THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

(LRC 45–1994)



REPORT

ON

NON-FATAL OFFENCES AGAINST THE PERSON



IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St Stephen's Green, Dublin 2



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© Copyright The Law Reform Commission 1994

First Published February 1994

Cover: The Courthouse, Washington Street, Cork.

(photo courtesy of “Cork Examiner”)



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THE LAW REFORM COMMISSION

The Law Reform Commission was established by section 3 of the Law Reform Commission Act, 1975 on 20th October, 1975. It is an independent body consisting of a President and four other members appointed by the Government.

The Commissioners at present are:

The Hon. Anthony J. Hederman, former Judge of the Supreme Court, President; John F. Buckley, Esq., B.A., LL.B., Solicitor;

William R. Duncan, Esq., M.A., F.T.C.D., Barrister-at-Law, Professor of Law and Jurisprudence, University of Dublin, Trinity College;

Ms. Maureen Gaffney, B.A., M.A. (Univ. of Chicago), Senior Lecturer in Psychology, University of Dublin, Trinity College;

Simon P. O'Leary, Esq., B.A., Barrister-at-Law.

The Commission's programme of law reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas on 4th January, 1977. The Commission has formulated and submitted to the Taoiseach or the Attorney General forty four Reports containing proposals for the reform of the law. It has also published eleven Working Papers, seven Consultation Papers and Annual Reports. Details will be found on pp.343–347.

Alpha Connelly, B.A., LL.M., D.C.L., is Research Counsellor to the Commission.

Ms. Nuala Egan, B.C.L., LL.M. (Lond.), Mr. Jonathan Newman, LL.B., LL.M. (Cantab.), and Ms. Lia O'Hegarty, B.C.L., LL.M. (Mich.) are Research Assistants.

Further information from:

The Secretary,

The Law Reform Commission,

Ardilaun Centre,

111 St. Stephen's Green,

Dublin 2.

Telephone: 671 5699.

Fax No: 671 5316.



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This Report was submitted on the 4th February 1994 to the Attorney General, Mr. Harold A. Whelehan, S.C., pursuant to section 4(2)(c) of the Law Reform Commission Act, 1975. It embodies the results of an examination into the law concerning Non-Fatal Offences Against The Person carried out by the Commission at the request of the former Attorney General, Mr. John Rogers, S.C., together with the proposals for reform which the Commission was requested to formulate.

While these proposals are being considered in the relevant Government Departments, the Attorney General has requested the Commission to make them available at this stage to the public, in the form of this Report, so as to enable informed comments or suggestions to be made by persons or bodies with special knowledge of the subject.



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TABLE OF CONTENTS

PAGES

INTRODUCTION

1

PART I: THE PRESENT LAW

CHAPTER 1: CRIMES AGAINST BODILY INTEGRITY AND CRIMES OF ENDANGERMENT

2-89

The Constitutional Background

2

Statutory Origins

4

Assault And Battery At Common Law (Common Assault)

7

Mens Rea

10

Assault And Threats

11

The Requirement Of Force

14

Wounding And Mayhem

16

Use Of Force In Arrest And Questioning

17

Use Of Force In Theft-Related Offences

17

Lawful Correction/Discipline

20

Spouses

20

Servants, apprentices and mariners

21

Children

22

Prisoners

25

Necessary Defence And The Prevention Of Crime

27

Provocation

31

Negligence

31

Consent

32

Dangerous Exhibitions

45

General And Transferred Intention

47

Omissions And Supervening Fault

48

Statutory Offences Under The 1861 Act:

51

Assault occasioning actual bodily harm (s.47)

51

Unlawful wounding, etc. (s.20)

54

Wounding with intent, etc. (s.18)

58

Sections 21 and 22

60

Poisoning (ss.23, 24 & 25)

61

Offences Relating To Particular Classes Of Persons Or To Particular Circumstances

63

Railway Offences

67


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TABLE OF CONTENTS

PAGES

Traps

69

Assault With Intent (s.38) And Other Assaults On Police Officers

70

Offences Against Children

72

Neglect And Ill-treatment Of The Young, The Helpless And The Insane

76

Driving Offences

78

Firearms And Explosives

79

Affray

80

Public Nuisance

82

Breach Of The Peace, Insulting Behaviour And Disorderly Conduct

84

Domestic Violence

87

Genocide

88

CHAPTER 2: CRIMES AGAINST PERSONAL LIBERTY

90-113

Introduction

90

False Imprisonment

91

Powers Of Arrest

94

Kidnapping

104

Abduction

107

PART II: THE LAW IN OTHER JURISDICTIONS

CHAPTER 3: CODIFICATION IN THE UNITED KINGDOM

114-150

The Draft Code

114

The Draft Criminal Law Bill

115

Common Assault, And Threats To Injure

115

A Single Assault Offence

117

Threats

118

Consent

120

Self-Defence

121

Duress

125

Mens Rea

126

Grievous Bodily Harm, Unlawful Wounding And Actual Bodily Harm

126

Causation, Omissions And Duties

128

Poisoning

131

Assaults On Particular Classes Of Persons, Or In Particular Circumstances

132


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TABLE OF CONTENTS

PAGES

Children And Servants

135

Offences Of Endangerment

136

Affray, Threats And Harassment

138

Explosives, Firearms And Offensive Weapons

142

Torture

142

Detention And Abduction

145

Unlawful Detention

146

Kidnapping

146

Abduction

147

Aggravated Abduction

148

Child Abduction In Scotland

148

Hostage-taking

149

Detention And Abduction By Omission

150

Alternative Verdicts

150

CHAPTER 4: CODIFICATION IN CANADA

151-167

Crimes Against Bodily Integrity

152

Crimes Against Psychological Integrity

160

Crimes Against Personal Liberty

161

Crimes Causing Danger

163

Other Endangerment Offences

165

Omissions

165

Causation

166

CHAPTER 5: CODIFICATION IN NEW ZEALAND

168-182

Liability

168

Endangering

169

Assaults And Aggravated Assaults

173

Poisoning Or Infecting

175

Threatening

175

Aggravated Violence

176

Use Of Force

178

Consent

178

Law Enforcement

179

Protection Of Persons And Property

180

Kidnapping And Abduction

181

CHAPTER 6: THE LAW IN AUSTRALIA

183-198

Introduction

183


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TABLE OF CONTENTS

PAGES

Statutory Innovations

185

(a) Assault

185

(b) Kidnapping

186

(c) Threats

187

(d) Justifiable force

187

Effecting Arrest

188

Preventing The Commission Of A Crime

188

Prevention Of Danger

188

Defence Of Self And Property

189

Domestic Discipline

189

Surgical Operations

190

Death And Injury

190

(a) Omissions and duties

191

(b) Victoria

192

Threats

192

New Offences

192

Proposals For Reform

193

South Australia

193

CHAPTER 7: CODIFICATION IN THE UNITED STATES

199-233

Assault, Aggravated Assault And Threats

199

The Model Penal Code

202

Harm And Injury

203

Mens Rea

203

Justification For Use Of Force

206

Domestic Violence

209

Medical Treatment

210

Protection Of Persons Or Property

210

Coercion, Harassment And Threats

212

Offensive Touching

213

Reckless Endangerment

215

Endangering The Welfare Of Children

219

Duty To Rescue And Duty To Notify

220

Kidnapping

221

False Imprisonment

227

Felonious Restraint

228

Custodial Interference

230

Confinement And Obstruction

232

Omissions

232

Causation

233


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TABLE OF CONTENTS

PAGES

PART III: PROPOSALS FOR REFORM

CHAPTER 8: PRELIMINARY CONSIDERATIONS

234-237

Statistics

237

CHAPTER 9: DISCUSSION AND PROPOSALS FOR REFORM

238-329

A. Crimes of violence and endangerment

238

The Commission's Approach

238

The Interests Sought To Be Protected

239

Assault: A Simple Scheme

250

Threats To Kill Or Cause Serious Injury

256

Coercion And Harassment

257

Terroristic Threats

258

Poisoning

259

Strangling And Rendering Unconscious

260

Infecting With Disease

261

Aggravation

263

Consent

268

1. Leaving the present law unchanged

268

2. Withdrawing the criminal sanction from bodily harm that is inflicted consensually

269

3. A specific offence for consensual infliction of bodily harm

269

Contact Sports

272

Medical Treatment

275

Dangerous Exhibitions

279

Provocation

279

Negligence And Constructive Liability

279

Heedlessness

280

Necessary Defence

280

Lawful Correction

284

Whipping

284

Servants, Apprentices And Mariners

284

Correction Of Children

284


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TABLE OF CONTENTS

PAGES

Offences Against Children And Servants

289

Unborn Children

291

Endangerment

292

Omissions

298

Public Nuisance

300

Furious Driving

302

Explosives

303

Firearms And Offensive Weapons

304

Affray

304

Torture

311

B. Crimes against personal liberty

314

The Commission's Approach

314

Kidnapping

315

False Imprisonment

319

Abduction

320

Hostage-taking

326

Obstruction

329

CHAPTER 10: SUMMARY OF RECOMENDATIONS

330-340

APPENDIX A

341

List of persons from whom submissions were received

341

LIST OF COMMISSION PUBLICATIONS

342-346


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INTRODUCTION


(i)


The law relating to offences against the person is among the areas of criminal law which the Attorney General has asked the Commission to examine. The Commission has already reported on dishonesty, receiving stolen goods, rape, malicious damage, child sexual abuse, sexual offences against the mentally handicapped, the confiscation of the proceeds of crime and the indexation of fines.


(ii)


We decided to divide our study of offences against the person into two reports, one on non-fatal offences, the other on criminal homicide, and to deal first with non-fatal offences. We began by preparing a Discussion Paper on non-fatal offences which sets out the existing law mainly to be found in the Offences Against the Person Act, 1861, and the difficulties to which it appeared to give rise, examined the law in certain other jurisdictions, set out the policy considerations which appeared to arise and made provisional recommendations for alterations in the law in a number of areas. We also sought views on certain specific questions. This Discussion Paper was circulated among a number of persons and bodies having particular expertise in this area, including judges, barristers, solicitors, academics, the Director of Public Prosecutions' Office, the Department of Justice, the Gardaí and the Irish Medical Association. As a result, the Commission received a number of detailed and helpful commentaries in writing on the Discussion Paper. We are most grateful to all who assisted us. A list of those who sent us submissions is to be found in Appendix A.


(iii)


We have since reviewed the entire subject in the light of these consultations. This Report contains our final recommendations for reform of the law. The Commission takes sole responsibility for these recommendations. In the first part of the Report, we examine the present law, and in the second, the law in some other jurisdictions. The third part contains our proposals for reform.



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PART I: THE PRESENT LAW

CHAPTER 1: CRIMES AGAINST BODILY INTEGRITY AND CRIMES OF ENDANGERMENT

The Constitutional Background

1.1

Under Article 40.3.2° of the Constitution, the State is under a duty by its laws to protect as best it may from unjust attack and, in the case of injustice done, to vindicate the person of every citizen. Although this freedom of the person has been held to include freedom from the unlawful application of force or violence,1 this aspect of security of the person has come to be considered in Irish constitutional law as the separate right to bodily integrity, one of the unenumerated personal rights guaranteed by Article 40.3.10°2 Second only in importance, it appears,3 to the right to life, the right to bodily integrity was first recognised by Kenny J. in Ryan v Attorney General:

“I understand the right to bodily integrity to mean that no mutilation of the body or any of its members may be carried out on any citizen under the authority of the law except for the good of the whole body and that no process which is or may, as a matter of probability, be dangerous or harmful to the life or health of the citizens or any of them may be imposed (in the sense of being made compulsory) by an Act of the Oireachtas.”4

1.2

Perhaps because of its importance, no similar attempt was made by the Supreme Court in that case,5 or by any other court since, to delimit the precise scope of the right. However, the Supreme Court went on to recognise that the


1

Dullaghan v Hillen and King [1957] Ir. Jur. Rep. 10 (per Fawsitt J.).

2

Ryan v A.G. [1965] I.R. 294. This approach mirrors the scheme under the European Convention on Human Rights – whereas security of the person is guaranteed under Article 5(1), violence against the person primarily raises issues under Article 3 relating to torture and inhuman or degrading treatment or punishment.

3

Conroy v A.G. [1965] I.R. 411 (per Kenny J.).

4

Supra, n.2 at 313–314.

5

Supra, n.2 at 345.



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State had “the duty of protecting the citizens from dangers to health in a manner not incompatible or inconsistent with the rights of those citizens as human persons”6 and the right to bodily integrity has since been interpreted as incorporating a more specific right not to have one's health exposed to risk or danger by any unjustified act or omission of the State.7

1.3

Most of the decided cases have been concerned with the very special circumstances of the treatment of persons in detention, so that it is a matter for speculation as to whether the State might be liable in damages for failure to legislate adequately for the protection of health generally8 and, a fortiori, as to whether it could be compelled so to legislate.9 For the purpose of the criminal law, the State's duty to protect individuals' health10 is primarily discharged by those laws which exist to protect them against personal violence, notably the Offences Against the Person Act, 1861.11 These laws, for the most part, mirror the constitutional interest protected in extending beyond the actual or attempted use of violence to the threat of such violence and to the unjustified creation of risks which threaten such violence. Yet, as will be seen, this is not always the case.

1.4

The freedom of the person from torture,12 and from inhuman or degrading treatment or punishment,13 has also been recognised as being guaranteed under Article 40.3.1° of the Constitution. There is, however, no statutory or common law offence of torture in Ireland. In this connection, although it is not ordinarily the function of the courts to extend the scope of the criminal law, “it may well be that where there is a breach of or interference with a fundamental personal or human right, they may be under a constitutional obligation so to do in order to respect, and, as far as practicable, to defend and vindicate that right.”14

1.5

If such an obligation exists, it would surely apply where persons acting on behalf of the Executive deliberately and consciously violate the constitutional rights of citizens.15 Where the requisite severity of treatment has been deliberately and consciously administered, therefore, it may be questioned


6

[1965] I.R. 348.

7

For example McGee v A.G. [1974] I.R. 284 at 315 (per Walsh J.); State (C) v Frawley [1976] I.R. 365; State (McDonagh) v Frawley [1978] I.R. 131; State (Richardson) v Governor of Mountjoy Prison [1980] I.L.R.M. 82, explained in State (Comerford) v Governor of Mountjoy Prison [1981] I.L.R.M. 86 at 90.

8

See Casey, Constitutional Law in Ireland (2nd ed., Sweet & Maxwell, 1992), p.334; Forde, Constitutional Law of Ireland (1987), pp.541–542.

9

Id. See also Crowley v Ireland [1980] I.R. 102 at 108 (per McWilliam J.) and X and Y v Netherlands, Series A no. 91, 8 E.H.R.R. 235 at 239–40 for rare examples of such obligation; and Currie, Positive and Negative Constitutional Rights, (1986) 53 U. Chicago L. Rev. 864.

10

The existence of a constitutional right has been held to imply a duty in others not to infringe that right, see Hamilton P. in A.G. (S.P.U.C. (Ireland) Ltd.) v Open Door Counselling Ltd. [1987] I.L.R.M. 477. This “Drittwirkung” or third party effect of such right is considered by Von Prondzynski: [1979–80] D.U.L.J. 14 at 20–23.

11

24 and 25 Vict. at 386.

12

People (A.G.) v O'Brien [1965] I.R. 142 at 150 (per Kingsmill Moore J.); State (C) v Frawley, supra, n.7; Murray v Ireland [1985] I.R. 532 at 542 (per Costello J.).

13

State (C) v Frawley, supra, n.7.

14

A.G. (S.P.U.C. (Ireland) Ltd.) v Open Door Counselling Ltd., supra, n.10, (per Hamilton P).

15

See, for example the judgment of Finlay C.J. in State (Trimbole) v Governor of Mountjoy Prison [1985] I.R. 550.



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whether the purpose of such treatment is relevant.16

1.6

Although Article 38 of the Constitution extends also to the protection of the State's interest in effective criminal processes,17 such processes must also be compatible with the corresponding rights of the defendant under that Article to be tried in due course of law.18 Moreover, the importance of the right to bodily integrity does not mean that the traditional standards of proof may be relaxed in proceedings concerned with offences against the person.19 In this respect, although the basis for and the conduct of a prosecution will enjoy a presumption of constitutionality,20 it is established that the substantive criminal law may also be affected by the right of due process. In addition to requiring the particular offence charged to be clear and accessible,21 it may require account to be taken of the existence of duplicating or overlapping offences.22 These considerations must also be borne in mind in looking to the reform of the existing corpus of offences of violence and endangerment.23

Statutory Origins

1.7

Historically, offences against the person other than homicide were treated by the common law with surprising lenience, especially when compared to the severity of punishment provided for property offences.24

1.8

Originally classified as torts rather than crimes,25 even the most violent attacks on the person, including all attempts to commit murder, were until late in the 17th century treated as misdemeanours punishable by fine and imprisonment only.26

1.9

Certain acts of violence were subsequently made felonies by occasional and limited enactments which tended to look either to the identity of the victim, such as Privy Councillors,27 deerstealers28 and seamen,29 or to the nature of the act, such as maiming or disfiguring,30 and wounding with intent to hinder


16

In State (C) v Frawley, supra, n.7, Finlay P. had held that the character of “torture” or “inhuman and degrading treatment” was to be gathered partly from its purpose. At least in respect of torture, however, this may be now be open to question, see Duffy, Article 3 of the European Convention on Human Rights (1983) I.C.L.Q. 316 at 317–318.

17

The People v O'Shea [1982] I.R. 384; The State (Hayden) v Good [1972] I.R. 351.

18

O'Connor v D.P.P. [1987] I.L.R.M. 723.

19

Hanrahan v Merck Sharp and Dohme (Ireland) Ltd. [1988] I.L.R.M. 629 at 634–36.

20

East Donegal Co-operative Ltd. v A.G. [1970] I.R. 317; Eccles v Ireland [1985] I.R. 545.

21

King v A.G. [1981] I.R. 233.

22

Infra, Chapter 5.

23

Discussed infra.

24

Sir James Fitzjames Stephen, A History of the Criminal Law of England (1883), vol. 3, pp. 108–112.

25

In tort, assault, battery, infliction of emotional suffering and false imprisonment are the modern elements of the generic writ of trespass to the person, from which the criminal law first derived. The principles applicable in tort remain important for the criminal law, particularly with respect to the definition of the actus reus, see the remarks of De Grey C.J. in Scott v Shepherd (1773) 2 Wm. B.I. 892 at 899.

26

Stephen, op cit, p. 109.

27

9 Anne, c.16.

28

9 Geo. 1, c.22.

29

33 Geo. 2, c.67, s.2.

30

22 and 23 Chas. 2, c.1.



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the exportation of corn.31

1.10

The first general Act providing for the capital punishment of many of the worst forms of bodily violence and attempts to commit murder was passed in 1803.32

1.11

So far as related to England, this Act, together with the earlier enactments, was repealed and re-enacted with additions in 1828 by 9 Geo. 4, c.31 and again in 1837 by 7 Will 4, and 1 Vic c.85. The effect of these statutes was to convert into capital felonies all desperate attacks upon the person and attempts to commit murder which resulted in actual bodily injury while creating a separate class of non-capital felonies for those offences which involved only an unsuccessful attempt to inflict such injuries.33 Furthermore, whereas prior to 1828 all common assaults were triable only on indictment, s.27 of the Act 9 Geo. 4 c.31 provided for the summary trial of common assault on complaint of the party aggrieved, subject to a discretion in the court to proceed by indictment in s.29.34

1.12

These provisions were repealed and re-enacted in an extended form as regards both England and Ireland by the Offences Against the Person Act, 1861,35 which provided for a virtual code of crimes of violence. Of its seventy-nine sections, ten deal with murder and manslaughter (which remain defined by common law), five with different attempts to commit murder, and the rest with other violent offences.36 All attempts to murder, whether by the actual or attempted infliction of bodily injury or the administration of poison, were taken out of the list of capital crimes by the 1861 Act; they were then referred to elsewhere in the Act, with such variations and additions as were required by decided cases.37

1.13

By s.16, it is a felony punishable by 10 years penal servitude to “maliciously send, deliver, or utter or directly or indirectly cause to be received, knowing the contents thereof, any letter or writing threatening to kill or murder any person ....”

1.14

Sections 17–35 create a series of offences for “acts causing or tending to cause danger to life or bodily harm”, including unlawful wounding,38 attempts to choke,39 administering drugs40 administering poison so as to endanger


31

11 Geo. 2, c.22.

32

43 Geo. 3, c.58, known as Lord Ellenborough's Act.

33

Stephen, op cit, pp.114–116. In Ireland, a similar consolidating statute was enacted the following year, 10 Geo. 4, c.34. For a description of its provisions and the pre-Union Irish statutes which it replaced, see Oulten's Index to the Irish Statutes 1310–1838 (Dublin, 1939), pp.524–529.

34

Discussed by May L.J. in R v Harrow J.J., ex parte Osaseri [1985] 3 All ER 185 at 187.

35

In 1839, an Act was passed “for the better prevention and punishment of assaults in Ireland” providing for an aggravated penalty of hard labour instead of imprisonment on conviction on indictment for any assault committed with batons, sticks, stones or other heavy instruments. On summary conviction, a fine could be ordered to be paid to the injured party. The statute lapsed after 5 years, 2 and 3 Vic. c.77.

36

In this respect, s.57 of the 1861 Act is the exception in providing for the offence of bigamy.

37

Sections 11–15, Offences Against The Person Act, 1861.

38

S.20.

39

S.21.



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life41 or with intent to injure,42 impeding escape from a shipwreck,43 furious driving,44 and the endangerment of servants45 and children.46 Specific offences relating to explosives,47 to spring guns and traps48 and to railways49 are also contained in this part of the Act. One provision, s.18, creates twenty-four separate offences punishable by life imprisonment and forbids any and every combination of four acts with any one of six intentions.

1.15

The part of the 1861 Act dealing with assaults in particular comprises ss.36 to 47 inclusive, the first six of which create offences of assault on particular persons, such as clergymen,50 peace officers and seamen,51 or in particular circumstances, such as with intent to commit a felony or to resist or prevent a lawful arrest.52 Sections 42 and 46 effectively re-enacted ss.27 and 29 of the 1828 Act by providing for the summary trial of certain common assaults, on complaint by or on behalf of the party aggrieved, subject to a discretion in the court to proceed by way of indictment. These are procedural provisions only and do not create any new or separate offence.53 This summary power “was intended to be reserved for cases of minor assault of the kind which commonly arise from disputes between neighbours, where the charge is brought by or on behalf of the complainant himself, the police seeing no need to intervene.”54

1.16

By contrast, s.47 of the 1861 Act, in providing for the trial on indictment of certain classes of assault, had the effect of creating a new statutory offence of “an assault occasioning actual bodily harm” on the one hand and of making statutory and prescribing a penalty for the previously existing common law offence of common assault on the other.55

1.17

Writing in 1883, Stephen commented:

“I know of no better illustration in the whole statute book of the way in which every line of it has its own special history than is afforded by these sections ....

The history of our law upon personal injuries is certainly not creditable to the legislature, and the result at which we have at present arrived is extremely clumsy ....”56


40

S.22.

41

S.23.

42

S.24.

43

S.17.

44

S.35.

45

S.26.

46

S.27.

47

Ss.28, 29 and 30. The making and possession of gunpowder and explosives are governed by ss.64 and 65.

48

S.31.

49

Ss.32, 33 and 34.

50

S.36.

51

S.40.

52

S.38.

53

R. v Harrow J.J., ex parte Osaseri, [1985] 3 All ER 185 at 188.

54

Id, at 192 (per Nolan J.).

55

Id, at 189; also State (O) v O'Brien [1971] I.R. 42 at 50 (perÓ Dálaigh J.).

56

Op cit, pp. 116–118.



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1.18

Writing in 1991, Professor J.C. Smith says the 1861 Act:

“is a rag-bag of offences brought together from a wide variety of sources with no attempt, as the draftsman frankly acknowledged, to introduce consistency as to substance or as to form. It may have been a great step forward in 1861 but its limitations were known then and it is deplorable that so much of it remains the law.”57

1.19

The 1861 Act remains substantially in force in Ireland today. The 1861 Act also remains substantially in force in England so that, for the first time, the Commission will be making proposals for reform of a branch of the criminal law, not already reformed in England. For this reason and for convenience, we also cite recent English and Commonwealth decisions as part of the statement of current law; however, we do not assume that the Irish courts would follow these decisions.

Assault And Battery At Common Law (Common Assault)58

1.20

In the 13th century, when every felony was a trespass and every tort a punishable offence, mere bruises which did not break bone or draw blood were insufficient to ground a charge of felony.59 Later, by the end of the 17th century, such assaults were offences provided they were done wilfully, in anger or in a hostile manner, such as violently jostling someone out of the way, snatching something from his hand or spitting in his face.60 Eventually, the slightest “force” or contact came to constitute an offence if exercised with “hostile” intention and without the victim's consent.61

1.21

This gradual trivialisation of the concept of common assault may be seen as a recognition of the fundamental principle that every person's body is inviolate and that “[s]ecurity of the person is one of the first conditions of civilized life”.62 As Blackstone wrote in his Commentaries, “the law cannot draw the line between different degrees of violence and, therefore, totally prohibits the first and lowest stage of it, every man's person being sacred and no other having a right to meddle with it in any the slightest manner.”63

1.22

In this respect, the offence known to the common law as “common assault” extends beyond the actual infliction of unlawful force on another person (a battery) to any act which causes another person to apprehend the infliction of immediate unlawful force on his person (an assault).64 Therefore, “in terms


57

Commentary on R v Parmenter [1991] Crim. L.R. 41 at 43.

58

See generally Peter Charleton, Offences Against the Person (1992).

59

Stephen, op cit, pp.108–109.

60

See I Hawk P.C. c.62, s.2; also Holt C.J. in Cole v Turner (1704) 6 Mod. Rep. 149, 90 E.R. 958.

61

The development of the law relating to battery was recently traced by the English Court of Appeal in Wilson v Pringle [1986] 2 All ER 440. As to the meaning of “hostile intention” and “consent” see infra.

62

Per Fawsitt J. in Dullaghan v Hillen and King [1957] Ir. Jur. Rep. 10.

63

See 3 B.I. Com. 120.

64

See in Collins v Wilcock [1984] 3 All ER 374 at 377 (per Goff L.J.).



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more easily understood by philologists than ordinary citizens”,65 assault and battery are two distinct crimes at common law.

1.23

Although the distinction has frequently passed unnoticed, assault originally represented an entirely different concept in the criminal law, where it was restricted to an attempted battery, than it did in the law of torts.66 In this respect, it appears that the development of the separate crime of assault is attributable to the gradual recognition of a “tort theory of assault” in the criminal law.67

1.24

However, the term “assault” is now, in both ordinary legal usage and in statutes, regularly used to cover both assault and battery. Although the offence of assault simpliciter is seldom prosecuted, it is wider than an attempted battery and is therefore itself capable of being attempted.68

1.25

It nevertheless remains true that “assaults are sure to attempts allied, and thin partitions do their bounds divide.”69

1.26

Assault and battery are common law crimes with penalties added by statute.70 Under s.42 of the 1861 Act, as amended by s.11 of the Criminal Justice Act, 1951, a person convicted on summary trial of either common assault or battery is liable to a fine of £50 and/or six months imprisonment. By s.47 of the Act, the punishment on indictment for a common assault is one year's imprisonment. The mode of prosecution is the exclusive prerogative of the prosecuting authority.71

1.27

An indictment or information of an “assault and battery” will be valid as referring to a battery only. If the word “assault” stands alone, it will be taken to refer to an assault or a battery or both, though if contrasted with a battery, as in “assault or battery“, it will be taken to mean an assault only and the charge will then, “for some baffling reason”, be bad for duplicity.72 On a charge of common assault triable summarily, it is not necessary to make reference to the 1861 Act.73


65

Id; see also the comments of Goddard L.C.J. in R. v Rolfe (1952) 36 Cr. App. R. 4.

66

Perkins & Boyce, Criminal Law (3rd ed., N.Y., 1982), p. 159.

67

Id, pp. 159-173.

68

See discussion in Smith and Hogan, Criminal Law (6th ed., 1988), pp.376 and 379. In some jurisdictions in the U.S., where the “tort theory” of assault has not been accepted, there can be no attempted assault; see for example In re M. 9 Cal. 3d 517, 108 Cal. Rptr. 89 (1973).

69

State v Staggs, 554 S.W.2d 620, 623 (Tenn. 1977), quoted in Perkins & Boyce, op cit, p. 168, note 25. In an early North Carolina case, State v Davis, 23 N.C. 125, 127 (1840), it was held that where an unequivocal purpose of violence is accompanied by any act which, if not stopped or diverted, will be followed by personal injury, the battery is attempted.

70

See Griew, Common Assault and the Statute Book [1983] Crim. L.R. 710.

71

State (Clancy) v Wine [1980] I.R. 228; also R v Harrow J.J., ex parte Osaseri, [1985] 3 All ER 185 at 190.

72

Williams, Textbook of Criminal Law (2nd ed., 1983), p. 173 note 12, referring to Jones v Sherwood [1942] 1 K.B. 127. In D.P.P. v Taylor and Little [1992] 1 All E.R. 299 it was held that assault and battery had been separate statutory offences since the 1861 Act was enacted. Where there was actual as well as apprehended unlawful force, the charge should be assault by beating rather than assault and battery since the latter form was duplicitous in that it alleged two different offences. See commentary in [1991] Crim. L.R. 904.

73

The State (Quinn) v Mangan [1945] I.R. 532 (Supreme Court).



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1.28

In the case of summary trial, the complaint must generally be made by or on behalf of the party aggrieved, except in the case of youth, age or infirmity, when a third party, with a protective motive, may institute summary proceedings without the express authorization of the party aggrieved. Moreover, where the victim, from fear or any other motive, refuses or declines to prefer a complaint, and where it is in the public interest that a complaint should be preferred, a common informer – which includes a member of the Garda Síochána- may prefer the complaint under s.42 by virtue of the provisions of s.11 of the 1951 Act.

1.29

A common informer may initiate and conduct a summary prosecution to its conclusion.74 In the case of an indictable offence, he may initiate and conduct the proceedings in the District Court up to the receiving of information and the making of an order returning the accused for trial, at which point the D.P.P. assumes the conduct of the prosecution.75 A common informer does not need to be an eyewitness to the incident which he prosecutes.76 If a member of the Garda Síochána wishes to bring proceedings in his own name, he must, by virtue of s.9 of the Criminal Law (Administration) Act, 1924, do so as a common informer. The frequency with which such proceedings are brought in the District Court by Gardaí was the subject of criticism by Griffin J in The People v Roddy, who considered it more desirable that all prosecutions be brought in the name of the D.P.P.77

1.30

Section 46 of the 1861 Act directs that where a Justice finds the assault or battery to have been accompanied by any attempt to commit felony or is of opinion that the same is, from any other cause, a fit subject for trial on indictment, he shall deal with the case in all respects as if he had no authority finally to hear the case; also, a Justice shall not determine any case of assault or battery which involves a question of title to any lands, tenements or hereditaments or as to any bankruptcy or insolvency, or any execution of a legal process.

1.31

Section 46 does not impose a duty on a District Justice to enter into a preliminary examination before proceeding to hear a summary charge under s.42 of the Act, but if, during the hearing, he reaches any such determination as set out in s.46, he must abstain from adjudicating on that charge.78

1.32

The question of title must relate to real property and not to chattels.79 Jurisdiction will not be ousted where the claim to title is vague and improbable


74

The right to prosecute is largely determined by Article 30.3 of the Constitution and by s.9 of the Criminal Law (Administration) Act, 1924, as to the effect of which see Wedickv Osmond & Son (Dublin) Ltd. [1935] I.R. 820 at 842–843, and The People v Roddy [1977] I.R. 177.

75

State (Ennis) v D.J. Farrell [1966] I.R. 107; A.G. v Thompson, 70 I.L.T.R. 161.

76

McCormack v Carroll 45 I.L.T.R. 7; R. (Wilbond) v Armagh J.J. [1918] I.R. 347.

77

Supra, n.74, at 190.

78

State (Clancy) v Wine [1980] I.R. 228; O'Neill v D.P.P. [1989] I.L.R.M. 882; R. v Blyth Valley Magistrates' Courts [1988] Crim. L.R. 381. It appears that a magistrate does not act judically where prior to the trial and in the absence of the defendant he inspects the wounds of the person alleged to be assaulted; see Byrne v Hebden [1913] St. R. Qd. 233; 7 Q.J.P.R. 112.

79

White v Fox (1880) 44 J.P. 618.



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and not substantially supported by evidence;80 also, the title in issue must relate to the accused himself and not to a third party.81 The Justice must determine from the evidence before him or her whether or not a bona fide question of title has arisen.82

1.33

Before 1951, the adjudication in criminal proceedings of a complaint of common assault or battery was a bar to civil proceedings.83 Section 11(4) of the Criminal Justice Act, 1951, now provides that such adjudication shall not affect any civil remedy that the complainant may have against the defendant in respect of the subject matter of the complaint.

1.34

For minor assaults, the civil remedy is often more satisfactory than a prosecution. Even so, the notions of assault and battery are important in that they enter into the definition of more serious crimes.

Mens Rea

1.35

The mens rea of common assault is hostile or unlawful intention, or recklessness, though hostile in this connection no longer means angry or revengeful, or rude, or insolent.84 Instead, it denotes any intentional act done without lawful excuse.85

1.36

In England, recklessness now clearly suffices for battery,86 (and hence for assault), though there was disagreement among commentators as to whether such recklessness is subjective or objective.87 The disagreement was resolved in favour of subjective recklessness in R. v Spratt.88 In Northern Ireland, the test of such recklessness for the purposes of assault has been held to be a subjective one.89 This approach is consistent with the general approach of Irish courts to the question of recklessness and, further, with an isolated dictum of Henchy J. in The People v Murray,90 approving a subjective standard of recklessness in relation to common assault. For the purposes of assault simpliciter, it appears that it will be enough if the actor knows he is doing something from which the apprehension of immediate, unlawful force is likely to


80

Watkins v Major (1875) L.R. 10 C.P. 662.

81

Cornwell v Sanders, 32 L.J. 6.

82

Id.

83

By s.45 of the Offences Against the Person Act, 1861.

84

See discussion of Goff L.J. in Collins v Wilcock [1984] 3 All ER 374 at 378.

85

Wilson v Pringle, supra, n.61; R. v Boughey (1986) 20 A. Crim. R. 156 (High Court of Australia).

86

R. v Venna [1976] Q.B. 421. In R. v Mansfield J.J., ex P. Sharkey [1985] 1 All ER 193 at 203 Lane L.C.J., stated obiter that the mens rea of assault was recklessness or intention.

87

Smith and Hogan, op cit, p.379, prefer a subjective test, whereas an objective approach is favoured by Clarkson and Keating, Criminal Law: Texts and Materials (1984), p.453. In D.P.P. v K. [1990] 1 All ER 331, an objective test of recklessness was applied by a Divisional Court. For criticism, see Bennett, Assault – a Harsh Lesson (1990) 140 N.L.J. 588 and commentary in (1990) Crim. L.R. 322.

88

[1991] 2 All ER 210.

89

Knox v Sec. of State [1980] N.I. 87 (Q.B.D.) (per O'Donnell L.J.). In Australia, subjective recklessness also suffices, see Vallance v The Queen (1961) 108 C.L.R. 56; MacPherson v Brown (1975) 12 S.A.S.R. 184.

90

[1977] I.R. 360 at 403, citing the English authority of R. v Venna, supra n.86. See also R. v Faulkner (1877) 13 Cox 550; The People v Douglas and Hayes [1985] I.L.R.M. 25; The People v Hayes, unreported, Court of Criminal Appeal, 9 June 1986; Agra Trading Ltd. v Waterford County Council [1985] I.L.R.M. 249. For comment, see McAleese [1981] D.U.L.J. 29 and Lynn [1985] D.U.L.J. 73.



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arise and is reckless as to whether such force may be apprehended.91 In this respect, the person performing the act must have the capacity to appreciate and foresee the consequences of the act:

“The fact that the risk of some damage would have been obvious to anyone in his right mind is not conclusive proof of the defendants knowledge, but it may well be, and in many cases will be, a matter which will drive the jury to the conclusion that the defendant himself must have appreciated the risk.”92

1.37

A common assault cannot be committed by omission.93 It may nevertheless be a battery where the defendant inadvertently applies force to P and then wilfully refuses to withdraw it, the whole action being treated as a continuous act so as to bring about a coincidence of the mens rea and the actus reus94 By analogy, there may be an assault where the defendant inadvertently causes P to apprehend immediate violence and then wilfully declines to withdraw the threat.

Assault And Threats

1.38

Any act done in such circumstances as suggest an intention, coupled with an actual or apparent present ability to apply actual force to the person of another will amount to an assault provided that such other person is caused to believe that the force is about to be applied.95 Assault is the only crime at common law in which the harm consists merely in creating fear or apprehension in the mind of the victim.96 In this respect the victim need not be placed in “fear” in the sense of being frightened, nor apprehend a severe or aggressive attack; he is assaulted if he is caused to apprehend the immediate application of that degree of physical force necessary to constitute a battery, which, as noted above, may amount to nothing more than an intentional touch in invitum.97

1.39

Although both offences are usually committed in rapid succession, the expected blow following immediately upon the threat to inflict it, there may be an assault where D never intends to carry out the threat,98 or has no ability to inflict the contact which he has induced the victim to expect, as where the


91

Glanville Williams, Textbook of Criminal Law (2nd ed., 1983), p. 173.

92

R. v Stephenson [1979] 3 W.L.R. 193 at 200 (per Geoffrey Lane L.J.), cited with approval in Knox v Sec. of State, supra, n.89.

93

Pagan v M.P.C. [1968] 3 All E.R. 442.

94

Id.

95

It is an essential ingredient of a common assault based on threats of violence that the threats should have created a fear of violence in that other person's mind; see R. v McNamara [1954] A.L.R. 291. In New Zealand, however, provided the threatener has the present ability to effect his purpose, the threat need not necessarily be communicated to the victim for the purposes of statutory assault; see R. v Kerr [1988] 1 N.Z.L.R. 270.

96

The offence of striking, or attempting to strike, or offering violence to a superior officer under s.132 of the Defence Act, 1954, does not extend to the protection of such sensibilities.

97

Though merely inviting another to touch you cannot amount to an assault; see Fairclough v Whipp (1951) 35 Cr. App. R. 138; R. v Burrows [1952] 1 All E.R. 58.

98

Logdon v D.P.P. [1976] Crim. L.R. 121.



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defendant points an unloaded or imitation gun at P.99 But if P knows that the gun is unloaded or an imitation, then there is no assault. Similarly, there will be no assault if it is obvious to P that the defendant is unable to carry out his threat, as where the defendant is out of striking distance or shooting range of P and does not advance in a threatening manner towards him.100 A threat by a person holding a knife in his hand to stab another person if he comes any closer is also an assault.101

1.40

Simply stated, the reasonableness of the apprehension of immediate bodily harm is dependent upon the existence of an apparent present ability to inflict such harm.102

1.41

It is clear that a threat to inflict harm at some time in the future cannot amount to an assault – an apprehension of immediate personal violence is essential. Although the requirement of immediacy has in some cases been interpreted widely,103 the law relating to threats and menaces is, for the most part, “a thing of shreds and patches”,104 particularly in view of the traditional rule that words alone, unaccompanied by menacing gestures,105 cannot constitute an assault. This rule, which appears from both Irish and English authority to be absolute,106 has been the subject of much criticism107– what if the threat is made from behind the victim,108 or in a dark alleyway, or over the telephone?

1.42

In this connection, it may be noted that s.16 of the 1861 Act does little to remedy the defects in the common law in that it extends only to written threats to kill. In the absence of an assault, therefore, a threat to kneecap or to cut off somebody's fingers or to pull out their fingernails may be made with impunity. The same may be said of an unwritten threat to kill, or even, it appears, of a written threat to kill a foetus.109


99

Id; R. v St George, 9 C. & P. 483; R. v Everingham (1949) 66 W.N. (N.S.W.) 122; Brady v Schatzel (1911) Q.S.R. 206 (Queensland Sup. Ct.).

100

Stephens v Myers, 4 C. & P. 349. But if it is reasonable for the defendant to believe that he is within striking distance, there may be an assault; see Grimes v State 99 Miss. 232, 545o 839.

101

Police v Greaves [1964] N.Z.L.R. 295.

102

U.S. v Johnson, 637 F. ed. 1224 at 1242 (9th Cir. 1980).

103

For example, Logdon v D.P.P., supra, n.98. The widening of the scope of immediacy in certain cases has resulted from the insistence that 'infliction' of grievous bodily harm within the meaning of s.20 of the 1881 Act necessarily implies an assault, for example R. v Martin (1881) 8 Q.B.D. 54 C.C.R. where the defendant caused a panic in a theatre; R. v Halliday (1869) 61 L.T. 701, where the defendant so frightened P that she jumped through a window. The House of Lords has recently resolved the matter by deciding that “inflict” does not, after all, imply assault; Wilson [1984] A.C. 242 at 260.

104

Williams, op cit, p.209. As regards that part of the patchwork which made up the “blackmail” offences under ss.29–31 of the Larceny Act, 1916, see the Commissions's Report on Dishonesty, p.297 et seq.

105

A menacing gesture in itself may amount to an assault where it is sufficient to produce alarm, as by jumping over a shop counter, Atkinson v H.M. Advocate, 1987 S.C.C.R. 534.

106

Meade and Belt (1823) 1 Lew. C.C. 184 (per Holroyd J.); Dullaghan v Hillen and King [1957] Ir. Jur. Rep. 10.

107

For example, Williams, Assault and Words [1957] Crim. L. Rev. 219.

108

In Fogdon v Wade [1945] N.Z.L.R. 724, it was held to be an assault where the defendant walked up close behind a girl and made an indecent suggestion.

109

In R. v Talt [1989] Crim. L.R. 834, the English C.A. held that a foetus in utero was not a person within the meaning of s. 16, this being in accordance with the established meaning of a “person in being” for the purposes of the law of murder. Had the threat been directed to the child if and when it was born alive, the offence would have been made out; see R. v Shephard [1919] 2 K.B. 125. As to the possible effect on this rule of Article 40.3.3° of the Constitution, see infra, Chapter 7.



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1.43

A better view in respect of verbal threats may be that they constitute an assault where the threatened force is sufficiently imminent.110 In Wilson, Goddard L.C.J. stated obiter: “He called out 'Get out the knives' which itself would be an assault ...”,111 which dictum is supported by civil law cases holding that a conditional threat will suffice for an assault.112 In Read v Coker, the defendant and others surrounded P, a trespasser, and, rolling up their shirt sleeves, threatened to “break his neck” if he did not leave the premises. P sued successfully for assault. Commenting on this case, Glanville Williams has said:

“Symbolic gestures of this kind [tucking up their shirt sleeves] are logically the same as the utterance of words, for words are symbols. There would be no sense in attaching legal significance to the one that is not attached to the other. Perhaps the reason for the common statement that assault cannot be by words is the fear that people would prosecute in trivial cases. The fear would be met if the notion of psychic assault were limited to threats that would make a reasonable person apprehend immediate hurt.”113

1.44

This view is supported by a recent decision of the New South Wales Court of Criminal Appeal,114 in which it was held, following a decision on the civil side,115 that threats of violence made over the telephone are not properly categorised as mere words, and that whether the violence offered by such threats is sufficiently immediate depends on the circumstances. In another case,116 the Supreme Court of South Australia held that an assault was committed where the defendant threatened a woman to whom he had given a lift with future physical harm. During the course of argument, the Court had asked counsel to assume that the defendant was threatening the victim as he was stalking her in a remote scrub area in circumstances where both knew that he could carry out his threat at any time he wished:

“One analogy is that she was in the captive position of a mouse to which a playful cat poses a continuing threat of injury or death at a time to be decided by the cat. There was no escape, no reasonable possibility of a novus actus interveniens to break the causal link between the threat and the expected infliction of harm.”117

1.45

In cases of conditional threats, the requirement of immediacy is satisfied by the threat of force to follow immediately upon disobedience, provided that such obedience is required then and there as to amount to a fetter on the victim's


110

See Clarkson and Keating, op cit, p.450.

111

[1955] 1 All E.R. 744 at 745.

112

Ansell v Thomas [1974] Crim. L.R. 31; Read v Coker (1853) 13 C.B. 850.

113

Op cit, p.176. A threat to do any grievous bodily harm, whether verbal or written, is a crime known to the law of Scotland, see Miller (1862) 4 Irvine 238. A threat of lesser violence may also be criminal where accompanied by a criminal intent, Kenny v H.M. Advocate, 1951 J.C. 104.

114

R. v Knight (1988) 35 A. Crim. R. 314.

115

Barton v Armstrong [1969] 2 N.S.W.L.R. 451.

116

Zanker v Vantzokas (1988) 34 A. Crim. R. 11.

117

Id, at 16. The Court also relied on Barton v Armstrong, supra, n.115, and the Canadian case of Bruce v Dyer (1966) 58 D.L.R. (2d) 211.



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present freedom, as where the defendant says “Be quiet or I'll blow your brains out” or simply “Your money or your life”.118 It is no answer to a charge of assault in such a case that the victim could avoid the threatened harm by complying with the unlawful command,119 nor that he did in fact avoid it.120 Where, however, the condition is one which the threatener has a right to impose, and the degree of violence threatened on the fulfilment of that condition would be lawful for the purposes of self-defence or otherwise, there will be no assault.121

1.46

By contrast, words may operate to negative an assault, as where the defendant laid his hand on his sword, saying “If it were not assize-time, I would not take such language from you”.122 However, reassuring words may be so wholly outweighed by the menace of the act that they will not operate to negative the assault, as where the defendant held a shovel over his wife's head and said: “If it were not for the policeman outside I would split your head open”.123

The Requirement Of Force

1.47

In contrast to assault, in battery the appreciation of the victim that the act is about to take place, or even that it is already taking place, is irrelevant.124 All that is required is some degree of unlawful “force” applied to the body of the victim. For this purpose, the person of the victim includes the clothes he is wearing.125 So cutting a person's clothes will be a battery, even where the victim is unable to feel the impact.126

1.48

As a matter of law, therefore, the slightest touching of another is a battery if it is unlawful, and it need not cause any bodily harm or even pain and it need not leave any mark or visible injury, such as bruising, scratching or bleeding.127 So it is a battery to kiss a woman against her will, or to lay hands upon her for this purpose.128 But it is no battery for a man to kiss an intimate friend when he has reason to believe that this will be agreeable to her.129

1.49

Previously, an injury had to be direct and forcible before it came within the old writ of trespass, and this limitation still affects the law relating to battery – in general, the force must be applied “directly” to the person of the victim, though some degree of delayed or indirect action is tolerated. So poisoning a person's food or drink will not amount to a battery where the poison is taken by the


118

Williams, op cit, pp. 175–176; Police v Greaves [1964] N.Z.L.R. 295.

119

People v Henry, 356 III. 141, 190 N.E. 361 (1934).

120

State v Myerfield, 61 N.C. 108 (1867).

121

Rozsa v Samuels [1969] S.A.S.R. 205; Hairston v The State (1877) 54 Miss. 689; and Williams, Assault and Words [1957] L. Rev. 219.

122

Tuberville v Savage (1669) 1 Mod. Rep. 3.

123

Light (1857) D. and B. 332, 27 L.J.M.C. 1.

124

So a battery may be committed against a sleeping or unconscious person; see H.M. Advocate v Logan, 1936 J.C. 100; Sweeney v X., 1982 S.C.C.R. 509.

125

Day (1845) 1 Cox C.C. 207.

126

Thomas (1985) 81 Cr. App. Rep. 331 at 334.

127

People v McEvoy, 33 III App. 3d 300, 337 (1975); State v Gordon 120 Ariz. 172, 584 P. 2d 1163, 1165 (1978).

128

Moreland v State, 125 Ark. 24, 188 S.W. 1 (1916).

129

Weaver v State, 66 Tex., Cr. 366, 146 S.W. 927 (1912).



