Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move: "That the Bill be now read a Second Time."

The Bill we are debating on Second Stage this evening seeks to amend the Civil Liability Act 1961 by putting a new Part into that Act. The new Part would set out a statutory mechanism that would have the effect of prohibiting people from inheriting assets from the estate of persons whom they have killed. In the law at present there is a partial remedy for that problem contained within section 120 of the Succession Act. However, other issues, in particular how they relate to joint tenancies held by individuals, are not covered at present in statute.

Before dealing with the substance of the Bill I wish to state at the outset that the Civil Liability Act that was enacted by the Houses of the Oireachtas in 1961 was remarkable legislation. It is very sophisticated legislation that was designed to deal with the issues of civil liability, concurrent wrongdoers, survivorship of actions by people who have died and it also deals with actions that can be taken by dependants of persons who have died. It was remarkable legislation, which has been commented on throughout the legal world as being legislation of great sophistication. When it was introduced in 1960 by the Minister of State at the time, Mr. Haughey, it received widespread approval from Opposition leaders such as Mr. Costello and Mr. Tom O’Higgins was also a Member of Dáil Éireann at the time.

Part of the reason it is legislation of such sophistication is that it was drafted by one of the most pre-eminent legal academics of the 20th century, Dr. Glanville Williams. I am slightly hesitant about introducing legislation that is going to amend that remarkable legislation but the House and individuals can rest assured that the only way in which the Civil Liability Act will be amended is through the insertion of this proposed section to specifically deal with the issue of individuals seeking to inherit from the estates of persons whom they have killed.

It is important to note that the legislation has its origins in a tragic event in December 2008 involving the brutal killing of a woman by her husband. In February 2010, the man was convicted of her manslaughter. Like many married couples in Ireland, they owned their family home as joint tenants. It is important for the purpose of this debate to be aware of the meaning of a joint tenancy as it applies to property owners. If two, three, four or more people own property as joint tenants, the most distinctive feature of that ownership is the rule of survivorship, under which the share of an owner who dies vests in the remaining owners, which continues until only one owner remains. Its effect in the context of those tragic events in 2008 was that after the woman died, her interest in the joint tenancy automatically vested in her husband who had been convicted of her manslaughter. All Members will agree that that is wrong under the principle that one ought not be able to profit or benefit from a wrongful act. In that instance, the man was able to do so. Thereafter, the family of the unfortunate deceased woman brought proceedings to the High Court seeking to disqualify the husband from gaining full ownership of the family home. The case was heard by Ms Justice Laffoy, one of the finest judges we have had in this country, who recognised that his entitlement to inherit the joint tenancy under the rule of survivorship could not be eroded because there was no statutory provision which would allow that. However, she came up with an ingenious method to circumvent the entitlement, whereby she stated that the interest of the wife in the family home would be held in trust by the man for the benefit of the wife's family. Importantly, she also commented that the issue should be addressed in legislation and that the Oireachtas needed to act.

The Law Reform Commission produced an excellent report on the issue in 2015. A significant amount of research on the issue was carried out and the practices in other jurisdictions were considered. The commission put forward several recommendations and proposed statutory provisions which form the basis of the Bill.

The Bill seeks to give effect to the legal principle that one should not be able to benefit from one's wrongful act. If enacted, it would ensure that a person responsible for the murder, manslaughter or attempted murder of a joint tenant would have that joint tenancy severed such that the rule of survivorship would no longer operate. If an application was brought by an interested party, a court would be entitled to sever the joint tenancy and determine the amount and value of the offender's interest in the property. The court could decide the offender had no interest in the property, was entitled to the 50% interest he or she held under the joint tenancy or should be granted a level beyond that. In so deciding, the court must take several factors into account, such as whether the victim had children, the financial obligations and responsibilities of the offender, the nature and gravity of the offence and the extent to which the offender displayed a lack of concern for the victim. It would be entitled to consider all relevant factors in determining what was just and equitable for the purpose of calculating the value and amount of the offender's interest in the estate.

