RepoRt HOMICIDE: muRdeR and involuntaRy manslaughteR (lRc 87 – 2008) report HOMICIDE: murder aNd iNvoluNtary maNslaughter (lrc 87 – 2008) © copyright law reform commission 2008 First published January 2008 ISSN 1393-3132 i law reForm commissioN THE LAW REFORM COMMISSION’S ROLE the law reform commission is an independent statutory body established by the Law Reform Commission Act 1975. the commission’s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. since it was established, the commission has published over 130 documents containing proposals for law reform and these are all available at www.lawreform.ie. most of these proposals have led to reforming legislation. the commission’s role is carried out primarily under a programme of law reform. its Third Programme of Law Reform 2008-2014 was prepared by the commission following broad consultation and discussion. in accordance with the 1975 act, it was approved by the government in december 2007 and placed before both houses of the oireachtas. the commission also works on specific matters referred to it by the attorney general under the 1975 act. since 2006, the commission’s role includes two other areas of activity, statute law restatement and the legislation directory. statute law restatement involves the administrative consolidation of all amendments to an act into a single text, making legislation more accessible. under the Statute Law (Restatement) Act 2002, where this text is certified by the attorney general it can be relied on as evidence of the law in question. the legislation directory - previously called the chronological tables of the statutes - is a searchable annotated guide to all legislative changes. after the commission took over responsibility for this important resource, it decided to change the name to legislation directory to indicate its function more clearly. ii HOMICIDE: murder aNd iNvoluNtary maNslaughter MEMBERSHIP the law reform commission consists of a president, one full-time commissioner and three part-time commissioners. The commissioners at present are: President: The hon mrs Justice catherine mcguinness, former judge of the supreme court Full-time Commissioner: Patricia t. rickard-clarke, solicitor Part-time Commissioner: Professor Finbarr mcauley Part-time Commissioner: Marian shanley, solicitor Part-time Commissioner: Donal o’donnell, senior counsel iii law reForm commissioN Law REFORM RESEARCH Staff Director of Research: Raymond byrne bcl, llm (Nui), Barrister-at-law Legal Researchers: Áine clancy bcl, llm (Nui) Kate dineen llb, llm (cantab) Philip Flaherty bcl, llm (Nui), diop sa gh (Nui) Eleanor leane llb, llm (Nui) Margaret maguire llb, llm (Nui) Richard mcNamara bcl, llm (Nui) Jane mulcahy bcl (law and german), llm (Nui) Gemma Ní chaoimh bcl, llm (Nui) Verona Ní dhrisceoil bcl (dlí agus gaeilge), llm (Nui) Jane o’grady bcl, llb (Nui), lpc (college of law) Charles o’ mahony ba, llb (Nui), llm (lond), llm (Nui) Nicola white llb, llm (dub) attorney-at-law (Ny) Joanne williams llb, llm (Nui), barrister-at-law StatUTE Law REstatEMENT Project Manager for Restatement: Alma clissmann, ba (mod), llb, dip eur law (bruges), solicitor Legal Researchers: John p. byrne bcl, llm (Nui), barrister-at-law John Kenny llb, llm (cape town), barrister-at-law Eimear long llb, barrister-at-law LEGIslatION DIRECTORY Project Manager for Legislation Directory: Deirdre ahern llb, llm (cantab), dip e-commerce (law society), solicitor Legal Researchers: Eóin mcmanus ba, llb (Nui), llm (lond) Tina o’ reilly bcl (law and german), llm (Nui) iv HOMICIDE: murder aNd iNvoluNtary maNslaughter ADMINIstratION Staff Secretary/Head of Administration: John Quirke Higher Executive Officer: Alan heade Executive Officers: Emma Kenny Darina moran Peter trainor Legal Information Manager: Conor Kennedy ba, h dip lis Cataloguer: Eithne boland ba (hons), hdip ed, hdip lis Clerical Officers: Ann browne Ann byrne Liam dargan Sabrina Kelly PRINCIPAL LEGAL RESEARCHER FOR THIS REPORT Jane mulcahy bcl (law and german), llm (Nui) v law reForm commissioN COntaCT DEtaILS Further information can be obtained from: Secretary/head of administration Law reform commission 35-39 shelbourne road Ballsbridge Dublin 4 TELEPHONE: +353 1 637 7600 FAX: +353 1 637 7601 EMAIL: [email protected] WEBSITE: www.lawreform.ie vi HOMICIDE: murder aNd iNvoluNtary maNslaughter ACKNOWLEDGEMENTS the commission would like to thank the following people who provided valuable assistance: Senator Ivana Bacik, reid professor TCD The Hon Mr Justice Robert Barr, Former Judge of the high court The Hon Mr Justice Declan Budd, Judge of the high court Mr Conal Boyce, solicitor, boyce, burns & co Mr Noel Brett, ceo road safety authority Mr Tom Cahill, bar council, barrister-at-law Ms Collette Carey, criminal law committee, law society of ireland The Hon Mr Justice Paul Carney, Judge of the high