Court of Criminal Appeal dismisses appeal against conviction for reckless endangerment following jury acquittal on manslaughter. The court upholds the trial judge's decision to leave the count to the jury based on clear statutory language and evidence of conduct creating a substantial risk of serious harm. The verdict stands as the elements of the offence were specific and addressable by the jury independently of the manslaughter acquittal.

[2004] IECCA 11

COURT OF CRIMINAL APPEAL

C.C.A. NO. 154 of 2002

Denham J.

Ó Caoimh J.

Butler J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

RONAN MCGRATH

APPLICANT

Judgment of the Court delivered on the 27th day of May, 2004 by Denham J.

1. Ronan McGrath, the applicant, hereinafter referred to as the applicant, has sought leave to appeal against his conviction and

sentence by Dublin Circuit (Criminal) Court (His Honour Judge Patrick McCartan) on 26th June, 2002. This court heard his application in

relation to the conviction together with the application of Fergal Cagney against his conviction.

2. The applicant was brought before a judge and jury in the Dublin Circuit (Criminal) Court on an indictment containing three charges:-

Count No. 1

Statement of Offence

Manslaughter contrary to common law.

Particulars of Offence

Ronan McGrath and Fergal Cagney on the 30th of August, 2000 at Grove Road in the county of the city of Dublin did unlawfully kill one

David Langan.

Count No. 2

Statement of Offence

Reckless endangerment contrary to section 13 of the Non-Fatal Offences Against the Person Act, 1997.

Particulars of Offence

Ronan McGrath and Fergal Cagney on or about the 25th of August, 2000 at Grove Road in the county of the city of Dublin did

intentionally or recklessly engage in conduct which created a substantive risk of death or serious harm to another.

Count No. 3

Statement of Offence

Threats to kill or cause serious harm contrary to section 5 of the Non-Fatal Offences Against the Person Act, 1997.

Particulars of Offence

Ronan McGrath on or about the 25th of August, 2000 at Grove Road in the county of the city of Dublin did without lawful excuse

make David Langan a threat which he intended he would believe would be carried out to kill or cause him serious injury.

3. At the end of the prosecution case the jury were directed to bring in a verdict of not guilty on Count No. 3. Applications for a

direction made in relation to Counts No. 1 and 2 were refused by the trial judge. Counts No. 1 and 2 were left to the jury.

4. On 26th June, 2002, the jury acquitted the applicant of the offence on Count No. 1, manslaughter, but found him guilty of the

offence on Count No. 2, endangerment. He was sentenced to 15 months detention by the learned trial judge.

5. The applicant has sought leave to appeal. He applied for and was granted bail pending the hearing of the appeal. The grounds of

his application for leave to appeal are as follows:-

1. The learned trial judge erred in law in failing to withdraw Count No. 2 from the jury on the application for a direction in

respect of that Count.

2. The verdict of the jury is inconsistent insofar as he was acquitted of manslaughter but found guilty of endangerment

contrary to s. 13 of the Non-Fatal Offences Against the Person Act, 1997.

6. David Langan was born in 1981 and died on the 30th of August, 2000, in Beaumont Hospital as a result of injuries he sustained to

his head near Portobello Bridge in the early hours of the 26th August, 2000. He was buried on 2nd September, 2000. At the time of his

internment it was believed that he sustained his injuries as a result of an accidental fall. More information as to the circumstances of

his death then emerged. By order of the Minister for Justice, Equality and Law Reform his body was exhumed on 18th December, 2000,

for further autopsy.

7. The evidence given at the trial was that David Langan, the deceased, aged 19 years, had attended the Palace Nightclub on

Camden Street in Dublin on the evening of the 24th August, 2000. At about 1 a.m. on the 25th August, 2000, the applicant and his

cousin Fergal Cagney arrived. The applicant had been working in a public house earlier in the evening. The applicant was aged 17

years at the time of the incident while his cousin was aged 19 years. At about 3 a.m. the Palace Nightclub was closing and a number

of people congregated outside the club. It was common case that a large amount of alcohol had been consumed by all concerned. An

incident arose outside the nightclub during the course of which the deceased David Langan was seen to push the applicant with some

degree of force into the shutters of the nightclub. The applicant became annoyed and was heard to shout at the deceased in an

aggressive manner. At this point various friends intervened to hold both parties back from each other. The deceased, David Langan,

was lead away by Philip Rahill down Camden Street in the direction of Portobello Bridge. Philip Rahill was seeking to find a taxi for

David Langan. The applicant went up the road after David Langan. The applicant was accompanied by Thomas Rooney and his cousin

Fergal Cagney. The applicant was restrained by Thomas Rooney and by Fergal Cagney. At the times when he was nearest David

Langan there was shouting between them. The applicant was heard to say words to the effect of “why did you push me into the

shutters.” When David Langan reached Grove Road on the far side of Portobello Bridge he sat on a low wall by the canal while Philip

Rooney tried to hail a taxi. The applicant, Thomas Rooney and Fergal Cagney reached the bridge. The argument between the

applicant and the deceased continued. At some point the applicant was held back by Thomas Rooney while Fergal Cagney placed

himself between the applicant and the deceased. Examples of the evidence are set out herein. This illustrates the high point of the

prosecution case. Thomas Rooney gave evidence that the applicant was trying to get past him and was threatening the deceased.

