Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The purpose of today's meeting is to conduct detailed scrutiny of the Civil Liability (Amendment) (Prevention of Benefits from Homicide) Bill 2017 sponsored by Deputy O'Callaghan, a member of this committee. I welcome from AdVIC Mr. Noel Byrne, member, and Ms Helen Doyle, secretary. They are accompanied by our Oireachtas colleague, Senator Marie Louise O'Donnell, who is a patron of AdVIC. She is very welcome. We are also joined by Professor John Mee of University College Cork. We have had witnesses from UCC over the past three sessions of our committee. We are putting the blame on Deputy Ó Laoghaire. This Cork influence is very strong. I will shortly invite the witnesses to make their opening statements in the order in which I have introduced them.

I draw the attention of witnesses to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.

I welcome our guests in the Gallery. I invite Deputy O'Callaghan to make his opening statement on the Bill.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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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.

Mr. Noel Byrne:

I am a member of AdVIC and I want to highlight my brother's case and where his convicted murderer stands. I am the brother of Paul Byrne who was murdered in September 2009. Paul was murdered by his estranged spouse Tanya Doyle. Paul was a project manager with a well-known company that carries several contracts for major companies throughout Ireland. Paul's income was in excess of €100,000 at the time of his death.

I will go through the background and how Paul and Tanya split up. Paul had been stabbed in the back some years before his death. This stabbing punctured his lung and was 1 cm short of puncturing his heart. He was in hospital for about two months and on leaving hospital, he and Tanya went through a small stage before their separation. Due to this separation Paul supported and provided money for an apartment and other financial implications in respect of their separation. There was no legal responsibility for him to do that, but Paul lived up to his financial obligations as her husband.

Shortly afterwards, Tanya decided to go away. I believe she went to Portugal. She stayed in Portugal and Spain for a number of years. Tanya and Paul remained in contact. She said she had some difficulties there and Paul paid for her flight back to Ireland. She then resumed living in the house with Paul. They lived there together but had separate bedrooms.

They were in the process of going through a legal separation. They had come to an agreement on the terms of that. That settlement was due to be signed on the Tuesday after his death. On the weekend of his death there was a 21st birthday party for our niece. We live just outside Thurles. We had made arrangements to call for Paul on the way over. The intention was that we would go out for a drink with my father and the three of us would chat for the evening.

We were running a little late and hit the M50 at approximately 7.10 p.m. We tried to call Paul to say we were heading to my sister's house and would meet him later. However, his phone was engaged. Due to the previous incident with Paul's stabbing, I decided, especially with Tanya living in the same house, that I needed to call him every day to ensure he was okay. This fizzled back to ringing him mainly over the weekends and into Tuesday. Because of his business, he would normally be away at some company around the country from Tuesday to Thursday night. Such was the intensity of our fears that at one point he did not answer the phone and I was so worried that I decided to ring Tallaght Garda station to get them to drop around to the house. We had second thoughts when I discussed it with my wife and sister. When he rang me back in the morning, he thought it was quite funny that I thought I needed to take that step.

Paul's murder was pre-planned in the days running up to that Friday. A carving knife was bought in a local store and a pre-arranged plan to kill him was set in action. Paul called for a taxi at approximately 7 p.m. on the evening of his death to bring him out to my Dad's house. A short while later, Tanya Doyle called the taxi company and cancelled the taxi. The coroner's report as read out in court recorded that Paul was stabbed over 68 times and five of his vital organs were punctured. Any one of those injuries would have caused his death. He dialled 999 and the eight and three quarter minutes of the remainder of his life was recorded. I will not go through the conversation recorded on the 999 call as Paul died. Suffice it to say, the number of defensive wounds were critical. There was one slash wound on his arm that peeled the skin back four inches. At one point, he asked Tanya to call an ambulance. She had stabbed him in the heart. It is my belief that the last stab wound happened as he lay on the bed and the carving knife pierced one side of his neck and came out the other. It took just under nine minutes for Paul to bleed to death.

Tanya was arrested at the house. She was washing herself down and changing her clothes and was just about to leave when the police turned up. Under questioning that evening, Tanya admitted to gardaí that she had killed Paul for the house and his money. She told gardaí that there was no point in just stabbing him. Our understanding of that was in reference to what happened before. That would mean she would not get enough. Tanya was convicted of murder in 2013. If we look at the wider picture in relation to Paul's death, after the conviction took place and the estate went through probate, we received legal advice which recommended that, as a settlement, we needed to purchase her portion of the tenancy of the house. Otherwise, she would be entitled to a key and to return there following her release from prison. On contacting immediately after his death the financial controller in the company Paul where worked, we were given an undertaking that no moneys would be paid to Ms Doyle. The financial controller changed a number of years afterwards. After the trial, we contacted the financial controller, who was chair of the pension fund, and were told there was an obligation on them to pay her the spouse's portion of the benefit from the pension. All other portions of the pension were paid to the family. The amount of the pension was nearly €23,000 a year and this is why Paul was murdered. It was for the house and this money. She stated that categorically to the police. If she lived the average life expectancy of a woman, it would amount over that period to approximately €1 million. We were in contact with the insurance company that held the pension. I ask the committee to note that I make no reference to the names of either his company or the insurance company. I think that would be improper. The insurance company said it had an obligation to pay this money. We cannot understand how an insurance company would pay a convicted murderer who admitted killing a person for that money. We cannot understand that person receiving any benefit whatsoever. In 2016, the trustees of the pension sent us an email stating they had arrived at an agreement that no moneys would be paid.

It is a shame to think that this September, it will be ten years since 2009 and that a person who committed murder for gain is still in a position to receive that gain. It is perhaps another issue but Tanya Doyle was up for parole in 2017 and will be up for parole again in June 2019. As a family, we have been consistently struggling since 2009 with the events of this murder. As a family, my wife, two sisters, their partners and I cannot understand how a person who admitted murdering somebody can benefit from that crime. It is unbelievable that the Members of the Oireachtas have not done something sooner.

A Women’s Aid Femicide Watch reportfound that on average, ten women are killed each year by their partner or spouse. That is more than 100 people who have been murdered by their partner or spouse since 2009. The families probably find themselves in similar situations to us and have to battle through with the same legal jargon and issues surrounding the deaths. I find this very distressing.

Since the first report came out in 1996, the average is ten deaths per year. Between 1996 and the end of this year, that will come to more than 225 deaths. The families of those victims will have gone through a similar situation to us and nothing has been done about it yet.

I appreciate members' time this morning. I apologise for going way over time. I had talked through this presentation and was closer to my timing then but I appreciate the committee's tolerance and patience this morning.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Thank you for your presentation this morning. It was very courageous address to us, which is greatly appreciated.

I now wish to introduce Professor John Mee, from University College Cork, and invite him to address the committee on this subject.

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.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank Professor Mee for a very considered contribution. I thank him and AdVIC for their very detailed respective submissions which will be hugely beneficial to the committee in its deliberations on the Bill. I return now to members.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the witnesses for attending and for their submissions. I thank Mr. Byrne very much for telling the committee of the very traumatic circumstances he and his family went through. I thank Professor Mee for his detailed consideration. Does Professor Mee think that legislation is necessary or would it be preferable to leave matters as they are and for constructive trusts to operate?

Professor John Mee:

It would be better if there were legislation, as that would make things clearer for families. It is a complicated area and, as such, there are many things I did not say. It would be better if there were legislation to introduce clarity and to deal with unusual situations such as circumstances in which there are three joint tenants and it is difficult to work that through. It is also the case that a complication has been introduced, which is the main reason Ms Justice Laffoy suggested there should be reform. However, this complication has been lost. The complication is the special rule in respect of land only. Previously, one could sever the joint tenancy at any time so it was very clear there was no profit for the killer in getting it converted to a tenancy in common. He could have achieved that at any time without the consent of the other person by creating a unilateral deed to switch to the other type of co-ownership. As such, there was no benefit. However, section 30 of the Land and Conveyancing Law Reform Act 2009 introduced a rule that said one could not sever a joint tenancy without the prior written consent of the other joint tenants. In relation to land only, and this is a matter of opinion and might not happen, one could see a situation where the killer could benefit. Let us say the killer was suffering from a terminal illness and was going to die first and lose out on the survivorship, he or she might say he or she wanted to sever the joint tenancy but the other person would be entitled to refuse.

