 months after the killing of Mrs Mack. Dr Nathaniel-James was asked to consider two matters in particular: whether any frontal lobe dysfunction would have led Mr Mack to believe he was facing a greater threat than the average individual through the alleged attack by his wife, thereby affecting his response, and whether any such dysfunction would have an impact on his capacity to control his temper in the face of such a threat/attack.

In paragraph 5.6 of his report, Dr Nathaniel-James referred to his findings that Mr Mack demonstrated very significant difficulties on tests of estimation and flexible thinking. In his opinion, Mr Mack would be likely to interpret any threatening behaviour towards him at a higher level than would someone without these impairments, and it was conceivable that he genuinely believed that his wife was going to kill him. The doctor also considered it conceivable that once Mr Mack had decided to stab his wife, he would find it very difficult to stop stabbing her once he had started. This is because people with very poor mental flexibility who get into a mindset have profound difficulties disengaging from things or a course of action. Finally, Dr Nathaniel-James explained that any such difficulties would have been exacerbated by the consumption of any significant amount of alcohol.

When this evidence was disclosed to the Crown, their own equally eminent expert neuropsychologist, Dr Anderson, examined the Claimant, and he broadly concurred in the opinions expressed by Dr Nathaniel-James. The tests he and his team carried out were consistent with Mr Mack being in the early stages of frontal lobe dementia, and inexplicable by any other mental or physical health condition. Dr Anderson agreed with Dr Tadros that there were no indications of psychosis or sociopathic tendencies in the test results. Dr Anderson found that the stroke had produced serious deficits in executive functioning and judgment, and that in particular Mr Mack had problems with memory encoding and retrieval.

“As with similar cases of stroke and frontal lobe damage his personality appears to have shifted to the more negative spectrum and he can become quite irritable…. on the other hand, cases of frontal lobe damage often have moments of more lucid thinking and their deficits are not as pronounced. However this tendency is unpredictable and generally, when sufferers of frontal lobe damage are faced with novel or threatening situations, the general trend is toward further deterioration of functioning and further difficulties with reality adaptation.”

Dr Anderson expressed the opinion that it was “quite likely” that in the course of a “very threatening and heated” argument, Mr Mack killed his wife in an effort to defend himself from what he perceived to be a life threatening attack, even though this may have been a misperception. Once Mrs Mack had been stabbed, the obsessive-compulsive inflexibility and the extreme emotional activation caused by the argument and fight may have compelled him to continue to stab her until there was no doubt that she would not counter-attack. He added this qualification, in paragraph 7.1.5:

“However, this scenario can only be conjectured upon and stipulated based on the deficits found in the test results. His memory difficulties make it difficult to reconstruct events as they actually occurred and we can only conjecture as to his mental state at the time of the murder. There is also the possibility that he was actually more lucid at the time of the murder but subsequently forgot the essential details of that evening due to his memory difficulties and constructed a false memory to explain his actions of that night” [my emphasis].

These developments in the medical evidence no doubt played a significant part in the decision of the Crown to indicate through leading counsel, on the first day of the criminal trial, that they would accept a plea of guilty to manslaughter on grounds of provocation. Initially, and perhaps surprisingly, that plea was not forthcoming. The solicitor with conduct of the defence to the charge of murder, Mr David Golden, gave evidence in this case. He explained that he had been unavoidably absent from Court when that indication was given, and that when he saw others in conference Mr Mack may not have fully understood the implications of the Crown’s offer. His mental impairment may have contributed to the lack of understanding. His legal term would have been well aware that, as I have said, he stood virtually no chance of an acquittal on grounds of self-defence and that unless he took the Crown’s offer there was a significant chance that he would end up being convicted of murder. Given that the test of provocation is both subjective and objective, the lawyers who understood that could well have felt the Crown’s offer to be a merciful and generous one.

Once Mr Golden had had an opportunity to speak to his client, (which was not until the morning of the third day of the trial) and gave him some legal advice, he assured Mr Mack that nobody disbelieved his account that he honestly believed that he was under threat from his wife. On receiving that assurance, and considering the advice of Mr Golden, the Claimant changed his instructions. He tendered a plea of manslaughter on grounds of provocation, which the Crown and the Court duly accepted. The trial judge, His Honour Judge Howard Morrison CBE, QC, sentenced Mr Mack to 4 years’ imprisonment, indicating in his sentencing remarks that he approved the course that the Crown had taken.

Since Mr Mack’s release from prison in December 2008 he has been living at Burcot Grange, a residential home, where he appears to be one of the more able-bodied residents. He told the Court that although he likes Burcot Grange and they look after him very well there, he would like to purchase a flat in some sheltered accommodation nearby which would give him greater independence whilst preserving access to medical care if and when required. The purchase of such accommodation would probably exhaust his half share of the proceeds of sale of the matrimonial home. However, even with the current outlay on Burcot Grange the income from his pensions alone gives rise to a surplus over expenditure of around £1,000 per month.

The Claimant was the sole beneficiary under his wife’s Will. Lorraine’s estate chiefly comprises her share of the proceeds of sale of the matrimonial home, Mockley Close, which is around £350,000. In September 2004, Mr Mack had severed the joint tenancy in the property so that he and his wife became tenants in common. If I refuse this application, Lorraine’s estate will pass to David and Simon. The First Defendant, who is Lorraine’s executor and trustee under her Will, is taking a neutral stance and has made it clear that he will abide by any decision made by the Court. David’s views are unknown, as he has taken no active part in these proceedings. Simon, who is a postgraduate student at Imperial College London, opposes the application.

