The People (Director of Public Prosecutions) v O'Shea

JudgeMs. Justice O'Malley,Mr. Justice Clarke
Judgment Date15 June 2017
Neutral Citation[2017] IESC 41
Docket Number[S.C. No. 41 of 2016],[Supreme Court Appeal No: 41/2016] [Court of Appeal No: 19/2015]
CourtSupreme Court
Date15 June 2017
The Director of Public Prosecutions
Michael O'Shea

[2017] IESC 41

[Supreme Court Appeal No: 41/2016]

[Court of Appeal No: 19/2015]


Conviction – Careless driving causing death – Mens rea – Appellant seeking to appeal against Court of Appeal ruling – Whether conviction required proof of mens rea

Facts: The respondent, Mr O'Shea, on the 12th November, 2014, was convicted by a jury of the offence of careless driving causing death, contrary to s. 52 of the Road Traffic Act 1961. In the course of his instructions to the jury the trial judge described the offence as being one of strict liability. That was, it was agreed, incorrect, and Mr O'Shea's appeal on this point to the Court of Appeal was successful ([2015] IECA 319). The appellant, the DPP, no longer sought to stand over the conviction but intended to proceed with a retrial. To that end she appealed to the Supreme Court against the ruling of the Court of Appeal that, in a trial for careless driving causing death, the prosecution must prove that the accused acted intentionally or recklessly. The question, therefore, was whether a conviction for this offence requires proof of mens rea and, if so, the nature of that mens rea.

Held by the Court that the decision of the Court of Appeal, while correct in the result, was mistaken in its analysis. The Court held that, in the first instance, it did not appear to recognise that the offence in question occupies a defined position in a range of driving offences, and in this respect it was unfortunate that the matter was not presented by reference to the overall context of the range of driving offences. The Court noted that this may have contributed to the fact that the finding of the court as to mens rea could result in the imposition of a higher requirement in respect of careless driving causing death than exists for gross negligence manslaughter or for dangerous driving causing death. The Court noted that the court seemed not to have taken these latter offences into account in expressing the view that every indictable offence requires either intention or recklessness.

The Court held that, in the circumstances, it would allow the appeal.

Appeal allowed.

Judgment of Mr. Justice Clarke delivered the 15th June, 2017.
1. Introduction

I should start by indicating that I fully agree with the judgment of O'Malley J. both as to the resolution proposed for this appeal and as to the reasoning and analysis which lead to her conclusions. Nothing in this judgment should be taken as indicating any difference of opinion on any of the issues addressed in her judgment. I write this concurring judgment solely for the purposes of making a number of brief observations on issues which, to a greater or lesser extent, arose in the course of this appeal. Those observations do not in any way affect the proper resolution of this appeal and they are, therefore, necessarily obiter.


The first question concerns the possibility that there is a so-called third category of criminal offence which lies somewhere between 'strict liability' cases and those which require mens rea.

2. A Third Category?

There was a significant debate between counsel at the hearing of this appeal as to whether there might be a third category of criminal offence of the type just described. I do not think that it is necessary, for the purposes of resolving this appeal, to go further than the analysis identified by O'Malley J. at para. 44 of her judgment. As she points out intention has always had a very limited role in cases of bad driving. I would agree that it is likely that the reason for the creation of such driving offences, which obviously do not require deliberate wrongful action, stems from the perceived risks and consequences flowing from bad driving of which we all are, often too painfully, aware.


However, it is worth noting that there might well be a legitimate debate as to whether other areas might not meet similar criteria. Health and safety at work is one such case. It is, of course, true that it is possible to mount a gross negligence manslaughter prosecution deriving from fatal workplace accidents. Furthermore, much health and safety legislation contains very specific measures which must complied with by employers so that significant breaches of particular measures can often form the basis of a serious prosecution. Nonetheless there can be little doubt but that general lack of suitable care in the workplace carries with it similar risks to those encountered on the roads with the potential for similarly tragic consequences. The question arises as to the extent to which it would be possible to create relatively serious criminal offences deriving from significant lack of care in the workplace context where the actions of those responsible might fall short of the sort of recklessness or gross negligence which could give rise to a potential prosecution for either manslaughter, in the case of death, or reckless endangerment under s.13 of the Non-Fatal Offences Against the Person Act, 1997, in other cases.