The person dying of cancer could go to court and say, "I want you to dispense with the need for consent on the basis that it is being unreasonably withheld." If the court was to state "No", that person would be at the point of losing out completely and would then murder the other person. If the two had a tenancy in common, they would achieve something they could not otherwise achieve. It is complex point. The suggestion made in my submission is that the principle is we want to stop the killer from gaining a benefit. The court would have to try to identify the benefit and deprive him or her of it.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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What is the benefit? Let us say a property is owned by a couple as joint tenants and one kills the other. There is the interest the offender has which belongs to him or her and there is the interest of the deceased interest that the offender subsequently acquires. Ms Justice Laffoy stated the part acquired was held in constructive trust. Are the beneficiaries always the children or the estate of the deceased?

Professor John Mee:

On that narrow question, as it would be the beneficiary of the estate of the victim, section 120 would apply separately. The rule against gaining benefit is applied as many times as is necessary. First, the killer would be deprived of the right of survivorship and, second, the right to inherit under the will or intestacy of his or her victim.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Did Professor Mee say all of section 120 applied in that case?

Professor John Mee:

It only applies at a secondary level. What happens is that there is a constructive trust, with half for the killer and half for the estate of the victim. When we are deciding what the estate of the victim is, if he or she left everything to the husband who is the killer, separately he or she will be deprived of the right to inherit part of the estate.

The Deputy's main question is what profit does the killer receive when there is a severance? In the Cawley-Lillis case Ms Justice Laffoy said there was no benefit. She said there were all these imponderables. We cannot which person would have lived longer. She said that at the end of the day there was no benefit, that she was satisfied that creating this severance, which meant that everything stayed the same, except that there was no right of survivorship, would not benefit the killer.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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In practical terms and using that case as an example, he did acquire the benefit of his wife's interest in the joint tenancy. Is that correct?

Professor John Mee:

No, he did not really. The nature of a joint tenancy is unusual, but the idea is that both own everything. When a person is callously murdered, his or her interest disappears and the other person continues to have everything. We say that is not fair and that we cannot have it. To solve the problem, we could say we would split it in half, the potential half share everybody had at the beginning. The killer would go from having something that was really worth half, a joint tenancy that entitled them to occupy everything, to be turned into a half share in the future.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The Cawleys had to go to court in order to have their-----

Professor John Mee:

That is true, but the killer in that case withdrew the claim before delaying it and racking up legal costs. He then said: "I concede that obviously I cannot have all of it." That was not unexpected. The family then said: "We would like to have all of it."

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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They wanted to acquire his interest.

Professor John Mee:

They failed in that respect. It is understandable they continued, having been brought to that point by him. There was also the costs incurred in deciding what mechanism to use - a constructive trust or a different kind of severance. That has now been made a little clearer, but it would be even more clear if it was inserted into legislation.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Had they not gone to court, it would have been quite complicated years down the road in trying to identify the beneficiaries of the constructive trust.

Ms Helen Doyle:

He would have had everything. I did not get a chance to set out AdVIC's position. I do not know if there is time available to do so.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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No, not at all. We will come back to Ms Doyle. Deputy O'Callaghan was directing his questions at Professor Mee-----

Ms Helen Doyle:

Okay.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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-----but I was not conscious that there was a second AdVIC presentation. I apologise for the misunderstanding.

Ms Helen Doyle:

No problem.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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When this line of questioning is concluded, if Ms Doyle can be precise in her presentation, we will certainly give her an opportunity to make it.

Ms Helen Doyle:

It is short and addresses some of the issues raised.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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That is fine.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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If Ms Doyle wishes to speak now, that is fine.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Is the Deputy happy to give way?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Yes, absolutely.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I ask Ms Doyle to proceed. Again, I apologise to her. I did not have a note before me.

Ms Helen Doyle:

We are privileged to be here. As members will be aware, AdVic is a registered charity run by volunteers - by the families bereaved by homicide. We are there for the families and friends bereaved by homicide. Apart from providing information and support, a key objective of AdVIC is to advocate for change in the criminal justice system because we have found that there is a lack fairness for victims, their families and the wider community.

During the years, as an organisation, we have become aware that there is an egregious situation where the perpetrator of a homicide can benefit from his or her act in clear breach of core public policy principles. Article 43 of the Constitution acknowledges the right to "private ownership of external goods" and goes on to recognise "that the exercise of the rights ... ought, in civil society, to be regulated by the principles of social justice". In accordance with Article 43, the Succession Act provides that a person who is guilty of the murder, attempted murder or manslaughter of another person is prohibited from taking any share in the estate of the other person. The Act also provides: "Any share which a person is precluded from taking under this section shall be distributed as if that person had died before the deceased". While the Act logically and effectively deals with the prevention of benefit from homicide under a will or intestacy, it does not address property that falls outside wills or intestacy, for instance, property held jointly - that is the default position for married couples or civil partners - and certain pensions and insurance policies. In these instances, the perpetrator of a homicide can obtain substantial benefits from his or her act owing to the presumption of survivorship in the case of jointly owned property, or by receiving the proceeds of an insurance policy or pension. That is the default position without the taking of a court case to have a constructive trust applied.

We very much welcome the Bill sponsored by Deputy O'Callaghan, as there is an extremely urgent need to address this travesty. While we broadly agree with the provisions of the Bill, we are deeply disappointed that it fails to do what we believe is essential in these circumstances, that is, as a presumption, to sever the joint tenancy and vest the entire interest in the relevant property in the estate of the victim. That is where we differ. AdVIC also believes the provisions of section 46B(1) should also apply, in appropriate circumstances, to any person who aids, abets, counsels or procures the commission of a homicide, which is also in contrast to section 46B(3).

In 2015 AdVIC wholeheartedly supported the provisions of a Private Members' Bill drafted by former Senator Feargal Quinn, the Succession (Amendment) Bill 2015, which was debated in the Seanad. It was held back because a Law Reform Commission report was being prepared. That Bill dealt with the issue of joint tenancy by terminating the joint tenancy and vesting the entire interest in the property in the estate of the victim. That is in contrast to the current Bill, in which the joint tenancy is severed and the property divided, meaning that the killer may avail of a share of the property, to deal with as he or she pleases. We are told that this is to maintain the constitutionality of the legislation, as former Senator Feargal Quinn’s Bill was considered by some to be at risk of a constitutional challenge. We strongly disagree with this contention because the Succession Act, rightly, goes so far as to erase the "legal right share" of a spouse or civil partner who is guilty of homicide. This is on a par with the provisions contained in the former Senator Feargal Quinn's Bill.

I cut some of the presentation because I would have exceeded the time allotted. I will address the severing of a joint tenancy which is prohibited by section 30 of the Land and Conveyancing Law Reform Act. It is our contention that this Bill gives a clear benefit to a killer because it allows automatic severance and gives half, with court discretion, to him or her which he or she might never have obtained in the normal course of life. What is being forgotten is we do not know what might have happened in the future. Why should we presume that the person who was murdered would have died first and not the killer? The Bill gives the killer the benefit of the doubt and that is where we differ. There are some jurisdictions that have gone as far as stating it is against public policy to give a benefit to a killer, despite the property rights being argued for all of the time, because social justice should overcome property rights in circumstances such as this.

