THE SUPREME COURT
McKechnie J.
Dunne J.
Charleton J.
O’Malley J. [Record No. 06/2015]
JONATHAN DUNNE
APPELLANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
Judgment of Ms. Justice O’Malley delivered the 11th day of May, 2016
1. On the 19th January, 2012, the appellant was convicted of the murder of Ian Kenny. It is common case that Mr. Kenny was shot in the head and arm with a sawn-off shotgun on the 4th July, 2007; that, although he survived the initial trauma, he was left in a vegetative state; and that he died in hospital two years later on the 31st July, 2009.
2. The appellant has, since an early stage of the investigation, admitted that he shot Mr. Kenny twice at close range on the 4th July, 2007, as they sat together in a car in the Stillorgan area of County Dublin, and that in so doing he intended to kill him. He pleaded guilty to a charge of attempted murder and has been sentenced for that offence. However, he has contested the subsequent charge of murder.
3. The indictment, in its statement of the offence, charged the appellant with murder. The particulars of the offence alleged that he murdered Mr. Kenny at Lakelands Park, Stillorgan, County Dublin on the 31st July, 2009.
4. In brief, the appellant’s case is that, having regard to certain decisions made in relation to the medical treatment of Mr. Kenny, the prosecution has not proved beyond reasonable doubt that his actions on the 4th July, 2007, brought about the death on the 31st July, 2009. The appellant had also claimed at all material times that he had carried out the shooting under duress, but pursuant to a ruling made in the trial he was not permitted to put that defence for consideration by the jury.
5. In his appeal against conviction the Court of Criminal Appeal has certified, pursuant to s.29 of the Courts of Justice Act 1924 as amended, the following two questions for determination by this Court:
The admissions made at the trial
6. At the opening of the trial the following admissions were formally made on behalf of the accused in the following terms:
“It is admitted on behalf of the accused who was born on the 17th of April 1985 that he was lawfully arrested on the 4th of July of 2007 and subsequently charged with the attempted murder of Ian Kenny on that date at Lakelands Road, Stillorgan, in the County of Dublin. It is further admitted that on the 7th April 2008 before this Court, the accused pleaded guilty to that charge of attempted murder of Ian Kenny and an associated charge of possession of a firearm on the same date. It is further admitted that, following a sentence hearing before Mr. Justice Carney on the 28th May 2008, a sentence of 12 years imprisonment was imposed on the attempted murder charge and a 10-years sentence on the firearms offence, both sentences to date from the 7th July 2007 when the accused was first charged and he has been serving those sentences since that date. It is further admitted that, subject to one issue that the Court will have to rule upon, the principal issue in the case will be one of causation of death.”
QUESTION 1 - CAUSATION
Evidence relating to medical treatment
7. The debate on the first certified question centres on the evidence as to the medical treatment of Mr. Kenny and in particular on the fact that, at a certain point, a decision was taken not to engage in aggressive or invasive treatment. The decision was made in consultation with Mr. Kenny’s father. The appellant does not take issue with the lawfulness, ethics or propriety of what was decided. However, he says that the consequences which flowed from it cannot be attributed to him, in that the death of Mr. Kenny, at the time it occurred, cannot be said to have occurred as a result of the shooting.
8. Following the shooting, Mr. Kenny was brought to St. Vincent’s Hospital. His pulse and blood pressure were normal but he was comatose. He was intubated and placed on a life support machine with artificial ventilation. The head wound was packed to control bleeding.
9. CT scans and X-ray images of his injuries at that stage showed widespread scattering of pellets throughout the brain, with penetration of both hemispheres. He had a fracture of his right humerus. Mr. Kenny had also suffered a stroke involving the right side of the brain. He went on to develop a pneumothorax, or collapse of his lung.
10. The view taken was that neurosurgical intervention to remove the pellets from the brain was not feasible, and would have caused more damage.
11. The evidence was that typically, an injury of the sort suffered by Mr. Kenny would affect the brainstem to the point where the person would be unable to breathe. However, because he was a young man, Mr. Kenny’s condition was stabilised with aggressive life support in St. Vincent’s. He began to breathe spontaneously with the aid of a tracheostomy and was taken off the ventilator. It became clear that he was not going to immediately succumb to his condition. The wound in the head, from which dead portions of tissue had been removed, then became the priority. The medical view was that the open wound was not “compatible with life” and would have to be closed.
12. Follow-up scans on the 13th July, 2007, showed that Mr. Kenny had developed brain atrophy. This was described by Mr. Pidgeon, the neurosurgeon, as meaning that the “the bits of brain that had died were replaced by holes”.
13. Mr. Kenny was transferred to Beaumont on the 16th July, 2007, for surgery and was operated upon on the 17th. According to the evidence of the neurosurgeons, the operation involved the removal of dead tissue and the investigation of the wound to ensure that there were no pockets of infection and to remove any easily accessible pellets. There were pellets in the skin, the muscle and the brain itself. The plastic surgeon closed the wound by rotating a flap of skin to cover it.
14. Asked about the purpose of the operation, Dr. Martin Murphy agreed that the initial view had been that there would be no point in surgical intervention given the seriousness of the head injury. However, the patient had survived for two weeks and it was considered that the operation would limit the chances of infection and prevent him from developing meningitis or an abscess. The prognosis after the operation was still to the effect that Mr. Kenny was likely to die in the short term and that if he survived he would have a very poor quality of life. Dr. Murphy said that he would always warn families that the patient would either die or develop an infection which might well cause death. The latter would be one of the main causes of morbidity or mortality in this type of case.
15. Mr. Pidgeon said that he had felt that it would be prudent to close the wound from an infection point of view. It was also desirable from a cosmetic point of view, for the sake of the family. He agreed that Mr. Kenny might not have survived the operation, and that his short term and longer term prospects were extremely poor.
16. There was a difficulty with leakage of cerebro-spinal fluid, and a drain was put in to deal with that on the 1st August, 2007. A PEG tube, for feeding, was inserted into Mr. Kenny’s stomach on the 15th August.
17. Mr. Kenny was transferred back to St. Vincent’s on the 26th October, 2007. As of that date, the medical view was that he was severely brain damaged. The prognosis was “extremely poor” and he was not expected to survive. The reason for this was that patients in a persistent vegetative state, who are unable to clear their own airways and unable to eat or drink, inevitably succumb to infectious problems. Mr. Kenny did in fact survive for longer than expected, although he never regained consciousness.
18. Mr. Pidgeon said that Mr. Kenny had sustained a devastating injury to the head which was not compatible with any form of survival of quality.
19. In October, 2008 Mr. Kenny was transferred to St. Doolagh’s, a specialist nursing unit for patients with brain injury. The evidence was that the care available to him there was the same standard of care as in hospital and that it was a suitable alternative. Mr. Kenny’s condition had not altered. He was breathing himself through the tracheostomy and was fed through the PEG tube. He was on various medications for spasm, to prevent seizures, and to protect his stomach. He also received physiotherapy to keep his limbs mobile.
20. While in St. Doolagh’s Mr. Kenny suffered from recurrent infections, chiefly in his lungs and urinary tract. These infections, which were said to be expected in someone in his condition, were treated satisfactorily with antibiotics. Dr. Veale, the treating doctor, said that the inability of Mr. Kenny’s body to respond because of his injuries meant that he was extremely prone to infection.
21. On two occasions, in April 2009 and again at the end of May 2009, Mr. Kenny aspirated some of the feed from the PEG tube into his lungs due to vomiting. He was admitted to Beaumont on each of these occasions, for treatment by intravenous antibiotics.
22. Professor Shane O’Neill, respiratory physician, gave evidence about the admission to Beaumont on the 18th April, 2009. He said that Mr. Kenny had, during that admission, a mild to moderate pneumonia with upper gastro-intestinal bleeding. Susceptibility to pneumonia was a consequence of vomiting, an inability to clear secretions pooling in the tracheostomy and discharging into the lungs, and a poor cough reflex. Mr. Kenny was treated with intravenous antibiotics, acid suppressant medication and intravenous steroids. He was discharged back to St. Doolagh’s, with the treatment by intravenous medication to be completed by the community intervention team.