Section 120(1) of the Succession Act 1965 provides a statutory prohibition on individuals inheriting from the estate or assets of persons for whose murder or manslaughter they are responsible. The Bill proposes the insertion of section 46B into the Civil Liability Act 1965, which would reformulate and broaden the statutory prohibition in section 120 of the Succession Act. The current section does not cover insurance policies or certain other assets which do not come within the narrow definition currently provided. Under the Bill, a person convicted of murder, attempted murder or manslaughter would be precluded from taking any share of the property or estate of their victim. There is no concern in that regard as it simply reformulates and broadens section 120.

The Minister of State, Deputy Andrew Doyle, who is present, will state that the Government is concerned by section 46B(3), which provides that the rule "shall not apply to any person who aids, abets, counsels or procures the commission of an offence". I am prepared to listen to such concerns. We will not fall out over it. The priority should be to enact the substantive part of the legislation. We will discuss the details of the Bill on Committee Stage. However, we must recognise that the Law Reform Commission believed it inappropriate to include aiding and abetting as an offence which would invoke the operation of this proposed legislative scheme. It is also important to note that section 7 of the Criminal Law Act 1997 provides that "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." A person involved in aiding or abetting a murder is liable to be prosecuted for such crime as a principal offender. That is the only contentious part of section 46B.

Section 46C implements the recommendations of chapter 2 of the Law Reform Commission report. It provides an express statutory prohibition on an offender obtaining the benefit of the right of survivorship and that the joint tenancy between an offender and victim shall be severed from the date on which the offence was committed. That is the central part of the legislation. It is imperative that the joint tenancy is severed and that the rule of survivorship does not operate because the offender would otherwise be able to inherit the estate of his or her victim.

Section 46C(2) provides that where proceedings are brought under this part of the Act it shall be the responsibility of the court to make an order that is just and equitable. As I stated, the court is required to make an order determining the amount and value of the offender's interest in the property, which may be more or less than or equal to half of the interest in the property. A feature of joint tenancy is that the property is owned equally. If two people are joint tenants, they generally each have the right to 50% of the property. The court would determine whether an offender had an entitlement to any share of the estate. As I stated, several factors may be taken into account by the court in that determination, such as the direct or indirect contributions of the offender or victim to the jointly-held property. Such offenders and victims are often married or may have children together and in such instances that would be taken into account.

The age and financial needs of any dependant or any children of the victim will also be taken into account. That will have to be an important factor for any court considering the matter. The court should also take into account the age, financial needs and obligations of the offender. The court should take a series of factors into account when this application is brought.

I may not have mentioned it but the people who can bring this application are referred to in the legislation as interested persons. They are the personal representatives or executors of the estate of the deceased and are entitled to succeed under the estate of the deceased his or her dependants or close family members.

The other part of the legislation that is interesting and novel is section 46E, which deals with the civil nature of proceedings under this Part. This legislation primarily deals with events that are, on one level, criminal offences; people who kill other people commit criminal offences. It is not always the case, however, that individuals who kill other people are held to account before our criminal courts. Sometimes individuals are prosecuted and acquitted, notwithstanding the fact that they may be guilty. On other occasions, there simply is not enough evidence to prosecute a person for a serious criminal offence such as murder or manslaughter. That happens in this jurisdiction, and it happens in every jurisdiction throughout the world.

We need to recall, however, that this legislation comes under the Civil Liability Act. It provides a civil remedy to people who believe the offender should not benefit from the intentional killing performed by that offender on the victim. Consequently, since it is a civil remedy, the civil standard of proof should apply. The civil standard of proof is that something has to be proved on the balance of probabilities. That is different from the criminal standard of proof, which is that it has to be proven beyond all reasonable doubt. There may be occasions when individuals who have killed somebody have not been convicted or have not been prosecuted for a crime. However, that should not stop interested persons from bringing applications under this Act to prevent the person they regard as the offender inheriting under the rules of joint tenancy or the rules under the will. It will mean that if the court is satisfied the individual bringing the application will have put evidence before it establishing, on the balance of probabilities, the person was killed through the intentional act of the other person, that does not make them a criminal but it does hold them civilly liable.

I thank the Acting Chairman for the time and I hope to get the support of the House in respect of this legislation.