The common law forfeiture rule, which precludes a person who has unlawfully killed another from acquiring a benefit from the victim’s estate, applies to all cases of manslaughter: In Re Land (Deceased) [2007] 1 WLR 1009, applying the reasoning of the majority of the Court of Appeal in Dunbar v Plant [1998] Ch. 412. However, in any case other than one in which the wrongdoer has been convicted of murder, there is provision in s.2 of the Forfeiture Act 1982 for the Court to mitigate the harshness of the rule where it is not in the public interest to deprive the wrongdoer of all benefit from the deceased’s estate. Section 2(2) provides that the Court shall not make an order in any case unless satisfied that having regard to the conduct of the offender, the conduct of the deceased, and such other circumstances as appear to the court to be material, the justice of the case requires the rule to be modified (my emphasis). The burden of proof is on the applicant and it is for Mr Mack, in this case, to satisfy me that it would be unjust, bearing in mind the factors set out in the statute, that he should be deprived of any share in his wife’s estate. If that threshold is crossed, then the question of the extent to which the forfeiture rule should be modified to meet the justice of the particular case is a matter of discretion.

As His Honour Judge Norris QC observed in Re Land (Deceased) at paragraph 18:

“The forfeiture rule is a principle of public policy, the application of which may produce unfair consequences in some cases. It is not the statement of a principle of justice designed to produce a fair result: Dunbar’s case [1998] Ch 412, 422D-E, per Mummery LJ. There is a justifiable dissatisfaction with its indiscriminate application in every case of unlawful killing: per Phillips LJ in Dunbar’s case, at p.431G. Following Dunbar’s case however it is no longer possible to discriminate in the application of the rule, only to mitigate its effects where the ends of justice require. The rule will accordingly be applied even where the public interest does not require it (and even where its application may be contrary to the public interest) but in some circumstances its effects may be mitigated”.

There is little guidance in the authorities as to the circumstances in which the Court should exercise its discretion to mitigate the harshness of the rule. This is not surprising, as each case must turn on its own facts. What is clear, however, is that it is not right to approach the exercise of the discretion as if dealing simply with an inter partes dispute: per Phillips LJ in Dunbar at p.438E. Although, as Phillips LJ went on to say, the discretion is a broad one, and it is legitimate to have regard to the consequences of the order, it is inappropriate to seek to produce a result that would “do justice between the parties”, as the trial judge in that case had done. Mummery LJ made observations to the same effect at page 427E-G.

Rather, the first, and paramount consideration, must be whether the culpability attending the beneficiary’s criminal conduct was such as to justify the application of the forfeiture rule at all. Culpability in this context means the extent to which he or she was to blame for the death. Thus in Dunbar the Court of Appeal indicated that the normal approach when dealing with a suicide pact case should be to grant the survivor full relief against forfeiture, whilst acknowledging that in some cases that person’s degree of culpability for the suicide pact may point towards a different conclusion.

The forfeiture rule has been modified in cases where the claimant has been the victim of domestic violence. For example, it was modified in Re K (Deceased) [1986] 1 Ch 180. In that case, a wife who had been subjected to years of abuse shot her violent husband dead in the course of an argument, when a loaded shotgun she had picked up and pointed at him as a threat to deter him from offering her further violence went off accidentally. It has also been modified in cases where the claimant was suffering from what in the criminal context would be described as “diminished responsibility” – e.g. where an unexpected adverse reaction to prescription medication caused the claimant to have a psychotic episode, in the course of which he killed the victim believing himself to be under threat, see Re H (Deceased) [1990] 1 FLR 441. The attack in that case was prolonged and sustained – the attacker first tried to strangle his victim and when that did not produce the desired effect, resorted to stabbing. In such a case, however horrific the circumstances and however brutal the killing may have been, justice would require modification of the rule because the killer could not have been regarded as truly to blame for what he did. Things might be very different if, instead of the drugs being prescription drugs, they were self-administered hallucinogens.

I should add that Counsel helpfully provided me with a joint note on the law, in which they agreed the following:

Another relevant factor to be taken into consideration is the consequence of applying or modifying the rule: for example, whether the effect of the application of the rule would be to confer an unexpected windfall on those who would stand to inherit and to unfairly deprive the applicant of money to which he or she would have had some moral entitlement. In the Dunbar case the assets were the fruits of an insurance policy taken out by the deceased for the benefit of his girlfriend, who survived their suicide pact. The application of the forfeiture rule would have conferred on his family what was described by the trial judge as an “unwelcome windfall”. Although the judge took the wrong approach to the exercise of his discretion, the Court of Appeal did not criticize him for asking himself what the wishes of the deceased would have been, had it been possible to bring him back to life and ask him what he have wanted to happen in those circumstances to the money.

In Re Land (Deceased), the claimant had been convicted of the manslaughter of his elderly mother by gross neglect. He was the sole beneficiary under her will. His application for relief under s.2 of the Forfeiture Act was brought out of time, and HH Judge Norris QC (who was sitting as a judge of this Court) held that he had no power to extend the statutory time limit under s.2(3) of the Act. However, he went on to find that the claimant’s conduct did not disentitle him to relief under the Inheritance (Provision for Family and Dependents) Act 1975 and made an order for reasonable financial provision for the claimant out of his mother’s estate. In reaching that result, the judge made reference to Article 1 of the First Protocol to the convention for the Protection of Human Rights and Fundamental Freedoms and held that the right to inherit property under a will is a “possession” within the protocol. The claimant is not to be deprived of it except in the public interest. The only way that the Forfeiture Act could be given effect in a way that is compatible with convention rights would be to construe it as conferring a discretion upon the Court to mitigate the harshness of the absolute rule where it is not in the public interest to deprive the wrongdoer of all benefit from the estate.

Although HH Judge Norris QC was precluded from exercising his discretion under the Forfeiture Act, and the case was actually decided under the 1975 Act which raises other and different considerations besides those of public policy, he did make the express finding that, on the facts of that case, the forfeiture rule did not serve the public interest. He described the claimant’s conduct as the result of an inadequacy to meet the challenges presented by the deceased’s condition, an inability to recognize that inadequacy, and a hesitancy in turning to outside help. The application of the forfeiture rule deprived the one person who had devoted himself to the deceased’s care without significant outside support (albeit that he lapsed at the end) of the benefit she intended for him, and would have conferred it upon remote relations, most of whom did absolutely nothing for her.

