Homicide in Ireland: Reviewing the case-law

Murder in Ireland is covered by section 4 of the Criminal Law Act [1964] with section 4(2) stating that a person is presumed to have intended the natural and probable consequences of his action (this can be rebutted). Murder is not defined in the criminal law, however it is taken as when a man of sound memory and age of discretion unlawfully kills any person in rerum natura with malice. Manslaughter, on the other hand, is the unlawful killing of another person which is not constituted as murder and is currently divided into two broad categories. The first is involuntary manslaughter which is when there is an unlawful killing as a result of necessary force, provocation or diminished responsibility, and involuntary manslaughter which is the unlawful killing where the mens rea was to commit harm, not serious harm. This was exemplified in the case of DPP v McLoughlin. Manslaughter is when there is excusing circumstances (such as provocation) which reduces the offence from murder to manslaughter. The main distinction between murder and manslaughter therefore is the state of mind of the accused at the time of killing. In both contexts, a person has died. Murder carries a more serious punishment and is considered a more morally serious crime than manslaughter as the murderer is morally culpable than a person guilty of manslaughter. The mens rea of murder is intention to kill or the intention to cause grievous bodily harm and the test for mens rea is a subjective one.

As is usual in criminal law, the burden of proof rests with the prosecution to establish the accused's guilt which extends to any disproving ordinary defences. The only exception being the case of a defence of insanity, whereby the accused must prove insanity on the balance of probabilities. A question which arises in terms of defences, is whether honest belief in necessity of force used equal murder of manslaughter. Walsh J in the case of AG v Dwyer [1972] established the test for this stating as follows:

1. If the fatal force used is (objectively) reasonably necessary, it is lawful and therefore an acquittal must be the outcome.

2. If the fatal force used is (objectively) more than necessary, it is unlawful and a conviction must be one of murder.

3. In the case of excessive force (subjectively) honest belief in its necessity will reduce the offence from murder to manslaughter.

Case Law - Murder

In DPP v Smith [1961], the accused Jim Smith was ordered by a police constable to stop his car which contained stolen goods, however Smith accelerated instead. The police constable jumped onto the car, falling off which subsequently led him to being killed by another oncoming car after Smith violently swerved the car. Smith was initially convicted of murder and on appeal to the CCA, the conviction was substituted for a conviction of manslaughter. The prosecution subsequently appealed the manslaughter convictions to the House of Lords, who held that the subjective test was applicable to the mens rea of intent for murder and as such, there was no mis-direction and the murder conviction was re-instated. Where the accused is capable of forming an intent in that he is not insane nor suffering from diminished responsibility, any actual intention is immaterial, and the mens rea test for a conviction of murder is what in all the circumstances the ordinary reasonable man would have contemplated to be the natural and probable result of the grievous bodily harm done.

In the case of DPP v Dunne [2014], the accused shot his friend with a sawn of shotgun at close range. The victim was then brought to hospital where he was left in a comatic state and remained in permanent vegetative state until died of suspected pneumonia. Pathologist stated that he had died from bronchial pneumonia caused by vegetative state in turn caused by brain injury suffered as a result of gun-shot wound. Sole question was one of causation – and the trial judge directed the jury on the issue in accordance with the case of DPP v Davis [2001]. Convicted of murder, with the subsequent appeal of the defendant dismissed.

The case of R v Clegg [1995] involved the appellant, a soldier, who was on duty with a patrol in Northern Ireland. The purpose of the patrol was to catch joyriders, but that had not been explained to the appellant. As a stolen car approached at speed, the appellant fired three shots at its windscreen.After the car had passed him, he fired a fourth shot into the back of the car. It struck and killed a passenger. The appellant was charged with murder.The judge, sitting without a jury, accepted the appellant's defence that he had fired the first three shots in self-defence or in defence of a colleague. He found, however, that the fourth shot had been an aimed shot fired with the intention of causing death or serious bodily harm and that the appellant could not have fired it in self-defence or in defence of his colleague since, the car having passed, they had no longer been in danger. He convicted the appellant.The Court of Appeal in Northern Ireland dismissed the appellant's appeal against conviction, holding that the firing of the shot that had killed the passenger had been, on the facts found by the judge, a grossly excessive and disproportionate use of force. They certified as a point of law of general public importance the question whether a soldier on duty who killed a person with the requisite intention for murder but who would have been entitled to rely on the defence of self-defence but for the use of excessive force was guilty of murder or manslaughter.On appeal by the appellant:-Held , dismissing the appeal, that where a person used a greater degree of force in self-defence than was necessary in the circumstances he was guilty of murder; that there was no distinction to be drawn between the use of excessive force in self-defence and the use of excessive force in the prevention of crime or in arresting an offender; and that it made no difference that the person using it was a soldier or police officer acting in the course of his duty.

