murder and involuntary manslaughter - Law Reform Commission

More documents

Recommendations

Info

possibly be more appropriate than that of manslaughter considering the lowlevel of culpability involved. The fact that a life was lost as a result of thewrongdoer’s unlawful conduct obviously gives the offence of assault a moreserious dimension and the Commission noted in the Consultation Paper thata more severe sentence might therefore be justified than in the case of aminor assault where no fatality results. 364.28 Alternatively, the Commission observed that if there is support formaintaining some form of constructive manslaughter in order to mark thefact of death, then perhaps liability for unlawful and dangerous actmanslaughter should be restricted to deliberate assaults. A new offence suchas “assault causing death” could be introduced to capture the wrongdoing inthe offence label, with similar penalties to regular assault. 374.29 The Commission provisionally recommended that low levels ofdeliberate violence which unforeseeably cause death should be excludedfrom the scope of unlawful and dangerous act manslaughter and insteadprosecuted as assaults. 38 This recommendation and other reform options willbe discussed further in Chapter 5.EGross negligence manslaughter: the present law4.30 Manslaughter is the only serious crime capable of beingcommitted by inadvertence. The only mental element necessary for grossnegligence manslaughter is an intention to do the act which causes death or,where there is a special duty to act, an omission to do something whichwould prevent death from occurring. Professor J.W.C. Turner argued that aperson should not be held criminally responsible unless he had in his mindthe idea of causing bodily harm to someone. Turner found the notion ofimposing criminal liability for inadvertence most unappealing since in hisview the law would be resorting to strict liability if it punished the accusedfor having a blank mind. He reasoned that if a man is blind to theconsequences, he has no realisation of their possibility and there are nodifferent degrees of nothing. 3936373839Commission intended thin skull scenarios to fall outside the scope of the proposedoffence.See Law Reform Commission Consultation Paper on Involuntary Manslaughter(LRC CP 44-2007) at paragraph 5.33.Ibid.Ibid at paragraph 5.88.Turner “The Mental Element in Crimes at Common Law” in Radzinowicz and Turner(eds) The Modern Approach to Criminal Law (MacMillan 1945) 195-261 at 211.84
4.31 According to Hart, the adverb “inadvertently” does little morethan describe the agent’s mental state whereas the word “negligently”, bothin law and everyday life, refers to an omission to do what is required and isnot just a descriptive psychological expression like “his mind was a blank”. 40Describing someone as having acted inadvertently does not necessarilyimply that his or her behaviour fell below any expected standard. If wenegligently fail to examine the situation before embarking on a course ofconduct or pay improper attention while acting, we may not realise thepotentially harmful consequences posed by our behaviour. In relation tothese consequences our mind is in a sense a “blank” but in Hart’s opinion,negligence does not consist in this blank state of mind but rather in thefailure to take precautions against harm by carefully examining thesituation. 414.32 Where a person is under a positive duty to act, an omission to soact may justify a manslaughter conviction if it results in the death of another.Duties to act arise in a variety of situations such as where there is a special(usually family) relationship between the parties or where a contractual,often employment-related responsibility exists.4.33 The objective test for gross negligence manslaughter was laiddown in The People (AG) v Dunleavy 42 where the accused, a taxi driver,drove his unlit car on the wrong side of the road and killed a cyclist when hehit him. In quashing his conviction for manslaughter, the Court of CriminalAppeal held that a conviction for gross negligence manslaughter will notarise unless the prosecution proves that the negligence was of a very highdegree and involved a high degree of risk or likelihood of substantialpersonal injury to others.4.34 Convictions for gross negligence manslaughter are extremely rarein Ireland. Indeed prosecutions for this form of manslaughter are generallymuch less frequent than prosecutions for unlawful and dangerous actmanslaughter due to the reluctance of prosecutors to invoke the criminal lawto deal with the negligent or incompetent discharge of lawful acts. Thedearth of gross negligence cases in this jurisdiction can also be partlyexplained by the relatively small population in Ireland.4.35 In The People (DPP) v Cullagh 43 the defendant was convicted ofmanslaughter where the victim died after her chair became detached from a40414243Hart Punishment and Responsibility: Essays in the Philosophy of Law (ClarendonPress 1970) at 148.Ibid.