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

Date01 January 2011
Recommended Irish Reforms to the Law of
Murder from the Perspective of the Model
Penal Code
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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