murder and involuntary manslaughter - Law Reform Commission

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unjustifiable risk that the material element exists or will result from hisconduct. The risk must be of “such a nature and degree that, considering thenature and purpose of the actor’s conduct and the circumstances known tohim, its disregard involves culpability of a high degree.” This definition wasapproved by Henchy J in The People v Murray 3 in the context ofrecklessness as to circumstances, rather than consequences. Recklessness inthis context is clearly subjective - the accused must advert to the risk.3.04 In its commentary on the Code, the American Law Instituteexplained that this provision “reflects the judgment that there is a kind ofreckless homicide that cannot fairly be distinguished in grading terms fromhomicides committed purposely or knowingly.” 4 Ordinary recklessness issufficient for manslaughter under the MPC. However, in a prosecution formurder the jury must be instructed that the brand of recklessness, which can“fairly be assimilated to purpose or knowledge” should be treated as murderand less extreme recklessness should be punished as manslaughter. 53.05 Adopting a provision along the lines of the MPC would bringwithin the scope of murder killers such as arsonists or terrorists wishing todamage property, who did not intentionally cause death but who wereindifferent as to whether or not their conduct would result in a fatality. Byfocusing on “a substantial and unjustifiable risk” a broader enquiry into themoral culpability of the killer is permissible, whereby an assessment of thedegree of risk, the social utility of the killer’s conduct, as well as the gravityof the potential harm can be carried out. Moreover, the MPC phrase“substantial and unjustifiable risk” does not fix any minimum mathematicaldegree of foresight. Levels of foresight which do not amount to virtualcertainty of death such as probability might therefore suffice where there isevidence of extreme indifference.3.06 In its 2001 Consultation Paper the Commission identified thefollowing advantages of the Model Penal Code approach:• Certain heinous killings where the defendant had no purpose to killwould be covered, eg a terrorist who plants a bomb in a publicbuilding or an arsonist who sets fire to an occupied house. Suchkillers would probably fall outside the present test of intention inEngland as determined by the House of Lords in R v Woollin 6 if3456[1977] IR 360, 403.American Law Institute Model Penal Code and Commentaries (2 nd ed American LawInstitute 1980) Part II at 21.Ibid at 21-22.[1998] 4 All ER 103.52
they did not foresee death as a virtually certain consequence of theirconduct;• By requiring the risk in question to be “substantial andunjustifiable” it allows for an assessment of the culpability of therisk in question, and avoids confining it to any fixed mathematicalpercentage. 73.07 The Consultation Paper identified the following disadvantage ofthe MPC approach:• Its inherently flexible formulation might lead to uncertainty inpractice, giving rise to the risk of inconsistent jury verdicts, orverdicts based on irrelevant or discriminatory factors, such as thedefendant’s background, allegiance etc. 83.08 Since the fault element for many other serious offences is intent orrecklessness, the Commission believes that that there is no reason why boththese fault elements should not apply to murder also. 9 Recklessness sufficesto ground murder convictions in most other legal systems.• In the common law jurisdictions of Australia 10 foresight ofprobability of death is sufficient for murder. 11• In Canada foresight of a likelihood of death is sufficient formurder. 12• In Italian law, under the concept of dolus eventualis, proof offoresight of a possibility of death may suffice, so long as thedefendant accepted or reconciled himself to that risk. 13789101112Law Reform Commission Consultation Paper on Homicide: The Mental Element inMurder (LRC CP 17-2001) at paragraph 4.045.Ibid at paragraph 4.046.Ibid at paragraph 4.009.Victoria and South Australia.See The Queen v Crabbe [1985] 156 CLR 464 which established that there must beforesight of a probability, and not a mere possibility, that death or grievous bodilyharm will result. See also Law Reform Commission Consultation Paper on Homicide:The Mental Element in Murder (LRC CP 17-2001) at paragraphs 3.35-3.38 for adiscussion of recklessness as a mental element in murder in Australian common law.See the Canadian Criminal Code 1985 section 229(a). See also Law ReformCommission Consultation Paper on Homicide: The Mental Element in Murder (LRC CP17-2001) at paragraphs 3.24-3.26 for an analysis of the meaning of intention inCanadian law.53
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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]
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 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
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
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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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