Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I thank the committee for devoting time to pre-legislative scrutiny of this important legislation. I thank Helen, Noel and John for the submissions they have made and for attending here this morning. At the outset, I want to give a brief overview of what the legislation is intended to do and the manner in which I seek to achieve this. The Bill was introduced in the Dáil on 2 March 2017. The Second Stage debate took place on 4 October 2018, and after that it was agreed by the Dáil that the Bill would proceed to Committee Stage. Since it is a Private Members' Bill, it is important that we do pre-legislative scrutiny on it. That is the process we are engaged in today.

The purpose of the Bill is to amend our civil law so that it includes within it the principle that someone who kills another should not be entitled to benefit from that killing. The Bill seeks to achieve this through an amendment of the Civil Liability Act 1961 and through amendments of the Succession Act 1965. I will start by describing the law at present in respect of persons who kill others and the extent to which they are entitled to inherit. There is law on the Statute Book which deals with this to a certain extent. It is contained within the Succession Act 1965, Part X, section 120, which provides that anyone guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other. That has been on the Statute Book since 1965 but it does not regulate a situation that can arise frequently in Ireland, particularly when somebody has been killed by a spouse, namely, what happens in respect of a joint tenancy where a couple hold property as joint tenants. The distinguishing feature of a joint tenancy is that it operates under the rule of survivorship, which means that if one person dies, the other person automatically inherits their interest in the estate. That is the way most Irish couples, regardless of whether they are married, own their property. It gives effect to difficulties, if we can use that word, in circumstances where one spouse is responsible for killing the other spouse.

Like many Bills that are drafted and indeed much of the work carried out by the Law Reform Commission, what induced this was a tragic and traumatic event that happened back in 2008 when a woman called Celine Cawley was killed by her husband. He was subsequently convicted of her manslaughter in 2011. After that, the law provided that the person responsible for the death was the person who inherited the deceased woman's interest in the joint tenancy. Her family were very concerned about that. As a result, they decided that they wanted to institute proceedings. They brought a case in the High Court, which was heard by Ms. Justice Laffoy. She noted that there was no legislation dealing with the issue of joint tenancy. She stated that the interest of the deceased was thereafter held by the husband responsible for her killing, but that he was holding it on constructive trust for the benefit of their daughter. Constructive trust will arise when a court of equity believes it should intervene to ensure that property is not held by somebody in a way that would be regarded as being unconscionable. She also importantly pointed out that this was an area that required reform and legislation by the Oireachtas.

After that, the Law Reform Commission decided that it was going to do a report in respect of this area. It completed a very extensive piece of research and subsequently published a report in July 2015. Its report made a number of recommendations. It is common cause here that this is a complicated area of law because it involves property rights that are held by a person who has been convicted of a serious criminal offence, namely, murder or manslaughter. The argument can justifiably be made that such a person has property rights which should not be affected by their criminal offence. Notwithstanding that, it appears to me to be very anomalous, to put it mildly. It is very unfair that somebody who is responsible for killing another person could gain the financial benefit of inheriting their part of the joint tenancy. The Law Reform Commission report recommended that comprehensive legislation should be enacted to prevent a person benefiting from committing murder, attempted murder or manslaughter. It said that the legislation not only should apply to the succession and inheritance setting dealt with in the Succession Act but also should prevent the offender benefiting from any property interest of the victim. That is where we get into items such as life insurance policies, pensions or joint tenancies being covered by the legislation which, at present, are not covered by the Succession Act. The Law Reform Commission recommended that the offender should be precluded from obtaining the benefit of the right of survivorship and that the legal and beneficial interests of the property held under the joint tenancy between the victim and the offender should be deemed severed from the date when the offence took place.

This is where it gets especially complicated. The Law Reform Commission also recommended that the actual amount and value to be held by the offender could be decided by a court. In the case of a couple who own property as joint tenants, each of them has an equal interest in that property. What is definitely wrong is that the interest of the deceased who is killed by the other spouse automatically vests in the killer or offender. There is the situation, however, where the offender does have an ownership of half or part of the property at present. The extent to which that can be diminished has to be determined through an application to the courts. We could not automatically have a situation where an offender would lose his own interests in the property. The Law Reform Commission therefore recommended that the court should be able to determine the extent of the offender's interest in the property. The report also recommended that the new legislation should continue to apply to the three most recognised types of homicide, namely, murder, attempted murder and manslaughter. It recommended that it should not apply to circumstances such as dangerous driving causing death.