23. A statement by Mr. Frank Murray, gastroenterologist in Beaumont, was read to the jury pursuant to the provisions of s. 21 of the Criminal Justice Act 1984. This dealt with the admission from the 31st May, 2009, to the 12th June, 2009. Mr. Murray said that Mr. Kenny was admitted with symptoms of hypothermia, an oozy tracheostomy, intermittent fever and an episode of rigors. He had findings suggestive of a chest infection, anaemia and thrombocytopenia, probably related to sepsis. He was treated with intravenous fluids, intravenous antibiotics and physiotherapy for the chest infection. He made a reasonable recovery and was transferred back to the nursing home.
24. Mr. Murray’s statement concluded:
“Undoubtedly the chest infection/pneumonia/sepsis that occurred in this gentleman at this time related to his impaired neurological function as a result of the catastrophic injury that he had undergone as a result of gunshot wound to the head.”
25. On the 29th July, 2009, Mr. Kenny was again admitted to Beaumont. During the course of that day he had suffered a number of epileptic seizures, which were seen as indicative of an underlying infection.
26. The primary evidence relating to this admission was that of Dr. Deepak Gopinathan, a consultant physician in Beaumont. He said that Mr. Kenny had features of sepsis, meaning a form of infection with a focus commonly in the lungs or in the kidneys. His temperature was quite low, indicating a severe infection, and he also had low blood pressure and low oxygen levels. A chest x-ray confirmed an infection in both lungs. Dr. Gopinathan described it as bilateral pneumonia with features of severe sepsis.
27. Treatment with intravenous antibiotics was commenced. He was also given intravenous fluids for his blood pressure and supplemental oxygen to raise his oxygen levels. Because there were copious and quite prevalent secretions in the tracheostomy tube, regular suctioning was required.
28. Dr. Gopinathan said that he was concerned regarding the severity of the sepsis. Looking back at the notes from the previous admissions, he saw that a decision had been made in June that Mr. Kenny should not be resuscitated in the event of respiratory or cardiac arrest. He contacted Mr. Kenny’s father, and met with him in the ward subsequently.
29. It was explained to Mr. Kenny Senior that his son had severe pneumonia in both lungs, that he had been commenced on a broad spectrum antibiotic, and that the next 24 to 48 hours would be crucial. The medical view was that if Ian Kenny did not respond to the antibiotics; or if his blood pressure or oxygen levels dropped further; then, having regard to the serious underlying condition, he should not be put on a ventilator, or have inotropes (blood pressure drugs) administered. The latter treatment would require the insertion of a catheter through one of the arteries in Mr. Kenny’s wrist, which would be considered invasive. Mr. Kenny Senior was also told that the doctors considered that, given the serious brain damage, there should be no further resuscitation in the event of sudden cardiac or respiratory arrest. He agreed with these views.
30. Dr. Gopinathan explained the context of this advice. Ian Kenny was in a persistent vegetative state. In a short span of time he had had three episodes of pneumonia. Apart from that he had a tracheostomy, a gastrostomy for feeding and a urinary catheter. He was fully dependent on nursing care.
31. Over the following 24 hours Mr. Kenny’s oxygen levels, blood pressure temperature and pulse rate all dropped. There was constant secretion in the tracheostomy. He became tachypneic and his breathing became more laboured.
32. On the morning of the 31st July Mr. Kenny was very septic. His oxygen levels had dropped to 80%, despite the administration of oxygen. His breathing rate was between 30 and 35 per minute. A stronger antibiotic was administered, and the fluids, oxygen and suctioning continued.
33. Mr. Kenny was transferred to a single room at about 12 midday. He was gasping for breath at that stage. At 12.30 he was noted by the nursing staff to be pale, with no pulse, no blood pressure and no breathing. He was pronounced dead by a registrar at 14.15.
34. Dr. Gopinathan agreed that a decision had been made not to transfer Mr. Kenny to intensive care, not to resuscitate him, not to put him on a ventilator and not to administer inotropes.
35. It was put to Dr. Gopinathan that Mr. Kenny had clung to life tenaciously since having been shot and had responded to appropriate treatment. The symptoms on this admission were similar to the previous episodes that he had survived. He did not agree, saying that this episode was more serious. It involved a very severe sepsis. The main difference was that on this occasion Mr. Kenny did not respond to the treatment given, which was not surprising.
Evidence relating to the cause of death
36. The post-mortem was carried out by Dr. Michael Curtis, Deputy State Pathologist. He said that he found evidence of widespread bilateral bronchopneumonia, that is, pneumonia involving both lungs. He concluded that the cause of death was bronchopneumonia, due to persistent vegetative state, due to brain injury caused by a shotgun wound. The shotgun wound to the arm was a contributory factor.
37. Dr. Curtis said that it was to be expected that Mr. Kenny might die of pneumonia. People in persistent vegetative state are at risk of developing infections. They can be kept alive for several years, with high quality modern medical and nursing care, but the usual situation is that they succumb to an infection, and the most usual infection is pneumonia. He was asked in cross-examination whether death was more likely if a decision was made to withhold certain forms of treatment and he agreed that it was.
38. At the request of Dr. Curtis, Dr. Michael Farrell, a consultant neuropathologist, carried out an examination of Mr. Kenny’s brain.
39. Dr. Farrell found a number of pellet shots in both hemispheres of the brain. The ones in the left hemisphere had just caused a little bit of tissue loss, but those in the right hemisphere had caused a large area of tissue loss. One pellet was lying right up against the middle cerebral artery, embedded in the wall of the artery by dense scar tissue. If a pellet had penetrated the artery one would have expected the patient to bleed to death. However in this instance the damage to the artery had instead caused it to go into spasm, resulting in the shutdown of the blood supply to the right hemisphere. The result was a big stroke, causing the death of that area of the brain.
40. This was, according to Dr. Farrell, a very serious injury but not one that would in itself account for the patient being in a persistent comatose state for the following two years. However, he also found a hole in an area of the brainstem involving the reticular activating system. Damage to this system removes the drive to the neocortex that is critical for consciousness. The patient therefore lapsed into a condition of being neither awake nor asleep.
41. Dr. Farrell said that the hole had not been caused by a piece of shot going through the brainstem. In his opinion, the damage to the middle cerebral artery had caused the death of brain tissue. That process involved the swelling of the tissue, which in turn caused the stretching of the smaller arteries supplying the reticular activating system. The hole formed because the blood supply to that area was compromised. This was the cause of the persistent vegetative state.
The ruling of the trial judge on causation
42. At the close of the prosecution case, counsel for the accused applied for a direction on the issue of causation.
43. It was accepted by counsel that if a victim developed a complication due to his weakened state after having been injured, the line of causation would not be broken. Similarly, it would not be broken if the victim was treated negligently or mistakenly. He was not, therefore, suggesting that the initial decision against operating in Mr. Kenny’s case could give rise to a defence.
44. The argument made was that in this case there was
“a deliberate, informed, it would appear ethically and medically justified decision, made by Dr. Deepak Gopinathan, to withhold medical treatment in circumstances where death, not surprisingly, followed in its absence, and may have been avoided if it had been provided.”
45. It was submitted that if Mr. Kenny had been treated with ventilation and/or inotropic medication, he might not have died when he did. It might well have been in the best interests of the patient not to provide that treatment. However, such a decision could not give rise to a criminal liability on the part of the accused.
46. The prosecution argued, on this aspect, that what Dr. Gopinathan had said was that Mr. Kenny would not be given certain types of treatment. On the evidence, the need for the particular treatment had not arisen. This was not accepted by the defence, who pointed to the evidence that Mr. Kenny had been gasping for breath.
47. In holding against the defence on this issue, the learned trial judge ruled (by reference to The People (DPP) v. Murphy [2005] 4 IR 504) that the required causal link can be inferred from circumstantial evidence, even where the precise cause of the result could not be shown. He applied the test for causation set out in the judgment of the Court of Criminal Appeal in The People (DPP) v. Davis [2001] 1 I.R. 146, where it was said to be sufficient
“if the injuries caused by the applicant were related to the death in more than a minimal way.”