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victim's own hand.130 But a battery may be committed by the direct application of light, heat, electricity, gas or odour or any other substance or thing if applied in such a degree as to cause injury or personal discomfort to the victim,131 and clearly also by the use of any weapon or instrument against him132 or striking him by throwing a projectile or spitting at him.133 The application of force to the person of another by some substance which the aggressor puts in motion may also constitute a battery.134

1.50

The requirement that the force be direct is also satisfied where D sets a dog on a person,135 or strikes a horse to make it throw its rider,136 or upsets a chair on which another person is sitting.137 However, where the defendant engineers the downfall of P by making use of the latter's momentum, as where he digs a pit for another to fall into, or stretches a wire to bring down a motor-cyclist, or derails a train by interfering with the tracks, the injury will be too indirect for a battery, though such acts may amount to other offences.138 In D.P.P. v K.,139 however, an English Divisional Court recently held that an assault was committed by a schoolboy who had poured sulphuric acid into a hot air drier in respect of the next user of the machine “just as truly ... as if he had himself switched the machine on”. For this proposition Parker L.J. relied upon a lone dictum of Stephen J. in R. v Clarence:

“If a man laid a trap for another into which he fell after an interval, the man who laid it would during the interval be guilty of an attempt to assault, and of an actual assault as soon as the man fell in.”140

Although this reasoning applies to the causing of grievous bodily harm under s.18 of the 1861 Act,141 and has been approved in relation to the “infliction” of such harm under s.20,142 it has never, apart from Stephen's dictum in Clarence, been accepted for the purposes of common assault. In consequence, the decision in D.P.P. v K. may be questioned on this point.

1.51

Mere passive obstruction does not constitute a battery, though taking active steps to block or obstruct another may do so.143 In addition, if an act which is unlawful in itself results in non-fatal harm to the person of another, the elements of the offence must nevertheless be proved. In other words, the


130

R. v Clarence (1888) 22 Q.B.D. 23 at 42.

131

Russell on Crime (12th ed., 1964), pp.652–653, citing s.245 of the Queensland Criminal Code 1899.

132

Fagan v M.P.C. [1968] 3 All E.R. 442.

133

R. v Cotesworth, 6 Mod. 172, 87 Eng. Rep. 928 (1705); U.S. v Masel, 563 F. 2d 322 at 324 (7th Cir. 1977).

134

State v Hefner, 199 N.C. 778, 780, 155 S.E. 879, 881 (1930).

135

Gordon, Criminal Law (2nd ed., 1978), p. 185.

136

R. v Keay (1837) 1 Swin. 543.

137

Williams, op cit, p. 179.

138

If grievous bodily harm results, s.18 of the 1981 Act will apply. Wilful obstruction of the highway at common law and railway interference under s.32 of the 1861 Act would also cover some such situations.

139

[1990] 1 All ER 331. See Bennett, Assault – a harsh lesson [1990] 140 N.L.J. 588.

140

Clarence, supra, n. 130 at 45.

141

See below.

142

See below.

143

Innes v Wylie, 174 E.R. 800 at 803 (per Denman L.J.). But mere passive obstruction may amount to a false imprisonment, infra, Chapter 2.



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doctrine of constructive liability as applied to manslaughter144 does not apply to assaults145 and other non-fatal offences against the person.146

Wounding And Mayhem

1.52

Where the offence is of battery by wounding, it is established that the continuity of the entire skin must be broken, ie, not merely the cuticle or upper skin, though a division of the internal skin, for example within the cheek or lip, will also suffice.147 So where a pellet fired by an air pistol hit P in the eye but caused only an internal rupturing of blood vessels and not a break in the skin, there was no wound.148 Similarly, where P's collarbone was broken, it was held that there was no wound if his skin was intact. There was a wound, however, where the lining membrane of the urethra ruptured and bled, evidence being given that the membrane is precisely the same in character as that which lines the cheek.149 A “wound” includes incised wounds, punctured wounds, lacerated wounds, contused wounds and gunshot wounds.150

1.53

At common law, there is no distinction in gravity between a wounding and non-wounding battery, both being misdemeanours. The distinction is important, however, with respect to the statutory offences of wounding with intent and unlawful wounding under ss.18 and 20 of the 1861 Act. Originally introduced to obviate difficulties which arose in the construction of the words “cuts” and “stab” in previous enactments, it is now immaterial by what means the wound is given, and the means need not be stated in the indictment.151

1.54

Mayhem, or the maiming of persons, was probably at one time a felony at common law, though it appears to have been considered in later times, with the possible exception of castration, as a misdemeanour. Defined as the malicious infliction of a bodily hurt whereby a man is rendered less able in fighting to defend himself or to annoy his adversary,152 mayhem is no longer laid in indictments at common law, but under the statutory provisions considered below.153 The original rationale for the offence was that such injuries would weaken the military capacity of the realm, and this is preserved in respect of persons subject to military law by the offence of malingering or maiming in s.143 of the Defence Act, 1954.


144

See generally, Williams, op cit, chapter 10, para. 5.

145

In the United States, however, most jurisdictions have extended the doctrine also to assaults: for example, King v State 157 Tenn. 635, 17 S.W.2d 904 (1928); Lane v State 65 Okl. Cr. 192, 84 P. 2d, 807 (1938).

146

The decision of the English Court of Appeal in R. v Cato [1976] 1 W.L.R. 110 may be regarded as contrary to principle in this respect; see Wells, 39 M.L.R. 474.

147

People (Attorney General) v Messitt [1974] I.R. 406. See also Vallance (1961 108 C.L.R. 56; Waters [1979] 1 N.Z.L.R. 375; Devine [1982] 8 A. Crim. R. 45.

148

C. (a Minor) v Eisenhower [1984] Q.B. 331.

149

Waltham (1849) 3 Cox C.C. 442.

150

Archbold, Pleading, Evidence and Practice in Criminal Cases (43rd ed., 1988), pp.20–140.

151

Russell on Crime, op cit, p.621.

152

Id, pp.624–626.

153

Infra, p.55 et seq.



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Use Of Force In Arrest And Questioning

1.55

No battery is committed by a Garda or any other person who uses such force as is reasonably necessary to effect a lawful arrest or to ensure that the arrest is maintained.154 Whether the force used is reasonably necessary depends on whether the means adopted are such that a reasonable person placed as the arrester is placed would not consider the use of force to be disproportionate to the evil sought to be prevented.155

1.56

In order to make a valid arrest, the arrester should touch the offender's body or otherwise restrain his liberty, so that a technical battery may even be required. Provided there is touching, it is not necessary that the offender be physically restrained.156 However, such a restraint will not arise from the mere pronouncing of words of arrest without either a formal touching of a person sought to be arrested or a submission or acquiescence by him evidenced by words or conduct.157

1.57

However, the Gardaí have no general power, independent of statute, to detain people for questioning, there being no intermediate period between liberty and arrest.158 In consequence, although a person may be willing to answer questions from a Garda, he cannot be required to stop and listen, and the slightest laying of hands upon him without his consent will constitute a battery.159

1.58

It is established that merely pulling away from someone, even where that person seeks to arrest you lawfully, will not in itself constitute a battery, though it may be the distinct offence of escape.160

Use Of Force In Theft-Related Offences

1.59

Pulling an article from another's grasp is not a battery, even though it is with intent to steal.161 But to pull or strike the victim would be; and it appears that even a pulling of the article would be an assault if this involves injury or pain to the victim, as where an earring is ripped from the lobe of the ear.162

1.60

Under s.23 of the Larceny Act, 1916, as inserted by s.5 of the Criminal Law (Jurisdiction) Act, 1976, a person is guilty of the separate statutory offence of robbery if he steals, and immediately before or at the time of doing so, he uses force on any person or puts or seeks to put any person in fear of being then and


154

Dowman v Ireland [1986] I.L.R.M. 117 (High Court) (per Barron J.), citing Kenlin v Gardiner [1966] 3 All E.R. 931 and Pedro v Diss [1981] 2 All E.R. 59.

155

A.G. for Northern Ireland's Reference 1977 [1977] A.C. 105 at 137–38 (per Diplock L.J.).

156

Nicholl v Darley (1828) 2 Y. and J. 399.

157

R. v Jones, ex parte Moore [1965] Crim. L.R. 222; Alderson v Booth [1969] 2 Q B. 216; Police v Thomson [1969] N.Z.L.R. 513.

158

Dunne v Clinton [1930] I.R. 260.

159

Collins v Wilcock [1984] 3 All ER 374, discussed by the English Court of Appeal in Wilson v Pringle [1986] 2 All ER 440.

160

Sheriff [1969] Crim. L.R. 260.

161

Ansell v Thomas [1974] Crim. L.R. 31.

162

Williams, op cit, p. 177.



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there subjected to force. A person guilty of robbery, or of an assault with intent to rob, is liable on conviction on indictment to imprisonment for life.163

1.61

It may be noted in this connection that s.5 of the 1976 Act, in substituting a new s.23 in the Larceny Act, 1916, had the effect of raising the maximum penalty for assault with intent to rob from 5 years penal servitude to life.

1.62

For the purposes of classification, an assault with intent to rob is treated as an offence against the person, and may be distinguished in this respect from robbery, which is treated as an offence against property.164

1.63

With respect to the offence of assault with intent to rob, it is difficult to see how, in practice, a reckless assault will suffice, because if the assault was not intended, it cannot be said to have been committed with the intention of committing robbery. This intention may, of course, be inferred from the circumstances attending the assault, as well as from the defendant's conduct. In this respect, no actual demand of money, etc., is necessary to support the indictment.165

1.64

A further theft-related offence which may but does not necessarily involve the actual, attempted or intended use of violence is that of burglary, provided for in s.23a of the Larceny Act, 1916, as inserted by s.6 of the Criminal Law (Jurisdiction) Act, 1976. This provides as follows:

“23a.


(1)


A person is guilty of burglary if–


(a)


he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subs.(2); or


(b)


having entered any building or part of a building as a trespasser, he steals or attempts to steal anything in the building or that part of it, or inflicts or attempts to inflict on any person therein any grievous bodily harm.


(2)


The offences referred to in subs.(1)(a) are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm or raping any woman therein and of doing unlawful damage to the building or anything therein.


(3)


References in subss.(1) and (2) to a building shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle


163

For a discussion of “force” in robbery, see the Commission's Report on Dishonesty, p. 121.

164

See this Commission's examination of robbery in the context of dishonesty, op cit, pp.402–403. The English Law Commission includes assault with intent to rob in its Draft Criminal Code under the chapter on offences against the person; Law Com. No. 177, s.78.

165

R. v Trusty and Howard (1783) 1 East P.C. 418; R. v Sharwin (1785) 1 East P.C. 421.



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or vessel at times when the person having a habitation in it is not there as well as at times when he is there.


(4)


A person guilty of burglary shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.”

1.65

Under s.23b of the 1916 Act, as inserted by s.7 of the 1976 Act, a person commits the separate offence of aggravated burglary, punishable by life imprisonment, if he commits any burglary and at the time has with him any firearm or imitation firearm, any weapon of offence or any explosive.166

1.66

Replacing the pre-existing offences relating to breaking and entering with intent to commit a felony, the above provisions were designed to bring the law into correspondence with that in England and Northern Ireland.167 In this respect, one commentator has noted168 that the omission of the word 'offence' from subs.1(b) of s.23a appears to be the result of a duplication of a legislative oversight in the equivalent English provision, in that a trespasser who may have a defence to a charge of inflicting grievous bodily harm could nevertheless, on a strict reading of the subsection, be convicted of burglary. This is to be contrasted with the position of the accused charged with burglary by entry with intent under subs.1(a), who would, on English authority,169 be acquitted if he believed in the existence of facts which would justify the infliction of grievous bodily harm.

1.67

The English Court of Appeal has held that the words “grievous bodily harm” should bear the same meaning in burglary as under s.20 of the 1861 Act,170 and that as under s.20, “inflicting” is wider than assault, an accused charged with entering and inflicting cannot, in the absence of an appropriate indictment,171 be convicted of assault occasioning bodily harm under s.47 of the 1861 Act.172 However, where an offence such as murder or administering poison under s.23 of the 1861 Act includes the inflicting of grievous bodily harm under s.20 as a lesser offence, it may form the subject of an indictment for burglary.173

1.68

Finally, in relation to sexual assaults, it may be noted that subs.2(2) of s.23a is narrowly drafted in confining the requisite ulterior intent to the rape of “any woman”.174


166

These terms are defined in paras. 23b(1)(a)–(c). For the law relating to firearms, explosives and offensive weapons, see below.

167

For a review of the law, generally, see McCutcheon, The Larceny Act, 1916, (1988).

168

McCutcheon, op cit, p.83, note 12, citing Smith, The Law of Theft (1984), para. 359.

169

R v Gladstone Williams (1984) 78 Cr. App. R. 276; [1987] 3 All ER 411.

170

R v Jenkins [1983] 1 All ER 1000: See People (A.G.) v Messitt [1974] I.R. 406.

171

McCready [1978] 3 All ER 967.

172

R v Jenkins, supra, n.170, corresponding to the law under s.20 of the 1861 Act, as settled in R. v Wilson [1983] 1 All ER 993 and [1983] 3 All ER 448.

173

McCutcheon, op cit, p.83.

174

See this Commission's Report on Rape (LRC 24–1988), as to the suggested expansion of the scope of rape and the creation of offences of sexual assault and aggravated sexual assault.



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Lawful Correction/Discipline

Spouses

1.69

References may be found to the ancient authority of a husband to chastise his wife with a “whip or rattan no bigger than [his] thumb in order to enforce the salutary restraints of domestic discipline”.175 A husband was therefore not liable for a battery on his wife, even if they were living apart,176 unless he acted with extreme cruelty or inflicted permanent injury.177 Even then, it appears that he could plead in mitigation that he was provoked to chastise her because of her “bad behaviour”.178 These rules were doubted in Blackstone's time,179 and “the courts have [since] advanced from that barbarism until they have reached the position that the husband has no right to chastise his wife under any circumstances”.180

1.70

In some early cases it was held that a husband, in order to prevent his wife from eloping, could legally confine her within his own dwelling.181 However, all such conceptions of a husband's rights were swept away by the English Court of Appeal in 1891, when it was held that, even in order to enforce a decree of restitution of conjugal rights, a husband could not keep his wife in confinement.182 Accordingly, “[t]he notion that a husband can, without incurring punishment, treat his wife, whether she be a separated wife or otherwise, with any kind of hostile force is obsolete”.183

1.71

At common law, although spouses were generally not competent to testify against each other in criminal trials, a spouse was nevertheless competent, though not compellable, to give evidence on behalf of the prosecution in any case involving violence against his or her person by the other spouse.184 Section 4 of the Criminal Justice (Evidence) Act, 1924, gave statutory expression to this and other exceptions185 and, in addition, provided for such competence in respect of a scheduled list of offences.186 In our Report on Competence and Compellability of Spouses as Witnesses,187 we recommended that spouses should be competent, though not compellable, witnesses against each other in all criminal proceedings.


175

Bradley v State, 1 Miss. 156, 157 (1824); see Bradley v His Wife, 1 Keb. 637, 83 Eng. Rep. 1157 (1663).

176

State v Black, 60 N.C. 262.

177

State v Pettie, 80 N.C. 367.

178

Robbins v State, 20 Ala. 36.

179

1 B.I. Comm. 444–45.

180

State v Oliver 70 N.C. 60 (1874); see also Johnson v Johnson, 201 Ala. 41, 44 (917); Bailey v People, 54 Colo. 337, 130 p.832 (1913).

181

For example Re Cochrane (1840) 8 Dowl. 630.

182

R. v Jackson [1891] 1 Q.B. 671, discussed by the English Court of Appeal in Reid [1972] 2 All ER 1350.

183

Reid, supr, at 1353 (per Cairns L.J.). The Family Law Act, 1988, abolished the action for the restitution of conjugal rights.

184

These common law exceptions are considered by Walsh J. in People (D.P.P.) v T., C.C.A., unreported, 27 July 1988, at 28–29 and 31–32 of the judgment of the Court.

185

S.4(2).

186

S.4(1). The scheduled offences are s.2 of the Vagrancy (Ireland) Act, 1847; Offences Against the Person Act, 1861, ss.48, 52, 53 and 54, so far as unrepealed, and s.55; Married Woman's Property Act, 1882, ss. 12 and 16; and the whole of the Prevention of Cruelty to Children Act, 1904.

187

LRC 13–1985. See also Jackson, The Competence and Compellability of Spouses as Witnesses (1986) 8 D.U.L.J. (ns.) 46.



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1.72

It was subsequently held in D.P.P. v T.,188 that the common law rule which precluded a person from testifying against a spouse charged with a sexual offence against his or her child had not survived the enactment of the Constitution. Clearly, this decision would extend also to cases of non-sexual child abuse by either parent, though whether it would extend to abuse of children outside the family is open to question.

The matter was finally dealt with, quite comprehensively, in the Criminal Evidence Act, 1992. Section 21 provides that a spouse of an accused shall be a competent witness in all criminal proceedings (except while being a co-accused). Section 22 goes further and provides for a spouse being a compellable witness (not being a co-accused) in an offence which:


(a)


involves violence, or the threat of violence, to –


(i)


the spouse,


(ii)


a child of the spouse or of the accused, or


(iii)


any person who was at the material time under the age of 17 years,


(b)


is a sexual offence alleged to have been committed in relation to a person referred to in subparagraph (ii) or (iii) of paragraph (a), or


(c)


consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph (a) or (b).”

Servants, apprentices and mariners

1.73

The common law also authorised a master to inflict moderate and reasonable physical chastisement on his apprentice.189 True apprenticeship, however, was a special relation, so that an employer had no authority, in the absence of parental delegation, to administer corporal punishment to an ordinary servant on the grounds that he was a minor, no matter how flagrant his breach of duty.190 In addition, the master or officer in command of a ship or a voyage was justified in punishing delinquent mariners with such force, administered with due moderation, as he reasonably believed necessary for the preservation of order and discipline, or for the safety of the vessel, or persons or property on board.191 All these formerly recognised rights, however, “may be assumed to have fallen into desuetude”192, and have properly been described as obsolete.193


188

Supra, n.184.

189

1 B.I. Comm. 428. R. v Mawgridge (1706) 17 St. I.R. 57.

190

Tinkle v Dunivant, 84 Tenn. 503 (1886); Cook v Cook, 232 Mo. App. 994, 996, 124 S.W. 2d 675, 676 (1939).

191

See The “Agincourt” (1824) 166 E.R. 96 at 97 (per Lord Stowell), and the “Lowther Castle” (1885) 166 E.R. 137; Lamb v Burnett (1851) 148 E.R. 1430; Hook v Cunard Steamship Co. Ltd. [1953] 1 All E.R. 1021. See also s.44 of the Canadian Criminal Code; ss.281 and 258 respectively, of the Queensland and Western Australia Codes.

192

11 Halsbury's Laws of England, (4th ed., 1976), p.647.

193

Smith and Hogan (6th ed.), op cit, p.386.



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Children

1.74

The common law nevertheless continues to recognise the right of a parent or person in loco parentis to inflict moderate and reasonable physical chastisement on a child.194 This parental power, deriving from the concept of patria potestas in Roman law195, is expressly preserved by s.37 of the Children Act, 1908, which provides:

“Nothing in the Part of this Act [relating to the prevention of cruelty to children and young persons] shall be construed to take away or affect the right of any parent, teacher, or other person having the lawful control or charge of a child or young person to administer punishment to such child or young person”.196

1.75

Whether the person has the lawful control or charge of a child is a matter of fact for the jury197– in general, the right of chastisement extends only in relation to unemancipated minors.198 It has been held to extend to the case of an adopted child,199 whether adopted formally or informally200 and to a stepchild.201 The right to chastise has been deemed to lie in a guardian who retains control of his ward,202 and to a common law spouse in respect of the other spouse's child.203 It has been held not to extend, however, to a hospital counsellor in respect of a retarded adult.204

1.76

The motive for, and the duration and force of the punishment, as well as the choice of instrument, must be objectively reasonable, not only reasonable in the parent's opinion.205 Punishment cannot therefore be administered “for the gratification of passion or rage ... or with an instrument unfitted for the purpose”.206 However, it appears that where the chastisement is moderate, the courts will not inquire very closely into the validity of a parent's motives, and that where it is immoderate, such motives are irrelevant.207

1.77

The question whether the parent's conduct has gone beyond reasonable physical chastisement is a matter for the jury, provided there is evidence fit for


194

Id, Halliwell v Counsell (1878) 38 L.T. 176; State v Fischer, 245 Iowa 170, 60 N.W. 2d 105 (1953); ss.280 and 257, respectively, of the Queensland and Western Australia Codes; s.50 of the Tasmanian Code; s.59 of the New Zealand Crimes Act, 1961.

195

See Black's Law Dictionary (5th ed., 1979), p.1014.

196

For a discussion of cruelty and other offences against children, see below.

197

R. v Cox [1898] 1 Q.B. 179.

198

McGregor v State, 4 Tex. App. 599.

199

State v Koonse, 123 Mo. App. 655, 101 S.W. 139 (1907).

200

State v Gillett, 56 Iowa 459, 9 N.W. 362 (1881).

201

Gorman v State, 42 Tex. 221.

202

Eitel v State, 78 Tex. Crim. 552, 182 S.W.318.

203

R. v Bedelph [1891] 4 A. Crim. R. 192 (Tasmanian Court of Criminal Court).

204

R. v Ogg-Moss (1981), 24 C.R. (3d) 264 (Ontario C.A.). See also Skinner v Robertson, 1980 S.L.T. 43, as to the importance in this connection that a mentally handicapped person understand normal principles of right and wrong; see Norman v Smith, 1983 S.C.C.R. 100, as to the use of excessive force in restraining unruly patients.

205

See Law Reform Commission of Canada, W.P.38, Assault (1984), Appendix, at pp.58–59.

206

Per Cockburn L.J. in R. v Hopley (1860) 2 F. & F. 202 at 206.

207

Smith and Hogan, op cit, p.386.



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them to consider,208 though they may be instructed that a parent is not required precisely or neatly to weigh the amount of force used by way of correction.209

1.78

Moreover, the chastiser must intend, or be reckless as to whether he inflicts the degree of harm actually caused, so that he will not be criminally liable where the harm results from some fact unknown to him, such as the exceptional vulnerability of the child or a dangerous defect in the implement used.210 The child must, however, be old enough to appreciate the nature of the correction,211 so that the parental authority over infants, at least where under twelve months, does not extend to physical hurt.212

1.79

At common law, schoolteachers are in the same position as parents with regard to the conduct of a child at or on the way to or from school.213 Yet the source of the teacher's authority to use reasonable force by way of correction is unclear: whereas in early English authority214 and more recent Canadian decisions215 it is said to originate in a delegation of parental authority, it may now, since the advent of compulsory education, be more accurately based, as in Scotland216 and the United States,217 on the teacher's quasi-public authority qua teacher to enforce discipline and maintain order in the school.218 In the latter case, such authority cannot be withdrawn by the parent, and in some cases may be broader than the authority of the parent.219

1.80

In this respect, it may be noted that s.37 of the 1908 Act, set out above, is merely declaratory of the common law and does not create a statutory right in teachers similar to that obtaining, for example, in New Zealand220 and Australia.221 On the contrary, the Department of Education, by means of


208

R. v Rahman (1985) 81 Cr. App. R. 34. The insufficiency of evidence in cases of child abuse is a perennial problem for prosecutors, for example in A.G.L. v H.M. Advocate, 1988 S.C.C.R. 62, it was held that it was not enough to establish that mutilations had occurred at a time when the child victims were living with the defendants – it was important to lead evidence from which the jury could infer that they had the relevant opportunity at the relevant times.

209

R. v Terry [1955] V.L.R. 114. In the United States, the test of unreasonableness is not found in an error of judgment as to the force to be used, but in the substitution of a malicious desire to inflict pain in place of a genuine effort to correct the child by proper means. If a chastiser acts in good faith, the punishment will be unlawful only if permanent injury results, or if it amounts to cruelty, see Wharton's Criminal Law, (6), 1, pp.310–311 (14th ed., 1978 and Supplement, 1983).

210

See Commentary to R. v Smith [1985] Crim. L.R. pp.42–43.

211

R. v Griffing (1869) 11 Cox 402.

212

R. v Miller (1951) V.L.R. 346, (1951) A.L.R. 749 (Vic. Sup. Ct. F.C.).

213

Cleary v Booth [1893] 1 Q.B. 465; Baker v Downey City Board of Education 307 F. Supp. 517. The out-of-school conduct must have a direct and immediate effect on the discipline or general welfare of the school, see Shanley v Northeast Independent School Dist. 462 F. 2d 960, and cannot extend to conduct occurring after pupils arrive home from school, Jones v Day, 127 Miss. 136, 18 A.L.R. 645. The right has been held to extend to a defendant school busdriver; R v Trynchy, (1970) 73 W.W.R. 165.

214

Cleary v Booth, supra; Mansell v Griffin [1908] 1 K.B. 947.

215

R. v Corkum [1937] 1 D.L.R. 79; R. v Trynchy, supra, n.213.

216

Brown v Hilson, 1924 J.C. 1; Gray v Hawthorn, 1964 J.C. 69.

217

State v Mizner, 45 Iowa 248 (1876); McShane v Paton, 1922 J.C. 26.

218

See Street, The Law of Torts (4th ed., 1968) 87, Stroud, The Teacher's Privilege to Use Corporal Punishment, (1978) 11 Ind. L. Rev. 349, 353, links the power to a delegation of state police power to school officials.

219

Baker v Owen, 395 F. Supp. 294, aff'd. 423 U.S. 907, 96 S. Ct. 210.

220

Crimes Act, 1961, s.59.

221

Ss.280, 257 and 50, respectively, of the Queensland, Western Australia and Tasmania Codes.



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Department circular letters,222 has sought to prohibit the practice of corporal punishment in Irish schools. There is, however, no law providing for such abolition, and such circulars, though they may be evidence of a breach of duty in civil law,223 do not have the effect of bringing such conduct within the ambit of the criminal law.224

1.81

Article 3 of the European Convention on Human Rights provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. Clearly, some forms of corporal punishment will be in violation of this article by virtue of their severity.225 In Campbell and Cosans v U.K.,226 it was argued that the practice of corporal punishment in Scottish schools in itself gave rise to such a violation, though this claim was declared inadmissible since the child in question had not actually been punished. The Court nevertheless held that to expose children to corporal punishment against the wishes of their parents violated the parents' rights to ensure that the education and teaching of their children is in conformity with their philosophical and religious convictions, contrary to Article 2 of the First Protocol to the Convention.227

1.82

As regards the right of parents, etc., to chastise their children, it appears that whereas the courts were originally prepared to accept quite severe punishment of children,228 the standard of reasonableness now adopted by the courts would clearly be higher than that giving rise to a breach of Article 3 of the Convention (on the improbable assumption that the Convention could be said to give rise to State responsibility for failing to criminalise such conduct).229

1.83

As noted above, the right is limited to the punishment of unemancipated children above the age of infancy not resulting in permanent injury,230 the reasonableness of which is to be judged according to the customs of contemporary Irish society.231


222

Department of Education; Primary Branch, circular 9/82; Post Primary Branch, Circular M5/82.

223

See Michael Browne & Others v An Bord Pleanala, Irish Times, 2 October 1989, p. 17.

224

King v Nichols (1939) 33 Q.J.P. 171, in which it was held that in using reasonable force by way of correction within s.280 of the Queensland Code, the fact that the headmaster was in breach of a departmental regulation did not bring him within the ambit of the criminal law. See also Carberry v Yates (1935) 69 I.L.T.R. 86. See generally, Hogan, The Legal Status of Administrative Rules and Circulars (1987) 22 Ir. Jur. (ns.) 194 at 200–201.

225

See Tyrer v U.K., Judgment of the European Court of Human Rights, 25 April 1978, 2 E.H.R.R.1; and, generally, Pogany (1982) 132 N.L.J. 344.

226

4 E.H.R.R. 293 (29 January 1982).

227

This protocol has been in force in respect of Ireland since 3 September 1953. Following the judgment of the Court, the British Parliament enacted s.48 of the Education (No.2) Act, 1986, and s.48A of the Education (Scotland) Act, 1980, which provides that while in any other proceedings a teacher cannot rely on his “right” to administer corporal punishment, the administration of such punishment within the limits of lawful chastisement will not amount to an offence.

228

See Howard, Criminal Law (3rd ed., Sydney, 1977), p. 145; Boyd v State, 88 Ala. 169, 172 (1890); but see R. v Bedelph [1981] 4 A. Crim. R. 192.

229

See for example, X. v United Kingdom, Application No. 9348/81, decision of the European Commission of Human Rights, 28 February 1983, in Petzold, The European Convention on Human Rights (5th ed., 1984), p.67.

230

Supra, page 24. The means of correction must also be adapted to the age and sex of the child and the effects that may result from it: see R. v Baptiste & Baptiste (1980) 61 C.C.C. 2d 438.

231

It appears from English, Scottish, and Canadian authority that no allowance will be made for the more severe customary punishment of immigrant children: see R. v Derriviere (1969) 53 Cr. App. R. 637: Gordon, Criminal Law (2nd ed.), p.827: R. v Sarwer – Foner, 12 January 1979, Ont. Prov. Ct. (Fam. Div.), unreported. In Scotland, however, the requirement, of “evil intent” applies also to cases of corporal punishment: see Guest v Annan, 988 S.C.C.R. 275.



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1.84

In this respect, it appears that temporary pain and discolouration of the flesh will not be excessive232 where the punishment takes place for corrective purposes233 and at the first reasonable opportunity.234 Whereas punishment inflicted by blows to the head is prima facie unreasonable, slaps on the face not likely to cause injury may nevertheless be reasonable.235 It is not within the bounds of parental authority for a father to point a loaded pistol at his son to frighten him.236

1.85

Those in charge of trains, boats, stadia, theatres, and similar places, while without authority to punish members of the public for misbehaviour, may, on American authority at least, use reasonable and moderate force to expel a person who refuses to pay his fare or admission,237 or is guilty of serious misconduct after he has paid. But such a person will be guilty of assault and battery if he does so improperly as by ejecting a passenger from a moving train.238

Prisoners

1.86

Breaches of prison discipline, including any assault or attempted assault,239 are not punishable by whipping or any other form of corporal punishment,240 nor by the use of irons or mechanical restraints,241 which may only be used in case of urgent necessity and when necessary for the purposes of restraint.242 The State's duty not to expose the health of prisoners to risk or danger243 has nevertheless been considered in connection with punishments for certain breaches of prison discipline which may result in what Rule 69 describes as “close confinement“ for up to 3 days and, in the case of prisoners serving a sentence of penal servitude, “separate confinement” for up to 28 days.244

1.87

Punishment for breaches of prison discipline are to be distinguished, however, from the execution of a sentence in pursuance of a court order. A small number of statutes still authorise a sentence of whipping for adult males,245 and provision is made in Rules 72 and 73 of the Rules for the Government of Prisons 1947 for the manner in which such punishment is to be


232

Campeas v Tiking (1951) 14 C.R. 202; Byrne v Hebden (1913) Q.S.R. 233 (Queensland Sup. Ct.).

233

R. v Kanhai (1981) 124 D.L.R. (3d) 85.

234

R. v Haberstack (1970) 1 C.C.C. (2d) 433.

235

White v Weller (1959) Q.D.R. 192 (Queensland Sup. Ct.).

236

R. v Hamilton (1891) 12 L.R. (N.S.W.) 111 (N.S.W. Sup. Ct.).

237

Carpenter v Washington & G. Ry. Co., U.S. 474, 7 S. Ct. 1002 (1887); Griego v Wilson, 91 N.M. 74, 570 P. 2d 612 (1977).

238

State v Kinney, 34 Minn. 311, 25 N.W. 705 (1885).

239

These are set out in Rule 68 of the Rules for the Government of Prisons 1947 (Statutory Rules and Orders 1947, No. 320).

240

By virtue of Rule 72(1), below.

241

Rule 74.

242

Rule 75. Rules 75–78 provide for safeguards in respect of such restraints.

243

For example, Finlay P. in State (C) v Frawley [1976] I.R. 365 at 372.

244

These cases have been concerned with unlawful restrictions on the right to liberty, contrary to Article 40.4.1° of the Contitution, rather than with the right to bodily integrity. Nevertheless, it is clear that severe ill-treatment of a prisoner may entitle him or her to an order of habeas corpus; see, generally, Kelly, The Irish Constitution (2nd ed., 1984), p.491 et seq, and Supplement (1987) p.157 et seq.

245

Ryan & Magee, The Irish Criminal Process (Mercier, 1983), p.401. In England, all power to pass a sentence of whipping was abolished by s.2 of the Criminal Justice Act, 1948.



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inflicted:

72.


(1)


Corporal punishment shall not be inflicted on any prisoner save in pursuance of a Court Order.


(2)


All corporal punishment shall be attended by the Governor and Medical Officer.


(3)


The medical officer shall, immediately before the punishment is inflicted, examine the prisoner and satisfy himself that he is in a fit condition of health to undergo the punishment, and shall make such recommendations for preventing injury to the prisoner's health as he may deem necessary and the Governor shall carry such recommendation into account.


(4)


At any time the infliction of the punishment has commenced, the medical officer may, if he deems it necessary in order to prevent injury to the prisoner's health, recommend that no further punishment be inflicted and the Governor shall thereupon remit the remainder of the punishment.

73. The Governor shall enter in his journal the hour at which the punishment was inflicted, the number of strokes or lashes given and any order which he or the medical officer may have given on the occasion.”

1.88

In practice, the corporal punishment of prisoners is obsolete,246 and even the possibility is more academic than real because most of the statutes authorising such punishment, including the relevant provisions of the Offences Against the Person Act, 1861,247 limit such a sentence to males below the age of 16,248 and because children, i.e. those below the age of 15, cannot be sent to prison.249 Moreover, although it may well be that the safeguards in Rules 72 and 73 satisfy the duty of the State not to expose the health of prisoners to risk or danger, whipping constitutes degrading treatment or punishment within the meaning of Article 3 of the European Convention on Human Rights.250 Freedom from such punishment or treatment forms part of the unspecified personal rights guaranteed by Article 40.3.1 of the Constitution which are not dependent on the continuation of a prisoner's liberty and which are not restricted in reasonable consequence of the State's power to imprison.251


246

Ryan & Magee, op cit, p.401.

247

Ss.16, 28, 29, 30, 32, 56, and 64. Under s.70, the Court may sentence the offender to be once privately whipped, and the number of strokes and the instrument used must be specified by the Court in the sentence.

248

O'Connor, The Irish Justice of the Peace (1915), Part II, pp.6, 122, refers to the “numerous” statutes which authorise the whipping of males under 16, at pp.6 and 122.

249

S.9 of the Summary Jurisdiction over Children (Ireland) Act, 1884, as amended by s.128(1) of the Children Act, 1908, and as re-amended by s.28 of the Children Act, 1941, defines a child as a person who, in the opinion of the Court before whom he is brought, is under the age of 15.

250

Tyrer v U.K., supra, n.225. In The State (Richardson) v Gov. of Mountjoy Prison, unreported, High Court (Barrington J.), 28 March 1980, it was stated that the Prison Rules are to be read in the light of the Constitution.

251

State (C) v Frawley, supra, n.243; Murray v Ireland [1985] I.R. 532 at 542 (per Costello J.).



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1.89

The constitutional validity of s.4(1)(d) of the Summary Jurisdiction over Children (Ireland) Act, 1884, may be questioned on the same grounds. This provides for an alternative sentence of whipping in respect of any male child between the ages of 7 and 15252 charged before a court of summary jurisdiction with any indictable offence other than homicide. Where the parent or guardian of such child has not objected to the charge being dealt with summarily, “the Court may, instead of any other punishment, adjudge the child to be, as soon as practicable, privately whipped with not more than six strokes of a birch rod by a constable, in the presence of an inspector or other officer of police of higher rank than a constable, and also in the presence, if he desires to be present, of the parent or guardian of the child”.253

Necessary Defence And The Prevention Of Crime

1.90

The use of reasonable force is lawful for the necessary defence of self or others or of property.254 Although some authorities suggest that there must be “some special nexus or relationship between the person relying on the doctrine to justify what he did in aid of another, and that other”,255 in Ireland it has been held that such distinctions are obsolete and that everyone has the right to defend any other by reasonable force against unlawful force.256

1.91

The principles applicable are the same whether the plea be made on grounds of necessary defence or on grounds of prevention of crime, the underlying justification being based on the broader right, if not the duty, to prevent a breach of the peace or the commission of an unlawful act.257 So the position appears to be the same where a person acts in defence of property, whether his own or that of another, which another seeks to steal, destroy or damage.258 A trespasser may be removed by the exercise of reasonable force only after he has been requested to leave and has refused to do so.259

1.92

However, in the case of a burglar or a trespasser who seeks to forcibly dispossess a person of his house, such force may be used immediately.260 The same principles apply to trespass to goods.261 Where a person unlawfully in possession of another's property (real or personal) refuses to return such property when requested to do so, reasonable force may again be used in order


252

S.4(5) of the 1884 Act limits the punishment to male children over the age of 17.

253

S.5(1) of the 1884 Act, which provided for the whipping of young persons, i.e. those between 15 and 17, was repealed by the Children Act, 1908.

254

People (A.G.) v Keatley [1954] I.R. 12 at 17 (per Maguire C.J.).

255

Devlin v Armstrong [1972] N.I. 13 at 35–36; R. v Rose (1884) 15 Cox 540.

256

Keatley, supra, n.254. In R. v Spartels (1953) A.L.R. 554, a similar approach was adopted by the Supreme Court of Victoria.

257

R. v Spartels, supra, see also Edmund-Davies J. in R. v Duffy [1967] 1 Q.B. 63.

258

Bird v Jones (1845) 7 Q.B. 742; see Kenny, Outlines of the Criminal Law (17th ed., 1966), pp.207–208, and McMahon & Binchy, Irish Law of Torts (2nd ed., 1990), pp.426–427.

259

Weaver v Bush (1798) 8 T.R. 78; see also, s.6(a) of the Prohibition of Forcible Entry and Occupation Act, 1971.

260

Green v Goddard, 2 Salk, 641, 91 E.R. 540 (1798); R. v Hussey (1924) 18 Cr. App. R. 160; and, generally, Russell on Crime, pp.682–83.

261

Harvey v Mayne, I.R. 6 C.L. 417 at 419 (Common Pleas (per Morris J.), 1872).



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to repossess it.262

1.93

Whether the use of force was necessary and whether no more force was used than was reasonable to repel the attack are questions of fact to be determined by the jury, the burden remaining at all times on the prosecution to prove that the force was lawful.263 In this connection, there is no absolute duty to retreat, and the failure to do so will only be one element to be taken into account in considering whether the accused's conduct was reasonable.264 Furthermore, a person about to be attacked does not have to wait for the assailant to strike the first blow or fire the first shot – circumstances may justify a pre-emptive strike. In this case, however, the anticipated attack must be imminent.265 In addition, a person is justified in taking preparatory measures to ward off or prevent an anticipated attack, and the fact that such measures may in themselves be unlawful does not thereby make his object unlawful.266

1.94

A person cannot invoke the defence, however, if he has deliberately provoked the attack with a view to using force to resist or terminate it. In R. v Browne, Lowry L.C.J. said:

“The need to act must not have been created by the conduct of the accused in the immediate context of the incident which was likely or intended to give rise to that view”.267

1.95

That part of the dictum which suggests that a person may not act in self-defence because his conduct was likely, or even foreseen to be likely, to give rise to that need may have gone too far, however, and has been criticised as infringing the important principle of freedom of action in Beatty v Gillbanks.268 In that case, Field J. rejected the proposition that a man may be punished for acts lawfully done because he knows that in so doing he may induce another to act unlawfully.269 As pointed out by Fitzgerald J. in Humphries v O'Connor,270 the law would be supplanted by the power of the mob if it were otherwise.

1.96

The better view, therefore, is as expressed in R. v Field,271 that a person is not deprived of his right to self-defence because he goes to a place where he may lawfully go, or does anything which he may lawfully do, in the


262

Id; the unlawful possession must be such as would ground an action in trespass, Holmes v Bagge, 1 E. & B. 782, 118 E.R. 629 (1853).

263

People v Dwyer [1972] I.R. 416; R. v Lobell [1957] 1 Q.B. 547 at 551.

264

Dwyer, supra; Bird [1985] 2 All ER 513; Whyte [1987] 3 All ER 416 at 419. In the case of defence of one's home, such a failure to retreat is irrelevant: see R. v Hussey, supra, n.260.

265

R. v Chisam (1963) 47 Cr. App. R. 130.

266

Attorney-General's Reference (No. 2 of 1983) [1984] 2 W.L.R. 465.

267

[1973] N.I. 96 at 107.

268

(1882) 9 Q.B.D. 308; see Codification of the Criminal Law. A Report to the Law Commission (Law Com No. 143), para. 13.53.

269

Doubts have nevertheless been expressed as to the correctness of the principle on the grounds that in the criminal law generally, it is open to the tribunal of fact to infer that the defendant has intended a result where he foresees that it is virtually certain to result from his behaviour: see O' Kelly v Harvey (1883) 14 L.R. Ir. 105; Goodall v Te Koot (1890) 9 N.Z.L.R. 26; R. v Londonderry J.J. (1891) 28 L.R. Ir. 440.

270

(1864) 17 Ir. C.L.R. 1.

271

[1972] Crim. L.R. 435.



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knowledge that he is likely to be attacked. From the point of view of public order, the practical conclusion to be drawn from this is that where a danger arises that the lawful exercise of rights may result in a breach of the peace, the proper remedy is the presence of police in sufficient numbers to preserve the peace, and not the legal condemnation of those exercising their rights.272

1.97

The force used must be proportionate to the harm sought to be prevented.273 So the use of lethal force in defence of property or in response to a common assault will be unlawful. (One consequence of this rule is that one may have to sacrifice a legally recognised interest where the force required to protect it is excessive.) In addition, the justification covers only such force as is used in sheer self defence, so that blows struck in revenge will be unlawful.274 Nevertheless, where the force is excessive, the case is not necessarily to be treated as if all the force used had been illegal: for example, the evidence, considered as a whole, may establish that a charge of “wounding with intent to do grievous bodily harm” should be reduced to one of unlawful wounding.275 Furthermore, in Ireland it has been held, following previous Australian authority,276 that at least with respect to “violent and felonious attacks”, where self-defence fails as a ground for acquittal on a charge of murder because the force used went beyond what was reasonable in the light of the circumstances but was no more than the accused honestly believed to be necessary in the circumstances, he is guilty of manslaughter and not of murder.277

1.98

In England, this approach has been rejected, so that there is no intermediate stage between acquittal and murder.278 This lack of flexibility to some extent explains why there has been a recent erosion in the requirement of proportionality, following a dictum of Lord Morris in Palmer v R.:

“A person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.”279

1.99

Although the proportionality requirement has always been interpreted


272

R. v Londonderry J.J., supra, n.269 at 450 (per O'Brien J.); Verrall v Great Yarmouth B.C., [1981] Q.B. 202 (per Denning M.R.).

273

Dwyer, supra, n.263; R. v McKay [1957] V.R. 560 (Supreme Court of Victoria).

274

R. v Driscoll (1841) C. & M. 214; R. v Bird (1985) 18 Cr. App. R. 110, 114.

275

Prevention of Offences Act, 1851, s.5.

276

Howe (1958) 100 C.L.R. 448, now overruled by the Australian High Court in Zekevic v D.P.P. (Vic.) [1987] 61 A.L.J. 375.

277

Dwyer, supra, n.263; People (A.G.) v Commane (C.C.A. No. 67 of 1974), Frewen, Vol. 1, 400.

278

McInnes [1971] 3 All ER 295. The Criminal Law Revision Committee in its Report on Offences Against the Person, para. 228, has recommended that the Howe principle be adopted, and this has been accepted by the Law Commission in s.59 of its Draft Criminal Code, Law Com. No. 177 (1989).

279

[1971] 1 All ER 1077 at 1088 (Privy Council), adopted by the C.A. in R. v Shannon [1980] 71 Cr. App. R. 192. See R. v Whyte [1987] 3 All ER 416 for its application to wounding.



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widely to allow for the heat of the moment,280 it is not easy to see how “what the defendant thought” could be evidence of what it was reasonable for him to do.

1.100

By contrast, it is now established that where the defendant is labouring under a mistake as to the facts he is to be judged according to that mistaken view, irrespective of whether the mistake was reasonable or not.281 In this respect, the reasonableness or unreasonableness of the defendant's belief is only material to the question of whether that belief was held by him at all. It is then for the jury to decide whether the defendant's reaction to the real or imaginary threat was a reasonable one.282

1.101

There may, however, be an exception to this principle. Where a Garda is acting lawfully in the execution of his duty, the defendant's belief in the unlawfulness of the police action, whether reasonable or not, may not be a justification for any force used against the Garda in the absence of any imminent threat of injury. This rule appears from the decision of the English Court of Appeal in R. v Fennell,283 which upheld the conviction of a man for assaulting a police officer who was attempting to arrest his son, notwithstanding any honest and reasonable belief on his part that the arrest was unlawful:

“The law jealously scrutinises all claims to justify the use of force and will not readily recognise new ones. Where a person honestly and reasonably believes that he or his child is in imminent danger of injury, it would be unjust if he were deprived of the right to use reasonable force by way of defence merely because he had made some genuine mistake of fact. On the other hand, if the child is in police custody and not in imminent danger of injury, there is no urgency of the kind which requires an immediate decision, and a father who forcibly releases the child does so at his peril”.284

1.102

The decision is based on the policy that other remedies are available to secure the release of a person from allegedly unlawful police custody. In consequence, it does not extend to cases where the defendant is unaware that the “victim” is a member of the Gardaí,285 nor to cases where the arrest is in fact unlawful.286


280

Because “detached reflection cannot be demanded in the presence of an uplifted knife”, per Holmes J. in Brown v United States (1921) 256 U.S. 335. This was perhaps overstated by McDonald J.A. in R. v Wiggs (1931) 44 B.C.R. 364, when he stated that the law “makes allowances for human passions aroused in a father by a vicious attack, on a defenceless boy and permits him to use such a degree of force as may reasonably prevent its repetition.

281

R. v Williams [1987] 3 All E.R. 411; R. v Helmhout (1980) 1 A. Crim. R. 464 (Federal Court of Australia); R. v Bozikis (1981) 5 A. Crim. R. 58 (Victoria C.C.A.).

282

R. v Williams, supra.

283

[1970] 3 All ER 215. See also R. v Ball [1989] Crim. L.R. 579 and comment, pp. 80–81.

284

At 217 (per Widgery L.J.).

285

Archbold, op cit, pp.20–27.

286

E.G.R. v Osten, High Court, Wellington, 27 October 1987, discussed by Brookbanks, Self Defence in New Zealand [1989] N.Z.L.R. 258, 261.



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1.103

However, where the jury is further satisfied that the mistake has been caused by voluntarily induced intoxication, “reason recoils”, in England at least, from the application of this rule to the defendant's drunken mistake as to the facts, whether or not the offence is one of so-called specific intent or basic intent.287 In Australia, however, intoxication remains relevant to the issue of proof beyond reasonable doubt of the requisite intent where the accused pleads self-defence.288

1.104

A final question arises as to whether the defendant may rely on a defence of necessary defence or the prevention of crime, or on any other justification or excuse, where at the time of acting he does not know of, or believe in, the circumstances of justification or excuse but finds ex post facto that, had he but known of them, such circumstances did exist. In Dadson,289 where the defendant, a constable, shot and wounded a thief without knowing whether he was a felon, this question was answered in the negative by the Court for Crown Cases Reserved, and the rule that the defendant must actually know of or believe in circumstances of justification or excuse has since become known as the “Dadson principle”.

Provocation

1.105

The defence of provocation is limited to the law of homicide, where it operates to mitigate the rigour of the mandatory life sentence for murder by reducing the charge or conviction to voluntary manslaughter.290 In all other offences, provocation is a matter of mitigation to be considered by the judge in his or her discretion after conviction.291 As a matter of law, therefore, “[n]o conduct or words, no matter how offensive or exasperating, are sufficient to justify a battery”292 or, a fortiori, any other offence against the person resulting in non-fatal injury.293

Negligence

1.106

There is no general offence of negligently causing injury to the person of another.294 At common law, manslaughter is almost the sole offence of negligence, requiring death to result from a very high degree of negligence.295


287

R. v O'Grady [1987] 3 All E.R. 420.

288

R. v Helmhout, supra, n.281; R. v O'Connor (1980) 4 A. Crim. R. 348.

289

(1850) 4 Cox C.C. 358. See Hogan, The Dadson Principle [1989] Crim. L. Rev. 679; Sullivan, Bad Thoughts and Bad Act [1990] Crim. L. Rev. 559.

290

People v McEoin [1978] I.R. 27; see McAleese [1978] D.U.L.J. 53.