Mr Christopher Maynard, who appeared for Simon Mack, submitted that until the decision in Re Land it had been assumed that someone to whom the forfeiture rule applied had no means of mitigating the harshness of the rule other than under s.2 of the Forfeiture Act, and that such a person could not make an application under the 1975 Act. This meant that in cases decided prior to Re Land the factors taken into account in the exercise of the discretion under the Forfeiture Act have included the financial impact upon the applicant of applying the forfeiture rule in all its rigour. However, since that decision, it has become clear that an applicant who is left in difficult financial circumstances because he or she was dependent upon the deceased can make an application under the 1975 Act. Therefore, Mr Maynard submitted, the financial impact on the applicant of forfeiting whatever rights the applicant may otherwise have had to the deceased’s estate should not play any part in the decision whether or not to mitigate the harshness of the rule.

I do not read Re Land as creating such a sea change, or as affecting the observations of the Court of Appeal in Dunbar that it is “legitimate to have regard to the consequences of the order”, provided, of course, that those consequences are not allowed to assume paramount importance over the key question of culpability. In any event, it is unnecessary for me to decide the point, as it was clear from the evidence before me that Mr Mack was not financially dependent on his wife. He has more than enough resources of his own to pay for his current accommodation and any future medical care that is not covered by insurance, and to maintain a standard of living that is more than adequate. Whether he would be able to afford to move to sheltered accommodation, even if that were a practicable course to take, is perhaps a different matter: but refusing this application is not going to make him destitute.

Mr Maynard also submitted that the current financial position of David and Simon Mack, who would inherit their mother’s estate if this application were unsuccessful, and their past behaviour, are not relevant considerations. I agree that in the present case, it would make no difference to the decision whether the application of the rule without modification would create an injustice to Mr Mack whether David or Simon are millionaires or paupers. Nor, in my judgment, does it make any difference that David has had mental health issues after dabbling in drugs, or that Simon has been accused by his father of abusing his position of trust at a time when he held a Power of Attorney for Mr Mack, by taking funds from his father’s account to pay for his education and maintenance without first telling his father that he was going to do so.

Mr Mack was an extremely successful businessman. He is a highly intelligent man, who obtained a first class honours degree in metallurgy before going on to work in the steel industry. He rose rapidly through the ranks to become what Mr Maynard described as a “captain of industry”, culminating in taking on the position of managing director of UK and European activities of the large group McKechnie Bros. He retired from that position in 1989, at the age of 63, but remained on the board for a few years thereafter. In cross-examination it emerged that whilst he was at McKechnie, the group made quite a few acquisitions of other companies and his function was the re-organization and rationalisation of production, mainly on the plastics side. He agreed that he had to be quite tough and unsentimental about shedding waste and cutting jobs. He accepted that in order to succeed as he had done, he needed to have self-belief and a certain amount of ruthlessness.

Lorraine, who was thirty years her husband’s junior, was a young widow when she first met her husband through becoming his personal assistant and secretary at work while he was at McKechnie. His first marriage, which had produced two sons, William and Timothy, had by then become an empty shell, and meeting Lorraine and finding that she was interested in him and enjoyed his company plainly delighted Mr Mack. Lorraine was a gregarious and attractive young woman with a wide circle of friends. He seemed surprised that she was willing to give up younger and richer men who were interested in her, to be with him.

When they married in 1984, Mr and Mrs Mack first lived at a house called Field Cottage in Ullenhall, near Henley in Arden, Warwickshire. Mr Mack said that his wife had contributed some capital to an extension to that property. There is some evidence that she may also have made a significant contribution towards the deposit from the proceeds of sale of her former home, or from her inheritance from her first husband. Given that Mr Mack had to make provision for his first wife on their divorce, it does seem likely that Lorraine would have made a significant contribution towards the deposit, and that Mr Mack has forgotten that she did, but nothing turns on this.

In any event, upon her marriage Mrs Mack gave up her well-paid job and devoted herself to becoming a full-time housewife and mother, making her contribution to the family in that way whilst her husband became the sole breadwinner. By the time he retired, he was receiving around £85,000 to £90,000 a year from his various pensions. He gave Lorraine an allowance of £1,000 per month, but she had free access to the bank and building society accounts, which were in their joint names. She also had a little money of her own from her first husband, which was kept in a separate account in her own name.

The Macks subsequently moved to a larger property, Mockley Close. The proceeds of sale of Field Cottage were all put towards the purchase price, and the balance of around £165,000 was financed by an interest-only mortgage. The couple carried out some building work on the property from time to time, including the addition of a swimming pool, and took out further interest-only mortgages to finance that work. Mr Mack assumed the responsibility for making the repayments to the mortgages, using his pensions from various jobs (and a separate personal pension) after he no longer had an income from employment. The family lived a comfortable lifestyle. Lorraine appears to have had a penchant for luxury foreign holidays, with a particular liking for the Caribbean. Her husband enjoyed these holidays too, but as time went by he became increasingly concerned about their expense and the drain on his resources that they represented. The holidays were generally financed by the sale of some of Mr Mack’s investments. He had to sell stocks and shares in order to finance expenditure in the region of £20,000 a time, and although he was not a poor man, his resources were not limitless.

Although Mr Mack sought to paint an idyllic picture of the marriage, and no doubt believes it, the true picture that emerges from a file of papers from a firm of solicitors named Blythe Liggins, who were consulted by Mr Mack between around the middle of 1998 and January 2006, is somewhat different. That file indicates a recurrent pattern. From time to time Mr Mack would contact his solicitors, often out of the blue, with complaints that Lorraine was making extravagant demands on his income. The solicitors would then give him good advice about protecting his estate (and his sons) in the event of his death or divorce. Mr Mack would then either ignore that advice, or take it for a short time and then change his mind. In either event he would pay the solicitors for the work they had done, and all would go quiet again for a while. Since the evidence before me was that Lorraine drove a small Peugeot car, was not particularly extravagant with clothes, shoes or jewellery or in her tastes in food and wine, the “extravagance” complained of was largely the expenditure on the foreign holidays, which, as Mr Mack accepted, were for their mutual benefit and enjoyment.