48. On that basis he held that there was ample evidence to go to the jury.
The decision of the Court of Criminal Appeal on the causation issue
49. In relation to this issue, the Court of Criminal Appeal found no basis for distinguishing Davis.
50. The Court also referred to Re A Ward of Court (withholding medical treatment) (No. 2) [1996] 2 I.R. 79, which concerned the lawfulness of the withdrawal of artificial feeding for a patient, who had suffered catastrophic brain injury in the course of a minor operation over twenty years earlier and had been in a condition similar to PVS since that time. It was said in two of the Supreme Court judgments that if the withdrawal took place and the ward died, death would be due to the earlier injuries.
51. The ruling of the Court of Criminal Appeal in the substantive appeal on the issue was, therefore, that causation had been established, and that the decisions made in respect of the medical treatment of Mr. Kenny, which were accepted to be lawful and proper, were not such as to completely break the connection between the appellant’s action in shooting Mr. Kenny and the death of Mr. Kenny.
52. In its ruling granting a certificate pursuant to s. 29, the Court said:
“The Criminal Justice Act 1999 abolished the common law one year and one day rule familiar to generations of law students, and which can be said to have offered a typically pragmatic response to some of the problems caused when victims die at some considerable time after an incident for which it is alleged the accused is responsible. Now however , courts are required to grapple with issues of causation which can raise notoriously difficult problems in other fields of law, all the more so when advances in medicine have made it possible to sustain life much longer than would have been possible even a generation ago , and in circumstances which could hardly have been imagined then. This can give rise to difficult questions of ethics and, on occasions, law. Counsel for the Applicant points to the somewhat anomalous form of the indictment here which charged the accused with having murdered Mr Kenny at Lakelands park, Stillorgan County Dublin (where the attack occurred on the 4th of July 2007) but on the 31st of July 2009 when the death occurred (in Beaumont Hospital) more than two years later.”
Submissions on causation
53. The argument made on behalf of the appellant originally included a submission that the correct test for causation was whether the actions of the accused contributed in a substantial way to the death, and that the Court of Criminal Appeal in Davis erred in substituting a de minimis test. However, at the hearing of the appeal counsel accepted that no matter which test is applied to the facts of this case the appellant would be found to have caused the death of Mr. Kenny. The issue relates to the timing of the death, and whether the accused can be said to have brought about the death on the date it occurred.
54. It is also accepted that if there had been a positive medical intervention, whether that was properly or negligently carried out, and death had occurred, the chain of causation from the appellant’s acts to the death would not have been broken.
55. However, it is submitted that if there had been a positive intervention in this case Mr. Kenny might have survived and the murder charge would not then have arisen. The argument is that third parties made an independent, positive decision as to medical treatment “but for” which he might have lived. The conviction of the appellant fixed him with criminal responsibility for the consequences of a decision made by others, as opposed to his own actions. This was said to be so, notwithstanding that the decision was made in a proper fashion and in the best interests of the patient. The prosecution had therefore failed to discharge the burden of proving that the appellant caused the death to occur on the date specified in the indictment.
56. The appellant contends that the observations in Re A Ward of Court should be seen as applicable in a civil context only, without having implications for criminal liability.
57. It is suggested that the abolition of the common law “year and a day” rule (by virtue of which a murder charge could not be brought if the victim of an assault did not die within a year and a day of the event) by s. 38 of the Criminal Justice Act 1999 has left a lacuna, in that the legislature did not make provision for the situation of potential long term survival and the implications of decisions on medical treatment for criminal liability.
58. The respondent says that at no stage was there a decision to withdraw treatment from Mr. Kenny. He would not have been in hospital, and in the condition that he was in on the date of death, had he not been shot by the appellant. On the test applied in The People (Director of Public Prosecutions) v. Davis the appellant must be considered to have caused the death.
Statutory definition of murder
59. Section 4 of the Criminal Justice Act 1964 provides in full:
Statutory provisions relating to indictments
60. Section 4(1) of the Criminal Justice (Administration) Act 1924 provides as follows:
“Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.”
61. Section 4(2) provides for rules in relation to the form and content of indictments, and stipulates that an indictment will not be open to objection if it conforms to those rules.
62. Rule 4 deals with the mode in which offences are to be charged. In so far as is relevant here, it provides that a count on an indictment is to commence with a statement of the offence charged. Sub-rules (3) and (4) read as follows:
(3) The statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence.
(4) After the statement of the offence, particulars of such offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary:
Provided that where any rule of law or any statute limits the particulars of an offence which are required to be given in an indictment, nothing in this rule shall require any more particulars to be given than those so required.
63. The rules provide that the description of property is to be such as to indicate “with reasonable clearness” the property referred to; that the description of any person is to be such as to be “reasonably sufficient” to identify that person; and that it shall be sufficient to describe any place, time, matter, act, or omission in such manner as to indicate “with reasonable clearness” what is being referred to.
64. An appendix to the rules sets out forms to be followed, or followed “as near as may be”, for particular charges. The first of these is for a charge of murder. The statement of offence as set out is simply “Murder”, although it must be remembered that the Indictment Rules date from 1924 and it is usual now to add the words “contrary to s.4 of the Criminal Justice Act, 1964”. The particulars of offence are: A.B. on the blank day of blank in the County of blank murdered J.S.
Authorities on causation
General principle
65. The issue of causation in murder is addressed in the following terms in Charleton, McDermott and Bolger Criminal Law (1999, Butterworths) at p. 503 under the heading “General statement”:
“The accused will legally have caused the death of the victim if his act, or acts, substantially contributed to the subsequent death, taking into account the time at which and the manner in which the death occurred. It is a function of the judge to decide whether there is any evidence reasonably capable of supporting the conclusion that the accused’s act was still a substantially contributing factor at the time when the victim died, having regard to the manner of his death.”
66. In their discussion of the issue the learned authors refer to Wong Tat Chuen [1997] HKLRD 433 and to Smithers (1977) 34 C.C.C. (2d) 427. The former was a decision of the Hong Kong Court of Appeal in which it was held that a jury should be told that it was sufficient if the accused’s act contributed “significantly” to the death and that it need not be the sole or principal cause. In Smithers the Supreme Court of Canada had ruled that the accused should be held liable for the death where his or her act or acts were “a contributing cause…outside the small de minimis range”.
67. In this jurisdiction the test was settled by the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Davis [2001] 1 I.R. 146. The evidence of the pathologist in that case was that the death of the victim was due to heart failure secondary to severe shock, which was itself the cumulative result of injuries alleged to have been inflicted by the applicant. The applicant had suggested that she might have been assaulted by two other men earlier in the day, and that she had subsequently fallen down some stairs. Having regard to the evidence, the Court observed that it seemed “overwhelmingly probable” that the attack on the deceased by the applicant was the sole cause of all significant injuries. The judgment continues (at p. 149):
“In point of law, however, it is unnecessary to go so far: it is sufficient if the injuries caused by the applicant were related to the death in more than a minimal way.”
68. The appellant has not in this appeal pursued the argument that the Davis test was incorrect.
Novus actus interveniens
69. In R. v. Pagett (1983) 76 Cr App R 279 the appellant had been using his girlfriend as a “human shield” while firing at policemen. They returned fire and she was killed by their shots. In his appeal against a conviction for manslaughter, it was argued inter alia that the trial judge should have ruled that where the act which immediately resulted in fatal injury was the act of another person, albeit in legitimate self-defence, then the ensuing death was too remote or indirect to be imputed to the original aggressor. It was submitted that there either was, or as a matter of policy should be, a rule of English law that no man should be convicted of homicide unless he himself, or another person acting in concert with him, carried out the act which was the immediate cause of the victim’s death.
70. The argument was rejected by the Court of Appeal, which considered that it had no basis in either authority or principle. It was stated that the question whether an accused person could be held guilty of either murder or manslaughter of a victim, the cause of whose death was the act of another person, must be determined on the ordinary principles of causation. In certain circumstances, although an act of the accused constitutes a necessary condition for the death, the intervention of a third party may be regarded as the sole cause of death and thereby relieve the accused of criminal responsibility. To have this effect, the intervention must amount to a novus actus interveniens - that is, an act so independent of the act of the accused that it should be regarded in law as the cause of death. A reasonable act performed for the purpose of self-preservation, being an act caused by the accused’s actions, does not operate as a novus actus interveniens. Nor does an act done in execution of a legal duty, where it was caused by the accused’s action.
