THE SUPREME COURT
[Appeal No: 41/2016]
The Director of Public Prosecutions
Judgment of Mr. Justice Clarke delivered the 15th June, 2017.
1.1 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.
1.2 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?
2.1 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.
2.2 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.
2.3 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.
2.4 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.
2.5 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.
2.6 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.
2.7 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.
2.8 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.
2.9 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.
3.1 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 blameworthy in respect of any result precisely because, having regard to the nature of the definition of the two offences, the risk created by the careless driver must necessarily be less than that created by the dangerous driver. O'Malley J. goes on to note that, while the consequences of an offence must be taken into consideration, they should not determine the punishment to the exclusion of other relevant factors.
3.2 It seems to me that this is a particularly important aspect of the issues which arise in a case such as this. As O'Malley J. points out “bad” driving lies along a spectrum from the reckless at one end to a mere absence of due consideration at the other. While the law has sought to define certain thresholds where, for example, careless driving passes into dangerous driving, such thresholds are merely an attempt to place the continuum of bad driving into appropriate categories for the purposes of determining both the offence of which a person may be found guilty and the maximum sentence which might be imposed. The fact that there is such a categorisation does not take away from the fact that, in reality, bad driving can be placed along a spectrum in a way with which almost all road users would be familiar.
3.3 It thus follows that careless driving (whether “ordinary” or causing death or serious bodily harm) itself falls on a spectrum from cases which may only be a little more serious than driving without reasonable consideration contrary to s.51A of the Road Traffic Act, 1958 to those which fall just short of dangerous driving.
3.4 O'Malley J. also records that consequences can form an appropriate part of the sentencing process. I fully agree. Indeed, consequences can affect the offence of which someone can properly be convicted. O'Malley J. draws attention to the provisions of s.4 of the Criminal Justice Act, 1964 which determines that unlawful homicide can be prosecuted as murder if the accused intended either to kill or cause serious injury. An accused who intends only to cause serious injury but happens to kill the victim will be prosecuted for murder and, if convicted, will suffer a mandatory life sentence. An accused who, perhaps through no thanks to them, only succeeds, despite an intention to cause serious injury, in causing a minor injury may only properly be convicted of a much less serious assault carrying with it a potentially much reduced sentence. The consequence, ranging from death to minor injury, of an assault which had an intention to cause serious injury can, therefore, have a significant effect on the offence of which the perpetrator can properly be convicted.
3.5 However, it does seem to me that a primary and central feature of the criminal justice system including, importantly, the proper approach to sentencing must be the identification of the culpability or blameworthiness of the accused. Indeed, in that context, it is worth repeating one aspect of the passage from the judgment of Denham J. in D.P.P. v. O’Dwyer  3 I.R. 134 cited by O'Malley J. in her judgment. Denham J. noted that “since even a mere momentary inattention in the driving of a mechanically propelled vehicle can give rise to a wholly unexpected death, the court has always to define the degree of carelessness and therefore culpability of the driving”.
3.6 It is, of course, the case that there are a range of factors which must be taken into account in any sentencing process. It has often been said that a proper approach to sentencing involves an analysis both of the criminal act and the circumstances of the convicted person. In respect of the criminal act it is clear that a court cannot disregard the consequences of that criminal act particularly where, and to the extent that, it might reasonably be said that those consequences were at least potentially foreseeable. Those who take risks may often get away with them but when they do not they can hardly be heard to place undue reliance on the fact that others, who took the same risk in the past, may not have been so unlucky.
3.7 However, it remains the case, in my view, that a central and important part of that aspect of the sentencing process which requires the sentencing judge to analyse the seriousness of the criminal act must, in the words of Denham J. in O’Dwyer, focus on the degree of culpability. Careless driving which is close to the threshold with dangerous driving is significantly more culpable than careless driving which is only just above the threshold with a breach of section 51A. Where the driving in any case falls on that spectrum must represent a central feature of a sentencing judge’s analysis of the culpability of a person convicted of the offence of careless driving causing death or serious bodily harm. Speaking for myself I would find it difficult to see how, everything else being equal, a person found guilty of careless driving causing death or serious bodily harm, where the bad driving concerned was at the bottom end of the spectrum encompassed by careless driving, could legitimately receive a custodial sentence at least in the absence of aggravating or other unusual factors.
4.1 As noted earlier, I entirely agree with the judgment of O'Malley J. and write this concurring judgment solely for the purposes of making a number of observations principally directed to two topics.
4.2 The first set of observations concerns the possibility that there may be an intermediate category of offence between strict liability offences and those requiring mens rea. For the reasons which I have sought to analyse, I do not think that it is necessary, for the purposes of the resolution of this appeal, to reach any definitive conclusion on that question, but I offer a number of observations on that topic.
4.3 Second, I offer some observations, supplemental to those set out in the judgment of O'Malley J., on the proper approach to sentencing in a case such as this.