I note that Professor Mee mentioned in his report that it would be unusual if somebody could order the killing of his wife by another and it would not be covered. In respect of that, I would note that persons who are involved in a conspiracy to murder in Ireland in general are prosecuted as principals. If I asked somebody to kill my spouse, I would be prosecuted as a murderer. I agree, however, that the Bill could be amended to include conspiracy to murder along with the offences of murder, attempted murder and manslaughter. The commission also recommended that where the offender has committed manslaughter, a court should be empowered to modify or disapply completely the rule that prevents the offender from benefiting only if the court is satisfied this is required in the interests of justice.

Because this legislation deals with civil law, the recommendation of the Law Reform Commission is that it is not necessary to have a conviction for murder, attempted murder or manslaughter for a family to bring an application under this legislation. Because it is a civil remedy, the civil standard proof, which is on the balance of probability, would apply.

As with all Law Reform Commission reports, it set out its recommendations and then helpfully it drafted the relevant legislation as an appendix. The legislation I introduced in March 2017 replicates that.

As I said at the outset, one of the issues relates to joint tenancy. However, other examples have come to light in more recent times. I have been in contact with the family of Clodagh Hawe who expressed considerable concern that after she was murdered by her husband, he was able to transfer assets from their joint bank account into his own account thereby depriving her estate of any benefit and ensuring that his estate exclusively benefited. I am sure Mr. Byrne and Ms Doyle will give further examples in respect of it.

The legislation proposes to insert a new section 46 into the Civil Liability Act. Section 46B will set out the principle that "a person... who is convicted of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the property or estate of that other". I have no difficulty in amending that at a later stage to include conspiracy to murder.

A further subsection states it "shall not apply to any person who aids, abets, counsels or procures the commission of an offence". Somebody who asks somebody to kill another person would not be prosecuted with the crime of aiding or abetting; they would be prosecuted as a principal or prosecuted under conspiracy. Aiding and abetting is obviously a lower level of involvement in any criminal act. If needs be, we can adopt an open mind in respect of that.

Section 46C deals with the joint tenancy provision. It states: "Where the offender and the victim held property under a joint tenancy, the offender shall be precluded from obtaining the benefit of the right of survivorship." The right of survivorship stands severed at the time of the commission of the offence and "the property shall be held in trust and subject to the respective beneficial interests of the victim and the offender".

Section 46C(2) states: "Where proceedings are brought under this Part, the amount and value of the offender’s interest in the property shall be determined by the court." A number of factors need to be taken into account when assessing and appraising the level of interest and ownership that the offender can have in the property. They are set out in section 46B(4).

Section 46D deals with the circumstances in which the court can modify or disapply the application of the provisions of section 46B if somebody has been convicted of manslaughter. There may be circumstances pertaining to that which may direct a court in ensuring that it probably should not apply because exceptional circumstances operate.

Section 46E deals with civil proceedings. It provides that where there is no criminal prosecution of the offender, an application can still be made under this Act to disqualify a person, who in the Act is described as an offender, from benefiting under the legislation. Obviously it is unusual that a person who has not been convicted of a serious offence before any court of law would still be held liable under this legislation as somebody responsible for the death of another. However, since it is a civil remedy, there is no reason it cannot apply. People can be sued for wrongful death or for killing another person even in circumstances where there has been no criminal conviction.

Section 46F provides that the costs in proceedings should be borne by the offender.

I have had the opportunity of speaking to the family of Celine Cawley. They were concerned that they had to bring an application that went to court. They found it lengthy and very demanding on the family. Their preference would be not to require an application to be brought to court and to ensure that the ownership rights of the offender would immediately be severed or abolished on the commission of an offence. They just want to make the process easier. That would be difficult to achieve. When dealing with individuals' ownership rights, providing that their ownership rights are hereby being quashed would be susceptible to constitutional challenge.

More important, this will not be of any benefit for people whose family members have been killed in the past because it cannot operate retrospectively. However, it is important to listen to the words of Ms Justice Laffoy in the decision of Cawley v. Lillis. It is important for the Oireachtas to set out a legislative framework so that families and people will be aware of what rights operate particularly in respect of joint tenancies in circumstances where one spouse has been killed by another or one partner has been killed by another with whom they share a joint tenancy. We should introduce legislation to deal with it.

I would be interested to hear what Professor Mee, Mr. Byrne and Ms Doyle have to say in respect of it. They should feel free to be critical of it. I would also appreciate if they could indicate what they believe should be done to deal with what is clearly an anomalous and inappropriate situation that somebody can kill another and yet benefit financially from that crime.