murder and involuntary manslaughter - Law Reform Commission

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decides that death or serious injury was the natural and probableconsequence of the accused’s conduct, they must then consider whether theaccused has adduced any evidence capable of rebutting the presumption. Ifthe jury finds that the accused has indeed rebutted the presumption, eg ifthey think it was possible that the firing of the gun at the closed door wasaccidental, rather than deliberate, then a verdict of acquittal on the charge ofmurder should be entered.2.56 Charleton, McDermott and Bolger state:“The terrorist who places a bomb in a plane carrying militaryequipment may actively hope that the pilot and crew will escape.If they do not, the natural and probable consequence of theexplosion is the death of the crew and passengers. The morelikely an event is, the stronger becomes the conclusion that theaccused intended it. Yet, even in the most glaringly obviouscircumstances the accused may escape liability for murder, if notmanslaughter. This is because the test is purely subjective.However hard it is for the ordinary person to do something andintend something else, or to divide their mind between intendingone action, and knowing that another consequence will, in allprobability occur, an accused is, in our law, entitled to be judgedby the state of his or her own mind.” 622.57 In its Consultation Paper on Homicide: The Mental Element inMurder 63 the Commission explored whether there were morally culpablekillings which fall outside the current definition of murder, but which oughtto be punished as murder. If the mental element in murder is confined tointention, many killings that the Commission believes ought to be properlypunishable as murder will be excluded. 64 In 2001, the Commissionexpressed the view that it is unsatisfactory that a murder conviction wouldnot arise under a Woollin-type definition of intention where a terroristplanted a bomb in a public building, intending to cause criminal damagethough not to kill, but aware that it is highly probable that death will result. 65Although the terrorist may not have intended to kill, he nonetheless waswilling to act with reckless disregard for human life in consciouslydiscounting a high probability that death would be a consequence of hisactions. McAuley and McCutcheon state that:62636465Charleton, McDermott and Bolger Criminal Law (Butterworths 1999) at paragraph7.96.(LRC CP 17-2001).Law Reform Commission Consultation Paper on Homicide: The Mental Element inMurder (LRC CP 17-2001) at paragraph 4.006.Ibid.42
“the presence or absence of intention in the English sense shouldnot be allowed to trump the underlying moral issue of whether thedefendant deserves to be branded as a murderer…” 662.58 In its Consultation Paper on Homicide: The Mental Element inMurder the Commission was of the opinion that some reckless killings are asheinous as intentional ones and deserve to be treated as murder rather thanmanslaughter. 67 However, under the English test where the mental elementruns no further than foresight of a virtual certainty, highly culpable killerssuch as those who set fire to occupied buildings, or who shoot firearms intooccupied houses, 68 or moving vehicles, 69 or who drive heavy trucks intopublic houses from which they were thrown out, 70 might well (if the judge’sdirections on intention were followed) be acquitted of murder unless the jurywas satisfied that the defendants in question failed to rebut the section 4(2)presumption that they intended the natural and probable consequences oftheir conduct.2.59 In the Consultation Paper on Homicide: The Mental Element inMurder 71 the Commission provisionally recommended that the fault elementfor murder be broadened to embrace reckless killing manifesting an extremeindifference to human life. The Commission will revisit this reform optionin Chapter 3.(2) Should intention to cause serious injury continue to form themens rea for murder?2.60 Under section 4 of the Criminal Justice Act 1964, an intention tocause serious injury is enough to give rise to a murder conviction, evenwhere the accused does not actually intend to kill. The term “serious injury”is not defined by the 1964 Act and the applicable test is objective in nature.The related term “grievous bodily harm” has been interpreted by the Englishcourts as meaning “really serious bodily harm”. However, English trialjudges need not always use the prefix “really” before “serious bodily harm”when instructing the jury. 7266676869707172McAuley and McCutcheon, Criminal Liability (Round Hall Press 2000), 308.(LRC CP 17-2001) at paragraph 4.008.People v Jernatowski [1924] (New York) 238 NY 188.Hill v Commonwealth [1931] (Kentucky) 239 Ky 646.The Queen v Crabbe [1985] 156 CLR 464.(LRC CP 17-2001) at paragraph 4.075.In the R v Janjua and Choudury [1999] 1 Cr App Rep 91 it was held not to benecessary to use the word ‘really’ before ‘serious injury’ where the act was stabbingwith a five and half-inch blade.43
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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
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: DIssues relating to murder(1) Are t
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 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
Page 105 and 106: isk, he ought to have exercised the
Page 107 and 108: 4.53 The offence is committed where
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4.59 The Commission sought submissi
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5CHAPTER 5INVOLUNTARY MANSLAUGHTER:
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lesser crime and receive a softer p
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5.12 In cases where the accused pun
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in circumstances where it is accept
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of “common knowledge” and life-
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5.40 The Commission does, however,
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Kennedy, 35 R v Dias 36 and R v Rog
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“negligent homicide” may be a f
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negligence so as to produce a fluct
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stole a vehicle and a high speed po
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(b)(i)The relevance of death in car
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6CHAPTER 6SUMMARY OF RECOMMENDATION
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• that the negligence was of a ve
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Unlawful and dangerous act manslaug
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www.lawreform.ie
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