DPP v Hull [1996] the facts of the case were that the accused, who was in love with a woman who did not love him back and had a partner, had gone to the partner's home with a shotgun in his hand in a plastic bag. The accused proceeded to ring the doorbell when the victim opened and saw him and managed to shut the door to prevent the accused from coming in. The accused then discharged the gun at the door, however Hull claimed that firing it was accidental. Such assertion if proved, could rebut the required section 4(2) of the Criminal Justice Act [1964] of mens rea, that the accused intended to natural and probable consequences of his conduct. The jury were faced with the task of determining the persuasiveness of the prosecution that the firing of the gun was deliberate. Hull was convicted of murder and subsequently appealed on the grounds that the trial judge inadequately presented the charge against the accused containing both legal and factual errors and the issue predominantly centred on the mens rea required for murder. Convictions held.

Case Law - Manslaughter

In the case of AG v Crosbie & Meehan [1966], Crosbie and Murphy were charged with the murder of Murphy after a melee developed in Dublin docks whereby Murphy was allegedly stabbed by Crosbie. The men were acquitted of murder but convicted of manslaughter. The trial judge directed the jury in the case as to the intent (mens rea) necessary to constitute the crime of murder and the crime of manslaughter. The trial judge stated, "if you use a knife as a weapon for the purposes of causing serious injury intentionally and death results it is murder. If you carry a knife for purposes of frightening somebody and you kill that person in the process, that would be manslaughter unless one is covered by self-defence." The defendants appealed on the basis that the trial judge had misdirected the jury on the necessary requirement needed to fulfil the mens rea of intention. The case is authority for an act causing death must be unlawful and dangerous to constitute the offence of manslaughter, and dangerousness of act is judged by objective standards as it is "irrelevant that the accused did not think that the act was dangerous."

DPP v Hendley [1993] - in this case the accused was convicted of manslaughter of his wife. He appealed on the grounds that the judge had misdirected the jury on the ingredients required of the crime of manslaughter. The case involved the accused grabbing and strangling his wife in front of a neighbour who alleged the accused stated to her "watch me strangle her." The woman was later found dead thirty minutes later. The offence began as a charge of murder, but upon hearing evidence from medical experts as to the reason for her death which was due to a tear sustained in the victims liver from struggling during the assault, rather than the strangle itself. The conviction of manslaughter held.

In the case of R v Moloney [1985], the accused and victim had been celebrating the ruby wedding anniversary of the accused’s grandparents. Victim was the accused’s stepfather. They had both been drinking heavily. Victim claimed that even with his crippled arm, he could outload, outdraw and outshoot the accused. They put claim to the test. Unfortunately, the accused one and blew off the. Victim’s head with a twelve-bore shotgun. The accused said that he had no idea that by shooting the gun, he would injure his stepfather. Convicted of murder. The House of Lords allowed appeal but substituted a conviction for manslaughter (on grounds of gross negligence or recklessness) for there was no doubt that the accused acted with a ‘high degree of recklessness.’

In the recent case of DPP v Da Silva [2019], Da Silva was assaulted by two men who also target him with racial and sexual comments. Following the assault, Da Silva followed the men to the top of the street where he had armed himself with a knife and attacked the two men, stabbing and killing one of them. He was found guilty of manslaughter, on account of the defence of provocation.

Defences in Homicide cases

Provocation - the defence of provocation was recently considered by the Irish courts in the case of DPP v McNamara [2020]. The rationale which underpins the defence of provocation is that it is a partial-defence substituting a murder conviction for a conviction of manslaughter. The defence of provocation was first tested in the case of DPP v MacEoin [1978]. The appeal responded to widespread criticisms of the previous objective test of the courts towards a subjective test. Focus on effects provocation has on the mind of the individual accused, whether it was such to cause in him/her sudden/complete loss of self-control. If evidence exists that accused was provoked, the trial judge must leave it to the jury to decide whether the prosecution managed to remove any reasonable doubt.

The case of DPP v Hyam [1974] notes how the response of the accused should be in the "heat of the moment" and that the jury must examine the time in-between the events, and to question if there has been "time for passion to cool." Lord Kilbrandon expressed the view that murder and manslaughter should be amalgamated to form a crime of unlawful homicide in respect of which the judge would have a discretion as to sentencing. Only on the most heinous facts would the accused receive life imprisonment. This reform would receive the support of those involved in or supporting euthanasia. The defences of provocation, diminished responsibility and killing in pursuance of a suicide pact, which reduce murder to manslaughter, could be abolished. The argument against is that there should be marked a category for those particularly serious killers, and the crime of murder, perhaps with the deletion of the intent to cause grievous bodily harm, reflects that moral distinction. This principle is sometimes known as ‘fair labelling’.