The transcript sets out evidence of Thomas Rooney as follows:

“744 Q. What happened?

A. And then they started squaring up for each other and I thought Ronan was going to go for him.

745 You said ‘squaring up’?

A. Squaring up, yes, they got in each other’s face.

746 Q. What happened?

A. Then I thought Ronan was going to go for him; it looked like he was. I grabbed Ronan by his jacket at the

front around his neck, around that area and pushed him right back.

747 Q. What was his reaction to that?

A. He was trying to come forward, still trying to push past me.

748 Q. Was he saying anything?

A. And then he told Fergal to hit David.

749 Q. Before that, as you were pushing him back was he saying anything or what was his reaction to your interference?

A. He wasn’t really saying anything to me, he was more trying to get by me and saying things to David.

750 Q. What was he saying to David?

A. He was threatening David.

751 Q. What was he saying to threaten him or what was he threatening him with?

A. Threatening to beat him up and threatening to kill him.

752 Q. Was this said in a calm fashion?

A. No, it was heated.

753 Q. Did you find it easy to hold him back?

A. Not very, at all, no.

754 Q. Now, where was Fergal at that stage?

A. Fergal was on my left-hand side beside the canal wall.

755 Q. What happened?

A. And then when Ronan asked Fergal to hit him he went and hit him.

756 Q. Can we take that slowly? What did Ronan say?

A. Ronan said ‘hit him Fergal.’

757 Q. Meaning to hit who?

A. Hit David.

758 Q. Now was this said in calm fashion?

A. No.

759 Q. Would you describe what happened?

A. He shouted, he roared it.

760 Q. He shouted, he roared at him. What happened then?

A. Then Fergal went and hit David once and David crouched forward and he hit him again. Then I went to…I

went…turned to my left to try and get a hand to Fergal and then Ronan came forward again and started

pushing me back. So I turned and started pushing him forward again. And when I turned around again David

was on the road on my right.

761 Q. Now you said you saw Fergal hit him once and then hit him again?

A. Hit him again, yes.

762 Q. Could you describe the first blow? What did he hit him with, where did he hit him?

A. This part of his hand here. (INDICATING).

763 Q. You are using the heel of your right hand.

A. The heel of my hand.

764 Q. You have your fist closed?

A. My fist closed, yes.

765 Q. That is what he hit him with?

A. Yes.

766 Q. Where did he hit him?

A. Around the ear, just above the ear.

767 Q. Is this his left ear or right ear?

A. His left ear.

768 Q. You say you saw then there was a second blow?

A. Then David’s head was lower for this one and he hit him in the back of the head with the same part of his

hands.

769 Q. Could you indicate yourself where you mean in the back of the head?

A. I would say around there. (INDICATING).

770 Q. You are indicating the lower crown of the head?

A. Yes.

771 Q. Now you said David was doing something at that stage, between the two blows?

A. He was crouched down at this stage kind of grabbing onto Fergal’s jacket, the bottom of it.

772 Q. What happened then?

A. And then Ronan came forward and pushed me off balance when I tried to grab Fergal and I turned around

to push him back. When I turned around again David was down on my right-hand side on the road.

773 Q. When you say he was down on your right-hand side of the road, could you just have look at either photograph No.

3 or any of them, No. 2 or No. 3 and see if you can help us as to where he was on the road when you saw him?

A. He was lying on the yellow lines; his head was on the yellow lines and his feet were towards the bridge.

774 Q. Now was his body all along the yellow lines or was it partially on the foot path or straight or at an angle?

A. I am pretty sure it was all off the foot path.

775 Q. Can you say how did he fall, did he fall face down or back down or on his back?

A. When I saw him he was back down. I never saw him fall.

776 Q. You did not see him fall?

A. I didn’t see him fall, no.

777 Q. What happened then?

A. Then, Ronan phoned an ambulance.

778 Q. What happened?

A. And I think it was Philip, Ronan and Fergal were trying to revive David by, they dipped the coat Fergal was

wearing into the canal to dampen it and were dabbing his head.

779 Q. At this stage was he on the road or?

A. They had picked him up and brought him back to the canal wall and had him sat against it.

780 Q. Sat against the canal wall?

A. Sat against it, yes.

796 Q. Now you have described the blow, the blows should I say that were given. You have described them being with

the heel of the right hand?

A. Yes.

797 Q. Can you make any comment about the strength of them?

A. They look quite powerful punches.”

(See Transcript of evidence heard on Tuesday 18th June, 2002, Book B).

A local resident, Colm Burgess, gave evidence of being woken by the noise:

“337 Q. Saying that you saw it at various times, you give the impression you watching for some time, how long would you

have been watching?

A. Maybe five, ten minutes.

338 Q. You had described the smaller of the young or at least a smaller one of the young men attempting to calm down

the man you described as more aggressive. Can you tell us what that was about or what you saw precisely?

