What are the principles established in Reilly v Judge Pattwell?
- The moral gravity of the offence.
- The social stigma attached to the offence.
- The penalty.
- The ease (or difficulty) with which a duty is discharged or the law obeyed.
- Whether or not absolute liability would encourage obedience.
- The ease or difficulty with which the law might be enforced.
- The social consequences of non-compliance.
- The desideratum (something that is needed or wanted) to be achieved when considering the statutes.
What are the Dunne principles?
(i) Medical treatment
Causation in homicide may be broken by exceptionally negligent medical treatment (as in Jordan, where the victim was administered medication to which the medical personnel had reason to know he was intolerant), but it is not disrupted by conventional treatment even if there is evidence that the treatment offered might not have been the best available (Smith). Nor is it broken if the reason for a failure to provide appropriate treatment is a decision by the victim to refuse such treatment (Blaue).
(ii) Withdrawal of life support does not break the chain
A lawful and ethically proper decision to withdraw life support where there is a diagnosis of brain death does not mean that the original injury did not cause death if the injury inflicted is still an operational cause of the death ( Malcherek and Steel).
(iii) Withdrawal of invasive medical treatment by choice does not break the chain
It is an aspect of the Constitutional right to life that, in an appropriate case, a decision may be made that it is in the best interests of a patient to withdraw medical treatment of an invasive nature (In Re A Ward of Court). That decision can involve a choice to let nature take its course where continuation of such treatment serves no curative purpose. Where such a decision is made, the cause of death remains the original injury unless there has been, in the intervening period, a true novus actus interveniens.
(iv) Definition of novus actus interveniens- independent
A novus actus interveniens in this context would be something that is so independent of the act of the accused that it should be regarded in law as the cause of death. The fact that the immediate cause of death is an act by a third party does not necessarily break the chain of causation where that act is brought about by the act of the accused and is itself lawful and reasonable (Pagett- girls as human shild, convicted of manslaughter).
What was the reasoning in R v G to have subjective recklessness? 4
- it is a salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable.
- R v Caldwell is capable of leading to obvious unfairness- jury felt it is unfair- due to age could not see the risks - Liability of those (such as the very young and the mentally handicapped) who were not normal reasonable adults
- criticism of R v Caldwell expressed by academics, judges and practitioners should be ignored
- the majority’s interpretation of “reckless” in section 1 of the 1971 Act was, as already shown, a misinterpretation
What is the test for gross negligence in Dunleavy?
- that the driver fell below the expected standard
- there was a casual link between the negligence and the death
- the negligence was of a higher standard, than the negligence required in the civil process
- that there was a risk of substantial personal injury
What did Murray say about presumption of mens rea?
that the section should be read as requiring mens rea for all the elements
Why mens rea read in?
- new offence
- clear in the act that it was an offence different to murder- distinction in penal severity between murder and capital murder
- It would be repugnant to reason and fairness if the death penalty were to depend on the outcome of what, in effect, would have been a lottery as to the victim’s occupation and activity
- why enacted- to deter capital murder even more as police has no guns - think even more carefully
Henchy J dismissed the idea that to be guilty of capital murder one would need to intend to murder a Garda
- could never operate if Garda in plain clothes - largely remove the application of the legislation from a substantial section of the police force
What did Murray say about recklessness?
A person may be found guilty of the capital murder of a Garda if it is shown (a) that he murdered the Garda and (b) that he was reckless as to whether his victim was a Garda acting in the course of his duty
‘A person acts recklessly with respect to a material element of an offence when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.’
the test of her guilt for capital murder as well as murder must be a subjective one
she did not know anything from which she could infer or advert to the fact that he was such a member, and as she was not recklessly indifferent as to whether he was or not
What are the Gammon principles?
“(1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;
(2) the presumption is particularly strong where the offence is ‘truly criminal’ in character;
(3) the presumption applies to statutory offences, and can be displaced only if this is **clearly or by necessary implication **the effect of the statute;
(4) the only situation in which the presumption can be displaced is where the statute is concerned with an **issue of social concern, and public safety **is such an issue;
(5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.”
