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Consultation Paper on Involuntary Manslaughter

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Consultation Paper on Involuntary Manslaughter CONSULTATION PAPER INVOLUNTARY MANSLAUGHTER (LRC CP 44-2007) IRELAND Law Reform Commission 35-39 Shelbourne Road, Ballsbridge, Dublin 4 © Copyright Law Reform Commission 2007 First Published March 2007 ISSN 1393-3140 ii LAW REFORM COMMISSION Background Law Reform Commission is an independent statutory body whose main aim is to keep the law under review and to make practical proposals for its reform. It was established on 20 October 1975, pursuant to section 3 of the Law Reform Commission Act 1975. The Commission’s Second Programme for Law Reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas in December 2000. The Commission also works on matters which are referred to it on occasion by the Attorney General under the terms of the Act. To date the Commission has published 82 Reports containing proposals for reform of the law; eleven Working Papers; 43 Consultation Papers; a number of specialised Papers for limited circulation; An Examination of the Law of Bail; and 27 Annual Reports in accordance with section 6 of the 1975 Act. A full list of its publications is contained on the Commission’s website at www.lawreform.ie Membership 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 Secretary/Head of Administration: John Quirke iii Research Staff Director of Research: Raymond Byrne BCL, LLM, Barrister-at-Law Legal Researchers: John P. Byrne BCL, LLM (NUI), Barrister-at-Law Áine Clancy BCL, LLM (NUI) Philip Flaherty BCL, LLM (NUI) Caren Geoghegan BCL, LLM (Cantab), Barrister-at-Law Cliona Kelly BCL, PhD (NUI) Joanne Lynch BCL, LLM (NUI) Margaret Maguire LLB, LLM (NUI) Jane Mulcahy BCL, LLM (NUI) Tara Murphy BCL, LLM (Essex) Richard McNamara BCL, LLM (NUI) Charles O’Mahony BA, LLB, LLM (Lond), LLM (NUI) David Prendergast LLB, LLM (Lond), Barrister-at-Law Keith Spencer BCL, LLM (Dub), BCL (Oxon), Barrister-at-Law Nicola White LLB, LLM (Dub), Attorney-at-Law (NY) Administration Staff Project Manager: Pearse Rayel Executive Officer: Denis McKenna Legal Information Manager: Conor Kennedy BA, H Dip LIS Cataloguer: Eithne Boland BA (Hons), HDip Ed, HDip LIS Information Technology Officer: Liam Dargan Private Secretary to President: Debbie Murray Clerical Officer: Ann Browne Principal Legal Researcher on this Publication Jane Mulcahy BCL, LLM (NUI) iv Contact Details Further information can be obtained from: Secretary/Head of Administration Law Reform Commission 35-39 Shelbourne Road Ballsbridge Dublin 4 T: +353 1 637 7600 F: +353 1 637 7601 E: [email protected] W: www.lawreform.ie v TABLE OF CONTENTS Table of Legislation ix Table of Cases xi INTRODUCTION 1 CHAPTER 1 HISTORICAL OVERVIEW 5 A Introduction 5 B The origins of manslaughter 6 C The benefit of clergy 9 D The doctrine of “heated blood” 11 E Weapons and the foreseeability of death 13 F Constructive manslaughter and the felony-murder rule 16 G Manslaughter by gross negligence 20 H Summary 23 CHAPTER 2 UNLAWFUL AND DANGEROUS ACT MANSLAUGHTER 27 A Introduction 27 B Unlawful and dangerous act manslaughter in Ireland 27 C Judicial attempts to limit the scope of constructive manslaughter in the 19th and 20th centuries. 32 D 20th century unlawful and dangerous act cases 36 E Causation and taking victims “as you find them” 42 F Manslaughter by drug injection cases 48 G The Australian approach to unlawful and dangerous act manslaughter 52 H Subjectivist arguments for reform: moral luck, moral distance and the correspondence principle 72 I Objectivist arguments against reform: actions, consequences and tough luck 77 J Summary 81 CHAPTER 3 GROSS NEGLIGENCE MANSLAUGHTER 83 A Introduction 83 B Gross negligence manslaughter in Ireland 84 C Gross negligence developments in the 20th century leading up to The People (AG) v Dunleavy 90 D Failure to perform a legal duty 93 E Blood relationships 96 F Non-familial relationships 102 G Contractual duties and those imposed by Statute 103 H Voluntary assumption of duty 107 I Public policy, duty of care and joint criminal enterprise 107 J Manslaughter and the medical profession 113 K The Australian approach 133 vi L The difference between negligence and inadvertence 144 M Capacity and failure to take precautions against harm 146 N Summary 152 CHAPTER 4 MANSLAUGHTER AND RELATED MOTOR OFFENCES 155 A Introduction 