A. I don’t remember much of the content of what the guy was shouting except that it was very loud and

quite aggressive. I remember at one stage getting the impression, but I can’t remember specifically what gave

me the impression, that it was over an incident that had happened earlier. I don’t remember the shorter guy

specifically what he was saying to the guy he was trying to calm down but I remember from the body

language that he was trying to, appeared to be trying to calm him down.

339 Q. Did he succeed in calming him down as you were watching?

A. I remember he had stopped shouting for a while and he would start off again. I remember at one time the

guy who was further away who was being shouted back seemed to be coming back towards the main group.

The guy who was shouting at him started shouting more and seemed to get more angry and then I remember

as he came closer to the other two, the guy who was shouting and the guy who was trying calm him down, I

remember the guy who was trying to calm down the aggressive guy seemed to be holding him and the guy

who was moving back seemed to try and move around the pair of them on the edge of the pavement and I

remember having an impression that the aggressive guy was flailing his arms or swinging his fists around or

over the guy who was trying to hold him, in the direction of the guy who is coming back and moving around

them.

340 Q. This is the man who had been in the check shirt?

A. Yes. At that stage the guy in the check shirt, who was trying to move around to two, was on the edge of

the pavement and I remember him suddenly falling down and back out onto the road.

341 Q. When you say down and back, do you mean he fell on his back?

A. Yes he fell down and it seemed like his back arched and he went back onto the road and I remember

hearing his head hit the road.

342 Q. Had you your window open at this stage?

A. Yes.

346 Q. You have described seeing the man falling down and backwards, did he land completely in the road or did he land

on the footpath or where did he land?

A. I think he landed completely on the road because he was standing just on the very edge of the footpath

just before he fell.

347 Q. At the time he fell, how close was he to the rest of the group?

A. From the impression I have is that he was very close to the guy who was shouting and swinging his arms

and the guy who was holding him, the guy who was holding the guy who was shouting was between the two

so they were very close together. I don’t remember where the other two were, I think in the vicinity standing

back more towards – there is a low wall.

348 Q. When you say close the them, were they within arm’s length or arm’s reach of one another?

A. Yes.

349 Q. Did you see what had caused him to fall?

A. It happened very quickly so I couldn’t, I remember having the impression that the guy who had been

shouting was swinging his arms and fists at the time the guy fell in his direction but I couldn’t for definite say

that I saw a fist or hand hit him because I was looking … the guy who fell, his back would have been to me

and a little down to the right and there was a guy standing between him and the guy swinging his fists so the

guy swinging his fists might have been partially obscured from my view.

350 Q. When the man in the check shirt who fell hit the roadway, how close was he to the remaining persons who were

standing there?

A. When he was on the road?

351 Q. Yes.

A. He would have been right beside the two, they would have been a couple of feet into the pavement,

standing on the pavement a couple of feet away.

352 Q. So when you say he went down and back, it did not involve any movement along the road?

A. Not to my recollection.

353 Q. What happened then after he hit the ground?

A. I remember, just before he fell, being aware of a car that seemed to be slowing down and I got the

impression it was pulling in. I kind of presumed it might have been a taxi, that the guy who was trying to

mediate had been hailing earlier and it was slowing down just as he fell and he fell maybe 6 or 10 ft in front of

it and it stopped. I remember getting the impression somebody was going to get out of it but then it pulled off

again and I remember it had to manoeuvre around his body to drive off towards Portobello Bridge.

I am also aware that at the moment he fell that the other four guys seemed to be stunned, I got the

impression they were stunned by what happened, that were frozen for a second or two. I remember the guy

who was trying to calm things down ran over to the guy on the road and he seemed to be trying to lift him up

and I remember him shouting to the others to give him a hand and I think two of the others came over and

they lifted his body up and lifted it back onto the pavement and placed him in a sitting position on the

pavement, propped up against that low wall between the pavement and the canal and I think the guy who

had been trying to mediate sat down on the wall beside him and seemed to be trying to support his body.

I remember at that stage I thought maybe I should phone an ambulance but then I noticed that the guy who

had been doing all the shouting had walked up a little bit towards Portobello Bridge and he seemed to be

talking on a mobile phone so I presumed he was phoning an ambulance. After a few moments he stopped

talking on the phone and walked back towards the main group and I remember being aware that he seemed to

be very upset because I remember one of the other five seemed to hug him as if he was trying to comfort

him. He possibly might have been crying but I am not sure.

354 Q. Shortly after that a police car arrived?

A. That is correct.”

(See Transcript of evidence heard on 19th June, 2002, Book C).

8. Trial Court Ruling

The learned trial judge ruled, on the application for a direction, that the essential ingredients of s. 13 were present and that he would

be usurping the role of the jury if he granted the direction.

The learned trial judge ruled as follows:

“Having considered the evidence there is no escaping the fact that the prosecution have produced evidence which

establishes that a blow or blows were struck by Fergal Cagney. This was done on the instructions or at the request of

Ronan McGrath while he was being restrained, which amounts to actual encouragement and participation, constituting

common purpose. This action caused the fall which caused the death. There is evidence for the jury to consider that had

the words ‘hit him, fucking hit him’ not been said and acted upon, the fall would not have taken place resulting in injury

and death on 30 August 2000.

