The killing of a human being by another is referred to as homicide.  Some homicides may be justifiable such as by reason of accident, misadventure, self-defence or execution of lawful orders.  In highly exceptional circumstances, a homicide may be justifiable in the course of a riot in effecting an arrest or preventing escape or in times of war.

Murder and manslaughter are distinct offences at common law.  Significant aspects of the crimes have been supplemented by legislation notwithstanding that the core elements of the crime remain are common law in origin.

Legislation creates the offence of conspiracy to murder and separate offences for threatening to kill or cause serious harm. In some cases, a person who may not be tried for murder may be tried for manslaughter.

An Irish national may be tried for murder and manslaughter in Ireland for an offence committed abroad.  The victim need not be an Irish national.  Where a person suffers an unlawful and ultimately fatal attack whether in Ireland or abroad and subsequently dies in Ireland, the person responsible may be tried in Ireland.

Mental Element

The mental element of murder at common law was described, traditionally, as malice aforethought.  This does not require ill-will or prior intent.  Express malice existed where a person intended to kill the particular person who was killed or another person who was in fact killed.

Universal or general malice existed where there was an intention to kill some person but without caring who is killed. Implied malice consisted of an intention to cause grievous bodily harm which resulted in a killing. Constructive malice consists of an intention to commit a felony or to oppose lawful authority which resulted in a killing.

The above common law definition of the requisite intent has been narrowed and reformed by statute.  A person may not be guilty of murder unless the accused intended to kill or cause serious injury to some person whether the person is actually killed or not.  The accused person is presumed to have intended the natural and public consequences of his conduct.  This presumption may be rebutted.

Required Intent

There must be an intention to kill the person killed or another person or to cause the person killed or another, serious injury.

The intention may be inferred from the surrounding circumstances.  Where particular consequences follow in the normal course of things, it may be presumed to be intended.

At one time, the absence of a body was an impediment to a murder prosecution. However, this is no longer the case, where it is otherwise proved that the victim was killed.


The killing of a person which prevents an atrocious crime, including the prospective murder of another, may be a justifiable homicide.  Killing would not be justified for less serious offences.

Self-defence extends to the accused himself and others connected to him. The accused must have believed on reasonable grounds that his life was in danger and the use of force was reasonably necessary.  The onus is on the prosecution to show beyond a reasonable doubt, that what the accused did was not by way of self-defence.

The threat must be imminent.  Where the accused offers evidence of self-defence the onus remains on the prosecution to negate the possibility of self-defence.  The matter may be left to the jury provided there is some basis upon which self-defence may be found on the evidence. It is a question for the jury as to whether the use of force in the circumstances was reasonable and proportionate.

There is no right to defend property of itself.  Legislation clarifies that one does not have to retreat in one’s dwelling house.  However, a person may not kill a burglar, simply because he is a burglar.

Unnecessary Force

The use of unnecessary force may constitute manslaughter.  If the force is excessive, it may be murder.  Where a person who is subject to a violent and felonious attack endeavours by way of self-defence to prevent the attack by force, and upon doing so exercises more force than necessary, but no more than he honestly believes necessary, may be guilty of manslaughter and not murder.

All persons including members of Garda Síochána must avail of every means of defence before making use of firearms.  The degree of force must be moderate and proportionate in the circumstances Firearms should not be deployed without a grave threat to life or limb.  The use of lethal force must be necessary.

Causation I

It is an element of murder that the accused has caused the death of the victim concerned.  There must be legal and factual causation.  Factual causation is causation in fact.  Legal causation may include consequences and causes that are imputed.

Factual causation is generally tested by reference to a “but for” test.  Legal causation is narrower.  If the act contributed to the death of the victim in a material way, the jury should apply principles of common sense, in considering whether the accused caused the death.  The appeal courts recommend in the instruction to the jury, that they should not be confused by refined distinctions in relation to material effect or substantial or predominant cause.

The accused need not have undertaken a physical act.  If the accused causes the deceased person, for example, to jump out of a window, he may be deemed to have caused the death.  The accused must take the victim as he finds him.  The so-called eggshell principle applies.

If a person suffers more serious injuries than a person of ordinary fortitude or physical strength would, he is still responsible and is deemed to have caused the death.  He may not however have the requisite intention. In a famous case, the accused stabbed a Jehovah’s Witness.  The victim refused to take a blood transfusion and died.  The accused was held responsible.

Causation II

Any acceleration of death can be its effective cause for legal purposes. A person is deemed to have caused another person’s death, if he accelerates it in any way.  The acceleration of the death of a person who is dying may lead to criminal responsibility.

If a new effective cause intervenes, this may break the chain of causation and responsibility.  However, when the new and act is attributable to the deliberate and unlawful actions of the accused, the chain may not be broken.

At common law, the death was required to occur within a year and a day of the infliction of injuries, for the person to be held legally responsible for the death.  This rule was abolished in 1999 and no longer applies.  Where, however, the last act occurred before the act passed, the principle continued to apply.

An unborn foetus is not the subject of a murder or manslaughter charge not having been born.  That may be an offence in by procurement of an abortion.

Incomplete Offences

Attempted murder is an offence at common law.  There must be an intention to kill.  An intention to cause serious injury is not sufficient.

Section 4 of the Offences against the Person Act provides for the offence of conspiring or soliciting another to commit murder.  This is subject to imprisonment of up to ten years.

The Non-Fatal Offences against the Person Act provides that is an offence to threaten to kill or to cause serious harm to another, is subject on conviction on indictment to imprisonment for up to ten years.


The mandatory sentence for murder is life imprisonment.  The death sentence has been abolished.

The Criminal Justice Act 1964 removed the death penalty for all offences other than the murder of a Garda Síochána and certain other categories It established the offence of capital murder.  The Criminal Justice Act 1990 abolished the death penalty.

The Constitution was amended in 2001 to provide that no law may be enacted imposing the death penalty.

Capital Murder

The special offence murder applies to the murder of a member of a Garda Síochána and the prison officer act in the course of his duty or murder in further in certain offences, under the offences against the State Act or course of further activities of an unlawful organisation.  It also applies to the murder of a prison officer or murder for a political motive of the head of state or the member of a government or diplomatic officer of a foreign state or an attempt to commit such murder. It is a distinct offence to murder.

The offence requires the ordinary elements of murder and the existence of certain further proofs.  The accused must be aware of the relevant element or be reckless as to whether it exists.  The relevant element is whether the above circumstances exist, i.e., whether the victim is a member of the Garda Síochána acting in the course of his duty etc.

The offence is subject to a minimum sentence of 40 years. A 20-year minimum sentence applies to an attempt to commit a murder.

The power to remit the sentence is very limited. The power of temporary release is restricted.  Temporary release is only available for grave reasons of a humanitarian reason and must be of limited duration.


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