The argument is made that property rights exist but there are plenty of circumstances where existing property rights are challenged. Under the provisions of the Proceeds of Crime Act, for example, property can be seized. It was argued in almost every jurisdiction in the world that such a law would not work but it has worked. Sometimes we have to work against the norm and take a step further. In the case outlined, the family had to buy out the killer's share of a property that he may have never have owned in full or in part in the normal course of life but for his acceleration of the severance. That is the core of our contention.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank Ms Doyle for that and will return to Deputy O'Callaghan now.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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To simplify Ms Doyle's submission, she thinks that should a homicide event occur, the interest of the killer in the joint tenancy should automatically vest in the family of the deceased. Is that a fair assessment of it?

Ms Helen Doyle:

The estate of the deceased could be left to anybody but if the person dies intestate, it should go to the family.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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She is arguing that even the killer's own interest in the joint tenancy or property and not just the deceased's interest, would vest in the family of the deceased.

Ms Helen Doyle:

One has to remember that the beneficiaries of the estate are victims as well. They are being deprived of future property because-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I understand. I just wanted to clarify that before asking Professor Mee a question. I assume that he would argue that Ms Doyle's proposition is unconstitutional.

Professor John Mee:

I understand the nature of the submission and it makes more sense than what is contained in the Bill. I know that Deputy O'Callaghan did not draft this element but the idea of discretion seems unjustifiable. It is like saying it is unconstitutional but that we will do it sometimes on some arbitrary basis.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Does Professor Mee think that Ms Doyle's idea is unconstitutional?

Professor John Mee:

Yes, but it is at least coherent. If one looks at places that have joint tenancies, like the 50 jurisdictions in America and the 30 to 40 other places, only two or three do what is being suggested. In those jurisdictions in America, people have said that it is unconstitutional. Nobody else does it but at least it is on the list of things one might want to do. What is in the Bill is not on the list of things one might like to do.

The land situation is different, as I was trying to explain. There is a complexity there with regard to land. The worst that could have been done to the killer was that it would have lasted for the rest of his or her life. We do not know when the victim would have died but we know that the killer could never have lost out until he or she died. If the killer is in jail and alive for another 30 or 40 years and one takes the property from him or her, one is clearly putting the killer in a worse situation in terms of pre-existing property rights than he or she would have been in. People are casting around for ways to punish the killer and the best they have come up with is to give him or her the property for the duration of his or her life and to take it from the killer then. If one takes the property from the killer now, one is clearly punishing him or her.

An important question was asked about the application. In any situation, there will have to be an application, even under section 120. The law-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I am sorry to interrupt but some families say that they do not want to have to go to court. They would prefer for these matters to be dealt with automatically so that an event would trigger the law to operate in a certain way.

Professor John Mee:

Yes, and there are two ways of doing that. One is to have a severance, with half given to each party, except where land is involved. The alternative would be for the killer to lose all rights. There would still have to be some kind of court action because one would have to prove that the person was convicted. There would be-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Yes. One cannot do this without going to court.

Professor John Mee:

The trouble arises in going to court with discretion. Let us say this terrible thing has happened and the family has to go to court to see by how much they can get the killer's share reduced. It could be 10% or 20%. If it is only 10%, they will feel bad and ask why the reduction was so small given the hideous nature of the crime. The discretion in that context is not a good thing.

The difficulty here is with the Constitution. Joint tenancy is an unusual thing in that rights are mixed up with each other. What one wants to do, and what I would completely support, is to stop any benefit being achieved. There is, however, the complexity of deciding what is a benefit in this situation.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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In terms of the current situation, what happens now is slightly ambiguous from the family's point of view. Although we say that a constructive trust will be held for the benefit of the deceased's estate, people are not aware of that.

Professor John Mee:

It should be in legislation. We need legislation that says that to clarify the situation for families and reduce the chances of the killer bringing an action. A killer can always initiate some vexatious action, but if it is written in black and white, the chances of that are reduced. To be fair, it has already been established in the Cawley v. Lillis case. It is clearer if it is all laid out in terms of procedures and something which says that the killer is liable for costs. That is the advantage of legislation. It allows us, as far as the law permits, to set it all out. There would still have to be a certain element of flexibility but no discretion.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Why is Professor Mee so opposed to discretion?

Professor John Mee:

I am opposed to discretion because it is illogical. First, it puts the family through this uncertain, open-ended procedure under which, in theory, the killer could get more than them. Second, the factors that are listed out have no resemblance to the key point in question. Issues like the severity of the crime, the age of the killer, his or her needs and income, the age of the victim, his or her income as well as all sorts of factors that relate to divorce-type legislation, such as the contribution of each party to the particular asset, are only relevant to the idea referred to earlier in terms of it being like a family law case. In that scenario, one could make an application for any of the property of the killer on the basis that the deceased would have got that in the event of divorce. These factors are not relevant to the question of what constitutes a benefit. The key question is that of taking a benefit from the person, but we then look at factors like the person's age, the severity of the crime and what contributions the person made to the property before acquiring it. Does the Deputy see how I think all of that is irrelevant?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Yes.

Professor John Mee:

In terms of discretion, the Law Reform Commission has said that taking the property away automatically would be unconstitutional but that if it is done case by case basis, it would not be thus. What was overlooked, however, is the fact that the case-by-case basis has to relate to the principle, to the basis on which one is taking the property of the killer. If the discretion relates to pinning down the benefit obtained by the person and then taking that off him or her, that is okay. If one is just looking at random factors that have been taken from the divorce legislation, however, even though the parties may not be married or even in a civil partnership or co-habitation-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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How do we assess the benefit then?

Professor John Mee:

The legislation that we have, and which no other country in the world has, relates to consent to a joint tenancy severance, and one could take actuarial evidence on who is likely to live the longest. This would-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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That would be quite complicated.

Professor John Mee:

It would be very complicated, but the legislation which creates the need for this is idiosyncratic. No other country has it, which relates to my point that we should not do something that nobody else has tried because it was a bad idea. Certainly there is complexity involved. I do not have an easy answer and Ms Justice Laffoy-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Does Professor Mee think there should be legislation?

Professor John Mee:

It is unusual. Most countries do not bother giving the legislative time to this and there is an element of misunderstanding that has led us to this draft legislation, which is good. People thought that the problem was even more serious than is the case. That is why we are here, which is good. There should be legislation but it is complicated. I am doing my best to explain it but I am not creating the complication. The simple answer of just taking the property from the person is unconstitutional, so the suggestion is to take half.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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What about making it a penalty or part of a sentence for murder?

Professor John Mee:

This is where the arbitrariness comes in. If a person commits murder, the sentence is X, but if the person jointly owns anything with the victim, he or she loses that. If the person persuaded the victim to give him or her all sorts of other stuff, however, he or she gets to keep that. If we focus this in on-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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What about it? If we approach it in a different way, from the criminal court-----

Professor John Mee:

It would be an arbitrary sentence. It would be like saying that all killers born on a Tuesday should lose X. Celine Cawley put up money to put property into joint names. If she had put up money to give her husband a free gift of the property, that property would be untouched. That is what I mean when I say arbitrariness. This is what the Constitution and jurisprudence looks at. We cannot just say killers are bad people and we want to take something off them. That is fine but we must take it from everybody. We cannot just say that if a killer happens to have jointly owned property with the victim, we will take it off him or her, but if not, he or she can keep all of his or her other property.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Let us say we have a situation where a couple has no children, one of them is responsible for killing the other and they have a joint tenancy. Let us assume that he inherits the interest in the asset.

Professor John Mee:

His half?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Yes, his half. What happens when he dies?

Professor John Mee:

What happens when he dies is that section 117 would apply. If he left everything to someone who was not his child, the child could apply for relief.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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What if there are no children? That becomes his asset.

Professor John Mee:

In a sense it continues to be his asset, yes. It goes to whomever he leaves it. He could leave it to his family.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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He gets the benefit of his wrongful act. Is that the case?

