Supreme Court quashes manslaughter and endangerment convictions due to flawed jury charge and failure to prove recklessness.

[2007] IESC 46

THE SUPREME COURT

481/04 and 464/04

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

BETWEEN:

FERGAL CAGNEY

APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

BETWEEN:

RONAN McGRATH

APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Hardiman delivered the 25th day of October, 2007.

1. This is an appeal, brought pursuant to s.29 of the Courts of Justice Act, 1924, from the judgment and order of the Court of Criminal

Appeal delivered the 27th day of May, 2004. By that judgment and order the Court of Criminal Appeal (Denham J., O Caoimh J., and

Butler J.), dismissed the respective appellants’ applications for leave to appeal. This leave has been sought to appeal their

convictions, after a trial by judge and jury, of the offence of endangerment. The trial took place between the 17th June, 2002, and

the 26th June, 2002, inclusive. Each appellant had been charged with the offence of manslaughter of one David Langan and also with

the offence of endangerment, contrary to s.13 of the Non-Fatal Offences Against the Person Act, 1997. Ronan McGrath was also

charged with a third offence, now irrelevant, which was withdrawn from the jury by the judge in the course of the trial.

2. The relevant charges against these appellants were as follows:

Count 1.

Statement of Offence.

Manslaughter contrary to Common Law.

Particulars of offence.

Ronan McGrath and Fergal Cagney on the 30th August, 2000, at Grove Road in the County of the City

of Dublin did unlawfully kill one David Langan.

Count 2.

Statement of offence.

Reckless endangerment contrary to s.13 of the Non-Fatal Offences Against the Person Act, 1997.

Particulars of offence.

Ronan McGrath and Fergal Cagney on or about the 25th August, 2000, at Grove Road in the County of the City of

Dublin did intentionally or recklessly engage in conduct which created a substantive risk of death or serious harm to

another.

3. Each accused was acquitted on Count No. 1, manslaughter, but convicted of Count No. 2, endangerment. It is common case that

each offence related to David Langan i.e. in terms of the statute, that David Langan is the “other” referred to in the endangerment

charge.

4. The jury at the trial reached its verdicts after a deliberation exceeding seven hours in length. The conviction was, in each case, by

a majority of ten jurors to two.

5. The deceased, David Langan, was nineteen years old at the time of the events leading to his death. Ronan McGrath was also

nineteen and Fergal Cagney was then seventeen years old. None of the three had any previous convictions or had come to the

attention of the gardaí. The two appellants have not come to the unfavourable attention of the gardaí since the events of August,

2000 either. The evidence at the trial was that they were most unlikely to re-offend, and this was accepted by the learned trial

judge. Each received a sentence of fifteen months imprisonment. Having regard to the issues raised on appeal, each was admitted to

bail shortly after the conviction and has remained on bail since. The two appellants are cousins.

The facts.

6. The factual background to the death of Mr. Langan can be shortly stated. The deceased and the two accused attended a night

club and bar called the Palace, on Camden Street, Dublin. When they left, the deceased, for reasons unknown, laid hands on Mr.

McGrath and threw him into the shutters which had been lowered at the entrance to the premises. After this, the deceased and the

two appellants, together with other acquaintances, walked a distance of about 600 yards southwards to Portobello Bridge. The

apparent reason for this was that the junction of Rathmines Road and Grove Road, which runs west along the southern bank of the

Grand Canal, was thought to be a good place for getting taxis, which all present intended to do. Mr. McGrath, however, resented

what Mr. Langan had done to him outside the Palace and on several occasions shouted at him inquiring why he had treated him in

that way. Mr. McGrath was regarded by some at least of those present as aggressive in view of what happened to him. Some of his

friends walked with him, ready to restrain him if necessary. Equally, it was common case that Mr. Cagney had been calm and good

humoured on the journey from the Palace to Portobello Bridge and that his endeavours were directed at “keeping the peace”, a phrase

used by several of the witnesses, clearly referring to keeping the peace between Mr. McGrath and Mr. Langan.

7. The physical location at Portobello Bridge was minutely described in the course of the trial. The bridge spans the Grand Canal,

between South Richmond Street on the North side and the Lower Rathmines Road on the South side. Immediately to the west of the

bridge are the old 18th century lock workings consisting of a lock chamber and two sets of lock gates. On the Rathmines side these

are separated from the roadway and associated pavement by a low wall, the top of the lock workings being a foot or two below

street level. One can cross the canal either by the main Portobello Bridge or by a plank bridge attached to the lock gates, as at least

one of the witnesses did.