court The Hon Mr Justice Peter Charleton, Judge of the high court Ms Siobhán Dunne, Mr Peter W Ferguson, advocate, scotland Mr Maurice Gaffney sc The Hon Mr Justice Hugh Geoghegan, Judge of the supreme court The late Mr Brendan Grogan sc Mr James Hamilton, director of public prosecutions Dr John Harbison, former state pathologist The Hon Mr Justice John Hedigan, Judge of the high court Mr Brendan McArdle, formerly detective sergeant of an garda síochána His Honour Judge Pat McCartan, Judge of the circuit court Professor Paul McCutcheon, head of school of law ul Mr Paul Anthony McDermott, barrister-at-law Mr Patrick McEntee sc The Hon Mr Justice Aindreas Ó Caoimh, court of Justice of the european communities The Hon Mr Justice Kevin O’Higgins, Judge of the high court Mr Caoimhín O’hUiginn, formerly assistant secretary at the department of Justice, equality and law reform Mr Simon P O’Leary, Former law reform commissioner Mr Paul O’Connor, school of law ucd Mr Stephen Pye, office of parliamentary counsel Mr Dara Robinson, criminal law committee chairman, law society of ireland Dr John Stannard, senior lecturer in law, Queen’s university belfast Mr Kieron Wood, barrister-at-law Professor Stanley Yeo, National university of singapore however, full responsibility for this publication lies with the commission. vii viii TABLE OF CONTENTS Table of Legislation xi Table of Cases xiii INTRODUCTION 1 CHAPTER 1 THE MURDER/MANSLAUGHTER DISTINCTION AND THE LABELLING OF CRIMINAL OFFENCES 5 A Labelling and moral culpability 5 B Maintaining the murder/manslaughter distinction 6 C The mandatory life sentence for murder 12 CHAPTER 2 MURDER: THE CURRENT LAW AND ISSUES 25 A Introduction 25 B Murder in Ireland 25 C Murder in England and Wales 35 D Issues relating to murder 41 (1) Are there morally culpable killings currently outside the definition of murder, which ought to be punished as murder? 41 (2) Should intention to cause serious injury continue to form the mens rea for murder? 43 (3) Should “serious injury” be defined? 47 CHAPTER 3 MURDER: PROPOSALS FOR REFORM 51 A Introduction 51 B Incorporating recklessness into the mental element in murder 51 C Retaining implied malice murder 62 D Implied malice: recklessness as to serious injury? 64 E Defining “serious injury” 65 F The Commission’s recommended definition of murder 68 CHAPTER 4 INVOLUNTARY MANSLAUGHTER: THE CURRENT LAW AND ISSUES 75 A Introduction 75 B Manslaughter in Ireland 75 C Unlawful and dangerous act manslaughter: the present law 79 D Issues relating to unlawful and dangerous act manslaughter 80 (1) Should low levels of violence, which unforeseeably result in death be treated as unlawful and dangerous act manslaughter or as assault? 80 E Gross negligence manslaughter: the present law 84 ix F Issues relating to gross negligence manslaughter 88 (1) Should the capacity of the accused to advert to the risk or meet the expected standard be a relevant consideration in gross negligence manslaughter cases? 88 (2) Should the risk be raised to one of “death” or “death or serious injury” in the gross negligence manslaughter test? 89 (3) Should gross negligence manslaughter be abolished and replaced by a lesser homicide category such as negligent homicide? 92 G Motor manslaughter and the related driving offences: the current law 93 CHAPTER 5 INVOLUNTARY MANSLAUGHTER: OPTIONS FOR REFORM 95 A Introduction 95 B Unlawful and dangerous act manslaughter 95 (1) Low levels of deliberate violence which unforeseeably cause death 96 (2) Manslaughter by drug injection 106 C Gross Negligence Manslaughter 108 D Motor manslaughter and the related driving offences 112 CHAPTER 6 SUMMARY OF RECOMMENDATIONS 117 APPENDIX DRAFT HOMICIDE BILL 2008 121 x TABLE OF LEGISLATION Canadian Criminal Code 1985 1985, c. C-46 Can Children Act 2001 2001, No. 24 Irl Corporate Manslaughter and Corporate Homicide Act 2007 2007, c. 19 Eng Criminal Justice (Temporary Release of Prisoners) Act 2003 2003, No. 34 Irl Criminal Justice Act 1951 1951, No. 2 Irl Criminal Justice Act 1964 1964, No. 5 Irl Criminal Justice Act 1990 1990, No. 16 Irl Criminal Justice Act 2003 2003, c. 44 Eng Criminal Justice Act 2006 2006, No. 26 Irl Criminal Law (Insanity) Act 2006 2006, No. 11 Irl European Convention on Human Rights Act 2003 2003, No. 20 Irl Homicide Act 1957 1957, 5 & 6 Eliz. Eng II c. 11 Indian Penal Code Act 1860 1860, No. 45 India Maritime Safety Act 2005 2005, No. 11 Irl Merchant Shipping Act 1981 1981, No. 33 Irl Model Penal Code 1985 USA Non-Fatal Offences Against the Person Act 1997 1997, No. 26 Irl Offences Against the Person Act 1861 1861, 24 & 25 Eng Vict. c. 100 Safety, Health and Welfare at Work Act 1989 1989, No. 7 Irl The Criminal Code Act 1902 (WA) 1902, 1 and 2 Aus Edw. VII No. 14 xi TABLE OF CASES Andrews v DPP [1937] AC 576 Eng Boughey v The Queen [1986] 161 CLR 10 Aus Cawthorne v H.M.