Professor John Mee:

It depends on what the Deputy means. The question is what we think he had before.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I would have thought he had an interest in a joint tenancy.

Professor John Mee:

Exactly. He had an interest in a joint tenancy.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Now he has a full interest in that joint tenancy, or rather there is no longer a joint tenancy and his interest is full.

Professor John Mee:

Let us suppose the house is worth €1 million. He had a joint tenancy with his wife. What was his interest worth? It was €500,000. He murders her – it is a terrible crime – and goes to jail. He now has a tenancy in common with a half-share worth €500,000. It is worth the same as it was before.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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What about on the other side?

Professor John Mee:

The other side is for the daughter or whoever.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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What if there are no children?

Professor John Mee:

Then it does not go to him. It goes to the family of the victim, not to his family.

Ms Helen Doyle:

It goes to the estate of the victim.

Professor John Mee:

It is for the estate of the victim. It goes to whomever the victim left it. He does not benefit in that way. It goes on to whomever that person determines. It cannot go to him.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Sorry, I know Mr. Byrne was trying to get in.

Mr. Noel Byrne:

I wish to clarify the situation on the question from Deputy O'Callaghan on our case. There were no children involved in our case. When the estate went through probate, our family were entitled to half of the estate. The other half was assigned over to Ms Doyle. I imagine that answers Deputy O'Callaghan's question directly. That was the position following probate. To stop her from coming back to the house or from looking for possession of her portion of the house, we were advised that we had to buy her out. That is was we are objecting to, because she received benefit from her crime.

Ms Helen Doyle:

Reference has been made to how it is somewhat arbitrary if someone has given a spouse an entire property and we do not go near that. This is about property that is tied in together in a scenario where we do not know who would have died first. Presuming that the person who was murdered dies first, then giving the benefit to the killer is at the core of this. That goes against public policy and all our constitutional principles. We are giving a benefit to a killer to the disadvantage of the family of the person who was killed or we are giving the benefit to the killer's beneficiaries, who could be anyone. All of the estate that would have gone to the victim if she had lived out her life normally would have gone to her beneficiaries. What about their property rights? I know they are not vested at that stage but those people are still being deprived. That causes great emotional strain, as in this case where the family of the victim were forced to buy out the person who murdered the family member. We have to go a little further and consider these situations. It is not simply a case of splitting it because that is the fairest thing on grounds of property rights. Currently, we are giving a benefit to a killer.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Ms Doyle for that intervention. She has articulated the matter far better than I have. Professor Mee made several points. I will take them on board but I do not think it means the legislation is condemned. Professor Mee made the point that it does not apply to any person who aids, abets, counsels or procures the commission of an offence. I am conscious of the discussion within the Law Reform Commission on the matter. Of course, we could introduce an amendment to delete the provision.

Professor Mee also referred to the non-application of section 124. That is a valid point. If this legislation proceeds, that should not be amended. It should be retained. Professor Mee made an interesting point about attempted murder. We could resolve that issue by removing attempted murder and replacing it with conspiracy to murder, which should be included. I have taken up too much time. I am conscious that others may wish to speak.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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In the course of the further exchanges, if there is something the Deputy wants to come back in on, he is welcome to do so. We would be happy to hear from Senator O'Donnell as well and he is very welcome to the committee today. I will go through the members first.

Clare Daly (Dublin Fingal, Independent)
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I thank everyone for coming in. It is an incredibly traumatic discussion for many people. It is an interesting question but a highly complicated area. We may be in danger of overcomplicating it. While these issues are incredibly emotional and personal to people and I am very sorry for the loss of the witnesses and the tragic circumstances, we cannot respond emotionally to these things. We have a duty as legislators to put in place the best legislation. It cannot be based on individual cases.

I have listened to all the contributions and my head is melting with much of the detail. In some ways we may have overcomplicated the matter. There seems to be a crossover. Everyone agrees that no one should benefit from the proceeds of a crime. Any right-thinking person would think that. There is a major difference, however, between benefiting from a crime and the criminal being stripped of everything she owns. If a person has a legal right to property, whether through a joint arrangement or whatever, that property still belongs to that person. It is one thing if we are saying that as a penalty for the crime committed, the judge should look at everything and decide that because a person committed a crime, he should be stripped of everything he owns and should have no ownership rights, as per the old system, but I do not think we are suggesting that. If we are saying there should be punishment for the crime provided that crime is ascertained, then I think that is in place. The complication is that we are talking about the most horrific circumstances, in some ways, whereby people had a relationship or connection and joint ownership, but one person severed that link through a violent death. We know when relationships sever it can be messy and highly cumbersome anyway. If a person was killed in an accident, the survivors could be left with a mess if they did not deal with their separation properly and so on. I am not clarifying the matter but the background is messy as far as I am concerned.

I was struck by Professor Mee's point that we do not have a particularly weird law here. Already, cases have arisen where the 50% rule has been applied. I am unsure where the benefit of Deputy O’Callaghan's Bill arises. I think it overcomplicates the situation. The point about attempted murder is relevant in that it is clear no succession arises. We are only dealing with succession issues. In cases of manslaughter, murder and other heinous crimes, the Bill would give a great deal of latitude to the courts. Do we need it at all? That is my question.

Reference was made to how this was motivated by the Cawley case. The Cawley case was a manslaughter case. The jury was asked at the time and the judge directed that it would have to give manslaughter if intent was not proven. Intent was not proven in that case. Another case is in the media at the moment. There was a high-profile case of a woman, Sally Challen, in Britain. She was convicted of the murder of her husband following an appalling life of abuse involving battered wife syndrome and so on. Let us suppose she were convicted of manslaughter. Would it be right in those circumstances that she should be stripped of the family home? In that situation her children are 100% behind her. What if there were other circumstances where one child sided with the mother and another sided with the father? How would that pan out when the mother got out of prison? Such a case could be a manslaughter case. Under this legislation, is such a person, whom I would consider to be a victim, to be robbed of her home and everything? That is something that I would like people to comment on.

I have some technical questions following my next point. If the courts already tend to implement the 50:50 arrangement, what is the point of the legislation? Is the purpose of this legislation to go further and strip the offender of more? What is this about? I do not really see benefit in this legislation at all. I clearly understand why the victims of crime yearn for the benefit but I do not see them getting any benefit from this legislation. I am unsure whether we need it given that there is already provision for prevention of someone benefiting from the proceeds of a crime. I do not really get it.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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To whom would the Deputy like to direct her questions?

Clare Daly (Dublin Fingal, Independent)
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To any of the speakers. Every case is different and people can be convicted of manslaughter. Are we saying that the battered wife loses her house and everything else?

Ms Helen Doyle:

I agree with that point. The Law Reform Commission set out a lot of the areas that were not addressed. Right now, we are dealing with the Succession Act only, and it deals with this under wills and intestacy, but the situation becomes more complicated when it is outside of that. Where it is left to the courts to decide and they have no guidelines, this is where we should have legislation. We believe the legislation should provide for the presumption that the entire property goes into the victim's estate, although it is always subject to discretion in the context of the particular circumstances, such as somebody being domestically abused at home for years. We do not think everything should be taken from them in those circumstances. However, we should have a default position and work from there and provide discretion. Right now, there is nothing beyond the Succession Act to deal with anything outside wills and intestacy. This includes an insurance policy or a pension policy to which someone would automatically be entitled, although it is being taken from the person they killed, because that is the person who had been nominated by the victim. There is a lot to be dealt with in the legislation.

Professor John Mee:

A good thing the Bill would do in the case of manslaughter is to create a discretion to give relief against this rule. As things stand, the person in England, in the example that was given, would under Irish law just lose out. However, as in England in 1982, Ireland under this Bill would be introducing a discretion that would only apply in regard to manslaughter. Let us say there was a tragic case in England where the man was mentally ill, the wife stood by him and then she was frightened and got a shotgun, which went off. Although it was technically manslaughter, she just got the Probation Act and they gave her relief against forfeiture and against losing out in that case. This Bill would achieve that. A problem with the drafting of the Bill is that, in regard to the joint tenancy, that discretion would also apply for no good reason in regard to murder. If one thinks it should apply only to manslaughter, as the English do, it should not apply to murder. That is a benefit of the Bill.

