Recommended Irish reforms to the law of murder from the perspective of the Model Penal Code

• Date: 01 January 2011

Recommended Irish Reforms to the Law of

Murder from the Perspective of the Model

Penal Code

LE SLEY ANN E WALTE R*

Introduction

In 2008, the Law Reform Commission presented its final report on homicide

and reco mmended se veral significant r eforms. The most controversial of

these reforms was a change to the mental element of murder, introducing a

form of extreme recklessness. This refo rm would address extreme risk-

taking behaviour which results in death, and would thus close the perceived

lacuna of those who fully appreciate the dangerousness of their behaviour

but do not have the conscious aim of killing.

In this article, it is submitted that the proposed reforms do not comport

with the Model Penal Code’s general approach to culpability, despite their

having been credited with inspiring the prop osal. The Model Penal Code

proposed a comprehensive set of reforms which emphasised legality in

assessing mens rea an d in terms of developing a str uctured sentencing

scheme. The proposed Irish reforms, however, appear to represent more of

an ad hoc approach to law reform, which is precisely what the Model Penal

Code sought to remedy. It is submitted that by taking inspiration from the

Model Penal Code’s overall approach to culpability, Ireland can develop a

more coherent series of reforms.

The role of legality in criminal law reform

The Model Penal Code1was originally published in 1962 by the American

Law Institute2an American legal think tank. The original aim had been to

write a so-called restateme nt of American Criminal Law, as the ALI had

done in other disciplines such as Contract and Tort. However, the ALI

concluded that American Criminal Law had developed on a confused and

ad hoc basis within the United States, and was in need of a model code with

*BA, MA, JD, LL.M., Attorney at Law (New York, Illinois), PhD candidate (NUI)

1American Law Inst itute, Model Penal Code (1962) (he reinafter “MPC”). The Code

was republished in 1985, together with drafters’ commen taries, in a six-volume set.

See American Law Institute, Model Penal Code and Commentaries (1985).

2American Law Institute (hereinafter “ALI”)

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