Professor John Mee:

Mr. Byrne's statement was a very moving explanation of why this issue is so important. I agree that we need legislation here and we are all here in our different ways to try to help the families of victims. As someone who has thought about this for a long time and as a person who understands the law, all I can offer is to try to bring some kind of precision. This sounds like it is very much at odds with the human pain experienced by these families but on the other hand it is the way to try to get it right and to help people. There are some differing perceptions about the state of the law here and I believe that I can help in that regard.

My overall opinion is that a lot of work needs to be done to the Civil Liability (Amendment) (Prevention of Benefits from Homicide) Bill 2017 if it is to achieve its purpose. No Bill is enacted the way it begins, but if this Bill was to be enacted, it could make things considerably worse. It focuses on a perceived loophole that, as I will explain, is not a loophole in any conventional sense. The Bill does, however, open three or four bona fide loopholes whereby criminals or murderers could profit from their crimes. One could consider, for example, the tragic Nevin case. Tom Nevin was murdered 23 years ago but because of bad drafting the last time the Oireachtas tried to deal with this matter, there is still a claim being made 23 years on. The Act said that if a person was guilty of murder he or she would lose out. The legislation did not say, as other jurisdictions do, that if a person is convicted of murder, that constitutes conclusive proof that the person is guilty. Because of that bad drafting, the family have had to go through the courts. Deputy O'Callaghanreferred to the difficulty of the family of Celine Cawley which, amongst the worst of things, is being dragged through litigation. I would urge the Oireachtas to ensure the Act is properly drafted.

In a way, the most difficult part of what I have to say is on the perception that there is a loophole in the law, which I saw very strongly during the Second Stage debate on the Bill. We have to understand that the law cannot be both ways. The current law is that if a person murders another person and they had a joint tenancy, the killer retains his or her half share. There is no sense in which it can be said that the killer takes everything. The killer becomes the legal owner but there is a trust imposed. This means, in practical terms, that the killer does not derive any benefit. That is the mechanism this Bill will use. This Bill states that from the time of the murder, there is a trust. It is the same result.

In England none of this is legislated for and it is just a common law rule, as it was in Ireland until 1965 in relation to inheritance and as it is still with regard to joint tenancies. Ireland's law is the same as that in England, Australia, New Zealand and Canada. All of these are the only countries that have the joint tenancy provision. New Zealand, for example, carefully legislated for this in detail in 2007 and they retained the current rule that we have. It cannot really be described as a loophole. One might think that maybe Ireland should be different to all of the other counties and do something that would be innovative but that is not really a loophole in the legislation. Unfortunately, and I will explain if the members care to ask about it - I believe it would be unconstitutional. I do not hold any brief for murderers or other criminals: I only care because the Constitution says that I have to care. It would be unfair to families to pass legislation that when it came to be tested turned out to be unconstitutional, and what they had wanted to avoid happened anyway.

There are loopholes in the Bill, however, and there are smaller issues. I will turn first to the main issue with the Bill, which is the exclusion of accomplices or accessories to murder. I differ slightly on this point from Deputy O'Callaghan. The point is that "a person who aids, abets, counsels or procures" is the definition of accessories in section 7(1) of the Criminal Law Act 1997. It is not a lesser degree. The Law Reform Commission clearly wanted to address this. In pages 45 to 47 of its 2015 report on the subject, the commission singled out this aspect of people who are guilty of murder and decided that they deserve special treatment and that they should be exempted. To be honest this is very surprising but it is not some kind of lesser thing: it is those people who have indeed been convicted as primary offenders. Under Irish law, if one is an accomplice - if one drove the getaway car or hired the hitman - then one is guilty or murder. Strangely, the Law Reform Commission wanted to exclude them and I believe this is simply indefensible.

There are other issues with the Bill that are less obvious, such as with fitness to plead. The law says that if a person lacks mental capacity then he or she is not guilty of the crime and therefore the forfeiture rule does not apply to that person. The Bill refers to unfitness to plead, but this is actually an error because unfitness to plead is an exemption that applies at the time of the trial - perhaps many years after the crime. The point is that if a person with full mental capacity kills somebody with the intention to profit and then is not caught for five years, by which time he or she has dementia or as was said in one Australian case, perhaps the trauma of having committed the crime meant that the killer began to suffer from a mental illness, then that person will then be exempted. That is just wrong. Under this Bill even if one is dead one can be prevented from inheriting. There are terrible cases where a person kills their family and then kills themselves. There will never be a trial but this Bill correctly captures them. If the killer is unfit to plead it should not be treated any differently than if the killer had died.That is a mistaken provision.

The next issue does not apply to murder but rather to people who commit lesser offences against their spouse or the child of their spouse. Members may be familiar with the fact that a spouse is entitled to a fixed share in the other person's estate. It may be one third or one half. There needs to be something in the legislation that says that while it is an automatic right, if a person does something very bad to disqualify him or herself, such as commit a crime punishable by two or more years' imprisonment, then he or she loses that automatic right. The Bill currently provides that "Section 120(1) and (4) of the Succession Act 1965 are repealed" without replacement. This means that if a person raped his or her spouse or molested the children of the marriage, unless there had been a formal divorce or something else that interfered with his or her right to inherit, the person would be automatically entitled to take his or her legal right to the share, even if the spouse had disinherited him or her. If the spouse had left all of the estate to somebody else, the person can say "Well, we are still married and I want my half." The person can insist on their half even though he or she committed these terrible crimes. That is currently covered in the law. The Law Reform Commission seemed to make an error in this regard. It has said that there is a similar rule in relation to children and any provision for children is discretionary so it can be dealt with there. The commission has overlooked the fact that the provision for spouses is not discretionary.