8. It appears that, when the party of young men who had been in the Palace nightclub came to the Grove Road area to look for taxis,

Messrs. Langan and McGrath were in closer proximity to each other than they had been on the walk up to Portobello Bridge. There

was a confrontation between them. This was vocal and noisy enough to awaken a man who was sleeping in his apartment in an

adjacent block of flats. Mr. McGrath was restrained by one of the witnesses, Mr. Thomas Rooney. Mr. Cagney interposed himself

between Mr. McGrath and Mr. Langan. The two last mentioned “started squaring up before each other… they got in each others

face”, to use phrases from Mr. Rooney’s evidence. Rooney then grabbed Mr. McGrath by his jacket “… and then [McGrath] told Fergal

(Mr. Cagney) to hit David”. He continued “And then when Ronan asked Fergal to hit him he went and hit him… Ronan said ‘Hit him

Fergal’.”

9. Mr. Rooney said Mr. Cagney hit the deceased with the heel of his hand around the ear or just above the ear, meaning the left ear.

10. Mr. Cagney, on the other hand, made statements to the gardaí and answered questions posed by them in which he said he had

indeed struck Mr. Langan, but did so in self defence when Mr. Langan came towards him with his hands raised. Mr. Cagney said he did

not hear Mr. McGrath saying “Hit him”. It was common case that, shortly after being struck, Mr. Langan had fallen on the road and on

being attended to by the group present appeared to be unconscious. He did not subsequently recover consciousness and died on the

30th August in hospital. There was however some dispute as to whether he fell close to where he was hit, as the prosecution

suggested or about eleven metres away, as the appellants contended. The blow or blows struck by Mr. Cagney was described as not

being a boxers’ blow. This description is not precise or helpful, but does not suggest a planned or skilfully struck blow.

The medical evidence.

11. The only relevant charges are the two set out above. Specifically, there was no charge of assault. In course of argument on this

appeal counsel for the Director could not offer any specific explanation as to why the endangerment charge was brought, and no

assault charges were brought, but he indicated that the weakness of the manslaughter case, as perceived by the prosecution,

related to causation i.e. to the difficulty of proving that the deceased’s death had been caused by the blow struck by Mr. Cagney.

12. The medical evidence at the trial was principally that of Professor John Harbison, then the State Pathologist and of Mr. Allcutt,

Consultant Neurosurgeon.

13. Dr. Harbison had occupied the position of State Pathologist in a most distinguished manner since 1974 and had unrivalled

experience in post mortem examination in cases of suspicious death. His thoroughness and impartiality were well known to all who had

dealings with him.

14. The deceased had been taken to St. James’s Hospital in the first instance, where he was assessed, and subsequently transferred

to Beaumont Hospital which has a specialist neurosurgical unit. A doctor from St. James’s, Dr. Phelan, said that, on admission, the

deceased had a wound to his scalp at the right side towards the back, not quite in the middle of the back of the head, a little to the

right of that. When he went for a brain scan it showed that he had bruising to his brain at that site and also on the opposite side at

the front. This latter injury was referred to as the contrecoup injury i.e. an injury in the left front of the brain caused by a trauma to

the right rear of the head, and was fully discussed in evidence by Dr. Harbison.

15. The deceased was intubated to help him breathe and transferred to Beaumont Hospital. He was received there by Mr. Allcutt,

Consultant Neurosurgeon. He said:

“His injuries appear to be confined to his head. We noted that he had a laceration and some associated bruising over the

back of his head which had already been sutured in St. James’s Hospital”.

16. He confirmed the position of the wound as described by Dr. Phelan. Scans confirmed the existence of contusions in the left frontal

region as also mentioned by Dr. Phelan. X-rays revealed swelling in the brain which produced raised inter-cranial pressure which in the

end became uncontrollable. By the 30th August, 2000, the deceased had suffered brain stem death.

17. Dr. Harbison performed a post mortem some months after these events, on the 18th December, 2000, after the deceased’s body

had been exhumed. He described the deceased as “a large young man” and he found:

“a fracture of the right side of the back of his skull with bruising of the overlying muscles this fracture and bruising were

consistent with a fall, as a result of which the right side of the back of his head struck an immovable object, which I

presume was the ground.

I could not give an exact cause of death from this examination because the brain had already been cross-sectioned by

Professor Farrell who is an expert neuropathologist.

this appears to have been a fall, his head hit the ground with considerable force sufficient to cause a fracture at the base

of his skull.” (Emphasis added)

18. Prosecuting counsel elicited that Dr. Harbison was aware that it had been alleged that the deceased had been struck in the face

on the left hand side prior to his fall. The doctor said:

“So I had been informed. I carried out an extensive dissection of the skin of the head, including the entire face, and found

no evidence of any deep facial bruising, although the overlying skin of the left cheek was considerably darkened. In the

absence of bruising, or bleeding, beneath this dark area, I could not corroborate an allegation of a blow to that site.