In this trial there is an explanation consistent with innocence in the statement of Fergal Cagney, but that is not the only

evidence implicating the accused in the alleged crimes.

It is for the jury to decide whether the striking of the deceased in the circumstances had with it the intention being more

than trivial or negligible in character. Surely it is a matter for the jury to decide whether the purpose of the assault in all

the circumstances was to leave David Langan in a position where he could not fight back. It is for the jury to decide

whether the explanation already referred to triggers the defence which arises by virtue of section 13, as there is evidence

other than the explanation.

It appears to me there is evidence that it is open to the jury, properly directed, to record a verdict of guilty on both

Counts 1 and 2, as the essential ingredients of manslaughter are there, as are the essential ingredients for the offence

created by section 13 of the Non-Fatal Offences Against the Person Act, 1997, which is intentional or reckless conduct

which created a risk of death or serious harm.

I take the point made by Mr. Durack for the prosecution that I would be usurping the function of the jury in granting a

direction. However, in relation to Count No. 3 in the Indictment, it appears to me that the evidence is tenuous, as

Thomas Rooney, as I understand his evidence, conceded that he might have been mistaken as to what was said by Ronan

McGrath at the material time.

I therefore accede to the application in respect of Counts No. 3. I must refuse both applications relating to Counts No. 1

and 2 in the Indictment.”

(See Transcript F, p. 6 et seq, Monday 24th June, 2002).

9. Charge of Trial Court

In the course of his charge to the jury the learned trial judge addressed the issue of the offence of endangerment, stating:-

“The second count is a count which is created by the Non-Fatal Offence Against the Person Act of 1997, and that is

created by section 13 of that Act. Again the ingredients will be set out for you on the issue paper. Section 13 says:

‘A person shall be guilty of an offence who intentionally or recklessly engages in conduct which creates a

substantial risk of death or serious harm to another.’

So you have to be satisfied that there was an intentional or reckless engagement in conduct which created a substantial

risk of death or serious harm to another.

Serious harm is defined for us by the statute which creates the offence, and it says:

‘Serious harm means injury which creates a substantial risk of death, or which causes serious disfigurement or

substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily

member or organ.’

As I have said, the ingredients are set out. You must be satisfied that this was done intentionally or recklessly, and that

the conduct created was of such a substantial risk of death or serious harm to another. The other of course – that is in

the evidence – is David Langan.”

10. The Law

The offence of endangerment was established by s. 13 of the Non-Fatal Offences Against the Person Act, 1997. This act is described

in the long title as an act to revise the law relating to the main non-fatal offences against the person and to provide for connected

matters. Section 2 defines the offence of assault, and provides that a person found guilty under the section shall be liable to a fine

not exceeding £1,500 or to imprisonment for a term not exceeding 6 months, or both. Section 3 sets out the offence of assault

causing harm, for which the penalty (on indictment) may be a fine or a term of imprisonment not exceeding 5 years, or both. Section

5 relates to threats to kill or cause serious harm. Section 6 deals with syringe attacks. Section 7 creates the offence of possession of

a syringe in certain circumstances. Section 8 deals with the placing or abandoning of a syringe. Section 9 relates to coercion, Section

10 deals with harassment. Section 11 creates the offence of demand for payment of a debt where the demands are of a specified

nature. Section 12 covers the offence of poisoning. It is s. 13 which is in issue in this case. It provides:-

(1) A person shall be guilty of an offence who intentionally or recklessly engages in conduct which creates a substantial

risk of death or serious harm to another.

(2) A person guilty of an offence under this section shall be liable –

(a) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or

to both, or

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 7 years or to both.

“Serious harm” is defined by s. 1 as:

“injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of

the mobility of the body as a whole or of the function of any particular bodily member or organ.”

The 1997 Act further established under s. 14 an offence relating to endangering traffic, under s. 15 an offence of false imprisonment,

under s. 16 an offence of child abduction by parent, guardian, and under s. 17 abduction of a child by other persons. Section 18

describes justifiable use of force. The Act of 1997 also provides for other specific matters relating to offences against the person.

The term “reckless” is not defined in the Act. However, recklessness has been considered in People (DPP) v. Murray [1977] I.R. 360,

where at p. 403 Henchy J. stated:-

“In my judgment, it is not proper to construe either s. 38 of the Offences Against the Person Act, 1861, or s. 1 of the

Criminal Justice Act, 1964, in such a way as to make those sections hardly ever applicable to assaults on or murder of

policemen in plain clothes. In the case of such an assault or murder, the required mens rea as to the victim’s occupation

and activity is a matter of intention or, in the alternative, recklessness. Just as a person who does not intend an assault

may be held guilty of an assault if he has been reckless as to whether his physical activity would have that effect (R v.

Venna [1975] 3 W.L.R. 737), so a person may be found guilty of the capital murder of a Garda if it is shown (a) that he

murdered the Garda and (b) that he was reckless as to whether his victim was a Garda acting in the course of his duty.