71. The Court stressed that the prosecution must prove the essential ingredients of murder, including intent. However, it should be explained to juries that the accused’s act need not be the sole, or even the main, cause of death for his act to be held to have caused the death.
Medical intervention as novus actus interveniens
72. I propose to begin with consideration of the judgments of the Supreme Court in Re A Ward of Court. That case was not, of course, concerned with questions of criminal liability. Rather, the Court was dealing with the lawfulness of a decision to withdraw medical treatment involving antibiotics and artificial feeding, which would necessarily result in the death of the ward. The judgments are not, therefore, directly related to questions of causation or attribution of responsibility. However, certain passages are pertinent to the issue before this Court.
73. Hamilton C.J. stressed (at p. 120) that the case was not about euthanasia, and stated that the courts could never sanction steps to terminate life. In this regard he quoted Taylor L.J. in Re J. (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33 at p. 53:
“That would be unlawful. There is no question of approving, even in a case of the most horrendous disability, a course aimed at terminating life or accelerating death. The court is concerned only with the circumstances in which steps should not be taken to prolong life.”
74. Hamilton C.J. stated that this principle applied with even greater force in this jurisdiction, and that any course of action aimed at terminating life or accelerating death would be unlawful.
75. At p.124, as part of a discussion of the content of the constitutional right to life, he said:
76. On the evidence, Hamilton C.J. found that without the benefit of the artificial feeding, the ward would die within a short period of time and in this regard had to be regarded as terminally ill. Had she been mentally competent, she would have had the right to forego treatment or have it discontinued. By virtue of her incapacity she was unable to exercise that right for herself, but she was entitled to have the right respected and vindicated by the High Court exercising its wardship jurisdiction. In exercising that jurisdiction, the first and paramount consideration was the well-being, welfare or interests of the ward. The proper test, which had been applied by the High Court judge in that case, was “whether it was in the best interests of the ward that her life should be prolonged by continuance of the particular medical treatment which she was receiving”. This was to be considered from the standpoint of “a prudent, good and loving parent”.
77. In the circumstances, the withdrawal and termination of the abnormal and artificial means of nourishment would cease to prolong the life of the ward to no useful purpose and would allow her to die.
78. At p. 128 he said:
“The true cause of the ward’s death will not be the withdrawal of such nourishment but the injuries which she sustained on the 26th April, 1972.”
79. O’Flaherty J. agreed that the case was not about euthanasia, saying (at p. 130)
80. He endorsed the view that it was in the best interests of the ward that nature should be allowed to take its course without artificial means of preserving what was technically life, but life without purpose, meaning or dignity.
81. Blayney J. considered that the following passage from the judgment of the High Court was fully compliant with the constitutional obligation to respect the ward’s life:
“I have come to the conclusion that the benefit to the ward of sustaining her life by the present abnormal artificial means of nourishment is far outweighed by the burdens of so sustaining life with absolutely no prospect of any improvement in the ward’s condition. Accordingly, I find that it is in the best interest of the ward that the abnormal artificial nourishment, whether by nasogastric or by gastrostomy tube, should be terminated, thus ceasing artificially to prolong her life to no useful purpose and allowing her to die in accordance with nature with all such palliative care and medication as is necessary to ensure a peaceful and pain free death.”
82. Denham J. noted that the situation had arisen because of the application of advanced medical science. If it were not for that, the ward would not have survived a catastrophe that had occurred over 20 years earlier. She said (at p. 146):
“The case illustrates the problems arising out of modern medical technology and consequent legal issues. These matters have not been addressed by the Oireachtas so it falls to be decided by this Court in accordance with the Constitution and the common law.”
83. At p. 158 Denham J. referred to the decision to be made - whether to continue the medical treatment or not - and observed that to continue it would be as much a decision as not to do so. She went on:
“It is not pertinent whether the treatment is ordinary or extraordinary medical treatment. Consent of the adult with capacity is necessary for either ordinary or extraordinary medical treatment.
However, the nature of the medical treatment here is pertinent to the ward’s condition. The medical treatment is invasive. This results in a loss of bodily integrity and dignity. It removes control of self and control of bodily functions…Whilst an unconscious patient in an emergency should receive all reasonable treatment pending a determination of their best interests, invasive therapy should not be continued in a casual or ill considered way.”
84. Having analysed the constitutional aspects of the issue and found that what was at stake was a personal right of the ward, Denham J. moved on to the issue of causation. At p. 165 she said:
“Twenty three years ago, the ward suffered major injury to her brain during a minor gynaecological operation. If it were not for modern medical technology, utilised after the catastrophe, she would have died long since. She has been kept alive by modern medical science and the dedicated care and skill of the medical and nursing professions…
If this Court determines that the order of the High Court be upheld then, those acts so ordered being lawful, the ward would die shortly as a result of the medical catastrophe which occurred 23 years ago…”
85. In the criminal law context, the Court has been referred to a number of authorities dealing with the effect of medical intervention on the question of causation.
86. In R. v. Smith [1959] 2 Q.B. 35, the victim of stabbing in an army barracks had been dropped twice while being brought for medical treatment. He had then been given treatment described in court as “thoroughly bad”, which “might well have affected his chances of recovery”. He died about two hours after being stabbed. There was evidence that if he had received immediate and different treatment he might not have died. If a blood transfusion had been available he would have had a 75% chance of survival.
87. In the appeal against a conviction for murder it was argued that there had been a break in the chain of causation. The Court of Appeal said:
“It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that death does not flow from the wound.”
88. The Court in Smith contrasted what had occurred with the facts of R. v. Jordan (1956) 40 Cr. App. R. 152, where there was evidence that the deceased had been treated with a medication to which he had already shown intolerance, at a time when the original injury had mainly healed. In the latter circumstances a reasonable jury properly directed could not say that there had not been a break in the chain. In the case before the Court in Smith, the facts could lead only to one conclusion: that the death resulted from the original wound.
89. R. v. Blaue [1975] 1 WLR 1411 raised the problem of a victim who declines medical treatment. The victim was a Jehovah’s Witness, who refused to accept a blood transfusion. On the question whether her decision, claimed to have been unreasonable, had broken the chain, the Court of Appeal said:
“It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim’s religious belief which inhibited him from accepting certain kinds of treatment was unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death.”
90. The cases of R. v. Malcherek and R. v. Steel [1981] 1 W.L.R. 690 were each concerned with a situation where the victim of an assault had been placed on a life-support system. At a certain stage in each case the treating doctors had decided to disconnect the machines, on the basis of a diagnosis of brain death. In each case the assailant was convicted of murder. The issue in each case was whether the jury should have been permitted to consider whether it was the switching off of the ventilator and the life support machines that was the actual cause of death.
91. The Court of Appeal held that the discontinuance of treatment had not broken the chain of causation between the initial injury and death. It was observed by the Court that in each case the initial assault was the reason for medical treatment being necessary, and that in each case the treatment had been normal and conventional. The Court referred to Jordan and Smith, and said that if a choice had to be made between them it would prefer Smith, but that the facts in Jordan were so exceptional that the choice did not fall to be made.
92. The Court held that there was no evidence that, after the life support systems were disconnected, the original injuries were other than “a continuing, operating and indeed substantial cause of the death of the victim”. The judgment continues:
“There may be occasions, although they will be rare, when the original injury has ceased to operate as a cause at all, but in the ordinary case if the treatment is given bona fide by competent and careful medical practitioners, then evidence will not be admissible to show that the treatment would not have been administered in the same way by other medical practitioners. In other words, the fact that the victim has died, despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death.”
93. The discontinuance of treatment in the circumstances of the case was held not to have broken the chain.
Proof of causation
94. In The People (Director of Public Prosecutions) v. Murphy [2005] 4 IR 504 the body of the deceased had been found in an outdoor location about three weeks after she had disappeared. The body had been damaged by animals to the extent that the pathologist could not determine a cause of death, although he could say that she was a young person in good health, making a death by natural causes unlikely. The case against the appellant depended on admissions, DNA and some circumstantial evidence.
95. It was part of the defence case that the prosecution had not established the date or cause of death and had not ruled out the possibility that some other person killed the victim. On this issue, the Court of Criminal Appeal ruled that the fact that the precise mechanism of death could not be established did not mean that the jury could not conclude that the appellant had murdered her if they accepted the other evidence.