The deep bruising of the right side of the back of the head was the only injury to the head.

It must be borne in mind however that if the deceased had been caught off balance, or was inebriated - that is drunk - a

push could have toppled him over and thus he could have incurred his fractured skull.” (Emphasis added)

19. Dr. Harbison then gave the blood alcohol reading of the deceased as taken about the time he was brought to St. James’s Hospital

at 192mg per 100ml and conceded in cross-examination that it might have been higher at the time of the episodes, perhaps at the

level of 210mg per 100ml.

20. Dr. Harbison then discussed the findings of the post mortem conducted immediately or very shortly after death by Dr. Farrell,

Neuropathologist. It was he who used the term contrecoup to describe the injury to the front of the brain. Dr. Harbison said that it

was “a French word meaning ‘opposite blow’ with coup referring to the ‘actual blow’ or ‘forcible contact’, here involving the right

inferior cerebellar hemisphere (the injury to the back of the head).” The cause of death identified at the first post mortem was the

compression of his brain stem due to the accumulation of blood and swelling in his brain. He said “The contact with the ground which

caused the fracture was at the right back of the head, and therefore the brain would suffer its maximum injury front left.”

21. It appears that it was the omission, in the first post mortem results, to identify evidence of a blow, or to posit a blow as a

necessary part of the sequence to events leading to death, which perturbed the prosecution.

The charges.

22. The medical evidence summarised above was of course within the knowledge of the prosecution when they framed the charges

against the two appellants. As mentioned above, those in charge of the prosecution were concerned about weakness in the evidence

linking the blow(s) struck by Mr. Cagney to the brain stem damage suffered by the deceased. The only externally visible injury on the

deceased was the injury to the back of his head which two doctors said was consistent with a fall. The State Pathologist said that

the level of intoxication of the deceased would be likely to cause “in-coordination” which he defined as a propensity to fall. He said

that an intoxicated person might also fall easily in response to a push, or being mildly unbalanced, by tripping, or otherwise.

23. In this state of the evidence, it is easy to see why a prosecutor would wish to bring another charge in case the manslaughter

charge could not be sustained either because of the difficulty in showing causation or for any other reason. The most obvious

alternative reason why it might fail would be if Mr. Cagney’s allegation of an attack by Mr. Langan were accepted by the jury, or were

found to create reasonable scope for self defence, or a reasonable doubt on that issue.

24. The most obvious alternative charge to that of manslaughter was some form of assault charge, either in the basic form of

common assault or its statutory equivalent (s.2 of the Non-Fatal Offences Against the Person Act) or in one of its aggravated forms.

Section 2 assault would expose a person of conviction to a penalty of up to six months imprisonment: s.3 assault, assault occasioning

harm, would expose him to a penalty of up to five years imprisonment and an unlimited fine. Assault occasioning serious harm exposes

a person on conviction to imprisonment for life and an unlimited fine. In the circumstances of the present case, it is obvious that any

difficulties that might be thought to attach to proving that the appellant Mr. Cagney’s actions caused the death of the deceased

would also attach to proving that they caused serious harm to him.

25. In any event, none of these options were taken by the prosecution who instead opted to charge both accused with the offence

of endangerment. This is a statutory offence created by s.13 of the Act of 1997 which provides as follows:

“13(1) A person shall be guilty of an offence who intentionally or recklessly engages in conduct which creates a substantial risk of

death or serious harm to another.

(2) A person guilty of an offence under this Section shall be liable -

(a) On summary conviction to a fine not exceeding €1,500 or to imprisonment for a term not exceeding twelve

months or both or

(b) On conviction on indictment to a fine or imprisonment for a term not exceeding seven years or to both.”

26. It will be seen that a major feature of this offence is that it resides in the creation of the risk of death or serious harm, and not

the accomplished reality of either. Secondly, the penalty on indictment exceeds that available for all but the most serious form of

assault.

27. The question certified by the Court of Criminal Appeal in this case, pursuant to s.29 of the Act of 1924, is as follows:

“Is the offence of endangerment contrary to s.13 of the Non-Fatal Offences Against the Person Act, 1997 capable of

being construed so as to cover circumstances such as in the instant case?”

28. This is an important question. In the first place, this appears to be the first case where the offence created by s.13 has been

fully considered by the appellate courts. It will be seen that the offence itself is general in scope and not specific, so that it may be

applied after the event to events which are not obviously criminal in themselves and whose legality or otherwise cannot be accurately

assessed in advance. For example, would the terms of the statute extend to an omission to assist an individual in circumstances

which, perhaps, would involve some risk to an intervener? Does it extend to actions done with the alleged victims consent, as in the

context of extreme sports? These are important questions and the fact that the answers to them are not immediately apparent

indicates just how radically the law has (or, at least, may have been) altered by s.13.

