The reluctance of juries to convict for murder and the difficulty of proving the intention to kill in certain types of crime has led some legal practitioners to consider the abolition of the distinction between murder and manslaughter.
A crime of homicide or unlawful killing could take the place of both offences. This would, they argue, mean that there would no longer be the need to prove a "guilty mind" to prove that a murder had been committed.
Instead, a person would be charged with unlawful killing, or homicide, covering a wide range of killings from multiple slaughter through a bombing, to the killing of a spouse by an abused partner. The difference in heinousness could be measured at sentencing stage.
Ms Ivana Bacik, Reid professor of criminal law in Trinity College Dublin, has pointed out that the penalty distinction between murder and manslaughter has led to much arcane debate about the meaning of "intention". More defendants would plead guilty to murder if it did not carry a mandatory sentence, she said.
Other criminal law practitioners say that in 90 per cent of cases unlawful killing is admitted. The trial then examines whether this was murder or manslaughter. If the accused is acquitted of murder but convicted of manslaughter it can be distressing for the relatives of the victim. Having one offence of unlawful killing would reduce the number of contested cases and allow relatives to see a conviction for the most serious crime on the statute book.
However, the Law Reform Commission does not share this view. Earlier this year it published a consultation paper which proposed retaining the distinction between the two crimes, but extending the definition of murder to include cases where the intention to kill could not be proved, but where there was an "extreme indifference to the value of human life". This document was then circulated and submissions sought, which were discussed at a seminar organised by the commission yesterday.
Prof Finbarr McAuley, Jean Monnet professor of European criminal justice in UCD and a commission member, said it recognised the problem that certain killings should arguably be excluded from the definition of murder on moral grounds, although they qualified as murder because the intention to kill was present. Mercy killings were often mentioned in this context.
There was also the problem of killings which did not fall under the ambit of murder because intention to kill could not be proved. However, to attempt to deal with these problems by abolishing the distinction between murder and manslaughter would be to throw the baby out with the bath water.
The fact that the number of contested cases might be reduced was not an argument to undermine the core value underlying the distinction. Such distinctions were important because "they accord with deep moral intuitions about the essential differences between related but distinct patterns of wrongdoing".
There was also no international precedent for its abolition.
He pointed to the American Model Penal Code, which contains a formula of recklessness amounting to extreme indifference to the value of human life. This could be combined with en ding the mandatory life sentence for murder, a reform already proposed by the commission.
After the consultation process is completed, a report will be produced for the Government.