THE DISTINCTION between murder and manslaughter creates a crucial distinction between intentional and less culpable forms of homicide, according to the Director of Public Prosecutions.
James Hamilton was speaking to an international conference of the Society for the Reform of Criminal Law in Dublin yesterday.
He said in most murder trials the issue was not whether the accused killed the victim, but whether he intended to kill him or cause serious injury, this being the distinction between murder and manslaughter.
Some commentators argued that the mandatory life sentence for murder led some accused people to refuse to plead guilty, gambling that they would get a verdict of manslaughter at trial.
It had been argued that a single offence of homicide would lead to a greater number of guilty pleas and a saving of court time and resources. The distinction between the different levels of culpability would then be decided at sentencing stage.
However, he said this could lead the accused person who pleaded guilty to argue that the killing was not intentional in an attempt to reduce their sentence.
“In such circumstances the sentencing hearing would become a mini-trial in which the facts surrounding the murder would have to be determined.”
He said the right to trial by jury is constitutionally mandated under Article 38.5 of the Constitution.
This had been interpreted as meaning that all relevant issues of fact must be left to the jury, and “the shadow of unconstitutionality” would fall over legislation which sought to deprive them of any portion of their fact-finding role.
This meant that in cases other than murder, to which a mandatory life sentence applies, any move to attribute a greater fact-finding role to the sentencing judge would be constitutionally suspect.
He also said if there was a dispute as to the factual basis on which an accused was pleading guilty, it may be necessary for the prosecution to refuse to accept the guilty plea.
He said this issue frequently arose in his office when there was a murder charge and a guilty plea to manslaughter was offered.
“It can be essential from the sentencing point of view that the prosecution is able to explain the basis on which the plea is accepted.”
This created a difficulty for the prosecutor in accepting a guilty plea on the basis that the jury was only likely to bring in a conviction for manslaughter.
In his address to the conference Mr Justice Paul Carney reiterated views expressed a month ago in University College Cork when he said that murder cases coming before the Central Criminal Court fell into three broad categories: gangland crime, killings where members of the immigrant community kill one another and the “mixed bag” of wife killings, family rows and rows in drink.
Referring to killings within immigrant communities, he said: “The domestic community has in my opinion never become particularly excited about this category of killing because it concerns one member of a non-national group killing another. This category of killing did not exist before the arise of the Celtic Tiger.”
He said gangland killing also did not attract public concern until recently, when “as a matter of routine, innocent women and children are now being caught in the crossfire”. He stressed that where there was evidence to go before a jury in relation to gangland killings, a jury will act on it and convict.