QUESTION 2 - DURESS
Evidence relating to duress
96. Members of the Gardaí encountered the appellant very shortly after the shooting. According to their evidence, he immediately admitted having shot Mr. Kenny, and said that he had done so “due to circumstances”. He said that he had been “done a favour” and this was how he had to repay it. “It was him or me.” The appellant was then arrested. He subsequently signed a note of this conversation.
97. In his initial formal interviews with the Gardaí, the appellant said that another man had approached the car and shot Mr. Kenny, and that his role had been confined to driving him to the location. He had done this because he had been told to, and he feared for his own life and the lives of his family if he did not.
98. However he later admitted that he had shot Mr. Kenny. He told the Gardaí that he had been forced to do so. He had been threatened that if he did not, he and his family would be shot. The two men who threatened him had put a gun to his head and told him what to do. He did not name the people who threatened him but said that they knew him from the past, and that he “owed them a favour”. He expressed remorse and said that Mr. Kenny had been his friend, but that he had had no choice. He could not have moved his family abroad. He did not approach the Gardaí because he did not feel that they could protect him.
99. At the trial, the defence stressed various aspects of the evidence as tending to show that the appellant had not behaved in a manner consistent with being a professional assassin (for example, the fact that the car was registered in his name and had his work tools in it).
100. The accused applied to the learned trial judge for a ruling as to the availability of duress as a defence to a charge of murder. The application was made in the knowledge that, as counsel said, it was in the teeth of the authorities, but with the purpose of ensuring that the issue could be considered on appeal. The learned trial judge ruled that the current state of Irish law was that duress could not be availed of as a defence to murder.
The decision of the Court of Criminal Appeal on duress
101. In its decision on the appeal, the Court referred to the decision in Attorney General v. Whelan [1934] IR 518, in which, in the course of a discussion about the general availability of duress as a defence the Court of Criminal Appeal had said:
“The application of this general rule must however be subject to certain limitations. The commission of murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the strongest duress would not be any justification.”
102. In The Director of Public Prosecutions v. Patchell (ex tempore, Court of Criminal Appeal, 10th June, 2013) the Court of Criminal Appeal was invited to overturn Whelan and declined. The Court said that quite apart from considerations of policy, a change in the law would have to be a matter for the legislature.
103. In the instant case, the Court of Criminal Appeal said that the matter had recently been revisited in Patchell and that the limited arguments and material advanced by the appellant did not afford any compelling basis for departing from that decision.
104. In deciding to grant a certificate for leave to appeal, the Court said:
“Even the truncated discussion on this issue contained in this Court’s decision of the 31st July 2014 shows that the question of whether duress, which is a defence to all other criminal charges, can be a defence either partial or complete to murder, and if so, whether as principal or accessory, is a matter which has generated considerable debate both academic and practical, especially in neighbouring jurisdictions. Duress as a defence is itself a matter of common law, and the decisions for and against the extension of duress to charges of murder are themselves judicial decisions. It is argued however that the law in Ireland is reasonably clear, and that this position cannot, or at least should not, be altered save by legislation. That in itself however, is a component of the question…”
Submissions on duress
105. On behalf of the appellant it is accepted that the issue may be seen as a policy matter, but it is submitted that this Court has power to alter the parameters of the defence of duress as it did with provocation in The People (Director of Public Prosecutions) v. MacEoin [1978] I.R. 27 and with self-defence in The People (Attorney General ) v Dwyer [1972] 1 I.R. 416. The only change being argued for here, it is said, is to overrule the dictum in Whelan.
106. It is submitted that the passage quoted above from Whelan must be seen as obiter. The statement that duress is not available as a defence in murder traces back to Hale’s Pleas of the Crown, but Hale believed that it was similarly unavailable in peacetime in respect of treason and robbery and the caselaw does not support that contention. Reference is made to comments by McCauley & McCutcheon in Criminal Liability (Sweet and Maxwell, 2000) where it is stated that the status of Hale’s rule in twentieth century caselaw is “highly problematic”.
107. Reliance is placed on the decision of the House of Lords in Lynch v. The Director of Public Prosecutions for Northern Ireland [1975] AC 653, where it was held that there was no direct English judicial authority against the applicability of duress to a charge of murder, and that it should be permitted. Lynch was overturned in R. v. Howe [1987] AC 417, but the Law Commission of England and Wales has consistently recommended that duress should be a defence. In South Africa, in the case of S. v. Goliath [1972] 3 (Translation) SA 1 it was held that duress should be available as a defence to murder.
108. The appellant submits that this Court should follow the logic of that approach. In the alternative it is submitted that it should consider the arguments set out in the Law Reform Commission’s consultation paper (LRC CP 39-2006) in favour of adopting a limited view of duress such that it would have the effect of reducing murder to manslaughter. Changing the law in this fashion would not, it is argued, amount to legislation by the Court, and would address the problem of people being coerced by criminal gangs in the modern era.
109. The appellant points to the recent decision of this Court in The People (Director of Public Prosecutions) v. J.C. [2015] IESC 31 as authority for the proposition that the Court can revisit and reverse earlier decisions now thought to have been wrongly decided. It is submitted that Whelan was in error and should be revisited.
110. The respondent submits that Whelan and Patchell were correct, and that it has been recognised for centuries that duress is not a defence to murder apart from the subsequently-overturned decision in Lynch. The recommendations of the English Law Commission have never been implemented, and the Law Reform Commission’s publication is a consultation paper. It is submitted that this is settled law and that it is based primarily on the sanctity of life. Alteration of this position would be a change of such import and potential consequences that, having regard to the separation of powers, it could be undertaken only by the legislature and not by the courts.
The authorities
111. Attorney General v. Whelan [1934] IR 518 is described by McCauley & McCutcheon as “arguably the first twentieth-century case in which the defence actually succeeded, at least on this side of the Atlantic”. The appellant had been charged with receiving stolen money. The jury brought in a special verdict, finding that he had acted under threat of immediate death or serious violence. The trial judge considered that this amounted to a conviction, on the basis that duress was not a defence in law but merely went to mitigation. However he granted a certificate for leave to appeal on the question whether the verdict amounted to an acquittal.
112. In the appeal, it was argued by counsel that compulsion was a good defence save in cases of murder. (The acceptance that the latter was an exception was based on the decision in R. v. Dudley and Stephens 14 QBD 273.) The prosecution accepted that actual physical force which left the accused no choice of will would absolve from guilt, but submitted that anything short of such force was a matter for mitigation only.
113. The Court of Criminal Appeal observed that all of the elements of guilt had been established in the trial except the free exercise of will, and the point was accordingly narrowed down to the consideration whether there was such absence of will as to absolve from guilt.
114. The judgment refers to the paucity of authorities on the issue, particularly in the modern era. Reference is made to Hale’s Pleas of the Crown Vol. 1, p. 50, as stating that immediate fear of death could be a justification in the case of treason. In R. v. Stratton 21 How. St. Tr., 1045, 1229, 1230 Lord Mansfield had treated the principle as applicable to other crimes, as had Patteson J. in R. v. Crutchley 5 C. & P. 133. However, in R. v. Tyler 8 C. & P. 616 Denman C.J. had appeared to state as a general principle that apprehension of personal danger did not furnish any excuse for assisting in doing an act that was illegal.
115. R. v. Dudley and Stephens was described by the Court as affording no assistance other than to show the difficulty of formulating a rule of universal application.
116. The Court noted that counsel had been unable to discover any more recent authority and concluded:
“The matter before the Court must therefore be approached from the standpoint of general principle. It seems to us that threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal. The application of this general rule must however be subject to certain limitations. The commission of murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the strongest duress would not be any justification. We have not to determine what class of crime other than murder should be placed in the same category. We are, however, satisfied that any such consideration does not apply in the case of receiving. Where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at the time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats.”
117. This seems to be the only twentieth-century Irish authority on duress. The next recorded case dealing with the issue appears to be The People (Director of Public Prosecutions) v. Dickey (unrep., Court of Criminal Appeal, 7th March, 2003). In that case the Court quashed a conviction relating to the importation of drugs, on the basis that in charging the jury the trial judge had not outlined the evidence upon which the appellant’s plea of duress had been put forward.