291

According to Williams, op cit, p.524, there are no limiting rules in the exercise of such discretion, and account will be taken of circumstances of provocation even in respect of a person who is drunk.

292

People v Martinez, 3 Cal. App. 3d 886, 889; 83 Cal. Rptr. 914, 915 (1970).

293

For example, wounding with intent to do grievous bodily harm: see R. v Helmhout, supra, n.281 (Supreme Court of the Australian Capital Territory).

294

See discussion in Williams, op cit, pp.223–224. In most juridictions in the U.S., a battery may also be committed negligently, the standard being the same as applicable to manslaughter, for example Commonwealth v Welansky, 316 Mass. 383, 55 N.E. 2d 902 at 912 (1944). In practice, however, the distinction between such negligence and Venna recklessness may be more semantic than real, as it must amount to wanton disregard of the rights of others: see, for example, Woodward v State, 164 Miss., 468, 475, 144 So. 895 (1932).

295

People (A.G.) v Dunleavy [1948] I.R. 95; Andrews v D.P.P. [1937] A.C. 576.



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By statute, the most conspicuous such offence is that of driving without due care and attention under s.52 of the Road Traffic Act, 1961, as amended, a summary offence irrespective of any resulting bodily injury.296 There are, in addition, a number of offences 'seeping into the statute book',297 mostly concerned with failure to comply with safety standards in industrial legislation, which are aimed at those who negligently create a risk of injury in particular circumstances.298

1.107

In jurisdictions which have provided for offences of causing bodily injury by a negligent act, the criminal standard of negligence appropriate to manslaughter has been applied in the absence of any express words or legislative intention which would justify reading into such offences any lower standard of negligence.299

Consent

1.108

In addition to the above special instances where the control or constraint is lawful, a broader exception exists which allows for the exigencies of everyday life.

“Generally speaking, consent is a defence to a battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason) slapped .... Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life .... In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend on


296

296 See below. In some common law countries, an offence of unlawful injury, i.e. resulting from an unlawful act or from criminal negligence, has been created by statute, for example New Zealand Crimes Act, 1961.

297

297 Williams, op cit, p.223.

298

298 For example, under the Safety, Health and Welfare at Work Act, 1989.

299

299 See R. v D. (1984) 14 A. Crim. R. 198 (New South Wales Court of Criminal Appeal).



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the facts of the particular case”.300

1.109

So, for example, a touch to engage a person's attention is to be distinguished from contact amounting to a restraint on that person.301

1.110

For both assault and battery, absence of consent is a definitional element in the offence which, in consequence, falls to be proven by the prosecution.302 In this respect, it appears that the answer to a vexatious criminal charge for a non-hostile, minor touching would be reasonable mistake of fact.303 But the consent must be given freely (i.e. without force, fear or fraud), and by a sane and sober person, so situated as to be able to form a reasonable opinion upon the matter to which consent is given. In this respect, there is no age or degree of mental affliction which as a matter of law precludes a person from consenting to the application of force to his body. Ability to consent is a matter of fact, depending on the capacity of the individual.

1.111

While it is clear that a consent may be invalid by reason of lack of age304 or infirmity305 it is also evident that the question of mental capacity to understand the nature of the act is closely linked to the degree of harm to which a person has allegedly given his consent.306 So 10–13 year-old boys may be held to have consented to the touching of their legs or arms, but not of their genitals.307 In Donovan, where the defendant, for his sexual gratification, beat a 17 year-old girl in circumstances of indecency thereby causing her a relatively slight degree of harm, Swift J. stated:

“No person can license another to commit a crime. So far as the criminal law is concerned, therefore, where the act charged is in itself unlawful, it can never be necessary to prove absence of consent on the part of the person wronged in order to obtain the conviction of the wrongdoer. There are, however, many acts in themselves harmless and


300

Collins v Wilcock [1984] 3 All ER 374 at 377–378 (per Goff L.J.). This “general exception” approach was questioned by the Court of Appeal in Wilson v Pringle [1986] 2 All ER 440 at 447, the court preferring to look to the doctrine of implied consent, as applied in the older cases: see, for example, Coward v Baddeley (1859) 4 H. & N. 478. In Wilson v Pringle, Groom-Johnson L.J. reverted to the test of whether such contact could be said to be hostile, this being a question of fact for the jury. The “general exception” approach nevertheless remains a more workable standard: see T. v T. [1988] 1 All ER 613 at 625 (per Wood J.). In F. v West Berkshire Health Authority [1989] 2 All ER 545, Lord Goff (as Goff L.J. had become) reasserted the approach he had favoured in Collins v Wilcock. He doubted whether the hostility test suggested in Wilson v Pringle was correct, commenting:

“A prank that gets out of hand, an over-friendly slap on the back, surgical treatment by a surgeon who mistakenly thinks that the patient has consented to it, all these things may transcend the bounds of lawfulness, without being characterised as hostile. Indeed, the suggested qualification is difficult to reconcile with the principle that any touching of another's body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass ...”.

301

See Parke B. in Rawlings v Till (1837) 3 M. & W.28 att. 29, 150 E.R. 1042, distinguishing Wiffin v Kincard (1807) 2 Bos. and P.N.R. 471, 127 E.R. 713.

302

R. v Donovan [1934] 2 K.B. 498, following May [1912] 3 K.B. 572.

303

Russell on Crime, p.657.

304

Burrell v Harmer [1967] Crim. L. Rev. 169. See discussion on “indecent assault with consent” in the Commission's Report on Child Sexual Abuse (LRC 32–1990), para. 4.16.

305

State v Marks, 178 N.C. 730, 101 S.E. 24 (1919).

306

See discussion in Clarkson and Keating, op cit, pp.225–232.

307

R. v Sutton [1977] 1 W.L.R. 1086.



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lawful which become unlawful only if they are done without the consent of the person affected. What is, in one case, an innocent act of familiarity or affection, may in another, be an assault, for no other reason than that, in the one case there is consent, and in the other consent is absent. As a general rule, although it is a rule to which there are well-established exceptions, it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence and when such an act is proved, consent is immaterial .... For this purpose we think that 'bodily harm' has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient or trifling.”308

1.112

This rule forms part of a broader principle that whether consent will constitute a defence is ultimately a question of public policy that involves balancing the seriousness of the harm inflicted against the social utility or acceptability of the defendant's conduct.309 So in Donovan, P's consent to a “slight tap” would have been operative notwithstanding the defendant's evil motives. But it was clearly those motives which rendered unlawful a degree of force which in other circumstances might have been permissible. In Coney, Stephen J. held that consent will not operate to negative an offence “if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured.”310

1.113

This means that most fights, whether in public and amounting to a breach of the peace or in private, will be unlawful regardless of consent, whereas blows struck in horseplay or in properly conducted games and sports and not likely or intended to cause bodily harm will not amount to a battery.311 This rule was formerly understood as providing that nobody had the right to consent to bodily harm in such a manner as to amount to a breach of the peace, or in a prize fight or other exhibition calculated to collect together disorderly persons.312 An unlawful contest, as opposed to a lawful game, included both struggles in anger313 and any contest, whether commenced in anger or not, in which the lives or health of the contestants were endangered, for example, contests with deadly weapons or those intended to be continued until one of the contestants is disabled or exhausted.314


308

Supra, n.302, at 510. This definition of “actual bodily harm” no longer applies to the statutory offence of assault occasioning such harm in s.47 of the 1861 Act: see below paragraph 1.152 et seq.

309

In II Halsbury's Laws of England, (4th ed)., para. 23, n.9, it is suggested that consent will not be a defence if it “is unacceptable according to prevailing moral and social standards or is inimical to the public interest”.

310

(1882) 8 Q.B.D. 534 at 549.

311

Attorney General's Reference (No. 6 of 1980) [1981] 2 All E.R. 1058 at 1059; Bruce (1847) 2 Cox C.C. 262. “Rough and disciplined sport or play” appears in Swift J.'s list of exceptions in Donovan, supra, n.302,... but not in Lord Lane's list in the A.G.'s Reference. This latter list, however, was not intended to be exhaustive, and the exception of consent to rough play was subsequently upheld by the English Court of Appeal in R. v Jones (1986) 83 Cr. App. R. 375.

312

Stephen's Digest of Criminal Law, (9th ed.), 258.

313

Caniff (1840) 9 C. & P. 359.

314

Coney, supra, n.310; Young (1886) 10 Cox C.C. 371; Orton (1878) 14 Cox C.C. 226.



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1.114

Commenting on the decision in Attorney General's Reference No.6 of 1980,315 in which the Court of Appeal endorsed the rule in Donovan relating to actual bodily harm and specifically embraced the vitiation of consent on grounds of policy, Williams has written:

“This wide doctrine of vitiation of consent on grounds of policy is a judicial invention for putting the law of assault to a purpose for which it was not intended. It turns an offence designed for the prevention of aggression into one that gives a judge and jury discretion to punish people for what they deem to be improper. Since this was an Attorney-General's reference and no defendant was before the court, the court did not find it necessary to pretend that it was merely stating the existing law. The precedents directly in point were of a low order of authority, while other cases indicated that the law was narrower.

The only relevant English case cited in the judgment was a nineteenth century decision on prize fights; such fights involved a considerable risk of death or grievous bodily harm and presented a much more serious social problem than a fist fight between two disputing teenagers (which was the occasion of the particular reference).

The attitude of the court was that it could nullify a person's consent in any case where the public interest did not require that consent should be a defence, and, in the opinion of the court, 'it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason.'

These are wide words, but if the decision is read as being confined to the subject of unregulated fights the policy is understandable ... [However], Lord Lane C.J., after the sentence just quoted, added:



'Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases.'

Apart from chastisement or correction, the legality of the items in this list will normally depend upon consent, which is allowed to operate in these cases. Although the list is presented as a statement of matters to which the court's outlawing of bodily injury will not extend, there is the disturbing thought that in fact the list may operate to extend that pronouncement. Were it not for the list of 'apparent exceptions' the


315

[1981] Q.B. 715.



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decision might have been regarded as confined to injuries inflicted in fights. But the 'apparent exceptions' seem to imply that the judges have empowered themselves to declare that the occasioning of any injury, even by consent, is unlawful except to the extent that they are prepared to accept 'apparent exceptions' in the public interest; and 'in the public interest' simply means that the judges approve of the activity. Traditionally they approve of boxing; presumably this is 'needed in the public interest' (Why is it needed? Is not the point rather that there is no public interest against it? – though serious doubts are now felt on the subject of head injuries in this sport). According to the dictum, the courts are even prepared to countenance 'dangerous exhibitions'. No qualification about reasonableness appears here, but it would be unwise to rely on the omission; a judge could always defeat the argument by pointing out that Lord Lane was merely endorsing the 'accepted legality' of such exhibitions, and did not say how far the 'accepted legality' went. But why are dangerous exhibitions needed in the public interest?

Lord Lane expressly reserved the right of judges (with the assistance, of course, of juries) to pronounce upon what are and what are not 'properly conducted games and sports', and even upon what are and what are not 'reasonable surgical interferences.' Does this mean that the propriety of medical operations performed by members of a highly responsible profession with the full consent of the patient are subject to the scrutiny of judge and jury?

There may be some looseness in the drafting of Lord Lane's list; but what seems to emerge is that in the matter of bodily injuries, widely interpreted, three judges sitting in the Court of Appeal have now legislated judicial paternalism to the full extent .... The court did not utter a word in support of the idea that people have the right to do what they like with their own bodies, so long as they do not harm others.”316

1.115

Strong words. In R. v Boyea, a judgment delivered in January 1992, the Court of Appeal took the view that in deciding whether an injury is “transient or trifling”, in the Donovan terminology, “the Court must take account of the fact that social attitudes have changed, particularly in the field of sexual relations between adults”. As a generality, the level of vigour in sexual congress which was generally acceptable, and therefore the voluntarily accepted risk of incurring some injury, was probably higher now than in 1934. It followed that the phrase “transient or trifling” must be understood in the light of conditions in 1992 rather than those of nearly 60 years ago.317

However in R. v Brown318 a judgment delivered the following week, a


316

Op cit, pp.583–584.

317

[1992] Crim. L.R. 574 at 575.

318

[1992] 2 All ER 552.



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differently composed Court of Appeal held that the satisfying of sado-masochistic libido was not excused by the fact that consent was given. The harm inflicted in that case was decidedly unpleasant to read about but was inflicted by consent, caused no permanent injury or even temporary infection and there was no evidence of medical attention being required or sought. Nonetheless the harm was held to be neither transient or trifling.

The application of this rule to contact sports, and in particular to boxing, does present some conceptual difficulty. While consent will not have been extended to off-the-ball and dangerous play,319 the condition that the force is not likely or intended to cause bodily harm is inconsistent with the accepted rules of many sports.320 Yet, as was observed in R. v Bradshaw,321“no rules or practice of any game whatever can make lawful that which is unlawful by the law of the land.”

1.116

A better view may be that sport serves a valid social purpose and that injuries sustained therein are part of the general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life;322 or, in the case of serious injury, that the justification of misadventure (accident) will apply.323

1.117

Whichever view is adopted, it is nevertheless clear that prosecutions for sporting violence, in Ireland as elsewhere, are on the increase, and that courts have been prepared to impose increasingly heavy custodial sentences for assaults committed in the course of contact sports.324

1.118

In Canada, there is now a substantial body of such reported cases,325 from which it emerges that if the contact is unintentional, instinctive or reasonably incidental to the game, it will be held to fall within the bounds of consent,326 but if it is found to be calculated, overly violent or unrelated to the immediate course of ongoing play, it will constitute an assault.327 Where the means of defence used is not disproportionate to the severity of such an assault,


319

Billinghurst [1978] Crim. L. Rev. 553.

320

See O'Donnell, Dangerous Play – Legal Penalties? [1987] I.L.T.S.J. 66. In Pallante v Stadiums Pty. Ltd. (No. 1) [1976] V.R. 331, the Supreme Court of Victoria had difficulty in formulating any precise legal rule as to the lawfulness of boxing matches, and reluctantly concluded that this was a matter for the jury.

321

(1878) 14 Cox C.C. 83, 84.

322

Id.

323

It is a complete defence that the alleged battery was the result of misadventure: see discussion in Stanley v Powell [1891] 1 Q.B. 86.

324

See O'Donnell, op cit; Grayson, Sport and the Law (Butterworths, 1988) and Keeping Sport Alive [1990] 140 N.L.J. 12, who traces a development from suspended sentences to custodial sentences of 18 months for field violence; also L.R.C.C., W.P. 38, Assault, pp.30–36.

325

Outlined by the L.R.C.C., W.P. 38, op cit, pp.33–35.

326

R. v Henderson [1976] 5 W.W.R. 119; R. v Lecuyer (1978) 11 A.R. 239; R. v Williams (1977) 35 C.C.C. (2d) 103; R. v St. Croix (1979) 47 C.C.C. (2d.) 122. It appears from these cases that professionally trained and professionally employed players consent to more assaultive type behaviour than amateurs do.

327

R. v Cote (1981) 22 C.R. (3d) 97; R. v Gray [1981] 6 W.W.R.654; R. v Watson (1976) 26 C.C.C. (2d) 150; R v Maloney (1976) 28 C.C.C. (2d) 323. In R. v Green (1971) 2 C.C.C. (2d) 442, the judge found it difficult to imagine a circumstance where an offence of common assault, as opposed to one of causing bodily harm, could stand in relation to hockey, having regard to the permissiveness of the game and the risks that the players willingly undertake.



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a plea of self-defence will be valid.328

1.119

Consensual fights have also been the subject of recent examination by Canadian courts, where consent has been held to be operative in fist fights, as opposed to those involving weapons, notwithstanding that the blows may have been struck in anger and were intended to cause bodily harm.329 A judgment of Laycraft C.J.A. for the Alberta Court of Appeal is instructive in this respect:

“If anger, or the intention to do corporal hurt or to truly injure or to cause actual bodily harm is to trigger the intervention of public policy and so nullify consent, it is difficult to imagine the case in which there would be no such intervention. School boys in disagreement, with or without boxing-gloves, intend and strive mightily to injure or cause bodily harm; they are certainly angry. Even professional boxers fighting for money may not be able to resist the onset of a certain choler. The contestants in fights in hockey or football also meet all the criteria. The friendly fight is a rare phenomenon.

Moreover, the expressed tests do not, in my respectful opinion, focus on one of the elements which should even more quickly induce the public policy of the law to nullify consent. Challengers are often bullies – those who have the assurance derived from training or experience or size or skill or physical condition on their part, or lack of these attributes in their opponent, that any harm which may result will not befall them. To speak of 'consent' or 'a fair fight' in such cases does not relate to the real world. In some such cases the facts may justify a charge under one of the criminal negligence sections.

In the fist fight, once consent is truly established, it seems to be impossible to administer a test based on anger or the intention to cause injury or bodily harm. Indeed, that emotion or intention may even change in the course of the contest. I remain firm in the view I expressed in Carriere that the law can and should intervene to nullify consent when weapons are involved. I am, however, unable, as perhaps were the codifiers of our criminal law, to formulate or administer a test for the weaponless fighters based on anger or intent to do bodily harm.”330

1.120

It nevertheless remains clear that consent is no defence to offences occasioning more serious degrees of injury, such as maiming and causing grievous


328

R. v Maki (1971) 1 C.C.C. (2d) 333.

329

R. v Bergner (1987) 36 C.C.C. (3d) 25; R. v Carriere (1987) 56 C.R. (3d) 257; R. v Jobidon (1987) 59 C.R. (3d) 203. See also the discussion in Carriere of the earlier cases of R. v Mactavish (1972) 8 C.C.C. (2d) 206, R. v Dix (1972) 10 C.C.C. (2d) 324 and R. v Abraham (1974) 30 C.C.C. (2d) 332, which looked to the question of whether the accused's acts exceeded the scope of the comment.

330

R. v Bergner, supra, at 31–32. By contrast, at least one Australian jurisdiction has embraced the approach taken in A.G.'s Reference (No. 6 of 1980), R. v Raabe (1985) 14 A. Crim. R. 381 (C.C.A., Queensland). This decision has been criticised by Devereux, Consent as a Defence to Assaults occasioning Bodily Harm – The Queensland Dilemma, 14 v Qd. L.J. 151, who concludes that the defence of consensual fight is preferable.



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bodily harm.331 As regard offences of endangerment, particular statutory prohibitions and provisions for minors aside,332 there is uncertainty as to when the law will deny a person's right to consent to be placed in situations of peril.333 Contests with deadly weapons or contests intended to be continued until one of the contestants is disabled or exhausted would be excluded,334 though, as Williams points out,335 the category of “dangerous exhibitions” which cannot be consented to is unclear. In Cato,336 it was held on a charge under s.23 of the 1861 Act that a person cannot consent to the direct administration of a harmful substance, even where the defendant has not foreseen that harm may result. This decision, however, is open to criticism,337 and it appears that the issue of consent to such harm is more rationally dealt with by providing for specific offences prohibiting the particular conduct in question or for offences of negligence.338

1.121

In the case of a surgical operation carried out by a competent surgeon, however great the risk, the patient's consent will be a full justification for what would otherwise constitute an aggravated battery or a maiming.339 The purpose of the operation must, however, be recognised as valid by the law.340 In England, sterilisation, so-called sex-change operations and transplant operations are all now regarded as lawful.341 Transplants save lives, vasectomy and sterilisation are regarded as an acceptable method of contraception, sex changes may be considered psychologically beneficial, as may cosmetic surgery, and male circumcision may be upheld “on the grounds of toleration”.342 On the other hand, it appears that the practice of female circumcision would not be


331

See Swift J. in Donovan, supra n.302. Nor, it appears, may a person consent to any assault that may result in a breach of the peace: see Commonwealth v Colberg, 119 Mass. 350 (1876).

332

Children's Dangerous Performances Act, 1879 (42 & 43 Vic., c.34), ss.3 and 4; Dangerous Performances Act, 1897 (60 & 61 Vic. c.52), D.2; Employment of Children Act, 1903 (3 Edw. 7, c.45).

333

See Williams, op cit, pp.591–593 for a summary of the considerations which arise in this area.

334

Coney (1882) 8 Q.B.D. 534; Young (1886) 10 Cox C.C. 371; Orton (1878) 14 Cox C.C. 226. In McLeod (1915) 34 N.Z.L.R. 430, the use of a lethal weapon in a feat of shooting skill was enough to bring the resulting injury within a statutory provision of unlawful injury, though the mens rea for this offence was equivalent to that required for manslaughter. Williams, op cit, p.592, suggests that the common law rules on consent have no application to feats of skill or endurance.

335

See below.

336

[1976] 1 W.L.R. 110.

337

See Williams, op cit, pp.214–216; Wells, 39 M.L.R. 474; Campbell [1977] 11 Melbourne U.L. Rev. 134.

338

See Criminal Law Revision Committee, Fourteenth Report, Offences Against the Person (H.M.S.O. 1980), Cmnd. 7844, para. 190.

339

In his book, Law, Ethics and Medicine (1984) pp.30–31, Professor Skegg takes a different view, on the grounds that the “ordinary and natural meaning” of bodily harm scarcely includes medical procedures carried out for the benefit of the body as a whole, whether the benefit is physical or psychological. However, it seems clear that the English courts, at least, still regard a surgical procedure as “harm” which would amount to an offence, inter alia, under the 1861 Act but for the patient's consent thereto: see Kennedy and Grubb, Medical Law (Butterworths, 1989), pp.119–122 and 124–126.

340

In Bravery v Bravery [1954] 3 All E.R. 59 at 67–68, Denning L.J. suggested that a voluntary vasectomy for contraceptive purposes was unlawful. Changes in legislation, as well as of public attitudes, have encouraged commentators to agree that Bravery no longer represents the law in England, if, indeed, it ever did so: see, for example, Kennedy & Grubb, op cit, pp.572–573. A blanket ban on sterilisation in Irish law would be likely to raise constitutional issues: cf McGee v A.G. [1974] I.R. 284 and Norris v A.G. [1984] I.R. 38. Having regard to the marital basis of the right recognised in McGee, an interesting question arises on the civil side as to whether the consent of the other spouse should also be obtained: see Ponter v Ponter (1975) 342 A. 2d 574.

341

Id. See also Williams, op cit, pp.589–91, and, more generally, Cooney (1989) 11 D.U.L.J. 56.

342

Williams, Consent and Public Policy [1962] Crim. L. Rev. 156; Mason and McCall Smith, Law and Medical Ethics, ch. 4.



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regarded as lawful, having no basis whatsoever in any religion343 and being entirely detrimental to a woman's health and comfort.344 Again, in England, the Prohibition of Female Circumcision Act, 1985, creates a specific offence for performing such operations,345 though it has been forcefully argued that the practice is already contrary to the criminal law irrespective of consent or of who performs the operation.346 Particular problems arise in this area with respect to issues of “informed consent” and to the question of what legal rules allow a casualty surgeon to perform an urgent operation on an unconscious patient who is brought into hospital or on a patient who is permanently unable to consent in circumstances where there is no one in a position so to consent.347

1.122

The issue of “informed consent” to a medical procedure, as it has come to be understood in the law of negligence, is only of limited relevance to the law of trespass to the person.348 Where a patient consents in broad terms to the general nature and quality of a proposed procedure, such consent will not be ineffective merely because it was obtained without disclosure of associated risks and possible alternative treatments. The Supreme Court has recently affirmed this approach. In Walsh v Family Planning Services Ltd.,349 it held that where a doctor has failed to give adequate warning to his patient as to the risks attendant upon a surgical procedure or other treatment, the proper cause of action in the event of damage ensuing is a claim for damages in negligence. A claim for assault should, the Court stated, be limited to cases where there is no consent to the particular treatment (and where it is feasible to look for such consent) or where an apparent consent has been vitiated by fraud or deception. In reaching this conclusion the Court endorsed and adopted the dicta of the Canadian Supreme Court in Reibl v Hughes.350 That negligence is the appropriate action in such cases is supported by further Canadian authority that an honest belief in the effectiveness of a particular treatment no matter how unorthodox, will, if administered in good faith, afford a defence in negativing the mens rea of an offence of intention or recklessness.351

1.123

Citing the Draft Criminal Code proposed in England in 1880, the Indian Penal Code, and the Criminal Codes of Canada, New Zealand, Queensland,


343

Female Circumcision, Excision and Infibulation: the facts and proposals for change”, Minority Rights Group Report No. 47, 7.

344

Id, pp.6–8. See also Baronness Cox, H.L. Deb. Vol. 441, col. 682.

345

S.1(1). S.2(1) provides for certain limited exceptions for therapeutic procedures carried out by registered medical practitioners and registered midwives.

346

See MacKay, Is Female Circumcision Unlawful? [1983] Crim. L.R. 717, and the comments of Lord Hailsham, H.L. Deb., Vol. 441 col. 673, 676–677.

347

T. v T., [1988] 1 All ER 613 (Family Division).

348

For a discussion of informed consent and the law of negligence in Australia, England and North America, see Appendix 1 to the joint Report on Informed decisions about Medical Procedures of the Law Reform Commissions of Victoria (Report 24), Australia (Report 50) and New South Wales (Report 62), June 1989, pp.33–44. For an exhaustive examination of legal consent to medical procedures, cf Kennedy & Grubb, Medical Law (Butterworths, 1989), pp. 171–367.

349

[1992] I.R. 496.

350

Reibl v Hughes (1980) 114 D.L.R. (3d) 1 at 10–11. See also Chatterton v Gerson [1981] 1 All E.R. 257, and generally, Keown [1989] H.L.R. 790.

351

R. v Daigle (1987) 39 C.C.C. (3d) 542 (Quebec C.A.). A South Australian case does, however, suggest that there may be circumstances in which failure to disclose attendant risks does not preclude the granting of an “informed consent” as a result of which a claim for negligence lies, but does, in fact, negative the reality of the consent: therefore if no consent is given, the action lies in assault: see D. v S., (1981) 93 L.S. (S.A.) J.S. 405.



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Western Australia and Northern Nigeria, Russell on Crime points out that “the trend of legal opinion is in favour of the proposition that no criminal responsibility should be incurred by a surgeon who, with proper care and skill, and for the physical benefit of a sick person, performs on him a surgical operation even without his consent.”352 Be that as it may, the common law contains no such rule, as is evident from the recent case of T. v T.,353 a declaratory proceeding necessitated by the admitted lack of clarity in the law. In this case, Wood J. held that, in circumstances where the patient is permanently unable to consent and no other person is in a position so to consent, a doctor is justified in taking such steps as good medical practice “demands”, i.e, when there are really no two views as to what course of action is in the best interests of the patient.354 The test adopted by Wood J. in this case is clearly analogous to the doctrine of necessity, which may also be the most appropriate conceptual and legal justification for emergency operations.355

1.124

This approach is supported by proceedings brought under the traditional parens patriae jurisdiction of the courts, which may be seen in Ireland as part of the State's duty to protect the individual's right to bodily integrity.356 Although such issues have not yet arisen before Irish courts, the relevant authorities have been surveyed by the Supreme Court of Canada in Re Eve.357 There is was held that the courts could not consent to the sterilisation of a mentally retarded woman who had extreme difficulty in communicating with others in order to save her from possible pregnancy and from parental obligations she was allegedly incapable of fulfilling. According to La Forest J.:

“The importance of maintaining the physical integrity of a human being ranks in our scale of values, particularly as it affects the privilege of giving life. I cannot agree that a court can deprive a woman of that privilege for purely social or nontherapeutic purposes without her consent. The fact that others may suffer inconvenience or hardship from failure to do so cannot be taken into account. The ... parens patriae jurisdiction exists for the benefit of those who cannot help themselves, not to relieve those who may have the burden of caring for them”.358

1.125

Nevertheless, where the sterilisation or other medical treatment has been


352

P.680 note 18.

353

Supra, n.347.

354

Id, at 621 and 625.

355

See Skegg, A Justification for Medical Procedures Performed without Consent, (1974) 90 L.Q.R. 512; Bates, Consenting to the Necessary (1972) 46 A.L.J. 73. The Supreme Court of Canada has recognised a common law defence of necessity: see Morgentaler v The Queen (1975) 53 D.L.R. (3d) 161; Parke et al v The Queen (1984) 13 D.L.R. (4th) 1. In England, an analogous defence of “duress of circumstances” has been held to apply to reckless driving and other road traffic offences: Buckoke v G.L.C. [1971] Ch.655; Johnson v Phillips [1976] 1 W.L.R.65; Woods v Richards [1977] R.T.R. 201; and R. v Conway, The Times, 29 July 1988 (C.A.). See also Scarman L.J. in Gillick, infra.

356

356 See Casey, Constitutional Law in Ireland, p.335, and Cooney, Sterilisation and the Mentally Handicapped [1987] 11 D.U.L.J. 56 at 63–64. The jurisdiction derives from that of the High Court under Article 34 and from the duty of the courts to protect the rights of the individual under Article 40.3. See the decision of the Supreme Court in In Re an Application by the Midland Health Board [1988] I.L.R.M. 251, which applied this reasoning to justify the extension of wardship to a person of unsound mind even though he or she has no property.

357

357 (1986) 31 D.L.R. (4th) 1.

358

358 Id, at 34.



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shown to be necessitated by the best interests of the ward herself, leave to perform it will be granted.359 This appears from English authority to be the case whether the treatment is therapeutic, i.e. for the treatment of some malfunction or disease, or not, the primary and paramount question in all cases being whether it is for the welfare and benefit of the individual in question.360 This would apply equally where parents, on religious or other grounds, refuse to sanction a blood transfusion or other procedure necessary to save a child's life.361

1.126

The related question, as to the age at which a minor can give a valid consent to medical treatment, is open to question. In The People (A.G.) v Edge,362 the Supreme Court applied the common law “age of discretion”, as traditionally accepted by the courts by analogy with the Abduction Acts,363 to the law of kidnapping. However, such an approach to the modern law governing parental rights and a child's capacity to consent has been rejected by the House of Lords in respect of both kidnapping364 and medical treatment.365 In the Gillick case, the majority of the House of Lords held that parental rights are recognised by the law only in so far as they are needed for the protection of a child and that, if and when a child achieves a sufficient understanding and intelligence to enable him or her to appreciate fully what is proposed, they must yield to the child's right to make his or her own decisions:

“It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law. Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstance. Emergency, parental neglect, abandonment of the child or inability to find the parent are examples of exceptional situations justifying the doctor proceeding to treat the child without parental knowledge and consent; but there will arise, no doubt, other exceptional situations in which it will be reasonable for the doctor to proceed without the parent's consent.”366

1.127

The same approach to the issue has been adopted by the High Court of Ontario in a decision relied upon by the Court in the Gillick case.367


359

T. v T. supra, n.347; Re B. (a minor) [1987] 2 All E.R. 206 (H.L); In Re F. [1989] 2 W.L.R. 1025. (Mental patient: sterilisation – although here the decision was based on medical necessity, the parens patriae jurisdiction in respect of adult persons having been abolished in England). For an examination of comparative decisions on the sterilisation of mentally handicapped persons, see Cooney, op cit, and generally, Law Reform Commission of Canada, Sterilisation (1979).

360

Re B. (a minor), supra, at 219, in which the House of Lords rejected the Canadian Supreme Court's distinction between therapeutic and non-therapeutic treatment in Re Eve. The reasoning of the House of Lords on this point has been criticised by Cooney, op cit, who argues that an Irish court faced with an application for non-voluntary sterilisation would do better to adopt the criteria laid down by the Supreme Court of Washington in In re Guardianship of Hayes (1980) 608 P. 2d 635.

361

See Casey, op cit, p.335.

362

[1943] I.R. 126.

363

The first being the Act 4 & 5 Ph. & M. c.8 (1557).

364

R. v D. [1984] 2 All ER 449. The approach of the House of Lords to the kidnapping of minors in this case appears to be conceptually flawed: see below.

365

Gillick v West Norfolk Area Health Authority [1985] 3 All E.R. 402.

366

Id, at 423–424 (per Lord Scarman). For an example of parental consent, see S. v McC.; W. v W.; [1972] A.C. 24.

367

Johnson v Wellesley Hospital (1970) 17 D.L.R. (3d) 139.



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Nevertheless, it should be noted that these decisions are as concerned with the proper exercise of medical advice and treatment as they are with the capacity of a minor to consent to bodily interference. In this respect, they may be seen as no more than an application of the principle that whether a minor has the capacity to consent will depend, in addition to age, upon the nature and quality of the act and the relation between the parties.368

1.128

In this connection, it has been argued that the nature and consequences of certain medical procedures, such as sterilisation, are such that they should not be left entirely to the judgment of the family of a minor and to the medical profession alone.369 As in the case of mentally handicapped persons, to quote Templeman L.J. in In Re B., “[n]o one has suggested a more satisfactory tribunal [than the High Court] or a more satisfactory method of reaching a decision which vitally concerns an individual but also involves principles of law, ethics and medical practice [than the parens patriae jurisdiction].”370 Although no such application has yet to be adjudicated upon in Irish law, Cooney has advocated the adoption of a judicial or legislative rule that no person under 16 should be sterilised without the authorisation of the High Court or unless the operation is of strict or urgent necessity in order to preserve the health of the child.371 He also proposes detailed procedures and safeguards for obtaining the free and informed consent of a competent but mentally handicapped person to any such operation.372 For other persons over 16, such consent could be required to be given in writing.373

1.129

“[T]he proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word and without qualification. It is too short to be true as a mathematical formula is true”.374 The fraud must relate to the fundamental nature of the act or to the identity of the deceiver. Accordingly, where D1, a doctor, by falsely pretending that D2 was a medical student, obtained P's consent to D2's presence at a vaginal examination of P, there was no assault because the fraud was not as to the nature and quality of what was to be done.375 In the leading case of Clarence,376 where a woman consented to intercourse with her husband in circumstances where she would not have consented had she been aware of the venereal disease from which he was suffering, the Court for Crown Cases Reserved held that he had not thereby assaulted his wife, and could not, therefore, be convicted under either s.20 or s.47


368

Id.

369

See generally, Cooney, op cit, and the discussion of the parens patriae jurisdiction of the courts above.

370

[1988] A.C. 199 at 206, cited with approval by Griffiths L.J. in In Re F. [1989] 2 W.L.R. 1025 at 1079. See also In Re D. (A Minor) (Wardship: Sterilisation) [1976] Fam. 185, discussed by Cooney, op cit, pp.65–66. In England, however, there is uncertainty as to the legal basis of the court's powers to make orders in this area, the parens patriae jurisdiction having been abrogated in respect of adult persons of unsound mind by the Mental Health Act, 1959, and the revocation in 1960 of the warrant from the Crown delegating such powers to the courts. For criticism, see Grubb and Pearl [1987] C.L.J. 439 at 461–62; [1989] C.L.J. 380; Cooney, op cit, at 72–73; and Shaw, Sterilisation of Mentally Handicapped People: Judges Rule OK? [1990] M.L.R. 91.

371

Op cit.

372

Id.

373

Id.

374

R. v Clarence 22 Q.B.D. 23 at 43 (per Stephen J.).

375

Bolduc and Bird (1967) 63 D.L.R. (2d) 82 (Supreme Court of Canada, Spence J. dissenting).

376

(1888) 22 Q.B.D. 23 (C.C.R.).



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of the 1861 Act. This was in spite of the fact that the court was clearly of the opinion that her consent had been fraudulently induced, though nevertheless real in criminal law.377 Similar reasoning has been applied by the High Court of Australia in respect of intercourse consented to after a false ceremony of marriage.378

1.130

Clearly, where a woman cannot be said to have fully consented to intercourse, the defendant, acting with the requisite mens rea, may be convicted of rape and, it appears, of indecent assault or assault occasioning actual bodily harm for the resulting infection.379 At least in respect of venereal disease, however, the ruling in Clarence that infection arising from otherwise lawful contact cannot give rise to a battery may be open to question. In particular, it appears from Donovan380 that the consent of the victim to bodily contact which (a) risks injury and (b) meets with social disapproval (such as intercourse with a partner known to suffer from VD) is irrelevant. In consequence, as argued by Lynch,381 such contact, even when consented to, will constitute an assault and, depending on the seriousness of the resulting infection, give rise to liability under s.20 or s.47 of the 1861 Act. Either way, the law in this area is particularly confused at the moment.

1.131

It is interesting to note in this connection that the contrary view, that such cases do not give rise to an assault, is supported by civil law cases in which the policy considerations for denying a tortious remedy were based on 19th century views of sexual morality which would not, it is submitted, hold weight today.382

1.132

Submission is not consent. Whereas it used to be thought, by analogy with the law of duress, that consent would only be vitiated by threats of violence either to the victim or to a close relative,383 it now appears that any threat will suffice provided it is sufficient to overcome the will of a reasonably firm person384 and provided the victim does submit, i.e, the threat is a sine qua non of his decision to acquiesce.385 The answer to the first part of this will to some extent depend on the relationship between the gravity of the threat and the act to which P is asked to submit.386 It may also be implied from the relationship between the parties, as where the defendant is a schoolmaster and P is a 13 year-old pupil.387


377

Id, at 27, 43–45, 55 and 59.

378

Papadimitropoulos v R. (1957) C.L.R. 249.

379

R. v Bennett (1866) 4 F. & F. 1105; R. v Sinclair (1867) 13 Cox C.C. 28.

380

R. V Donovan [1934] 2 K.B. 498.

381

Criminal Liability for Transmitting Disease [1978] Crim. L. Rev. 612.

382

For example, Hegarty v Shine, 4 L.R. Ir. 289 (Court of Appeal, 1878). See discussion in McMahon & Binchy, A Casebook on the Irish Law of Torts (1983) pp. 135–141 and the Moot judgment of Lord Brandon on civil liability for communication of AIDS summarised in (1988) I.L.S.I. Gazette 145.

383

For example, Latter v Braddell (1881) 50 L.J.Q.B. 448. But see the dissenting opinion of Lopes J, which is now a more accurate statement of the law.

384

Smith & Hogan, op cit, p.382.

385

See the discussion of Dunn L.J. in R. v Olugboja [1981] 3 All ER 443, and the decision of the Court of Appeal in R. v Valderrama-Vega [1985] Crim. L. Rev. 220.

386

Smith & Hogan, op cit, p.382.

387

Nichol (1807) Russ. and Ry. 130.



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1.133

But an unfounded belief in P's consent is a defence, whether the belief is based on reasonable grounds or not, provided only that it is honestly held. As Lane L.C.J. has stated in this connection:

“The mental element necessary to constitute guilt is the intent to apply unlawful force to the victim. We do not believe that the mental element can be substantiated by simply showing an intent to apply force and no more”.388

Dangerous Exhibitions

1.134

Although the courts may nullify consent to the intentional infliction of bodily harm, it does not follow that the general criminal law dictates what dangers may be lawfully encountered in behaviour that is unaggressive and not intended to harm, i.e., where D's only purpose is to do something which he knows to involve the risk of hurt to another and where that other consents to run the risk. The current position at common law and the policy considerations which arise in this area are examined by Williams:

“The law relating to dangerous feats and performances, such as the climbing of vertical surfaces and brief defiance of the law of gravity on the flying trapeze or hang-glider, is obscure. Certainly no crime is committed if the whole affair is reasonable? Granted the power of the courts to nullify consent to hurts intentionally inflicted, it does not follow that the general criminal law dictates what dangers may be lawfully encountered in behaviour that is not only unaggressive but not intended to harm. One way of settling many problems is by pointing out that there is not, and never has been, any crime of self-manslaughter. Suicide has always meant intentional suicide: in effect (though not in legal theory) self-murder. For no purpose is it a crime for a person to kill himself negligently. Anyone who incites or helps him cannot be guilty of manslaughter as a perpetrator, because he is not the perpetrator; and he cannot be guilty as accessory, because of the absence of the crime ....

Apart from these technical arguments, it would be unfortunate if the accessary to de facto self-manslaughter could be convicted, because it would mean that people who help mountaineers and others to fit out foolhardy expeditions might be convicted of manslaughter if a member of the party dies. There has never been any such prosecution, and it would be undesirable to have a rule of law making the prosecution possible.

The foregoing reasoning helps the defendant only when he does not do the act that kills. If he does, he must find his defence along some other


388

In Williams (1983) [1987] 3 All ER 411 at 414, approved by the Privy Council in Beckford v R. [1987] 3 All ER 425 at 431. This is consistent with the approach of Irish Courts: see People v Dwyer, [1972] I.R. 416; People v McEoin, [1978] I.R. 27.



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line. One solution would be to seize upon the only fully liberal phrase in the judgment in Attorney-General's Reference, permitting 'dangerous exhibitions.' It has already been noticed that the liberality may be illusory, because of Lord Lane's reference to 'accepted legality'. But if dangerous exhibitions are truly allowed, then dangerous feats not intended as exhibitions must presumably be allowed as well. In other words, 'assumption of risk' must be a defence to a manslaughter charge in these cases. Alternatively, it is always possible for the court to regard the value of the activity, taken in conjunction with the voluntariness of participation as excluding a finding of negligence.

The proper rule would be that the common law has no application to feats of skill or endurance. There have always been people who have taken a pleasure in such things; and a few would count the preservation of life as the worthiest way of living. 'Surely', said RLS, 'the love of living is stronger in an Alpine climber roping over a peril, or a hunter riding merrily at a stiff fence, than in a creature who lives upon a diet and walks a measured distance in the interest of his constitution'. Activities like these are valued not only because they present difficulties to be overcome but often, paradoxically, because of the danger. Motorcycle racing is a conspicuous example. It attracts participants and spectators precisely because of the risks – even though the organisers take great pains to minimise them. The same is true of those who climb down dark holes, or who make free-fall parachute descents. Some psychiatrists see therapeutic value in exhilarating hazards for people suffering from neurotic ills. The soundest policy for the criminal courts would be to dissociate themselves from these questions, by holding that the consent of a person to run the risk of death, otherwise than in combats, is a defence to a charge of manslaughter. Unless the law abrogates control over this area, the courts will be faced with the invidious task of deciding between the risks that people may and may not legitimately run in respect of their own bodies.

The proposition should be accepted not only for open-air sports but for cinema 'stuntmen' and circus entertainers. Risks are taken every day in these performances, and sometimes accidents happen, but the police rightly take no notice.

A rare example of a prosecution is the New Zealand case of McLeod. McLeod was an expert marksman who, in the course of a performance of his skill, invited a member of the audience to hold a cigarette in his mouth which was to act as a target. The invitation was accepted, and McLeod aimed at the cigarette ash with the object of knocking it away. No injury would have occurred but for the fact that the voluntary assistant moved his head just before the defendant fired, which caused the bullet to enter his cheek. It was held by the Court of Appeal, on the construction of a section of the New Zealand Code, that if the assistant had died it would have been manslaughter, since 'a lethal weapon was

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used and in risky circumstances'. It may be doubted whether the fact that a potentially lethal weapon was used was itself sufficient to carry the decision, for it was not used with the intention of causing injury. Moreover, if some element of risk in the performance was enough to make it illegal at common law, many other exhibitions and feats of endurance would come under the same condemnation.”389

1.135

At common law, therefore a person may validly consent to run the risk of being seriously injured or killed, so that the lawfulness of particular dangerous exhibitions is a matter for statutory regulation. For example, The Employment of Children Act, 1903, and the Children's Dangerous Performances Act, 1879, as amended by the Dangerous Performances Act, 1897, contain prohibitions in respect of performances and occupations likely to be injurious to the life, limb, health or education of children. Moreover, the Safety, Health and Welfare at Work Act, 1989, now makes extensive provision for the duties of employers and self-employed persons in respect of risks to the health of their employees and to other persons who may be affected by their undertakings.

1.136

Finally, it may be noted that consensual and self-directed negligence has not been entirely excluded from penal restraint – for example, the 1989 Act imposes duties on employees to take care even of themselves; drivers of motor cycles and their passengers must wear safety helmets; and the wearing of seat belts is compulsory in the front seats of vehicles.

General And Transferred Intention

1.137

If the defendant shoots at a group of persons and does not aim at anyone in particular, he is still liable on the basis that an intention to injure anyone in range is always, in logic and in law, an intention to injure the particular person who is injured.388 The most obvious example in this connection is the person who places a bomb in a public place. This is known as the doctrine of general malice, or general intention.

1.138

Up to recently, however, this principle did not operate where no individual was actually endangered. So a shot fired into an empty room where the defendant believed the victim to be could not be charged as a shooting at the victim, though cannon-shot fired into a ship, and wounding the victim, could be so charged in that every part of the ship could be penetrated by the cannon-shot, thereby endangering every person on it.389 However, s.8 of the Firearms and Offensive Weapons Act, 1990, makes it an indictable offence for a person to discharge a firearm being reckless as to whether any person is injured or not, whether or not such injury is caused.


389

Op cit, chapter 25, para. 20.

388

For example, R. v Fretwell (1864) L. & C. 443, a case of shooting with intent to do grievous bodily harm. For a recent case, on the civil side, see Livingstone v Ministry of Defence [1984] N.I. 356.

389

See Gurney B. in R. v Lovell (1839) 2 M. & Rob. 39; A.G. v Cunningham [1932] I.R. 28.



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1.139

More problematically, where D1 intends to injure V1, but misses and injures V2 instead, in circumstances where he was unaware of the threat to V2,390 he will nevertheless be liable for an intentional injury to V2 under the doctrine of “transferred malice”. The doctrine is a general one which appears to stand out as an exception to the principle that a person should not be convicted of an offence unless he brought about the prescribed harm either intentionally or recklessly, for it results in criminal liability for consequences which would in ordinary language be described as accidental.391 The leading illustration is Latimer,392 where the defendant swung his belt at a man with whom he was quarrelling and the belt hit the face of a woman instead.

1.140

At common law, the doctrine applies whenever a statute permits it by its wording, provided that the defendant has the mens rea and commits the actus reus appropriate to the crime charged, even though they may exist in respect of different persons.

1.141

In consequence, it applies not only to common assault, but also to assaults committed under ss.47, 20, 21, 22, 23, 18 and 38 of the 1861 Act, where the inclusion of the two words “any person” in relation to the mental element of the offence clearly allows for its application.393 By contrast, administering poison to any person “with intent to injure, aggrieve or annoy such person” precludes its application to s.24. The doctrine may equally operate where there is an absence of intention, as where the defendant uses force in lawful self-defence and accidentally kills an innocent bystander.394

1.142

However, intention can be transferred only within the same crime. So in Pembliton,395 the defendant was not guilty of malicious damage where he threw a large stone, intending to hit a group of people, and broke a window. Nor, it appears, will it apply where an intended physical injury to V1 causes fright and consequent injury to V2.396

Omissions And Supervening Fault

1.143

In general, criminal liability for omissions will arise only where the omission is expressly designated by the law as an offence or where harm results from an omission to perform a legal duty – the criminal law imposes no general duty to act to save others from death or any kind of physical harm even when this


390

In this respect, the doctrine is to be distinguished from the similar case of mistaken victim: see, for example, R. v Stoppord (1870) 11 Cox 643, a case of wounding with intent to do grievous bodily harm.

391

See Ashworth, Transferred malice and punishment for unforeseen consequences in Glazebrook (ed.), Reshaping the Criminal Law (1978), p.77 et seq.

392

(1886) 17 Q.B.D. 369.

393

But the indictment must be appropriately worded to cover the case, for example, of an intention against V1 and a wounding of V2, and not an intention against V2: see Monger [1973] Crim. L. Rev. 301.

394

See Archbold, op cit, pp.17–19. So a father who accidently hit a third person while administering reasonable and moderate chastisement to his daughter was not guilty of any battery: see Turner v State, 35 Tex., Cr. R. 369, 33 S.W.972 (1896).

395

(1874) 12 Cox 607.

396

Towers (1874) 12 Cox 530.



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could be done without any risk or inconvenience.397 Moreover, because assault cannot be committed by omission,398 liability for an omission resulting in injury cannot arise under s.47 of the 1861 Act, nor under any other offence of assault, irrespective of the breach of any duty.