The offence of endangerment.

29. It is beyond doubt, and was accepted by the learned trial judge (transcript of the hearing of the 26th July, 2002, p.28) that the

death of the unfortunate deceased man, Mr. Langan, was unintentional.

30. In this case, the two counts were left to the jury in the following way. Prosecuting counsel (transcript F, p.18) told them that:

“ if you decide not to convict on manslaughter, you must then go on to consider reckless endangerment, because they

both relate to the same incident, they are alternatives for the purpose of your decision.”

31. It should however be noted that in Charleton et al Criminal Law (Butterworths Ireland, 1999), the comment is made at p.735,

during a discussion of the offence of endangerment:

“If death does occur, murder or manslaughter should be charged depending on what may be proven.”

32. In the judgment of the Court of Criminal Appeal in this case, delivered by Denham J., considerable attention was paid to the

recommendation of the Law Reform Commission which led to the enactment of the offence constituted by s.13 of the 1997 Act.

Indeed it was said that:

“This offence came to the Statute Book subsequent to the recommendation of the Law Reform Commission: Report on

Non-Fatal Offences Against the Person (LRC 45 - 1994), hereinafter referred to as the Law Reform Commission Report.

The Act of 1997 repealed a large portion of the Offences Against the Person Act 1861 and is a reform of the law

The Law Reform Commission envisaged that this would not be an offence to replace existing offences. Rather it would be

a supplement, a residual generic offence.”

33. In my view, this observation of the Court of Criminal Appeal is evidently correct. The Law Reform Commission, in the sections of

its report quoted in the judgment of the Court of Criminal Appeal, observed that the creation of a general offence of this kind is not

an easy matter or one to be undertaken lightly: there is a danger of “unduly extending the scope of the criminal law.” But the offence

has been enacted and the legislature’s decision in that regard must be respected. There is however a possibility that the Section

might be interpreted over-broadly so as to cover circumstances which the legislature had not considered, and to criminalise certain

things which are not and were not intended to be the subject of prohibition. I have given an example earlier in this judgment, relating

to a possibly criminal omission to act in particular circumstances. Equally, the question may arise of whether the consent of the

person allegedly endangered to run a risk, if established, is of any relevance: this could clearly be a crucial matter if a person is killed

while engaging voluntarily in a dangerous sport. This question is not addressed in the statute.

34. From a legal and constitutional point of view, it is a fundamental value that a citizen should know, or at least be able to find out,

with some considerable measure of certainty, what precisely is prohibited and what is lawful. Thus, in Attorney General v.

Cunningham [1932] IR 28 O’Byrne J. said at the Court of Criminal Appeal:

“The offence as charged in the indictment is one of maliciously firing into a dwellinghouse and it seems to us that the

proper question for our determination is whether that is, at Common Law, an indictable offence. In considering that

question the Court must have regard to the fundamental doctrine recognised in these courts that the criminal law

must be certain and specific, and that no person is to be punished unless and until he has been convicted of an

offence recognised by law as a crime and punishable as such”. (Emphasis added)

35. Equally, in King v. Attorney General [1981] IR 223, Kenny J. said:

“It is a fundamental feature of our system of government by law (and not by decree or diktat) that citizens may be

convicted only of offences which have been specified with precision by the judges who made the common law, or

offences which, created by statute, are expressed without ambiguity… in my opinion both governing phrases (in s.4 of

the Vagrancy Act, 1824) ‘a suspected person’ and ‘reputed thief’ are so uncertain that they cannot form the

foundation for a criminal offence.” (Emphasis added)

36. In the present case, there was no root and branch attack on the Section by suggesting that it was inconsistent with the

Constitution, and it is of course entitled to the benefit of a presumption of constitutionality. Nevertheless the obvious potential for

conflict with the fundamental value that crimes must be defined with precision and without ambiguity so that the criminal law is

“certain and specific” require that this notably open ended Section be carefully, and indeed strictly, construed in accordance with

fundamental principles of law and of construction.

37. Considerations of the same sort, in my view, make it undesirable that so vague and open ended a Section should be used in

circumstances such as those of the present case where the actions of the defendants as alleged by the prosecution would clearly

constitute an established and recognised criminal offence, viz. assault in one or other of its variants. In those circumstances, in my

view, it is desirable that the obvious offence should be charged. This is for the same reason as led Mr. Justice Charleton and his co-

authors of the work cited above to suggest that where death does occur manslaughter or murder should be charged, depending on

what can be proven, rather than endangerment. I wish specifically to endorse that sentiment and to express concern about the

bringing of a charge of endangerment in all its uncertainty where a more specific charge is available. With regard to the mental

element of the offence, I agree with what is said in the judgment about to be delivered by Mr. Justice Geoghegan.

