Check Against Delivery

Speech by Minster of State Ged Nash TD on behalf of the Minister for Justice and Equality, Frances Fitzgerald TD

11 March 2015

 

Cathaoirleach

Firstly, on behalf of the Minister for Justice and Equality, Frances Fitzgerald, TD, who unfortunately cannot be here today, I want to thank Senator Quinn for tabling his Private Members' Bill and for providing us with an opportunity to discuss the important and sensitive issues which arise in the context of succession law, where a spouse or child has been found guilty of the unlawful killing of the other spouse or a parent, as the case may be.

 

I want to thank Senator Quinn for approaching Government to discuss this Bill. The Minister for Justice and I hope we can have an agreed approach to the development of legislation in this area.

 

As we all know, these issues have, unfortunately, come to the fore in recent years in a number of high-profile cases which have come before the courts. Today’s discussion is, therefore, both topical and timely. It is also difficult for families who have been affected by these issues. I want to acknowledge and extend my sympathies to the relatives who have lost loved ones in such tragic circumstances, especially those who join us today in the public gallery.

 

Let me say that the Government understands and appreciates Senator Quinn’s reasons for bringing forward this Bill and is entirely sympathetic to the important public policy objectives which underpin it. We are also sympathetic to the families who are affected by this.

 

However, the Attorney General, who is responsible for advising Government on the compatibility of proposed legislation with the Constitution, is not convinced that the Bill, as formulated, would withstand constitutional challenge.

 

The Minister therefore could not support the Bill at this stage, on the basis that the broad scope of its provisions risks infringing constitutionally-protected property rights. The Government is, however, examining the issues raised by Senator Quinn’s Bill and intends to bring forward proposals later this year to deal with this issue, and a number of related succession law matters, based on a Law Reform Commission project which is already well advanced.

 

I want to assure everyone here present, especially the families who have lost loved ones, that it is the Government’s intention to bring forward legislation, based on the recommendations of the Law Reform Commission, later this year and proceed quickly with enactment of that legislation.

 

The Minister has spoken to Senator Quinn regarding his future involvement with the Law Reform Commission and the Government wants to see Senator Quinn’s proposals brought to the Law Reform Commission for consideration. I would hope that this would be the agreed approach to the very serious issues which Senator Quinn is bringing to the floor of the House today.

 

Before entering into any further detail, the Minister for Justice and I want again to underline our sympathy and support, and that of the Government, for the victims of these horrendous crimes. The burden for the victims in these cases is, of course, all the greater because the perpetrators have been part of the victim’s own intimate family circle.

 

I would like to address in detail some of the key issues which underline this area which I hope the House will find useful.

 

It is a well established legal principle in both common law and statute law that no person should be permitted to benefit from his or her unlawful conduct. In the area of succession law, it means that a person who is guilty of the unlawful killing of another person is prevented by force of law from benefitting from his or her victim’s estate. In short, the perpetrator is not allowed to inherit what he or she would otherwise have received under the victim’s will or on intestacy if the deceased had not made a will.

 

This longstanding principle finds practical expression in our 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.

 

A particular issue arises where the perpetrator and victim have been joint tenants of property such as the family home. A ‘joint tenancy’ is a form of co-ownership of property which is common among spouses and its distinguishing feature is the so-called ‘right of survivorship’.

 

It means, for example, that when a spouse who is a joint tenant of the family home dies, the surviving spouse automatically acquires the interest of the deceased spouse in the property and it does not form part of the estate of the deceased spouse.

 

The high-profile case to which Senator Quinn has already referred has drawn attention to certain features of the law applicable in this area which undoubtedly need to be reviewed. In that case, the High Court found that the surviving spouse did indeed acquire the interest of the deceased joint tenant in the property but went on to find that he was prevented under the rule which I have already mentioned from using these assets for his own benefit. Instead, the High Court found that he held them in trust for the beneficiary of the deceased’s estate.

 

Arising from the uncertainties that came to light in this case, in December 2012 the Department of Justice and Equality suggested to the Law Reform Commission 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 upcoming law reform programme. The Minister is very pleased therefore that the Commission decided to take the matter on board in the context of its current Law Reform Programme.

 

While the subject-matter of Senator Quinn’s Bill is of paramount importance, it is not the only aspect of succession law that needs to be re-examined in the context of section 120 of the 1965 Act. The Law Reform Commission published an Issues Paper in November last which sought views and submissions on no less than eight different aspects of section 120.

 

The deadline for the receipt of submissions was the end of January. The Minister understands that the Commission has received a number of submissions containing a range of viewpoints in response to its Issues Paper and that it intends to prepare and publish a Report containing specific recommendations for reform by July this year.

 

The backdrop, therefore, of the Government’s approach to this Bill is the Law Reform Commission’s current examination of eight different aspects of section 120 of the 1965 Act and the fact that the Commission intends to submit comprehensive reform recommendations within a matter of months.

 

In light of this ongoing work, the Government does not wish to pre-empt matters by proceeding with a partial reform which may need to be reviewed again on receipt of the Commission’s recommendations.

