DPP v O’Shea: Not necessary to establish mens rea in a prosecution for careless driving which results in a death

Here, DPP v O’Shea, the Supreme Court overturned the Court of Appeal finding that it is necessary to establish mens rea in a prosecution for careless driving which results in a death.

 

Background

On the 9th of January 2013, O’Shea, who was seventy years of age at the time, was driving on a public road in County Kildare. He collided with a JCB which was performing roadworks, pinning Kevin O’Sullivan, who was on traffic control duty, to the JCB, causing his death. O’Shea was not speeding, nor was he intoxicated and his car was fully roadworthy. He claims that there was no pre-warning sign, the sun was low in the sky and he was blinded by strong sunlight.

The DPP charged O’Shea with careless driving causing the death of Kevin O’Sullivan under s 52 of the Road Traffic Act 1961, as substituted by s 4 of the Road Traffic Act (No 2) 2011 (here). At trial, the trial judge instructed the jury that careless driving is a strict liability offence. The jury found O’Shea guilty. The trial judge fined O’Shea €5,000, suspended him from driving for four years and ordered that he re-sit a driver competency test before his licence is returned.

O’Shea appealed his conviction to the Court of Appeal. The CoA (here) overturned O’Shea’s conviction on grounds that dangerous or careless driving are not strict liability offences.

The Supreme Court granted the DPP leave to appeal on the question: “what are the ingredients of the offence created by, and what must be proved in order to sustain a conviction under s 4 of the Road Traffic (No 2) Act 2011?”

 

Supreme Court

O’Malley J wrote the judgment for the five judge panel. Clarke J wrote a concurring opinion.

O’Malley J reviewed the statutory history and case law on driving offences and clarified the elements of the offences of dangerous driving and careless driving. Dangerous driving is “driving that a reasonably prudent driver would, in the circumstances, recognise as causing a direct, immediate and serious risk of harm to the public. There is therefore no requirement to prove that the accused adverted to that risk – the test is objective” [47]. Careless driving is a lesser offence even though it many cause the same result. It is driving with “a lack of care and attention that a reasonably prudent driver would give when driving in a public place, having regard to the circumstances as they actually exist [48]. A careless driver is less blameworthy than a dangerous driver for the same result [49].

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