38. The Law Reform Commission Report, which features so heavily in the judgment of the Court of Criminal Appeal, contains a good

deal of interesting historical material. Amongst the fruits of their researches is the fact that, prior to the beginning of the Victorian

era, a Commission in the former United Kingdom recommended the creation of a general offence such as that created here by s.13.

This is a factor of great historical interest: it must however be balanced against the fact that this advice was not taken and that the

Victorian legislatures instead preferred to rely on a great number of highly specific offences such as the provision of the Offences

Against the Person Act, 1861, which prohibits (on pain of life imprisonment) the throwing of stones or other implements at moving

trains. Indeed, to this day there is in the U.K. no such general offence as that provided in this jurisdiction by s.13. Any conclusion

about why people long since dead acted as they did is of necessity speculative but, having regard to the terms of the report of the

Law Reform Commission itself, it seems quite likely that the Victorian legislators were careful not “unduly to extend the scope of a

criminal law” and not to create a criminal offence whose parameters were uncertain so that they could not be predicted in advance

and might lead to the criminalisation of an activity which the legislature had not decided to criminalise and might have decided not to

criminalise. It is one of the glories of the Common Law tradition of civil liberties that in general it is safe to proceed on the basis that

what is not prohibited is allowed (nullum crimen sine lege): this situation can only be preserved by taking care that the criminal law is

“certain and specific”, in the words of O’Byrne J., cited above.

39. Since the Law Reform Commission has undertaken such conspicuous historical research it may be appropriate to point out that, as

long ago as 1815, the House of Commons repealed a Thames Police Act passed the previous year because, unknown to the

legislators, by a “pious fraud” a clause which banned swimming in the river had been slipped in. The banning of swimming in public

places was then a major preoccupation of the Evangelical lobby, led in Parliament by William Wilberforce M.P. Another M.P. of that

remote date said that “ this is one of those melancholy evils which result from an itch for legislating which prevails in the subordinate

offices of the State”. A similar attitude may have informed the omission to act on the Report to which the Law Reform Commission

refers (see Wilson Decency and disorder - the age of Cant - 1789 - 1837, Faber and Faber 2007).

40. It is inconceivable, in my view, that a s.13 charge would have been preferred in this case were it not for the fatality. Four

doctors gave statements or reports to the prosecution, at least two of whom had a special professional interest in head injuries.

None, however, were asked to opine on whether the blow or blows said to have been struck by Mr. Cagney were such as to create a

“substantial” risk of death or serious harm to a healthy nineteen year old in Mr. Langan’s position, or whether there were grounds to

advert to such a risk on the facts proved. Alternatively, such a drastic result might have been improbable, unlikely, odd or even

freakish. The omission to explore this topic may be due to a failure adequately to consider the mental element of the offence created

by s.13 or of the state of recklessness in general, or to notice that an element of advertence is required in either case.

41. Instead of offering medical or other evidence on this topic, the prosecution appears to me to have proceeded on the basis that

the fatality itself was the indicator of the existence of a substantial risk. No other evidence of the existence of such risk was offered.

This is both illogical and ignores the obvious fact that huge risks are often taken without any actual consequence at all while tiny

risks, unpredictably and improbably, may result in catastrophe.

42. In this case, the s.13 offence was left to the jury as an “alternative” to manslaughter without any explanation from the

prosecution or the learned trial judge of the sense in which the second charge was alternative to the first.

43. I am of the opinion that s.13 is often presented as an alternative to a jury who may not fully understand the seriousness of the

offence created by that Section, in the hope that the jury may think it is a trivial or technical offence only. In my view, if the State

prefers a charge as an “alternative” to another, the sense in which it is an alternative and the circumstances in which the alternative

may become relevant, should be explained. This is always done in dealing with the classic alternative charges of stealing and receiving

(now handling stolen property). In this case, no explanation of any kind was given other than the statement quoted elsewhere in this

judgment. This mode of proceeding, in my opinion, was not fair to the defendants or to the jury. On the hearing of this appeal, where

naturally there was no jury, the prosecution frankly referred to their possible difficulties in proving causation. They may have felt that

to do this in the presence of the jury would have gravely undermined their chances of a conviction on the manslaughter charge. This

approach made the s.13 charge, not an alternative in any real sense, but a fall back. If there was genuine doubt as to causation,

there should not have been a conviction of manslaughter in any event and in fact the appellants were acquitted on that charge. But

the case was left to the jury on the basis that the prosecution told them that the endangerment charge was alternative to

manslaughter without further explanation. The prosecution did not discuss the elements of the offence of endangerment but left that

to the trial judge; they offered no assistance when he charged the jury without referring to the need for advertence.

