Dáil debates

Thursday, 2 March 2017

Civil Liability (Amendment) (Prevention of Benefits from Homicide) Bill 2017: First Stage


1:15 pm

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

I move:

That leave be granted to introduce a Bill entitled an Act to amend the Civil Liability Act 1961 to provide for the effects in civil law of the principle that a person should be precluded from benefitting from committing any homicide and the principle that no cause of action arises from one's own wrongful act, to amend the Succession Act 1965 and to provide for related matters.

This Bill seeks to ensure that a person who is convicted of murder, attempted murder or manslaughter of another person shall be precluded from taking any share in the estate of that deceased person. At present, under the Succession Act 1965, there is a general prohibition preventing persons who are guilty of murder or manslaughter from succeeding to an estate. However, it does not go far enough and it does not cover situations pertaining to joint tenancies.

Unfortunately, we have had experience in this country of persons, in particular, husbands, who have been found guilty of the murder or manslaughter of their wives. Under the joint tenancy, which they have with their wives, those husbands are entitled to inherit the estate after they have served their sentence and they can enjoy the benefits of that. There is no barrier on them inheriting the estate. Under the proposals contained in this legislation, there would be a mechanism whereby families of those deceased persons would go to court to make an application to prevent the person convicted of the offence against their family member from inheriting.

There have been two prominent cases in this regard over the past 20 years or so - one in 1998 and one approximately five or six years ago. The courts recognise that there are limited statutory rules in place in respect of this matter and for that reason, it is appropriate that this legislation should be introduced.

It is also important to point out that under the legislation there are certain exemptions given in respect of those who are convicted of manslaughter.

1 o’clock

The court can exercise discretion not to grant an order as provided for in the legislation if it believes there are good grounds for so doing. One of those grounds would be that the person who has been convicted of manslaughter is in a position of in loco parentisor is a parent of young children and the court believes it appropriate that they be entitled to inherit the property and remain so.

It is important to point out that the Bill also applies in circumstances where a person has not been convicted before our criminal courts of murder, manslaughter or attempted murder. However, it does allow a party to bring an application before the courts on the basis of the civil burden of proof, namely, on the balance of probabilities, and if a court believes that an individual has been responsible for the unlawful killing of an individual, the provisions in the legislation can be invoked. Clearly any such finding would involve no criminal culpability on the part of the person against whom the order was made but it recognises that there are certain circumstances when civil orders can be made, notwithstanding the fact that no criminal conviction has been found. In determining those applications, the court will be applying the burden of proof based on the civil standard, which is the balance of probabilities.

The manner by which this legislation is being introduced is that it provides for an amendment of the Civil Liability Act. That Act provides significant statutory detail in respect of the liability of wrongdoers. The proposal in respect of my legislation is that it would insert a new section after Part 3, which would be entitled Part 3A, with section 46(a) being the first of them.

This is not an original piece of work by me because it is based on a Law Reform Commission report published in the middle of 2015. The Law Reform Commission recommended that the law should be changed in order that individuals would not be in a position to benefit from joint tenancies in circumstances where they had been found guilty of criminal offences involving the death of the other individual. I ask for leave for the Bill to be introduced.


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