The test of recklessness in this context is well stated in the Model Penal Code – s. 2.02(2)(c) – drawn up by the

American Law Institute:-

‘A person acts recklessly with respect to a material element of an offence when he consciously disregards a

substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of

such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances

know to him, its disregards involves culpability of high degree.’

What is in issue on this aspect of the case is recklessness not as to the consequences of an act but as to a concomitant

circumstance of an act. In dealing with whether simple ignorance will displace recklessness in that context, Professor

Glanville Williams (Criminal Law; The General Part; 2nd ed., p. 152) has written:-

‘A person who does not know for certain whether or not a fact exists may think that its existence is probable, or

only possible; or he may have given no thought to the question of probability or possibility. The last will be

particularly likely if he does not know the criminal law and so does not realise the relevance of the fact to his legal

responsibility. The proposition to be maintained is that in each of these situations there is recklessness for legal

purposes. Simple ignorance is not enough to displace recklessness. It is only where the actor’s mind is filled with

mistaken knowledge that the act is not reckless (though it may be negligent) as to that circumstance.’”

The offence created by s. 13 of the Act of 1997 is a new offence. It has constituent parts. Thus a person shall be guilty of the

offence:

(i) who intentionally or recklessly,

(ii) engages in conduct,

(iii) which creates a substantial risk of death or serious injury,

(iv) to another.

In Charleton, McDermott, Bolger, Criminal Law, (Dublin, 1999) at para. 9.161, it is stated:-

“Section 13 of the 1997 Act creates a general offence of endangerment, where the accused intentionally or recklessly

engages in conduct which creates a substantial risk of death or serious harm to another.

If death does occur, murder or manslaughter should be charged depending on what may be proven.”

The authors discuss the applicability of the offence to the field of sport. Its application is considered further in paragraph 9.163:-

“The section might also apply in the circumstances described by Mr. Thomas Finlay in his report on the scandal in the

Blood Transfusion Service. To know that, for example, blood products are contaminated with a serious viral disease and to

fail to take steps to isolate and eliminate that contaminated blood destined for transfusion, or to fail to warn colleagues in

the system who might use the blood, as to the presence of that contaminant or to fail to use one’s best endeavours to

honestly deal with the problem is, it is submitted, an example of recklessly engaging in conduct which creates a

substantial risk of death or serious harm to the ultimate users of transfused blood.”

This offence came to the statute book subsequent to the recommendation of the Law Reform Commission: Report on Non-Fatal

Offences Against the Person (LRC 45-1994), hereinafter referred to as the Law Reform Commission Report. The Act of 1997 repealed a

large portion of the Offences Against the Person Act, 1861 and is a reform of the law.

In view of the fact that in issue in this case is a new general offence, and that the applicant referred the court to the Law Reform

Commission Report, and consequent to which Report the legislation was enacted, the court refers to the said Report in some detail.

Of the proposal to amend the law on endangerment the Law Reform Commission reported:-

“Endangerment

9.230 The Commission recognises that the creation of a new general offence of endangerment would represent an

innovation in our criminal law, as Smith has observed, not without its difficulties:

‘There is much to be said for a recognisably coherent set of underlying attitudes and standards relevant to the

imposition of endangerment liability whatever the context. The chances of achievement of these objectives –

whether relating to prosecutorial policy, the nature of substantive liability or levels of punishment – would be

enhanced if the sources of liability were less fragmentary. English law offers an ad hoc and generally pragmatic

approach to the question of when risk creation ought to be penalised; the particular need, unless perceived as

being especially compelling, will go unrecognised by the criminal law. In itself such an attitude is far from being

objectionable; however, the practical demonstration of the need for and value of a more general prohibition of

unjustifiable risk taking is inherently problematic. The difficulty lies in the very limited visibility of the ‘endangerment’

involved, it being often transient and either unwitnessed or lacking residual probative evidence. It is frequently on

anticipatory observation or inspection of particular intrinsically hazardous activities (such as driving or running an

industrial operation) by designated bodies (such as the police and the factories inspectorate) that produces the

evidence of endangerment which would otherwise probably continue until actual harm materialises.

The benefits of generalising endangerment liability are necessarily speculative. The equivocality with which

generalised endangerment liability is regarded in America is well demonstrated by the extensive differences in the

use and grading of offences. However, any complete examination of the law relating to offences against the person

ought to include an evaluation of the proper scope and form of endangerment liability The issue is worthy of, and

requires, a full airing.’ Smith, Liability for Endangerment: English Ad Hoc Pragmatism and American Innovation

(1983) Crim. L. Rev. 127 at 135.

9.231 The strongest objection in theory to the creation of a general offence of endangerment relates to the proper reach

of the criminal law. Such liability would extend to reckless acts not resulting in harm or injury which would not even incur

civil liability, and which would, as Smith points out, be inherently uncertain. These arguments may nevertheless be readily

countered.