At one juncture, in 1999, Mr Mack went to the lengths of signing a divorce petition and writing out a statement of arrangements for the children, but his instructions were that the petition should not be served, and it never was. He told the Court that this was a response to Lorraine telling him that she intended to petition for divorce, and that she had consulted a female solicitor for some advice. He thought he ought to get some legal advice as to his own position. However, he never wanted to divorce his wife, because he loved her, and they always managed to reconcile their differences.

In early December 2000 a file note records Mr Mack as complaining that his wife had told him that she was having an affair with a man that she knew before he met him, who was worth £5 or £6 million, and that if she had her way she would get rid of Mr Mack and marry him. She also wanted to send the children to public school at “vast cost”. Once again the solicitor gave advice about keeping a close eye on finances and told Mr Mack that he should either “continue to put up with his wife’s behaviour until he died, or get on with divorcing her so that he could enjoy the remainder of his days in some type of peace.” Mr Mack gave evidence that he did not believe that his wife had really had an affair.

Matters appear to have subsided after that until the autumn of 2004, when again Lorraine appears to have threatened divorce and to have told her husband that she would get 85% of the assets. Steps were then taken by the solicitors to try and protect Mr Mack’s assets as much as possible, including the severance of the joint tenancy, which the solicitors presented to Lorraine as a device to mitigate the impact of Inheritance Tax. On 26^th November 2004 one of the solicitors at Blythe Liggins who dealt with Mr Mack, Andrew Brooks, recorded in a file note that Mr Mack had moved accounts back into joint names (suggesting that he had taken the solicitors’ earlier advice to open separate accounts in his own name) but that his wife “has stripped a load of cash out. She has also persuaded him to spend £25,000 on a Christmas holiday.” He had pointed out to Mr Mack “that for his own sanity he should divorce his wife. His life has been absolute misery for the last 3 or 4 years. He says that he now wants to proceed and will come in and see me after Christmas. Pressed him to make a Will in the meantime”. A further file note of Mr Brooks records Mr Mack as being “thoroughly miserable and upset and after talking matters through he agreed that he wanted to divorce his wife but would do so after the Christmas holiday in January”.

With the assistance of Blythe Liggins, Mr Mack changed his Will on 6^th December 2004 to provide for his four sons as well as Lorraine in a manner that mitigated the effects of Inheritance Tax. However it was not very long before he changed his mind, went to different solicitors, and executed a new Will leaving everything to Lorraine (she had recently executed a Will leaving everything to him). A letter to Mr Mack dated 5^th January 2995 from Donald Hunter, the partner at Blythe Liggins who had dealt with the 6^th December Will, indicates that Lorraine had found out somehow about the change of testamentary disposition, and that Mr Mack was in some distress when he contacted Blythe Liggins. Mr Hunter urged Mr Mack to stick to his guns and to the terms of the 6^th December Will, but he did not. Not long afterwards, the Macks put Mockley Close on the market, intending the proceeds of sale to finance a move to Antigua.

The last Blythe Liggins file note is dated 5^th January 2006. By then, Mockley Close had been on the market for around 9 months. Unfortunately, in the meantime the property market in Antigua and the rate of exchange had moved unfavourably. Mr Mack worked out that he simply could not afford to buy a property in Antigua and live there, and when he told this to Lorraine she was not happy about it. In the file note, Mr Mack is recorded as telling Mr Brooks that Lorraine had been making “nasty comments”, which she had not done previously, that she claimed to have taken further advice from her solicitor in Birmingham and that she had said she had been advised that upon divorce she would recover two thirds to three quarters of the value of the house and his pensions, that until divorce he would have to fund her lifestyle even if it took all his pension to do so, and that the house might well have to be repossessed if he could not afford to service the mortgage and her lifestyle, because the latter would have to take priority.

However upsetting all that would have been, and it is likely that it was extremely upsetting, Mr Mack was also recorded in the file note as making it perfectly clear that he still wanted his marriage to work, and that he did not want a divorce. Mr Brooks, who had read through the file before that meeting, characterised Mrs Mack’s behaviour in repeatedly threatening divorce proceedings as “emotional blackmail” and told Mr Mack that he did not think that he should let her keep on doing this. He also records that Mr Mack had opened a separate bank account in his own name, something that Mr Brooks had previously advised him to do.

When asked about this episode in cross-examination Mr Mack said that he had attempted to take out another mortgage for £25,000 to help to finance the trips that his wife wished to make to Antigua in January and March 2006 because, at the end of the day, it was his wish to keep his wife happy. However before the matter went any further, David was admitted to the Priory and his treatment, which was expensive, put paid to any idea of moving to the Caribbean and any further expensive holidays. Mr Mack said that although Lorraine was understandably upset about this, she understood and that they both wanted to do the best for David. At some point that year, marital harmony was restored. The couple even renewed their wedding vows in the local church.

There is nothing in the evidence to indicate that Mrs Mack ever offered violence to her husband. According to Simon Mack she did not do anything physical during arguments, though she once threw over a coffee table. It seems clear that Mr Mack’s overriding fear, which no doubt increased as he got older, was that she would carry out the threats she made from time to time to leave him for a younger man and take most of his money. In general terms Mr Mack does not appear to have been violent either, but there is evidence from Simon of one incident that occurred prior to his father’s stroke that is relevant. Simon was in bed and he heard his mother screaming very loudly and a banging noise. She sounded scared, and he thought something terrible was happening. When Simon got up and went to investigate he found his father banging on the locked master bedroom door and his mother screaming for help. Simon asked his father what he was doing and tried to lead him away, and Mr Mack said to Simon “I’ve got to kill her, she’s going to take all my money”. Simon had previously heard his mother making the general threat to take his father’s money during arguments, but his impression was that this was just something said in the heat of the moment. In any event, on this occasion Simon managed to calm his father down and next morning it was as if nothing had happened. Neither of his parents referred to the incident again.