I want to restate why I think it would be a good idea to have legislation. The Oireachtas usually would not get around to something like this but, having got around to it, it would give more clarity to the families and could clear up some technical points like the three-party situation and the complexity in regard to land. It could also enact a protection for people who commit manslaughter but are not really that culpable where we would want to suspend it. However, although there would be some benefits, it is not the crisis that has been portrayed. It would be difficult for the families but it might be difficult also if it were enacted and did not have anything to strip the offender of more than their half. In New Zealand, for example, a Bill was proposed to do what is being suggested here and to strip it down to nothing. It went through the New Zealand Parliament, which decided it could not do that, and it put in what we currently have, which is the equal share. It would achieve something but it would not be clarifying some huge anomaly. It would just be making things a bit easier for the family, giving a discretion to relieve against manslaughter, and dealing with some other technical issues that are very complicated to talk about now, for example, the one about land. It would achieve something but not as much as has been portrayed perhaps in the media.

Ms Helen Doyle:

Ms Justice Laffoy said she would prefer to rely on legislation in this regard. If she is saying that and that it was a struggle for her to deal with cause, we should be listening.

Professor John Mee:

I would have the same view. The judge felt it would be ideal to have legislation, so that is where she is coming from.

Clare Daly (Dublin Fingal, Independent)
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That is a good summary. It would be helpful but I do not think it is a panacea for many of the problems that are there. I want to refer to some of the technical points. When would the joint tenancy be severed? Is it severed as soon as somebody is charged with the offence or when they are convicted? What is the threshold for when that happens?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It is from the date the offence was committed.

Clare Daly (Dublin Fingal, Independent)
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Is there not a problem with assuming guilt and effectively stripping an asset from somebody who might be found innocent later on? Does that put the property into a-----

Professor John Mee:

What happens is that it happens from the date of the crime but we have to decide whether there was a crime. We do not know whether it happened, but later on, when we decide on the balance of probabilities that this crime happened, we know retrospectively that, at that instant, the severance took place. It states in the Bill that it would only take place in equity, so there would be a kind of trust. A part of my difficulty is that an awful lot of the wording in the Bill is unsatisfactory and unclear, and I wrote 30 pages talking about these very small things, any of which could drag the victim into court, so it has to be got right. The Bill states that the legal and beneficial interest shall stand severed from the moment of the crime and, then, in the next section, it states that there will be a constructive trust, but those two parts do not mean the same thing, so the wording is off. Something happens at the moment of the crime and only later do we know that. To be honest, I do not think this is the way it would be in other jurisdictions but that is how the Bill is at present. At the time of the crime there is a constructive trust but later on we have to prove that the crime happened.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Would Deputy O'Callaghan like to come back on the point Deputy Daly has raised in regard to the application from the date of the crime?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It is in section 46C(1)(a). I do not think that is problematic. I do not think it is an issue that there is a severance and it is identified as being severed from the date of the offence. It does not really alter it. Obviously, there is a process for a court to determine whether it should stand severed, but if the court, based on the evidence, reaches a conclusion that the provision applies, it just applies it retrospectively from the date the offence was committed.

Clare Daly (Dublin Fingal, Independent)
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What happens if nobody makes an application to the court to determine whether the tenancy should be severed?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It is for the benefit of people, primarily the families, to bring an application. There may be situations where people do not bring an application.

Clare Daly (Dublin Fingal, Independent)
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What happens then?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It remains as was identified by Professor Mee, that the joint tenant ultimately assumes their own interest and the interest of the other joint tenant.

Professor John Mee:

To some extent, it is a bit like saying what happens if there was a crime and nobody knew about it. What if somebody got away with murder? If someone got away with murder, in principle there should have been the severance and they should not have been allowed from that moment, but we never found out and they got away with it. In other words, the law is constrained by the facts of reality and whether we know what happened. If we know what happened, however, the family can go forward and say there is going to be a severance from that date. In theory, if it happened but nobody knows that it happened, that is life. It is like saying someone got away with murder.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It is that there would be a roadmap for people to bring an application.

Clare Daly (Dublin Fingal, Independent)
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If nobody brings an application, nothing happens.

Professor John Mee:

Nothing happens. It is similar to what happens if there is a crime and we did not know it happened.

Clare Daly (Dublin Fingal, Independent)
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There is no impact.

Professor John Mee:

In practical terms, there is no impact because unless it comes to the knowledge of the legal system, it will not have any effect. I do not think that is avoidable. It is an interesting question.

Clare Daly (Dublin Fingal, Independent)
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It is important. We might think it is going to be held up in trust for years, with the children not being able to access it. It is an interesting point.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I thank the witnesses for attending. In particular, I thank Mr. Byrne and I am sure it was difficult to go through those facts again. I also thank Professor Mee and Ms Doyle for their testimony. It is very difficult because, in the abstract, the person in the street would see it as a benefit to the killer to take full possession of the property or, in practice, his or her share of the property.

From what Professor Mee has said, it is my sense that under the joint tenancies law as it operates, the killer's 50% share after the point of severance is effectively constitutionally inviolable.

Professor John Mee:

I regret the fact that there is the complication but I would say yes. In relation to land, however, it is a bit different. I can see what the Bill would look like. If I had to draft it I would get rid of that discretion: I would make provision for an automatic half share and say that in cases of land where the section 30 prohibition comes in the court can determine what benefit it thinks the killer got from getting around that section 30 prohibition on severance, and that the court can make an order accordingly. It is messy but what can one do? Section 30 is an unpredictable thing but it is in there. Legislators could get rid of it and I would be all in favour of that.

If the Bill does not get rid of section 30 then one could deal with it in the way I have suggested. AdVIC would be getting some of what it wants in this regard around cases involving a house - one of the most important elements in such cases - and something that the court decided was a benefit would be taken off the killer, or sometimes he or she would get less than one half. This would focus on the issue of prevention of benefit, which is what this is all about. It is just hard to pin down what the benefit is but we do not want to give the killer the benefit just because it is hard to pin down.

There are other expert views on this, but my view is that this would not be unconstitutional if it was just to focus on the prevention of benefits from homicide, which is in the Title of the Bill. Nobody thinks a killer should get a benefit from the homicide but nobody thinks that they should forfeit their constitutional right. This would be easy from a theoretical perspective if there was no section 30 and the share would just be 50:50. Section 30, however, creates complications.

Ms Justice Laffoy's opinion on the facts of the Cawley vLillis case was that there was not any benefit to the killer. On the facts of that case the killer would have got the half share. In another case where the killer was much older or where there had been an attempt to sever the joint tenancy before the death it could be difficult to work in practice but I am not sure what else one can do in this regard because section 30 is there. There is a lesson in that: section 30 is in statute but nobody else in all of the other jurisdictions has it. Sometimes we just get ideas and enact legislation that is totally different from everywhere else. It then complicates our law unnecessarily.

Ms Helen Doyle:

It has its benefits though.

Professor John Mee:

That is a different debate.

Ms Helen Doyle:

Yes, it is a different debate.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I will come back to Deputy Ó Laoghaire in just one moment.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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To clarify, is Professor Mee referring to section 30 in the Land and Conveyancing Law Reform Act 2009?

Professor John Mee:

The Land and Conveyancing Law Reform Act. It was always understood before that a joint tenant could sever at any time. If a person did not think the survivorship rule was going to favour them a person could switch to a tenancy in common where there would be no survivorship. This Act said that one had to get the prior written consent of the other joint tenant.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Mr. Byrne would like to come in.