[1948] IR 95.See “Man found guilty of funfair death” The Irish Times 15 May 1998.85
Page 1:
ReportHomicide: murderand involunta
Page 4 and 5:
Law Reform CommissionTHE LAW REFORM
Page 6 and 7:
Law Reform CommissionLaw Reform Res
Page 8 and 9:
Law Reform CommissionContact Detail
Page 10 and 11:
viii
Page 12 and 13:
CHAPTER 5F Issues relating to gross
Page 15 and 16:
TABLE OF CASESAndrews v DPP [1937]
Page 17 and 18:
INTRODUCTION1. This Report forms pa
Page 19 and 20:
8. The Commission still holds most
Page 21 and 22:
1CHAPTER 1THE MURDER/MANSLAUGHTERDI
Page 23 and 24:
1.07 Fourth, if there were a single
Page 25 and 26:
(b)Arguments favouring abolition of
Page 27 and 28:
1.20 Professor Ivana Bacik also sup
Page 29 and 30:
Bingham of Cornhill observed in a l
Page 31 and 32:
“there can be nothing offensive i
Page 33 and 34:
then Minister for Justice, Nora Owe
Page 35 and 36:
degrees of seriousness in manslaugh
Page 37 and 38:
against the decision, nor has the A
Page 39 and 40:
people whom they represented than w
Page 41 and 42:
2CHAPTER 2MURDER: THE CURRENT LAW A
Page 43 and 44:
unsatisfactory. Murder is the most
Page 45 and 46:
“To intend to murder, or to cause
Page 47 and 48:
ecklessness involves foresight of t
Page 49 and 50: Court referred to the 41 st edition
Page 51 and 52: However, as the Court of Appeal sta
Page 53 and 54: 2.40 In Hyam v DPP 45 the accused p
Page 55 and 56: 2.48 Foresight must be of such a le
Page 57 and 58: DIssues relating to murder(1) Are t
Page 59 and 60: “the presence or absence of inten
Page 61 and 62: 2.63 A number of reform bodies have
Page 63 and 64: • A defendant who intentionally i
Page 65: 2.74 On the other hand, defining th
Page 68 and 69: unjustifiable risk that the materia
Page 70 and 71: • In South Africa, under the conc
Page 72 and 73: 3.15 The Commission provisionally f
Page 74 and 75: (e)• Manslaughter or Negligent Ki
Page 76 and 77: 3.30 Some consultees who believed t
Page 78 and 79: where (a) the offender killed with
Page 80 and 81: 3.44 The Commission still believes
Page 82 and 83: injury to a person which is “suff
Page 84 and 85: 3.58 An academic commentator agreed
Page 86 and 87: 3.66 In paragraph 5.53 the Commissi
Page 88 and 89: describe the risk. It was argued th
Page 91 and 92: 4CHAPTER 4INVOLUNTARY MANSLAUGHTER:
Page 93 and 94: 4.05 The Commission discussed the p
Page 95 and 96: CUnlawful and dangerous act manslau
Page 97 and 98: 4.20 Those who focus on the moral i
Page 99: sixth 31 in order of gravity. Respo
Page 103 and 104: 4.39 In The People (DPP) v Barden 4
Page 105 and 106: isk, he ought to have exercised the
Page 107 and 108: 4.53 The offence is committed where
Page 109 and 110: 4.59 The Commission sought submissi
Page 111 and 112: 5CHAPTER 5INVOLUNTARY MANSLAUGHTER:
Page 113 and 114: lesser crime and receive a softer p
Page 115 and 116: 5.12 In cases where the accused pun
Page 117 and 118: in circumstances where it is accept
Page 119 and 120: of “common knowledge” and life-
Page 121 and 122: 5.40 The Commission does, however,
Page 123 and 124: Kennedy, 35 R v Dias 36 and R v Rog
Page 125 and 126: “negligent homicide” may be a f
Page 127 and 128: negligence so as to produce a fluct
Page 129 and 130: stole a vehicle and a high speed po
Page 131 and 132: (b)(i)The relevance of death in car
Page 133 and 134: 6CHAPTER 6SUMMARY OF RECOMMENDATION
Page 135: • that the negligence was of a ve
Page 138 and 139: ___________________________________
Page 140 and 141: ___________________________________
Page 142 and 143: Unlawful and dangerous act manslaug
Page 144 and 145: www.lawreform.ie
show all

murder and involuntary manslaughter - Law Reform Commission

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?