Andrew Doyle (Wicklow, Fine Gael)
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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.

Denise Mitchell (Dublin Bay North, Sinn Fein)
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I welcome the Bill that is before the House today. This is a Bill that in many ways has been a long time coming, given the high-profile case from which many of the flaws and gaps in this area of legislation arise. Sinn Féin will be supporting the Bill through the various Stages and we hope to see its swift passage through the Houses. I understand this Bill comes on the back of the 2015 Law Reform Commission report on a case which saw an individual jailed for the killing of his wife. Under the right of survivorship, this person was entitled to 100% of their shared property. It is a bizarre loophole which sees an offender benefit financially from his or her crime. Under the Succession Act 1965, a person may not inherit any part of the estate of a person whom he or she has murdered, attempted to murder or killed in circumstances amounting to manslaughter. However, because property held in a joint tenancy does not form part of the estate of a deceased person, the rule in the Succession Act 1965 does not apply. This Bill seeks to close this loophole and help prevent a repeat of such instances in the future.

The Law Reform Commission report recommended that major reform of legislation is required to ensure no person benefits from his or her own wrongdoing, especially in cases of homicide. I think that almost everybody will agree that this reform is common sense and I am glad Deputy O’Callaghan has brought this legislation forward. The Law Reform Commission report also recommends that in any court proceedings the court will, other than in exceptional circumstances, order that the costs of the proceedings are to be paid by the offender. This is because such court cases only arise because of a wrongful act of the offender. This recommendation is included in the Bill and is welcome.

I had many questions to ask Deputy O'Callaghan about section 46E but the Deputy has already clarified that this evening. To conclude, I again welcome the Bill, support it, and hope it passes without delay.

Mary Butler (Waterford, Fianna Fail)
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I commend my colleague, Deputy O'Callaghan, on bringing forward this Bill to address a loophole in current legislation and to ensure that no perpetrator of murder or manslaughter can financially benefit from his or her victim’s death. Despite the passage of more than three years since recommendations were made by the Law Reform Commission calling for legislative reform of the nature envisaged by the Bill, unfortunately we have not seen action to date. This Bill was introduced some 19 months ago and I believe it is high time for us to be discussing it.

The issue initially came to the fore back in 2008 following the manslaughter of a woman by her husband in Howth, County Dublin. Despite being found guilty of this serious crime, the perpetrator stood to inherit substantial amounts from his wife’s estate. This resulted in legitimate public outrage when it became apparent that under our law, the killer of a spouse could legally inherit the deceased's assets. Many spouses co-own property by way of a joint tenancy. The law at present means that when one spouse dies, even if his or her death is as a result of being killed by the other, ownership of the property automatically transfers to the surviving co-owner. Following litigation arising from this unlawful killing, the High Court recommended that the law in this area should be reviewed. The Law Reform Commission subsequently published its recommendations and proposed legislation in 2015.

Legislative reform is needed to ensure that the principles that a person should be prevented from benefitting from his or her wrongdoing, and that no cause of action should arise from one’s own wrongful act are applied, not only under succession law but also to prevent an offender benefitting in another context. This Bill seeks to achieve that aim. I welcome the fact that the Government will not oppose the Bill on Second Stage and welcome the support from Sinn Féin. Anybody who steps back and looks at this will realise there is an anomaly here that needs to be corrected.

Andrew Doyle (Wicklow, Fine Gael)
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I acknowledge the contributions from all Members present. Perhaps in another time slot, this would have generated more discourse. It certainly deserves to be seriously considered. Deputy Butler mentioned the public outrage and the impact this has had on society. We also must acknowledge the courage of the families of the deceased and the victims who will see this as testament to their suffering and to the manner in which they have pursued and persisted. In fairness, there was no deliberate attempt on any side or on the part of the drafting people to delay this but it is timely.