Mr. Noel Byrne:

The assumption that I am hearing across the floor is that the person who was killed was going to die first anyway. I do not believe this is an assumption that can be taken lightly. The assumption should be that through the course of a normal life the person may have lived longer and therefore the half share benefit or the full share benefit to the house would not apply. This is the crux of the issue: the assumption should not be that the person who has died would not have outlived the person who committed the offence. I use those words in a non-confrontational sense. I believe this is the way we should view it and that the person who was killed may have lived longer than the person who is currently going to inherit.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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If I may I will take up that point because it is important. If a couple had continued to survive and there was no violent murder, and if one person dies, the other person-----

Mr. Noel Byrne:

The other person would normally succeed to any benefits that are coming, but I am hearing an assumption across the table as to the rights of an individual who has killed his or her spouse or partner to inherit. That assumption has only happened because the person has died.

Clare Daly (Dublin Fingal, Independent)
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I would put it to Mr. Byrne that it is not. It has happened because the people were connected legally and there is a joint ownership. It was their relationship that gave them the ownership because they jointly owned the property. In the tragic case of Mr. Byrne's brother, for example, if the separation had been completed we would not be here talking about this at all because the legal interest that his ex-wife had at that time would have been gone. It was, however, her property up until the point they completed a separation. It was their connection that gives the ownership right, not the death. This is what we are trying to balance.

Mr. Noel Byrne:

I understand totally what the Deputy has said, but when one looks at individual rights over the period of a lifetime one can take the assumption that somebody will die first. There is an assumption being made that he would have died first and that she would have been entitled to the estate anyway. The normal course of events did not determine that. If we leave aside why my brother was murdered and look at the other 225 cases that have happened since 1996 one cannot say that the partner who was killed or died would not have outlived the other partner. That assumption cannot be held.

Clare Daly (Dublin Fingal, Independent)
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I do not think anybody is assuming that. It is more a case of while a couple is legally connected then the share of the estate is each individual's bit, until they separate. Had the separation or divorce been completed we would not be having this conversation. I believe that Professor Mee wanted to come in on that also.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I need to get back to Deputy Ó Laoghaire whose question it was. Does Professor Mee want to add anything?

Professor John Mee:

Would Deputy Ó Laoghaire mind if I add to this because it is quite central?

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I will just finish on one point.

Professor John Mee:

Please go ahead.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Am I right in understanding that in circumstances where a person dies in the ordinary course of things - without a murder - the other person would not necessarily benefit, due to either intestacy or a will, from the entire property or take full possession of the house in survivorship?

Professor John Mee:

Survivorship is outside the will. Imagine that there was never any murder and 20 years later one of the couple dies. The dead person's share is automatically extinguished and the other person's share becomes everything. That does not happen by virtue of a will: it happens automatically because of the nature of the institution of the joint tenancy. It is a key point. If two people are joint tenants and we were to ask "who would die first?" the answer is that we cannot know. In Cawley v Lillis Ms Justice Laffoy commented that one cannot tell which joint tenant would die first and that it was one of the "imponderables" of the case. The other key point is that when the estate is not land anyone can sever at any time without permission from the other person. They can go to their solicitor and make a deed that has nothing to do with the other person. Outside of land it is hard to see how a killer would benefit because instead of murdering the other person he or she could just achieve it automatically, in an office and without permission from the other person. This is partly what has motivated other countries. A person could get there any time that he or she wanted. The land situation is unusual because with section 30 one cannot sever the joint tenancy oneself. Ms Justice Laffoy also felt that this problem is special with regard to land. The equivalence is not so obvious anymore. Instead of a man murdering his wife in a terrible way, for example, he could just have severed the joint tenancy and had the same result with regard to benefit and it did not really seem like profit. With land, however, one could not do that. On the other hand if the person refused to sign, one could have asked the court and the court might have allowed the severance. It is very hard to pin it down.

Section 30 is a very strange provision. Let us consider two adults, say they are both 30 years old, and one wants to sever the joint tenancy but the other says "No because I think you are going to die first.". The first person might ask "Why would you think that? Please agree to sign.". The other person still will not and the case goes to court with the first person saying the other is unreasonable. In my submission I suggested that the best one could do was to look at it to see if the court would have allowed the severance if the person had asked for it instead of committing a murder. If the court would not have allowed it then we would try to think what benefit has the person got from achieving the severance. There would be an element of actuarial calculations while the court tried to work out what benefit had been achieved and tried to undo that. This is the best I can think of.

The problem is caused by section 30 being an unusual provision.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Let us distinguish between the two sets of circumstances. In circumstances where there is not a murder, the other person acquires the deceased's interests.

Professor John Mee:

It happens automatically, outside of testation.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Aside from any proposed legislative changes, that is currently not the case and there is deemed to be a severance.

Professor John Mee:

If there is no murder-----

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I am speaking about where there is a murder.

Professor John Mee:

If there is a murder there is deemed to a severance and the interests are split 50:50. In other words, the benefit would have been towards whoever died first but it is then derailed.

Ms Helen Doyle:

If they go to court.

Professor John Mee:

It is derailed but the matter has to go to court to establish that it is derailed. The matter has to go to court no matter what. Even if there was a rule that the killer lost out automatically the court would still have to rule that he or she killed the other person.

Ms Helen Doyle:

What about the Succession Act and the legal rights share provision? It is in such circumstance wills and intestacy comes in. The Succession Act provides that a person found guilty of homicide against the person who has left him or her something in a will, even if that person is the deceased person's spouse of civil partner, is no longer entitled to that legal right share, end of story and nobody has a problem with that. It is right. I know it is a future vesting of property but it is still a very clear right that is eradicated, and rightly so, if that person kills the person from whom he or she was to benefit. I do not see why we are tying ourselves up in knots about the survivorship element.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Does Ms Doyle believe the legislation should only be amended to include situations such as joint tenancies?

Ms Helen Doyle:

It is a bit more complicated, but we can deal with it. I do not think we should have any qualms about taking the presumption that the killer would have died first in the normal course of events. Why should the presumption be in that person's favour?

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I invite Deputy Ó Laoghaire to continue.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I think Professor Mee might have had another point to add in response to my last question but he can address it along with his response to my next question. Am I correct that Professor Mee's position is that there is a need for legislation but only to clarify a jurisprudence rule? Ms Justice Laffoy made the point that the precedent is that there is a constructive trust and that property is managed in that way but that this needs to be clarified through statute. Leaving the land and conveyancing issues aside, are there additional points that need to be addressed?

Professor Mee seemed to speak favourably about the legislation in New Zealand, but perhaps I misunderstood him. If not, are there elements of that legislation that we need to take into account?

Professor John Mee:

We are taking on board most of it. I believe legislation is necessary to clarify the matter and, unfortunately, because of the section 30 complexity. It also needs to provide for the discretion referred to by Deputy Clare Daly for the person who commits manslaughter and is not that blameworthy. They would be benefits to the legislation, but life would be a lot easier for all of us if section 30 did not exist. I could make a simple argument, that the split has to be 50:50 but we would need an amendment to deal with section 30. The Bill is useful because it would reduce the uncertainty for families, reduces legal costs and it provide discretion in regard to manslaughter wherein somebody is not very blameworthy. It would also allow for the taking of a decision on the three-party joint tenancy cases, such as picking one such that there would never have to be litigation. It would achieve something, but it will not be easy to draft. It needs work.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Moving away from the joint tenancy, if I understood Mr. Byrne's presentation correctly, the death benefit and pension was paid out to Ms Doyle. Is that the case?

Mr. Noel Byrne:

No. The death benefit was paid by the trustees to the family. However, in regard to the pension, it was not until 2016 that we received an understanding from the trustees of the pension that they would not pay out. The pension plan left the discretion of payments from the plan to the trustees. We focused on that discretion and we received an assurance in 2016 that that payment would not be paid.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I am glad to hear that.

