Homicide

Criminal Homicide

Criminal homicide refers to unlawful killing.  The two main categories of unlawful killing are murder, which generally requires intention, and manslaughter, which requires gross negligence or recklessness.  There is a separate offence of causing death by dangerous driving.

Murder is the most serious offence under Irish law and carries a mandatory life sentence.  A person may be liable for murder unless he is criminally insane.  See the chapter on defences.

Formerly, suicide and attempt suicide were crimes.  It is an offence to aid, abet, counsel or procure a suicide or attempted suicide by another person.

A child over 7 years can commit criminal offences.  A child under 14 years is presumed to be incapable of committing an offence, but this may be displaced by proof that he knew his actions constituted serious wrongdoing.

Killing comprises any acceleration of death. It does not matter that the person would have died, for example, from a serious disease anyway or that the killing was done to prevent suffering.  If the killing is justified, for example, in the case of self-defence, it is not unlawful.

The defendant’s actions must have caused the victim’s death.  Unlike the law of civil wrongs, there is no requirement for the victim to avoid or mitigate his injury.  A person may not have caused the death if a totally new cause intervenes or occurs.

However, there are limits to this principle.  If a person makes a reasonable attempt to escape a threat and dies in the attempt, the person causing the threat may be held to have caused the death.  An issue may arise however in relation to whether the latter person had the requisite intention or recklessness.

Murder

Murder requires that the accused intended to kill the victim or cause serious injury to the victim or another person.  It is presumed that the person intends the natural and probable consequences of misconduct. This presumption may be rebutted.

The mandatory sentence for murder is life imprisonment.  The judge has no discretion.

Capital murder is the murder of a member of the Gardai, a prison officer, murders for political reasons of foreign heads of state or diplomats, murders committed in pursuance of, certain subversive objectives.

Formerly a person convicted of capital murder was subject to the death sentence (until 1990).  It is necessary to show that the defendant knew or ought to have known or was reckless as to the possibility of the person being a member of the Gardai.

There is a separate offence of attempted murder.  It requires evidence of an intention to kill.

Manslaughter

Manslaughter coves unlawful killing, that falls short of the required intention for murder.  The actual act of killing is the same for both murder and manslaughter.  Manslaughter may be charged as an alternative to murder.  The jury may convict the defendant of manslaughter if it decides there is insufficient evidence of murder.

An act that is undertaken with the intention of causing harm (but not serious harm) may be manslaughter.  The act must be both dangerous and unlawful.  For example, the unlawful element may arise from an assault.  A deliberate failure to perform a duty causing death may result in manslaughter.  A person under a duty to maintain and supply somebody with food, who dies as a result of lack of food or medicine, may be guilty of manslaughter. The duty need not be legal.  A relationship of dependence or an assumption of responsibility will suffice.

An unlawful act or an act that involves gross negligence may cause a killing to constitute manslaughter.  The degree of negligence must be very high, bordering on recklessness.  The test is objective.  If a person runs a significant and high risk of causing substantial personal injury, he may be guilty of manslaughter.

A person convicted of manslaughter may be subject to imprisonment for up to life and/or a fine at the discretion of the court.

Provocation

Provocation is a defence to murder.  However, it does not lead to an acquittal.  It only reduces murder to manslaughter.

Provocation is any act done by the deceased to the accused which would cause a reasonable person and actually caused the accused a sudden loss of self-control so as for the moment not to be master of his own mind.  There must be a complete loss of self-control.  The circumstances must be such that any reasonable man would have acted accordingly.  The response to provocation must be proportionate. The force used must not be unreasonable and excessive.

Suicide

Prior to 1999, suicide being the intentional taking of one’s own life was a crime.  With changing social attitudes to mental health and well-being, suicide was decriminalised.

It remains a crime for a person to aid, abet, counsel or procure the suicide of another or an attempt by another to commit suicide.  This offence is subject on conviction on indictment to imprisonment up to 14 years.

The giving of general advice on suicide is not sufficient to commit the crime unless it is given to a specific person who in fact commits or attempts to commit suicide.

The refusal to take medical treatment would not constitute suicide.  Provided the person was capable of making a decision, it does not necessarily have to be correct or rational.  Persons are generally allowed to let nature take his own course the courts are reluctant to force treatment.

Where a person requests another to kill him by way of suicide, that other person may be guilty of murder.  The wilful killing is sufficient intent to, notwithstanding the motive of the perpetrator or the consent of the victim.

The courts have refused claims of persons for assisted suicide where the person is incapable of killing himself, typically due to some degenerative condition.  The principle of refusing assisted suicide is not inconsistent with the European Convention on Human Rights protection on privacy.  The issue has also been litigated in Ireland with a similar outcome.

Infanticide

Infanticide is the murder of a child under 12 months old by his or her mother.  It is a lesser crime than murder.  It is rationalised by a combination of factors such as post-natal depression and concerns at societal pressures, motivating the killing of illegitimate children.

A woman is guilty of infanticide if

• by any wilful act or omission, she causes the death of a child under the age of 12 months
• the circumstances are such that it would have amounted to murder and
• at the time of the act or omission, the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or a mental disorder (Under the Criminal Law (Insanity) Act), consequent on the birth of the child.

The woman may be tried for manslaughter and convicted.  It may be dealt with on the same basis as if she had been convicted of manslaughter on the grounds of diminished responsibility.

Concealing a Birth

It is an offence to conceal the birth of a child.  The offence was enacted to provide for prosecution of cases where it was difficult to prove the live birth of a child.

The child must have been born.  Every person who endeavours to conceal the birth is guilty and may be charged with the offence.  The offence is subject to imprisonment of up to two years.

The child must have been born alive.  The mere abandonment of the body is not enough.  There must be an attempt to conceal it.  Concealment must be general rather than specific to individuals.  Denial of birth is not sufficient.  Concealment of the fact of birth is not sufficient.

Death by Dangerous Driving

Death by dangerous driving is an offence under the Road Traffic Act.  Dangerous driving is driving in a public place in a manner, including speed, which having regard to all the circumstances of the case (including the condition of the vehicle, nature, condition, and use of the place, and the amount of traffic), as it then actually is or might reasonably be expected to be, is dangerous to the public.

Dangerous driving causing death may be prosecuted on indictment or summarily Dangerous driving may be prosecuted summarily even though death is caused.  The maximum sanction is 10 years’ imprisonment or fine of up to €15,000 euro on conviction on indictment. In summary conviction, it is subject to up 6 months’ imprisonment or fine of up to €2,500.  In order to be dangerous, the driving must be such that there is a direct and serious risk of harm to the public.

The test is objective, and it need not be proved that they actually knew of that risk.  Driving while intoxicated is likely to constitute dangerous driving.

Corporate Manslaughter

Liability for offences against persons may seem not to be an issue for business.  However, it is possible for businesses and even companies to be liable for offences, even for corporate manslaughter.  Issues can arise in relation to employees and responsibility for employees.  Generally, liability for the actions of employers will not apply to deliberate criminal behaviour.

A company may be convicted of manslaughter.  The underlying managers/directors are looked at as the controlling parts of the company. It is necessary to identify somebody with enough control who could be equally prosecuted himself.  The person concerned must be effectively the controlling mind of that company.  Prosecutions for corporate manslaughter are very rare.