In DPP v Kelly [2000], Barrington J noted, “the question they have to decide is not whether a normal or reasonable man would have been so provoked by the matters complained of as totally to lose his self-control but whether this particular accused with his peculiar history and personality was so provoked.” More recently, in the case of DPP v Almasi [2018], the court stated that “to justify the plea of provocation, there must be a sudden, unforeseen onset of passion which, for the moment, totally deprives the accused of his self-control.”

Self-defence - The defence was used in the case of AG v Keatley [1954], when the defendant was involved in a violent fracas outside a chop shop and was hit on the head with an instrument from behind. He claimed he was in fear of his life and stated that the facts do not disclose circumstances of proportionality. The case set out the test for lawful use of fatal force as a four-tier test:

1. The use of force was necessary.

2. The force used was not more than necessary.

3. The applicant was not acting in a sprit of revenge, retaliation or with a desire to fight.

4. Lawful use of force encompasses protection of oneself, of others or of property.

The defence of self-defence has since been adapted as a two-tier one as encompassed in the case of DPP v Quinn [2015] which was later confirmed by the case of DPP v O'Brien [2016].

1. Honestly belief to use force for one of the five purposes as established in section 18(1) of the Non-Fatal Offences Against the Person Act [1997] and

2. If force was reasonable in the circumstances the defendant honestly believed them to be. Both elements of the test are subjective and the jury must be directed of this.

In the case of DPP v Brannigan [2017], Edwards J commented that the “test to be applied to self-defence is undoubtedly subjective at all stages” and how force used must be “reasonable in the circumstances as he/she believed them to be” objective unreasonableness doesn’t matter against honest belief of danger.

Insanity - Before 1935 it was said that where the accused had caused the victim’s death, he had to show that he did not have the mens rea for murder. Lord Sankey's infamous phrase in the case of Woolmington v DPP [1935] how "Throughout the web of the English criminal law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt" does not explain this exception in the defence of insanity, yet common law in the defence of insanity, the burden of proof rests on the accused to prove that he was insane at the time of the offence, rather than on the prosecution and the standard of proof is on the 'balance of probabilities.' This means that in effect that if it is more likely than not that the accused was insane, he has the defence.The case of DPP v Heffernan [2017] confirmed this, “the defence of insanity has always imposed a burden of proof on the accused. The same considerations arise with diminished responsibility.”

The case of Sodeman v R [1936] stated this standard and the legal reason assigned for this exception in criminal law is that every person is presumed to be sane; therefore, the accused must prove insanity. In the case of M’Naghten (1843) highlighted that if the jury are not certain either way, the accused does not have this defence. The principal justification for reversing the burden of proof is that the accused has some particular knowledge. For instance, in the crime of possessing articles for suspected terrorist purposes, the defendant has to prove that the articles were not for a terrorist purpose; that information is within his knowledge. In DPP, ex parte Kebilene [2000], Lord Hope referred to the nature of the threat (e.g. terrorism) which the statutory provision is designed to combat. Lord Steyn, with whom Lords Slynn and Cooke agreed, said that the reverse burden of proof found in the Prevention of Terrorism Act 1989 could be read as merely placing the evidential burden on the accused.

The Law Commission Report on Homicide in Ireland

The main issue stated by the LRC is the law governing mens rea in homicide cases as the legal meaning is "uncertain." The lack of clarity is unsatisfactory, given that murder is the most serious offence on the statute book. As such, the LRC in their Consultation Paper on Homicide [2003] recommended that the fault element of murder is expanded to embrace reckless killing manifesting in extreme indifference to human life in order to allow for foresight to be brought within the definition while still retaining a subjective approach. The LRC report on Imputed Criminal Intent it stated that (a) murder is commonly understood to mean the intentional killing of another human being; and, unless there are strong reasons which justify a contrary course, it is generally desirable that legal terms should correspond with their popular meaning. Further, (b) to limit intent in murder to the intent to kill is not to disregard the very serious nature of causing death by the infliction of grievous bodily harm, but . . . if such an offence were to be treated as manslaughter only, it could nevertheless be punished by a maximum penalty as severe as the penalty prescribed for murder . And (d) . . . [A] man should not be regarded as a murderer if he does not know that the bodily harm which he intends to inflict is likely to kill.