1.144

An omission to perform a legal duty to act which results in death or grievous bodily harm, however, may give rise to liability for murder or manslaughter, or for a charge under s.18 or s.20 of the 1861 Act. Similarly, any offence of “causing” an injury is capable of commission by omission, where it is in breach of a legal duty to act.399 Proof of the commission of any such offence by omission remains, of course, subject to normal considerations of mens rea and causation.400

1.145

Although some duties are imposed by statute,401 most derive from common law as a result of either the special relationship between the parties or the nature of the conduct undertaken by the defendant. These include the duty owed by parents to their young children,402 or that owed by a doctor or any other person to a helpless and infirm person whom they have voluntarily undertaken to care for403 (members of a household in which a person becomes infirm and helpless may be held to have assumed such a duty).404 In addition, there may be a duty under a contract of employment where omission to perform the duty is likely to endanger the lives of others, whether or not they are parties to the contract.405

1.146

Moreover, where there is a right and the ability to control the actions of others, there may be a duty to exercise that right in order to prevent the commission of a crime – failure to do so may result in secondary liability where the other is guilty of an offence.406 Where such an omission is in breach of a duty of public office, it appears that the holder of that office may be liable as a principal407 or, in the case of a Garda, for the common law offence of


397

See generally, Ashworth, The Scope of Criminal Liability for Omissions (1989) 105 L.Q.R. 427; Feldbrugge, Good and Bad Samaritans (1966) A.J.C.L. 630; Wilson, The Defence of Others – Criminal Law and the Good Samaritan (1988) McGill L.J. 757. The classic statement of the common law approach is given by Diplock L.J. in Miller [1983] 2 A.C. 161 at 175: “The conduct of the parabolical priest and Levite on the road to Jericho may have been indeed deplorable, but English law has not so far developed to the stage of treating it as criminal”.

398

Fagan v Metropolitan Police Commissioner, [1968] 3 All E.R. 442.

399

See the Fourteenth Report of the Criminal Law Revision Committee (H.M.S.O. 1980), Cmnd. 7844, para. 253. The view that liability could also not arise for an omission on a charge under s.20 is no longer valid, having regard to the decision of the House of Lords in Wilson, [1984] A.C. 242, that “inflict” does not necessarily entail an assault.

400

For an interesting analysis of causation and omissions, see Law Reform Commission of Canada, Working Paper 46 (1985), Omissions, Negligence and Endangering, pp.4–7.

401

For example, the duties of drivers and users of vehicles on the occurrence of an accident, as contained in s.106 of the Road Traffic Act, 1961, as amended by the Schedule to the 1968 Act and s.3 of the 1984 Act.

402

At common law and under s.12 of the Children Act, 1908, discussed below.

403

R. v Nicholls (1874) 13 Cox C.C. 75; see Kenny's Outlines of Criminal Law, (19th ed., by Turner, 1966), p.124.

404

R. v Stone and Dobinson [1977] Q.B. 354. This decision has been described as the high water-mark in the adoption of a “social responsibility” approach, as opposed to the conventional hostility of the common law towards liability for omissions: see Ashworth, op cit, p.459, note 98.

405

R. v Pitwood (1902) 19 T.L.R. 37.

406

Rubie v Faulkner [1940] 1 K.B. 571; Tuck v Robson [1970] 1 W.L.R. 741; DuCros v Lambourne [1907] 1 K.B. 40.

407

Curtis (1885) 15 Cox C.C. 746; Dytham [1979] 3 All ER 641, criticised by Ashworth, op cit, pp.455–457.



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misconduct in a public office.408 In this connection, a person who fails to assist a Garda in law enforcement in circumstances where it is reasonably necessary for the Garda to call for such assistance commits a common law offence unless there was physical impossibility or lawful excuse.409 Yet there is no general duty to assist in law enforcement – mere presence at the scene of a crime, such as a prize fight,410 riot411 or rape,412 without giving any encouragement to the perpetrators but also without taking any steps to prevent the offence or to call the police, does not attract criminal liability for any resulting injury.413

1.147

The existence and scope of the above duties evidently depend on difficult considerations of capacity, liberty and social obligation. Nevertheless, it may be said that the underlying principle is that you have a duty to act for another's benefit whenever, by reason of your express or implied commitment, that other is dependent on you and entitled to rely upon you so to act, i.e. when you are a “guarantor” of that other's safety.414

1.148

Apart from express offences of omission and offences capable of commission by omission to perform a legal duty, a third situation in which an omission may give rise to criminal liability arises in cases of “pseudo-nonfeasance”, that is, not acting within some wider course of acting. In Miller,415 the defendant, having accidentally started a fire, wilfully took no steps to extinguish it when he later discovered what he had done. In affirming his conviction for arson, the House of Lords held that there was:

“no rational ground for excluding from conduct capable of giving rise to criminal liability conduct which consists of failure to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence.”416

1.149

This principle of supervening fault, which is not limited to cases in which the original act is blameworthy,417 is one of general application to all “result-crimes”, and therefore to all offences resulting in injury.418 It may be seen as an alternative solution to the question of pseudo-nonfeasance to that adopted in


408

Dytham, supra. In this case, a police officer was within 30 yards of a man who was being noisily beaten and kicked to death by three others, and made no move to intervene. His conviction was for misconduct of an officer of justice in circumstances “calculated to injure the public interest so as to call for condemnation and punishment”.

409

R. v Brown (1841) Car. & M. 341, cited by Ashworth, op cit, p.454, note 86.

410

Coney (1882) Q.B.D. 534. Hawkins J., at 557, stated that “it is no criminal offence to stand by, a mere passive spectator of a crime, even of murder”.

411

Atkinson (1869) 11 Cox C.C. 332.

412

Clarkson [1970] 1 W.L.R. 1402. See also the incidents and comments cited by Wilson, op cit, p.806, note 208.

413

For criticism, see Ashworth, op cit, Wilson, op cit, and Osbeck, Bad Samaritanism and the Duty to Render Aid: A Proposal (1985) 19 U. Mich. J.L. Reform 315.

414

L.R.C.C., W.P.46, op cit, p.13, note 35, citing Banditt, Liability for Failing to Rescue (1982) 1 Law & Philosophy 391 at 416, and Lipkin (1983) 31 U.C.L.A. L. Rev. 252 at 265.

415

[1983] 1 All ER 978 (H.L.).

416

Id, at 981.

417

Id, at 982.

418

Semble Contra, Wings Ltd. v Ellis [1985] A.C. 272 and R. v Ahmad (1987) 84 Cr. App. R. 64. But see the English Law Commission's examination of these cases in Law Com. No. 177, Vol. 2, para. 8.53.



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Fagan,419 where the defendant, directed by a policeman to park nearer the kerb, accidentally drove his car onto the policeman's toe and then wilfully refused to move. In that case, the defendant was convicted of a battery on the grounds that his behaviour was not to be divided artificially into discrete bits of acting and not acting but rather was to be considered as one continuous course of acting.

1.150

Whereas a high degree of negligence must be established in order to support a conviction for breach of a common law duty resulting in injury,420 the notion of supervening fault may alternatively be seen as a reflection of a policy argument that those doing dangerous acts or those in charge of dangerous things should be liable for mere negligence.421 In this respect, the duty of persons doing dangerous acts towards third parties should be distinguished from the reciprocal duties owed by persons engaged in a joint enterprise involving risk or danger, such as seamen going to sea, or mountaineers joined in a single party.422

Statutory Offences Under The 1861 Act:

Assault occasioning actual bodily harm (s.47)

1.151

As noted above, s.47 of the 1861 Act, in addition to providing for the trial on indictment of common assault, had the effect of creating a new statutory offence of assault occasioning actual bodily harm.423 This offence is punishable with a maximum penalty on indictment of 5 years imprisonment.424 Being a scheduled offence under the Criminal Justice Act, 1951, it may, with the consent of the accused, be dealt with summarily under s.2 of that Act. Until recently, it has been understood that the mens rea of the offence is equal to that of common assault, and that once this is proved, the only remaining question is one of causation – did the assault cause the actual bodily harm? It is established that this is an objective question relating to the natural consequences of the defendant's act.425 In Roberts, the defendant was convicted under s.47 where he so frightened P that she jumped out of a moving car and suffered injury – only if her act was something that no reasonable man could be expected to foresee would the chain of causation be broken.426 As Glanville Williams points out, this means that s.47 is at best a crime of “half mens rea” where the mental


419

419 Supra, n.398.

420

420 In the People (A.G.) v Dunleavy [1948] I.R. 95, the C.C.A. held that for the purposes of manslaughter, the jury must be satisfied that the fatal negligence was of a very high degree, and was such as to involve, in a high degree, the risk or likelihood of substantial personal injury to others. This decision has been followed regularly since, for example, in A.G. v O'Neill (1964) Ir. Jur. R. 1, Bateman [1925] All E.R. 45; Andrews v D.P.P. [1937] 2 All E.R. 552; and, in Australia, Callaghan (1952) 87 C.L.R. 115.

421

421 See ss.155 and 156 of the New Zealand Crimes Act, 1961, which specify that such persons are under a duty of “reasonable” care: Storey [1931] N.Z.L.R. 417.

422

422 See L.R.C.C., W.P. 46, op cit, p.15.

423

423 R. v Harrow J.J., ex parte Osaseri; and State (O) v O'Brien [1971] I.R. 42.

424

424 By virtue of s.15 of the Criminal Law (Ireland) Act, 1828, s.2 of the Penal Servitude Act and s.1 of the Penal Servitude Act, 1891, when, in any statute in force on 5 August 1891, an offence is punishable with penal servitude, the maximum term is 5 years, unless a particular statute authorises a longer term.

425

425 Miller [1954] 2 Q.B. 282. The same rule applies to aggravated assault in Scotland where the aggravation is by the degree of injury: see Kerr v H.M. Advocate, 1986 S.C.C.R. 394.

426

426 (1971) 56 Cr. App. R. 95.



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element does not in any way “match” the element of harm within the actus reus.427

1.152

The Supreme Court of Canada has ruled in this connection that there are certain crimes for which, because of the special nature of the stigma and of the penalty attached to a conviction therefor, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime.428 For example, theft requires proof of some dishonesty and murder requires proof beyond reasonable doubt of subjective foreseeability.429 In R. v Brooks, it was argued before the British Columbia Court of Appeal that the Canadian statutory equivalent of assault occasioning actual bodily harm was unconstitutional430 in failing to require at least objective foreseeability that harm would occur as a result of an assault. This argument was rejected on the grounds that the offence, punishable by 10 years imprisonment, was not so serious as to attract the particular stigma discussed by the Supreme Court, but was one of many for which the consequences of an unlawful act alone could legitimately affect the degree of culpability, i.e. for which a causal link sufficed.431

1.153

In 1991, what the House of Lords subsequently described as a “curious situation” arose when two different divisions of the Court of Appeal reached opposite conclusions on the intent necessary in cases under s.47,432 i.e. as to whether it was necessary to foresee that harm might be caused. Ultimately, the House of Lords held in R. v Savage, R. v Parmenter,433 (heard together and referred to hereinafter as R. v Savage) that in a prosecution under s.47, it is sufficient to prove that the defendant committed an assault and that actual bodily harm was occasioned by the assault. This reflects the traditional state of the law in Ireland although Charleton submits that since the decision in The People (D.P.P.) v Murray,434

“a requirement of a mental element, in the shape of either intention or recklessness, in respect of each external element of the offence, is to be preferred to the older line of authority .... While this is presumed in respect of statutory offences the words of a section can make it clear that a particular element requires no corresponding mental element. The words 'assault occasioning actual bodily harm' could be viewed as equivalent to a mere requirement of causation. Two factors are present which influenced the Supreme Court in Murray: a difference in the external elements of the offence and a greatly enhanced penalty on the aggravating factor occurring. The contrary argument, that society is


427

427 Op cit, p. 192.

428

428 R. v Vaillancourt (1987) 39 C.C.C. (3d) 118, [1987] 2 S.C.R. 636.

429

429 39 C.C.C. (3d), at 134 (per Lamer J.).

430

430 Having regard to ss.7 and 11 (d) of the Canadian Charter of Rights and Freedoms.

431

431 (1988) 41 C.C.C. (3d) 157. For an examination of similar developments in the U.S., see Erlinder, Mens rea, due process and the Supreme Court: Toward a constitutional doctrine of substantive criminal law (1981) 9 A.J.C.L. 163.

432

432 R. v Spratt [1991] 2 All ER 210; R. v Savage [1991] 2 All ER 220.

433

433 [1991] 4 All ER 698. See Paragraph 9.26 Infra.

434

434 [1979] I.R. 360.



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entitled to seek retribution in terms of the harm actually caused by the offence without reference to the purpose or foresight of its perpetrator is, it is submitted, overridden by these two elements.”435

Charleton acknowledges, in a footnote,436 that it can be argued “that in contrast to ss.18 and 20 of the Act the offence punished in s.47 is an assault and the words of aggravation are stated as a consequence, as opposed to an intent, as in s.18.” As Lord Ackner put it in the judgment of the House of Lords in Savage,437“the word(s) 'occasioning' raised solely a question of causation, an objective question which does not involve inquiring into the accused's state of mind.”

1.154

“Bodily harm”, according to the House of Lords in D.P.P. v Smith, “needs no explanation”.438 The injury is clearly less than the requirement of grievous bodily harm, and consequently need not be “really serious”439– all that is required is some non-trivial bodily injury, and it appears that it may now be a misdirection to adopt the old test of “any hurt or injury calculated to interfere with the health or comfort of the prosecutor” referred to above.440

1.155

Mental harm, such as a hysterical and nervous condition resulting from the shock of being assaulted, may also constitute “actual bodily harm” within the meaning of s.47. According to Lynskey J. in Miller.441

“There was a time when shock was not regarded as bodily hurt, but the day has gone by when that could be said. It seems to me now that, if a person is caused hurt or injury resulting, not in physical injury, but in an injury to the state of mind for the time being, this is within the definition of 'actual bodily harm'.”442

1.156

There has been little case law on the point since, and it therefore appears to have given rise to few difficulties of interpretation in practice.

1.157

A victim's mental suffering may also be an aggravating factor in the determination of the degree of injury.443 But whether the injury is physical or


435

435 Charleton, op cit, pp.207–8. Footnote references omitted.

436

436 Charleton, op cit, p.208, footnote 13.

437

437 Supra, n.433 at 712.

438

438 [1960] 3 All E.R. 161 at 171.

439

Id.

440

D.P.P. v Smith, supra, n.438, was followed with respect to s.18 in Metharam [1961] 3 All E.R. 200.

441

Miller, supra, n.425.

442

Charleton disagrees.

“Arguably this ruling is incorrect. Being thrown to the ground three times would naturally occasion bodily harm in the form of painful bruising and stiffness. The section does however restrict its application to 'bodily' harm. In the absence of physical injury, such as concussion, which may well have been present in the Miller case, it is submitted that nervousness or hysteria is not bodily harm. The presence of these symptoms may, however, be evidence of bodily suffering within the definition of the crime.”

Charleton, op cit, p.206.

443

443 For example, Maguire (1982) 146 J.P.N. 314.



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mental, it appears that there is no necessary connection at all between the duration of the injury and the question as to whether it is trifling.444

1.158

In Taylor v Granville, magistrates were held to be entitled to infer that “bodily harm, however slight” must have resulted from a blow to the face.445 Yet in Christopher Jones, the court said that to describe minor abrasions and a bruise on the face as actual bodily harm “went to the very margin of what was meant by that term”, and that to impose a term of imprisonment in such circumstances was incorrect.446

1.159

In this respect, to apply force to another which merely “hurts” in the sense of producing a sensation of pain does not of itself constitute bodily harm:

“It is not legitimate to progress from the evidence that the application of the headlock 'hurt' to the conclusion that there was therefore 'a hurt', in the sense of a wound or an injury, and then to equate that with 'a bodily injury'. A hurt may well constitute a bodily injury, but a person who has been hurt does not necessarily and invariably sustain a bodily injury. Pain is a perception activated by a stimulus which does not necessarily originate in a bodily injury”.447

1.160

Having regard to the severity of punishment provided for this type of assault, the low requirements of mens rea and of the degree of harm in s.47 have been criticised as anomalous.448 This is particularly so in that the maximum punishment is the same as that for maliciously inflicting grievous bodily harm contrary to s.20 of the Act (which, at least until recently, has also been held to require proof of an assault), so that a prosecutor can always indict for an offence under s.47, whatever the degree of harm caused, with a lesser degree of proof.

1.161

The two crimes are treated in practice as founding alternative charges, so that if there are counts for both, and the jury convicts on one, it is discharged from giving a verdict on the other. The alternative count may, however, be revived by an appellate court in setting aside the conviction on one count and substituting a conviction on the other.449

Unlawful wounding, etc. (s.20)

1.162

Section 20 of the 1861 Act provides for the offence of unlawfully and maliciously wounding or inflicting any grievous bodily harm upon any person, with or without any weapon or instrument. It is triable either way and punishable on indictment with 5 years imprisonment.


444

See R. v Dixon (1988) 42 C.C.C. (3d) 318 at 332 (British Colombia Court of Appeal).

445

[1978] Crim. L. Rev. 482.

446

[1981] Crim. L. Rev. 119.

447

R. v Scotland (1987) 27 A. Crim. R. 136 at 138 (Supreme Court of Western Australia) (per Kennedy J.).

448

See Smith and Hogan, op cit, pp.396–397; Clarkson and Keating, op cit, p.455; Williams, op cit, pp.191–192.

449

Williams, op cit, p. 186 (note).



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1.163

The meaning of “wound” has been outlined above.450“Grievous bodily harm” need not be either permanent or dangerous.451

1.164

Although the phrase was formerly interpreted to mean any harm which seriously interferes with health or comfort,452 it has been held more recently that there is no warrant for giving the words a meaning other than that which they convey in their ordinary and natural sense.453 For this purpose, it is now accepted that any direction to the jury should merely clarify that the standard is one of “really serious” bodily harm.454 Clearly, such harm may cover both wounds and other injuries not amounting to a wound.

1.165

The use of the word “inflict” is peculiar to s.20 and has been the subject of considerable interpretation. In one series of cases, it was held or assumed that the words “inflict” and “wound” both implied an assault, so that the direct application of force was a necessary element in the offence.455 One consequence of this was that when the defendant was charged with an offence under s.20, he could be convicted on that indictment of common assault, this being an “included offence”. In R. v Taylor,456 such a possibility was expressly upheld by the Court for Crown Cases Reserved.

1.166

A second series of cases ignored the alleged requirement of assault so as to uphold convictions under s.20 where it was very difficult, if not impossible, to discern an assault on the facts.457 So a husband who so terrified his wife that she jumped from a window to escape his violence was held to have been rightly convicted of inflicting such injuries.458 In 1983, the House of Lords, accepting that these cases were in conflict, followed the Australian case of Salisbury where it was said that “inflict”, though narrower than “cause” within the meaning of the Australian equivalent of s.18 of the Act, does not, after all, imply an assault.459 According to the Supreme Court of Victoria:

“... grievous bodily harm may be inflicted ... either where the accused has directly and violently 'inflicted' it by assaulting the victim, or where the accused has 'inflicted' it by doing something ... which, though it is not itself a direct application of force to the body of the victim, does directly result in force being applied violently to the body of the victim, so that he suffers grievous bodily harm. Hence, the lesser misdemeanours of


450

Supra, page 17.

451

Ashman (1858) 1 F. and F. 88.

452

Miller, supra, n.425.

453

Smith, supra, n.438.

454

People (A.G.) v Messitt [1974] I.R. 406, approving the standard of the House of Lords in Smith, supra, n.338. The Court of Criminal Appeal had previously adopted the lesser standard of “serious” in The People (A.G.) v Goulding, 31 March 1964, 1 Frewen 292. The standard of “really serious” has also been endorsed in Australia: see R. v Weeding (1959) A.L.R. 749 (Vic. Sup. Ct.); R. v Rhodes (1984) 14 A. Crim. R. 124; R. v Perks (1985) 20 A. Crim. R. 201.

455

Clarence (1888) 22 Q.B.D. 23; Snewing [1972] Crim. L.R. 267; Carpenter, cited [1983] 1 All E.R. 1004.

456

(1869) L.R. 1 C.C.R. 194.

457

Halliday (1869) 61 L.T. 701; Martin (1881) 8 Q.B.D. 54; Lewis [1970] Crim. L. Rev.; Mackie [1973] Crim. L.R. 54; Boswell [1973] Crim. L.R. 307.

458

Halliday, supra.

459

R. v Wilson, R. v Jenkins. [1983] 3 All ER 448 at 455.



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assault occasioning actual bodily harm and common assault ... are not necessarily included in the misdemeanour of inflicting grievous bodily harm ....”460

1.167

Nevertheless where there is no force applied to the body of the victim, as in Clarence, where the defendant, knowing that he was suffering from gonorrhoea, had consensual intercourse with his wife and infected her, the injury still cannot be said to have been inflicted.461

1.168

In Ireland, the question must remain open as to whether a person may be convicted of common assault or of an offence under s.47 in an indictment under s.20 which fails to aver an assault. If the reasoning in Salisbury is adopted, the answer would appear to be that such a possibility is excluded.462

1.169

The mens rea of s.20 is supplied by the inclusion of the word “maliciously” in the section. It is established that this means intentionally or recklessly, and that reckless is used here in its subjective sense.463 The next question is, what is the harm that must be intended or risked? In Cunningham,464 where the charge concerned the malicious administering of a noxious thing contrary to s.23 of the Act, the English Court of Criminal Appeal interpreted “malicious” to mean that the defendant had to foresee the particular kind of harm that might be done but nevertheless went on to take the risk of it occurring. In other words, the crime was one where the mens rea matched the actus reus. Since then, however, this principle has been so whittled away that “Cunningham is well on the way to becoming so 'distinguished' that it never applies”.465 It now appears that, although actual foresight is required,466 foresight of even minor physical harm will suffice for liability.467

1.170

The conflict of principle surrounding the interpretation of s.20 was recently addressed by the House of Lords in R. v Savage468 where it reaffirmed the subjective standard of recklessness in accordance with Cunningham but also upheld the rule in Mowatt469 that foresight of “any physical harm” would equally suffice for a conviction under s.20. In his judgment, Lord Ackner, permitted himself some remarks on the unsatisfactory state of the law:

“The argument that, as ss.20 and 47 have both the same penalty, this somehow supports the proposition that the foreseen consequences must


460

Reg. v Salisbury [1976] V.R. 452 at 461.

461

(1888) 22 Q.B.D. 23, though where the injury is “grievous” it may come within s.18, infra.

462

In Wilson, supra, n.459, the House of Lords held that such a conviction was possible, notwithstanding that “inflict” did not imply an assault. However, this was based on s.6(3) of the Criminal Law Act, 1967, which abolished the requirement that the lesser offence be an “essential ingredient” of the offence charged. This was recently confirmed in Savage, supra, n.433.

463

Cunningham [1957] 2 Q.B. 396; Rainbird [1989] Crim. L. Rev. 505; Farrell [1989] Crim. L. Rev. 376.

464

Supra.

465

Textbook, (1st ed., 1978) p. 175.

466

Mowatt [1967] 1 Q.B. 421; W. (A Minor) v Dolbey [1983] Crim. L. Rev. 681.

467

Mowatt, supra; Grimshaw [1984] Crim. L. Rev. 108. In R. v Jones (1988) 83 Cr. App. R. 375, the C.A. declined to reconsider this point.

468

[1991] 4 All ER 698.

469

Supra, n.466.



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coincide with the harm actually done, overlooks the oft-repeated statement that this is the irrational result of this piecemeal legislation. The Act 'is a rag-bag of offences brought together from a wide variety of sources with no attempt, as the draftsman frankly acknowledged, to introduce consistency as to substance or as to form' (see Professor J.C. Smith in his commentary on R. v Parmenter ([1991] Crim. L.R. 43)).

If s.20 was to be limited to cases where the accused does not desire but does foresee wounding or grievous bodily harm, it would have a very limited scope. The mens rea in a s.20 crime is comprised in the word 'maliciously'. As was pointed out by Lord Lane C.J., giving the judgment of the Court of Appeal in R. v Sullivan [1981] Crim. L.R. 46, the 'particular kind of harm' in the citation from Professor Kenny was directed to 'harm to the person' as opposed to 'harm to property'. Thus it was not concerned with the degree of the harm foreseen. It is accordingly in my judgment wrong to look upon the decision in R. v Mowatt [1967] 3 All E.R. 47, [1968] 1 Q.B. 421 as being in any way inconsistent with the decision in R. v Cunningham [1957] 2 All E.R. 412, [1957] 2 Q.B. 396.

My Lords, I am satisfied that the decision in R. v Mowatt was correct and that it is quite unnecessary that the accused should either have intended or have foreseen that his unlawful act might cause physical harm of the gravity described in s.20, i.e. a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.”

1.171

Having regard to the subjective standard of recklessness generally favoured by Irish Courts,470 as well as to the constitutional considerations which might arise in this area,471 it may be doubted that the rule in Mowatt forms part of Irish law. As a matter of principle, it is for the prosecution to prove the mental element in respect of each part of the actus reus to which it applies. The point does not appear to have been addressed in any appellate court, and therefore may not be giving rise to difficulties in practice.

1.172

Even so, and in contrast to s.47, an intention to frighten is not in itself enough – it must be proven that D either intended to wound or inflict some physical harm, or was reckless as to whether such harm resulted from his actions.472 However, as noted above, if in consequence of a reasonable and well-grounded fear of violence a person sustains grievous bodily harm in escaping from the threatened violence, this will amount to inflicting grievous bodily harm under the section.473


470

See supra, n.90.

471

Supra, page 4.

472

Flack v Hunt (1979) 70 Cr. App. Rep. 51; Sullivan [1981] Crim. L.R. 46.

473

Martin, supra, n.457; Halliday, supra, n.457.



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Wounding with intent, etc. (s.18)

1.173

The language of s.18 of the 1861 Act, which relates to intentionally caused injuries of a serious nature, is laborious and highly condensed. It creates twenty-four separate offences punishable on indictment only by life imprisonment and forbids any and every combination of four acts (wounding, causing grievous bodily harm, shooting at any person, and trying to fire loaded arms at any person) with any one of six intentions (intent to maim, disfigure, disable, do some other grievous bodily harm, resist lawful apprehension and resist lawful detainer). What shall constitute “loaded arms” within the Act is defined by s.19.

1.174

Two mens rea requirements are contained within s.18; the offence must be committed “maliciously” and “with intent”. Malice here bears the same meaning as in s.20, so that the defendant must foresee the possibility of some harm. Although it has been suggested that the term adds nothing that is not already present in the requirement of intent,474 this will only be the case on a charge of wounding or causing grievous bodily harm with intent to cause such harm. Otherwise, if the defendant has only the ulterior intent and has no state of mind at all in relation to the possibility of harm, he cannot be convicted because he is not malicious.

1.175

As to the requirement of intent, it is clear that recklessness cannot suffice. “Foresight and recklessness are evidence from which intent may be inferred but they cannot be equated either separately or in conjunction with intent to do grievous bodily harm”.475 As in other cases of malicious intention, such an inference must be founded on a consideration of the relation of the parties, the conduct and declarations of the defendant, and above all, on the nature and extent of the violence and injurious means employed. In looking to the defendant's real intention, it is therefore important to consider the nature of the instrument used, or the quantity and quality of the poison administered, or the part of the body on which the wound is inflicted, though the criminal intent may be clearly inferred from other circumstances.476

1.176

An intent to resist lawful apprehension may be negatived if the attempted apprehension is believed to be, and is, unlawful. But it is no defence that the defendant believed a lawful apprehension to be unlawful unless he honestly but mistakenly believes in a state of facts such that, if it had existed, the arrest would have been unlawful.477

1.177

The intent specified in the indictment must be proved,478 though a count is not bad for duplicity because it specifies the ulterior intent in the alternative. But if, for example, the defendant intends to resist lawful


474

474 Mowatt, supra, n.466.

475

475 R. v Belfon [1976] 1 W.L.R. 741 (per Wein J. for C.A.). See also R. v Bryson [1985] Crim. L. Rev. 669.

476

476 Russell on Crime, op cit, pp.622–23.

477

477 Bentley (1850) 4 Cox C.C. 406; Gladstone Williams [1987] 3 All ER 411.

478

478 See Alderson B. in R. v Wheeler (1844) 1 Cox 106. So although it is not necessary to allege an intent to injure any particular person, this must be proved where it is alleged: see R. v Juzod (1885) 1 W.N. 163 (N.S.W. Supreme Court); R. v Cook (1886) 12 V.L.R. 650 (Victoria Supreme Court).



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apprehension and, in order to do so, intends to cause grievous bodily harm, he may be convicted under an indictment charging only the latter intent – it is immaterial which is the principal and which the subordinate intent.479

1.178

Shooting wide in order merely to frighten,480 or even shooting at a person with intent to frighten,481 cannot constitute the requisite intent under s.18, though it may amount to an assault or an unlawful wounding or the new offence of reckless discharge of a firearm.482 Shooting or attempting to shoot in duels will, however, fall within s.18.483

1.179

Where the accused attacks another intending to cause grievous bodily harm, and death results, the offence may be murder. If, however, death does not result, an intention to cause grievous bodily harm will not support a conviction of attempted murder, for which an actual rather than a notional intent to kill must be established.484

1.180

Unlike “inflict” under s.20, “cause” in s.18 has never been held to imply that the injury need be the result of a common assault, or that some force need be applied directly or indirectly to the body of the victim.485 Nevertheless, a person charged with an offence under s.18 will usually be charged with a separate count of malicious wounding under s.20.486

1.181

It follows that a person charged with causing grievous bodily harm with intent cannot be convicted of assault occasioning actual bodily harm.487 Nor can a person charged with attempting to cause grievous bodily harm with intent be convicted of common assault.488 In R. v McReady,489 Lawton L.J. pointed out that grievous bodily harm can be caused without either a wounding or an assault and he expressly approved of the consequent practice which has grown up of including in an indictment particulars of the way in which the grievous bodily harm is alleged to have been caused so as to facilitate conviction for a lesser offence.

1.182

“Wound” and “grievous bodily harm” bear the same meaning as above.490 Maiming, disfiguring and disabling are, severally, species of grievous bodily harm, though a maiming, unlike other forms of such harm, must be


479

Gillow (1825) 1 Mood C.C. 85; Naismith [1961] 2 All E.R. 735.

480

R. v Hufflett (1918) 84 J.P. 24.

481

R. v Dennis (1905) 69 J.P. 256; R. v Abraham (1845) 1 Cox 208.

482

Supra, paragraph 1.139.

483

R. v Douglas (1841) C. & M. 193.

484

Whybrow (1951) 35 Cr. App. R. 141; Grimwood [1962] 2 Q.B. 621; Murphy [1969] N.Z.L.R. 959; D.P.P. v Douglas and Hayes [1985] I.L.R.M. 25.

485

The sole question is therefore one of causation: see Clarkson & Keating, op cit, pp.326–349, for a discussion of the policy issues relating to causation and criminal liability.

486

See Ryan and Magee, op cit, p.369, although it follows from s.5 of the Prevention of Offences Act, 1851, that a separate count under s.20 is not strictly necessary.

487

Austin (1973) 58 Cr. App. R. 163.

488

Lambert (1977) 65 Cr. App. R. 12.

489

[1978] 3 All ER 967 at 970–71.

490

In re“wound” see supra, page 17. See page 60 for a description of “grievous bodily harm”.



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permanent.491 To “maim” within the section is to permanently injure any part of a person's body whereby one is rendered less able, in fighting, to defend oneself or annoy one's adversary;492 to “disfigure” is to do some external injury which detracts from personal appearance;493 and to “disable” is to do something which creates a disability and not merely an injury.494

Sections 21 and 22

1.183

By ss.21 and 22 of the 1861 Act, two further offences punishable by life imprisonment are created. Both require an ulterior intent to commit, or to assist in the commission of, an indictable offence, intent here bearing the same meaning as above.

1.184

Section 21 provides as follows:

“Whosoever shall, by any means whatsoever, attempt to choke, suffocate, or strangle any other Person, or shall, by any Means calculated to choke, suffocate, or strangle, attempt to render any other Person insensible, unconscious, or incapable of Resistance, with Intent in any of such Cases thereby to enable himself or any other Person to commit, or with Intent in any of such Cases thereby to assist any other Person in committing, any indictable Offence, shall be guilty of Felony, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for Life, or for any Term not less that Three Years, – or to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour.”

1.185

Section 22 provides:

“Whosoever shall unlawfully apply or administer to or cause to be taken by, or attempt to apply or administer to or attempt to cause to be administered to or taken by, any Person, any Chloroform, Laudanum, or other stupefying or overpowering Drug, Matter, or Thing, with Intent in any of such Cases thereby to enable himself or any other Person to commit, or with Intent in any of such Cases thereby to assist any other Person in committing, any indictable Offence, shall be guilty of Felony, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for Life or for any other Term not less than Three Years, – or to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour.”

1.186

In R. v Page, the English Court of Appeal held that a jury had been properly directed, on the particular facts, that if they acquitted the defendant of


491

491 People (A.G.) v Messitt, supra, n.454.

492

492 Foley v Dublin Corporation [1939] I.R. 516.

493

493 Russell on Crime, p.627. This need not be permanent: see R. v Rapena [1989] N.Z. Recent Law.

494

494 R. v Boyce, 1 Mood 29.



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administering chloroform with intent to steal contrary to s.22, they could convict the defendant of common assault in the alternative.495

1.187

If the drug is not named in the indictment, evidence must be given to show that it was of a stupefying or overpowering nature, calculated to aid the offender in the commission of an indictable offence.496

1.188

It may be noted that s.3(3) of the Criminal Law Amendment Act, 1885, as amended by s.8 of the Criminal Law Amendment Act, 1935, provides for an identical offence to s.22 relating particularly to the offence of unlawful carnal connection with any woman or girl.

Poisoning (ss.23, 24 & 25)

1.189

Sections 23 and 24 of the 1861 Act create offences, punishable with ten and five years imprisonment respectively, with a similar actus reus. In each case, the definition includes the words –“... unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing ....”

1.190

But under s.23, the actus reus includes a further element –“... so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm ....”

1.191

Under s.23 the only mens rea required is intention or recklessness as to the administration of a noxious thing.497 Section 24 requires an ulterior intent:

“with intent to injure, aggrieve or annoy such person”.

1.192

A poison is “administered” by the defendant if it is left by him for P who takes it up and consumes it.498 To leave the poison, intending it to be taken, is an attempt. Although it has been held that to squirt fluid at another is not to “administer” it,499 it now appears that such conduct includes contact which, not being the application of direct physical force, nevertheless brings the noxious thing into contact with the victim's body, as by spraying C.S. gas into the victim's face, notwithstanding that the same conduct might be prosecuted as an assault.500

1.193

In R. v Marcus, a case under s.24, it was held by the English Court of Appeal that for a substance to be “noxious”, it is not necessary that the substance be injurious to bodily health; “by 'noxious' is meant something different in quality


495

[1971] Crim. L. Rev. 713.

496

Archbold, op cit, pp.20–152.

497

Cunningham [1957] 2 All E.R. 412, [1957] 2 Q.B. 396.

498

Dale (1852) 6 Cox C.C. 14; but it appears that it is not administered until it is taken into the stomach: see Harley (183) 4 C. and P. 369 (per Parke J.).

499

Dones [1987] Crim. L. Rev. 682.

500

R. v Gillard [1988] Crim. L. Rev. 531.



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from and of less importance than poison or other destructive things”.501 The Court held that “noxious” extends to any substance which is injurious, hurtful, harmful or even unwholesome, so that an offence will be committed where the defendant puts an objectionable thing into an article of food or drink with intent to annoy any person who might consume it. The jury has to consider the evidence as to what was administered both in quality and quantity and to decide as a question of fact and degree in all the circumstances whether that thing was “noxious”.

1.194

So a substance which may be harmless in small quantities may yet be noxious in the quantity administered. And while sleeping tablets may cause no more than sedation, they might be a danger to a person doing such normal but potentially hazardous acts as driving a car or crossing the street.502

1.195

Even so, administering a substance in such a small quantity as to be incapable of doing any mischief, although administered with the requisite intent, will not give rise to liability under this section.503 The requirement of intent in s.24 is important here in allowing a distinction to be drawn between substances administered for a benevolent purpose, such as giving a stimulant to a child to enable the child to stay awake to enjoy a fireworks display, and those administered for a malevolent purpose, such as giving a child a drug so as to render the child susceptible to sexual offences.504

1.196

In this respect, in each case it is necessary to look not just at the defendant's intention as regards the immediate effect of the noxious thing upon that person, but at the whole object of the accused. If the defendant's intention is that the victim should, as a result of taking the noxious thing, suffer injury to person or property, then that will be enough, irrespective of any intention that the noxious thing should itself injure the victim.505

1.197

The contrast between “so as thereby to” in s.23 and “with intent to” in s.24 suggests that no mens rea is required for the second part of the actus reus in s.23. While it appears that the defendant must have foreseen that the substance might cause injury to someone, no foresight of danger to life or the infliction of grievous bodily harm is required.506 In Cato, the requirement of malice in s.23 was satisfied by the deliberate injection of heroin into P's body. It was no answer that P was experienced in taking heroin and had a high tolerance, heroin being inherently noxious in that “it is liable to cause injury in common use” nor was P's consent a defence.507

1.198

The decision in Cato is open to criticism in not requiring any foresight


501

[1981] 2 All ER 833.

502

Id, at 837–838.

503

R. v Hennah (1877) 13 Cox 547 (per Cockburn C.J.).

504

See examples discussed in Hill (1986) 83 Cr. App. Rep. 386.

505

Id.

506

Cunningham, supra, n.497.

507

[1976] 1 All ER 260.



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of danger to life or the infliction of harm.

1.199

Nevertheless, because the interpretation of “noxious” in s.24 includes a consideration of whether the substance was administered with intent to “injure, aggrieve or annoy”, it is arguable that in s.23 the word must be read in the light of the fact that the substance must have been intended to endanger life or to inflict grievous bodily harm, or that there was at least recklessness in that regard.508

1.200

By s.25, a person charged under s.23 (a felony) may be convicted of an offence under s.24 (a misdemeanour).

Offences Relating To Particular Classes Of Persons Or To Particular Circumstances

1.201

Sections 36 to 41 of the 1861 Act create offences of assault on particular persons or in particular circumstances.

1.202

Section 36 makes it an offence to obstruct or assault a clergyman or other minister in the discharge of his duties in any place of divine worship or burial place or on his way to that place. The offence is triable either way and is punishable with a maximum penalty on indictment of 2 years imprisonment. Section 37 makes it an offence to assault a magistrate or other person lawfully authorised in the duty of preserving any vessel in distress or any wreck. This offence is triable on indictment only and is punishable with a maximum penalty of seven years penal servitude. By s.39, it is a summary offence punishable with a maximum penalty of 3 months imprisonment to assault any person with intent to obstruct the purchase, sale or other disposal of grain, flour, meal, malt or potatoes, or their free passage from any place. By s.40, it is also a summary offence punishable by 3 months imprisonment to assault any seaman, keelman or caster working at his lawful trade, business or occupation, or to hinder or prevent him from doing so. Section 41 makes it an offence to assault any person in pursuance of any unlawful conspiracy respecting any trade or business. The offence is triable either way and is punishable with a maximum penalty on indictment of 2 years imprisonment.509

1.203

By s.17 of the 1861 Act, it is a felony punishable with a maximum penalty on indictment only of penal servitude for life to impede or prevent any person endeavouring to save himself or herself or another from shipwreck.

1.204

Two further summary offences which may be mentioned in this connection are contained in the Conspiracy and Protection of Property Act, 1875.


508

Smith and Hogan, op cit, p.404. The wilful and reckless administration of a dangerous substance to another causing injury or death is a crime at common law in Scotland: see, for example, H.M. Advocate v Brown and Lawson (1842) 1 Brown 415. It is, moreover, an offence to intentionally or recklessly cause real injury by any means: see Khaliq v H.M. Advocate, 1984 S.L.T. 137.

509

At common law, assault was also formerly aggravated if committed within the King's houses or palaces, or in the superior and inferior courts. Whereas the former was repealed in 1828 (9 Geo. 4, c.31 s.1) the last prosecution for the latter, according to Russell on Crime, p.686, was in 1799.



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By virtue of s.9 of that Act, the accused has a right to elect to be tried on indictment on a charge of either offence. The first, an offence of quasi-negligent endangerment, is contained in s.5 and provides as follows:

“Where any person wilfully and maliciously breaks a contract of service or of hiring, knowing or having reasonable cause to believe that the probable consequences of his so doing, either alone or in combination with others, will be to endanger human life, or cause serious bodily injury, or to expose valuable property whether real or personal to destruction or serious injury, he shall on conviction thereof by a court of summary jurisdiction, or on indictment as herein-after mentioned, be liable either to pay a penalty not exceeding twenty pounds, or to be imprisoned for a term not exceeding three months, with or without hard labour”.

1.205

The second, an offence of coercion, is contained in s.7:

“Every person who, with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, wrongfully and without legal authority,510


1.


Uses violence to or intimidates such other person or his wife or children, or injures his property; or,


2.


Persistently follows such other person about from place to place; or,


3.


Hides any tools, clothes, or other property owned or used by such other person, or deprives him of or hinders him in the use thereof; or,


4.


Watches or besets the house or other place where such other person resides, or works, or carries on business, or happens to be, or the approach to such house or place; or,


5.


Follows such other person with two or more other persons in a disorderly manner in or through any street or road,

shall, on conviction thereof by a court of summary jurisdiction, or on indictment as hereinafter mentioned, be liable either to pay a penalty not exceeding twenty pounds, or to be imprisoned for a term not exceeding three months, with or without hard labour.

Attending at or near the house or place where a person resides, or works, or carries on business, or happens to be, or the approach to such house or place, in order merely to obtain or communicate information, shall not be deemed a watching or besetting within the meaning of this


510

S.7 was recently invoked to challenge the legality of an arrest on the grounds that it had followed a period of unlawful surveillance by the police, contrary to the 1875 Act: see Kane v Governor of Mountjoy Prison [1988] I.R. 757 at 768. The argument was not addressed by either the High Court or the Supreme Court in that case: see Humphreys [1989] 11 D.U.L.J. 143 at 144.



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section”.

1.206

The 1875 Act was passed following the report of a Royal Commission which set out to redress the imbalance between the demands of trade unionists on the one hand and the hostility of the courts to their aims and methods on the other.511 Section 5 of the Act essentially creates an offence of negligent endangerment for what is otherwise a lawful act: i.e. the termination of a contract of employment. Although it is now never prosecuted, it could apply in theory, for example, to strikes by firemen or by hospital staff or even, conceivably, by industrial cleaners. The most important provision of the 1875 Act, however, is s.7.

1.207

All of the offences created by s.7 are governed by the opening phrase, which requires that the defendant should act with a view to compel. It is this element which, it has been held,512 is the unifying feature of the various offences, so that the section as a whole does not offend against the rule against duplicity.513 It requires more than an intention to persuade – there must be an element of compulsion or force in the defendant's mind. However, it has been held that the words “with a view to” refer to purpose rather than motive,514 so that it is no defence that a person sought to improve working conditions if the method of accomplishing that objective involved the wrongful compulsion of another.515 In this respect, it is also immaterial that the compulsion is ineffective.516

1.208

In Lyons v Wilkins,517 it was held that harassing one person with a view to compelling another was within the mischief of the section. On a somewhat forced reading of the provision, it was held by the Court of Appeal that the words “such other person” could be read to refer to “any other person”, a decision which although followed since,518 has often been criticised as wrongly decided.519

1.209

There is also some uncertainty as to whether the conduct complained of must be independently unlawful, i.e. tortious, or whether it is sufficient that the conduct falls within one of the species referred to in the remainder of s.7 and that it has no lawful justification.520 In the latter case, merely attending at a picket might be caught if mere presence in large numbers could be said to


511

C.1157 (1875), headed by Sir Alexander Cockburn C.J.; the Report is published in Sessional Papers, vol. 30.

512

State (Hardy) v O'Flynn [1948] I.R. 343.

513

Id; A.G. v O'Brien (1936) 70 I.L.T.R. 101; Wilson v Renton (1909) 47 S.L.R. 209.

514

Lyons v Wilkins (1899) 1 Ch. 255 at 270.

515

Allied Amusements v Reaney (1936) 3 W.W.R.129.

516

Agnew v Munro (1891) 28 S.L.R. 335.

517

Supra, n.514.

518

For example, Charneck v Court [1899] 2 Ch. 35.

519

For example Bennion [1985] Crim. L. Rev. 65 at 67; Citrine's Trade Union Law (3rd ed., 1967), p.537.

520

Lyons v Wilkins, supra, n.514, suggests that the second view represents the law, whereas Ward Lock and Co. Ltd. v The Operative Printers' Society (1906) 22 T.L.R. 327 prefers the former view (both decisions of the English C.A.). In this connection, it should be borne in mind that some forms of watching and besetting will also be unlawful at common law as constituting the tort of nuisance: see, for example, Hubbard v Pitt [1976] Q.B. 142; Thomas v N.U.M. [1986] Ch. 20.



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amount to intimidation.521

1.210

Although violence and intimidation are juxtaposed in s.7(1), the courts originally held that intimidation requires an element or threat of personal violence.522 So it was not intimidation to threaten to deprive a workman of his livelihood523 or to black an employer's business.524 In Rookes v Barnard,525 however, the House of Lords held that the tort of intimidation extended also to threatened breaches of contract, and it has since been held in at least one criminal case that the offence under s.7 is not confined to the use or threat of violence.526 Clearly, to intimidate another is to cause that other to fear, and this can be done by means other than an explicit threat.527 In this respect, although it has been seen that the intimidation need not be shown to have actually coerced the victim, there must be evidence that the victim of it was actually put in fear.528

1.211

The use or threat of violence is not a constituent of the offence of persistent following in subs.(2), which may be contrasted with the offence in subs.(5), which requires disorderly conduct and more than one person. In one case,529 the element of persistence was held to be satisfied where the defendant silently followed a fellow worker through streets, on one occasion overtaking him.

1.212

The scope of the watching or besetting actus reus in subs.(4) “is of the highest possible importance, because by this [question] the long struggle which has been going on between trade unions and employers and workmen is brought exactly to the point”.530 Were it is not for the exemption conferred in s.2(1) of the Trade Disputes Act, 1906, peaceful picketing by even a few persons would be an offence531– watching, a question for the jury or District Justice,532 may involve little more than attending the place of the picket, even if it is interpreted to mean persistent watching.533 Besetting, meaning to hem in, surround or occupy a place, is similar to watching and has been held to apply also to strikers occupying their own place of work who prevent entry to would-be workers.534

Peaceful picketing and secondary picketing in Ireland is now governed by s.11 of the Industrial Relations Act, 1990. Subsections (1) and (2) of s.11 provide:


521

In this connection, see the remarks of Woods J. in Bansall [1985] Crim. L. Rev. 150 and of Lane LCJ, in a different context, in R. v Mansfield J.J., ex parte Sharkey [1985] 1 All ER 193.

522

See Cane J. in Gibson v Lawson [1891] 2 Q.B. 545 at 550; cf. Judge v Bennett (1877) 52 J.P. 257.

523

Gibson v Lawson, supra.

524

Curran v Treleaven [1891] 2 Q.B. 560.

525

[1964] A.C. 1129.

526

Jones (1974) 59 Cr. App. R. 120.

527

For example, by gestures, Kennedy v Cowie [1891] 1 Q.B. 771; or from the circumstances as a whole, R. v Corr [1974] N.I. 147.

528

McCarthy [1903] 2 I.R. 146. As O'Brien L.C.J. acknowledges in this case, the scope of the offence is thereby somewhat narrowed in practice as persons may refuse to testify, or may assert that they were not in fact put in fear.

529

Smith v Thomasson (1891) 16 Cox C.C. 740.

530

Lyons v Wilkins, supra, n.514, at 827 (per Kay L.J.).

531

Lyons v Wilkins, supra, n.514.

532

A.G. v O'Brien, supra, n.513.

533

See Palles B. in Wall (1907) 21 Cox C.C. 401.

534

Gait v Philp [1984] I.R.L.R. 156.



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(1)


It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute, to attend at, or where that is not practicable, at the approaches to, a place where their employer works or carries on business, if they so attend merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working.


(2)


It shall be lawful for one or more persons acting on their own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute, to attend at, or where that is not practicable, at the approaches to, a place where an employer who is not a party to the trade dispute works or carries on business if, but only if, it is reasonable for those who are so attending to believe at the commencement of their attendance and throughout the continuance of their attendance that that employer has directly assisted their employer who is a party to the trade dispute for the purpose of frustrating the strike or other industrial action, provided that such attendance is merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working.

1.213

Section 7 of the 1875 Act remains important, notwithstanding the low penalty provided for it, in that it is the only provision in our criminal law specifically directed against unlawful picketing.535 More significantly, it is the only offence of coercion provided for in Irish law, and subs.(1) in particular may be prosecuted in serious cases of intimidation. Section 7 is a scheduled offence for the purposes of the powers of extended arrest conferred on Gardaí by s.30 of the Offences Against the State Act, 1939.536

1.214

Although s.7(1) is used as a general offence of intimidation, it is part of a single, more humble provision originally designed to prevent specific acts of coercion in the course of trade disputes.537 It carries a very low penalty and in these circumstances its scheduling for the purposes of s.30 of the 1939 Act, though understandable, is anomalous.