118. In DPP v. Patchell (ex temp., Court of Criminal Appeal, 10th of June, 2013), the Court of Criminal Appeal engaged directly with the question whether that Court had the power to extend the availability of the defence of duress to a charge of murder. In giving the judgment of the Court, Hardiman J. said:
“[I]n this case, far-reaching issues have been raised, but they can be simply resolved. The defence of duress is not available in this jurisdiction to a charge of murder. This was so at common law. It was so at -- and it was the state of the common law when it was taken over expressly in this jurisdiction in 1922 and again in 1937, and that is the position. There's also manifestly very good reason why that should be so. This man who comes before the Court is, on his own admission, a person involved in drugs who had a dispute with the dead man, Mr O'Halloran, about some cocaine, who undoubtedly killed him and who says, when taxed with the killing, in effect, "They made me do it." The policy reasons for the state of the common law are not far to see. But, for present purposes, it's sufficient to say that duress is not available to a charge of murder. If the defendant had been charged, not with murder, but with some offence to which the defence was available, it would be, we may observe obiter, probably unavailable on these facts by reason of the long delay, the lack of any immediacy in any threats, if any, the failure to make any attempt to seek the protection of the state in the form of the gardaí, and the sheer improbability of the account of the appellant appears to make it of dubious utility even if it were available. But the salient feature is that it is not available, to which the appellant makes the case, well, he says to the Court, well, you could change that just like he says this Court changed the law in relation to provocation in the case of MacEoin in the mid '70s. Well, the case of MacEoin has been much commented, and this Court is [not] going to make any further comment on it.
We will say that if the law were to be changed […], notwithstanding the policy reasons which are so clear that a child could understand them and are perfectly illustrated by the facts of this case, it is plainly a matter for the legislature rather than for the Court to do so. The powers of government are divided into the legislative, the executive and the judicial, and these are separately constituted in Article 6 of the Constitution. This Court and the Supreme Court have been clear and emphatic in rejecting any improper legislative intervention in the area of the courts' remit, and for consistency we must equally insist firmly on the exclusive jurisdiction of the executive in matters within its remit. The Court is far from calling for the attention of the legislature to this particular area, but if the matter were to be addressed, as seems to be implicit in the Law Reform Commission's paper, it is for the legislature to address.”
119. In the intervening years, there had been significant developments in other jurisdictions. In South Africa, in 1972, the Appellate Division held in S. v. Goliath (1972) 3 (Translation) SA 1 that duress could constitute a complete defence to murder. In so holding the Court was answering one of two questions reserved to it by a trial court, which had found that one accused acted under the compulsion of the other.
120. The judgment ranges far and wide across Roman Dutch law, the Civil Codes of the Continent and ethical and philosophical writers as far back as Aristotle, as well as English common law. Unfortunately the translated version available to this Court omits most if not all quotations from these sources. The passages relied upon by the appellant are at p. 480 of the report, from the majority judgment given by Rumpff J.A., and read as follows:
“When the opinion is expressed that our law recognises compulsion as a defence in all cases except murder, and that opinion is based on the acceptance that acquittal follows because the threatened party is deprived of his freedom of choice, then it seems to me to be irrational, in the light of developments which have come about since the days of the old Dutch and English writers, to exclude compulsion as a complete defence to murder if the threatened party was under such strong duress that a reasonable person would not have acted otherwise under the same duress. The only ground for such an exclusion would then be that, notwithstanding the fact that the threatened person is deprived of his freedom of volition, the act is still imputed to him because of his failure to comply with what has been described as the highest ethical ideal.
In the application of our criminal law, in the cases where the acts of an accused are judged by objective standards, the principle applies that one can never demand more from an accused than that which is reasonable, and reasonable in this context means, that which can be expected of the ordinary, average person in the particular circumstances. It is generally accepted, also by the ethicists, that for the ordinary person in general his life is worth more than that of another. Only they who possess the quality of heroism will intentionally offer their lives for another. Should the criminal law then state that compulsion could never be a defence to a charge of murder, it would demand that a person who killed another under duress, whatever the circumstances, would have to comply with a higher standard than that demanded of the average person. I do not think that such an exception to the general rule which applies in criminal law is justified.”
121. In 1975 the House of Lords decided the case of Director of Public Prosecutions for Northern Ireland v. Lynch. The case against the appellant on a charge of murder was that he had driven a car containing three other men to a particular place, where the men murdered a policeman. He then drove them back to their starting point. The appellant’s case was that he had been instructed to drive and believed that he would be shot if he did not.
122. The House of Lords divided on the question whether the defence of duress was available. The majority (Lord Morris, Lord Wilberforce and Lord Edmund-Davies) held that it was open to a person accused as a principal in the second degree.
123. Lord Morris referred to the view of writers including Stephen (the reference being to History of the Criminal Law in England, 1883, vol.2, pp. 107-108) that duress should never furnish an excuse from guilt, but only operate to mitigate punishment. However, he felt that it was much too late, having regard to authority, to adopt that view. In any event he did not consider such an approach to be just.
“The law must, I think, take a common sense view. If someone is forced at gunpoint either to be inactive or to do something positive - must the law not remember that the instinct and perhaps the duty of self-preservation is powerful and natural? I think it must. A man who is attacked is allowed within reason to take necessary steps to defend himself. The law would be censorious and inhumane which did not recognise the appalling plight of a person who perhaps suddenly finds his life in jeopardy unless he submits and obeys.”
124. Lord Morris stressed the fact that the case concerned an alleged principal in the second degree, and that he was confining his decision to that issue. It might be that the law must deny such a defence to the actual killer, and that the law would not be irrational if it did so. In this regard he considered that the following passage from Hale should not be assumed to cover accessories, aiders and abettors:
“Again, if a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant’s fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact; for he ought rather to die himself, than kill an innocent.”
125. Lord Morris referred to the judgment of the Court of Criminal Appeal in Whelan. Noting the obiter dicta as to the limitations of the general principle, he said that no consideration was given in that judgment as to the position of a principal in the second degree.
126. Having regard to all of the authorities, he concluded that it had been “firmly held” by the English courts that duress can afford a defence in a criminal case, and that “general reasoning and the requirements of justice” meant that it should be open as a possible defence in the case of an aider and abettor.
127. Lord Wilberforce asked (at p. 680) what reason there could be for excluding murder. He referred to the description in Whelan of murder as a “heinous” offence, and observed that in some circumstances a defence of duress should be correspondingly hard to establish.
“Indeed, to justify the deliberate killing by one’s own hand of another human being may be something that no pressure or threat even to one’s own life which can be imagined can justify - no such case ever seems to have reached the courts.”
128. However, he considered that there were degrees of heinousness even in murder, and that an accessory, aider or abettor might bear a lesser degree of guilt. Therefore, to say that the defence might be admitted in relation to some degrees of murder, but that it should be so difficult in relation to a direct killing by a principal as almost to justify a ruling that it was not available, would not be illogical.
129. Lord Wilberforce summarised the authorities as establishing that the defence of duress had been known to the law since the 14th century; that it absolved from guilt rather than merely mitigating punishment; and that there was no direct English judicial authority against its application to charges of murder. He cited, with apparent approval, the passage quoted above from S. v. Goliath, and deduced the conclusion that
“[a]lthough, in a case of actual killing by a first degree principal the balance of judicial authority at the present time is against the admission of the defence of duress, in the case of lesser degrees of participation, the balance is, if anything, the other way. At the very least, to admit the defence in such cases involves no departure from established decisions.”
130. At p. 684 he said:
“The broad question remains how this House, clearly not bound by any precedent, should now state the law with regard to this defence in relation to the facts of the present case. I have no doubt that it is open to us, on normal judicial principles, to hold the defence admissible. We are here in the domain of the common law: our task is to fit what we can see as principle and authority to the facts before us, and it is no obstacle that these facts are new. The judges have always assumed responsibility for deciding questions of principle relating to criminal liability and guilt, and particularly for setting the standards by which the law expects normal men to act. In all such matters as capacity, sanity, drunkenness, coercion, necessity, provocation, self-defence, the common law, through the judges, accepts and sets the standards of right-thinking men of normal firmness and humanity at a level which people can accept and respect. The House is not inventing a new defence: on the contrary, it would not discharge its judicial duty if it failed to define the law’s attitude to this particular defence in particular circumstances. I would decide that the defence is in law admissible in a case of aiding and abetting murder, and so in the present case. I would leave cases of direct killing by a principal in the first degree to be dealt with as they arise.”
