Andrew Doyle (Wicklow, Fine Gael) | Oireachtas source

I would like to convey the apologies of my colleague, the Minister for Justice and Equality, Deputy Charlie Flanagan, who regrets he cannot be here for this debate due to another commitment.

On behalf of the Minister and the Government, I thank Deputy O’Callaghan for tabling his Private Members' Bill and for providing us with the opportunity to discuss the important and complex issue that arise, particularly in the context of succession law and property law, where a person is convicted of the unlawful killing of a person from whose estate or property that person might otherwise have expected to benefit.

Regrettably, we are all too well aware of such cases, which, invariably and understandably, generate public interest and extensive media coverage. The difficulties that can arise have been highlighted in a number of high-profile cases that have come before the courts in recent years.

The Government fully understands and appreciates the Deputy's reasons for bringing forward this Bill and is supportive of the important public policy objectives that underpin it. The Government has decided not to oppose Second Stage for that reason, . However, in the Minister’s view and in the view of the Attorney General, with whom he has consulted in the matter, a number of legal and jurisdictional issues arise, which will require some further detailed examination. The Government has agreed, therefore, with the Minister’s proposal to table a number of amendments to the Bill on Committee Stage.

Before proceeding any further, I would like to convey my sympathy, and that of the Minister and the Government, to the victims of the horrendous crimes that give rise to the need for this legislation. The burdens for families in these cases are all the greater because the perpetrators have usually been part of the victim’s own intimate family or private circle.

It is a well-established legal principle, underpinned in both common law and in statute, that no person should be permitted to benefit from his or her unlawful conduct. This means that any person found guilty of the unlawful killing of another person is prevented by force of law from benefitting from his or her property or estate. The perpetrator will not be allowed to inherit what he or she would otherwise have received on the victim’s death or under the victim's will, or on intestacy if the deceased had not made a will. This principle finds statutory expression in our succession law in section 120 of the Succession Act 1965, which provides that a person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other person.

As has been mentioned, a particular problem arises where the perpetrator and victim have been joint tenants of property, such as a family home. Joint tenancy is a form of property ownership that is common among spouses, and its distinguishing feature is the so-called right of survivorship. This means that when a spouse who is a joint tenant of the family home dies, his or her interest in the property passes to the surviving spouse and it does not form part of the estate of the deceased spouse.

In its 2011 ruling in the Cawley v.LiIIis case, the High Court ruled that the surviving spouse did succeed to the interest of the deceased joint tenant in the property, notwithstanding that he had been convicted of her manslaughter, but the court went on to find that the perpetrator was prevented from using these assets for his own benefit. Instead, it ruled that the surviving joint tenant held them in trust for the beneficiary of the deceased's estate. However, in her judgment, Ms Justice Laffoy suggested that the case demonstrated the need for legislation to deal with the issues arising in respect of co-owned property in the event of the unlawful killing of one of the co-owners by another co-owner.

Arising from this case, the Department of Justice and Equality suggested to the LRC that this area of succession law needed to be reviewed and updated, and it asked the commission to consider undertaking such a review in the context of its next programme of law reform. The commission agreed to do so, and it published an issues paper in 2014 in which it invited submissions on a number of succession-related matters. The outcome of this consultation process formed the basis for the commission's subsequent 2015 report, Prevention of Benefit from Homicide. A draft Bill along the lines of that tabled by the Deputy was annexed to this report.

In the meantime, the Department of Justice and Equality took action on foot of the commission's report by preparing a set of draft provisions that take account both of its recommendations and later input received from the Office of the Attorney General. These draft heads of Bill were included in the draft civil law (miscellaneous provisions) Bill that was approved by Government in July 2017. Unfortunately, due to the pressure of other legislative priorities in the Office of the Parliamentary Counsel, work drafting that Bill has been delayed. The Minister’s intention is that the work that has been done in his Department and in the Attorney General's office will provide a good basis for the Committee Stage amendments to the Bill he intends to table in due course.

As regards the content of this Bill, the Government can support much of it and, therefore, I do not propose to dwell on those provisions with which the Government agrees but rather to focus on areas of outstanding concern. First, the Minister has concerns in respect of the section 46B(3), which provides that the prohibition on a person who is convicted of the murder, attempted murder or manslaughter of another person from taking any share in the property or estate of the victim shall not apply to a person who aids, abets, counsels or procures the commission of such an offence. As the LRC's report acknowledges, most of those responding to its issues paper considered that the prohibition rule should also apply to those who aid, abet, counsel or procure the unlawful killing of another. The commission did not accept this view. This decision contrasts with the point of view set out in the issues paper, which stated: "Arguably, a person who aids abets, counsels or procures the killing of another is morally as culpable as the killer."

Deputies may be aware that section 7(1) of the Criminal Law Act 1997 clearly states, “any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender.”

The Government’s view is that the commission’s proposal concerning those who aid, abet, counsel or procure the unlawful killing of another person thus requires further examination and consideration. One possible way forward would be to apply the prohibition rule in principle to those who aid, abet, counsel or procure the unlawful killing of another, but to give the court a broad margin of discretion to relax its strict application of the rule where the level of complicity or culpability is unclear or cannot be ascertained. It is worth noting here that conspiring or soliciting to commit murder remains an offence under our law. In the high-profile DPP v.Nevin case, for example, the accused was found guilty not only of the murder of her husband, Thomas Nevin, but also of soliciting individuals to murder him. In the DPP v.Collins case, the accused was found guilty of conspiracy to murder.

As regards the proposed section 46E, the proposal here is to permit proceedings to be brought against persons who have not been subject to a criminal prosecution in the State, including in cases where the unlawful killing took place outside the State, and in cases in which there has been a prosecution but the accused has been found not guilty. This provision raises a number of issues, not the least of which is whether such a proposal could be held to be punitive in its effect. It also means that an Irish court might be called upon to decide whether an act carried out in another jurisdiction did indeed cause the unlawful death of the victim. The Minister, Deputy Flanagan, is concerned that this section raises a number of legal and complex jurisdictional issues that require further detailed examination.

The proposed section 46F provides that all costs should be borne by the offender, except in clearly exceptional circumstances. Depending on the circumstances of the case and the level of costs arising from the proceedings, there may be a risk of unfairness and, possibly, a perception of further punishment. Here also, it might be preferable to give the courts a broad margin of discretion as regards the costs. Finally, while the Bill proposes that proceedings are intended to be civil proceedings, it refers throughout to an “offender”, even where there has been no prosecution or conviction of the person concerned. This will also necessitate some re-drafting.

In conclusion, I want again to thank Deputy O’Callaghan for bring forward his Private Members' Bill and for facilitating a discussion on the Law Reform Commission’s proposals for reform in this important area.

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