Railway Offences

1.215

Three sections of the 1861 Act concern offences committed on the railway. Section 32 provides:

“Whosoever shall unlawfully and maliciously put or throw upon or across


535

See generally, Kerr and Whyte, Irish Trade Union Law (Abingdon, 1985), p.289 et seq. The inadequacy of the penalty no doubt prompted the prosecutor in Jones (1974) 59 Cr. App. R. 120 to bring a charge of conspiracy to intimidate, the maximum penalty being at large. Sentences of 3 years and 2 years imprisonment were imposed. These provoked a bitter reaction which resulted in part in the penalty for conspiracy being limited in the Criminal Law Act, 1977, to that available on the substantive charge: see Smith, Offences against Public Order (1987), p.213, note 18.

536

S.I. Nos. 142 and 282 of 1972.

537

Supra, page 71 et seq.



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any Railway any Wood, Stone, or other Matter of Thing, or shall unlawfully and maliciously take up, remove, or displace any Rail, Sleeper, or other Matter of Thing belonging to any Railway, or shall unlawfully and maliciously turn, move, or divert any Points or other Machinery belonging to any Railway, or shall unlawfully and maliciously make or show, hide or remove, any Signal or Light, upon or near to any Railway, or shall unlawfully maliciously do or cause to be done any other Matter or Thing, with Intent, in any of the Cases aforesaid, to endanger the Safety of any Person travelling or being upon such Railway, shall be guilty of Felony, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for Life or for any Term not less than Three Years, – or to be imprisoned for any Term not exceeding Two Years, ....”

1.216

Section 33 provides:

“Whosoever shall unlawfully and maliciously throw, or cause to fall or strike, at, against, into, or upon any Engine, Tender, Carriage, or Truck used upon any Railway, any Wood, Stone, or other Matter or Thing, with Intent to injure or endanger the Safety of any Person being in or upon such Engine, Tender, Carriage, or Truck, or in or upon any other Engine, Tender, Carriage, or Truck or any Train of which such first-mentioned Engine, Tender, Carriage, or Truck shall form Part, shall be guilty of Felony, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for Life or for any Term not less than Three Years, – or to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour.”

1.217

Section 34 provides:

“Whosoever, by any unlawful Act, or by any wilful Omission or Neglect, shall endanger or cause to be endangered the Safety of any Person conveyed or being in or upon a Railway, or shall aid or assist therein, shall be guilty of a Misdemeanour, and being convicted thereof shall be liable, at the Discretion of the Court, to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour.”

1.218

Sections 32 and 33 are narrowly defined in that they require an intent to endanger the safety of persons using the railway.538 In many cases conduct coming within these sections will also constitute an attempt to commit an offence under the Malicious Damage Act, 1861,539 or another provision of the Offences Against the Person Act, 1861. Nevertheless, the specificity of these offences


538

See R. v Sanderson (1859) 1 F. & F. 598; R. v Rooke (1858) 1 F. & F. 107, interpreting previous enactments.

539

Ss.35–38, cf this Commission's Report on Malicious Damage (LRC 26–1988) for a review of the law in this area and, generally, Russell on Crime, chapter 36.



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makes them potentially useful, albeit with respect to rail transport only.540 An acquittal on an indictment framed under s.32 or s.33 is no bar to a subsequent indictment on the same facts for the lesser offence under s.34.541 In this connection, throwing a stone at engines or carriages may be an offence within s.34,542 and where such an act is done purposely, the intention of the accused is not the question, but rather the likely effect on the safety of persons on the railway.543

1.219

Potential danger or a lowering of standards of safety which would lead to the endangering of the safety of a passenger is sufficient to constitute an offence under s.32 and proof of actual danger is not required.544

Traps

1.220

Section 31 of the 1861 Act provides as follows:

“Whosoever shall set or place, or cause to be set or placed, any Spring Gun, Man Trap, or other Engine calculated to destroy Human Life or inflict grievous bodily Harm, with the Intent that the same or whereby the same may destroy or inflict grievous bodily Harm upon a Trespasser or other Person coming in contact therewith, shall be guilty of a Misdemeanour, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for the Term of Three Years, or to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour; and whosoever shall knowingly and wilfully permit any such Spring Gun, Man Trap, or other Engine which may have been set or placed in any Place then being in or afterwards coming into his Possession or Occupation by some other Person to continue so set or placed, shall be deemed to have set and placed such Gun, Trap, or Engine with such Intent as aforesaid: Provided that nothing in this Section contained shall extend to make it illegal to set or place any Gin or Trap such as may have been or may be usually set or placed with the Intent of destroying Vermin: Provided also, that nothing in this Section shall be deemed to make it unlawful to set or place or cause to be set or placed, or to be continued set or placed, from Sunset to Sunrise, any Spring Gun, Man Trap, or other Engine which shall be set or placed, or caused or continued to be set or placed, in a Dwelling House, for the Protection thereof.”

1.221

The section applies only to traps capable of inflicting, or set with an intention to inflict, grievous bodily harm on a human being. Such an intention


540

The English Law Commission's Draft Criminal Code extends the simplified offence of “endangering traffic” to any conveyance constructed or adapted for the carriage of persons by land, water or air, Law Com. No. 177, vol. 1, s.86.

541

R. v Gilmore, (1882) 15 Cox C.C. 85.

542

R. v Bowray (1846) 10 Jur. 211, interpreting a previous enactment.

543

Id; also R. v Holroyd (1841) 2 M. & Rob. 339.

544

R. v Pearce [1967] 1 Q.B. 150.



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may be inferred from the circumstances, as where a spring-gun allegedly set to alarm is found to be loaded.545 Nevertheless, the section does not create absolute liability where a spring-gun is found to be loaded, but puts the burden of proof on the defence to establish absence of intention or guilty knowledge.546 Causing death by engines set in contravention of this has been held to be manslaughter.547

1.222

The High Court of Australia has held, in relation to an almost identical provision in the Queensland Criminal Code, that the likelihood of someone coming into contact with the instrument is immaterial to the question whether the instrument has been set in a manner “whereby the same may destroy or inflict grievous bodily harm on a trespasser or other person coming in contact therewith”. The question is rather whether, if a person did come into contact with the instrument, the place and manner of its setting made it likely that the person would be killed or subjected to grievous bodily harm.548

1.223

In R. v Munks, the appellant arranged electric wires so that they would administer a possibly fatal shock to any intruder into his house. The Court of Appeal overturned his conviction under s.31 on the grounds that an “engine” meant a mechanical contrivance and therefore did not include the wires arranged by the appellant.549

1.224

It may be noted that a person does not commit an offence under this section by placing man traps in a dwelling-house between sunset and sunrise for the protection of the house irrespective of the degree of injury that may be caused as a result.

Assault With Intent (s.38) And Other Assaults On Police Officers

1.225

By s.38 of the 1861 Act, “whosoever shall assault any person with intent to commit felony, or shall assault, resist, or wilfully obstruct a peace officer in the due execution of his duty, or any person acting in aid of such officer, or shall assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, shall be guilty of a misdemeanour...” and be liable to imprisonment for any term not exceeding two years. An offence under s.38, being a scheduled offence under the Criminal Justice Act, 1951, may be tried summarily with the consent of the D.P.P.550

1.226

A summary procedure for an assault on a constable acting in the execution of his duty is provided for by s.12 of the Prevention of Crimes Act, 1871.551 A person convicted under this section is liable to a fine not exceeding


545

R. v Smith & York (1902), cited in Archbold, op cit, pp.20–167.

546

R. v Bavastock [1954] Crim. L. Rev. 625.

547

R. v Heaton (1896) 60 J.P. 508.

548

Hogarth v The Queen [1966] A.L.R. 377, approving R. v Williams [1958] Q.S.R. 185 (Queensland C.C.A.) in relation to s.327 of the Queensland Criminal Code.

549

[1964] 1 Q.B. 304.

550

S.2(2) of the 1951 Act, as amended by s.19 of the Criminal Procedure Act, 1967.

551

34 and 35 Vic., c.112.



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£20 or to imprisonment for a term not exceeding 6 months, or, in the case of a previous conviction for a similar assault within 2 years, 9 months. Where the assault is of a trivial character, it may also be prosecuted under s.42 of the Act. Furthermore, under s.9 of the Dublin Police Act, 1836,552 any person who assaults or resists any person belonging to the Dublin Metropolitan Police force in the execution of his duty or who aids or incites any person so to assault or resist, is guilty of an offence and liable to a fine not exceeding £5.

1.227

In its Report on Offences under the Dublin Police Acts and Related Offences the Commission has already set out its examination of these provisions in so far as they provide for assaulting, resisting or obstructing police officers in the execution of their duty.553 While the Commission there considered that any thorough review of the need for a specific offence of assault on a policeman should be undertaken as part of a report on offences against the person in general, it nevertheless assumed the continued need for such a specific offence in the interim. It was accordingly recommended that there should be a new offence of assaulting a peace officer554 in the execution of his or her duty,555 triable either way and punishable on conviction on indictment by two years imprisonment and/or a fine.

1.228

Because resistance to or obstruction of a “peace officer” in the execution of his or her duty would, in the great majority of cases, not be likely to be as serious a form of conduct as assaulting the officer, it was recommended that these be the subject of a separate offence, triable summarily only and punishable by three months imprisonment and/or a fine of £200, being less than the maximum penalty on summary conviction for assaulting a “peace officer” (six months and/or a fine of £500).

1.229

It was recommended that these offences replace all three existing offences outlined above.

1.230

In its Report, the Commission did not examine the remaining offences within s.38 of assault with intent to commit felony and assault with intent to resist


552

6 and 7 Will 4, c.29.

553

LRC 14–1985, pp.8–14.

554

It was recommended that the term peace officer, in addition to members of the Garda Síochána, should be defined to include prison officer, members of the Defence Forces, sheriffs and traffic wardens. The words “peace officer in the execution of his duty” have been held to include the sheriff or his officers when concerned in executing civil process, and the bailiffs of county courts. The words are not restricted to arrests for crime and are wide enough to cover acts relating to civil proceedings, for example, the service of summonses and revenue proceedings: see Russell on Crime, p.689.

555

The mens rea of knowledge or recklessness would extend to the fact that the person assaulted was a peace officer and that the officer was acting in the execution of his or her duty, though there would be an evidential burden on the defendant to show that he or she believed the peace officer not to be so acting. The expression “in the execution of his duty” includes all cases in which the officer at common law or by statute is lawfully seeking to make an arrest without warrant or with a warrant regular on the face of it, or to prevent the commission of crimes or breaches of the peace, or to execute a search warrant lawfully issued, or is lawfully detaining a prisoner or conveying a prisoner before a judicial officer, or is using reasonable precautions to prevent escape, or in searching a person who is conducting himself or herself with violence, to see if he or she has weapons, or a person arrested on suspicion of larceny or unlawful possession: see Russell on Crime, pp.688–689. In D.P.P. v Murray [1977] I.R. 360, a prosecution for capital murder of a Garda, it was held by the Supreme Court that recklessness as to whether the victim was a Garda, the accused having averted to that possibility, being the relevant mens rea for the s.38 offence, was sufficient mens rea for capital murder.



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or prevent the lawful apprehension or detainer of the assailant or another for any offence. Both offences may be committed on any person, and are not limited to peace officers or persons acting in aid of such officers, and both may result in a conviction for common assault in the event that the necessary intent is not proved.

1.231

As noted above,556 the effect of s.46 of the 1861 Act is to exclude the possibility of summary trial for any assault where the assault is found to have been accompanied by an attempt to commit felony. Because an attempt consists of an act done by the accused with a specific intent to commit a particular crime,557 this would appear to cover all assaults with intent to commit felony, so that this offence is effectively triable on indictment only.

Offences Against Children

1.232

Section 27 of the 1861 Act provides that whosoever shall unlawfully abandon or expose any child being under the age of two years, whereby the life of such child shall be endangered, or the health of such child shall have been or shall be likely to be permanently injured, shall be guilty of a misdemeanour and shall be liable to five years penal servitude.

1.233

The words “abandon” and “expose” include a wilful omission to take charge of the child on the part of the person legally bound to do so, and any mode of dealing with it calculated to leave it exposed to risk without protection. A father who knowingly left his child outside his house after it had been left there by his wife, from whom he was separated, was guilty of “abandonment”.558 However, a transfer of the child to some reputable person to look after it does not come within the section even if the parent intended to get rid of the child.559 There must be an intention to leave the child to itself without some proper person to guard it or there must be some fraud or trick played upon the person who assumes custody.560

1.234

The “exposure” need not consist of the physical placing of the child somewhere with intent to injure it; a father who needlessly compelled his children to trek with him on a long journey during an inclement night was held to have been rightly convicted of cruelty for such exposure.561 In a case where a child was packed in a hamper, labelled “with care” and directed to the lodgings of the


556

Supra, page 10.

557

People (A.G.) v Thornton [1952] I.R. 91.

558

R. v White (1870) L.R. 1 C.C.R. 311.

559

R. v Russell [1916] N.Z.L.R. 343. “The surrender of a child to an adopted parent as an act of prudence or necessity under the pressure of present inability to maintain it, and if done in the interests of the child, cannot be regarded as an abandonment or desertion, or even as unmindfulness of parental duty”, per Fitzgibbon L.J. in Re O' Hare, (1900) 2 I.R. 244. See also Re Mitchell, 42 Sc. L.R. 439.

560

R. v Russell, supra; Kallooar v R. [1964] 50 W.W.R.602 speaks of abandoning as “giving up all concern in”R. v Boulden, 41 Cr. App. R. 105, as leaving a child to its fate.

561

R. v Williams (1910) 26 T.L.R. 290. Yet it appears, that, although there is some authority, for the proposition that an exposure to the inclemency of the weather may amount to an assault, this is only so where the person suffers a hurt or injury as a result of such exposure: see R. v Renshaw (1847) 2 Cox 285 (per Parke B.), referred to in Russell on Crime, p.699.



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father, delivery being effected in less than an hour, a conviction was upheld, notwithstanding that the child's subsequent death was not attributable to the conduct of the accused, on the grounds that its life had thereby been endangered.562

1.235

Section 27, apart from the fact of providing a heavier penalty for the abandonment or exposure of a child under two years, is effectively duplicated in s.12 of the Children Act, 1908, as amended by s.4 of the Children Act, 1957. This provides for the misdemeanour of cruelty whereby any person over the age of 17 years, who has the custody, charge or care of any child or young person,563 wilfully assaults, ill-treats, neglects, abandons or exposes such child or young person, or causes or procures such child or young person to be assaulted, ill-treated, neglected, abandoned or exposed in a manner likely to cause such child or young person unnecessary suffering or injury to his or her health (including injury to or loss of sight, hearing, limb or organ of the body, and any mental derangement). Conviction on indictment carries a penalty of £100 fine or 2 years imprisonment, whereas summary conviction carries a penalty of £25 fine or 6 months imprisonment. In R. (Clarke) v Co. Louth J.J., it was held that s.12 gives no right to the accused to elect in which way the charge is to be tried.564

1.236

The term “custody” applies to the parent or legal guardian and to any person who is by law liable to maintain the child.565 Whether a person has the charge of the child is a matter of fact for the jury.566“Wilfully” means that the act is done deliberately and intentionally, not by accident or inadvertently, but so that the mind of the actor goes with the act,567 and the words “wilfully assaults” are governed by the later words “in a manner likely to cause him unnecessary suffering or injury to health”.568

1.237

Similarly, wilful neglect means deliberate and not merely inadvertent neglect.569 In R. v Sheppard,570 however, the House of Lords held that the judicial explanation of “wilfully” in relation to the doing of a positive act is not wholly apt in relation to a failure to act at all. In the latter context, “wilfully” means either deliberately failing to act, knowing that there is some risk that the child's health may thereby suffer, or failing to act as a result of indifference to the child's health.571

1.238

Omission on the part of a father to pay any part of his earnings towards


562

R. v Falkingham (1870) L.R. 1 C.C.R. 222.

563

Section 91 of the 1908 Act, as amended by s.28 of the Childen Act, 1941 defines a “child” as any person who in the opinion of the court before whom it is brought is under 15 years, and a “young person” as any person who in such opinion is between 15 and 17.

564

46 I.L.T.R. 188.

565

This does not include a putative father: see Butler v Gregory (1902) 18 T.L.R. 370.

566

R. v Cox [1898] 1 Q.B. 179.

567

R. v Senior [1899] 1 Q.B. 283 at 290, followed in R. v Walker (1934) 24 Cr. App. R. 117.

568

R. v Hatton [1925] 2 K.B. 322.

569

R. v Downes 1 Q.B.D. 25; R. v Lowe [1973] 1 Q.B. 702.

570

[1980] 3 All ER 899.

571

So, in A.G. v O' Keeffe 81 I.L.T.R. 3, the convictions of a child's parents were reversed on the grounds that they had failed to carry out exercises prescribed by a doctor for their child out of optimism rather than wilfullness.



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the support of his child may constitute wilful neglect whether he is living with his wife and child572 or apart from them.573 Deliberate omission to supply medical or surgical aid,574 including a refusal to allow a child to undergo an operation,575 may also constitute such neglect.

1.239

In addition to such wilful conduct, however, the assault, etc., must be done in a manner likely to cause unnecessary suffering or injury to the health of the child. In consequence, there must be something more than a mere common assault,576 or a slight fright or some small mental anxiety.577 Nevertheless, direct proof that the neglect, ill-treatment, etc. resulted in, or was likely to cause unnecessary suffering or injury is not required, but may be inferred from the evidence of such ill-treatment or neglect, etc.578

1.240

Section 12 of the 1908 Act provides further that for the purposes of the section a parent or other person legally liable to maintain a child or young person shall be deemed to have neglected a child if he or she fails to provide adequate food, clothing, medical aid or lodging or fails to take steps to procure the same.579 Moreover, a person may be convicted of cruelty notwithstanding that actual suffering or injury to health, or the likelihood of such suffering or injury to health, was obviated by the action of another person, or that the child or young person has died.580 Being knowingly interested, directly or indirectly, in any sum of money that is to accrue or be paid in the event of the death of a child or young person is an aggravation of this offence.581 A person having the custody, charge or care of a child or young person may be found guilty of cruelty upon any trial for manslaughter.582

1.241

It has been held that the words “wilfully assaults, ill-treats, neglects, abandons or exposes” in the equivalent English provision583 do not create five mutally exclusive offences, so that an indictment for ill-treating a child will be made out even though the same conduct may come within another of these words.584 The logic of this reasoning has been questioned in subsequent cases, however, on the grounds that neglect and ill-treatment cannot sensibly be equated where there is no evidence of ill-treatment though there is of neglect,585 and the better view would appear to be that such charges should be the subject of separate counts in the indictment.586


572

Cole v Pendleton (1896) 60 J.P. 359.

573

R. v O' Connor [1908] 2 K.B. 26.

574

For example, R. v Watson & Watson (1959) 43 Cr. App. R. 111.

575

Oakley v Jackson [1914] 1 K.B. 216.

576

R. v Hatton, supra, n.568.

577

R. v Whibley [1938] 3 All E.R. 777.

578

Cole v Pendleton, supra, n.572; R. v Newington, C.A., 23 February 1990, The Independent, 21 March 1990.

579

Subs.2.

580

Subs.3.

581

Subs.3.

582

Subs.4.

583

S.1(1) of the Children and Young Person Act, 1933 (c.12).

584

R. v Hayles [1969] 1 Q.B. 364.

585

R. v Beard (1987) 85 Cr. App. R. 395 (C.A.); R. v Newington, C.A., supra, n.578.

586

Newington, supra, and Gunn., Comment [1990] Crim. L. Rev. 595–97.



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1.242

Section 19 of the 1908 Act provides for a power of arrest without warrant in respect of any offence involving bodily injury to a child or young person, including any offence under ss.27, 42, 55, and 56 of the 1861 Act:


(a)


where the name and residence of a person who commits such an offence within view of the Garda are unknown to the Garda and cannot be ascertained by him; or


(b)


where the Garda has reasonable grounds for believing that a person he suspects of having commited such an offence will abscond, or if the name and address of such person are unknown to and cannot be ascertained by the Garda.”

1.243

By s.15 of the 1908 Act, it is a separate summary offence punishable by a £10 fine for a person having the custody, charge or care of a child under the age of 7 years to allow that child to be in any room containing an open fire grate not sufficiently protected to guard against the risk of the child being burnt or scalded, without taking reasonable precautions against that risk, and by reason thereof the child is killed or suffers serious injury.

1.244

Section 3 of the Children's Dangerous Performances Act, 1879, provides for a summary offence of endangerment punishable by a fine of £10 where any person including a parent or guardian causes a male under 16 years or a female under 18 years of age to take part in any public exhibition or performance whereby the life or limbs of such child shall be endangered. It is for the person charged to prove that the child is not of the age alleged.587 Moreover, where actual bodily harm occurs to the child as a result of an accident in the course of such a performance, s.3 of the Act also purports to enable the employer of the child so injured to be charged with assault.588 By s.2 of the Dangerous Performances Act, 1897, however, no prosecution may be brought under the 1879 Act where no actual bodily harm occurs without the consent in writing of the Superintendant of the District or, in the case of the Dublin Metropolitain Area, of the Commissioner.

1.245

In addition, the Employment of Children Act, 1903, and the Prevention of Cruelty to Children Act, 1904, provide for a number of offences relating to the hazardous employment of boys under 14 years and girls under 16 years of age. By s.5(1) of the 1903 Act, it is an offence punishbable by a fine of £2 to employ any child under 14, inter alia, in any occupation likely to be injurious to his life, limb, health or education, such as the lifting or carrying of heavy weights, regard being had to the physical condition of the child.589 Provision is also made for the liability of other employees and agents of the employer590 as well as for the


587

S.4.

588

Though the practical benefit of this provision may be doubted in that the elements of assault must nevertheless be proved.

589

S.3 of the 1903 Act, as amended by s.8.of the Conditions of Employment Act, 1936, sets out the elements of these offences, and also prohibits the employment of any child under the age of 11 in street trading.

590

S.6(1).



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liability of parents and guardians, who may in addition be guilty if they have habitually failed to exercise due care in preventing such employment.591 On the other hand, the 1904 Act is principally concerned with the unlawful employment of boys under 14 and girls under 16 years of age in licenced premises or for public entertainment at night and with the unlawful training of such children as acrobats, contortionists and other circus performers.592 For the purposes of both Acts, it is for the defendant to show that the child was above the age alleged.593

Neglect And Ill-treatment Of The Young, The Helpless And The Insane

1.246

In addition to the above statutory offences relating to the neglect of children, it is a misdemeanour at common law to refuse or neglect to provide sufficient food or other necessaries of life for any person such as a child, apprentice or servant, who is unable to provide for and take care of himself or herself, whom the party is obliged by duty or contract to provide for, so as thereby seriously to injure health, or endanger life.594“Neglect” in this respect does not correspond to any state of mind, but rather denotes the objective fact of failure to perform a duty.

1.247

It appears that this obligation is limited to cases where the person neglected is of tender years or helpless or so dominated by the parent or employer as to be unable to care for himself or herself.595 It has been extended to cases where an aged or sick person under the care or control of another is neglected so as to cause death or injury to health.596 It has been held not to extend, however, to a duty to force-feed a conscious prison inmate on hunger strike.597 In all these cases, it must be both alleged and proved that the victim's health has been seriously injured.598

1.248

At common law a parent is also bound to provide medical attendance for his child,599 and a master bound to provide such attendance for his apprentice.600 But the obligation is said not to extend to servants.601

1.249

The expression “necessaries of life” clearly includes food and drink,


591

S.5(2).

592

S.2, which provides for a penalty of a fine of £25 or 3 months imprisonment.

593

S.17 of the 1904 Act. The spouse of an accused is now a compellable witness in any case of violence to a child of either spouse, pursuant to s.22 Criminal Evidence Act, 1992.

594

Russell on Crime, p.696, citing R. v Friend (1802) R. & R. 20. See s.151 of the New Zealand Crimes Act, 1961, providing for a maximum penalty of 7 years for the equivalent offence. It appears that the origins of this duty may be traced to the Poor Relief Act, 1601, 43 Eliz c.2: see R. v Hall (1941) 56 B.C.R. 309.

595

For example, in R. v Smith (1865) L. & C. 607, it was held that no such obligation existed in respect of a servant of full age. If a parent cannot himself support a child of tender years, the obligation extends to endeavouring to obtain the means of support from the responsible local authority: see R. v Mabbett (1851) 5 Cox 339.

596

R. v Instan [1893] 1 Q.B. 450. In R. v Natson (1936) 50 B.C.R. 531, the defendant's conviction for omission to discharge his duty was quashed where too much weight had been given to the fact that he had been drinking and it had not been shown that there was a failure to provide proper treatment.

597

A.G.B.C. v Astaforoff (1983) 47 B.C.L.R. 217 (Supreme Court of. Canada).

598

R. v Phillpot (1853) Dears 179.

599

R. v Senior [1899] 1 Q.B. 283.

600

R. v Smith (1837) 8 C. & P. 160.

601

Id.



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adequate clothing, services and the provision of medical care and hospital treatment.602 In this last connection, it appears from New Zealand authority that a person's life is 'endangered' as soon as the disease has reached a stage at which it can be said that there is a reasonable probability that death will ensue unless medical attention is obtained.603 Although mere negligence is insufficient,604 it is not necessary to show that the omission or neglect of duty was wilful in the sense of being deliberate or intentional. What must be proved is that the accused was indifferent to an obvious risk of injury to health or that he or she actually foresaw the risk of injury and determined to take that risk.605 In this respect, the mens rea is more accurately described as reckless rather than wicked,606 and once established, criminal responsibility follows unless there is “lawful excuse” for the accused's omission or neglect of duty.607

1.250

It is established that a religious belief that resort to medical treatment or drugs is sinful does not provide such “lawful excuse”.608 Whether one person has charge of another is a question of fact, except where the law imposes such charge.609 So a husband and wife can both have the charge of their child at the same time,610 this being presumed where they are living together,611 and the one will not be excused of the other's neglect if he or she knew of it and nevertheless permitted the other to continue in that course.612 It also appears that a court will not confine its inquiry within narrow limits by focusing on events close to the date of the complaint. The court will rather focus on all aspects of the continuing state of guardianship, etc., over the alleged period of neglect.613

1.251

As with children, in the case of apprentices and servants, the common law is supplemented by statute. Section 26 of the 1861 Act makes it an offence to wilfully neglect or to do any bodily harm to apprentices or servants such that their lives are endangered or that their health is likely to be permanently injured. It is triable either way and is punishable with a maximum penalty on indictment of 5 years penal servitude. It appears that liability as a master or mistress under this section arises by contract,614 the enactment containing no words making it necessary to prove that the apprentice was of tender years or under the dominion or control of his master or mistress. By s.73 of the 1861 Act, guardians of the poor may be required to prosecute offenders under this section, though this does not exclude prosecution by other persons.615


602

See Carrow and Caldwell, Criminal Law in New Zealand (6th ed., Butterworths, 1981), p. 130.

603

R. v Moore [1954] N.Z.L.R. 893.

604

R. v Nicholls (1874) 13 Cox C.C. 75.

605

R. v Stone & Dobinson [1977] 2 All ER 341; R. v Senior [1899] 1 Q.B. 283, explained by the House of Lords in R. v Sheppard & Sheppard [1980] 3 All ER 899 to the effect that 'indifference' means such unawareness as arises when the defendant does not care whether the child's health was at risk or not.

606

R. v Bonnyman (1942) 28 Cr. App. R. 131; also R. v Burney [1958] N.Z.L.R. 745.

607

R. v Burney, supra.

608

R. v Senior, supra, n.599.

609

R. v MacDonald & MacDonald [1904] St. R. Qd. 151, [1904] Q.W.N. 50.

610

Id; R. v Smith & Smith [1908] Q.W.N. 13.

611

R. v Watson & Watson (1959) 43 Cr. App. R. 11.

612

R. v Bubb & Hook (1850) 4 Cox C.C. 455; see also, R. v Gibbons & Proctor (1918) 13 Cr. App. R. 134.

613

Whale v Tonkins (1983) 12 A. Crim. R. 103 (N.S.W.C.A.).

614

Russell on Crime, p.697, note 12.

615

Caswell v Morgan (1859) 28 L.J.M.C. 208.



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1.252

Section 6 of the Conspiracy and Protection of Property Act, 1875, provides for a summary offence in virtually identical terms to this provision, punishable on conviction by a fine of £20 or 6 months imprisonment.616 By virtue of s.9 of this Act, the accused has a right to elect to be tried on indictment on such a charge.

1.253

The ill-treatment of a lunatic by a person having duties towards him by status or contract falls at common law within the rule as to sick or helpless persons.617 In consequence, to justify a conviction for neglect of a person of unsound mind, it must be proved that the victim was under the control and care of the defendant, that the neglect occurred while the care and control continued, that it was of a character to produce serious injury to the health of the victim, and that it in fact caused such injury.618 Criminal liability for the ill-treatment of such persons, however, is now governed by s.253 of the Mental Treatment Act, 1945, which provides as follows:

“Where the person in charge of a mental institution or a person employed therein ill-treats or wilfully neglects a patient in the institution, or a person having charge, whether by reason of any contract or of any tie of relationship, marriage, or otherwise, of a person of unsound mind ill-treats or wilfully neglects such person of unsound mind, he shall be guilty of an offence under this section and shall be liable, on summary conviction thereof, to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding six months or, at the discretion of the Court, to both such fine and such imprisonment, or on conviction thereof on indictment, to a fine not exceeding two hundred pounds or, at the discretion of the Court, to imprisonment for a term not exceeding two years or to both such fine and such imprisonment”.

1.254

By virtue of s.35 of the Mental Treatment Act, 1961, a reference to “ill-treats” in this section is construed as including a reference to striking or otherwise assaulting.619 As in the case of cruelty, mere negligence will not support a charge under this section.620 Nor is this an offence for which vicarious liability is implicitly imposed by the section.621

Driving Offences

1.255

Section 35 of the 1861 Act provides that, whosoever, having the charge of any carriage or vehicle, shall, by wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect, do or cause to be done any bodily harm


616

Unlike the 1861 Act, the 1875 extends to serious, not just permanent, injury, and neglect to provide medical aid is expressly included.

617

Russell on Crime, p.703, citing R. v Much Cowarne (1831) 2 B. & Ad. 861 and R. v Friend, supra, n.594.

618

Id.

619

Under s.140 of the Defence Act, 1954, it is also an offence for an officer subject to military law to strike or otherwise ill-treat any member of the Defence Forces who by reason of rank or appointment is subordinate to him.

620

R. v Walker [1958] N.Z.L.R. 810, interpreting a similar provision on New Zealand law.

621

Id; see also Hall (1919) 14 Cr. App. R. 58, 122 L.T. 31.



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to any person whatsoever, shall be guilty of a misdemeanour and liable to imprisonment for two years.

1.256

Section 35 was the first statutory provision to deal with what is now extensively regulated by the law relating to dangerous and careless driving contained in the Road Traffic Acts, 1961–1984. Having regard to those Acts, it has been observed that the force of s.35 of the 1861 Act is largely spent.622 Section 53(5) of the 1961 Road Traffic Act specifically provides that, in reference to the same occurrence, a person shall not be liable to be charged under s.35 of the 1861 Act and s.53 of the 1961 Act, which provides for the offence of dangerous driving. Dangerous driving which results in death or serious bodily harm is punishable on conviction on indictment, inter alia, by mandatory disqualification and a £3,000 fine or five years penal servitude. In other cases, it is triable either way and punishable, inter alia, by £1,000 fine or six months imprisonment, irrespective of any bodily injury.

1.257

Dangerous driving under s.53 of the 1961 Act constitutes driving in a manner (including speed) which a reasonably prudent man having knowledge of all the circumstances proved in court would clearly recognise as involving unjustifiably definite risk of harm to the public.623 Wanton or furious driving or racing, or other wilful misconduct or wilful neglect under s.35 of the 1861 Act clearly comes within this standard of care,624 though not within the lower standard of driving “without due care and attention” in the lesser offence of careless driving under s.50 of the Road Traffic Act, 1968, a summary offence punishable, inter alia, by £350 fine and/or three months imprisonment, irrespective of any bodily injury.625

1.258

Section 35 of the 1861 Act applies to all carriages and vehicles, as well as to bicycles.626 Similarly, the offences of dangerous and careless driving are not confined to mechanically propelled vehicles. However, unlike the modern offences, s.35 is not restricted in its application to acts done on a public road or in a public place.627 Moreover, apart from the fact that s.53 of the 1961 Act is aggravated where death or serious bodily harm results, s.35 differs from the other offences in requiring some element of bodily harm for its commission.

Firearms And Explosives

1.259

In this Paper we do not propose to deal with offences relating to firearms or explosives. These form distinct codes in their own right, are revised


622

Pierse, Road Traffic Law in the Republic of Ireland (1989), p. 151. A rare example of a recent reported case of a prosecution under s.35 is R. v Austin [1981] R.T.R. 10.

623

People v Quintan (1962) Circuit Court (per Barra O'Briain J.), (1962) I.L.T.S.J. 123, (1963) I.L.T.S.J. 219.

624

In R. v Barnard [1956] Tas. S.R. 19, the Tasmanian Supreme Court held that “wanton driving” means driving recklessly and that for practical purposes, this imported the same degree of negligence as manslaughter. Where death resulted from such driving, the proper charge was therefore unlawful homicide.

625

See Pierse, op cit, pp. 151–170.

626

R. v Parker (1895) 59 J.P. 793. In A.G. v Joyce, 90 I.L.T.R. 47, failure to have a light on a horse-drawn vehicle at night was held to be evidence upon which a jury could find “wilful neglect” within the meaning of s.35. This appears to be the only reported Irish case on the provision.

627

R. v Cooke [1971] Crim. L. Rev. 44.



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regularly and are scheduled under the Offences Against the State Act. The law relating to offensive weapons was addressed in the Commission's Report on Vagrancy and Related Offences.628

Affray

1.260

It has been seen that any act which causes another person to apprehend the infliction of immediate unlawful force on his or her person constitutes an assault at common law. Where such force is in fact applied, it is a battery, whether or not the victim has been put in fear of any violence. A related offence is that of affray (from the French effrayer, to frighten), which is typically charged in cases of pitched street battles between rival gangs, group attacks of vengeance on individuals, and spontaneous pub and club brawls. It is a misdemeanour at common law triable on indictment only and punishable with life imprisonment. Historically classified together with riot, rout and unlawful assembly as an offence against public order,629 the justification for the offence of affray rested in the public fear that fighting in public was apt to arouse. By the middle of the nineteenth century, the offence had fallen into desuetude,630 but it has been “dusted off and refurbished by prosecutors and judges in our own time”,631 with the result that it now constitutes a form of aggravated assault involving such a degree of violence that persons of reasonably firm character are likely to be terrified.632

1.261

In Ireland, the offence has recently been charged, for example, in cases of rival gang fights in Dublin and pitched family feuds in Donegal, though there is no indication as to whether affray will be judicially extended as it was in England, prior to its replacement in England by a new offence of affray, in 1986.633 There it was held that there was no need for a fight -in the sense of two willing participants attacking one another -actually to take place as part of the offence; where one person was attacking another and the public fear was sufficiently aroused, it should not be a defence for the attacker to assert that his victim did not resist or that he was acting in self-defence.634 It was also held that the offence need not take place in public, on the grounds that bystanders might become just as terrified in private as they would in public.635

1.262

Finally, it was held that where the offence occurred in public, it was unnecessary to prove either that a bystander was actually terrified, or even present, or even likely to be present because, by definition, a public place was


628

LRC 17–1985, chapter 13, pp.75–81.

629

Affray nevertheless differs from other offences against public order in specifically requiring violence against the person.

630

See, Brownlie, The Renovation of Affray [1965] Crim. L. Rev. 479. In Ireland, a reported prosecution for affray is O'Neill (1871) I.R. 6 C.L. 1, in which it was held that an indictment which fails to aver that the affray occurred in a public place will be bad.

631

Williams, op cit, p.205.

632

Williams, op cit, p.206 offers this definition, and classifies affray as an offence against the person.

633

See generally, Smith, Offences against Public Order (Sweet and Maxwell, 1987), chapter 5.

634

Scarrow (1968) 52 Cr. App. R. 591; Summers (1972) 56 Crim. App. R. 604; confirmed by the House of Lords in Taylor v D.P.P. [1973] A.C. 964.

635

Kane [1965] 1 All E.R. 705; Button and Swain [1966] A.C. 591.



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one where the public was likely to be.636 Section 3 of the English Public Order Act, 1986, completes the march of logic, with the result that if a person assaults another in private and uses violence of such a degree that other members of the household would be frightened if they were there, he is technically guilty of the new statutory offence of affray.637

1.263

Although the characteristic case of an affray involves fighting in public, there may be an affray where there is no actual violence applied to the person of another provided that there is such display of force as terrifies a person of reasonably firm character. All recent reported cases appear to have involved actual fighting or violence638 and, although the element of display of force is accepted as part of the law,639 precisely what this connotes is unclear: the brandishing of “dangerous and unusual weapons” is sufficient,640 but not “mere words, unaccompanied by the brandishing of a weapon or actual violence”.641 A gang walking around in public brandishing bicycle chains but without threatening violence to any person will therefore commit an affray. Yet a mere altercation using threatening language cannot give rise to an affray.

1.264

The charge of affray is a useful alternative to any offence against the person in cases of group fighting in which one or more of the participants is injured, in that the prosecutor does not have to charge named persons with assaults on other named persons (or persons unknown). If injury has actually been caused, it is not necessary to show that a particular defendant caused it.642

1.265

In addition, affray requires a less exacting standard of mens rea than is required for offences against the person – it is sufficient for the prosecutor to prove that the defendant participated in an act of fighting, or that he communicated an intention to do so. Evidence that the defendant was suffering from injuries, or that his clothes were torn, would be evidence of such participation. However, mere presence at the scene of disorder is insufficient to establish liability and remains no more than evidence of encouragement,643 even when it is accompanied by a secret intention to help one of the participants


636

Attorney General's Reference (No. 3 of 1983) [1985] 1 Q.B. 242, and commentary by Prof. J.C. Smith in [1985] Crim. L. Rev. 207; see, also, Smith, The Metamorphosis of Affray (1986) 136 N.L.J. 521. This extension of the law may be in conflict with the approach of the Court of Criminal Appeal in A.G. v Cunningham [1932] I.R. 28, in which it was held that an act must be such as to cause reasonable alarm and apprehension to members of the public in the vicinity of such act in order to constitute a breach of the peace.

637

See Smith, op cit, pp.86–7.

638

See the English Law Commission's Report on Offences relating to Public Order (Law Com. No. 123, 1983), para. 3.13.

639

R. v Sharp and Johnson [1957] 1 Q.B. 552 at 559.

640

Taylor v D.P.P. [1973] A.C. 964 at 987 (per Lord Hailsham). The common law offence of “going armed to terrify the Queen's subjects”, although sometimes regarded as an aspect of affray, has also been viewed as an independent misdemeanour: see Brownlie [1965] Crim. L. Rev. 480.

641

Taylor v D.P.P., supra.

642

See, for example, R. v Annakin and Others (1987) 37 A. Crim R. 131 (New South Wales Court of Criminal Appeal); as to the law of evidence, see Sidhu [1976] Crim. L. Rev. 379 – a person is not to be regarded as an “accomplice” for the purposes of the law of corroboration, even though he may technically be guilty of the same offence of affray. On the difficulties which may arise in proving a “joint enterprise” in relation to other offences, see Griew, It Must Have Been One of Them [1989] Crim. L. Rev. 129; Williams, Which of You Did it? (1989) 52 M.L. Rev. 179.

643

Coney (1882) 8 Q.B.D. 534.



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in an affray if necessary.644 So long as the defendant does not communicate his intention, he commits no offence, affray being subject to the ordinary principles of complicity.645 A plea of self-defence or defence of others is also open to any accused charged with affray.646

1.266

A further procedural advantage for the prosecutor is that a series of assaults committed at different places and over a period of time may be included in the one charge of affray as a continuing offence.647 However, where there is a clear break between one attack and another so that the participants can no longer be said to be using or threatening violence towards another person, the offence is complete and a single indictment for affray in respect of both attacks will, in consequence, be bad for duplicity.648

Public Nuisance

1.267

In addition to the inchoate offences of incitement, conspiracy and attempt, and to specific crimes of endangerment relating to dangerous things, dangerous activities and dangerous weapons,649 the criminal law prohibits acts causing mere risk of harm through the common law offence of public nuisance.

1.268

A nuisance at common law is anything which “works hurt, inconvenience or damage”650 and a public nuisance is one, according to Russell on Crime,651 which “materially affects the public and is a substantial annoyance” to all citizens. It can be committed either by “doing something which tends to the annoyance of the public”, such as obstructing a highway, or by “neglecting to do a thing which the common good requires”, such as failing to bury a corpse.

1.269

Essentially, a public nuisance is one so widespread or indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own to put a stop to it – it should be the responsibility of the community at large.652 In this respect, “an isolated act may amount to a public nuisance if it is done under such circumstances that the public right to condemn it should be vindicated.”653

1.270

Some commentators and Codes define the offence of common nuisance more narrowly in requiring the act or omission to be itself “not warranted by law”.654 Yet whichever definition is adopted, the essence of the offence is its


644

Allan [1965] 1 Q.B. 130.

645

Summers, supra, n.634.

646

R. v Honeysett (1988) 34 A. Crim. R. 277 (New South Wales Court of Criminal Appeal).

647

Woodrow (1959) 43 Cr. App. R. 105.

648

For example, John Jones (1974) 59 Cr. App. R. 120.

649

There is no general offence of endangerment known to the common law: see, for example, R. v Scharf (1988) 42 C.C.C. (3d) 378 (Manitoba Court of Appeal). In Scotland, however, there is an offence of “recklessly endangering the lieges”: see, for example, Smith and McNeil (1842) 1 Brown 240.

650

Russell on Crime, p. 1387.

651

Id.

652

Attorney General v P.Y.A. Quarries, Ltd. [1957] 1 All E.R. 894 at 902 (per Denning L.J.).

653

Id.

654

Stephen, A Digest of the Criminal Law, (4th ed., 1877), p.108. Section 176(2) of the Canadian Criminal Code provides that the common nuisance may be by an unlawful act or a failure to discharge a legal duty.



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secondary harm, that is, its effect on the public. Injury to specific individuals is neither necessary nor sufficient. It is the danger or substantial annoyance to society in general that is the kernel of the crime.655

1.271

The catalogue of common law offences relating to conduct which harms or tends to harm the public interest coming within the category of common nuisance was stated by MacDermott L.C.J. in a Northern Ireland Case,656 adopting the classification of Archbold, as follows:


(a)


acts which interfere with comfort, enjoyment or health;


(b)


acts dangerous to public safety;


(c)


act injurious to public morals; and


(d)


unlawful treatment of dead bodies.”657

1.272

Having regard to the obvious overlap with offences against the person, and with other modern statutory provisions and regulations, it may be argued that the rationale for the retention of such an offence is now largely spent.658 Although it appears that the point has not specifically been addressed by an Irish Court,659 it may also be argued that the offence is unconstitutional for overbreadth and vagueness.660 If this is not the case, however, it seems that the existence of similar or even identical statutory provisions does not in any way affect the legality of an indictment for an offence which remains known to the common law.661

1.273

In addition to cases relating to the obstruction of a highway,662 the offence has recently been prosecuted in England in such diverse cases as securing the release of a mental patient,663 making obscene664 or hoax665 telephone calls and brothel keeping.666 In the criminal law at least, there are nevertheless a number of minor safeguards – the nuisance must be actual as opposed to


655

See the analysis of the Canadian Law Reform Commission in its Working Paper 46, Omissions, Negligence and Endangering (1985) pp.32–33.

656

R. v Bailey [1956] N.I. 15.

657

Archbold, op cit, p.1390.

658

A convincing argument to this effect is made by Spencer, Public Nuisance – A Critical Examination [1989] C.L.J. 55, who concludes that the introduction of an offence of reckless endangerment would cover such residual conduct as usefully remains within the ambit of the common law offence.

659

In D.P.P. (Vizzard) v Carew [1981] I.L.R.M. 91, Hamilton J. accepted that the related offence of effecting a public mischief was known to the common law, though no constitutional considerations were addressed. For criticism, see McAleese (1982) 4 D.U.L.J. (N.S.) 110 and O'Malley, Common Law Crimes and the Principle of Legality, (1989) I.L.T.S.J. 243.

660

See O'Malley, op cit.

661

Semble, Hamilton J. in D.P.P. (Vizzard) v Carew, supra, n.659. But see infra, Chapter 5, for the position in respect of overlapping statutes in the U.S.

662

Clark (No. 2) [1964] Q.B. 315. For a review of the statutory provisions relating to obstruction of the highway, of this Commission's Report on Offences under the Dublin Police Acts and Related Offences (LRC 14–1985), chapter 4.

663

Soul (1980) 70 Cr. App. R. 295.

664

Norbury [1978] Crim. L. Rev. 435.

665

Madden [1975] 3 All ER 155.

666

Tan. [1984] Q.B. 1053.



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potential;667 it must be substantial668 and must affect a considerable number of persons in order to be truly public;669 it must be unreasonable, and a conviction will be quashed if the jury are not given an opportunity to say whether it is unreasonable;670 and the whole is subject to the application of the de minimis principle.671

1.274

In addition, although the older cases suggest that it is not necessary to establish that it was the defendant's object to create a nuisance,672 it appears that wilfulness is the required mens rea for proceedings on indictment.673 Finally, although in theory the offence is punishable with imprisonment for life, in practice the maximum rarely exceeds 2 years imprisonment.674

Breach Of The Peace, Insulting Behaviour And Disorderly Conduct

1.275

Despite the decision in A.G. v Cunningham,675 breach of the peace is not treated as an offence in Ireland. As in England it is a “traditional legal expression and ... a ground of arrest, though it is not the name of an offence”.676 The reference to breach of the peace in Article 15.13 of the Constitution is in the context of arrest. The concept remains important for the purposes of common law powers of arrest without warrant.677 Following such arrest, or following a conviction or otherwise, a court has the power to bind a person over to keep the peace or to be of good behaviour, or both, i.e. to enter into a recognisance to that effect.678

1.276

The expression “breach of the peace” is somewhat elusive.679 It has been held to encompass not only riot, unlawful assembly and fighting, but also a unilateral battery where the victim does not retaliate.680 It is not said, however, to be occasioned by mere verbal quarrels or insults unless there is an accompanying threat of personal harm. In Howell,681 Watkins L.J., for the English Court of Appeal, said that a breach of the peace occurs “whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, an unlawful assembly or other disturbance,” and this now appears to be the accepted definition of the term.682


667

Bartholemew [1908] 1 K.B. 554; Dymond v Pearce [1972] 1 All ER 1142.

668

Train (1862) 3 F. and F. 22, 176 E.R. 11.

669

Madden, supra, n.665.

670

Clark (No. 2), supra, n.662.

671

Ward (1836) 111 E.R. 832.

672

Moore (1832) 110 E.R. 68.

673

Walker v Homer (1875) 1 Q.B.D. 46 (per Cockburn C.J.).

674

Morris [1951] 1 K.B. 394; Higgins [1952] 1 K.B. 7.

675

A.G. v Cunningham [1932] I.R. 28 at 33, (C.C.A.).

676

Williams, op cit, p.487.

677

Considered in Chapter 2, infra.

678

For a recent examination and a comparative analysis of such powers, see Law Com. W.P. No. 103, Binding Over: The Issues (1987), and Morgan [1988] Crim. L. Rev. 355.

679

See Williams, Arrest for Breach of the Peace [1954] Crim. L.R. 578.

680

Lewis v Arnold, 4 C. & P. 354.

681

[1981] 3 All ER 383 at 389.

682

Infra.



