murder and involuntary manslaughter - Law Reform Commission

5.59 The current test for establishing liability for gross negligencemanslaughter as set down in The People (AG) v Dunleavy 55 does not makeany reference to the capacity of the accused to advert to risk or to attain theexpected standard. To ground a conviction for gross negligencemanslaughter in Ireland, it is necessary to prove four key things: that theaccused was, by ordinary standards, negligent; that the negligence caused thedeath of the victim; that the negligence was of a very high degree; that thenegligence involved a high degree of risk or likelihood of substantialpersonal injury to others.5.60 The Law Reform Commission was provisionally in favour ofamending the above test so that a fifth requirement would provide that theaccused would only be liable for gross negligence if he or she was mentallyand physically capable of averting to, and avoiding the risk of substantialpersonal injury at the time of the fatality. 56 The Commission was satisfiedthat criminal liability for negligence should only arise where a person wascapable of meeting the law’s expectations but failed to behave as areasonable person in the same situation would.(c)Submissions on amending the Dunleavy test to make thecapacity of the accused relevant to liability5.61 There was overwhelming support for the Commission’sprovisional recommendation to amend the Dunleavy gross negligencemanslaughter test to make the capacity of the accused a necessary feature ofliability. Consultees agreed that it would be unjust to hold intellectuallydisabled people responsible for causing death by gross negligence incircumstances where they were incapable of assessing possible harmresulting from their actions or their failure to take appropriate precautions.5.62 However, one consultee submitted that the meaning of “capacity”in paragraph 6.14 of the Consultation Paper on Involuntary Manslaughter 57was somewhat unclear and asked:“Is it confined to an accused's mental 58 and physical capacity, ordoes it extend to such other matters such as inexperience as arosein R v Prentice? 59 Of course, the problem created by recognisingan accused's capacity is that it subjectivises the objective test for5556575859[1948] IR 95.See Law Reform Commission Consultation Paper on Involuntary Manslaughter(LRC CP 44-2007) at paragraphs 5.138-5.141.(LRC 44-2007).See R v Stone and Dobinson [1977] QB 354.[1993] 4 All ER 935.110