Dr Tadros’ report records, in paragraph 11, that Mr Mack’s sons informed him that they had noticed significant changes in his cognition and personality since the stroke. He had become less secretive and less self centred to the point that his children thought he was becoming nicer and more engaged with them, but he also started taking a considerable amount of risks with his investments that were very much against his nature (including getting involved with pyramid selling schemes). They also noticed a change in his ability to carry out simple activities of daily living. Mr Mack lost the ability to play Bridge, which was something that he used to play to a high level, and had to teach himself the rules again. He also showed signs of impairment in his short-term memory. When Dr Tadros saw him in February 2007, which was after the death of Mrs Mack, he appeared to have good working memory, good attention and concentration and full orientation to time, person and place. He appeared to be able to understand and retain information and also to weight advantages against disadvantages. However his ability to write had been impaired and there were significant signs of impairment in his speech.

Although Mr Mack coped remarkably well with the experience of giving evidence over the course of two days, his evidence was unreliable. I have no doubt that he was trying to tell the truth, and that he believed that what he was saying in answer to questions was the truth, when he gave those answers. Unfortunately, no doubt as a result of his medical condition, Mr Mack was quite capable of answering the same question in not just inconsistent, but diametrically opposite ways, within a space of minutes. An example of this was when he was asked about Simon relinquishing his Power of Attorney. He initially said that he had taken the Power of Attorney away from Simon and given it to his eldest son William when he (Mr Mack) found out that Simon had been taking money out of his bank account without telling him beforehand. However, he agreed in cross-examination that it was William who had discovered, after he became his father’s Attorney, that the money had been taken out of the account by Simon. He also agreed that Simon had asked to be relieved of the responsibility of being his father’s Attorney, and had suggested that his father appoint a firm of accountants. Mr Mack did not wish to do that, because he preferred to appoint someone he trusted within the family, and he had therefore agreed to Simon’s request and given the Power of Attorney to William instead. When asked further questions by me to try to ascertain which version of these events was the correct one, he seemed to believe that they both were.

It seemed obvious to me that Mr Mack was very much open to suggestion and that often he gave a reconstructed answer (making remarks such as “that seems reasonable”) which he believed to be a genuine memory. If Mr Mack’s memory difficulties made it difficult to reconstruct what happened on the night his wife died at the time when he saw Dr Anderson in 2007, that difficulty has become much worse in the intervening years. There were only two people present in the kitchen that night and early morning. One is dead and the other, through no fault of his own, cannot give a reliable account. I am left with the unenviable task of having to ascertain the degree of Mr Mack’s culpability on the basis of the contemporaneous forensic evidence and the medical evidence as to his condition, coupled with the background information about the couple’s relationship, to which I have already referred, and what is probably the most reliable of his various accounts of what happened, namely, what he said in the police interviews.

There is no doubt that this was a particularly gruesome killing. The post mortem report on Mrs Mack indicated that she had received around 54 stab wounds to the chest and abdomen and one wound to the lateral aspect of her right buttock. It was impossible to reconstruct the order in which those wounds were inflicted, though Mr Mack’s account has been largely consistent that the first wounds were to his wife’s chest and that she was facing him when he stabbed her. Even when he was interviewed by the police, he said he had no recollection of stabbing her more than two or three times, or of stabbing her whilst she was on the ground. He said that after he stabbed her she fell on the ground by the fridge.

Forensic tests carried out on Mr Mack’s pyjamas and slippers indicated that these items were in close proximity to Lorraine whilst she was upright and bleeding onto a bloodstained surface. It seems reasonable to conclude from the report of the relevant forensic scientist, Mr Beaumont, that these were the clothes that Mr Mack was wearing at the time of the killing and the cleaning up afterwards.

Four wounds penetrated into the chest cavity involving the left ribs 3, 4 and 5. Bone was penetrated. The sternum was penetrated approximately at the level of rib 4, which was an approximately horizontal wound, corresponding externally to the first wound that Dr Whitwell, the pathologist, noted in her report on the post mortem examination (“wound 1”). There were approximately 4 wounds present involving the left lung with blood within the left pleural cavity. Approximately sixteen wounds had penetrated through into the abdominal cavity. There were further multiple wounds in and around the liver, right kidney and pancreas.

Estimation of the direction of the wounds was not possible to any degree of accuracy, but Dr Whitwell estimated (on the assumption that the body was in an upright position) that Wound 1 was downwards, Wound 7 (a group of six wounds over the left side of the lower chest and abdomen) upwards and inwards and Wound 6 (a group of four wounds which appear from the report to have been to the chest, though Dr Whitwell is not specific about the location) approximately horizontally. Dr Whitwell’s conclusions were as follows:

Mr Maynard submitted, and I accept, that the forensic evidence was consistent with a very forceful downward stabbing motion whilst Mrs Mack was in an upright position, which penetrated through the sternum into Mrs Mack’s left lung. Many of the remaining multiple wounds, including those to her lower body, were consistent with her being stabbed whilst on the ground. The only wound that is inconsistent with Mr Mack’s account is the wound to the buttock. At one point in his interviews Mr Mack told the police that he stabbed his wife “in the back” because he was afraid that she was going to turn round and stab him. Mr Bart Casella, who appeared on behalf of Mr Mack, pointed out that the wound in the buttock is not a stab to the back, the location of the wound is nearer to the thigh than the fleshy part of the bottom, and that it is not all that far away from some of the wounds to the lower abdomen, and so it may have been inflicted whilst she was on the floor or at least at the same time as those other wounds. Mr Maynard submitted that the stab to the buttock was either the first blow or inflicted during an attempt to get away. In the light of my findings as to Mr Mack’s culpability, I do not need to resolve this issue.