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1.277

More recently, the same court has held that a common law breach of the peace can occur on private premises even if the only persons likely to be affected by the breach are inside the premises and no member of the public outside the premises is involved.683 It may be questioned whether this decision extends beyond the issue of common law powers of arrest.684

1.278

There are, in addition, a number of existing statutory offences relating to insulting behaviour and disorderly conduct. Section 14(13) of the Dublin Police Act, 1842, provides that every person who within the limit of the metropolitan district in any thoroughfare or public place shall use any threatening, abusive, or insulting words or behaviour, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, shall be guilty of an offence and liable to a fine not exceeding £2. Section 8 of the Summary Jurisdiction (Ireland) Amendment Act, 1871, provides that any person who within the limits of the police district of Dublin metropolis shall in any theatre or other place of public amusement be guilty of offensive or riotous behaviour, to the disturbance or annoyance of any persons present, shall on conviction be liable to a fine not exceeding £2 or to imprisonment for any period not exceeding one month. Also, s.1 of the Public Meeting Act, 1908, provides that any person who, at a lawful public meeting, acts in a disorderly manner for the purpose of preventing the transaction of the business for which the meeting was called together, or who incites others to do so, shall be guilty of an offence and be subject to a fine of £5 or one month's imprisonment.

1.279

In its Report on Offences under the Dublin Police Acts and Related Offences,685 the Commission has already examined the law relating to insulting behaviour and disorderly conduct with a view to its reform, and has recommended that the common law offence of breach of the peace be abolished and that the statutory offences set out above be repealed and replaced by the following summary offences:



using or engaging in any threatening, abusive or insulting words or behaviour, or distributing or displaying any writing, sign or visible representation which is threatening, abusive or insulting, in a public place and with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned – punishable by a fine of £400 and/or six months imprisonment;



engaging in any shouting, singing or boisterous conduct in circumstances likely to cause annoyance to other persons in the neighbourhood, either a) in a public place between the hours of 10p.m. on one day and 7a.m.


683

McConnell v Chief Constable of the Greater Manchester Police [1990] 1 All ER 423: see also Thomas v Sawkins [1935] 2 K.B. 249.

684

In A.G. v Cunningham, supra, n.675, the Court of Criminal Appeal reversed the defendant's conviction on the grounds that the indictment did not aver and the jury did not consider whether his conduct in fact caused reasonable alarm and apprehension to members of the public. He was nevertheless bound over to enter into security to keep the peace.

685

LRC 14–1985, chapter 7, p.45 et seq.



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on the next day or b) at any other time, having been warned by a member of the Garda Síochána to desist – punishable by a fine not exceeding £500; and

acting in a disorderly manner at a public meeting for the purpose of preventing the transaction of the business of the meeting – punishable by a fine of £100 and/or one month's imprisonment.686

1.280

Whereas these offences are essentially concerned with the preservation of public order, the first offence in particular, because it prohibits certain classes of threatening, abusive or insulting words or behaviour, must also be borne in mind in the context of the possible reform of the offence of common assault.

1.281

In addition to the offences considered in that Report, a number of other offences which are of relevance to the offences considered in this Report should be noted. Firstly, there are a number of offences relating to disorderly conduct and non-payment of fares on trains and buses provided for in specific railways legislation687 and in the Road Traffic (Public Service Vehicles) Regulations 1963.688 Section 15 of the Dublin Police Act, 1842, provides for an offence of engaging in violent behaviour in a Garda station, and at common law a person may be bound over to keep the peace for making use of violent threats such as to put a person in fear and dread of bodily harm and injury.689

1.282

A specific offence relating to disorderly conduct in any place of religious worship, including the molesting or vexing of any preacher, is also provided for by s.2 of the Ecclesiastical Courts Jurisdiction Act, 1860.690

1.283

Under s.13(1) of the Post Office Amendment Act, 1951, as amended by the Postal and Telecommunications Services Act, 1983, it is an offence for a person to


(a)


send, by means of the telecommunications system operated by Bord Telecom Eireann, any message or other matter which is grossly offensive or of an indecent, obscene or menacing character, whether addressed to an operator or any other person, or


(b)


send by those means, for the purpose of causing annoyance, inconvenience or needless anxiety to another, a message which he knows to be false or persistently makes use of those means for that purpose.”


686

Id, pp.49–51.

687

These include obstructing a railway employee, trespass on a railway and stone throwing (Railway Regulation Act, 1840, s.16, Bye Law of the C.I.E. Bye Laws (Confirmation) Order 1984) as well as failure to produce a ticket, pay the fare or to get off the train (Railway Clause Consolidation Act, 1845, and Regulation of Railways Acts, 1840–1899).

688

Articles 5, 17 and 48.

689

See Garda Síochána Summons Manual, p.8.

690

Punishable by a fine of £5 or 2 months imprisonment.



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1.284

It is punishable on summary conviction by a fine of £800 and/or 12 months imprisonment, and on indictment by a fine of £50,000 and/or 5 years imprisonment.

1.285

Finally, under s.3 of the Tumultuous Risings (Ireland) Act, 1831, it is an offence to print, write, post, publish, circulate, send or deliver, or cause or procure to be printed, etc, any notice, letter or message, inter alia, which threatens any violence or injury to the person of another. Although this offence forms part of a series of statutes designed to quell political rebellion in Ireland,691 it continues to be prosecuted as an offence “which should properly find place in any code of criminal law”,692 and has been held by a majority of the Supreme Court not to require evidence of a disturbed state in the district in which the offence has been committed.693 The offence, punishable by death under a previous statute, is punishable by transportation for 7 years or imprisonment for 3 years, and for a male “to be once, twice or thrice publicly or privately whipped if the court shall think fit in addition to such imprisonment”.

Domestic Violence

1.286

The law relating to protection and barring orders, as provided for in the Family Law (Protection of Spouses and Children) Act, 1981,694 and to the emergency and non-emergency procedures for the protection of children from domestic violence, as provided for in the Children Act, 1908,695 and as contemplated at that time in the Child Care Bill 1988, has been examined by the Commission in the context of child sexual abuse.696 At the same time, many other civil and evidentiary aspects of child abuse were examined, and in our Report on Child Sexual Abuse we have made a series of recommendations for the reform of this area of the law.697

1.287

The arguments leading to our fundamental recommendations on the civil and evidentiary aspects of child sexual abuse apply with equal force to non-sexual child abuse. In consequence, whereas we do not propose to repeat our examination of those issues in the present context, our recommendations, where applicable, will be revived in Part III of this Report.698

1.288

On the other hand, whereas the Commission is mindful that the serious social and legal issues raised by domestic violence cannot be addressed solely by reference to the criminal law, we consider that the related questions of civil law, such as the possible extension of the scope of protection and barring orders,699


691

Known as the “Whiteboy Acts” 1776–1831.

692

Per Walsh J. in The State (O'Connor) v O'Caomhanaigh [1963] I.R. 112 at 149.

693

id.

694

Originally provided for by s.22 of the Family Law (Maintenance of Spouses and Children) Act, 1976.

695

As amended by the Children Acts, 1934 and 1941, and the Children (Amendment) Acts, 1949 and 1957.

696

Consultation Paper on Child Sexual Abuse (August 1989), chapters 1 and 2.

697

LRC 32–1990.

698

Infra, Chapter 7.

699

Although the recommendations made in our Report on Child Sexual Abuse would overcome many of the difficulties in this area, such orders would still not extend, for example, to the protection of cohabitees.



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more properly fall for examination in the context of family law.

Genocide

1.289

Although genocide, a crime under international law,700 is usually associated with acts of mass murder committed against a particular racial or ethnic group, it extends also to certain acts committed against such groups which do not result in death. In domestic law, the Genocide Act, 1973, which gives effect to the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide 1948,701 defines genocide as any of the following acts committed, in time of peace or in time of war, with intent to destroy, in whole or in part, a national, ethnic, racial or religious group:


(a)


Killing members of the group;


(b)


Causing serious bodily or mental harm to members of the group;


(c)


Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;


(d)


Imposing measures intended to prevent births within the group; or


(e)


Forcibly transferring children of the group to another group.”702

1.290

Genocide, or any attempt, conspiracy or incitement to commit genocide, is an offence triable on indictment only before the Central Criminal Court and only by or with the consent of the Attorney General.703 Whereas any such offence resulting in the death of any person is punishable by a mandatory sentence of life imprisonment,704 the maximum penalty for non-fatal acts of genocide is 14 years imprisonment.705 By ss.169 and 192 of the Defence Act, 1954, as amended by ss.4 and 5 of the 1973 Act, genocide is also a crime within the scope and jurisdiction of military courts martial. Any person charged with an offence of genocide may not be admitted to bail except by order of the High Court.706


700

See U.N.G.A. Resolution 96(1) of 11 December 1946 and Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide 1948. The Convention is declaratory of international law, cf Reservations to the Genocide Convention Case (I.C.J. Reports 1951, p.23).

701

U.N. Treaty Series, vol. 78, p.277, adopted by the General Assembly on 9 December 1948 and entered into force on 12 January 1961.

702

S.2, corresponding to Article II of the Convention.

703

The obligation to provide effective penalties for persons guilty of these offences, as well as of any complicity in acts of genocide, derives from Articles III and V of the Convention. In domestic law such complicity is covered by the law as to accessories and abettors.

704

S.2(2)(a).

705

S.2(2)(b).

706

S.7, amending s.29 of the Criminal Procedure Act, 1967.



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1.291

In addition, genocide is an extraditable offence in any form, and cannot be regarded as a political offence or an offence connected with a political offence under the Extradition Act, 1965, nor as an offence regarded as a criminal matter of a political character for the purposes of s.24 of the Extradition Act, 1870, or s.5 of the Extradition Act, 1873,707 Nor is there any exemption from the provisions of these statutes on the grounds that, under the law in force at the time when and the place where it is alleged that the act had been committed, the person accused or convicted could not have been punished therefore.708


707

S.3(1).

708

S.3(2).



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CHAPTER 2: CRIMES AGAINST PERSONAL LIBERTY

Introduction

2.1

The guarantee in Article 40.4.1° of the Constitution that “no person shall be deprived of his liberty save in accordance with the law” is one aspect of the freedom of the person.1

2.2

“Freedom of the person includes immunity, not only from the actual application of force, but from every kind of detention and restraint not authorised by the law. The infliction of such restraint is the worry of false imprisonment, which though generally coupled with assault, is nevertheless a distinct wrong”.2 As with assault and battery, false imprisonment derives from the former writ of criminal trespass to the person.

“False imprisonment is the unlawful and total restraint of the personal liberty of another whether by constraining him or compelling him to go to a particular place or confining him in a prison or police station or private place or by detaining him against his will in a public place. The essential element in the offence is the unlawful detention of the person, or the unlawful restraint on his liberty. The fact that a person is not actually aware that he is being imprisoned does not amount to evidence that he is not imprisoned, it being possible for a person to be imprisoned in law, without his being conscious of the fact and appreciating the position in which he is placed, laying hands upon the person of the party imprisoned not being essential. There may be an effectual imprisonment without the party's freedom of motion in all directions. In effect, imprisonment is a total restraint of the liberty of


1

See Article 40.3.2° of the Constitution, and dictum of Gavan Duffy J. in State (Burke) v Lennon [1940] I.R. 136 at 154 to the effect that internment without trial constitutes an unjust attack on the person.

2

Per Fawsitt J. in Dullaghan v Hillen and King [1957] Ir. Jur. Rep. 10.



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the person. The offence is committed by mere detention without violence.”3

2.3

Kidnapping, which consists in the taking or carrying away of one person by another by force or fraud without the consent of the person so taken or carried away and without lawful excuse, is an aggravated species of false imprisonment, the nature of which is also an attack on, and infringement of, the personal liberty of the individual.4 The term “kidnapping” is not a distinct nomen juris known to the common law,5 and is often used loosely to describe events which might be the subject of various charges, such as false imprisonment, child stealing or abduction. On the other hand, “kidnapping beyond the seas”, i.e. where the taking or carrying away is from within the country to another jurisdiction, has been a specific and recognised offence since the seventeenth century.6

2.4

Consent is no defence to a charge of false imprisonment or kidnapping where the victim is a boy under 14 years or a girl under 16 years.7 Both offences are now, by virtue of s.11 of the Criminal Law Act, 1976, felonies punishable on conviction on indictment by imprisonment for life.8

2.5

Although it appears that there is some evidence that there may originally have been a third offence against liberty at common law, namely abduction,9 the remaining offences of unlawful detention are now governed by statute.

2.6

Section 56 of the Offences Against the Person Act, 1861, makes it a felony punishable by 7 years penal servitude to abduct a child under 14, male or female, by force or fraud. This offence, known as child stealing, is committed irrespective of the consent of the child where there is an absence of consent on the part of the parent or lawful guardian. Sections 53 to 55 of the 1861 Act, together with ss.7 and 8 of the Criminal Law Amendment Act, 1885, as amended, create a number of statutory offences relating to the abduction and unlawful detention of women.

False Imprisonment

2.7

False imprisonment, like assault and battery, has been an indictable misdemeanour from the earliest times.10 Although some of the older authorities


3

Id.

4

See discussion of the House of Lords in R. v D. [1984] 2 All ER 449.

5

People (A.G.) v Edge [1943] I.R. 115 at 126; R. v Hale [1974] 1 All ER 1167.

6

R. v D., supra, n.4, at 451; Gavan Duffy J. in People v Edge, supra, at 170.

7

People v Edge, n.5.

8

A related offence, also made felony by s.11 of the Criminal Law Act, 1976, is provided for by s.10 of the Criminal Law (Jurisdiction) Act, 1976, which makes it an offence punishable on conviction on indictment by imprisonment for fifteen years for a person, “by force or threat thereof, or by any other form of intimidation”, inter alia, to seize control of any vehicle, ship or aircraft.

9

Napier, Detention Offences at Common Law, in Reshaping the Criminal Law, ed. Glazebrook (London, 1978), p.190, at note 3. The word “abduction”, meaning taking or drawing away, was employed by Blackstone in his definition of kidnapping, and could logically have included that field as well, 4 Bl. Comm. 219.

10

See Kenny, Outlines of the Criminal Law (19th ed., 1966), 222.



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speak of it as a species of constructive assault or as necessarily including an assault,11 this is clearly not the case, it being both a distinct crime and a tort at common law. The civil remedy, which differs from the crime in some respects, is the more commonly invoked. Another effective remedy in this connection (where the imprisonment is a continuing one) is an application for a writ of habeas corpus, in that any person who impedes the process of habeas corpus can be committed to prison for contempt of court.12

2.8

In the criminal law, false imprisonment “consists in the unlawful and intentional or reckless restraint of a victim's freedom of movement from a particular place”.13 In this respect, the victim's freedom of movement must be limited in all directions so as to be confined within fixed bounds.14 So it is not an imprisonment wrongfully to prevent the victim from going in a particular direction if he is free to go in others. “A prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception only; it may itself be movable or fixed, but a boundary it must have ...”15 In other words, the restraint must be total. But the victim is not required to take an unreasonable risk16 or to undergo some major humiliation17 in order to avoid an obstacle created by the defendant's action.

2.9

The “imprisonment” may consist in confining the victim in a prison,18 a house19 or building,20 a vehicle21 or room22 or any other space. In this respect, the detention need not be physical or accompanied by violence – it may be psychological in the sense that the victim goes along with the wishes of the defendant, fearing that force will be used to confine him if he does not, as where a person is arrested without actually being touched by the arrestor.23 Beyond such cases of arrest, the test for such psychological imprisonment would appear to be whether the victim succumbed to such domination as to amount to a total restraint on his liberty.24

2.10

There is little authority on the question of how large the area of confinement may be. It has been suggested that it would be tortious to confine a person in a large country estate or the Isle of Man.25 But it is clear that a person may be imprisoned without being aware of the fact, as where a child or a sleeping, drunk or mentally handicapped person is confined without his


11

For example, R. v Linsberg (1905) 69 J.P. 107; Pocock v Moore (1825) Ry. and M. 321.

12

Now guaranteed in Article 40.4.2°–5° of the Constitution: see generally, Kelly, The Irish Constitution (2nd ed., 1984), pp.543–557.

13

R. v Rahman (1885) 81 Cr. App. Rep. 349 at 353.

14

Id.

15

Bird v Jones (1845) 7 Q.B. 742 (per Coleridge J.).

16

Such as the risk of injuring himself: Sayers v Harlow U.D.C. [1958] 1 W.L.R.623.

17

Such as walking naked in the street: Salmond on the Law of Torts (17th ed., by R.F.V. Heuston, 1977), p.125.

18

Slevin v Manders, I.R. 2 C.L. 659 (Exch., 1868); Mahony v Lynch, 10 I.L.T.S.J. 91 (1876).

19

Warner v Riddiford (1858) 4 C.B. (N.S.) 180.

20

Kuchenmeister v Home Office [1958] 1 All E.R. 485 (an airport).

21

Burton v Davies [1953] Q.S.R. 26; see Walsh v Pender 62 I.L.T.R. 8.

22

Sayers v Harlow U.D.C., supra, n.16, (a lavatory).

23

See McMahon and Binchy, Irish Law of Torts, (2nd ed., 1990), pp.410–411.

24

Id, at p.411, discussing Phillips v B.N. Ry. Co. Ltd. 4 N.I.J.R. 154.

25

Street, The Law of Torts (8th ed., 1988), p.28.



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knowledge.26

2.11

Furthermore, a person who helps to continue an unlawful detention may be guilty of false imprisonment although he may not have been responsible for the original detention, as where a person in charge of another in lawful custody fails to set him free when the latter becomes entitled to be discharged.27 In this respect, it appears that in criminal law, if not in tort,28 a false imprisonment may be committed by omission provided there is the requisite mens rea, as where the defendant fails to release a person where he is under a duty to do so.29 Nor is it material in the criminal law that the imprisonment was not “directly” caused by the defendant, as where he digs a pit into which P falls and is trapped.30 By contrast, where the defendant is initially responsible for a false imprisonment, his liability ceases on the intervention of some judicial act authorising the detention,31 or on any other event which breaks the chain of causation.32

2.12

A false imprisonment can be committed through an innocent agent, as where a policeman takes the victim into custody at the direction or request of the defendant;33 but merely to give information to the police, in consequence of which it is decided to arrest the victim, will not be actionable even in tort.34 Where the defendant deliberately supplies false information, however, it may be that he will be criminally liable in false imprisonment as well as in nuisance.35 In Dillon v Dunne's Stores (George's Street) Ltd., the Supreme Court held that a shop proprietor who employed members of the Garda Síochána in their spare time as store detectives was relieved of liability for false imprisonment where they were alleged to have been over-zealous in attempting to abstract confessions from shop assistants suspected of pilfering, since the proprietor's conduct fell “short of authorising or agreeing to falsely imprison”.36

2.13

A parent or person in loco parentis may exercise restraint over a child so long as such restraint remains within the bounds of reasonable parental discipline and is not in contravention of a court order.37 A parent would very seldom be guilty of false imprisonment in relation to his or her own child, however, as the duration and circumstances of such restraints are usually well within the realms of reasonable parental discipline.38


26

Dullaghan v Hillen and King, supra, n.2. The English authorities on this question are in conflict: see Smith and Hogan, Criminal Law (6th ed., 1988), p.407.

27

Mee v Cruickshank, 86 L.T. 708 (1902); Peacock and Hoskyn v Musgrave and Porter [1956] Crim. L. Rev. 414.

28

See McMahon and Binchy, op cit, pp.412–414.

29

See Smith and Hogan, op cit, pp.408–409.

30

See Clarence (1888) 22 Q.B.D. 23 at 36 (per Wills J.).

31

Lock v Ashton (1848) 12 Q.B. 871. See Marrinan v Vibart [1962] 3 All E.R. 380.

32

Harnett v Bond [1925] A.C. 669.

33

Gosden v Elphick and Bennett (1849) 4 Exch. 445.

34

Id.

35

See Smith and Hogan, op cit, p.408.

36

Unreported, Supreme Court, 20 December 1968 (131/5/6–1964): see McMahon and Binchy, A Casebook on the Irish Law of Torts (1983), p.129.

37

R. v Rahman (1985) 81 Cr. App. R. 349 (C.A.).

38

Id.



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2.14

The principle relating to the use of force for self-defence or the defence of others applies also to a person who is or believes himself or herself to be falsely imprisoned or who is being threatened with false imprisonment.39 In consequence, such a person is entitled to use such force as is necessary to effect their release provided that no more force was used than was reasonable in the circumstances as the person believed them to be.40 In this respect, the word “release” means effective release, so that the person may continue to use such force in order to avoid a real or imaginary threat of imminent recapture.41

2.15

However, the question of the lawfulness of the restraint most commonly arises in connection with the exercise of powers of arrest. If such powers are exceeded, there is a false imprisonment:

“The general rule of law as to actions of trespass against persons having a limited authority is plain and clear. If they do any act beyond the limit of their authority... they thereby subject themselves to an action of trespass, but if the act be within the limit of their authority, although it may be done through an erroneous or mistaken judgment, they are not liable to such action”.42

Powers Of Arrest

2.16

Arrest has been described as:

“a step in the criminal process; the apprehending or restraining of a person in order that he may be forthcoming to answer an alleged or suspected crime, made in the lawful exercise of an asserted authority, with the intention to bring the person within the criminal process, this intention being communicated to the person by words or conduct together with the reasons for the arrest”.43

2.17

In Walsh J.'s words, arrest is “simply a process of ensuring the attendance at court of the person so arrested”.44 A provision to this effect is contained in s.26 of the Criminal Justice Act, 1984, which requires that every person who is arrested, either with or without a warrant, be brought “as soon as practicable” before a District Justice (now Judge) or formerly, before a peace commissioner.45 Where there is no arrest, an accused person will have been brought to court by way of summons, the summons procedure being used for


39

In Morgan v Colman [1981] 4 A. Crim. R. 324, the issue is extensively examined by the Supreme Court of South Australia.

40

Subject to the principle in R. v Fennell, [1970] 3 All ER 215, where the arrest is in fact lawful and the defendant knows that the person against whom he uses such force is a member of the Garda Síochána.

41

Morgan v Colman, supra, n.39.

42

Doswell v Impey, 1 B. and C. 163, quoted with approval in Dullaghan v Hillen and King, supra, n.2.

43

Kidstone, A Maze in Law! [1978] Crim. L. Rev. 332 at 336. For a general review of powers of arrest in Irish Law, see Ryan and Magee, The Irish Criminal Process, chapter 5. And for the law in Northern Ireland, see Leigh, Powers of Arrest and Detention, (1989) 40 N.I.L.Q. 363.

44

People v Shaw [1982] I.R. 1 at 29.

45

The office of peace commissioner was created in Ireland by s.4 of the District Justices (Temporary Provisions) Act, 1923.



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most summary offences and sometimes for less serious indictable offences.

2.18

A formal arrest normally involves the actual seizure or touching of a person's body accompanied by a form of words which indicate to that person that he is under restraint.46 There may be an arrest by words alone, but only where the person arrested submits to the fact of restraint.47 No specific verbal formula need be employed so long as it is made clear that the person arrested is compelled to accompany the person effecting the arrest.48

2.19

In this connection, the distinction between a command, amounting to an imprisonment, and a request, not doing so, is a difficult one. It appears that it is enough that the defendant orders P to accompany him to another place and P goes because he feels constrained to do so.49 On the other hand:

“If a person under suspicion voluntarily agrees to go to a police station to be questioned, his liberty is not interfered with, as he can change his mind at any time. If, having been examined, he is asked and voluntarily agrees to remain in the barracks until some investigation is made, he is still a free subject, and can leave at any time.”50

2.20

This is the case even where the person would have been arrested in the event that he had not voluntarily agreed to go to the police station.51 However, where a person is in fact detained, he is imprisoned, whether or not he is aware of the restraint and whether or not he tries to exercise his right to leave. Where there has been no formal arrest, he is entitled to use reasonable force in exercising that right.52 By contrast, where he is not physically detained and he does not realise that he is under constraint, there is no imprisonment.53

2.21

There is no common law power to arrest without warrant for a misdemeanour, so that in such cases a member of the Garda Síochána must possess a valid arrest warrant.54 Warrants may issue even though there exists a common law or statutory power of arrest without a warrant,55 though in practice, because of the extensive powers of arrest without warrant now conferred by statute,56 it will only be in exceptional cases that Gardaí will seek a warrant in order to arrest someone. Moreover, a warrant ought to issue only if a summons is likely to prove ineffective in securing the attendance of the accused


46

For a review of the law on the act of arrest, see Williams, Requisites of a Valid Arrest [1954] Crim. L. Rev. 6.

47

Alderson v Booth [1969] 2 Q.B. 216.

48

Id; Campbell v Tormey [1969] 1 All E.R. 961. It appears from these cases that excessive courtesy may prove the undoing of a person making an arrest.

49

Smith and Hogan, op cit, p.406.

50

Dunne v Clinton [1930] I.R. 366 at 372 (per Hanna J.), cited with approval by O'Higgins C.J. in The People v Walsh [1980] I.R. 294 at 302.

51

Campbell v Tormey, supra, n.48.

52

R. v Inwood [1973] 2 All ER 647.

53

Alderson v Booth, supra, n.47.

54

For the rules governing the issue and contents of warrants of arrest, see District Court Rules, 1948; also Woods, District Court Guide, vol. 1, pp.46–49.

55

District Court Rules, 1948, r.36.

56

See Ryan and Magee, op cit, Appendix G, p.525 et seq for an extensive outline of these powers.



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in court.57

“The nature of the warrant procedure is to transfer the discretion from the police officer to the magistrate, and to confer on the police officer, in return for this judicial control, a measure of protection in the execution of the warrant.”58

2.22

In consequence, Gardaí properly executing warrants are protected by statute from any prosecution or civil action when any irregularity or want of jurisdiction may occur in the issue of the warrant,59 or for anything done in obedience to the warrant, unless inspection of the warrant has been refused to the person arrested for a period of six days after a demand has been made in writing for a perusal of the warrant.60 When a warrant is issued, but it is used merely as a summons, and no arrest is made on it, and the party goes voluntarily before the court, this is not an imprisonment.61

2.23

The common law powers were usually divided into cases where a Garda is under a legal obligation to arrest and those where he has a discretionary power: a Garda was said to be bound to arrest any person whom he saw committing treason or felony, or inflicting a dangerous wound, or any person directly charged with a felony by another with reasonable grounds adduced in support of the charge, or any person committing a breach of the peace within his view if he cannot otherwise prevent such a breach.62 Contrary to what is sometimes asserted in this context, it is not an offence for a Garda to fail to arrest, for example, a person who commits larceny in his view. It is preferable to state that a Garda “has power to arrest” or “may arrest” in the circumstances outlined above.63 In many cases where the suspect is known to the Garda, it is preferable for the Garda to postpone arrest and charge until the investigation is complete, the proofs are in order and all necessary directions have been obtained from the Director of Public Prosecutions. As arrest can only be for the purpose of charge and remands have to be obtained while the case is prepared, much expense and valuable Garda and court time can be saved by postponing charging (or commencement by summons) until the case is ready to proceed. Apart altogether from the disturbance and upset caused to the accused, it is demoralising for the State to have to withdraw a prosecution after a precipitate charge.64

2.24

A member of the Gardaí has power to arrest any person whom he or she reasonably suspects of having committed treason or felony or of having inflicted


57

O' Brien v Brabner, 49 J.P. 227; see also Woods, op cit, p.46.

58

Thomas, The Execution of Warrants of Arrest, Part I [1962] Crim. L. Rev. 520 at 520.

59

Constabulary (Ireland) Act, 1836, s.50.

60

Public Officers Protection (Ireland) Act, 1803, s.6.

61

Arrowsmith v Le Mesurier (1806) 2 B. and P. (N.R.) 211.

62

Any person of full age is also under a duty to effect an arrest if treason or a felony is committed in his presence, though there are no reported Irish cases where a person has been prosecuted for such a breach of duty and it is now more in the nature of a power of arrest.

63

Glanville Williams in [1954] Crim. L. Rev. 408.

64

We are pleased to note that in the recent (6th) edition of the Garda Síochána Guide, pp.94–5 and footnote 14, the Glanville Williams view on the “obligation” to arrest is preferred.



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a dangerous wound, or any person whom he sees threatening to commit treason, felony or a breach of the peace. With respect to threatened breaches of the peace, it appears that the person whose liberty is affected need not have been the one likely to disturb the peace provided that the arrest was effected in order to avoid a breach of the peace arising from that person's otherwise lawful act.65

2.25

As we have seen, the exact meaning of the expression “breach of the peace” is elusive;66 it encompasses not only riot, unlawful assembly and fighting but also a unilateral battery where the victim does not retaliate,67 It is not, however, occasioned by mere verbal quarrels or insults unless there is an accompanying threat of personal harm. Although an arrest effected immediately after a breach of the peace is permissible, any greater delay will mean that an arrest may only be effected by warrant.68

2.26

In Howell,69 it was said that a breach of the peace occurs “whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, an unlawful assembly or other disturbance”. It is clear from this that prevention of a breach of the peace is a wider concept than the prevention of crime.

2.27

The courts have, however, made it clear that there is no general power of “protective custody” in Irish law. In Connors v Pearson,70 it was held that, apart from explicit statutory authority, the police have no power to hold potential witnesses in custody against their will so as to safeguard them against apprehended violence and intimidation. It would seem that, both under Article 5(1) of the European Convention on Human Rights and Article 40.4.1° of the Constitution, detention on those grounds is now not permitted even if authorised by statute.71

2.28

In People v O'Callaghan,72 the Supreme Court held that persons accused of crimes cannot be refused their constitutional right to bail because they would be in personal danger if they were released. On the other hand, “if a Court were properly led to the conclusion that the accused would not properly stand his trial because he would be prevented by violence or threats of violence from doing so rather than by his own wish ... the court should exercise its discretion against granting bail”,73 this being an application of the fundamental


65

Humphries v Connor, 17 I.C.L.R. 1 (Q.B. 1864); O' Kelly v Harvey, 14 L.R. Ir. 105 (C.A., 1883), discussed in McMahon and Binchy, op cit, p.425.

66

See Williams, Arrest for Breach of the Peace [1954] Crim. L. Rev. 578.

67

Lewis v Arnold, 4 C. and P. 354.

68

Id.

69

(1981) 73 Cr. App. R. 31 (C.A.).

70

[1921] 2 I.R. 51 (C.A.).

71

See Forde, Constitutional Law of Ireland (1987), p.301; Article 5(1)(e) of the Convention and certain provisions of domestic law nevertheless recognise the necessity for preventive detention of persons of unsound mind who may be a danger to themselves or others. (Mental Treatment Act, 1945, s.165) or of persons who are a probable source of infection with an infectious disease (Health Act, 1947, s.38(1)).

72

[1966] I.R. 501 at 515. Followed in Ryan v D.P.P. [1989] I.R. 399.

73

Application of Dolan, High Court, unreported, 5 November 1973, at p.2.



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criterion of “the probability of the applicant evading justice” in refusing bail.74 Be that as it may, “a bail motion cannot be used as a vehicle to import into the law the concept of protective custody for an unwilling recipient”,75 so that to refuse bail on the grounds of the prospect of a speedy trial or the likelihood that the applicant will commit further offences while released on bail constitutes “a form of preventive justice which has no place in our legal system”.76

2.29

Unlike a member of the Garda Síochána, a private person, though entitled to use reasonable force to prevent the commission of a felony or to arrest a person reasonably suspected of having committed a felony, will be liable in false imprisonment (and/or battery) to the arrested party if it transpires that no felony was in fact committed, although the subsequent acquittal of the person arrested is of no consequence in this respect.77

2.30

Alternatively, a private person may direct a Garda to effect the arrest. In such a case, although the person directing the arrest will be liable if no felony has in fact occurred, no similar liability will attach to the police officer.78

2.31

With respect to statutory powers of arrest, the power may be conferred on any person, it may be restricted to certain specified persons, or it may be confined to members of the Garda. Usually the wording of the statute indicates that a person may be arrested on a reasonable suspicion of having committed the offence or where the person is found committing the offence, though in some instances there may be a statutory power of arrest where a person is suspected of being about to commit a specified offence. There may also be a power of arrest contingent upon the failure of a person to do something, for example to produce a licence or other authorisation for a particular activity. Where the power is conditional on the offender being found committing the offence, the observed commission of the crime and the pursuit and arrest of the offender must be capable of being regarded as one continuous transaction.79

2.32

The scope of statutory powers of arrest can only properly be determined by an examination of the language used in each specific provision. In Barry v Midland Ry. Co.,80 George J. was of the opinion that such powers must be strictly construed in favour of liberty, a view which must now be enforced by constitutional considerations.81 In relation to statutory powers of arrest, Ryan and Magee have commented:

“The statutes which authorise arrest without warrant span a period of over 150 years and the different forms of drafting contained in them mean that there now exist what Glanville Williams has referred to as


74

[1966] I.R. at 513 (per Walsh J.).

75

Id, at 515.

76

Id.

77

Watters v W.H. Smith & Son, Ltd. [1914] 1 K.B. 595.

78

Christie v Leachinsky [1947] A.C. 573 at 596–7 (per Lord du Parcq).

79

R. v Jones [1970] 1 All-ER 209.

80

(1867) 1 I.R.C.L. 130 at 141.

81

See infra.



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'extraordinary traps which Parliament has designed for the police and others who try to promote the ends of criminal justice'.”82

2.33

The question of reasonable suspicion is a matter of law, not of fact. If there are not reasonable grounds, the Garda will be liable for making an illegal arrest. This has been held to mean evidence on which a “reasonable and discreet man” would act, and it imports an objective test.83

2.34

Factors to be considered in formulating reasonable suspicion would be the amount of information available, the source of such information, and whether such source was creditable. A Garda may rely on hearsay information if he takes reasonable steps to satisfy himself of its probable truth.84 It is not necessary to take all the steps open to him to verify the accuracy of such information provided the facts brought to his notice furnish reasonable and probable cause for believing the arrestee to be guilty of the crime for which he was arrested.85 Once there is what appears to be reasonable suspicion against a particular individual, a police officer may arrest but as arrest is for the purpose of charge, a Garda should hold off arresting until he is satisfied he has a case against the accused.86 The fact that the arrested person is released without being charged or, having being charged, is later acquitted of the crime does not necessarily mean that the suspicion which formed the basis for the arrest was unreasonable. Reasonable suspicion may be based on facts and information which may not be admissible in evidence or, even if admissible, may not form part of a prima facie case; for example, the furnishing of a false alibi may form grounds for reasonable suspicion but such alibi may not be admissible in evidence. Knowledge that a warrant had been issued for the arrest of a person for felony was held to constitute a sufficient ground for reasonable suspicion that the felony had been committed by him.87

2.35

It has been held that an arrest is unlawful if the person arrested is not informed forthwith of the charge, unless he or she otherwise knows the reasons for their arrest.88

2.36

As noted above, there is no intermediate stage between liberty and arrest, and hence no power of detention for questioning known at the common


82

Op cit, pp.98–99, referring to Williams, The Interpretation of Statutory Powers of Arrest without Warrant, [1958] Crim. L. Rev. 73.

83

Hogan and Walker, Political Violence and the Law in Ireland (1989), p.203, note 60.

84

McArdle v Egan (1933) 150 L.T. 412.

85

Id; Lister v Perryman (1870) L.R. 4 H.L. 512.

86

McArdle v Egan, supra, n.84.

87

Creagh v Gamble (1888) 24 L.R. Ir. 458.

88

For example People v Shaw [1982] I.R. 1 at 29.



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law.89

“No person may be arrested (with or without a warrant) for the purpose of interrogation or the securing of evidence from that person. If there exists a practice of arresting persons for the purpose of 'assisting the police in their inquiries', it is unlawful .... (T)here is no such procedure permitted by law as 'holding for questioning' or detaining on any pretext except pursuant to a court order or for the purpose of charging and bringing the person detained before the court. Any other purpose is unknown to the law and constitutes a flagrant and unwarranted interference with the liberty of citizens.”90

2.37

There are, however, two statutory powers of “extended arrest” currently in force in Ireland.91 Section 4(2) of the Criminal Justice Act, 1984, empowers a member of the Garda Síochána to arrest without warrant a person whom he or she reasonably suspects of having committed an offence carrying a penalty of five years imprisonment or more for first offenders, or of having attempted to commit such an offence,92 and the person so arrested may be taken to and detained in a Garda station for a period of six hours93 if the member in charge of that station has at the time reasonable grounds for believing that the person's detention is necessary for the proper investigation of the offence. A Garda Superintendent may extend this period of detention for a further six hours where he or she has reasonable grounds for believing that such further detention is necessary.94 Where, however, at any time during the detention there are no longer any reasonable grounds for suspecting that the person held committed the offence in question, he or she must be released from custody.95 Sections 4(8) and 5 of the 1984 Act provide for safeguards relating to medical attention and to access to a solicitor while detained under s.4. In addition, the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 prescribe the detailed procedures to be followed in the case of arrested persons generally,96 and it has recently been held that an accused in


89

Supra, text accompanying n.152, chapter 1. This common law rule has been emphatically restated in a number of recent cases: see The People (D.P.P.) v O'Loughlin [1979] I.R. 85; The People (D.P.P.) v Walsh [1980] I.R. 294; The People (D.P.P.) v Higgins, Supreme Court, 22 November 1985. This view of arrest is not, however, shared by the House of Lords: see Holgate-Mohammed v Duke [1984] A.C. 437, where Lord Diplock said that arrest for the purpose of questioning the suspect or seeking further evidence with his assistance in order to dispel or confirm the reasonable suspicion was well established “as one of the primary purposes of detention upon arrest”. This view of arrest now has statutory force in England and Wales by s.37 of the Police and Criminal Evidence Act, 1984.

90

People v Shaw, supra, n.88, at 29, quoting from People v Walsh, supra (per Walsh J.).

91

Additional emergency powers of extended arrest not currently in force are contained in s.2 of the Emergency Powers Act, 1976, (seven days) and the Offences against the State (Amendment) Act, 1940, (internment). The Constitutionality of these measures was upheld by the Supreme Court in Re Article 26 and the Emergency Powers Bill 1976 [1977] I.R. 159, and by the former Supreme Court in Re Article 26 and the Offences against the State (Amendment) Bill 1940 [1940] I.R. 470, respectively.

92

S.4(1).

93

S.4(3)(a).

94

S.4(3)(b).

95

S.4(4).

96

SI No.119 of 198.



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custody has a constitutional right of access to a solicitor.97

2.38

The undoubtedly more important statutory power of extended arrest is contained in s.30 of the Offences Against the State Act, 1939, which permits such arrest for up to forty-eight hours in respect of any offence committed under the Offences Against the State Acts, 1939–1985 and in addition, in respect of certain “scheduled offences” under Part V of the 1939 Act.98 Section 36(1) of that Act provides that whenever – while Part V is in force – the government is satisfied that the ordinary courts are inadequate to secure the “effective administration of justice and the preservation of public peace and order” in relation to “offences of any particular class or kind or under any particular enactment”, the Government may declare by order that such offences shall be scheduled offences.99

2.39

Persons suspected of having committed or of being about to commit such offences, which include all offences under the Malicious Damage Act, 1861, the Explosives Substances Act, 1883, as amended,100 the Firearms Acts, 1925–71, as amended, and under s.7 of the Conspiracy and Protection of Property Act, 1875, may be

“... removed to and detained in custody in a Garda Síochána station, a prison or some other convenient place for a period of twenty-four hours from the time of his arrest and may, if an officer of the Garda Síochána not below the rank of Chief Superintendent so directs, be so detained for a further period of twenty-four hours”.101

2.40

While the term “some other convenient place” has been held to mean a convenient building of some kind,102 it is also established that the Gardaí may remove the suspect from one place to another for the purpose of assisting in the investigation, provided that such removal is not mala fide or “done for the purpose of harassment or of isolating him from assistance or access to which he would be properly entitled”.103 Such removal extends to cases where the detainee consents to accompanying investigating police officers by car in order to identify persons or places connected with the commission of the offence, and where such an interruption of the unlawful detention is unwarranted, this does


97

D.P.P. v Healy (Supreme Court), Irish Times, 6 December 1989. However, the issue as to whether the defendant's detention under s.4 of the 1984 Act is unlawful is not relevant to the jurisdiction of the District Court at the remand stage. Keating v Gov. of Mountjoy Prison (High Court, Barrington J., 1 May 1989) noted in the Irish Times, 11 September 1989.

98

See generally, Hogan and Walker, op cit, pp.192–209.

99

The scope of this provision is so wide as to effectively negate the possibility of successfully challenging the validity of a scheduling order: see the decision of the Supreme Court in The People (D.P.P.) v Quilligan [1987] I.L.R.M. 606, esp. at 629–30 (per Henchy J.).

100

It has been held that the subsequent amendments to these Acts by the Criminal Law (Jurisdiction) Act, 1976, have not retrospectively affected the validity of the Offences against the State (Scheduled Offences) Order, 1972: see The State (Daly) v Delap, High Court, 30 June 1980 (per Finlay P.), approved by McCarthy J. in The People (D.P.P.) v Tuite, 2 Frewen 175.

101

S.30(3).

102

The People (D.P.P.) v Farrell [1978] I.R. 13 (C.C.A).

103

Id, State (Walsh) v Maguire [1979] I.R. 372.



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not of itself invalidate the resumed detention under the original warrant.104 The object of the powers given by s.30 is not to permit the arrest of persons for the purpose of interrogating them:

“Rather it is for the purpose of investigating the commission or suspected commission of a crime by the person already arrested and to enable that investigation to be carried on without the possibility of obstruction or other interference which might occur if the suspected person were not under arrest”.105

2.41

Nevertheless, although the 1939 Act has been described as a “legislative intervention designed to secure and make more effective the rights guaranteed by the Constitution”,106 it is recognised that s.30 makes considerable inroads into the common law rule that no person may be arrested for purposes of interrogation and that it must, in consequence, be strictly construed.107 The powers conferred by s.30 are subject to judicial review, and any infringement of a detainee's constitutional rights will result in the detention becoming unlawful.108

2.42

As with arrest generally, the person arrested must be told of which scheduled offence he or she is suspected unless the person has actual or constructive knowledge of the reasons for the arrest. In this respect, although the Garda effecting the arrest must specify the scheduled offence of which the accused is suspected, technical precision is not required.109 Yet because of the minor nature of many of the offences scheduled under Part V of the 1939 Act, particularly under the Criminal Damage Act, 1991, and because the courts have refused to look to the dominant or primary motive for an arrest under s.30 so long as the arresting Garda has a bona fide intention of investigating the particular scheduled offence,110 s.30 can be effectively used to investigate a wide range of non-scheduled offences, such as murder and robbery. The result is that s.30 has been widely invoked by the police as a means of detaining persons charged with serious crime, including crimes which are not subversive in character. In this connection, Hogan and Walker have written:

“... the number of persons arrested under s.30 shot up from a mere 229 in 1972 (when the latest proclamation bringing Part V of the 1939 Act into force was made) to 2,216 in 1984. This increasing use of s.30 ... reflects the fact that many traditional police practices (such as 'holding for questioning' and 'inviting' suspects to accompany them to a Garda station) came under increased judicial scrutiny during this period. Once


104

People (D.P.P.) v Kelly [1983] I.R. 1.

105

The People (D.P.P.) v Quilligan, supra, n.99, at 624 (per Walsh J.).

106

Id, at 621.

107

See cases cited supra, n.89.

108

The State (Trimbole) v Governor of Mountjoy Prison [1985] I.R. 550.

109

The People (D.P.P.) v Byrne, Supreme Court, 3 April 1977.

110

For example, The People (D.P.P.) v Walsh [1988] I.L.R.M. 137; Quilligan, supra, n.99; The People (D.P.P.) v Howley, C.C.A., 4 March 1988, and Supreme Court, 29 July 1988. For criticism, see Hogan and Walker, op cit, pp.vii-viii and 195–8.



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it had been judicially established that the practice of 'holding for questioning' was unlawful, that the Gardai were under an obligation to warn suspects who had not been placed under arrest that they were at all times free to leave, and that persons arrested at common law must be charged and brought before a District Court or Peace Commissioner within a reasonable time, the temptation to rely on s.30 in all serious cases increased. In addition, the courts had made it perfectly clear that evidence obtained as a result of an unlawful arrest – whether by way of 'holding for questioning' or failure to charge the accused within a reasonable time – would be excluded, absent exceptional circumstances”.111

2.43

The requisite suspicion under s.30, with respect to both the original arrest112 and the extension order,113 must be one “which is bona fide held and not unreasonable”. The requirement of reasonableness in this context is administrative law reasonableness as generally applied in the review of other discretionary powers, which means that the power must not only be exercised in good faith, but also “that the opinion or other subjective conclusion set out as a precondition for the valid exercise of the power must be reached by a route that does not make the exercise unlawful – such as by misinterpreting the law, or by misapplying it through taking into consideration irrelevant matters of fact, or through ignoring relevant matters”.114 As Irish courts now insist on the existence of objective evidence to justify the exercise of discretionary powers, the difference between this test and that of “reasonable suspicion” in the context of arrest at common law may not be very great.115

2.44

Clearly, as with such arrest, the arresting officer need not have acted on the basis of first-hand information in relation to the offence in question.116 However, although as a general rule police communications are not privileged from disclosure on “class” grounds,117 the courts have shown a greater willingness to grant privilege in respect of sources of information grounding the reasonable suspicion under s.30.118

2.45

It appears that a person arrested at common law may be subsequently arrested under s.30, and by analogy under any other statutory power, without being formally released prior to such arrest.119 Equally, there is no bar to the re-arrest at common law of a person who has just been released from detention under s.30, provided that the offence is a different one in each case.120 By


111

Op cit, p. 194, footnotes omitted.

112

Quilligan, supra, n.99, at 622 (per Walsh J.).

113

The People (D.P.P.) v Eccles, C.C.A., 10 February 1986, per Hederman J. at 35; The People (D.P.P.) v Byrne, supra, n.109.

114

The State (Lynch) v Cooney [1982] I.R.337 at 380–1 (per Henchy J.).

115

Hogan and Walker, op cit, p.203.

116

The People (D.P.P.) v McCaffrey [1986] I.L.R.M. 687; McKee v Chief Constable for Northern Ireland [1984] 1 W.L.R. 1358.

117

D.P.P. (Hanley) v Holly [1984] I.L.R.M. 149.

118

For example, D.P.P. v Connolly [1985] I.L.T. 83; Eccles, supra, n.113.

119

The People (D.P.P.) v Kehoe [1985] I.R. 444.

120

For example, The People (D.P.P.) v Pringle, 2 Frewen 57.



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s.10(3) of the Criminal Justice Act, 1984, a person released following his arrest under s.30 may not be re-arrested under s.4 of the 1984 Act.

“However, the 1984 Act is curiously silent about the case of a person released following an arrest under s.4. May that person be arrested under s.30? It would surely be anomalous if this were permitted, yet s.4(10) declares that nothing in that section 'shall affect the operation of s.30 of the Act of 1939'. It would be odd if this proviso were to be construed so as to permit the converse of that which is specifically prohibited by s.10(3), and perhaps the better construction of this saving clause is to say that s.4 is not intended to prejudice the independent operation of s.30 of the 1939 Act.”121

Kidnapping

2.46

The common law misdemeanour of kidnapping is the most aggravated species of false imprisonment.122 Its history, however, is quite distinct from that of false imprisonment, the term itself dating from the seventeenth century practice of recruiting labour for the colonies by force or guile.123 By the 1770s, it appears that this offence had become superfluous and that it then entered a long period of legal oblivion until its revival earlier this century.124 It is now, by virtue of s.27 of the Criminal Law Act, 1976, a felony punishable on conviction on indictment by imprisonment for life.

2.47

Although the term has always enjoyed popular usage, and notwithstanding that it is now a felony by statute, kidnapping is not a distinct nomen juris of the common law125 and the substance of the crime continues to elude meaningful definition both in Ireland and in other common law jurisdictions.126 While a New Hampshire decision127 as early as 1837 held that transportation out of the country was no longer a prerequisite to the crime, it was not until 1937 that the English Court of Criminal Appeal held that such foreign transportation was not required.128 In Ireland, too, this limitation appears to have been abandoned,129 though false imprisonment, being also a felony punishable by life imprisonment, is usually charged in cases where the victim has been taken or carried away.

2.48

The modern elements of the offence in English law were recently


121

Hogan and Walker, op cit, p.209.

122

East's Pleas of the Crown I, p.429, approved by the English C.A. in R. v Reid [1972] 2 All ER 1350 at 1351 and R. v Wellard [1978] 3 All ER 161 at 163.

123

The word is a compound of “nap”, meaning to nab or snatch, and “kid”, which originally meant any indentured servant brought to the American colonies, including but not limited to children: see Napier, Detention offences at Common Law, in Reshaping the Criminal Law, Glazebrook (ed.), (London, 1978), pp. 194–7. In R. v Coath (1871) 2 Q.S.C.R. 178, the history of such slavery is reviewed by the Supreme Court of Queensland.

124

Napier, op cit, at pp. 195–6.

125

Supra, page 91.

