murder and involuntary manslaughter - Law Reform Commission

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(3) Should gross negligence manslaughter be abolished andreplaced by a lesser homicide category such as negligenthomicide?4.56 In the Consultation Paper on Involuntary Manslaughter 65 theCommission considered the possibility of abolishing gross negligencemanslaughter and replacing it with a lesser homicide category such asnegligent homicide. As a species of culpable fault, negligence arguablybelongs to a less serious category of fault than recklessness. If subjectiverecklessness were to become the official mens rea for manslaughter under ascheme similar to the Indian Penal Code or the Model Penal Code, then anydeaths caused by gross negligence should logically be placed in a lessercategory of homicide. 664.57 The homicide ladders of the Indian Penal Code and the ModelPenal Code position negligent, inadvertent killings in a less culpablecategory than manslaughter. The Indian Penal Code arranges the faultelements for homicide so that murder is top of the ladder, culpable killingsamounting to manslaughter (the fault element for which is subjectivereckless) are located in the middle of the homicide ladder and culpablekillings falling short of manslaughter - negligent killings - are at the bottomof the ladder. 67 The Model Penal Code restricts the offence of manslaughterto cases of conscious risk-taking, that is, subjective recklessness. TheAmerican Law Institute which drafted the Code was of the opinion that anew, less culpable category called negligent homicide should dealexclusively with deaths caused by negligence. 68 Under the offence ofcriminally negligent homicide a higher level of negligence is demanded thanin civil cases.4.58 As negligence essentially involves an absence of mens rea ratherthan the presence of a guilty state of mind, killings which occur due to grossnegligence arguably do not belong in so serious an offence category asmanslaughter.65666768(LRC CP 44-2007).Law Reform Commission Consultation Paper on Involuntary Manslaughter (LRC CP44-2007) at paragraph 5.127.Section 304 A of the Indian Penal Code 1860 provides for causing death bynegligence. A person who causes the death of any person by doing any rash ornegligent act not amounting to culpable homicide can be punished with imprisonmentfor a term which may extend to two years, or with fine, or with both.See also section 210.4 of the Model Penal Code and Commentaries (2 nd ed AmericanLaw Institute 1980) Part II §§ 210.9-213.6 at 80 which deals with the offence ofnegligent homicide, which is below the grade of manslaughter.92
4.59 The Commission sought submissions on whether gross negligencemanslaughter should be abolished and replaced with a category of negligenthomicide, which would be below manslaughter on the homicide ladder. TheCommission will discuss this reform option in the following chapter.GMotor manslaughter and the related driving offences: thecurrent law4.60 Although it is possible to prosecute people for manslaughterwhere they unlawfully kill others through their negligent, wanton oraggressive driving, most fatal road traffic instances of this nature lead tocharges of dangerous driving causing death. This offence was introduced inthe 1960s due to the perceived unwillingness of juries to convict drivers ofan offence as serious as manslaughter.4.61 In Chapter 4 of the Consultation Paper on InvoluntaryManslaughter the Commission analysed various Irish and Australian casesinvolving road deaths in terms of descending culpability. R v Spree andKeymark Services Ltd 69 is a manslaughter case which occurred in the drivingcontext, where the culpability of the defendant was extremely high. Thedefendant, a director of a trucking company, pleaded guilty to themanslaughter of two men and was sentenced to 7 years imprisonment.Keymark Services Ltd also pleaded guilty to manslaughter. One ofKeymark’s employee truck-drivers had fallen asleep at the wheel halfwaythrough an 18-hour shift and crashed through a motorway crash barrier,killing himself and two motorists on the other side. It emerged that thedirector had organised a bonus scheme for employees who drove shiftslonger than those prescribed by law.4.62 Barry Mitchell carried out a small qualitative public opinionsurvey in the UK on various aspects of homicide and the criminal law.Many respondents stated that premeditation is a particularly aggravatingfeature in a homicide case. All respondents stated that a drink-driver whokilled a pedestrian on his way home from the pub should be convicted ofeither murder or manslaughter. Respondents were opposed to calling thiscrime “causing death by dangerous driving” because it would “glorify” or“trivialise” what the driver had done. They also believed that the impositionof a heavy punishment was insufficient because the killer knew he had beendrinking and was aware that drink driving is a dangerous and potentiallylethal thing to do. In deliberately disregarding the possibility that he mightharm or kill someone the intoxicated driver was prepared to run that risk.Respondents viewed his preparedness to risk causing death to another road-69Winchester Crown Court 8 December 2004.93
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ReportHomicide: murderand involunta
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Law Reform CommissionTHE LAW REFORM
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Law Reform CommissionLaw Reform Res
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Law Reform CommissionContact Detail
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viii
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CHAPTER 5F Issues relating to gross
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TABLE OF CASESAndrews v DPP [1937]
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INTRODUCTION1. This Report forms pa
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8. The Commission still holds most
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1CHAPTER 1THE MURDER/MANSLAUGHTERDI
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1.07 Fourth, if there were a single
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(b)Arguments favouring abolition of
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1.20 Professor Ivana Bacik also sup
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Bingham of Cornhill observed in a l
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“there can be nothing offensive i
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then Minister for Justice, Nora Owe
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degrees of seriousness in manslaugh
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against the decision, nor has the A
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people whom they represented than w
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2CHAPTER 2MURDER: THE CURRENT LAW A
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unsatisfactory. Murder is the most
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“To intend to murder, or to cause
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ecklessness involves foresight of t
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Court referred to the 41 st edition
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However, as the Court of Appeal sta
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2.40 In Hyam v DPP 45 the accused p
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2.48 Foresight must be of such a le
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Page 68 and 69: unjustifiable risk that the materia
Page 70 and 71: • In South Africa, under the conc
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Page 80 and 81: 3.44 The Commission still believes
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Page 97 and 98: 4.20 Those who focus on the moral i
Page 99 and 100: sixth 31 in order of gravity. Respo
Page 101 and 102: 4.31 According to Hart, the adverb
Page 103 and 104: 4.39 In The People (DPP) v Barden 4
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Page 113 and 114: lesser crime and receive a softer p
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Page 121 and 122: 5.40 The Commission does, however,
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Page 133 and 134: 6CHAPTER 6SUMMARY OF RECOMMENDATION
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