44. There is further evidence of confusion on the part of the prosecution as to what, precisely, these defendants were guilty of (if

anything) and why. In the State’s written submissions to the Court of Criminal Appeal it was contended that:

“There was evidence from which the jury was entitled to infer that Fergal Cagney by allowing himself to become the

instrument of his cousin’s rage against David Langan, shared his intention to do the deceased serious harm.”

45. By reason of s.4 of the Criminal Justice Act, 1964, that mens rea, if established, would have made the defendants guilty of

murder, assuming causation were proved between the alleged assault and the death. This was a very extraordinary submission to

make in the case of two defendants each of whom had already, prior to the submissions being filed, been acquitted of manslaughter in

respect of the same incident. They had never been charged with murder. Neither in the Court of Criminal Appeal, nor in this court,

was any attempt made to stand over this submission, which raises the question of why it was made in the first place. As already

noted, the learned trial judge accepted that the death of the deceased was unintentional.

46. The new statutory offence created by s.13 took its rise from the Law Reform Commission Report quoted aptly and extensively in

the judgment of the Court of Criminal Appeal. As that report makes clear, it was designed to fill a gap and not merely to provide an

alternative. If an alternative to a charge of manslaughter is needed, because of difficulty in proving causation or otherwise, it already

exists in the form of assault either in its basic form or in some aggravated form. In this respect there is no “gap” to be filled in a case

like the present.

47. The Law Reform Commission was, as I have already pointed out, conscious that an offence of this sort might constitute an undue

expansion of criminal liability. It considered however that:

“The undue expansion of liability may be avoided, in the view of the Commission, by limiting the offence:

(a) To acts of advertent risk taking i.e. recklessness; and

(b) To such acts as create a substantial risk of death or a serious harm to another person. Recklessly placing

another in danger of injury less than ‘serious harm’ should not be covered and the circumstances must be

sufficiently serious to create a ‘substantial risk’ of such harm, this being a question of fact for determination on the

evidence (at para. 9.243).” (Emphasis added)

48. This is a very significant quotation, not least because it defines recklessness as advertent risk taking. This aspect of the

requirements of the offence were extensively discussed by defence counsel, in particular Mr. Murphy S.C. for Mr. Cagney, in applying

for a direction at the end of the prosecution case but does not seem to feature at all in the charge to the jury. Moreover, a passage

of the judgment of the Court of Criminal Appeal at p.21 is open to the interpretation - it is not possible to say more - that advertence

is required only as to the external actions said to constitute the conduct of the defendant or the actus reus of the offence. The

relevant passage is as follows:

“Thus the constituent parts of the offence as applicable may be construed as the applicant intentionally or recklessly,

engaging in conduct, which created a substantial risk of death or serious injury to David Langan. Considering this aspect

of the matter the Court is satisfied also that it was within the trial judge’s jurisdiction to leave this matter to the jury”.

49. This formulation, in my view, fails to make it clear that recklessness involves not merely the taking of a risk but the advertent

taking of the risk. The Courts (as the Court of Criminal Appeal pointed out in this case), are not of course bound by the views of the

Law Reform Commission on this or any other question. However, it appears to me that the well established principles of law in relation

to recklessness amply support the Commission’s view that this offence, when committed recklessly as opposed to intentionally,

requires advertence. It is to this point that I now turn.

50. On the hearing of this appeal it was submitted on behalf of Mr. Cagney, referring to the portion of the judgment of the Court of

Criminal Appeal quoted above:

“On this analysis the requirement for mens rea extends only to the physical act or omission of the accused, and the

question of substantial risk of death or serious harm is to be assessed objectively without regard to the state of mind of

the accused the insertion of commas around the phrase ‘engages in conduct’ suggests that the requirement for intention

or recklessness relates only to the conduct and not to the substantial risk of death or serious harm created thereby. Such

an analysis is inconsistent with the requirement for a guilty mind. Indeed, it is submitted, that it may be said of the

offence of endangerment that the substantial risk of death or serious harm is the very gist of the offence and therefore

the ordinary requirement for proof of a guilty mind with respect to that element applies.”

51. I believe that this submission is well founded. I would prefer rephrase the summary of the Section offered by the Court of Criminal

Appeal (quoted above) as follows:

“Thus the constituent parts of the offence as applicable may be construed as the appellant intentionally or recklessly

engaging in conduct which creates a substantial risk of death or serious injury, to which he has adverted, to another.”

52. I believe that this approach is consistent with the authorative statement of the requirements of recklessness in this jurisdiction.