 

However, there is also the constitutional obstacle which I mentioned earlier. A key issue that arises in the context of joint tenancy cases is whether the perpetrator should not only lose his or her entitlement to the victim’s interest in jointly-owned assets but should also forfeit his or her own interest in them.

 

Senator Quinn’s Bill provides that where a joint tenant has been found guilty of the murder, attempted murder or manslaughter of the other co-owner, the joint tenancy shall be deemed to have been terminated with effect from the date of the offence.

 

This means that the surviving spouse would be precluded from benefitting from the estate of the deceased co-owner. The Bill then goes further by providing that the entire interest in the property shall be deemed to have been vested in the estate of the deceased with effect from the date of the offence. In short, the surviving spouse would also forfeit his or her own interest in the joint assets in favour of the estate of the deceased spouse.

 

It is at this point that issues relating to constitutionally-protected property rights arise because the Constitution affords protection to the property rights of every citizen in both Article 40.3 and Article 43.

 

As Article 43 makes clear, the State may delimit the exercise of these rights “with a view to reconciling their exercise with the exigencies of the common good.” In order to withstand legal challenge, any such delimitation requires a careful balancing of the competing rights involved.

 

The Law Reform Commission discusses the forfeiture option which forms part of Senator Quinn’s Bill in its Issues Paper. It notes that any solution would have to be compatible with the property rights in Articles 40.3 and 43.2 of the Constitution. In this context, the Commission draws attention to various statutory provisions which already provide for forfeiture of property and other assets which are the proceeds of crime.

 

Most notably, the Proceeds of Crime Act 1996 provides for the civil forfeiture of property and other assets that are the proceeds of crime. Elsewhere, Part 2 of the Criminal Justice Act 1994 allows the Court to make confiscation orders where it considers that a person who has been found guilty of certain drug trafficking offences has benefitted from the trafficking.

 

The Commission notes that the Supreme Court has upheld the validity of such provisions on the basis that a person in possession of the proceeds of crime can have no constitutional grievance if deprived of their use. However, the Commission goes on to distinguish forfeiture of property and assets which derive from crime from forfeiture of property and assets of a person who has been convicted of the unlawful killing of his or her spouse but which are not derived from crime.

 

The clear objective of any criminal sanction imposed by the courts in such cases is to punish the perpetrator for his or her crime, but that is not the purpose of the forfeiture rule under succession law. Its role is to ensure for sound public policy reasons that the perpetrator does not benefit from the crime; it does not seek to further punish by depriving the perpetrator of his or her legally owned assets.

 

Indeed, one of the aspects of section 120 of the 1965 Act which the Law Reform Commission is reviewing is whether the existing forfeiture rule may act in an unduly harsh manner in certain cases. As already mentioned, the full force of the rule applies in cases of manslaughter, even where the killing was accidental.

 

As the Commission points out, the gravity of the crime of manslaughter and the moral culpability of the perpetrator may vary enormously depending on the circumstances. In order to avoid the risk of injustice arising from rigid application of the forfeiture rule, some jurisdictions, including the UK, have granted the courts a margin of discretion in applying it. This is an aspects of section 120 on which the Commission has sought submissions.

 

It is true that in past centuries, punitive sanctions were in force in this and similar jurisdictions which provided for mandatory forfeiture of the assets of those found guilty of felonies. These were largely repealed towards the end of the 19^th century in the Forfeiture Act 1870. Some residual restrictions on the rights of prisoners to deal with their property remained in force in this jurisdiction until repealed by the Criminal Law Act 1997.

 

Since the enactment of that legislation, prisoners are free to deal with their property while serving their sentences, using agents where necessary for practical reasons.

 

On a more technical level, Senator Quinn’s Bill proposes to insert two new sections into the 1965 Act, one dealing with the case of a single surviving co-owner and the second with cases where there are two or more surviving co-owners. However, this would probably be insufficient to achieve the Bill’s stated objective without some reference to the Land and Conveyancing Law Reform Act 2009.

 

As the High Court has noted, the law relating to co-owned land has been reformed in Part 7 of the Land and Conveyancing Law Reform Act 2009. In order to protect the rights of joint tenants, Part 7 makes it more difficult to sever a joint tenancy except with the prior consent in writing of the other joint tenant or tenants. However, a court order may be sought to dispense with the consent requirement where it is considered that such consent is being unreasonably withheld. It is probable therefore that any changes to section 120 of the 1965 Act would have to be accompanied by some reference to the provisions of Part 7 of the 2009 Act.

 

Cathaoirleach,

Before concluding, on behalf of the Minister, I want once again to thank Senator Quinn for raising this important public policy issue. As I have mentioned, while the Government is supportive of the objectives of this Bill as it relates to the amendment of the law applicable in this area, it has decided to await the comprehensive reform recommendations of the Law Reform Commission which are due for publication in a matter of months rather than proceeding with a partial reform of this important area of the law at this stage.

 

I want to reiterate to Senator Quinn, and everyone else present here, especially the families, that it is the Government’s intention to bring forward legislation, based on the recommendations of the Law Reform Commission, later this year and proceed quickly with enactment of that legislation.

 

I look forward to hearing the Senator’s response to the approach I have outlined and the points I have made.

ENDS