Mr. Noel Byrne:

Hopefully, if she is released, she will not go to court and contest that decision. We, at least, have been given some sort of an insurance.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I am pleased to hear it. Are Professor Mee and Ms Doyle confident with the Bill, leaving aside the elements of disagreement and dispute which relate primarily to the land and joint tenancy issues? Are they relatively satisfied that the legislation as drafted ensures that the murderer will not benefit from a pension or death plan?

Professor John Mee:

It depends on the drafting. The current draft provides that a person cannot benefit from any property that the victim had an interest in but a life insurance policy does not operate in that way. I could take out a life insurance policy on a person and I could then murder that person. The victim does not have any interest in the policy so the wording would have to be different to cover that. When there is no law, there is flexibility in the sense that the judge can take the view that he or she has a general principle in mind which he or she had not thought of before but the situation before him or her falls into it. The New Zealand legislation includes the provision that in any other instance where a person is profiting from his or her homicide, the court shall make the appropriate order. This provision could be included in this Bill to sweep up anything that is missed but that could be dangerous because a judge might do something that was unwarranted and then there would be a lot of litigation to get it reversed. The Bill, if properly drafted, could work but my concern is that it would be rushed through without being properly drafted. We do not want to end up thinking that we have solved the problem only to find that once implemented, misery was caused.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Would Ms Doyle like to comment?

Ms Helen Doyle:

We are delighted with the Bill because we believe it is badly needed. We think there is a leaning towards the splitting of the property, but we think it should all vest in the estate of the victim. We also believe the Bill needs to address those who have aided and abetted a murder. Apart from that, we are happy that the issue is being addressed.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Am I correct that the witnesses are satisfied that in so far as the legislation pertains to pensions there is no legislative weakness and that the issue generally is around how well the pension plan is drafted?

Professor John Mee:

The Bill as drafted provides that a murderer cannot benefit from a pension but it includes the phrase "in which the victim had an interest". If that phrase is deleted, the provision provides that a murderer cannot benefit form a pension. I am not sure if that is going too far but it does specifically address the question of pensions. The New Zealand legislation does that. I think that is doable in legislation.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Professor Mee made the point that joint tenancy is a specific and particular form of property ownership, which I understand. In respect of all other properties it is difficult to establish how they might be split or what claim the estate of the deceased or the murderer might have on them? In the case of the main property held in joint tenancy, potentially the deceased would have come to benefit from the entirety of the property, which is relatively clear. Is it in any sense arguable that it is not arbitrary because we have an understanding of what might otherwise have happened with that property?

Professor John Mee:

Part of the reason I think it is arbitrary is that the list of factors to govern the discretion are wide ranging and not relevant to the question of benefit. I mentioned earlier that, if I was a member of Advocates for Victims of Homicide, AdVIC, I would ask whether a killer is benefitting from the crime. Consider a situation whereby a killer kills somebody from whom they were liable to become divorced and thereby stood to lose many of their assets. When they murder the person, that divorce does not happen. Those aspects of the Bill which say the amount that each contributed to the acquisition of the property and what they contributed to their family intend to address such a situation. It seems to be a gesture towards an idea.

There was a perception in the Cawley case that all this money had been brought into the family and given to Eamon Lillis and now he is getting away with it. In the normal situation, that is just part of the history of the matter. He inherited ownership and those things cannot be taken from him but he is also escaping getting divorced. This will take a lot of thought and cannot just be written into this Bill.

In the case of a murder victim, or other unusual cases where it might help the children, would it be appropriate for the estate to be able to make a claim under divorce, civil partnership or cohabitation legislation? I do not see anything in this Bill that would help the situation in which the Hawe family find themselves. It is a different situation to one in which a person empties another's bank account and, after a divorce, that money is returned.

This is specifically in the New Zealand legislation. The situation is fixed in New Zealand so that each partner more or less gets half the joint assets of the couple. In Ireland, the money that one gets depends on how much one needs to live - though that does not apply where one is dead and does not need money to live. It is not easy to do but would be possible if it was thought about carefully.

To get the Bill through, it would be possible to get rid of the discretion and make half the standard settlement. Something would have to be inserted to deal with section 30, which would be complicated. If I was the Minister, I would tell the Hawe family that we have to look into it and see what we can do to help.

One should not legislate for whatever was the latest terrible thing that happened, as Deputy Clare Daly said. Such legislation might address the concerns of one set of victims but the next set will have a different set of concerns and these Bills do not get amended. I am not sure that is a good idea because I do not know how it would be controlled but it should be looked into and thought about. It certainly would be something that other countries have not done and, as to whether it would work, I do not know. It is an area of inquiry the Legislature could go down.

I suggest this Bill should be like the one in New Zealand. It should be a stand-alone Bill that is quite detailed, deals with these issues and says that one cannot benefit from pensions in these cases. It provides for 50:50 on the distribution of assets and includes discretion in cases of manslaughter. There is a shape that a Bill should take which this does not have yet. That is what I would do.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I want to understand better the point that was made by Professor Mee and Deputy O'Callaghan. They were discussing the fact that aiding and abetting is not included. The LRC and Deputy O'Callaghan seemed to understand that somebody taking part in a conspiracy to murder could be charged with murder but Professor Mee seemed to have a contrary view. What is the distinction between aiding and abetting and conspiracy? Are they one and the same?

Professor John Mee:

In some ways, Deputy O'Callaghan is assuming that someone accused of aiding and abetting a murder did not make as bad a mistake as they did. I find what the LRC said very hard to justify. It was looking at the definition of an "accomplice", which the 1997 legislation says is a principal offender, meaning that an accomplice is as bad as a principal offender. The commission is saying that it is now dealing with civil law which does not have to agree with the criminal law. It is second guessing the criminal law saying that an accomplice might not be a very bad person and there might be a range of culpability. The LRC seems to be saying that someone might have hired a hitman, which is bad, but the person themselves only drove the car and were young so it is not as bad and, in such a situation, the inheritance is not going to taken from that person. The proper response is to say that it is murder if the criminal law says it is murder. It is the worst crime on our Statute Book. One is guilty of murder and that is it. The civil law cannot second guess it and say that it thinks that someone who is a murderer in the eyes of the criminal law is not too bad.

Deputy O'Callaghan was saying that accomplices are tried as principal offenders, which they are, and the LRC is saying such cases will be separated. These people who are found guilty as principal offenders because they aided and abetted will be totally excluded from the legislation unlike those who carried out the crime themselves. A gangland leader who hired others to kill someone could inherit, or in cases where someone hired a hitman, like the Nevin case, that person could inherit. It is a surprising aspect of the Bill but it is easily dealt with because it can just be deleted.

It was suggested, in the debates, that maybe there could be a discretion but the discretion should only apply if it is being applied to all people who are guilty of murder. There is no particular reason to single out some murderers for special treatment. Discretion should apply to everybody convicted or murder or only to people convicted of manslaughter. Does that answer the question?

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Yes.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I will now take Deputy Mick Wallace and put Senator Marie-Louise O'Donnell on notice that we will come to her directly afterwards.

Marie Louise O'Donnell (Independent)
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I am fine.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Okay.

Mick Wallace (Wexford, Independent)
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I thank the witnesses for their contributions. This is a complex matter. As legislators, we have to be careful because, while it is our duty to legislate, it is also our duty to do less harm than good. My gut feeling is that stand-alone legislation will give more clarity to families and better guidelines for judges so the only question is if it is merited that we legislate. That is about it.

Professor John Mee:

It is merited if it is done carefully and that will require quite a bit of work. This Bill is unusual because the LRC does not usually draft a Bill in final form. My experience is that Bills often change quite a bit from the time they are drafted to the time they go through the parliamentary office and so on. That is part of the development process and this Bill needs quite a bit of development. The Legislature has to get the Bill right because one slip can have significant consequences, like section 120(1) of the 1965 Succession Act, which had the Nevins in court for 23 years after the event. One has to get it right or it is painful.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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There is no question about that. We need to get it right. Does Deputy Wallace want to add anything?