155 B The legacy of The People (AG) v Dunleavy 157 C Dangerous driving causing death, careless driving and driving without reasonable consideration 159 D Manslaughter, specific driving causing death offences and differing levels of culpability 164 E Careless driving and death: The People (DPP) v O’Dwyer 186 F The concept of being a “criminal” and latent knowledge 195 G Summary 198 CHAPTER 5 OPTIONS FOR REFORM 201 A Introduction 201 B The relevance of the Commission’s provisional recommendations on the mental element in murder 202 C Choosing an approach to reforming involuntary manslaughter 204 D Codification of the law without reform 207 E Reforming unlawful and dangerous act manslaughter 208 (1) Moderate reform 208 (2) Radical reform: The Indian Penal Code the Model Penal Code and recklessness 216 (3) Recommendation on unlawful and dangerous act manslaughter 224 F Reforming gross negligence manslaughter 225 (1) Arguments for abolition of gross negligence manslaughter 225 (2) Moderate reform of gross negligence manslaughter 229 (3) Radical reform: negligent homicide – a lesser category of killing? 235 (4) Recommendation on gross negligence manslaughter 238 G Reforming motor manslaughter and the related statutory driving offences 239 (1) Maintaining the status quo 239 (2) Radical reform 241 H Recommendation on motor manslaughter and the related statutory driving offences 243 CHAPTER 6 SUMMARY OF PROVISIONAL RECOMMENDATIONS 245 vii TABLE OF LEGISLATION An Act to take away the Benefit of Clergy from him that 1 Jac 1 8 Eng Irl doth stab another, not having a Weapon drawn 1695 Children Act 2001 2001, No. 24 Irl Children and Young Persons Act 1933 1933, c.12 Eng Crimes (Dangerous Driving) Act 2004 (Vic) 2004, No. 59 Aus Crimes Act 1900 (NSW) Aus Crimes Act 1958 (Vic) 1958, No. 6231 Aus Criminal Appeal Act 1995 1995, c.35 Eng Criminal Code Act 1899 (Qld) Aus Criminal Damage Act 1971 1971, c. 48 Eng Criminal Justice Act 1951 1951, No. 2 Irl Criminal Justice Act 1964 1964, No. 5 Irl Domestic Violence Crime and Victims Act 2004 Eng Indian Penal Code 1860, No. 45 India Maritime Safety Act 2005 2005, No. 11 Irl Merchant Shipping Act 1981 1981, No. 33 Irl Misuse of Drugs Act 1971 1971, c.38 Eng Model Penal Code 1985 USA Non-Fatal Offences Against the Person Act 1997 1997, No.26 Irl Offences Against the Person Act 1861 24 & 25 Victoria Eng Cap. 94 Road Traffic Act 1930 1930, c.43 Eng Road Traffic Act 1933 1933, No. 11 Irl Road Traffic Act 1961 1961, No. 24 Irl Road Traffic Act 1968 1968, No. 25 Irl Road Traffic Act 1988 1988, c.52 Eng Road Traffic Act 1991 Eng Road Traffic Act 1994 1994, No. 7 Irl Road Traffic Act 2002 2002, No. 12 Irl Safety Heath and Welfare at Work Act 1989 1989, No. 7 Irl The Medicines Act 1968 1968, c.67 Eng Western Australian Criminal Code (1902) Aus ix TABLE OF CASES AG v Fitzgerald, Power and [1964] IR 458 Irl Thornton Andews v DPP [1937] 4 All ER 552 Eng Callaghan v R (1952) 87 CLR 115 Aus Crusius v R (1982) 5 A Crim R 427 Aus Daniels v Heskin [1954] IR 73 Irl Devane v Murphy (1958) Ir Jur Rep 73 Irl Dhupa Chamar & Ors v State of [2002] 3 LRI 526 India Bihar Divanovich v State [1980] (Arkansas) 607 SW2d 383 USA Dunne v National Maternity [1989] ILRM 735 Irl Hospital Elliott v C (a minor) [1983] 2 All ER 1005 Eng Hampson v Powell [1970] 1 All ER 929 Eng King v State [1987] (Alabama) 505 So 2d 403 USA Kong Cheuk Kwan v R (1985) 82 Cr App R 18 Eng Lord Dacre's Case 72 ER 458 Eng Mamote-Kulang v R (1964) 111 CLR 62 Aus McCarthy v The King (1921) 59 DLR 206 Can McCrone v Riding [1938] 1 All ER 157 Eng O' Donovan v Cork County [1967] IR 173 Irl Council Pemble v R (1971) 124 CLR 107 Aus People v Poplis [1972] (New York) 30 NY 2d 85 USA Proudman v Dayman (1941) 67 CLR 536 Aus R v Adomako [1994] All ER 78 Eng R v Akrele [1943] 1 All ER 367 Eng R v Bateman (1925) 19 Cr App R 8 Eng R v Bennett (1858) Bell 1 Eng R v Blaue [1975] 3 All ER 446 Eng R v Bottomley and Earnshaw (1903) LJ Vol 38 311 Eng R v Bradshaw (1878) 14 Cox 83 Eng R v Brown [1993] 2 All ER 75 Eng R v Caldwell [1981] 1 All ER 961 Eng R v Cato [1976] 1 All ER 260 Eng xi R v Church [1965] 2 All ER 72 Eng R v Connor (1835) 7 Car & P 438 Eng R v Cousins (2002) 36 MVR 262 Aus R v Cramp (1999) MVR 9 Aus R v Crick (1859) 1 F & F 519 Eng R v De'Zwila (2002) 37 MVR 359 Aus R v Dias [2002] Crim LR 490 Eng R v Doherty (1887) 16 Cox CC 306 Eng R v Fenton (1830) 1 Lew.
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