I was shown a sketch plan of the kitchen, in which the entrance to the lounge is in the top left hand corner and the entrance to the television room or “snug” is in the bottom left hand corner. There was a kitchen table to the left as one came out of the snug moving up towards the lounge. On the right (in the centre of the kitchen) was an “island” for preparing food, with a small sink in the top right hand corner. There was a large American style fridge at the top end of the kitchen (nearest the lounge) and the Aga, sink and dishwasher were on the far side of the central island on the right. Mr Mack has consistently described the incident as starting by the table on the left hand side of the plan towards the lounge door, as he slipped against the table and banged his elbow on it. He described them both as being between the table and island at the fridge end when the argument began. Lorraine’s body was found lying face up in front of the fridge with her head towards the sink and her feet towards the entry into the lounge, but her husband did tell the police that he had moved it slightly when he had to get round it to get milk from the fridge for his cereal in the morning. Drips of blood were found in an area near the centre island on the right hand side of the kitchen, close to the small central sink, which indicated that she may have moved further round the kitchen after she was first stabbed than Mr Mack recollected.

The evidence of Mr John Lowe, the other forensic “blood expert”, was that the drips of blood he found on the kitchen floor were more likely to have originated from Lorraine Mack’s injuries than from another bloodstained object being carried around the kitchen. Mr Lowe’s task was not made any easier by the fact that Mr Mack had mopped the floor to clean up the blood after he had killed his wife. He told the police that he had not wanted the dog to tread in it. On my reading of Mr Lowe’s evidence it appears to be probable that Lorraine moved around the kitchen from the site where the incident began and that her husband followed her and continued to stab her. The defensive wounds indicate that she made an unsuccessful attempt to ward him off. One thesis advanced by Mr Casella to explain the evidence of the blood drips on the right, namely, that the whole incident began on the right hand side of the kitchen, appears to me to be less consistent with the forensic evidence, and it is not what Mr Mack has ever said.

I have already referred to the cleaning of the floor. Mr Mack also cleaned the weapon (or weapons) he used to stab his wife. He told the police that he had rinsed the knife (singular) under the high-pressure tap in the small sink on the island, but later he said that he had put the knife or knives in the dishwasher with the rest of the crockery. The forensic team were unable to identify the weapon. However, when Mrs Mack’s body was found, she was holding a small knife in her left hand. The wooden handle had splashes of her blood on it which were consistent with the handle being in contact with a surface wet with her blood. The areas of staining appeared to be the same areas as those contacting with her hand in the photographs taken at the scene when the body was still in situ. Mr Beaumont says in his report that there was no indication that Lorraine Mack had held the knife in any other position or orientation other than that shown in the scene photographs and while her hands were wet with blood. It was therefore impossible to tell from forensic examination alone whether Mrs Mack had picked up the knife at any point during the incident or whether it had become stained with her blood on a work surface or on the floor at some point and Mr Mack had put it in her hand afterwards.

If Lorraine was moving around the kitchen backwards, away from Mr Mack, that would mean her left hand was closer to the central island, a place where it might have been possible to find a vegetable knife or some similar implement. However if her hands were already wet with her blood when they made contact with the knife, that suggests that even if she did pick up the knife, she had already been stabbed by the time she did so. It is possible, but unlikely, that having picked it up once she would have put it down again or dropped it and picked it up a second time.

Mr Mack told the police that on the afternoon of 12^th December 2006 he had gone to play a round of golf with a friend but the round had been cut short by inclement weather and they had a half of lager together in the clubhouse before Mr Mack went home. He and Lorraine settled down to watch “the Weakest Link” on television and then they had supper. He had a couple of glasses of Chardonnay with the meal and his wife drank some Pinot Grigiot. After the meal they cleared up the dishes and put them in the dishwasher. Mr Mack may also have had another half of lager prior to retiring for the night. There does not appear to have been any marital discord prior to their going to bed, although Mr Mack was later than his wife in going upstairs. At around midnight or half-past twelve, Mr Mack heard the dog bark and got up to let it go out into the garden. He remained downstairs in the “Snug” and watched the TV for a while. After a while he heard Lorraine come downstairs into the kitchen and he went to see what she wanted.

There was then an argument. Lorraine had discovered that her husband had opened a bank account in his sole name. She was very upset. She said that she had told “two of her multi-millionaire boyfriends” about it and that they thought it was terrible. On one version, (given to the police in interview) Mr Mack said that he had decided the previous day to turn it into a joint account and had already rung the bank to make those arrangements, and on another (given in the witness box) that he had always intended it to be a joint account and the bank or building society had sent the papers through for Lorraine to sign, but she had seen his name on the account in the papers and got hold of the wrong end of the stick. He tried to explain this to her, but she would not listen. She got very angry. On his very first account to the police in interview he said “she thought she could divorce me and get 90% of my pension and the whole of the house which is the only real wealth we’ve got. I said that’s not reasonable and she said I don’t intend to be reasonable and so she rushed towards me and I stepped backwards and I slipped. I put my elbow on the table, hit quite a blow”. He got up and went towards her and she hit him hard on the right arm with something wooden. It hurt him and he recovered, and that was when he saw that she had a knife which she was holding in the other hand “like a dagger” and she said “I’m going to end this marriage now” and came towards him, so he picked up a knife from the table and stuck it into her because he thought she was going to kill him. She staggered back and then came back at him so he stabbed her again. Then she fell down on the floor.

After the killing, Mr Mack said he let the dog out, waited at the door until the dog came back from the garden, mopped the floor, washed the knife, put a cover over the body, loaded up the dishwasher and put the dishwasher on, and went to bed. He said he did not call the police immediately because he wanted to tell his sons first what had happened, and he knew he would be unable to get hold of them in the early hours of the morning. However, the next morning he did not ring them straightaway. He had breakfast, took the car to the newsagents to get a paper, and kept a dental appointment. It was only after he had contacted David (who was in the Priory at the time) and Simon (who was at University) later in the morning that he rang the police.

Mr Casella submitted that the bizarre behaviour of Mr Mack in the immediate aftermath of the killing of his wife and the explanations given for it to the police were consistent with the medical evidence of frontal lobe impairment. The cleaning up after the event was not part of a deliberate attempt to impede police investigations or to lay a false trail pointing to another person being the culprit: after all, Mr Mack admitted from the onset that he was the person who had killed his wife. It is possible that one of the reasons why he waited for as long as he did to report the incident was to give himself time to get rid of the traces of alcohol in his bloodstream but his other behaviour, far from being designed to exculpate him, seemed likely to do the reverse. I am therefore inclined to believe that it is more likely that his behaviour was conditioned by a combination of his frontal lobe dysfunction and the shock brought on by the incident itself. The medical experts have ruled out the other potential explanation, psychopathy.

