murder and involuntary manslaughter - Law Reform Commission

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on the absence of intention to kill, “but with the presence of an element of‘unlawfulness’ which is the elusive factor.”4.10 The Commission’s Consultation Paper on InvoluntaryManslaughter was prepared with a view to determining whether the existingconfiguration of involuntary manslaughter should be retained as it is, orwhether the scope of involuntary manslaughter should be readjusted.4.11 The Commission noted that any reform of manslaughter must takeaccount of its provisional proposals for reform of murder. As discussed inthe previous chapter, in its Consultation Paper on Homicide: The MentalElement in Murder, the Commission provisionally recommended broadeningthe fault element for murder to embrace reckless killings manifesting anextreme indifference to human life. 13 The Commission believes that murdershould include “extreme indifference” killings and it is necessary to discussthe impact such expansion of the mental element might have on the categoryof involuntary manslaughter.4.12 Expanding murder to include reckless killings manifestingextreme indifference to the value of human life means that the current scopeof involuntary manslaughter would shrink. 14 Arsonists or terrorists who donot intend to kill but foresee a risk of death could currently be convicted ofunlawful and dangerous act manslaughter, but might be found guilty ofmurder under the Commission’s recommendations. People who kill byindiscriminately discharging a firearm at another person could findthemselves convicted of extreme indifference murder rather than unlawfuland dangerous act manslaughter, as could those killers who stab their victimsor strike them with dangerous weapons. Similarly, people who drink, driveand kill in circumstances of very high culpability might find themselvesprosecuted for extreme indifference murder rather than manslaughter ordangerous driving causing death and those who inflict fatal physical abuseon children could also possibly face charges for murder rather than grossnegligence manslaughter or wilful neglect under section 246 of the ChildrenAct 2001.1314Law Reform Commission Consultation Paper on Homicide: The Mental Element inMurder (LRC CP 17-2001) at paragraph 4.075.See the Law Reform Commission’s Consultation Paper on Homicide: The MentalElement in Murder (LRC CP 17-2001) at paragraphs 4.049-4.057 for a discussion ofseveral American “extreme indifference” murder cases. See also the Law ReformCommission’s Consultation Paper on Involuntary Manslaughter (LRC CP 44-2007)at paragraphs 5.05-5.13.78
CUnlawful and dangerous act manslaughter: the present law4.13 In establishing unlawful and dangerous act manslaughter inIreland, dangerousness is judged objectively and liability is constructive.The fact that an accused did not foresee, or indeed that a reasonable personin his or her position would not have foreseen death as a likely outcome ofthe unlawful conduct is irrelevant to a finding of guilt. Most cases ofunlawful and dangerous act manslaughter involve assaults. An accused’sintention to inflict some minor injury on another person makes him legallyaccountable for the unexpected result of his behaviour, that is, death.4.14 In The People (AG) v Crosbie and Meehan 15 the victim died froma knife-wound inflicted during the course of a fight at the docks. Theaccused were acquitted of murder, but convicted of manslaughter. TheCourt of Criminal Appeal held that the act must be both unlawful anddangerous. Here the act was unlawful and dangerous because the knife wasbrandished in order to frighten or intimidate, and not in self-defence.4.15 In The People (DPP) v O’Donoghue 16 the accused caught thedeceased boy in a headlock and forcibly grasped his neck. The Court ofCriminal Appeal noted that the trial judge’s description of the act as being atthe “horseplay end of things” did not mean that the act could not also bejustly described as “dangerous”. In that respect, the Court affirmed that thedeath was capable of amounting to unlawful and dangerous actmanslaughter.4.16 Assault manslaughter may involve varying degrees of culpabilitydue to the varying degrees of violence which may be employed. The morebrutal the assault (ie if several punches or kicks are applied to the head or ifthe accused brandishes a knife), the more foreseeable death or serious injuryare and the more reprehensible the criminal conduct. Different levels ofculpability are reflected in sentencing decisions. O’Malley states:“Of those imprisoned for manslaughter in 1993 and 1994, exactly50% got five years or less and 50% got five to ten years.Sentences in excess of 10 years are rare, though not unknown, andare generally reserved for manslaughters which in terms of gravityare bordering on murder. The general trend seems to be that themore deliberate and gratuitous the assault or violence leading tothe victim’s death, the heavier the punishment deserved.” 17151617[1966] IR 490.[2006] IECCA 134.O’Malley Sentencing Law and Practice (Roundhall Sweet and Maxwell 2000) at 403.79
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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
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: 4.05 The Commission discussed the p
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
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
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Page 142 and 143: Unlawful and dangerous act manslaug
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