Wednesday 26 October 2016

A brave family shows us why crime should never pay

Celine Cawley's brutal death at the hands of her husband exposed an injustice in Irish law

Published 26/07/2015 | 02:30

‘Lillis emerged from prison with more than €1m in assets — arguably Ireland’s richest killer’
‘Lillis emerged from prison with more than €1m in assets — arguably Ireland’s richest killer’

It's a coping mechanism, perhaps, but my brain has a tendency to try to forget what I see and hear during criminal trials.

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Members of the public can queue for hours to attend a trial - the recent murder trial of Graham Dwyer was one such circus that would have made Les Tricoteuses blush. I try to flee court at the earliest opportunity, feeling no small amount of shame for intruding - as journalists must to a certain degree when covering court cases - on the grief and privacy of families.

But there are some court scenes that are hard to forget.

The reactions of the family of the late Celine Cawley to the manslaughter verdict handed down by a jury to her husband Eamon Lillis is one such memory.

There was the incomprehension on her brother Chris Cawley's face as the prospect of a mandatory life sentence for murder evaporated. Then the entire family's devastation when Lillis - who killed his wife Celine with a brick - was sentenced to less than seven years for his crime.

Last April, Lillis left jail after serving five years and two months. He emerged from prison with more than €1m in assets - arguably Ireland's richest killer.

Little did the Cawley family know, when Lillis was led away to jail, that their nightmare with the justice system was not over... a new chapter was about to begin.

For five years, in two countries (Ireland and France) and at a cost of more than €200,000 in legal fees - let alone the emotional toll - the Cawleys fought with Lillis for control of the joint assets which they wanted to secure for the couple's now adult daughter Georgia.

When the Cawleys sought control, they were met with a lacuna in the law. Under the 1965 Succession Act, a person can't normally inherit any part of the estate of the person whom they killed - killers cannot profit from their crimes.

But the law was silent on how assets co-owned between a survivor killer and their victim should be distributed.

Most married couples and civil partners own assets under a joint tenancy, and for very good reasons. When one spouse dies, full ownership passes to the survivor, thereby avoiding the need to go to probate and pay death duties.

When Celine was brutally killed, her family fought for all of the couple's estate (once valued at €4m) - not just Celine's - to go to Georgia. But Lillis fought and won his right to hold on to his 50pc share of the couple's joint tenancy assets. This is because the High Court, while lamenting the absence of any law to deal with such circumstances, ruled that the right of survivorship applies even where the surviving co-owner (Lillis) has killed their spouse.

This was in stark contrast to a decision by a judge in France who refused to allow Lillis to benefit from the sale of an €800,000 holiday home he co-owned there with his wife because he had killed her. Despite her death, Celine Cawley (or rather, her estate) was deemed under French law to have survived her killer.

Last week, the Law Reform Commission published a report which recommended new laws allowing judges to reduce the killer's 50pc share if it is just and equitable to do so.

It affirmed the principle laid down in the Cawley ruling that the deceased/victim be presumed to hold on to their 50pc.

But many asked why a killer should be presumed to hold on to their half, why should they reap any benefit at all?

The financial flaying (stripping of all assets) of a killer is one measure, in fact, that does not prevail in many parts of the world.

The automatic confiscation of an offender's assets appeals to our innate sense of justice, but there are competing public policy interests.

In a country where constitutionally protected property interests often seem to take precedence over the rights to life and limb - as any victim of domestic violence seeking an emergency barring order will tell you - wholesale forfeiture would be unlikely to succeed. A blanket rule could offend not just pre-existing property rights, but may be disproportionate in practice - for example if there was provocation or a history of domestic violence.

Critically, it could also distort the principle that the law punishes offenders through conviction and sentence, not by taking what they own.

In their private grief, the Cawleys had to navigate the uncharted terrain of an issue that is a matter of public law in the broadest sense - the very least the State could do in my view is compensate them for clarifying the law at great personal and financial expense.

But they have also had to carry the burden, as many families do, of struggling as mere witnesses on the margins of the justice system.

There has been much debate in recent years about the perceived need to rebalance the scales of justice in favour of victims and their families.

To be honest, I usually baulk at the notion: the vital legal protections for offenders (and therefore for society at large) are born out of gross abuses by the State in the past.

In one sense, the criminal justice system is not there to soothe families. It's not there to deliver 'the truth', and it's doubtful whether it always produces just results.

Rather, our adversarial legal system exists to test the very serious claims that someone is guilty or innocent of an offence. The rules of evidence, complex and frustrating as they are, exist for good reason, even though they are not always universally welcomed.

Eight years ago, former DPP James Hamilton said he sometimes felt that criminal law in Ireland could be like a game of football with very peculiar rules.

"The prosecution can score as many goals as they like but the game goes on," he said at the 2006 annual prosecutor's conference. "As soon as the defence score a goal the game is over and the defence are declared the winner".

Victims of crime and their families, lives torn apart, often feel as if they are only a witness. And in the cold, clinical surrounds of a criminal court, that is generally the case.

This is often felt most by victims of rape and sexual violence, who enter the trial process with little or no legal guidance and sparse information. This leaves many feeling confused, overwhelmed, vulnerable and at risk of re-traumatisation.

Often, what victims lack is basic communication from the time they report an offence to the time they step into the witness box - and beyond.

The State must ensure that a balance is struck between the rights of offenders on the one hand, and the public good - including the rights of victims and their families - on the other.

Ireland will shortly implement the EU Victims Directive that will lay down minimum standards for victims of crime. At its heart, it requires the State to communicate with victims more and provide practical supports.

This is welcome, but no law, however well enhanced, can shield victims and families from the trauma of crime.

Sunday Independent

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