The repeated stabbing of his wife whilst she was already dying on the ground and in no position to attack him was also consistent with that mental impairment. The reports of the neuropsychologists support the thesis that once Mr Mack had decided to stab his wife he could not stop himself from continuing. I agree with Mr Casella on both these points. Even on Mr Mack’s own account of the amount of alcohol he had consumed in the course of the late afternoon and evening, he had consumed enough for it to contribute to the effects of the frontal lobe damage on his thinking and behaviour and one must not discount the impact of shock. Putting the weapon he used through the dishwasher, bizarre though that is, is as consistent with shock as it is with his mental impairment. The oddity is that he did nothing about the knife that was found in his wife’s hand.

The forensic evidence suggests that it is probable that Mrs Mack had already been dealt the death blow before she hit the floor and that there was a more sustained struggle before that, covering a wider area of the kitchen than Mr Mack recalls. There is no doubt that Mr Mack was suffering from a mental impairment at the time of the argument, which would have affected his behaviour to some degree, but it was not a mental illness. It undoubtedly affected his behaviour once he had taken the decision to stab his wife in the first place. The question I have to determine on the balance of probabilities is to what, if any, extent it had a bearing on the initial attack, reducing his culpability.

Mr Casella submitted but for the frontal lobe impairment, Mr Mack would never have killed his wife, and that therefore his culpability for the attack was significantly reduced by his medical condition. He placed considerable reliance on the report of Dr Nathaniel-James and the conclusions in paragraph 1.5 of his report that the impairments in the domains of judgment and flexible thinking probably led Mr Mack to believe that he was facing a greater threat than one might do in the absence of such cognitive impairments, and that this led to the excessive response to the alleged attack. Mr Casella also submitted that there had to have been a “traumatic event” to trigger these perceptions, but I do not read the medical evidence as going quite that far. All that Dr Nathaniel-James and Dr Anderson appear to be saying is that it is possible that the frontal lobe impairment caused Mr Mack to over-react to something his wife did, and that it was the frontal lobe impairment which caused him to believe that she was going to kill him when a person not suffering from frontal lobe impairment would not have thought this for a moment. However, Dr Anderson, in particular, thought it was also possible that the belief that she was going to kill him was part of a false memory created after the event, and that the frontal lobe impairment could have been instrumental in the creation of the false memory. He was not advancing one or other theory as being the more likely.

The starting point, in my view, has to be Mr Mack’s acceptance in interview that when he stabbed his wife he intended to kill her. The medical evidence is that he was not delusional or suffering from any psychosis. He was not drunk, though he had been drinking enough to exacerbate the effects of the frontal lobe deterioration on his behaviour and thinking.

Mrs Mack was not a violent or aggressive woman, though her husband described her as very fit and stronger than he was. There is no evidence that she had ever hit Mr Mack or threatened him with physical violence during an argument before. He was devoted to her, and on other occasions when she had threatened to divorce him and take the lion’s share of their assets he had reacted, on the whole, in a reasonable and proportionate manner, by going off to seek legal advice, save only for the incident prior to the stroke recalled by Simon. His irrational remark to Simon on that occasion, “I’ve got to kill her, she’s going to take all my money”, even if spoken in anger, betrays a certain mindset about the consequences of Lorraine leaving him. By all accounts, Mr Mack has never been a man to show his emotions externally. Even on the occasion when he made that remark, Mr Mack had allowed himself to be led away from trouble: but on the evening if 12^th/13^th December 2006, there was no third party there to keep the peace.

It is highly unlikely that if Lorraine had picked up a knife at the beginning of the argument her husband would not have seen her do it. She had no reason to have picked up a knife or any other kind of implement to emphasise the point that she wanted to bring home, namely, that she had had enough, and this time she really was going to leave him. It is even less likely that having picked up a knife, she would have hit her husband on the arm with its wooden handle. He did bang his elbow on the table, and he told the police that he had slipped when she brushed against him. It is possible that in his muddled state he convinced himself after the event that the bang on his arm had been caused by Lorraine hitting him with a piece of wood. On his account to the police he first saw the knife in her hand when she moved it from one hand to the other, and she was about three feet away from him at the time; yet he also said that he saw the knife in the immediate aftermath of being hit on the arm with the wooden handle.

On the balance of probabilities I find that Lorraine did not have a knife in her hand at or before the time when her husband first stabbed her, a stab that was vicious and forceful and inflicted with the intent to kill, and followed by at least two others inflicted with similar intent. The forensic evidence is more consistent with Lorraine either picking up a small knife from the island to her left, in an attempt to defend herself when her hands were already bloodstained and she was staggering backwards from the force of the initial blow or blows, or with Mr Mack putting the knife in her hand after she was already dead (possibly in the belief that she must have been holding it). The former hypothesis is consistent with Mrs Mack being a couple of feet away from Mr Mack when he first saw a knife, and being at the far end of the central island on the right hand side near the small sink unit where the blood drips were found. At that point she must already have been seriously, if not fatally, wounded.

What triggered the attack was Lorraine’s threat to end the marriage, take all her husband’s money and go off with someone else, a threat she had made before, but which this time pushed him over the edge and caused him to lose his temper, with fatal consequences for her. In my judgment, it is more likely than not that Mr Mack took that threat at face value, and not as a threat to kill him, because Lorraine was unarmed at that time. It was plain that he was becoming increasingly vulnerable, and he was worried about money. However, even if he did take what Lorraine said about ending the marriage as a threat to kill him, and Lorraine was moving towards him in what he perceived to be a threatening fashion when she said it, he did not see a knife in her hand at that point.