9.232 In the first place, the criminal law is not solely concerned with actual harm, and in many ways already extends to

acts which endanger life or health irrespective of the occurrence of injury. For example, if A attempts, incites B or

conspires with C to injure V, he commits an offence even though no injury is in fact inflicted – the mere attempt,

incitement or conspiracy suffices. Moreover, it has been seen that there are numerous ‘precursor’ offences relating to the

unlawful possession, manufacture or sale of firearms, offensive weapons and explosives. And those elements of the

common law offence of public nuisance which are concerned with acts which interfere with comfort, enjoyment or health

and acts dangerous to public safety are essentially offences of endangerment.

9.233 An offence of endangerment, recently created, is that of discharge of a firearm, being reckless as to whether any

person will be injured, in s. 8 of the Firearms and Offensive Weapons Act, 1990.

9.234 It has also been seen that the Offences Against the Person Act, 1861, provides for offences of endangerment in s.

17 (impeding persons endeavouring to save themselves or another from shipwreck), s. 31 (traps) and ss. 32-34

(railways). Section 9 of the Conspiracy and Protection of Property Act, 1875, relating to the breaking of a contract of

service or of hiring, is also an offence of endangerment, though based in negligence. Dangerous and careless driving are

summary offences under the Road Traffic Acts. Controlled drugs tend to be dangerous.

9.235 Clearly, then, our criminal law already condemns many acts of endangerment. In this connection, the idea of

providing for general liability is not new. In 1846 and 1848, the English Criminal Law Commissioners recommended the

creation of two such general offences: one being an offence of maliciously putting the life of another in danger, the other

that of negligently causing danger to the life of another. Second Report of the Criminal Law Commissioners (1846);

Fourth Report (1848). In the event, no such offences found their way into the Criminal Law of England, though more

recently an offence of damaging property ‘with intent to endanger life or with recklessness in that regard’ S. 1(2)a of the

Criminal Damage Act, 1971. has been created in England, and in our Report on Malicious Damage, we recommended the

enactment of a similar offence in Irish Law. LRC 26-1988, para. 40.

9.236 Whereas such an offence, in common with offences relating to traps, railways, weapons and explosives, is

concerned with a special hazard involving particular risks, the offence of public nuisance may also be seen as involving a

special factor justifying the intervention of the criminal law, namely its ‘public’ element. Absent such special

circumstances, it may be argued that there is no need for an offence of general application.

9.237 On the other hand, and as argued by the authors of the Model Penal Code, there is no reason in principle why the

criminal law should penalise only such reckless conduct as results in injury. On the contrary, principle may demand that

the fortuitous consequences of a person’s conduct should be irrelevant to the issue of culpability, as under the New

Zealand Crimes Bill. On this view, the occurrence of harm is a pointer but no more than a pointer to the existence of risk.

The recklessness of the particular conduct will fall to be determined as in any other offence of recklessness. Supra,

Chapter 5.

9.238 Moreover, the right to bodily integrity would be given more comprehensive and consistent protection by the

creation of such an offence. In the first place, it would cover the gap in existing law arising from the fact that a person

who recklessly creates a risk of serious injury commits no offence although he may be prosecuted for attempt where he

does so intentionally, or for causing serious injury where such injury results. In certain cases, where the evidence of

intent is insufficient, it may provide a valuable alternative to a charge of attempted murder or attempting to cause serious

injury.

9.239 Secondly, it would provide a useful supplement to existing specific offences of endangerment. In this connection,

the general offence would not be designed to replace all such offences, which in many cases would be the subject of

greater penalties on account of the special hazards of the conduct sought to be prevented, but would provide instead for

a residual generic offence. This would have the particular advantage of removing some anomalies which arise from the

operation of existing law.

9.240 For example, if a builder causes obvious danger to the lives of others in the course of demolishing a building, he will

commit a serious offence under the proposed offence of ‘malicious damage’ referred to above, but may only be guilty of a

far less serious offence under the Safety, Health and Welfare at Work Act, 1989, if he creates a similar degree of danger

in the course of constructing a new building.

9.241 If the defendant is responsible for the design or construction of a building or of a domestic appliance and, fully

aware of the risks, constructs a building which subsequently collapses when empty or installs such an appliance without

ensuring adequate ventilation for the noxious fumes produced, he or she may only be liable to a fine for infringement of

building regulations. ‘Individually, these and the many other imaginable cases are hardly of overwhelming importance, but

their collective significance is less easily dismissed. Smith, op cit. Moreover, they are not easily distinguishable from more

commonly occurring and unacceptably risky, behaviour which is at present penalised, such as reckless driving, and the

objectives and justifications for penalising the latter may be viewed as having similar relevance to the less frequent or

less predictable cases of endangerment.

9.242 In such cases of advertent risk-taking, where the risk of serious injury or death may be said to be ‘substantial’,

there is clearly a strong case for facilitating early intervention by authority to prevent the occurrence of actual harm. The

creation of a general offence of endangerment would also give effect to the principle that the wanton disregard of others’

safety is in itself deserving of condemnation and sanction as a serious infringement of basic values, irrespective of the

manner in which such a risk is taken.

