Recent publications by law reform bodies worldwide

AuthorGerard Coffey
PositionResearch assistant, school of law, NUI, Galway
Pages224-262
RECENT PUBLICATIONS BY LAW REFORM BODIES
WORLDWIDE
COMPILED BY GERARD COFFEY, RESEARCH ASSISTANT,
SCHOOL OF LAW, NUI, GALWAY
This section of the Journal provides summaries of recent
publications by law reform bodies worldwide, with the aim of
assisting Irish Judges in their work. The issues that arise in the Irish
courts are not generally unique to Ireland and it is always useful to
see how cognate jurisdictions view problems. The analysis provided
and the solutions suggested hold their own intrinsic interest and may
often shed light on similar matters that come before our courts. This
Update will henchforth become a regular feature of the Journal and
will be compiled by research staff dedicated to this end. Web site
links are provided to the relevant publications to enable ease of
access as are the contact details of the law reform bodies in question.
The Irish entries weresubmitted by Mr. Ray Byrne, Director of
Research at the Law Reform Commission of Ireland to whom we are
most grateful.
I. CRIMINAL LAW
A. Ireland
Consultation Paper on Homicide: The Plea of Provocation.
The Law Reform Commission of Ireland. (LRC CP 27-2003)
(October 2003).
This Consultation Paper, which is part of a series on aspects of the
law of homicide, examines the plea of provocation, which operates
as a partial defence to murder, reducing the offence to manslaughter.
The Paper reviews the existing law in Ireland, which currently
applies a subjective test for establishing the plea of provocation, thus
largely reducing the issue to one of whether the accused lost control.
The Paper provisionally recommends that a version of the objective
224 [4:1Judicial Studies Institute Journal
test, which focuses on standards of conduct which could fairly be
expected of accused persons in response to untoward provocative
behaviour – and which is applied in almost every other common law
jurisdiction - should be introduced. The Paper accepts that the
objective test should take account of the accused’s personal
characteristics, but should not feature in assessing the power of self-
control of the ordinary person. The Paper also recommends a more
flexible approach to the traditional requirement of provocation
followed almost immediately by killing, which would have a
particular relevance to a violent domestic relationship.
Website Address:
http://www.lawreform.ie/Provocation%20Consultation%20Paper_f
inal%20printer%20version_%5B20.pdf
Consultation Paper on Corporate Killing.
The Law ReformCommission of Ireland. (LRC CP 26-2003)
(October 2003).
This Consultation Paper deals with the liability of corporations for
the death of human persons arising from gross recklessness. The
Commission accepts that it is widely perceived that the current law
does not deal adequately with corporations and the persons who
control them in circumstances wherecorporate wrongs result in
death. The Paper reviews the current law and provisionally
recommends that a new offence of corporate killing should be
introduced, to be prosecuted on indictment only, where gross
recklessness of a ‘high managerial agent’ involving a substantial risk
of causing serious personal injury is a cause of death. The offence
would apply to ‘undertakings, which would include public sector
and private sector corporate entities and also unincorporated
entities. It would provide for unlimited fines on corporations and
other ancillary penalties such as community service orders. A
separate offence for high managerial agents would carry a penalty of
imprisonment for up to 5 years and disqualification from holding
high management office.
Website Address:
http://www.lawreform.ie/6%20Oct%20Final%20CP.pdf
2004] Recent Publications
By Law Reform Bodies Worldwide 225
Report on Penalties for Minor Offences.
The Law Reform Commission of Ireland. (LRC 69-2003) (February
2003).
This Report, which follows from a Consultation Paper of March
2002 (LRC CP 18-2002), recommends that, ideally, a term of
imprisonment of more than six months should only apply following
ajury trial, with a minority recommending that this be implemented
in legislation. The Report recommends that the current maximum
permissible fines for minor offences conventionally included in
legislation could be increased, having regard to the changes in the
value of money. The Report also recommends that, where fines are
imposed, the means of a defendant, whether an individual or a
corporate body, should be taken into account. For corporate
offenders, the Report recommends that the maximum fine possible
should be increased by a factor of three times that applicable to an
individual.
Website Address:
http://www.lawreform.ie/REPORT%20ON%20MIN%20OFFS.pdf
B. England and Wales
Consultation Paper on Partial Defences to Murder.
The Law Commission for England and Wales. (CP No 173) (October
2003).
In this Consultation Paper the Law Commission considers the law
and practice of the partial defences to murder provided for by
sections 2 (diminished responsibility) and 3 (provocation) of the
Homicide Act, 1957, with particular regard to the impact of the
partial defences in the context of domestic violence. The Paper also
considers whether there should be a partial defence to murder in
circumstances in which the defendant, though entitled to use force in
self-defence, killed in circumstances in which the defence of self-
defence is not available because the force used was excessive. The
Commission has invited the Royal College of Psychiatrists to submit
apaper reflecting its views on: the merits of the current test of
diminished responsibility; the inter-relationship between insanity,
diminished responsibility and fitness to plead. The Commission has
226 [4:1Judicial Studies Institute Journal

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