126

See Diamond, Kidnapping: A Modern Definition (1985) 13 Am. J. Grim. Law 1.

127

State v Rollins, 8 N.H. 550 (1837).

128

R. v Nodder, unreported, cited by Napier, op cit, p. 196, note 57.

129

People (A.G.) v Edge [1943] I.R. 115 at 126.



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delimited by the House of Lords in R. v D.:

“First, the nature of the offence is an attack on, and infringement of, the personal liberty of an individual. Second, the offence contains four ingredients as follows: (1) the taking or carrying away of one person by another, (2) by force or by fraud, (3) without the consent of the person so taken or carried away and (4) without lawful excuse. Third, ... the offence of kidnapping was categorised by the common law as a misdemeanour only. Fourth, despite that, kidnapping was always regarded, by reason of its nature, as a grave and (to use the language of an earlier age) heinous offence. Fifth, in earlier days the offence contained a further ingredient, namely that the taking or carrying away should be from a place within the jurisdiction to another place outside it; this further ingredient has, however, long been obsolete and forms no necessary part of the offence today. Sixth, the offence was in former days described not merely as taking or carrying away a person but further or alternatively as secreting him; this element of secretion has, however, also become obsolete, so that, although it may be present in a particular case, it adds nothing to the basic ingredient of taking or carrying away.”130

2.49

The Court of Appeal in that case had held that, as with the statutory offence of child stealing,131 kidnapping did not apply to the taking of unmarried children by parents or guardians, the proper proceeding in such cases being by way of contempt of court.132 This decision was reversed by the House of Lords, who held that a parent could be convicted of kidnapping his or her own child, even in the absence of a court order.133 In all cases, it was the consent of the person taken which was relevant. In the case of a young child, lacking the understanding or intelligence to give consent, the absence of consent was a necessary inference. In the case of an older child, it was a question of fact for the jury whether the child had sufficient understanding and, if so, whether there was consent. Lord Brandon thought that a jury would usually find that a child under 14 lacked sufficient understanding to give a valid consent.134

2.50

In Ireland, although there is no authority on the question of whether a parent can be convicted of kidnapping his or her own child, it has been held by the Supreme Court that, in relation to offences of kidnapping children, the relevant consent depends, as a matter of law, on the age of the child.135 In the case of a girl under 16 or a boy under 14, the relevant consent is that of the parent or other lawful guardian of the child: in other cases, it is the consent of


130

[1984] 2 All ER 449 at 453 (per Lord Brandon, with whom the other Lords agreed).

131

Infra.

132

Because parents (apart from the natural father of a child) now have equal rights with respect to their children, most cases of parental kidnap will be contrary to a court order awarding sole custody to one parent. Even where there is no court order, the use of the criminal law in this area is generally inappropriate, see infra, chapter 7.

133

Lord Bridge found it unnecessary for the purposes of the appeal to go further than the case where a parent acted in contravention of a court order: R. v D., supra n.130, at 450.

134

Id, at 457.

135

The People (A.G.) v Edge [1943] I.R. 115 at 126.



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the child himself which is material.136 Accordingly, on the facts of the case then before it, the Supreme Court held that the defendant could not be convicted of kidnapping a boy of 14 1/2 who had voluntarily gone away with him. Although, as Gavan Duffy J. recognised in that case, the rigid legal fiction of the age of discretion is not without its difficulties in this area,137 the approach of the Supreme Court to the issue of consent is more consistent with principle than that of the House of Lords. According to Williams:

“In relation to adults (call it adult-kidnap), kidnapping is generally a kind of false imprisonment (except that it can be effected by deception), and is a crime protecting the liberty of the adults kidnapped, not the rights of their relatives .... Again, the kidnapping of adults must be by force (or the threat of force) or fraud, applied in each case to the kidnapped adult, since force is taken to negative consent in fact, and fraud may impair consent so seriously that it is disregarded for the purpose of the offence. There is no such requirement for the kidnapping of infants, or indeed of older children who are in the care of their parents or guardians. The explanation is simple. Force or fraud need not be shown for child-kidnap because (1) the child's consent, de jure or de facto, is irrelevant, and (2) if the child is carried off without the parent's knowledge the parent does not consent, whether force (or fraud) has been used against him or not. The rationale of the crime is the protection of parental rights, not the protection of the liberty of the child.”138

In cases of the taking of children by parents, whether or not it is accepted that such action may disclose an offence of kidnapping in addition to a contempt of court, the question will be the same: whether the parent has gone beyond what is reasonable in the exercise of parental authority.139

2.51

Where the victim is not the defendant's child and the defendant is not acting in pursuance of any statutory authority or power of arrest, “lawful excuse” is likely to be narrowly confined. Clearly, a husband may now be guilty of kidnapping his wife.140 In Henman, the defendant was guilty of attempted kidnapping where he tried to take by force an acquaintance he believed to be in moral and spiritual danger from a religious sect to which she belonged – the law would not recognise as a lawful excuse the conduct of anyone kidnapping another unless it could properly be said that there had arisen a necessity, recognised by


136

Id, explained by the House of Lords in R. v D., supra, n.130, at 455.

137

[1943] I.R. 115 at 171.

138

Can Babies be Kidnapped? [1989] Crim. L.R. 473 at 473–4. On this analysis, East's description of kidnapping as an aggravated false imprisonment is true only for adults: Williams, The Kidnapping of Children (1984) N.L.J. 278.

139

The onus is on the prosecution to prove that the defendant was not acting within those bounds. On a charge of kidnapping, however, the issue may be one of “lawful excuse”, thereby placing an evidential burden on the defendant: see the majority of the H.L. in R. v D., supra, n.130. Lord Bridge preferred to say simply that no offence was committed in such circumstances.

140

See the review of authority on this question by Cairns L.J. in R. v Reid, supra, n.122; see also, the decision of the N.S.W. Supreme Court in R. v C. [1981] 3 A. Crim. R. 146.



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the law as such, causing the would-be kidnapper to act in that way.141

2.52

The offence of kidnapping, in England in any event, is complete when the victim is deprived of liberty and carried away from the place where he or she wishes to remain, irrespective of where the kidnapper wishes to bring the person142– it is not a continuing offence involving the concealment of the person seized.143 In Wellard, it was held that although there may be circumstances in which the movement would not be sufficient to amount to a carrying away, the movement of the victim for no less than 100 yards and putting her in a car was sufficient evidence that she had been carried away.144 Clearly, the carrying away need not be literal: “you can carry a person away by putting a gun to his back and commanding him to walk. And since the requirement of carrying away is distinct from the requirement of force or fraud ..., there is no reason why one cannot 'carry away' a child by persuasion”.145

2.53

Every kidnapping is also a false imprisonment,146 and where D has carried away P by force or fraud (or, in the case of child-kidnap, without the consent of his or her parents), D may be convicted of both offences.147 However, an indictment for kidnapping, without reference to the carrying away of the victim by such force or fraud or absence of consent, will be quashed as not disclosing an offence known to the law.148

Abduction

2.54

It has been seen that no offence will be committed at common law where a boy over 14 or a girl over 16 voluntarily goes away with somebody without the consent of his or her parents or lawful guardian.149 Where he or she does not go voluntarily, there may be both a false imprisonment and a kidnapping. Furthermore, even where such child consents there may be a contempt of court where he or she is taken away in breach of a custody order. To take away a girl under 16 or a boy under 14 without the consent of his or her parents is a kidnapping.150

2.55

Superimposed on these common law rules are a series of statutory offences relating to the abduction of minors and women, most of which are designed to safeguard the right of custody possessed by a parent or guardian, though some protect against the unlawful enticement of a female for sexual


141

[1987] Crim. L. Rev. 333.

142

Wellard, supra, n.122.

143

Raid, supra, n.122.

144

Supra, n.122.

145

Williams, op cit, p.478.

146

Because it includes a deprivation of liberty, though the converse is not true, as where the defendant turns the key locking P in a room.

147

Brown [1985] Crim. L. Rev. 398, where the English C.A. upheld a sentence of 5 years imprisonment concurrent on both counts.

148

The People (A.G.) v Edge, supra, n.135; R. v Hale [1974] 1 All ER 1107.

149

On the civil side, the court is bound to give effect to the wishes of a boy over 14 or a girl over 16 in habeas corpus proceedings: see The State (Meagan) v Meagan [1942] I.R. 180.

150

The People v Edge, supra, n. 135.



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purposes. In consequence, the offences are unaffected by the fact that a court cannot grant a writ of habeas corpus in the case of a boy over 14 or a girl over 16 unless he or she is detained against his or her own will.151 By s.56 of the Offences Against the Person Act, 1861, it is an offence, known as child-stealing, to abduct a child under 14, male or female, by force or fraud:

“Whosoever shall unlawfully, either by force or fraud, lead or take away, or decoy or entice away, or detain, any child under the age of fourteen years, with intent to deprive any parent, guardian, or other person having the lawful care or charge of such child or the possession of such child, or with intent to steal any article upon or about the person of such child, to whomsoever such article may belong, and whosoever shall, with such intent, receive or harbour any such child, knowing the same to have been, by force or fraud, led, taken, decoyed, enticed away, or detained, as in this section before mentioned shall be guilty of a felony ...” and liable to seven years imprisonment.

2.56

The force or fraud may be against either the child or the parent,152 but it must be against one or the other; so, once again, where the child is induced to go voluntarily with the abductor, no fraud being used against either the child or the parent, no offence is committed under the section.153 It has been observed in this respect that such a result is at variance with the underlying purpose of the section, though necessitated by its ill-drafted words.154 It is not necessary to prove that the accused intended to deprive the parent permanently of the possession of the child.155 Moreover, a person may be convicted under this section even though the child is no longer in the person's custody and there is no evidence to show where it is.156

2.57

Section 56 contains a proviso to the effect that “no person who shall have claimed any right to the possession of such child, or shall be the mother or shall have claimed to be the father of an illegitimate child, shall be liable to be prosecuted by virtue hereof on account of the getting possession of such child, or taking such child out of the possession of any person having the lawful charge thereof”. In other words, the section is not applicable in cases where there is a bona fide dispute as to custody or access.157 Somewhat clumsily, the section, having exempted persons with a claim of right from liability for the taking of children, fails to exempt them from liability for falsely imprisoning them; though such an exemption, if the purpose of the proviso is not to be defeated, must be held to follow by implication. The exemption does not extend to persons who snatch a child on the instructions of a parent or who aid and abet a parent in the


151

R. v Prior (1898) 19 L.R. (N.S.W.).

152

Belis (1893) 17 Cox 660.

153

Mears [1975] Crim. L. Rev. 155.

154

Williams, op cit, p.219.

155

R. v Powell (1914) 79 J.P. 272.

156

R. v Johnson (1884) 15 Cox 481. In this case, it was held that evidence of a fraudulent detention may be obtained from false statements as to the deposition of the child.

157

The inclusion of the words “any right to the possession of such child” indicates that the exemption extends to a claim in respect of access.



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taking of a child by force or fraud.158 Nor, clearly, will it extend to persons who knowingly receive or harbour a child after its abduction.159

2.58

Section 55 of the 1861 Act provides that whosoever “shall unlawfully take or cause to be taken any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, shall be guilty of a misdemeanour” and liable to two years imprisonment. In Prince160 the defendant abducted a girl who was under 16 but whom he reasonably thought to be over that age because she looked very much older. The majority of the Court of Crown Cases Reserved held that although the statute required mens rea in respect of taking a girl out of the possession of her lawful guardian against his will, the prohibition was absolute in respect of the girl's age, so that the defendant's mistake as to her age was no defence.161 This principle is one of general application, so that in the absence of an express defence of reasonable mistake as to age, all statutory offences containing references to the victim's age are offences of “half mens rea”.162

2.59

The meaning of the word “unlawfully” in s.55 was also considered in Prince. In the course of his judgment, Denman J. held that, having regard to the legislative history of the provision and the mischief intended to be guarded against,

“it appears to me reasonably clear that the word 'unlawfully', in the true sense in which it was used, is fully satisfied by holding that it is equivalent to the words 'without lawful excuse' using those words as equivalent to 'without such an excuse as being proved would be a complete legal justification for the act, even where all the facts constituting the offence exist'.”163

2.60

The meaning of lawful “excuse”, as opposed to authority, is unclear. It may be that it would cover such cases as where the defendant takes the girl because it is necessary to do so in order to save her from unlawful violence or injury, though necessity in this connection is strictly interpreted.164 In Tegerdine,165 it was argued that good motives, based on reasonable belief, could be an excuse, so that the putative father who took a child out of the possession of the mother because he reasonably believed it was not being well cared for, should have a defence. This argument was rejected by the English Court of Appeal, a decision which accords with the view of Bramwell B. in Prince“that though the statute probably principally aims at seduction for carnal purposes, the taking may be by a female, with a good motive. Nevertheless, though there may


158

Austin [1981] 1 All ER 374; R. v Duguid (1906) 70 J.P. 294.

159

This follows from the plain words of the section.

160

(1875) 2 C.C.R. 154.

161

The judgment of the majority of 10 judges was delivered by Blackburn J., Brett J. dissenting.

162

See Williams, op cit, pp.221–2.

163

2C.C.R. 154 at 178.

164

See Henman, supra, n. 141.

165

[1983] Crim. L. Rev. 163, and commentary by Professor J.C. Smith.



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be cases which are not immoral in one sense, I say that the act forbidden is wrong”.166 So an aunt who takes a girl under sixteen out of the possession of her parents because they are bringing her up to smoke and swear would presumably be guilty of the offence.167

2.61

Although s.55 does not contain a proviso for persons with a claim of right similar to that in s.56, it may be that such a claim, as distinct from a merely philanthropic motive, may constitute a lawful excuse. In Tinkler,168 Cockburn C.J. directed the jury that, though the defendant had no right to the custody of the child, they should acquit if they found he honestly believed that he had such a right. Similarly, lawful excuse will extend to cases where the defendant honestly believes that he or she has the parent's consent, or that the girl is in nobody's possession.169

2.62

But recklessness as to whether the girl is in the possession of her parents or other lawful guardian will be sufficient mens rea.170 The taking may be inferred to be against the will of the parent if it appears that, had the parent been asked, he or she would have refused consent.171 Where, however, the parent permits the daughter to lead an undisciplined lifestyle172 or does not take reasonable care of her,173 this may be evidence of consent to the taking.

2.63

“Unlawfully“ in s.56 has been held to mean the same as in the identical wording in s.55,174 so that the above principles (in addition to the express defence of claim of right) are equally applicable to the offence of child-stealing.

2.64

The decided cases on s.56 also throw light on the meaning of the “taking” in offences of abduction generally. A “taking” is not equivalent to a detention. So, in Alexander,175 D's conviction was quashed where the recorder had said that the offence consisted in keeping the girl secretly and preventing her parents from knowing of her whereabouts. The word “takes”, however, does not imply the use of force, actual or constructive, and it is irrelevant that the girl freely consents to go.176


166

Bramwell B. delivered the minority judgment of 5 judges in Prince, affirming the conviction on the ground that Prince had set out to commit a moral wrong or tort against the girl's father.

167

Per Smith, op cit, p.164. Religious or philanthropic motives were no defence in Booth, 12 Cox C.C. 231 (1872), and such a finding would be unaffected by the constitutional guarantee of religious freedom: see People v See, 258 I 11 152, 101 N.E. 257 (1913).

168

(1859) 1 F. & F. 513.

169

Per Smith, op cit. Clearly, the offence is committed although at the moment of abduction the parent, etc., is not in actual physical possession of the child: see R. v Beble [1979] Qd. R. 278.

170

There is older authority holding that D cannot be convicted unless the jury finds that the defendant knew the girl was in the possession of her father or guardian. Hibbert (1869) 1 C.C.R. 184; Green (1862) 3 F. and F. 274. This has been criticised as too narrow, and it is clear that recklessness as to such possession will now suffice: see Smith and Hogan, Criminal Law (6th ed., 1988), 455 and Williams, op cit, p.220.

171

Handley (1859) 1 F. and F. 648 (per Wightman J.), followed in R. v West (1874) 5 A.J.R. 19.

172

Primelt (1858) 1 F. and F. 50.

173

Frazer (1861) 8 Cox C.C. 446.

174

Austin, [1981] 1 All ER 374 at 377–8, in which Watkins L.J. specifically adopted the dictum of Denman in Prince 2 C.C.R. 154 at 178, which we have already quoted above.

175

(1912) 107 LT. 240.

176

Markletow (1853) Dears C.C. 159.



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2.65

Instead, there must be proof of some inducement, persuasion, blandishment or artifice on the part of the defendant.177 In all cases, however, the question is whether the defendant's conduct has caused the girl to be kept out of the possession of her parents or guardian, so that if it is the girl's intention to stay away in any event, there will be no offence.178

2.66

Even if the girl takes the initiative, the defendant is still guilty if he or she assists her in leaving; as where the defendant, at the girl's suggestion, brought a ladder to the window so that she might elope with him.179 If, however, the defendant takes no active part in the matter, and the girl leaves without any persuasion or assistance, the defendant will not be guilty of “taking” her,180 though the defendant may be guilty of detaining her. The defendant need not be present when the girl leaves, if she does so as the result of the defendant's persuasion.181 A girl does not, however, leave her father's possession merely because she is out of the house for a particular purpose,182 unless it is her intention not to return home.183

2.67

For the purposes of either s.55 or s.56 the “taking” does not require a permanent deprivation, though in the latter offence the prosecution must prove the ulterior intent described in that section. In Timmins,184 the defendant was guilty where he took a girl away for three days and slept with her at night. The father was deprived of the possession of the girl because it “placed her in a situation quite inconsistent with the existence of the relation of father and daughter”185 In Baillie,186 there was a sufficient deprivation where the girl was absent from her father's house only for a few hours since in that time the defendant married her so that the father “never could have the custody of her in the same sense as before her marriage”.187 The test according to Swanwick J. in Jones,188 is whether there has been a substantial interference with the possessory relationship of parent and child, and an attempt to take a ten year old girl for a walk with the intention of indecently assaulting her was held in that case not to amount to an attempt to breach such a relationship.

2.68

That case, with its restrictive insistence on the possessory relationship of


177

Olifier (1866) 10 Cox C.C. 402 (per Bramwell B.); R. v Mackney 9 A.L.R. 9 (Supreme Court of Victoria).

178

The authorities on this point are reviewed by the Western Australia Court of Criminal Appeal in R. v Stanton [1981] 3 A. Crim. L. 294.

179

Robins (1844) 1 Car. & Kir. 456.

180

Jarvis (1903) 20 Cox C.C. 249.

181

Olifier (1866) 10 Cox C.C. 402. However, where she may be said to have already abandoned the possession of her father at the time of such persuasion, there can be no taking: see R. v Blythe 4 B.C.R. 276.

182

Markletow, supra, n. 176.

183

Raycock (1871) 12 Cox C.C. 28. A girl who was in the service of and living in the house of an employer had clearly abandoned the possession of her father; see R. v Miller (1876) 13 Cox C.C. 179.

184

(1860) 8 Cox C.C. 401. In Slocum v The People, 90 III 274 (1878), a few hours sufficed where there had been sexual intercourse.

185

Id, at 404.

186

(1859) 8 Cox C.C. 238.

187

Id, at 239. In R. v Jenkins (1895) 21 V.L.R. 113, the Supreme Court of Victoria upheld a conviction where a short deprivation was accompanied by an element of harassment.

188

[1973] Crim. L. Rev. 621.



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parent and child as being the basis of abduction, was distinguished in Mears,189 a case concerning s.56 of the 1861 Act. There a motorist stopped his car on seeing a little girl aged eight walking on the pavement. He was a stranger to her. He physically lifted her up. She screamed and he put her down and she ran away. It was held that momentary detention against the will of the child was sufficient forcible detention for the purposes of s.56 and that the jury could infer from that conduct an intent to deprive her parents of possession. The decision in Jones was distinguished on the ground that that arose under s.20 of Britain's Sexual Offences Act, 1956, which requires deprivation of possession of the parent but does not involve an act against the will of the child.

2.69

Although, as has been seen, s.55 of the 1861 Act is applicable to any abduction of a girl under 16, it is invoked almost entirely in seduction cases with a sexual element.190 In this respect, the offence is closely related to that created by s.7 of the Criminal Law Amendment Act, 1885, as amended by s.20 of the Criminal Law Amendment Act, 1935, which provides as follows:

“Any person who –

with intent that any unmarried girl under the age of eighteen years should be unlawfully and carnally known by any man, whether such carnal knowledge is intended to be with any particular man, or generally takes or causes to be taken such girl out of the possession and against the will of her father or mother, or any other such person having the lawful care or charge of her”

is guilty of a misdemeanour and liable to two years imprisonment.

2.70

A proviso in the 1885 Act providing for a defence of reasonable belief as to age was removed from the section by the 1935 Act, so that all the above principles will apply to this offence.191

2.71

Moreover, by s.54 of the 1861 Act, it is a felony punishable by fourteen years penal servitude to “force, take away or detain against her will any woman, of any age, with intent to marry or carnally know her, or to cause her to be married or carnally known by any other person”.192 Two further felonies of a similar nature, also punishable by fourteen years penal servitude, are created by s.53 of the Act. The first is committed by a person who, “from motives of lucre”, takes away or detains any woman with an interest in any real or personal estate


189

Mears [1975] Crim. L. Rev. 155 (per Watkin Powell J.). In a Queensland statute, the deprivation of custody was equated with a deprivation of the flexible notion of “safe-keeping”: see R. v Johnson (1957) Q.S.R. 594.

190

See this Commission's Working Paper on The Law Relating to Seduction and the Enticement and Harbouring of a Child (W.P.No.6–1979), pp.22–24, for related sexual offences. For the law relating to child abduction outside the jurisdiction, see this Commission's Report on The Hague Convention on the Civil Aspects of International Child Abduction and some related matters (LRC 12–1985), pp.36–45. And for some related caselaw on the operation of the Convention see Everall, [1990] Fam. Law 169.

191

In the Commission's Report on Child Sexual Abuse, (LRC 32–1990), the introduction of a defence based on reasonable mistake as to age is recommended.

192

On such a charge, it is evidently unnecessary to prove that intercourse actually took place, although the fact is admissible on the issue of intent: see People v De Marcello, 31 N.Y.S. 2d 608 (1941).



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or a presumptive heiress or next-of-kin against her will with intent to marry or carnally know her or to cause her to be married or carnally known by any other person. The second is committed by a person who fraudulently allures, takes away or detains such a woman, being under the age of twenty-one, out of the possession and against the will of her father or mother or any other person having the lawful care or charge of her with the same intent. Where it is proved that the defendant knew that the woman had an interest in property, it appears that there is a presumption that he acted from motives of gain.193

2.72

While the third of these offences is similar in terms to ss.55 and 56 of the 1861 Act and s.7 of the 1885 Act, as amended, in that it is committed against the will of the parent or lawful guardian, there must, in addition, be an element of fraud against the woman herself as well as the ulterior intent. The first two offences differ in that they may be committed only against the will of the woman herself. All three may be committed by simple detention.

2.73

Another offence which may be mentioned in this connection is that created by s.8 of the Criminal Law Amendment Act, 1885, which provides that any person who detains any woman in or upon any premises with intent that she may be unlawfully and carnally known by any man, or in any brothel, shall be liable to two years imprisonment.

Two further felonies of a similar nature, also punishable by fourteen years penal servitude, are created by s.53 of the Act. The first is committed by a person who, “from motives of lucre”, takes away or detains any woman with an interest in any real or personal estate or a presumptive heiress or next-of-kin against her will with intent to marry or carnally know her or to cause her to be married or carnally known by any other person. The second is committed by a person who fraudulently allures, takes away or detains such a woman, being under the age of twenty-one, out of the possession and against the will of her father or mother or any other person having the lawful care or charge of her with the same intent. Where it is proved that the defendant knew that the woman had an interest in property, it appears that there is a presumption that he acted from motives of gain.194


193

R. v Barratt (1840) C. & P. 387. In R. v Taylor (1876) 2 V.L.R. (L) 95, the Supreme Court of Victoria upheld a conviction on a similar charge where the only evidence was that the abductee's parents had been informed that she was entitled to benefit under her grandfather's will, together with the fact that her sister had already received a sum.

194

R. v Barratt (1840) C. & P. 387. In R. v Taylor (1876) 2 V.L.R. (L) 95, the Supreme Court of Victoria upheld a conviction on a similar charge where the only evidence was that the abductee's parents had been informed that she was entitled to benefit under her grandfather's will, together with the fact that her sister had already received a sum.



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PART II: THE LAW IN OTHER JURISDICTIONS

CHAPTER 3: REFORM IN THE UNITED KINGDOM

3.1

The Law Commission of England and Wales has published in recent years a Draft Criminal Code1 (Draft Code) which, with respect to offences against the person, is the culmination of work carried out by the Criminal Law Revision Committee (C.L.R.C.) in its Working Paper2 and subsequent Report3 on Offences Against the Person, and by a “Code Team” of academic lawyers under the auspices of the Commission itself.4 Subsequent to the publication of the Code, the Law Commission published a Consultation Paper,5 and Report6 on Non-Fatal Offences Against the Person, incorporating a draft Bill, intended as the first in a series of bills each of which will be complete in itself and containing proposals for reform of the criminal law suitable for immediate enactment.

The Draft Code

3.2

Offences relating to the varying degrees of assault and to the causing of personal harm are contained in clauses 70–78 of the Draft Code, while ss.79–85 provide for offences of detention and abduction. Although it was decided not to include a general offence of deliberate endangerment, an extended offence of endangering traffic is provided for in clause 86. Explosives offences, driving offences, the setting of traps etc., and cruelty to children are also excluded from the Draft Code, though some of these have previously been the subject of


1

A Criminal Code for England and Wales (Law Com. No. 177), vol. 1, Report and Draft Criminal Code Bill; vol. 2, Commentary on Draft Criminal Code Bill (1989).

2

C.L.R.C. Working Paper on Offences against the Person, H.M.S.O., August 1976.

3

C.L.R.C. Fourteenth Report, Offences against the Person (1980), Cmnd. 7844.

4

Codification of the Criminal Law: A Report to the Law Commission (1985), (Law Com. No. 143).

5

Legislating the Criminal Code, Offences Against the Person and General Principles, Law Com. Consultation Paper No. 122, hereinafter L.C.C. 122.

6

Legislating the Criminal Code, Offences Against the Person and General Principles, Law Com. No. 218 hereinafter L.C. 218.



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examination by the C.L.R.C. and the Code Team. Affray, together with two separate offences of threats and harassment, are provided for in clauses 200–202 as offences against public order.

The Draft Criminal Law Bill

3.3

The Draft Criminal Law Bill, hereinafter “the Bill”, which accompanies the Law Commission's Report on Non-Fatal Offences, was built on the relevant text in the Draft Code. That section of the code was, in turn grounded on the recommendations in the C.L.R.C.'s Report on Offences Against the Person. In addition, the Report was preceded by a Consultation Paper. So the subject has been well ventilated in England in recent years. The Commission will draw both from the Code and the Bill in making its ultimate recommendations. The Bill covers the essential offences of violence, threats, poisoning, torture, abduction, detention, duress, justifiable use of force, fault and intoxication. It does not cover, for example, endangerment or harassment.

Common Assault, And Threats To Injure

3.4

Clause 75 of the Draft Code provides for a statutory offence of assault to replace assault and battery at common law in the following terms:

“A person is guilty of assault if he intentionally or recklessly –


(a)


applies force to or causes an impact on the body of another; or


(b)


causes another to believe that any such force or impact is imminent,

without the consent of the other or, where the act is likely or intended to cause personal harm, with or without his consent”.

It is triable summarily only and punishable by six months imprisonment or a fine not exceeding level 5 on the standard scale7, or both. Assault and battery have already been restricted to summary procedure with the same penalty by virtue of s.39 of the Criminal Justice Act, 1988, thereby repealing that part of s.47 of the 1861 Act not relating to “assault occasioning actual bodily harm”.8 Nevertheless, by virtue of s.40(1), a charge of common assault may still proceed on indictment if it,


(a)


is founded on the same facts or evidence as a count charging an indictable offence; or


7

A standard scale system of penalties payable on summary conviction was introduced by s.37 of the Criminal Justice Act, 1982, the levels (1–5) corresponding to fines of £50, £100, £400, £1,000 and £2,000 at the time of commencement.

8

See Schedule 16.



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(b)


is part of a series of offences of the same or similar character as an indictable offence which is also charged

provided that, in either case, the facts or evidence relating to the offence were disclosed in an examination or deposition taken before a justice in the presence of the person charged. In such a proceeding, the offence will be tried in the same manner as if it were an indictable offence, though the Crown Court may only deal with the accused in respect of it in a manner in which a magistrate's court could have dealt with him.9 Section 46 of the 1861 Act, which by its first proviso prohibits judges from adjudicating on any assault and battery which they think a fit subject for prosecution on indictment, and by its second proviso prohibits them from adjudicating in disputes over title to land, etc10, was also abolished by the 1988 Act11. The C.L.R.C. had previously observed that ousters of jurisdiction under the second proviso were unwarranted and that such challenges were in any event extremely rare.12

3.5

Irish law has already provided in a similar way for the inclusion of a summary offence on an indictment. Section 6 of the Criminal Justice Act, 1951, provides:

“Where a person is sent forward for trial for an indictable offence, the indictment may contain a count for having committed any offence triable summarily (in the section referred to as a summary offence) with which he has been charged and which arises out of the same set of facts and, if found guilty on that count, he may be sentenced to suffer any punishment which could be inflicted on a person summarily convicted of the summary offence”.

3.6

Another procedural reform effected by the 1988 Act and preserved in clause 75 of the Draft Code is that a summary prosecution for assault need no longer be brought “by or on behalf of the party aggrieved”. This restriction, it would appear, had led in practice to few public prosecutions being brought for simple assault, the victim generally being left to institute proceedings himself, a situation which had been criticised as capable of giving rise to injustice.13 The C.L.R.C. considered that it was fairer for victims of assault to be in the same position as other victims of offences against the person and accordingly recommended its abolition:

“In addition to assisting members of the public generally, the repeal of s.42 should lessen the difficulties which at present hinder the institution of proceedings against persons who assault public officials ... Persons assaulted will still be in a position to bring private prosecutions and may be left to do so in trivial cases if no injury has resulted. We would


9

S.40(2).

10

Supra, Chapter 1, page 10.

11

Schedule 16.

12

Fourteenth Report, op cit, para. 165.

13

Id, paras. 163–164.



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expect, however, that with the repeal of these provisions the police will show a greater readiness to undertake prosecutions in suitable cases. We very much hope that this will prove to be so in those cases of assaults on public officials in which the police are called in, as cases of this type, when proved, call for sharp punishment and in our opinion should be the subject of public prosecution”.14

3.7

In Ireland, s.42 was amended by s.11(3) of the Criminal Justice Act, 1951, which provided

“Common assault and battery may be summarily prosecuted on complaint made by or on behalf of the aggrieved person or otherwise.”

A Single Assault Offence

3.8

Clause 75(1) of the Draft Code implements the recommendation of the majority of the C.L.R.C. that there should continue to be a single offence covering assault, whether or not there is a battery, though not the view that the definition of the offence should be left to the common law.15 Paragraph (b) provides for the case where there is no battery and covers the obvious examples where a blow is aimed at the victim or where a pistol which he believes to be loaded is pointed at him. It does not extend to a mere threat to strike in the future because it must cause him to fear that the force or impact is imminent.

3.9

Clause 6 of the Bill is essentially a re-arrangement of clause 75 of the Draft Code. However sub-section (2) was added to cover expressly the common law exception for “trivial touchings”.16 Clause 6 provides:

“ 6.–


(1)


A person is guilty of the offence of assault if–


(a)


he intentionally or recklessly applies force to or causes an impact on the body of another–


(i)


without the consent of the other, or


(ii)


where the act is intended or likely to cause injury, with or without the consent of the other; or


(b)


he intentionally or recklessly, without the consent of the other, causes the other to believe that any such force or impact is imminent.


(2)


No such offence is committed if the force or impact, not being intended or likely to cause injury, is in the circumstances such as is generally acceptable in the ordinary conduct of daily life and the


14

Id, para. 164.

15

Id, paras. 159-160. In this connection, the Code Team pointed out that the C.L.R.C. does not regard codification as one of its functions, Law Com. No. 143, para. 15.47.

16

L.C. 218, paras. 20.1-20.7.



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defendant does not know or believe that it is in fact unacceptable to the other person.”

Threats

3.10

A minority of the C.L.R.C. were in favour of re-defining assault so as to exclude a threatened battery, and of creating offences of threatening to assault and threatening to injure. Assault would then have the same meaning in law as is understood by a layperson, and would reflect the fact that striking a person is different from threatening to strike a person. Moreover, the existing offence of threatening to murder under s.16 of the 1861 Act (and its proposed extension to include all threats to kill or cause serious injury)17 were considered to be good precedents for the creation of offences of threatening to assault or cause injury. In this respect, to confine the law to threats to cause serious injury might raise difficult questions of interpretation: for instance, is a threat to beat a person up a threat to cause injury or serious injury? They also pointed out that the existing law already covered some threats to injure and that there was no evidence that this had resulted in a plethora of prosecutions; a demand for money accompanied by a threat to injure could lead to liability for blackmail, though a demand for social advantage accompanied by the same threat would not be an offence; to threaten a person in public, though not in private, in circumstances likely to occasion a breach of the peace is an offence; a threatening gesture may in appropriate circumstances be a criminal assault; and a threat to do criminal damage to property, even though it be minor, is an offence.18

3.11

Professor Williams, of the minority, criticised the majority proposal on the ground that it would continue much of the inadequacy of the present law in respect of a verbal threat or a conditional threat unaccompanied by a threatening gesture, for example, where a man says to a woman that he will assault her if she does not undress for him. He therefore proposed two offences supplementary to the one proposed by the majority. It should be an offence for a person expressly or impliedly to threaten to use force against another


(a)


if that other does not do something that he is not in law required to do; or


(b)


if he does not refrain from doing something that in law he may do; or


(c)


if he does not make a submission that in law he is not required to make;

where the threat brings about the act, omission or submission. Secondly, it should be an offence for a person expressly or impliedly to threaten to use force against another if the person making the threat ought reasonably to foresee that the other person may sustain bodily injury or hurt as the result of the threat, either directly or in an effort to escape, and if such injury or hurt is in fact


17

Infra, n.19.

18

Op cit, para. 218, note 1.



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suffered.19

3.12

The majority of the C.L.R.C., however, considered that although there was a case for making threats to injure, a criminal offence:

“to do so would inevitably bring into the criminal law a number of trivial acts, for example, the irate householder who threatens to box the ears of the small mischievous boy he finds on his property, or the kind of threats sometimes used in the course of squabbles between neighbours.”20

“Even if the new offence of threatening unlawful force were defined restrictively to cover a gesture threatening immediate force so that the substantive law is not affected, the majority see no virtue in putting into legislative form the common law distinction between assault and battery. There is also no virtue in introducing unnecessary complications into the criminal law. Such a change would have wider repercussions in that the civil law and criminal law on assault would become out of step with each other .... If there were to be an offence of threatening to assault, a distinction would arise between simple assault, attempted assault and threatened assault, and it would then be necessary to have alternative charges. This would lead to an unnecessary proliferation of offences”.21

3.13

Clause 65 of the Draft Code, reproduced unchanged in clause 9 of the Bill, was accordingly limited to threats to kill or cause serious injury:

“A person is guilty of an offence if he makes to another a threat to cause the death of, or serious personal harm to, that other or a third person, intending that other to believe that it will be carried out”

3.14

The offence is triable either way and punishable on conviction on indictment by 10 years imprisonment. The clause, in addition to overcoming the limitation of s.16 of the 1861 Act in applying to any threat however made, preserves the penalty of 10 years imprisonment for threats to cause serious injury because of the gravity of some such threats, for example, a threat to “kneecap” another. As under s.16, there is no restriction that the threat must be made to the proposed victim.22

3.15

As we have seen above, clause 6(1)(a) of the Bill covers cases of the application of force to, or the causing of an impact on, the body of another where no injury is caused. If any injury occurs, there will be an offence under clause 4, considered below.23 The force or impact need not be direct, so that


19

Op cit, para. 218.

20

Id.

21

Op cit, para. 159.

22

See paras. 215–218 of the C.L.R.C.'s Fourteenth Report.

23

This analysis is put forward by the Code Team, Law Com. No. 143, para. 15.47, though such a delimitation of conduct does not necessarily follow from the wording of the sections.



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it will be an assault if the defendant sets a “booby trap” for the victim or causes water to be poured over him or leads him to fall into a pit. Furthermore, the section recognises that some applications of force are, prima facie, assaults even if the victim consents, i.e. “where the act is intended or likely to cause injury”, though this rule24 itself remains subject to well-known exceptions at common law. In this connection the Code Team had proposed an additional subsection to the statutory definition of assault:

“(2) A person does not commit an offence under subs.(1) by an act done to another with his consent if it is a reasonable act to do in the course of a lawful game, sport, entertainment or medical treatment or is otherwise justified or excused by any provision or rule referred to in s.[45].”25

Consent

3.16

Clause 45 of the Draft Code provides for a general defence for any act justified or excused by law. In their recent Report, the Law Commission point out that:

“existing common law defences based or arguably based on the consent of the victim are unaffected by the Criminal Law Bill. Therefore, strictly speaking, it is not necessary to mention the effect of consent in the specific provisions concerning assault, any more than it is mentioned in the definitions of other offences in the Criminal Law Bill. However, the whole essence of an assault is that it is an act done without the consent of the victim. Since non-consensual interference is thus so significant an element in assault it seemed helpful specifically to mention the effect of consent at common law, including the rule that in general one cannot consent to the infliction of injury, in the Bill's definition of assault.”26

3.17

The issues of when apparent consent should amount to real consent and when public policy should require a genuine consent to be disregarded because the act is too serious to go without punishment were considered by the C.L.R.C. to involve questions of medical ethics and public policy upon which it was inappropriate for a committee composed solely of lawyers to decide.27 The defence of lawful correction was similarly considered to raise “controversial questions of great general public interest” which could not be examined by lawyers alone.28 In consequence, the C.L.R.C. recommended that the common law defences of consent and of lawful correction should be continued for the time being in the circumstances in which it was then available.29 In the light of


24

Discussed supra, Chapter 1, page 31 et seq.

25

Law Com, No. 143, clause 77(2), p.206, and para. 15–49 of the Report.

26

L.C. 218, para. 19.1.

27

Fourteenth Report, paras. 289–291.

28

Id, para. 293.

29

Id, paras. 294.3–294.2.



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observations received, and of the decision in Brown,30 the Commission is to publish a further Consultation Paper on the question of a victim's consent to assault in 1994.31

3.18

The Commission remark further that:

“[T]he situation was further complicated when, in DPP v Little,32 the Divisional Court adopted the view of May LJ in Harrow Justices, ex parte Osaseri33 that the second part of section 47 of the 1861 Act had replaced assault34 at common law with a new statutory offence; and that the effect of the subsequent replacement of that provision by section 39 of the Criminal Justice Act 1988 had been to create two separate statutory offences of assault and battery which could not, therefore, be charged in the same count of an indictment.

... Taking the opportunity afforded by the present law reform exercise to look at these matters afresh, we provisionally concluded in L.C.C.P. 122 that assault ought to be statutorily defined, and should constitute a single offence encompassing both 'battery' and 'psychic assault'.

... As to the need for definition, we disagreed with the view of a majority of the C.L.R.C. that the law relating to assault (in this case including battery) was now sufficiently well understood for it not to be necessary to provide a statutory definition of those concepts. A concept forming the substance of a criminal offence of violence ought, as a matter of principle, to be defined in any event. But, in addition, the remaining uncertainties and the undeveloped state of aspects of the current law of assault, including the exemption from that law of what we described as 'trivial touchings', made the restatement and confirmation of the whole concept of assault, including those aspects, highly desirable.”35

Self-Defence

3.19

Following a recommendation of the C.L.R.C.,36 a statutory definition of self-defence, to replace the defence at common law, was provided in clause 44 of the Draft Code and reproduced with some variation in clauses 27 to 30 of the Bill. The Bill reproduces, in essence, the common law as defined by the Court of Appeal in Gladstone Williams37 the essential principle being that the accused should be judged according to the circumstances that he believed to exist. It follows from this that:


30

[1993] 2 WLR 556.

31

L.C. 218, para. 19.4.

32

[1992] 1 Q.B. 645 at 652.

33

[1986] Q.B. 589.

34

Here including battery.

35

L.C. 218, paras. 18.2–18.4, certain footnote references omitted.

36

Fourteenth Report, para. 294.

37

[1984] 78 Cr. App. R. 276.



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“he cannot rely on circumstances unknown to him that would in fact have justified acts on his part that were unreasonable on the facts as he perceived them.38 Although opinion was not unanimous on consultation, we think it right to maintain this long-standing common law rule. Citizens who react unreasonably to circumstances should not be exculpated by the accident of facts of which they were unaware.”39

3.20

Clauses 27 to 29 of the Bill provide:

“27.–


(1)


The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he believes them to be, does not constitute an offence –


(a)


to protect himself or another from injury, assault or detention caused by a criminal act;


(b)


to protect himself or (with the authority of that other) another from trespass to the person;


(c)


to protect his property from appropriation, destruction or damage caused by a criminal act or from trespass or infringement;


(d)


to protect property belonging to another from appropriation, destruction or damage caused by a criminal act or (with the authority of the other) from trespass or infringement; or


(e)


to prevent crime or a breach of the peace.


(2)


The expressions “use of force” and “property” in subsection (1) are defined and extended by sections 29 and 30 respectively.


(3)


For the purposes of this section an act involves a “crime” or is “criminal” although the person committing it, if charged with an offence in respect of it, would be acquitted on the ground that –


(a)


he was under ten years of age, or


(b)


he acted under duress, whether by threats or of circumstances, or


(c)


his act was involuntary, or


(d)


he was in a state of intoxication, or


(e)


he was insane, so as not to be responsible, according to law, for the act.


(4)


The references in subsection (1) to protecting a person or property from anything include protecting him or it from its continuing; and the reference to preventing crime or a breach of the


38

This is the “Dadson” principle: Dadson (1850) 2 Den. 35, 169 E.R. 407; see supra, Chapter 1, page 34.

39

L.C. 218, para. 39.11, footnote reference omitted.



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peace shall be similarly construed.


(5)


For the purposes of this section the question whether the act against which force is used is of a kind mentioned in any of paragraphs (a) to (e) of subsection (1) shall be determined according to the circumstances as the person using the force ('D') believes them to be.

In the following provisions of this section references to unlawful or lawful acts are to acts which are or are not of such a kind.


(6)


Where an act is lawful by reason only of a belief or suspicion which is mistaken, the defence provided by this section applies as in the case of an unlawful act, unless –


(a)


D knows or believes that the force is used against a constable or a person assisting a constable, and


(b)


the constable is acting in the execution of his duty,



in which case the defence applies only if D believes the force to be immediately necessary to prevent injury to himself or another.


(7)


The defence provided by this section does not apply to a person who causes conduct or a state of affairs with a view to using force to resist or terminate it.

But the defence may apply although the occasion for the use of force arises only because he does something he may lawfully do, knowing that such an occasion may arise.

28. –


(1)


The use of force by a person in effecting or assisting in a lawful arrest, if only such as is reasonable in the circumstances as he believes them to be, does not constitute an offence.


(2)


The expression “use of force” in subsection (1) is defined and extended by section 29.


(3)


For the purposes of this section the question whether the arrest is lawful shall be determined according to the circumstances as the person using the force believed them to be.

29.–


(1)


For the purposes of sections 27 and 28 –


(a)


a person uses force in relation to another person or property not only where he applies force to, but also where he causes an impact on, the body of that person or that property;


(b)


a person shall be treated as using force in relation to

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another person if –


(i)


he threatens him with its use, or


(ii)


he detains him without actually using it; and


(c)


a person shall be treated as using force in relation to property if he threatens a person with its use in relation to property.


(2)


Those sections apply in relation to acts immediately preparatory to the use of force as they apply in relation to acts in which force is used.


(3)


A threat of force may be reasonable although the actual use of force would not be.


(4)


The fact that a person had an opportunity to retreat before using force shall be taken into account, in conjunction with other relevant evidence, in determining whether the use of force was reasonable.”

3.21

The Commission summarise as follows:

“In accordance with the basic requirement of the defence of self-defence, ... the essence of all these cases is that they should have as their motive the protection of persons or property, or the prevention of crime or breach of the peace.”40

3.22

The Code Team had proposed to include a definition of a breach of the peace, broadly following the dictum of Watkins L.J. in Howell41, in the following terms:

“A breach of the peace occurs when, by unlawful violence, harm is done to a person, or in his presence to his property, or a person fears on reasonable grounds that unlawful violence likely to cause such harm is imminent”.42

The Law Commission, however, did not think it necessary to include such a definition.43

3.23

Subclause (3) of clause 27 of the Bill is concerned with cases in which, to avoid uncertainty, the behaviour of a person against whom force is used is criminal although, if it were the subject of a criminal charge, that person would be acquitted. Because of the belief defence in subclause (1), resort to this subclause is only necessary where the person using force is aware of the special


40

LC. 218, para. 38.4.

41

Supra, Chapter 1, page 93.

42

Law Com. No. 143, para. 13.39.

43

Law Com. No. 177, Commentary para. 12.27, note 50.



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facts.44 Subclause (6) relates to the position in the criminal law of the wrongly, though reasonably, suspected person who resists arrest or uses force to defend himself or herself against force reasonably used by the arrester. Although the conduct of a private person effecting an arrest may be “unlawful”, neither that person nor the resister is guilty of any offence; yet where the person effecting the arrest is a constable acting in the execution of his or her duty, the suspected person must submit to arrest. This is so even if the person believes the arrest to be unlawful, though no offence is committed by using force believed to be immediately necessary to prevent such harm to oneself or another innocent person. The subclause in no way limits the right to resist an unlawful arrest, whether by a constable or not.45

3.24

The following helpful examples are given in the Draft Code:

“(44)(vi) P, a police officer, reasonably but wrongly believing D to be an armed, dangerous criminal, X, points a revolver at him. D, believing that he is about to be shot, strikes P and causes him serious personal harm. If in the light of D's belief this action is necessary and reasonable to prevent personal harm to D, he commits no offence, even though he knows P is a police officer acting lawfully.

(44)(vii) P, a constable, is arresting Q. D, who believes that P has no grounds for making the arrest, uses force against P to free Q. In fact P has reasonable grounds for suspecting that Q has committed an arrestable offence. D has no defence under this section to a charge of assault or causing personal harm.

(44)(viii) As in example 44(vii), but D also believes that P is about to cause Q personal harm. If the force used by D would have been necessary and reasonable to prevent the apprehended personal harm to a person wrongfully arrested, D commits no offence.”46

Duress

3.25

Clauses 25 and 26 of the Bill provide for statutory defences of duress by threats similar to that available at common law and of duress of circumstances (necessity) in cases where death or serious personal harm to oneself or another is threatened. Murder and attempted murder, whose exclusion from the scope of the defences was affirmed as recently as 1987 by the House of Lords in


44

LC. 218, para. 38.20 et seq.

45

LC. 218, paras. 39.1–39.5.

46

Appendix B, examples (vi), (vii), and (viii).



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Howe47 and were excluded in the Draft Code, are now covered in the Bill.48

Mens Rea

3.26

The mens rea of assault under clause 6 of the Bill is intention or recklessness, these terms being defined in clause 1 of the Bill as follows:

“1. For the purposes of this Part a person acts –


(a)


“intentionally” with respect to a result when –


(i)


it is his purpose to cause it, or


(ii)


although it is not his purpose to cause it, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of causing some other result; and


(b)


“recklessly” with respect to –


(i)


a circumstance, when he is aware of a risk that it exists or will exist, and


(ii)


a result, when he is aware of a risk that it will occur,

and it is unreasonable, having regard to the circumstances known to him, to take that risk;



and related expressions shall be construed accordingly.”

Grievous Bodily Harm, Unlawful Wounding And Actual Bodily Harm

3.27

Clauses 2–4 of the Bill provide for a hierarchy of assaults to replace ss.18, 20, and 47 of the 1861 Act, in the following terms:

“2. –


(1)


A person is guilty of an offence if he intentionally causes serious injury to another.


(2)


An offence under this section is committed notwithstanding that the injury occurs outside England and Wales if the act causing injury is done in England and Wales.

3. –


(1)


A person is guilty of an offence if he recklessly causes serious injury to another.


(2)


An offence under this section is committed


47

[1987] A.C. 417.