9.243 That such an offence does not in itself unduly extend the proper scope of the criminal law is supported not only by

its inclusion in most U.S. criminal codes, but also by its incorporation in the penal codes of several European countries as

a useful supplement to specific endangerment provisions. See Law Reform Commission of Canada, Working Paper No. 46,

Omissions, Negligence and Endangering (1985), 35. Poland, Sweden and Austria are among the countries with general

endangerment provisions. The undue expansion of liability may be avoided, in the view of the Commission, by limiting the

offence:

(a) to acts of advertent risk-taking, i.e. recklessness; and

(b) to such acts as create a substantial risk of death or serious harm to another person. Recklessly placing another

in danger of injury less than ‘serious harm’ should not be covered, and the circumstances must be sufficiently

serious to create a ‘substantial risk’ of such harm, this being a question of fact for determination on the evidence.

9.244 Acts which are not complete in themselves, i.e., whose consequences are more lasting, such as the contamination

of a building or of a water supply, will clearly come within the offence. Equally, it follows from our recommendations as to

liability for omissions that a person who creates a substantial risk of death or serious injury to another in breach of any of

the specified duties may be prosecuted for such omission on a charge of endangerment.

The Commission would therefore recommend that the following statutory offence of endangerment be created:

‘A person is guilty of an offence who intentionally or recklessly engages in conduct which creates a

substantial risk of death or serious harm to another person.’

9.245 The offence should be triable either way and punishable on conviction on indictment by 5 years

imprisonment. In this connection, whereas the Commission recognises that there are arguments of both policy and

pragmatism against placing endangerment for all purposes on the same footing as the actual causing of harm, we

nevertheless consider that 5 years is an appropriate penalty for recklessly creating a substantial risk of death or serious

harm.”

Consequently, as may be seen, the legislature established this new offence of endangerment and followed the wording suggested by

the Law Reform Commission.

11. Submissions

Oral and written submissions were made on behalf of the applicant and the Director of Public Prosecutions. On behalf of the applicant,

in relation to Count No. 2, the issues which had been raised during the trial on the application for a direction, that the case be

withdrawn from the jury, were re-argued. It was submitted that s. 13 of the Non-Fatal Offences Against the Person Act, 1997

required a particular mens rea and actus reus which had not been reached. The section, it was submitted, required an intention or

recklessness to engage in conduct which created a substantial risk of serious harm or death. It was submitted that there was no

evidence as to intention or recklessness. It was also submitted that the conduct was not such as would create a substantial risk of

serious harm. It was submitted that there had been an expression of anger and aggression but that this was insufficient to come

within the statute. It was submitted that the trial judge did not adequately direct himself as to the ingredients of the offence under

s. 13.

On behalf of the Director of Public Prosecutions it was submitted that there was sufficient evidence before the court from which a

jury could find or infer evidence of the ingredients of the offence of endangerment as against the applicant. It was submitted that

there was evidence that the applicant meant serious harm to David Langan. It was a matter for the jury to decide whether by roaring

the words “hit him”, having threatened to do serious harm to David Langan, the applicant counselled or procured the blows that were

struck by Fergal Cagney.

12. Decision

12.1. At issue on this appeal is a legal submission as to an offence new to our law – endangerment.

12.2. In prosecuting an offence the prosecution carries an evidential burden. This was described in DPP v. Gilligan [1993] 1 I.R. 92. In

that case the Court of Criminal Appeal held that the role of the trial judge at the close of the prosecution’s case at a trial was to

decide whether or not a prima facie case was made out; in so doing a judge was not required to accept or reject any particular

evidence, but to look at the evidence from the high point of the prosecution’s case. This is the approach adopted by this Court, thus

the evidence is looked at from the high point of the prosecution’s case. Examples of this evidence have been set out previously in this

judgment.

In DPP v. Gilligan reference was made to R v. Galbraith [1981] 1 W.L.R. 1039, by O’Flaherty J., thus:-

“In giving the judgment of the Court of Appeal, criminal division, Lord Lane L.C.J. (with Pain and Stuart-Smith L.JJ.) said

at p. 1062:-

‘Where the prosecution evidence is such that its strength or weakness depends on the view to be taken of a

witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one

possible view of the facts there is evidence on which a jury could properly come to the conclusion that the

defendant is guilty, then the judge should allow the matter be tried by the jury.’”

The Court applies this dictum to this case. The strength of the prosecution case depends on the view to be taken on the reliability of

witnesses and other matters which come within the provenance of the jury. On a possible view of the facts there is evidence upon

which a jury could properly come to the conclusion that the defendant was guilty and so the matter should be left to the jury.

The constituents of the offence are: (a) the mens rea of intention or recklessness: which may be inferred from the evidence; (b)

conduct, actus reus, which is a matter of evidence; (c) which conduct creates a substantial risk of death or serious injury: a matter

for determination on the evidence; and (d) to another.

12.3. Accordingly, the Trial Judge must look to the prosecution case at its highest in the context of the offence prosecuted. This

includes the following:-

(i) Ronan McGrath pursued David Langan to Portobello Bridge in an aggressive manner so as to suggest his intention was

to attack David Langan.

(ii) At the canal area Ronan McGrath was shouting and threatening David Langan, in a manner suggesting that he might

do him serious harm.

(iii) Ronan McGrath was held back by Thomas Rooney.

(iv) Ronan McGrath roared at Fergal Cagney to hit David Langan for him.