That said, we must be mindful. As Deputy O'Callaghan said, the original Act is very fine legislation that was introduced 57 years ago. We are tweaking it and the Deputy himself acknowledged that he was cautious about doing so. If we are going to be cautious, we should make sure that we get it right. I think we will get agreement and would be very surprised if we meet any opposition if we can make sure on Committee Stage to iron out and clarify some of those finer points that need to be examined further.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Minister of State and Deputies Mitchell and Butler for their contributions. Listening to Deputies Mitchell and Butler reminded me that, to a large extent, the main victims of the types of issues we are discussing are women. Unfortunately, in the vast majority of cases of death caused by spousal violence, it is men who end up killing women. If the family of a woman find themselves in the situation where their loved one has been killed and then they see afterwards that the individual responsible for killing her will in some way benefit financially, that must be a terrible issue for them to have to deal with.

I know it is not always the case that it is men who are responsible for these murders. On foot of the case in his constituency to which he referred, the Minister of State will be aware that in exceptional circumstances it can be the other way around. It is worth acknowledging that these horrendous crimes predominantly involve husbands killing wives or male partners killing female partners.

The Minister of State is correct in stating that this is a complex issue. While it is complex, what we are trying to achieve is not. Everyone in the House agrees and recognises that the current position is untenable. It is inappropriate for the law to continue as it is at present whereby someone who has committed and even been convicted of the serious offence of murder or manslaughter, can benefit financially from that act. Everyone in the House agrees that has to change.

At the outset, I commented that the Civil Liability Act is fine legislation. While it is, the good thing about what I am proposing here is that we will not change in any substantive way the Civil Liability Act. We will simply insert a new part dealing with the situations we have discussed here.

The Minister of State raised three issues. The first is the Government's concern that it may not be permitted to specify in the legislation people who aid and abet criminal offences such as manslaughter and murder. The logic behind the Law Reform Commission's specifically excluding aiding and abetting was that it believed in the context of an application before the civil courts that aiding and abetting are quite vague in their definition and can be indeterminate in their meaning. I have no difficulty working with the Select Committee on Justice and Equality and the Government in respect of this matter. If at the end of our deliberations we believe it is appropriate to remove the section I inserted, I am happy to remove it. However, it is important to emphasise, as I did in my earlier contribution, that in Ireland aiders and abetters are prosecuted as principals.

The second concern the Minister of State raised relates to section 46(e), which deals with holding a person who has not been convicted of such criminal offence liable for the wrongful killing of another individual. That already happens in our law. There is nothing to stop individuals from taking cases against persons for assault or indeed for family members of a deceased to take a case against another person for his or her liability for the death of that family member. It can be done at present in the civil courts.

Obviously, it can be contentious. It can mean that the public at large might believe the person is criminally liable for the terrible crime. However, that is not what the court finding actually means. A court finding is that on the balance of probabilities a person has been found liable for the intentional killing of a person. Although people may find this strange, it does not mean that the person has been convicted of a criminal offence but it means that they are liable before the civil courts and can be held liable in damages for it. I do not believe there is anything desperately unusual about this. It can happen in Irish law at present. It is unusual to see it codified in a statute to say that the civil courts can reach findings that, in effect and in meaning for the rest of the public, will mean that the person against whom the decision is made is held to be liable for the wrongful killing of another person.

The Minister of State's third point relates to costs. Costs can be a deterrent to the family of a victim taking a case before the court. It is important for the legislation to set out that the strong likelihood is that the family will not be held liable for their costs even if they do not succeed in the case. If we do not stipulate anything in respect of costs, people will be nervous about taking such a case because if it does not succeed for them, the rule should be that costs follow the event. It would be terrible if a family brought an application legitimately under this legislation, did not succeed for some technical reason and then find themselves afterwards penalised with an order for costs. There is a purpose and logic to including the cost provision in the legislation. The Minister of State will note that the statute as drafted gives discretion to the court. The court may depart from that rule if it believes it is appropriate.

The Minister of State indicated that the Government believes it may be inappropriate in civil proceedings to have an individual categorised as an offender. That is a minor issue and we will be able to deal with it. We could just refer to that person as the respondent or the defendant as in the case in much other legislation.

I thank all the Members for their contributions. I acknowledge the support on all sides. I think it is good legislation and we should try to expedite it. Part of the reason for such interest in this is that people think it is bizarre that somebody can kill another person and then benefit financially.