131. Lord Edmund-Davies was the third member of the majority and expressed similar views. Lord Simon and Lord Kilbrandon dissented.
132. The next development was the decision of the Privy Council in Abbott v. R. [1977] AC 755. In that case the appellant was charged as a principal in the first degree, and the issue was whether the defence of duress was available. On this occasion Lord Wilberforce and Lord Edmund-Davies were in the minority, with Lord Hailsham, Lord Kilbrandon and Lord Salmon holding that the defence was not open. The majority judgment proceeded on the basis that the Court was bound to “loyally” accept the decision in Lynch, but that it was not an authority which required extension of the doctrine of duress to such a case. Having regard to the doubts expressed in the speeches of the majority as to the applicability of their reasoning to persons who actually carry out killings, combined with the dissenting speeches, it was considered that a majority of the House in Lynch had to be seen as being of the opinion that it should not be extended.
133. It was considered that all English, American and Commonwealth authority, with the exception of Goliath, was against such an extension. Further, the Court rejected the argument that the law was thereby expecting too great a degree of heroism from the ordinary person. Reference was made to the trials of those charged with wartime atrocities, whose defence - that the actions in question were the result of superior orders and duress - was never accepted. The Court continued:
“We are not living in a dream world in which the mounting wave of violence and terrorism can be contained by strict logic and intellectual niceties alone. Common sense surely reveals the added dangers to which in this modern world the public would be exposed, if the change in the law proposed on behalf of the appellant were effected. It might well, as the noble and learned Lord Simon of Glaisdale said in Lynch’s case, prove to be a charter for terrorists, gang leaders and kidnappers.”
134. The question was asked, rhetorically:- “Is there any limit to the number of people you may kill to save your own life and that of your family?”
135. The judgment goes on:
“We have been reminded that it is an important part of the judge’s role to adapt and develop the principles of the common law to meet the changing needs of time. We have been invited to exercise this role by changing the law so that on a charge of murder in the first degree, duress shall entitle the killer to be acquitted and go scot-free. Their Lordships certainly are very conscious that the principles of the common law must not be allowed to become sterile. The common law, as has often been said, is a living organism. During the last decade there have been many important cases in which its principles have been adapted and developed by the judges….Their Lordships however are firmly of the opinion that the invitation extended to them on behalf of the appellant goes far beyond adapting and developing the principles of the common law. What has been suggested is the destruction of a fundamental doctrine of our law which might well have far-reaching and disastrous consequences for public safety to say nothing of its important social, ethical and maybe political implications. Such a decision would be far beyond their Lordships’ powers even if they approved…Judges have no power to create new criminal offences; nor in their Lordships’ opinion, for the reasons already stated, have they the power to invent a new defence to murder which is entirely contrary to fundamental legal doctrine accepted for hundreds of years without question. If a policy change of such a fundamental nature were to be made it could, in their Lordships’ view, be made only by Parliament.”
136. The Privy Council did accept that a murderer who killed under duress would in many cases be less blameworthy than one who killed of his own free will. It was suggested that the appropriate approach to this issue would be to provide that duress, like provocation, should reduce murder to manslaughter and thus allow the trial court to pass a sentence based on all the circumstances of the case.
137. Ultimately, Lynch was overruled in R v Howe [1987] 1 A.C. 417. This judgment deals with two separate cases, in each of which the appellants had been actual participants in killing. The Court of Appeal certified a question as to the availability of duress as a defence in the circumstances.
138. Lord Hailsham, referring to the fact that he had been in the majority in Abbott, said that he had been able to accept Lynch only because it left open the issue as to principals in the first degree, and that was the issue in Abbott. The House of Lords now had the opportunity to reconsider Lynch. His own view was that
“the balance of weight in an unbroken tradition of authority dating back to Hale and Blackstone seems to have been accepted to have been that duress was not available to a defendant accused of murder.”
139. It had been submitted in the course of argument that there might be a “half way house” available, in that duress could be treated as analogous to provocation, with the effect of reducing the crime of murder to manslaughter. Lord Hailsham said of this proposal:
“I find myself quite unable to accept this. The cases show that duress, if available and made out, entitles the accused to a clean acquittal, without, it has been said, the ‘stigma’ of a conviction. Whatever other merits it may have, at least the suggestion makes nonsense of any pretence of logic or consistency in the criminal law. It is also contrary to principle.”
140. Lord Bridge said that it was never open to the House of Lords, in its judicial capacity, to make such a fundamental reform of the law as that involved in Lynch. If duress was to be made available generally as a defence to murder, the proper means to introduce it would be by legislation such as that proposed by the Law Commission. This was because it was for Parliament to decide whether the proposed reform was socially appropriate, but also because it was by legislation alone, as opposed to judicial development, that the scope of the defence could be defined with the necessary degree of precision.
141. Lord Griffiths said (at p. 439):
“For centuries it was accepted that English criminal law did not allow duress as a defence to murder. It was so stated in Hale's Pleas of the Crown (1736), vol. 1, p. 51, repeated by Blackstone in his Commentaries on the Laws of England, 1857 ed., vol. 4, p. 28, and so taught by all the authoritative writers on criminal law. It was accepted by those responsible for drafting the criminal codes for many parts of the British Empire and they provided, in those codes, that duress should not be a defence to murder. In Reg. v. Tyler and Price (1838) 8 C. & P. 616 , Denman C.J. told the jury in emphatic language that they should not accept a plea of duress that was put up in defence to a charge of murder against those who were not the actual killers. Fifty years later, in Reg. v. Dudley and Stephens (1884) 14 QBD 273, the defence of necessity was denied to the men who had killed the cabin boy and eaten him in order that they might survive albeit only Stephens was the actual killer. The reasoning that underlies that decision is the same as that which denies duress as a defence to murder. It is based upon the special sanctity that the law attaches to human life and which denies to a man the right to take an innocent life even at the price of his own or another's life.”
142. He considered that, even after Lynch, the whole weight of authority denied the defence to the actual killer. The Law Commission had, in the intervening period, produced a report in which it was recommended that the defence should be available in all cases, but the draft bill annexed to the report prescribed far narrower terms than previous judicial definitions and would require legislation. Parliament had not acted on the proposal.
143. Lord Griffiths saw no fair and certain basis for distinguishing between different modes of participation, and held that the defence should not be available in a charge of murder. He also rejected the compromise solution of declaring that duress could reduce murder to manslaughter. Where duress was available it was a complete excuse. English law had rejected the line of argument that saw it as mitigation only, and the proposed solution would put the law back to that line or else create a new anomaly.
144. In considering the submission that it would be appropriate for the House to extend the reasoning in Lynch to cover the actual killer, Lord Mackay cited Lord Reid’s approach in Myers v. Director of Public Prosecutions [1965] A.C. 1001 (the well-known hearsay case), where he had said:
“I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases. But there are limits to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations: that must be left to legislation. And if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty.”
145. Lord Mackay also took the view that, having regard to the balance of authority, Lynch was incorrectly decided. It marked a substantial change in the law and a departure from the decision in R. v. Dudley and Stevens. The dilemma faced by the accused in that case was the same as that faced by a defendant who killed as the only way of avoiding death himself or preventing the death of a loved one.
146. He considered that to change the law in the manner suggested would introduce uncertainty over a field of considerable importance, and on a topic about which there were already many unanswered questions.
Discussion
Question 1 - causation
147. The authorities discussed above seem to me to demonstrate the following principles:
(i) Causation in homicide may be broken by exceptionally negligent medical treatment (as in Jordan, where the victim was administered medication to which the medical personnel had reason to know he was intolerant), but it is not disrupted by conventional treatment even if there is evidence that the treatment offered might not have been the best available (Smith). Nor is it broken if the reason for a failure to provide appropriate treatment is a decision by the victim to refuse such treatment (Blaue).