(v) Fergal Cagney hit David Langan.

(vi) Fergal Cagney made his hand into a fist and struck David Langan twice on the head with the bony part of the heel of

his hand.

(vii) The punches were quite powerful.

(viii) After the punches David Langan stumbled and hit his head off the ground.

(ix) Striking blows to the head of a person, especially if they have taken alcohol as was known to have happened in this

situation, is conduct which creates a substantial risk of harm.

These facts fall to be considered in light of the legal ingredients of the offence. The evidence of Ronan McGrath pursuing, shouting at

and threatening David Langan is such that an intent may be inferred from it as to whether he intentionally or recklessly engaged in

conduct which creates a substantial risk of death or serious harm to David Langan. The mens rea is one of intention or recklessness.

As Henchy J. said in DPP v. Murray [1977] I.R. 360, p. 403 “a person who does not intend an assault may be held guilty of an assault

if he has been reckless as to whether his physical activity would have that effect.” Similarly, in this case, even if the applicant did

not intent the endangerment (and that is not an issue which was closed to the jury) he may be guilty of endangerment if he has been

reckless as to whether his conduct would have that effect.

(i) In this case, on the prosecution’s evidence at its highest, the evidence as to the conduct of the applicant was that he pursued

David Langan to Portobello Bridge in an aggressive manner so as to suggest his intention to attack David Langan, at the canal area.

He shouted and threatened David Langan in a manner suggesting he might do him serious harm, he shouted to Fergal Cagney in an

aggressive manner to hit David Langan, (ii) It was open to the jury to infer the intent of the applicant for his actions, as to whether

he was intentionally or recklessly engaging in the conduct. (iii) On this evidence it was open to the jury to decide that the conduct

created a substantial risk of death or serious injury to another, in this instance David Langan.

The court is satisfied that the offence of endangerment, on the clear words of the section, may exist even if no injury occurs.

Further, the court does not consider that the offence is excluded when injury has occurred. The constituents of the offence as set

out in the legislation have to be considered in either situation.

The Law Reform Commission envisaged that this would not be an offence to replace existing offences. Rather it would be a

supplement, a residual generic offence. Of course, the court is not bound by the words of the Law Reform Commission Report.

This is a general offence of endangerment. It is not a particularized offence. As it is a general offence its applicability will not be

limited to any very specific areas. The Law Reform Commission Report referred to the fact that the creation of a general offence of

endangerment would also give effect to the principle that the wanton disregard of others’ safety is in itself deserving of condemnation

and sanction as a serious infringement of basic values irrespective of the manner in which such a risk is taken. Counsel referred the

court to the fact that the offence may cover situations such as the contamination of a building, or a water supply or blood.

Reference was also made to the possibility of the offence arising on the field of sport. However, this offence is worded as a general

offence, and is not limited to such examples.

The court bases its decision on the ordinary meaning of the words of section 13 of the Non-Fatal Offences Against the Person Act,

1997. Taking that well established approach to the construction of legislation the words of the section are clear and plain on which

the ordinary meaning may be given. Thus the constituent parts of the offence as applicable may be construed as the applicant

intentionally or recklessly, engaging in conduct, which created a substantial risk of death or serious injury to David Langan.

Considering this aspect of the matter, the court is satisfied also that it was within the trial judge’s jurisdiction to leave this matter to

the jury.

The main ground of the application made by the applicant was that the learned trial judge erred in law in failing to withdraw Count No.

2 from the jury on the application for a direction on that Count. The evidence before the court included evidence of conduct from

which intention or recklessness could be inferred. While it was submitted that the conduct was not such as would create a

substantial risk of serious harm, the evidence included conduct of the applicant in the circumstances surrounding the death of David

Langan and the learned trial judge did not err in law in letting the matter go to the jury. In light of the evidence, from the high point

of the prosecution case, this court is satisfied that the learned trial judge did not err in failing to withdraw the count from the jury.

Counsel also made a submission, although it was not pursued with the same vigour, that the verdict of the jury was inconsistent

insofar as he was acquitted of manslaughter but found guilty of endangerment contrary to s. 13 of the Non-Fatal Offences Against

the Person Act, 1997. It was submitted that while manslaughter relates to proof of acts relating to a death s. 13 is to address the

social ill of advertent risk taking. However, the court is satisfied that the elements of the offence of s. 13 are set out clearly in the

statute and are specific matters which may be addressed by the jury. The fact that the jury acquitted the applicant of manslaughter

was not inconsistent with them proceeding to find him guilty of endangerment.

Counsel on behalf of the Director of Public Prosecutions submitted that it was never argued in the trial court that acquittal on the

charge of manslaughter should inexorably lead to an acquittal on the charge of endangerment. While that absence of argument would

appear to be the case and thus this ground could not be the primary ground of appeal the court has considered the matter in the

limited fashion available on this appeal and dismissed the submission.

In conclusion, treating the application for leave to appeal as the hearing of the appeal, for the reasons stated the court is satisfied

that the appeal should be dismissed. The court notes that the applicant also filed grounds to appeal against sentence but that these

grounds have not yet been argued before the court.