Another issue that is very hard to understand is why the offence of attempted murder is included.

The key principle here is the prevention of benefiting from one's crime. If one kills someone, one inherits from that person's will. If one kills someone in a joint tenancy, there is a danger one will benefit under that. If one does not kill the person, he or she is not dead and there is no change to the legal position. If the person dies 40 years later without disinheriting one, one will inherit. It does not really make sense to pick out attempted murder when one does not include other serious crimes like rape or murder of a spouse. This was challenged in 1965 when this difference was pointed out. At the time, it was not taken on board. It actually operates in a random way in relation to joint tenancies, if one thinks about it. When one murders someone else, it is obviously bad for the killer to be prevented from inheriting under that person's will. We think it is fair that the killer should suffer. Under a joint tenancy, however, if a severance is created while the joint tenants are still alive and the right of survivorship is disapplied and each person can leave it to his or her own families, it will benefit whoever dies first. One thinks of the terrible Hawe case. If the man had attempted but failed to murder his spouse and then killed himself, the severance would mean she would be deprived of inheriting under the joint tenancy, as she otherwise would have. It is random whether one severs it or not. I should explain one aspect of the background. Turning from severing the joint tenancy to the different type of co-ownership called "tenancy in common", it is the same thing except that there is no right of survivorship. As such, there is no change in the status of the attempted killer and the other person. They are still in a co-ownership situation together and the court has a discretion where someone applies to sell the house as to whether to consent. It is important to understand the difference.

Those are the main points. I would be happy to expand on the constitutionality point. I might say a couple of sentences about it before I finish. The key point of the Bill is the prevention of benefit from homicide and that must be its organising principle. If something is a benefit one gets from the homicide, one cannot have it. There is no constitutional objection. The difficulty is if something is not a benefit and is the pre-existing property of the person. In that case, no amount of discretion makes it okay to take it from that person. It means taking the person's own property from him or her and it is not stopping him or her from getting a benefit. Until 1870, there was a feudal idea that a killer suffered civil death and lost all of his or her property, which was taken away. We stopped that in 1870 because it was said that the criminal law decided on the penalty and had various purposes, including the imposition of fines or the removal of some property. A person is tried by a jury and given a sentence at the end. He or she does not get an extra sentence on top of that. It is not that I am feeling sorry for people. If they are very bad, why should we not inflict more punishment on them? The difficulty is that it is unconstitutional because one is taking their property. The test for whether something is unconstitutional in relation to property is whether one is trying to achieve an important social objective that is of pressing concern. The question arises as to whether the methods one is using are proportional. In other words, are they arbitrary or irrational or are they connected to the objective? If our objective is to prevent someone profiting from murder, providing a discretion to take from them something that is not a profit is unrelated to that objective. The irrationality and arbitrariness relates to the fact that it is only focused on property that happened to have been held jointly before. One cannot take any other property from them. Part of the perceived and real injustice in the Cawley case was that she had contributed more to the marriage and put property in joint names, which he was getting to keep. If he had given her the outright gift of a house, it would not have been covered. However, if he gave her half the house, it would be covered. Can members see the element of arbitrariness?

Deputy O'Callaghan asked the very reasonable question as to what should be done. We should have the same law as we have at the moment except that it should be clear to save costs and pain for families. The rule should be enshrined in legislation that one has a severance. It is a joint tenancy in which the killer retains his or her half and the victim's family, excluding the killer, gets the other half. One does not have the pain for the families then. As Deputy O'Callaghan said, the Cawley family wanted certainty. They did not want to have to go to court and argue against the other person or for there to be a discretion. The discretion in the Bill might allow a killer to get more than half, bizarrely. The killer could make the application and point to the discretion, arguing that he or she should get more than half as he or she contributed more. While it is complex, the avenue to be explored, albeit not, perhaps, in this Bill, is whether the killer gets a benefit by depriving the victim of the chance to sue in family law proceedings. If I put a lot of money into a marriage, I would be able to sue my spouse in divorce proceedings and get money. If my spouse kills me, that might be a benefit. Possibly, the estate of the victim should be allowed to make a claim under family law legislation. That might help the Hawe family, who would in no way benefit from the Bill as drafted. Arguably, they might benefit under family law. As I understand it, the man in that case took out €24,000 from a joint bank account, thereby making it his own. In a divorce situation, the court would normally find he had no right to that money and put it back into the pot. This could possibly be done, albeit it is complex and would require careful thought. Other countries do not do it, except New Zealand, which has stand-alone legislation. There should be a stand-alone Act. There is no justification for making it part of the Civil Liability Act. In New Zealand's stand-alone legislation, there is a provision to give a victim's family the chance to make a claim under family law legislation. The difference there, however, is that there is an automatic right to half the property, which is why that makes more sense. My suggestion is that it is something that would have to be looked into and is not something that could be done in this Bill. I am afraid, however, that the idea of a discretion in relation to the joint tenancy is unconstitutional and arbitrary. The Law Reform Commission said that the majority of people suggested a different approach and that the hard situation was appropriate, but then this new idea was made up without any consultation. That was ill-advised.