The locus classicus on this topic is the decision of this Court in DPP v. Murray [1977] 360. The law on recklessness in Ireland is, by

virtue of this decision, in decided contrast with that applied in the United Kingdom in such cases as Elliott v. C. (A Minor) [1983] 2

AER 1005. There, a mentally retarded fourteen year old girl was found guilty of a serious offence because the Court applied an

objective test for recklessness and held that she had taken a risk, the possible consequences of which was obvious to the ordinary

individual, even if not to her. As a result of the judgment in Murray, an accused in Ireland must have foreseen the risk that his

conduct would bring about the relevant result, but have elected to proceed with his conduct nonetheless. The superiority of this

approach is perhaps indicated by the fact that, in the English case cited, Goff LJ said that he would prefer to reach the opposite

result, but felt precluded from doing so. (See .1012h of the report).

53. Murray was the well known case in which two defendants were charged with the (capital) murder of a garda. The issue was, so

far as relevant here, whether the mens rea must extend not only to an intention to cause death or serious injury but the knowledge

of, or at least recklessness about, the victim’s status as a member of An Garda Síochána. In the Murray case, this distinction literally

was the distinction between life and death: the defendants would have been liable to a death sentence if the mens rea were

restricted in the manner for which the prosecution contended.

54. Walsh J. in the Supreme Court said:

“It is well established that, unless a statute either clearly or by necessary implication rules out mens rea as a constituent

part of a crime, a court cannot find a person guilty of an offence against the criminal law unless he has a guilty mind. It

has been pointed out earlier in this judgment that s.4 of the Act of 1964 makes murder an offence of specific intent. A

person cannot be guilty of a capital murder of a Civic Guard in the course of his duty unless that person intends to murder

a Civic Guard in the course of his duty or intends to do serious injury to a Civic Guard in the course of his duty, and that

injury causes the death of the guard. To intend to murder, or to cause serious injury to, a Civic Guard in the course of his

duty is to have in mind a fixed purpose to reach that desired object. Therefore, the state of mind of the accused person

must have been not only that he foresaw but also willed the possible consequences of his conduct. There cannot be

intention unless there is also foresight, and it is this subjective element of foresight that constitutes the necessary mens

rea.”

55. Henchy J. said:

“Once the prosecution proved (as they clearly did) that the appellant Marie Murray murdered Michael Reynolds, it was

necessary for a conviction on the capital offence to prove the further mens rea of intention (or recklessness, its

alternative in the law of mens rea in this context) as would be required if the charge were one of assaulting a police

officer in the course of his duty. That, in my judgment, is the mens rea required for the element in the capital murder

charge which referred to a member of the Garda Síochána acting in the course of his duty.”

What, then, was the state of her mind? Its importance is that the test of her guilt for capital murder as well as murder

must be a subjective one. The Court of trial was not entitled to judge her by what a reasonable person would have done

in the circumstances, but it was entitled to evaluate what she did in the light of what she must have adverted to at the

time”.

56. The test of recklessness in this context is well stated in the Model Penal Code drawn up by the American Law Institute:

‘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 risk must be of such a nature

and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its

disregard involves culpability of a high degree.’ ” (Emphasis added)

57. It appears to me that, despite the extensive submissions made on this point at the trial by Mr. Murphy S.C., the prosecution

continued to treat the offence as one which did not require any advertence by the defendant to the serious risk of death or harm.

The prosecution expressly contended for an objective standard, saying, in reply to Mr. Murphy’s submission:

“The next point is made in relation to the second count, the substantial risk of serious harm. I say there certainly is

always a substantial risk of serious harm if one deliberately strikes another a blow, and that comes within what is

considered in the question of reckless endangerment.”

58. As already remarked, the learned trial judge in his charge to the jury did not at all advert to the question of the mental state

required to constitute recklessness but rather bypassed the issue by simply quoting the words of the Act and analysing them in a way

fundamentally similar to the analysis of the Court of Criminal Appeal, quoted above.

The contrast with manslaughter.

59. The omissions referred to in the last section of this judgment are, in my opinion, all the more significant when one considers the

very considerable degree of overlap between the charge under s.13 and the charge of manslaughter of which the defendants were

both acquitted.

60. In Charleton et al, cited above, manslaughter is described as follows:

“Manslaughter occurs where the accused kills the victim in one of the following circumstances:

(1) Intending to kill or cause serious injury while lacking self control to an act of provocation;

(2) Being in a situation where he is entitled to use force against the victim or to use as more force than was

objectively necessary but no more that he honestly believed to be necessary;

(3) Where the death of the victim is caused by a criminally negligent act or omission;

(4) By an assault;

(5) By a criminal and dangerous act.