(ii) A lawful and ethically proper decision to withdraw life support where there is a diagnosis of brain death does not mean that the original injury did not cause death if the injury inflicted is still an operational cause of the death (Malcherek and Steel).
(iii) It is an aspect of the Constitutional right to life that, in an appropriate case, a decision may be made that it is in the best interests of a patient to withdraw medical treatment of an invasive nature (In Re A Ward of Court). That decision can involve a choice to let nature take its course where continuation of such treatment serves no curative purpose. Where such a decision is made, the cause of death remains the original injury unless there has been, in the intervening period, a true novus actus interveniens.
(iv) A novus actus interveniens in this context would be something that is so independent of the act of the accused that it should be regarded in law as the cause of death. The fact that the immediate cause of death is an act by a third party does not necessarily break the chain of causation where that act is brought about by the act of the accused and is itself lawful and reasonable (Pagett).
148. In any of these situations, which may arise in any case where the assault does not result in immediate death, the actual date of death will be influenced by factors beyond the actions of the accused. In the absence of a true novus actus interveniens that does not mean that that the chain of causation is broken.
149. Where a person is shot in the head and thereby sustains serious brain injury, paramedics and medical professional personnel will where possible attempt to save the life of the victim. Such efforts may often mean that life will be prolonged to an extent that would not otherwise have been possible. In the modern era, that may well involve a brain-injured victim surviving in a persistent vegetative state, or a condition akin to that, for a lengthy period of time. That in turn may eventually produce a situation where a decision is properly and lawfully taken to withdraw a particular treatment. In the appropriate circumstances this must be seen as part of the range of appropriate medical treatments available. It is not open to the assailant, who brought about the situation whereby the victim required medical treatment, to argue that an otherwise appropriate choice of treatment from that range has altered his or her responsibility.
150. In such a situation, the assailant has no further influence on the timing of the death of his or her victim. Whether or not he or she can be held responsible for the death depends on the evidence in a given case. If, as in this case, the series of medical episodes leading up to the decision in question are all attributed by the medical evidence to the susceptibility of the victim to particular types of infection by reason of the damage to the victim’s brain or body; and that susceptibility is attributable to the condition caused by the original assault, then the injuries inflicted in that assault should be seen to constitute a substantial and operational cause of death.
151. In this case, the decision made by the medical personnel, with the approval of Mr. Kenny’s father, did not involve the withdrawal of treatment. Rather, there was a decision not to embark upon a particular form of treatment. In the circumstances as they obtained, there has been no suggestion that there was anything remotely improper about this. It was not a decision to bring about or accelerate a death that would not otherwise have occurred - that would be unlawful - but to acknowledge the medical reality of the increasing likelihood that death was going to occur and that invasive methods of treatment would not be in Mr. Kenny’s best interests. There was however continued treatment with antibiotics and oxygen, and continued suctioning of the secretions.
152. The reason that the particular decision came to be made in this case was that Mr. Kenny’s condition made him very prone to infection, and he had suffered three episodes of pneumonia of increasing severity over a short period of time. These episodes happened because of the damage to his brain. That was caused by the gunshot to his head. The medical evidence was that because of that damage it was always likely that Mr. Kenny would succumb to infection, most likely pneumonia. It was also a situation where, for that same reason, Mr. Kenny had an extremely poor quality of life. This gave rise to the considerations as to what treatment was truly in his best interests.
153. To hold, in these circumstances, that the act of the appellant caused the death does not involve visiting upon him the consequences of a decision made by others - it entails recognition of the fact that he is responsible for the condition that ultimately led to the death. Whether one describes his action as being an operating and substantial factor, or as a more than minimal factor, the result will be the same.
Question 2 - duress
154. It is clear from reading the authorities cited above that this is a subject that can give rise to strong arguments on either side of the policy issues, often expressed with powerfully rhetorical effect. I have omitted much of the policy discussion because it seems to me that the first consideration is whether this Court has the power to rule, in the applicant’s favour, that duress is a defence available on a charge of murder.
155. The proposition that it does have such power is based, in summary, on the argument that the authoritative status accorded to Hale’s formulation may be incorrect; that the House of Lords considered that it had jurisdiction to extend the parameters in Lynch and this Court has the same power; and that this Court has altered the common law in significant fashion in other cases.
156. As far as the first part of the argument is concerned, it seems to me to be much too late in the day to consider whether or not Hale (writing in the aftermath of the English Civil War) was right. Over the intervening centuries there has been much debate about various aspects of the defence but there is very little to show that it was ever accepted in relation to a charge of murder in a common law jurisdiction. It is true that in R. v. Kray (1969) 53 Cr. App. R. the judgment of the Court of Appeal proceeded on the basis that it was available to a person charged as an accessory. However, the issue for determination in Kray was the effect on the case for the co-accused who were charged as principals, whose counsel appear to have conceded that the defence was potentially open. The balance of authoritative and judicial pronouncements favours the view that the exclusion of murder from the defence was a rule of the common law as of 1922, the time at which this State inherited that body of law.
157. The issue must be therefore be approached on the basis that to either abolish the exclusion or to modify it so as to create a partial defence would be to bring about a significant change in a long-standing rule of law.
158. As to whether the House of Lords was entitled to do what it did in Lynch, I do not think it necessary to go beyond the observations quoted above from Howe as to the circumstances in which that tribunal can alter the common law.
159. In this jurisdiction, the role of the Supreme Court in developing the common law is described by Hogan & Whyte in JM Kelly: The Irish Constitution (4th ed., 2003, Butterworths) at p. 984 in the following terms:
“As far as [common law principles are] concerned, it is plain that whereas the courts have a traditional role in extending and developing the common law (and thus, where necessary, overruling earlier Supreme Court decisions), there are recognised boundaries beyond which the courts cannot go. In other words, while the Supreme Court has latitude to relax the stare decisis rule where to do otherwise would be to re-inforce an earlier decision which is erroneous or not in harmony with modern legal values, nevertheless considerations of judicial continuity together with the maxim communis error facit jus place real restraints on that freedom where the Court is asked to overrule a decision of long-standing or uproot a rule which has become embedded in the fabric of the common law.”
160. In my view, what the appellant seeks here is not the development or extension of existing principles. It is the uprooting of a rule embedded for some hundreds of years in the common law, and the creation of an entirely new rule to apply, as the Court sees fit, to a greater or lesser extent. This is not put forward on the basis of any claim of Constitutional right, but purely on the basis that some other courts of other jurisdictions have preferred the policy of the proposed new rule and the argument that this Court is free to follow that policy.
161. This is not what occurred in either Dwyer or MacEoin. Dwyer, in its consideration of the subjective element in self-defence, was based largely on the Supreme Court’s interpretation of the then relatively recently-enacted s.4 of the Criminal Justice Act, 1964 and its implications for the concept of intention. In MacEoin, the Court of Criminal Appeal was also concerned with that section in relation to the proper test for provocation. It disagreed with a number of English authorities on the issue, and in the absence of any Irish authority set out its own formulation intended to accord with that in Dwyer. The case of J.C. was based, as were the preceding decisions in O’Brien and Kenny, on the Supreme Court’s view of the correct Constitutional approach to the relevant rules of evidence. This Court is the final arbiter on Constitutional matters, and has in certain defined circumstances the right to depart from its own earlier decisions.
162. The proposed alteration to the law relating to the exclusion of murder from the defence of duress comes into a very different category. The Court has, in effect, simply been asked to change the common law. In my view the proposed alteration is so fundamental that it could be introduced only by way of legislation.
163. In the circumstances I would answer the questions respectively “Yes” and “No”.
164. This conclusion leaves the case in a somewhat unsatisfactory state. The appellant now stands convicted of both attempted murder and murder of the same person, arising out of the same action. The Court has been informed that he has lodged an appeal against the conviction for attempt, notwithstanding his plea of guilty. The Director consented to enlargement of time for that appeal.
165. It may be that quashing the conviction for attempted murder is the only way to resolve the apparent illogicality of the appellant’s status, and will not lead to any injustice in the case, although I think that it would probably be the first time that the Court of Criminal Appeal has been asked to quash a conviction where the plea of guilty was unquestionably sound and reliable. However, in my view, it should not be presumed that the course of action taken in this case will always be considered appropriate.
