Consultation Paper on the Mental Element in Murder

By Órla Gillen, Wednesday, 21st March 2001 | 0 comments
Filed under: 2001.



Press Release

Law Reform Commission issues Consultation Paper on the Mental Element in Murder

The Law Reform Commission has now published its Consultation Paper on the Mental Element in Murder. This paper is the first in a series of papers which will be published by the Commission on the subject of Homicide. It undertakes a review of the mental element in murder in Irish law, and the Commission makes several provisional proposals for reform.

Section 4 of the Criminal Justice Act, 1964 defines the mental element in murder as an intention to kill or to cause serious injury. There is a possibility, however, that the fault element in murder under this legislation may be narrower than might be appropriate in that it can be interpreted as confining the ambit of murder to situations in which the accused purposely kills. On this interpretation, the formula excludes from the realm of murder cases in which the accused may be able to raise the doubt that, whether reasonable or not, he only intended, for instance, to frighten or seriously injure his victim. An example would be a terrorist who puts a bomb in a building which is timed to detonate at 2:00am but which goes off instead at 2:00pm, killing a number of people. His direct purpose is to frighten and make a political statement rather than to kill, but he must have been aware that his actions created a substantial risk that death could occur. Thus, arguably, he is as morally culpable  as someone who intends to kill and he should be convicted of murder.

One of the main tasks which, in the Commission's view, needs to be undertaken is to import greater clarity into this area of the law, particularly in relation to the meaning of "intention". There is little Irish authority on this matter, but in England the concept has been interpreted as including situations where the actor foresees death as a virtually certain result of his actions, even where it may not be his conscious purpose or object to kill. Following this construction, however, a killing cannot be considered murder, irrespective of how culpable the risk taken by the actor may be, unless the actor foresees death as a virtually certain consequence of his actions.  This excludes many forms of risk-taking and recklessness which, it can be strongly argued, should not be morally distinguishable from an intention to murder.

In examining the law in this area, the Commission carried out a comparative study of nine other jurisdictions - England, Canada, Australia, India, Scotland, the United States of America, South Africa, Italy and Germany - in order to draw up the most comprehensive definition possible.

The Consultation Paper makes several provisional recommendations and invites further submissions from members of the public before the 31st June 2001. Following this the Commission will hold a seminar bringing together experts and practitioners in the field with a view to coming up with concrete recommendations for a Report on  this subject. The provisional recommendations made in this paper include broadening the mental element for murder to embrace certain types of reckless killings, retaining the distinction between murder and manslaughter and retaining an intention to cause serious injury as part of the mental element in murder.

The law regarding homicide is complex and lacks clarity, causing even experienced practitioners and academics difficulty. In the Commission's view, the law is in great need of reform. It is hoped that this Consultation Paper can begin this process of reform by sparking discussion and debate on the topic, and that the eventual result  will be a far more simplified and clear formulation of this most important area of the law.

For further  information, contact the Law Reform Commission, Tel: 6377600, Fax:  6377601, Email:  or visit our website at