61. It is clear from a consideration of the facts of this case, summarised at the start of this judgment, that the manslaughter alleged

here fell into the fourth and/or fifth category and that, for the purpose of this case they overlap because the “criminal and dangerous

act” can only be the assault alleged. Equally, the same assault is the “conduct” relied upon for the purpose of the charge under s.13

of the 1997 Act. There is, therefore, a huge overlap on the facts between the two charges. Moreover, the state of mind alleged

against the defendants appear to be the same in each case, recklessness. So complete is the overlap between the charges that, but

for one factor, I would consider the conviction on the s.13 charge to be inconsistent with the acquittal on manslaughter. This saving

factor is that of causation, considered at some length above. There was, as the Director pointed out at the hearing of this appeal,

genuine scope for the jury to be unconvinced that the action in question caused the death of the deceased.

62. That, in my opinion, is in the circumstances of this case sufficient to prevent the conviction of s.13 from being logically and

legally inconsistent with the acquittal of manslaughter.

Another aspect of the Charge.

63. There is a further difficulty in relation to the learned trial judge’s charge to the jury in this case and it is one which, having regard

to the nature of the evidence adduced in support of the prosecution, may be significant. The learned trial judge told the jury that if

“two views were equal” the defendants were entitled to the benefit of the doubt which would thus arise, so that the view favourable

to them or either of them should be adopted in preference to another tendering to favour the prosecution. This form of charge is an

erroneous one and the error resides in the suggestion that two views must be “equal” presumably in the sense of equally plausible or

probable, before the prisoners entitlement to “the benefit of the doubt” arises.

64. The law on this subject was exhaustively discussed in the Court of Criminal Appeal (the judgment is that of Kenny J.) in The

People (Attorney General) v. Douglas Byrne [1974] IR 1. The Court followed the High Court of Australia arriving at the following

formulation, on p.9:

“The correct charge to a jury is that they must be satisfied beyond reasonable doubt of the guilt of the accused, and it is

helpful if that degree of proof is contrasted with that in a civil case. It is also essential, however, that the jury should be

told that the accused is entitled to the benefit of the doubt and that when two views in any part of the case are

possible on the evidence, they should adopt that which is favourable to the accused unless the State has established

the other beyond reasonable doubt.”

(Emphasis added)

65. Moreover, at p.5, the Court cited with approval the speech of Viscount Sankey in the leading case of Woolmington v. DPP [1935]

AC 462 at 481 as follows:

“If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the

prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has

not made out the case and the prisoner is entitled to an acquittal… if the jury are either satisfied with his explanation or,

upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act

was unintentional or provoked, the prisoner is entitled to be acquitted.”

66. These passages make clear that it is a grave misstatement of the law to say that the defendants’ entitlement to the benefit of

the doubt arises when two views (presumably those advanced by the prosecution and the defence respectively) are equally plausible.

That is simply not true. It is sufficient from the defence perspective if the view upon which the defendant relies is a reasonably

possible view, because the existence of a (reasonably) possible view consistent with innocence necessarily and coercively indicates

the ground for reasonable doubt as to guilt.

67. The Court of Criminal Appeal has on a number of occasions recently drawn attention to the importance of properly delivering the

charge required by A.G. v. Byrne; the self same error which was made here as was made in a number of recent cases. The

significance of the error will depend very much on the nature of the case. In the present case where a significant part of what the

jury had to do was to assess the plausibility of the defendant Cagney’s account of, in effect, acting in self defence. It would be

indeed serious, and pregnant with the possibility of error, to approach it on the basis that his entitlement to the benefit of the doubt

arose only if his account was equally plausible as that on which the prosecution relied.

68. The foregoing discussion is, however, obiter since no point was taken on this deficiency in the charge in the Grounds of Appeal.

Conclusion.

69. The unfortunate fact is that neither the prosecution nor the learned trial judge at any time referred to the necessity to establish

advertence by the defendants or either of them to the serious risk which the prosecution were alleging in order to bring home a

charge under s.13 on the basis of recklessness. They failed to address this important issue notwithstanding that it was the subject of

elaborate submissions addressed on behalf of the defence. This is, in my view, a grave defect in the trial affecting both defendants,

since it obviated the need for the jury to address the question of the respective defendants’ state of advertence or the lack of it

which it was legally necessary for the jury to address. On that basis I would quash the convictions. In all the circumstances of the

case, notably the fact that it is now more than seven years since the tragic incident at Portobello Bridge, the general good character

of the accused and the fact that one of them, as the Court was informed by Mr. Murphy S.C. without contradiction, has in the

meantime suffered devastating injuries in a road traffic accident, I would not order a retrial.