Mick Wallace (Wexford, Independent)
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No, that is fine. I thank Professor Mee very much.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Deputy O'Callaghan may wish to make a closing comment at the end.

Marie Louise O'Donnell (Independent)
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I want to make some general comments. I have a lack of knowledge of the law until it applies at my front door. I know Mr. Byrne possibly had a lack of knowledge of the law until it came to his front door, as was the case with Ms Deane. I am a patron of AdVIC which is one of the correct things I have done since I came to the Seanad because I have learned what happens to people, from parole to minimal custodial sentencing, and these are things that Deputy O'Callaghan is also trying to rectify.

It is difficult to speak about first degree convicted murderers having the same rights as people they have murdered. I find that difficult to understand from an emotional point of view but I bow to the law. I am hearing that property rights take precedence over social justice and that is the bottom line here. Are we saying that property rights take precedence over wilful, first degree murder? That is what we are arguing here, on a pin. As Mr. Byrne mentioned, we have kept arguing the point since 2009, waiting and delaying on decisions so I congratulate Deputy O'Callaghan for bringing this forward. I agree totally with Professor Mee that there should be a stand-alone Bill because it will be cleaner and clearer. The Legislature will be able to do exactly what it says, as opposed to having it in a civil liability amendment. Deputy O'Callaghan might like to talk about that.

What happens insurance policies, investments and other bank accounts? Are they covered in the Bill? Does it just apply to property? The arguments about who would have a lifeline first and who would have died first pale into insignificance when somebody purposely shortens the life of somebody else. It becomes a different argument.

However, either way I would like to see this legislation being progressed. I would like the parole element to be progressed as well. It is very important and we have delayed and lingered on this long enough. Those are general points about the Bill, the stand-alone nature of it and other aspects, including investments.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Deputy O'Callaghan can address those points in his closing remarks. Before I call the Deputy, would Professor Mee, Mr. Byrne or Ms Doyle like to respond to Senator O'Donnell's points?

Marie Louise O'Donnell (Independent)
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I would like to make one further comment. Victims are very fragile sometimes and killers have great energy, chaos has great energy, and the victims get silenced all the time. The energy, the push, the language and the law sometimes seem to be behind the perpetrators. I am talking about convicted first degree murderers. I am not talking about fatal assault or even manslaughter. Those are different areas. There seems to be an energy behind this, even with the coming back to court on the head of a pin of the law, and the victims are being delayed and have to wait. We argue the clippings of tin around the victims. The power and the energy seems to be in the chaos and not around the victim, but the victim and everything surrounding them should come first. Our inference is in the wrong place.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Is there anything the witnesses would like to add to or to say in response to the Senator's remarks?

Professor John Mee:

I agree, but the weapon of chaos is lack of clarity. That is why it is good to have legislation but also it must be right. While we have waited so long for it, if we get something that is not right, that is a perfect weapon for the person with the energy.

One point that has not come up that is worth airing is the issue of other offences such as assisted suicide or, less importantly, infanticide. On the matter of assisted suicide, in the Law Reform Commission's report it was said that most people thought it should be included and then it never mentioned it again and it was not included. An individual could mess with a person's head and get them to commit suicide and then that individual could inherit. That would be very bad. On the other hand, one could be assisting suicide in a much less blameworthy way if someone was at the end of their life and was in great pain. Possibly that issue should be in the Bill and covered by discretion so that there could be discretion to relieve against that in a less meritorious case. A person could profit if they manipulated somebody and got them to commit suicide. Certainly it is an issue that should be discussed. The Law Reform Commission seemed to say that most people were in favour of including that, and then it never talked about it again.

Marie Louise O'Donnell (Independent)
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What about investments?

Professor John Mee:

If investments are held separately, nothing applies, but it they are held jointly, it is like a joint tenancy and they would be covered by the severance. If an investment bond of €100,000 was in the joint names, the result would be that the two people would become entitled as tenants in common under the current law, and under this Bill they would start out as tenants in common, there would be discretion and the court could reduce the killer's share or reduce the victims' share as it is currently drafted, surprisingly enough.

Marie Louise O'Donnell (Independent)
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What about negative equity and insurance policies?

Professor John Mee:

Negative equity and insurance are two different things. Insurance polices are covered and we talked about them earlier. In a case where there was negative equity in the house, it might be unfavourable for the killer to get all of it.

Marie Louise O'Donnell (Independent)
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It is usually covered.

Ms Helen Doyle:

The mortgage gets paid off.

Professor John Mee:

Under the current law the mortgage gets paid off. If a person kills another and a lot of insurance money comes in that pays off the mortgage, the courts have held, and it has been discussed by the Law Reform Commission, that it is to be treated as money coming from the victim and one has to pay them back in the settling up of matters. The person does not profit from that.

Ms Helen Doyle:

It is included.

Marie Louise O'Donnell (Independent)
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All investments become part of the tenancy in common.

Professor John Mee:

If investments were held as joint tenants, they would, under the current law, be held in a tenancy in common and, under the terms of this Bill, the court would have discretion to reduce the killer's share or, in theory, increase the killer's share. That is what the Bill says.

Ms Helen Doyle:

In many cases an insurance policy would include a nomination to the spouse. The person would not access the policy because they did not have a vested interest in it. They were not named on it and they did not own it. Joint property is were the problem lies.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I call the proponent of the legislation to make his-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Concluding remarks, as the Chairman would say.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Yes.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Ms Helen Doyle, Mr. Noel Byrne, and Professor John Mee for coming in, for their detailed consideration of the legislation and for the written reports they have prepared in respect of it. I am not in any way proprietorial or sensitive about it. The most important thing is that if we are introducing legislation, we get it right. We will take on board everything that has been said here this morning. Certainly neither I nor any other member of the committee nor anybody else wants to introduce legislation that could have unintended consequences.

However, the principle behind the legislation stands. I am pleased to hear that Professor Mee thinks it is appropriate that we introduce the legislation. The benefit of legislation is that it prevents people from having to go to courts in the uncertainty about trying to establish trusts before courts of equity. The benefit of having statutes in place is that people can identity their rights and the processes and applications they have to bring forward. I am conscious of what Professor Mee said, however, that legislation can tie us up sometimes because something can be put into legislation that may have unintended consequences.

We will consider all the submissions, as we always do. I will not plough ahead with the legislation without hearing the views of the committee. We will produce a report. If we think it is more appropriate to amend it in significant ways, I have no difficulty in doing that. Alternatively, we can take on board many of the recommendations that have been made for the purpose of amending it. There is a need for legislation. We can have an interesting discussion about property rights, constructive trusts, joint tenancies and tenancies in common, but it is not unfair and not wrong for families to believe in circumstances such as the case of Noel's brother, the Cawley case or the Hawe case that persons have benefited as a result of wrongful acts. We need to introduce legislation to give effect to that. I thank everyone and the Chairman.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank Deputy O'Callaghan for that. He has summed it up very well. We are all agreed that legislation is required. The question mark is regarding whether the Bill before us for consideration can or will fulfil all its promise. There are questions there that need careful address over the time ahead. I thank Professor Mee, Mr. Byrne and Ms Doyle for being witnesses here this morning and for their contributions. I will not single anyone out. I thank them very much. I take this opportunity as Chairman of the Joint Committee on Justice and Equality and on behalf of the members to extend our sympathy and solidarity to Noel and his family. The loss of his brother is something he will be conscious of throughout all of his life and we are very aware of that. I also thank Senator Marie-Louise O'Donnell. It was great to have her here.

Marie Louise O'Donnell (Independent)
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Thank you.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank the members of the committee for their respective contributions, I thank our witnesses once again, and I thank our guests in the Visitors Gallery.