Indeed, in the context of some of the debate which followed on from the extraordinarily severe consequences for many citizens of Ireland which flowed from the economic collapse, there was some discussion about whether it might be appropriate to create offences relating to gross or serious negligence on the part of those in whom significant trust is placed for the operation of critical elements of the economy or, indeed, similar negligence on the part of those charged with the regulation of same. Certainly the potential harm which can be created by such failings has, all too sadly, been clearly demonstrated.


Speaking for myself I accept that it may be arguable that it is in principle open to the Oireachtas to make a decision, as a matter of policy, to determine that a significant falling short of appropriate standards in areas of activity where it is clear that the consequences may be severe, can constitute a criminal offence and, indeed, potentially a serious criminal offence. I would, however, suggest that, even if that be so, there may be limitations on the extent to which such a course of action may be constitutionally permissible.


It is fair to say that, at least so far as serious criminal offences are concerned, the primary focus of the criminal law has traditionally been on the culpability or blameworthiness of the actions of those who are accused. Indeed, and this is a point to which I will shortly turn, blameworthiness, as opposed to consequences, has often played a much more significant role in the determination of criminal sanctions than is the case in determining civil remedies. This might well be described as one of the most significant fundamental distinctions between the criminal and civil law. If a person is guilty of a civil wrong, such as negligence or breach of contract, then, provided that the adverse consequences are foreseeable and not otherwise excluded by rules of law such as the concept of remoteness, the remedy will ordinarily be entirely dependent on the consequences. A defendant who is guilty of a very minor act of negligence or a technical breach of contract but where that minor wrongdoing gives rise to very serious and foreseeable consequences, may find that the award of damages, for example, far exceeds that which might be appropriate in a case where the wrongdoing was much more severe but the consequences, perhaps with no thanks to the wrongdoer, relatively minor.


On the other hand, in the criminal sphere, the degree of wrongdoing or culpability present in the criminal act has always formed a central feature of the sentencing process.


It may well be, therefore, that in order for it to be permissible to create a serious criminal offence involving a failure to observe reasonable standards in an important area of endeavour, it may be necessary to apply a proportionality test. I am here speaking of an offence which relates to a general failure to apply appropriate care rather than an offence which involves an allegation of breach of a specific regulatory measure which a person acting in a particular area is required to observe. In order that there be a serious offence concerning general failure to comply with reasonable standards it seems to me that it is arguable that it must be demonstrated that there is a reasonable proportionality between the importance of the area of human endeavour concerned, the likely risk or consequences of a failure of proper care in the area concerned and the degree of severity of the crime identified by reference to the maximum sentence permitted. While the Oireachtas, as the arbiters of policy, may well enjoy a significant margin of appreciation in such matters I doubt very much whether that margin of appreciation is without constitutional limitation. Creating a very serious criminal offence for a very minor failure in an area not known for generating significant risk to the public might well fail such a proportionality test.


However, these more general questions do not have to be resolved on this appeal which can, as I have indicated earlier, in my view, simply be resolved in the manner identified by O'Malley J. in her judgment.


However, at least some of that analysis leads to the second set of observations which I wish to make which concern the question of sentencing for the offence of careless driving causing death or serious harm.

3. Sentencing

In that context I note, and very much agree with, the observation of O'Malley J., as set out at para. 49 of her judgment, that the fact that death or serious bodily harm results does not mean that a conviction for careless driving is the same as a conviction for dangerous driving causing the same consequence. As she points out the careless driver is clearly less...

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