Mr Mack may well have lost control and over-reacted in the heat of the moment, and his frontal lobe impairment may have played some part in that over-reaction, but this is not a case in which the mental impairment was so significant as to absolve the killer from much, if any, culpability for the killing. He did not intend to deter his wife, or ward her off. He took no defensive action, though he could have run away into the “Snug” or out into the back garden. When he struck her, he fully intended the blow or blows to be fatal and the forensic evidence about its/their location and force supports this. It is likely that one of the initial stab wounds was enough to kill Mrs Mack, although she did try to get away, and she did put her right hand up to ward off further blows. It is possible that she picked up a knife from the island with a view to self-defence, but she did not have a knife in her hand at the time when Mr Mack says she did, that is, before he attacked her.

Once Mr Mack had embarked on the course of stabbing his wife, his mental impairment caused him to continue with the attack long after Lorraine could possibly have posed any threat to him. After the event, he convinced himself that there was justification for his behaviour, namely, that he was the one whose life had been in danger, and that she had attacked him. He had around 11 or 12 hours to convince himself that he was the one who had been attacked, a conviction which may have been bolstered by seeing a small knife with a wooden handle somewhere in the kitchen, maybe near the body on a work surface or on the floor, or even in Lorraine’s left hand, when he was clearing up. It is possible that he simply could not come to terms with what he had done to the wife he clearly adored, unless he was able to justify it in that way. He created a false memory of the incident that he genuinely believes to be true, and believed to be true at the time when he gave his account to the police. If he saw Lorraine with a knife in her hand at some later point during the incident, or even if he found one on the floor afterwards with her blood on it from one of the bloodstained surfaces, it would have helped to bolster the false memory. All of this is consistent with the medical evidence.

I agree with Counsel that it is not helpful to attach to these tragic events the labels used in the criminal courts to describe full or partial defences to murder. However, if this was not murder, an ordinary member of the public would no doubt regard what Mr Mack did as being so close to it as to make no difference in terms of his culpability. I share that view. It is nowhere near the same kind of situation as the diminished responsibility cases such as re H Deceased. The mental impairment that existed at the time, although it explains much of his behaviour, in my judgment did not significantly reduce Mr Mack’s responsibility for her death.

I have dwelt at some length on the behaviour of Mr Mack, but the statute also requires me to take into account the behaviour of the deceased, and any other facts and circumstances that are relevant to the exercise of my discretion. So far as Mrs Mack’s behaviour is concerned, I have already found that she did not threaten her husband with a knife or hit him with the handle of a knife. She may have engaged in what Mr Mack’s solicitor, Mr Brooks, privately labelled as “emotional blackmail” from time to time, and played the divorce card as part of a pattern of re-establishing a degree of control over the purse strings of her much older husband, whom she knew was devoted to her and would do almost anything to prevent her from leaving him. However, whatever she said or did to him on that night did not justify him in picking up a knife and stabbing her to death. This was not a case where the subservient partner in the marriage eventually snapped under strain and killed the dominant partner, or where the killing was the accidental result of brandishing a lethal weapon in order to scare the deceased.

Nor is this a case where the application of the forfeiture rule would confer an unexpected windfall upon remote relatives, and deprive Mr Mack of money or assets that he had a moral right to claim as his own. Although Mr Mack was the breadwinner, his wife made an equal contribution to the marriage and was entitled to regard her share of Mockley Close as hers by right. On the contrary, if the rule were to be applied, the two children of the ill-fated marriage would receive a share of their mother’s estate, just as she intended them to do if her husband predeceased her. Had the tragic incident not occurred, it was highly likely that Lorraine, who was thirty years younger than her husband, would have survived him. She may well have divorced him, taking at least her share of the matrimonial home at Mockley Close. Although Lorraine had left everything to her husband in her Will, I cannot imagine that Lorraine would have wished the husband who stabbed her to death for no reason, to inherit in place of her sons.

On the other hand, on the evidence of Mr Mack, if I were to accede to his application, then such part of his late wife’s estate as I allowed him to inherit would pass on his death to all his four sons, including the two elder sons by his first marriage, William and Tim, who have been extremely helpful to their father since his arrest. He said that he had not yet decided how he would divide up his own estate and that he had altered his Will several times. Although Mr Mack described all his sons as “good boys”, and he has denied any intention of cutting his younger sons out of his Will, his relationship with David has been strained for some time. As for Simon, Mr Mack told the Court that he had forgiven Simon for his perceived wrongdoing, but I am far from confident that this was the whole truth. Again, no doubt as a result of his frontal lobe dysfunction, Mr Mack has convinced himself that Simon has stolen gold bars from him, though he cannot recall whether the gold bars were kept in the family home or in a safety deposit box. There is no guarantee that Simon or David would get anything of their mother’s estate that passed to their father.

Mr Casella accepted that Mr Mack did not need Lorraine’s inheritance in order to live, and that although the costs of his care are likely to increase as he gets older, these will be met in part by medical insurance. Although an extra £350,000 would no doubt go a long way towards the fulfilment of Mr Mack’s aspiration to retain as much of his pride and dignity as possible in the remaining years left to him, that is not a consideration that can carry much weight in the exercise of my discretion. Mr Casella submitted that Mr Mack’s wish to move to independent accommodation is unlikely to be fulfilled unless the rule is modified, because the legal costs of the criminal case that have not been met by legal aid (the medical reports, etc.) and the costs of these proceedings have already reached a three-figure sum. It seems to me that the public policy behind the rule is unlikely to be consistent with my doing anything that, even indirectly, relieves the killer from the consequences of having to expend legal costs in defending criminal proceedings or starting civil proceedings for relief. As to Mr Mack’s wish to have something to leave to his sons on his own death, it seems likely that he will be able to fulfil that wish regardless of the outcome of this application.

If, taking all these matters into account, I ask myself the question “does the justice of this case require that the forfeiture rule be modified?” or, to put it another way, is it unjust that having killed his wife in this deliberate and brutal fashion, Mr Mack should be precluded from inheriting her share of the matrimonial home, then the answer is plainly no. For these reasons, I refuse the application.