48

L.C. 218, para. 31.8.



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notwithstanding that the injury occurs outside England and Wales if the act causing injury is done in England and Wales.

4. A person is guilty of an offence if he intentionally or recklessly causes injury to another.”

3.28

The offence in clause 2 is triable on indictment only and is punishable by life imprisonment. The offences in clauses 3 and 4 are triable either way and punishable on conviction on indictment by imprisonment for 5 years and 3 years respectively. “Personal harm” was defined by the Law Commission in clause 6 of the Code as “harm to body or mind and includes pain and unconsciousness” but no definition of “serious personal harm” is proposed, this being a matter for the court or jury on the facts of the particular case. This latter approach implements the recommendations of the C.L.R.C., though both its members and the Code Team preferred the adoption of “injury” and “serious injury” because they are readily understood words in ordinary use in the English language and would raise few problems of interpretation.49

3.29

Professor Williams would have preferred a fuller definition of injury, to make it clear that, in addition to unconsciousness and mental injury, it covered severe pain or distress resulting from the use of force against the body (as in ill-treatment such as hooding) as well as shock. He would also have preferred “serious injury” to be defined – at one extreme it may mean an injury so serious as to endanger life or to result in permanent loss of a bodily or mental faculty; at the other, it may include a wound that heals rapidly. Moreover, both Professor Williams and Sir Rupert Cross favoured a maximum penalty of one year's imprisonment as an adequate deterrent for the offence provided for in clause 72.50

3.30

In the Bill, the Commission reverts to using the word “injury” instead of harm. “Injury” is defined in clause 18 of the Bill.

“18. In this Part “injury” means –


(a)


physical injury, including pain, unconsciousness, or any other impairment of a person's physical condition, or


(b)


impairment of a person's mental health.”

3.31

The distinction between causing serious personal harm intentionally and causing such harm recklessly is justified, in the words of the C.L.R.C., by the “definite moral and psychological difference between the two offences which it is appropriate for the criminal law to reflect”. The C.L.R.C. was also of the opinion:

“that the merging of the mental element in such cases would cause


49

Law Com. No. 143, op cit, para. 15.43 and C.L.R.C. Fourteenth Report, para. 154.

50

Fourteenth Report, para. 71, notes 1 and 2.



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difficult problems in the matter of penalty. All of us share the view that causing serious injury with intent to cause serious injury should carry a maximum penalty of life imprisonment to deal with those who repeatedly commit this grave offence of violence or who commit it on one occasion in circumstances just short of murder, but there is no justification ... for increasing to life imprisonment the penalty for causing serious injury recklessly, the offence intended to replace s.20, and which now carries a maximum penalty of 5 years”.51

3.32

The retention of an offence similar to s.20 in the Code was justified by its value as an alternative verdict to s.18 and by the fact that its abolition would render the single offence of causing injury too broad. By contrast, the gravity of causing mere personal injury was considered not to overcome the difficulty for police, magistrates and juries in distinguishing between reckless and intentional acts, so these were punishable as one offence under clause 72 of the Code and are now so punishable under clause 4 of the Bill.52 We will examine this reasoning later.

3.33

All three offences are drafted in terms of “causing” injury, which, as has been seen, is a wider notion than “inflicting”, “wounding” or “assaulting” and which does not import a requirement of an assault.53 No problem arises in this respect in connection with offences of intent, as they involve an intention on the part of the defendant to bring about the type of injury alleged.

3.34

With respect to recklessness, the C.L.R.C. recognised that a wide range of conduct would be criminalised by an offence of causing injury recklessly, but considered that, having regard in particular to the judicial expansion of the notion of “inflicting” bodily harm and to the fact that causing serious injury recklessly was morally analogous to manslaughter, the law would not be appreciably widened by its inclusion.54

Causation, Omissions And Duties

3.35

“Cause” was defined for this group of offences of violence in clause 17 of the Draft Code, which provides, inter alia, as follows:

“17.–


(1)


Subject to subs.(2) and (3), a person causes a result which is an element of an offence when –


(a)


he does an act which makes a more than negligible contribution to its occurrence; or


(b)


he omits to do an act which might prevent its


51

Id, para. 152.

52

Id.

53

Supra, Chapter 1, page 59 et seq.

54

Fourteenth Report, para. 153.



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occurrence and which he is under a duty to do according to the law relating to the offence.


(2)


A person does not cause a result where, after he does such an act or makes such an omission, an act or event occurs –


(a)


which is the immediate and sufficient cause of the result;


(b)


which he did not foresee, and


(c)


which could not in the circumstances reasonably have been foreseen.”

3.36

The clause seeks to restate principles of causation at common law,55 and does not attempt to define the scope of the duty to act in respect of omissions, nor to list those offences which are capable of commission by omission, i.e. by failure to act despite a duty to do so. The reluctance of the Law Commission to attempt such delimitation in respect of offences against the person appears to have stemmed from the difficulty of deciding which offences generally are capable of commission by omission.56 The Code Team, however, having regard to the fact that “the common law does not seem to have found it necessary to impose liability for omissions outside the field of offences against the person”,57 was of the view that there was no broader rule to incorporate into the Code than that recommended by the C.L.R.C. in respect of offences against the person:

“Save where liability for an omission is expressly imposed by statute,


(a)


liability for omissions should be restricted to the offences of murder, manslaughter, causing serious injury with intent, unlawful detention, kidnapping, abduction and aggravated abduction; and


(b)


such liability for omissions should arise only where the omission amounts to a breach of duty to act which is recognised at common law. The common law duties should not be codified”.58

3.37

The C.L.R.C., explaining its delimitation in (a), stated:

“It has never been shown to be necessary to include omissions resulting in injury which is not serious even though intentional, within the criminal


55

See Law Com. No. 177, Commentary, paras. 7.14–7.22.

56

Id, para. 7.12.

57

Law Com. No. 143, para. 7.9.

58

Fourteenth Report, Part V, paras. 252–256.



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law. A line has to be drawn somewhere and we are of opinion it should be drawn between serious injury and injury”.59

3.38

In this connection, the Code Team argued that it would be illogical and absurd for the law to afford greater protection to property than it does to the person, damage to property being the most likely area for potential expansion of liability for omission. Moreover, it would be impractical to seek to introduce a distinction between serious damage to property and other damage.60 Unlike the C.L.R.C., the Code Team also proposed a definition of the scope of the duty to act in respect of those offences against the person capable of commission by omission, in the following terms:

“... a person is under a duty to do an act where there is a risk that the death of, or serious injury to, or the detention of, another will occur if that act is not done and that person –


(a)



(i)


is the spouse or a parent or guardian or a child of; or


(ii)


is a member of the same household as; or


(iii)


has undertaken the care of,



the person endangered and the act is one which, in all the circumstances, including his age and other relevant personal characteristics, he could reasonably be expected to do; or


(b)


has a duty to do the act arising from –


(i)


his tenure of a public office; or


(ii)


any enactment; or


(iii)


a contract, whether with the person endangered or not.”61

3.39

The Law Commission, however, viewed these proposals as uncertain and controversial.62 It agrees63 with the policy adopted by the CLRC that it is desirable to avoid imposing criminal liability in trivial and borderline cases, and that liability by omission should therefore be limited to the more serious offences. Under such a regime, for the defendant to commit a crime by omission, he would have, by failing to perform a given duty, to cause an outcome of some seriousness, and to do so with a significantly culpable state of mind. The C.L.R.C.'s list included only homicide, causing serious injury, kidnapping and abduction. The Bill makes express provision for liability by omission for the offences of intentional serious injury, torture, unlawful detention, kidnapping, abduction and aggravated abduction.


59

Id, para. 254.

60

Law Com. No. 143, op cit, para. 7.9.

61

Id, clause 20(2); cf Commentary at paras. 7.11–7.15. The duty arising from joint enterprises is left as a matter of interpretation for the court.

62

Law Com. No. 177, Commentary, paras. 7.10–7.12.

63

L.C. 218, paras. 11.2.



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Clauses 19 and 20 of the Bill provide:

“9.–


(1)


An offence to which this section applies may be committed by a person who, with the result specified for the offence, omits to do an act that he is under a duty to do at common law.


(2)


This section applies to the offences under the following sections –


(a)


section 2 (intentional serious injury),


(b)


section 10 (torture),


(c)


section 11 (unlawful detention),


(d)


section 12 (kidnapping),


(e)


section 14 (abduction of child by parent, etc.), and


(f)


section 16 (aggravated abduction).


(3)


References in those sections to acts shall accordingly be construed as including omissions.

20. The provisions of this Part have effect subject to any enactment or rule of law providing a defence, or providing lawful authority, justification or excuse for an act or omission.”

3.40

Even though the statutory offence of assault under clause 6 of the Bill is itself triable summarily only, a verdict of assault may be returned by a court or by a jury as an alternative to any of the offences provided for in clauses 2, 3, 4 and 8 of the Bill.64

Poisoning

3.41

Clause 5 of the Bill provides as follows:

“5.–


(1)


A person is guilty of an offence if, knowing that the other does not consent to what is done, he intentionally or recklessly administers to or causes to be taken by another a substance which he knows to be capable of interfering substantially with the other's bodily functions.


(2)


For the purposes of this section a substance capable of inducing unconsciousness or sleep is capable of interfering substantially with bodily functions.”

3.42

This offence, which replaces s.24 of the 1861 Act in accordance with the recommendations of the C.L.R.C.,65 is triable either way and punishable on conviction on indictment by three years imprisonment. No new offence replacing


64

Law Com. No. 218, clause 23.

65

Fourteenth Report, paras. 184–191.



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s.23 of the 1861 Act is contained in the Bill, as those more serious cases of endangering life or inflicting serious harm by the administration of poison or other noxious substances may be prosecuted under clauses 2 to 4 of the Code.

3.43

Following the recommendations of the C.L.R.C., the provisions of the Bill do not penalise the person who administers a drug to a person who consents, not intending death or serious injury or foreseeing (at the time of such administration) that either of them might occur. The C.L.R.C. was of the opinion that such conduct, if it is to be criminalised, should be the subject of an offence of administering a controlled drug without lawful excuse under the law relating to the misuse of drugs.66

Assaults On Particular Classes Of Persons, Or In Particular Circumstances

3.44

The C.L.R.C. recommended the repeal of ss.21 and 22 of the 1861 Act without replacement on the grounds that rendering a person insensible or unconscious or incapable of resistance by strangling etc, as well as the administration of any stupefying or overpowering drug, could be adequately prosecuted under those provisions now contained in clauses 2–5 of the Bill:

“Where these types of provision are needed to prevent the use of such means to facilitate serious offences, special provision should be made in relation to the particular offences, as for example in rape; but we do not consider it necessary to apply a special provision with a maximum penalty of life imprisonment to the generality of indictable offences. In that context we think that the 3 year maximum penalty provided by the offences of causing injury or administering any substance capable of interfering substantially with another's bodily functions will be sufficient.”67

3.45

The repeal without replacement of ss.36, 37, 39 and 40 of the 1861 Act was similarly recommended. These offences have become obsolete; in any event they are inconsistent with a modern approach to criminal law because they attach significance to the identity of the victim, as opposed to the gravity of the assault, in circumstances no longer justified by any public interest.68

3.46

On similar grounds, the abolition of the offence of impeding escape from a shipwreck, provided for in s.17 of the 1861 Act, was also recommended. This was in spite of the fact that some of the conduct potentially caught by that provision, such as impeding a rescuer in his endeavour to save a person from shipwreck, would no longer be criminal.69

3.47

By contrast, clauses 7 and 8 of the Bill preserve the offences of


66

Id, para. 190, thereby effectively overruling Cato (1976) 62 Cr. App. R. 41.

67

Id, paras. 207–208.

68

Id, para. 180.

69

Id, paras. 205–206.



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assaulting a constable in the execution of his duty and assault with intent to resist arrest. The clauses provide as follows:

“7.–


(1)


A person is guilty of an offence if he assaults –


(a)


a constable acting in the execution of his duty, or


(b)


anyone assisting a constable so acting,



knowing that, or being reckless whether, the person assaulted or the person being assisted is a constable.


(2)


It is immaterial whether the person committing the assault is aware that the constable is or may be acting in the execution of his duty.


(3)


In this section “assault” means the offence under section 6.

8.–


(1)


A person is guilty of an offence if he assaults another intending to resist, prevent or terminate the lawful arrest of himself or a third person.


(2)


For the purposes of this section the question whether the arrest is lawful shall be determined according to the circumstances as the defendant believes them to be.


(3)


In this section “assault” means the offence under section 6.”

3.48

The Law Commission justified the retention of these offences as follows:

“... Consultation strongly supported our provisional conclusion, in line with the earlier recommendations of the C.L.R.C.,70 that the special protection that the law seeks to extend to constables justifies the retention of the separate offence of assaulting a constable, on the assumption that the defendant knows that, or is reckless as to whether, the person assaulted is in fact a constable. We here repeat the considerations that lead us to maintain that view in this Report, as reflected in clause 7 of the Criminal Law Bill.

... We emphasise that clause 7 is only concerned with assault: that is, the application of force without injury being caused. The more serious offences (now provided by clauses 2–4 of the Criminal Law Bill) are likely to be charged in any case where the defendant causes any significant injury to a police officer. However, even though the offence


70

Fourteenth Report, paras. 167–176.



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of assaulting a constable may seem to overlap with the general offence of assault, there is force in the view that to abolish the special offence might be misinterpreted as the removal of one of the present protections of police officers. There is also some merit in retaining a separate offence as a measure of 'labelling', to identify a category of conduct that the law regards as particularly serious.

... Following consultation, we remain of the view that the offence should, like assault itself, be summary only, and subject to a maximum of six months' imprisonment. That outcome may appear illogical, in that an apparently more serious species of assault attracts no higher penalty than assault generally. However, we do not see justification for any offence that alleges assault, but not injury, being tried on indictment. We are fortified in that view by the recent reduction of the present crimes of assault and battery to the status of summary offences by section 39 of the Criminal Justice Act 1988.”

As for the offence of assault to resist arrest, the Commission:

“agreed with the C.L.R.C.71 that the main reason for retaining this aggravated offence, triable either way, is that the conduct at which it is aimed could be particularly serious from a public point of view, for instance if the assault were committed to prevent a police officer arresting a person suspected of murder; even though there would be available in such a case the offence of assault on a constable and, if any injury were caused, the offences now under clauses 2–4 of the Criminal Law Bill.

... We were, however, more concerned than were the C.L.R.C. about the arguments against retaining the offence. That Committee had itself stressed that the offence should not be used where a summary offence, such as simple assault or assault on a constable, is more appropriate; and we were minded to think that in any other cases the offences now in clauses 2 to 4 of the Criminal Law Bill are likely in practice to be available. We also doubted whether it would be right to apply specially severe sanctions either where the arrest was unlawful, or where it would have been so had the facts been as the defendant believed them to be; yet at the same time it could be argued that to include the latter defence might be to undermine the simple effect in support of law enforcement, that appeared to be the main justification for the offence.”72

The Commission decided to retain the offence.

3.49

A further particular class of assault, retained and provided for in clause 78 of the Draft Code, is that of assault with intent to rob the person assaulted or


71

Id, paras. 181–182.

72

L.C. 218, paras. 22.4–22.8.



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a third person. It is triable on indictment only and punishable by life imprisonment. This offence, currently provided for in English law by s.8 of the Theft Act, 1968, was reproduced as an offence against the person rather than as an offence against property under the Draft Code.73 The Law Commission in its Consultation Paper expressed doubt as to whether there is ever any need to charge with the offence as the circumstances will be captured by a charge of robbery or attempted robbery. For that reason and for reasons of tidiness, the offence was excluded from the Bill.74

Children And Servants

3.50

Any act which endangers the life or which permanently injures the health of an apprentice or servant would be covered by the proposed offences of causing injury or serious injury, and there is no longer any need for the continuation of an offence of neglect in respect of such persons. The C.L.R.C., therefore, recommended that consideration should be given, in consultation with the responsible government departments, to the repeal without replacement of s.26 of the 1861 Act and of s.6 of the Conspiracy and Protection of Property Act, 1875.75

3.51

Similarly, because s.27 of the 1861 Act had been superseded by the offence of cruelty to children in s.1(1) of the Children and Young Persons Act, 1933, the repeal of this provision without replacement was also recommended.76 At the same time, it was suggested that consideration be given to conferring a wider power of arrest for the offence of cruelty than is contained in s.13 of the 1933 Act. This power is the same as that relating to the identical offence of cruelty under Irish law, contained in s.19 of the Children Act, 1908.77 In this respect, while some members of the C.L.R.C. were against an extension of the power of arrest on the grounds that it would lead to inappropriate prosecutions in family cases, others were of the view that police needed a power to intervene immediately to prevent a child from continually being ill-treated by brutal or negligent parents.78

3.52

The C.L.R.C. was also of the view that, having regard to the proposed offences of causing injury and serious injury and to the existing offence of cruelty, the common law offences arising from breach of duties of care within the family and the common law offence of failing to provide for one's children could also be abolished.79

3.53

Although the English Law Commission has recognised that cruelty to children is plainly an important offence against the person which properly


73

The Commentary, at para. 14.46, justifies this on the grounds that assault with intent to rob is “essentially an offence against the person” Law Com. No. 177, Commentary.

74

L.C.C.P. 122, paras. 9.31–9.33, L.C. 218, para. 22.12.

75

Fourteenth Report, para. 209.

76

Id, para. 201.

77

Supra, Chapter 1, page 82.

78

Fourteenth Report, para. 201.

79

Id, para. 203.



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belongs in a comprehensive criminal code, it has not been included in the Draft Code on the grounds that it stands alongside many other offences in the 1933 Act which are not offences against the person.80

Offences Of Endangerment

3.54

Clause 86 of the Draft Code provides for an offence of endangering traffic in the following terms:


(1)


A person is guilty of an offence if he –


(a)


intentionally places any dangerous obstruction upon a railway, road, waterway or aircraft runway, or interferes with any machinery, signal, equipment or other device for the direction, control or regulation of traffic thereon, or interferes with any conveyance intended to be used thereon; and


(b)


is or ought to be aware that injury to the person or damage to property may be caused thereby.


(2)


In this section –


(a)


“conveyance” means any conveyance constructed or adapted for the carriage of a person or persons or of goods by land, water or air;


(b)


“waterway” means any route upon water regularly used by any conveyance”.

3.55

The offence, which is triable either way and punishable on conviction on indictment by 7 years imprisonment, is committed where a person acts intentionally and is negligent as to causing personal injury or damage to property. It replaces, and extends to road, air and waterways traffic, ss.32 and 33 of the 1861 Act, which were said by the C.L.R.C. to be too narrowly defined in requiring an intent to endanger the safety of persons using the railway.81 It is triable either way because it is clearly an offence which can be either very serious or comparatively trivial.82

3.56

The C.L.R.C., at the apparent request of the British Railways Board and the British Transport Police, also recommended that the less serious offence of endangering the safety of any railway passenger under s.34 of the 1861 Act should be left unrepealed with a view to its eventual incorporation into specific


80

Law Com. No. 177, Commentary, para. 14.60.

81

Fourteenth Report, para. 195.

82

Id, para. 196.



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railways legislation.83 The Law Commission agreed that while s.34 would not be needed if clause 86 of the Draft Code were enacted, it belonged, if anywhere, in railways legislation.84

3.57

Clause 86 of the Draft Code is restricted to specific acts like those contained in ss.32 and 33 of the 1861 Act, so that it is clearly not a general endangerment provision which would apply, for example, to cases of reckless driving. In this connection, the Law Commission has recognised that the provision has been criticised as being too limited and particular for a code:

“It is argued that the Code should include a general offence of deliberate endangerment. We acknowledge the force of this argument but the creation of a general offence would be a substantial measure of law reform, requiring discussion and consultation which we have not been able to undertake.”85

3.58

Nevertheless, the C.L.R.C. did consider two further offences of endangerment under the 1861 Act, namely wanton and furious driving under s.35 and the setting of traps under s.31. With regard to the first, a special provision for carriages and vehicles causing injury was inconsistent and unnecessary. The proposed offences of intentionally and recklessly causing serious injury and injury would cover these circumstances. The special circumstance of driving was a matter relevant to sentencing, not to the definition of a substantive offence.86 The repeal, without replacement, of s.35 was accordingly recommended, even though the ambit of English road traffic law would be restricted to a limited extent, as there would be gap between the offences of careless driving and causing death recklessly (manslaughter).

3.59

The C.L.R.C. notes the fact that the section is not confined to offences on the public roadway, the single aspect that makes it a “useful” offence to prosecutors. To fill this gap, the C.L.R.C. suggested that consideration be given to replacing the offence of reckless driving (a subjective test) by a driving offence involving complete disregard for the life or safety of other persons (an objective test).87

3.60

As regards s.31, the C.L.R.C. recognised the need for a modernised offence prohibiting such devices as traps and spring guns:

“In our opinion the restriction imposed upon the scope of the section by Munks88 is unjustifiable, and such devices should be prohibited. But a householder must be allowed to take reasonable steps to deter unauthorised persons from entering his property, and what types of


83

Id, para. 197.

84

Op cit, para. 14.59(d).

85

Id, para. 14.58.

86

Fourteenth Report, para. 144.

87

Id, paras. 145–148. Irish law is not the same as English law in this respect, as we have noted in Chapter 1.

88

[1964] 1 Q.B. 304, discussed supra, Chapter 1, page 71.



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device should be permitted and what types should not must raise questions of public policy. Most of us consider that a committee of lawyers alone are not a suitable body to advise on these questions on which wide consultation with the various interests involved will clearly be necessary. We are of opinion therefore that further consideration should be given to these matters by the appropriate government departments.”89

Affray, Threats And Harassment

3.61

Clause 200 of the Draft Code provides as follows:


(1)


A person is guilty of affray if –


(a)


he uses or threatens unlawful violence towards another; and


(b)


his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety; and


(c)


he intends to use or threaten violence or is reckless whether his conduct is violent or threatens violence.


(2)


Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subs.(1).


(3)


For the purposes of this section a threat cannot be made by the use of words alone.


(4)


No person of reasonable firmness need actually be, or be likely to be, present at the scene.


(5)


Affray may be committed in private as well as in public places.


(6)


A constable may arrest without warrant anyone he reasonably suspects is committing affray.”

3.62

The clause essentially restates the new statutory offence of affray under s.3 of the English Public Order Act, 1986,90 and is substantially wider than that originally recommended by the Law Commission in its Report on Offences Relating to Public Order.90 Although the offence in this form is clearly closer


89

Fourteenth Report, para. 213.

90

Supra, Chapter 1, page 87 et seq.

91

Law Com. No. 123, Offences Relating to Public Order (Cmnd. 208541, 1983), paras. 100–101.



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to being an offence against the person, it is nevertheless included in the chapter of the Draft Code concerned with offences against public peace and safety. Clause 200 may be prosecuted either way and is punishable on conviction on indictment by three years imprisonment. A minor departure from the 1986 Act, consequent upon the adoption in the Code of a uniform definition of recklessness in subjective terms, is that recklessness, as opposed to awareness, is required in respect of whether the defendant's conduct is violent or threatens violence. This means that in addition to being aware of the risk it must be unreasonable to take it.92

3.63

Two further minor offences, again essentially restating offences created by the 1986 Act93 and again more analogous to offences against the person than against public order, are contained in clauses 201 and 202 of the Draft Code. Clause 201(1) provides as follows:


(1)


A person is guilty of an offence if –


(a)


he uses towards another threatening, abusive or insulting words or behaviour; or


(b)


he distributes or displays to another any writing, sign or other visible representation which is threatening, abusive or insulting,



intending to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked”.

3.64

It is triable summarily only and punishable by 6 months imprisonment and/or a fine not exceeding level 5 on the standard scale.

3.65

Clause 202(1) provides:

“(1) A person is guilty of an offence if –


(a)


he uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or


(b)


he displays any writing, sign of other visible representation which is threatening, abusive or insulting,94


92

Law Com. No. 177, Commentary, para. 18.4.

93

Ss.4 and 5 respectively.

94

The Commission recommends in its Report on the Crime of Libel, that the common law offence of defamatory libel be retained but that any prosecution for the offence should require the fiat of the D.P.P. with a view to confining prosecutions to serious cases only.



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within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby, and he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is reckless whether it is threatening, abusive or insulting or (as the case may be) he intends his behaviour to be or is reckless whether it is disorderly”.

3.66

This offence is also triable by summary procedure only and punishable by a fine not exceeding level 3 on the standard scale.

3.67

Specific and, in the case of clause 202, somewhat unusual powers of arrest exist in respect of both offences.95 They may be committed both in public and in private, except where both defendant and victim are in a dwelling96 or where the defendant is in a dwelling and has no reason to believe that his behaviour will be heard or seen outside that or any other dwelling (clause 202).97 A person is also not guilty of an offence under clause 202 if he has no reason to believe that there is any person within hearing or sight who is likely to be caused harassment, alarm or distress,98 or if his conduct is reasonable,99 though the burden of proof in respect of all three defences is on the defendant.100 As regards clause 201, subclause (2) provides for an additional element of fault in that the defendant must intend his behaviour, etc, to be threatening, abusive or insulting, or be reckless as to whether it is so. An alternative verdict under clause 201 may be returned in the case of a person charged with affray under clause 200.101

3.68

Apart from the difference in severity of punishment, some important distinctions between the two offences may be noted. In clause 202, the conduct in question need not be directed towards another person as is required by clause 201. Nor is the offence under clause 202 expressed to be committed by the distribution of offensive matter, as opposed to its display. If, however, the conduct is itself disorderly, a person may be convicted of the less serious offence.102 Yet the principal difference between the two is that the offence under clause 202 is not designed to prevent violence; its aim is to prevent harassment, alarm or distress.103

3.69

Whereas the essence of previous English law, contained in s.5 of the Public Order Act, 1936, was that the threat was required to be likely to cause a


95

Clauses 201(4) and 202(5). The power of arrest without warrant under the latter subclause is subject to a requirement that the constable warn the offender to stop engaging in conduct which the constable reasonably suspects to be offensive, and that the offender engage in further such conduct immediately or shortly after the warning.

96

Clause 201(3).

97

Clause 202(3)(b).

98

Clause 202(3)(a).

99

Clause 202(3)(c).

100

Clause 202(4).

101

Schedule 16, p. 137.

102

In Alexander v Smith 1984 S.L.T. 176, it was held by the High Court of Justiciary that selling a racist magazine constituted disorderly conduct.

103

See Smith, Offences against Public Order (Sweet & Maxwell, 1987), para. 7.03.



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breach of the peace, it is enough for the purposes of clause 201 of the Draft Code that the defendant has used threatening, abusive or insulting language or conduct such that it is likely that immediate violence will be provoked, or that it causes a person to believe that there will be immediate violence used against him or a third person.104 Although “it is the very essence of a threat that it should be made for the purpose of intimidating or overcoming the will of the person to whom it is addressed”,105 the threat need not therefore be one offering physical violence.106

3.70

The terms “abusive” and “insulting” are semantically very similar107 and can be used more or less interchangeably as “ordinary words” within the province of the tribunal of fact.108 According to Williams, “language or conduct is not said to be insulting unless it is intended to show contempt or disesteem, or is understood by the hearer or observer to show this attitude”.109 In practice, however, even though he does not intend to insult, or is not seeking to abuse, a person may be guilty of the offence if he is aware that his conduct is or might be insulting.110

3.71

Where the person threatened, abused or insulted is a reasonable, law-abiding member of the public, or a police officer, no offence will normally be committed under the second limb of the clause because he or she is unlikely to be provoked to use unlawful violence by the speaker's comments. But if the prosecution can show an intention to provoke unlawful violence, as by causing a police officer to over-react, there will be an offence under the first limb.111

3.72

As regards the requirement in clause 202 that the victim be likely to suffer harassment, alarm or distress, this is clearly a much lower threshold than the violence or possibility of violence that is the touchstone of clause 201. In this respect, it appears that mere annoyance or irritation arising, for example, from inconvenience are less strong emotions than “distress”, which connotes some degree of perturbation and emotional upset. Equally, “harassment” connotes an element of persistence which would not be satisfied by a single act; and although alarm is not expressed to relate to any particular source of concern, it cannot exist in a vacuum – a person who is alarmed experiences a sudden fear or apprehension of a particular danger.112

3.73

It has been pointed out that, wittingly or otherwise, the introduction of


104

S.5 of the 1936 Act was repealed by s.9(2)(b) of the Public Order Act, 1986. It too was couched in terms of “threatening, abusive or insulting words or behaviour”, so that some of the case-law on the previous section is still pertinent.

105

Wood v Bowron (1866) L.R. 2 Q.B. 21 at 30 (per Lush J.).

106

As to the scope of threatening words or behaviour within the meaning of these sections, see generally, Smith, op cit, para. 6.07.

107

See Dickey [1971] Crim. L. Rev. 265 at 268.

108

Brutus v Cozens [1973] A.C. 854 (House of Lords).

109

Op cit, p.64.

110

Smith, op cit, para. 6.09. See also the judgment of McCullough J. in Parkin v Norman [1983] Q.B. 92; R v Williams [1968] Crim. L.R. 563; R v Arrowsmith [1975] Q.B. 678.

111

Smith, op cit, 6.12.

112

Id, 7.07.



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the above two offences into English law by the Public Order Act, 1986, effectively pre-empted the question of whether there should be a new statutory assault by words alone.113 Clearly, the offences are capable of commission by words alone, and would cover some of the conduct which the CLRC had previously described as “the type of minor threats which no reasonable person would wish to be subject to criminal sanctions.”114 Moreover, in apparent recognition of recent legislative intent, they are incorporated into the Draft Code without discussion.115 Apart from the threatening offence under clause 9, the Bill does not deal with threats, affray and harassment in the content of non-fatal offences against the person.

Explosives, Firearms And Offensive Weapons

3.74

Neither the C.L.R.C. nor the English Law Commission has yet undertaken a general review of explosives legislation, including ss.28, 29, 30, 64, and 65 of the 1861 Act and the Explosives Substances Act, 1883. It is intended, however, to include these offences in a comprehensive criminal code following such review.116

Torture

3.75

The United Kingdom has ratified the United Nations Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment and the European Convention for the prevention of Torture and Inhuman or Degrading Treatment or Punishment.117 Although other multilateral treaties such as the International Covenant on Civil and Political Rights118 (Art. 7) and the European Convention on Human Rights119 (Art. 3) expressly implement the absolute prohibition of torture under public international law,120 the U.N. Convention differs in requiring specific domestic implementation by the creation of a new criminal offence of torture as well as the making of consequent


113

Id, 6.07.

114

Fourteenth Report, para. 159.

115

The English Law Commission in its Commentary, Law Com. No. 177, para. 18.4 simply states that clauses 198–202 of the Draft Code reproduce the offences contained in ss.1–5 of the 1986 Act.

116

Fourteenth Report, para. 202, note 1; Law Com. No. 177, Commentary, paras. 14.59 (b) and 18.11(b).

117

Adopted by the General Assembly of the U.N. on 10 December 1984. See generally, Burgers & Danelius, The UN Convention against Torture, (Martinus Nijhoff, Dordrecht/Boston/London, 1988); Chanet, “La Convention des Nations Unies contre la torture et autres traitements cruels, inhumains ou degradants,” (1984) 30 Annuaire Francais du Droit International 625–636. The U.K. has recently made a declaration under Article 21 of the Convention recognising the competence of the Human Rights Committee to receive and consider communications from a State Party claiming that another State Party is not fulfilling its obligations under the Convention.

118

International Covenant on Civil and Political Rights, and Optional Protocol, 19 December 1966, (1967) 6 I.L.M. 368, entered into force in January 1976.

119

Duffy, Article 8 of the European Convention on Human Rights (1983) 32 I.C.L.Q. 316; also Doswald -Beck, (1978) 25 Netherlands Internat. L. Rev. 24.

120

Donnelly, The Emerging International Regime against Torture (1986) 33 Netherlands Internat. L. Rev. 1–23; Sohn, Torture as a Violation of the Law of Nations (1981) 11 Georgia J. of Internat. & Compar. L. 307.



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arrangements for extradition.121

3.76

In order to enable the U.K. to ratify this Convention, an offence of torture was introduced by s.134 of the Criminal Justice Act, 1988.122 This has, in turn, been reproduced firstly in clause 74 of the Draft Criminal Code and subsequently in clause 10 of the Bill which provides as follows:


(1)


A person commits the offence of torture if –


(a)


in the performance or purported performance of his official duties as a public official, or


(b)


at the instigation or with the consent or acquiescence of a public official who is performing or purporting to perform his official duties,



he intentionally inflicts severe pain or suffering on another.


(2)


An offence under this section is committed whatever the nationality of the persons concerned and whether the conduct occurs in the United Kingdom or elsewhere.


(3)


It is immaterial whether the pain or suffering is physical or mental.


(4)


It is a defence in respect of any conduct for the defendant to prove that he had lawful authority, justification or excuse for the conduct.


(5)


For this purpose “lawful authority, justification or excuse” means –


(a)


in relation to pain or suffering inflicted in the United Kingdom, lawful authority, justification or excuse under the law of the part of the United Kingdom where it was inflicted;


(b)


in relation to pain or suffering inflicted outside the United Kingdom by a United Kingdom official acting under the law of the United Kingdom, or any part of the United Kingdom, lawful authority, justification or


121

A Draft Optional Protocol submitted by Costa Rica at the time of the adoption of the Convention aimed to establish a preventive mechanism at the international level similar to that now provided for by the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, of 26 November 1987, which entered into force on 1 February 1989, (1989) 10 H.R.L.J. 192. See Cassese, A New Approach to Human Rights – the 1987 Convention for the Prevention of Torture (1989) 83 A.J.I.L. 128–153; Nowak (1988) 15 Europaische Grundrechte-Zeitschrift, 537; Vigny (1987) 43 Annuaire Suisse du Droit Internat. 62.

122

1988 Current Law Statutes Annotated (Sweet & Maxwell), C.33, pp. 134–138 (entry into force on 29 September 1988). The offence is also in force in Northern Ireland, see (1988) 8 B.N.I.L. 16.



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excuse under that law;


(c)


in any other case, lawful authority, justification or excuse under the law of the place where the pain or suffering was inflicted.


(6)


In this section “public official” includes any person acting in an official capacity, and “United Kingdom official” shall be construed accordingly.”

3.77

The offence is triable on indictment only, and only by or with the consent of the Attorney General,123 and is punishable by life imprisonment.

Under the Convention, torture is only defined as acts committed by a public official or someone acting in an official capacity, or acting with the consent or acquiescence of an official or such person. Moreover, the mental pain or suffering must be inflicted intentionally. Not all forms of torture will amount to criminal offences. In addition, psychological torture can take many forms such as being required to listen to someone else's physical suffering, deliberate disorientation and sensory deprivation. For this reason, and because of the risk that the word “inflict” might be narrowly construed to exclude liability for omissions, subclause (3) makes express reference to liability for omission so as to satisfy the U.K.'s international obligations in the matter.124

3.78

Subclause (2) gives U.K. courts extra-territorial jurisdiction over offences of torture anywhere in the world. Although under Article 5 of the U.N. Convention a country is only required to establish such jurisdiction over torture by its nationals, committed on its ships or aircraft and (if it chooses) where its nationals are victims,125 the offence under clause 74 of the Draft Code is considerably wider. Jurisdiction is conferred over all torturers everywhere, but if the alleged torturer is not a U.K. official, any possible defence is to be considered according to the law of the country where the events occurred. Since, according to Amnesty International,126 torture is said to be practised in approximately half of the states of the world, this jurisdiction is theoretically a large one. Nevertheless, choice of law considerations, the necessity for successful extradition and the requirement of the Attorney General's consent for prosecution will, in practice, operate to make such prosecutions exceptional.

3.79

Sections 136–138 of the 1988 Act provide for the requisite extradition arrangements in respect of torture.127


123

S.35 of the 1988 Act.

124

1988 Current Law Statutes Annotated, supra, n.122.

125

See texts cited, supra, n. 121.

126

Torture in the Eighties, Amnesty International Publications, London, 1984.

127

1988 Current Law Statutes Annotated, supra, n.122.



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Detention And Abduction

3.80

In its Report, the C.L.R.C. recommended the creation of two offences of detention and two of abduction to replace the common law crimes of kidnapping and false imprisonment and the statutory offences of child stealing and abduction of an unmarried girl under the age of sixteen.128 The Child Abduction Act, 1984, in substance, enacted the first of the two proposed abduction offences and created a second offence, going beyond the recommendations of the C.L.R.C., which may be committed by a person exempted from liability under the first abduction offence who takes or sends a child under the age of sixteen out of the U.K. without the “appropriate consent”.129 Clauses 11–16 of the Criminal Law Bill implement the C.L.R.C's. recommendations, save where they have been overtaken by later legislation, which again is reproduced in substance in those clauses.

3.81

Clause 17 provides for the interpretation of “takes”, “detains”, “sends” and acting “without the consent” of another for the purposes of this group of offences:

17. –


(1)


For the purposes of sections 11 to 16 (offences of detention or abduction) –


(a)


a person shall be regarded as taking another if he causes the other to accompany him or a third person or causes him to be taken;


(b)


a person shall be regarded as detaining another if he causes the other to remain where he is; and


(c)


a person shall be regarded as sending another if he causes the other to be sent.


(2)


For the purposes of those sections a person shall be treated as acting without the consent of another if he obtains the other's consent –


(a)


by force or threat of force, or


(b)


by deception causing the other to believe that he is under legal compulsion to consent.

3.82

In its Working Paper, the C.L.R.C. had suggested that “carrying off” should form part of the definition of the offences of detention and kidnapping. However, as “carrying off” is a form of detention and because it was desired that neither offence should be limited to such an action, this suggestion was subsequently abandoned.


128

Fourteenth Report, para. 251. In its Report to the English Law Commission, Law Comm. No. 143, the Code Team did not consider this group of offences.

129

1984, c37. Cooper, The Child Abduction Act 1984 (1985) J. of Crim. L. 69.



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Unlawful Detention

3.83

Clause 11 replaces the common law offence of false imprisonment by one of unlawful detention, in the following terms:


11.


A person is guilty of the offence of unlawful detention if he intentionally or recklessly takes or detains another without his consent.

The offence is triable either way and punishable on conviction on indictment by 5 years imprisonment. Clause 11 follows the recommendations of the C.L.R.C., who explained that:

“[T]he essence of unlawful detention should be the intentional or reckless detention, without lawful excuse, of a person without his consent and that it should cover (as the present law does) detaining a person, causing him to remain where he is, or causing him to accompany another person. Acquiescence obtained by duress should, of course, be no defence. We also propose that the offence should be committed where the victim acquiesces because he believes that he is under legal compulsion. An example would be where a person causes another to accompany him by falsely pretending that he is a police officer. We do not propose that other cases of deception should be included. The young man who persuades a girl to accompany him to a quiet spot on some untrue pretext, when in fact he is intending to make advances to her, should not be guilty of unlawful detention. ... In practice it will seldom be necessary to prosecute a parent, who has not got lawful control, for the unlawful detention of his child because such conduct will usually amount to a disobedience of a court order if there is in existence an order of a court exercising family jurisdiction. ... Nevertheless cases can occur when rapid preventive action in the interests of a child is required, as for example when a mentally disturbed father who has shown a propensity to violence, forcibly takes a young child out of its mother's care. Although the family courts can act quickly, the police, who will have power to arrest for the criminal offence, will be able to act even more quickly.”130

Kidnapping

3.84

The offence of kidnapping is defined in clause 12 of the Bill as an aggravated form of unlawful detention, punishable on indictment only by life imprisonment:

“12. A person is guilty of the offence of kidnapping if he takes or detains another without that other's consent, intending to hold him to ransom or as a hostage, to send him out of the United Kingdom,


130

Fourteenth Report, para. 235, note 3.



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or to commit an arrestable offence.”

3.85

The definition again closely follows the recommendations of the C.L.R.C., who abandoned a previous suggestion in its Working Paper that kidnapping should also cover cases in which a person uses drugs or the threat of injury to detain a person. The question was also considered at that time as to whether a person who detains another, with the intention of subjecting the other to prolonged imprisonment, should fall within the offence of kidnapping. This too was rejected, on the grounds of difficulties of interpretation, as well as because virtually all such cases would involve the use of force, which in itself, in the view of the majority of the C.L.R.C., should transform the detention into a kidnapping. On consideration, however, it was decided that all of these circumstances were matters relevant to sentence after conviction for unlawful detention only; they should not form part of the definition of the more serious offence of kidnapping.131

3.86

Some criticisms received by the C.L.R.C. following the publication of its Working paper, suggested that a proviso should be included to the effect that a child under a certain age is not capable of giving a valid consent so as to negative unlawful detention or kidnapping. This would make the separate offences of abduction and aggravated abduction unnecessary. In reply, it was stated that

“... there is an important distinction between, on the one hand, the offences of unlawful detention and kidnapping, and on the other, the offences of abduction and aggravated abduction: the first two offences protect the liberty of the person, the second two the rights of parents. We are therefore recommending that certain specific defences should be created relating only to the abduction offences and not to unlawful detention and kidnapping.”132

Abduction

3.87

Accordingly, the essence of the abduction offences contained in the Bill is that they are committed without the consent of the child's parent or guardian. Clause 14 reproduces s.1 of the Child Abduction Act, 1984, and applies, in the main, to the so-called “tug of love” cases where a parent, disgruntled at being deprived of custody by a court, abducts the child and flees to another country.133 Clause 15, corresponding to s.2 of the 1984 Act, creates a further offence of abduction where the wrongdoer is not a parent or guardian or a person in whose favour a custody order is in force. Such a person


131

Fourteenth Report, para. 236.

132

Id, para. 229. In its Working Paper, para. 153, the C.L.R.C. had proposed a third abduction offence, namely abduction of a child under 16 with intent to commit a sexual offence, punishable with a maximum penalty of two years imprisonment. Consideration of this proposal was deferred in its 14th Report as more naturally falling within its reference on sexual offences.

133

See Cooper, op cit, for an analysis of this offence. The Commission has already proposed the introduction of a similar offence in Irish Law, cf Report on the Hague Convention on the Civil Aspects of International Child Abduction and Some Related Matters (LRC 2–1985), p.44.



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“(1) ... is guilty of an offence if, without lawful authority or reasonable excuse, he takes or detains a child under the age of sixteen –


(a)


so as to remove him from the lawful control of any person having lawful control of the child; or


(b)


so as to keep him out of the lawful control of any person entitled to lawful control of the child.”

3.88

Unlike the offence under clause 14, there is no need for the removal of the child from the jurisdiction. Triable either way and punishable on conviction on indictment by seven years imprisonment, the offence is wider than s.56 of the 1861 Act in not requiring an intent to deprive a parent of possession. This accords with the proposals of the C.L.R.C., who wished to make clear that the offence of abduction should not require a “substantial interference” with the possessory relationship of parent and child, such as had been held to be the case in Jones, and also to ensure that interference with the responsibilities of persons having lawful control of the child for the time being should suffice. Thus, removal from a boarding school or child-minder's home is catered for.

3.89

Whereas the C.L.R.C. envisaged that the relevant age of the child victim of all abduction offences would, as under s.56 of the 1861 Act, be 14, “since parental control after that age may be difficult or non-existent”, the 1984 Act and the Bill fix the age at 16. The pre-existing law is thus somewhat widened and this is taken a stage further by the extension in clause 17 of “taking” and “detaining” to include causing the child to be detained or inducing the child to remain with him or any other person. Although no express reference to mens rea is made, it follows from the recommendation of the C.L.R.C. that intention or recklessness as to either of the results in subclause (1)(a) or (b) will suffice.

Aggravated Abduction

3.90

The offence of aggravated abduction is provided for by clause 16 of the Draft Code. It is triable on indictment only and punishable on conviction on indictment by life imprisonment. It consists of the actus reus of abduction under subs.1 of clause 15 together with one of the intents required for kidnapping under Clause 12, i.e. with intent to hold the child to ransom or as a hostage, or to commit an arrestable offence, or, except in the case of a parent or guardian or a person in whose favour a custody order is in force, to send the child out of the United Kingdom. The offence of aggravated abduction, following the proposals of the C.L.R.C., is designed to cover cases in which the child is “kidnapped” but the facts do not amount to kidnapping as such because the child is a willing participant.

Child Abduction In Scotland

3.91

Unlike other common law jurisdictions, in Scotland the common law offences of abduction and plagium have survived and continued to govern the law

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relating to child abduction. Abduction is committed by any person who carries off or confines any person forcibly against his will without lawful authority. Although not restricted by reference to the age of the victim or the purpose for which the abduction is carried out, it is an essential feature of the offence that the will of the victim is overcome, a requirement which has naturally given rise to difficulty in cases concerning the inducement of children. Plagium is the common law crime of child stealing which may be committed against children below the age of puberty. Such children are for this purpose treated as the property of their parents and therefore capable of being stolen. In consequence, plagium is “an archaic and somewhat anomalous crime” of aggravated theft.

3.92

In a recent review of the law relating to child abduction in Scotland, the Scottish Law Commission recommended that whereas the common law crime of abduction should not be abolished or specially modified by statute in relation to children, it should be supplemented by a single statutory offence of taking or detaining a child which would replace the common law offence of plagium. The proposed offence is similar in terms to clause 84 of the Draft Code, save that a person acting with lawful authority is expressed to include a person with a right of access to the child acting within the scope of that right. The adoption of this single offence was favoured over a previous suggestion that additional offences be created of removing a child by violence and of abduction so as to cause harm or danger to the child, or with the intention of causing him distress.

Hostage-taking

3.93

Clause 13 of the Bill reproduces the offence of hostage-taking created by s.1 of the Taking of Hostages Act, 1982, which itself was introduced for the purposes of implementing the International Convention against the Taking of Hostages:

“13.–(1) A person is guilty of the offence of hostage-taking if he takes or detains another and, in order to compel a state, international governmental organisation or person to do or abstain from doing any act, threatens to kill or injure him or to continue to detain him.”

For the purposes of this offence, which is triable on indictment only and only by or with the consent of the Attorney General, both the nationality of the offender and the country where the offence is committed are immaterial.

3.94

The extradition arrangements in respect of hostage-taking are set out in the 1982 Act. Any offence under the Act or an attempt to commit such an offence may, in the absence of an extradition agreement between the United Kingdom and any other State Party to the Convention, be made extraditable by Order in Council. For this purpose the offence, wherever committed, is treated as having been committed within the jurisdiction of the other State Party.134


134

Ss.3–5.



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Detention And Abduction By Omission

3.95

The C.L.R.C. recommended that all offences of detention and abduction should be expressed to be capable of commission by omission.135 The offences in clauses 11, 12, 14 and 16 of the Bill are included in clause 19 as offences that can be committed by omission.136

Alternative Verdicts

3.96

Clause 23 of the Bill provide for alternative verdicts as follows:

“23.–


(1)


For the purposes of the application of section 6(3) of the Criminal Law Act 1967 (alternative verdicts) to the trial of a person on indictment for any offence under this Part an allegation in the indictment of knowledge or intention includes an allegation of recklessness.


(2)


If on the trial on indictment of a person charged with an offence under –


(a)


section 2 (intentional serious injury),


(b)


section 3 (reckless serious injury),


(c)


section 4 (intentional or reckless injury), or


(d)


section 8 (assault to resist arrest),



the jury find him not guilty of the charge, they may (without prejudice to section 6(3) of the Criminal Law Act 1967) find him guilty of an offence under section 6 (assault).


(3)


If on the summary trial of a person charged with an offence under section 3 (reckless serious injury) the magistrates' court find him not guilty of that offence, they may find him guilty of an offence under section 4 (intentional or reckless injury) or section 6 (assault).


(4)


If on the summary trial of a person charged with an offence under –


(a)


section 4 (intentional or reckless injury),


(b)


section 7 (assault on a constable), or


(c)


section 8 (assault to resist arrest),



the magistrates' court find him not guilty of that offence, they may find him guilty of an offence under section 6 (assault).”


135

Fourteenth Report, para. 256.

136

Supra, para. 3.36.



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CHAPTER 4: CODIFICATION IN CANADA

4.1

The existing Canadian Criminal Code was first enacted in 1892,1 and though amended many times since, with a major revision in 1955,2 it remains much the same in structure, style and content as it was then.3 The Law Reform Commission of Canada was of the view that the Code, in addition to containing many gaps and obsolete provisions, over-extends the proper scope of the criminal law, is poorly organised and hard to understand, and fails to address many current problems.4 It may be noted in this connection that, in respect of non-fatal offences against the person, the substantive provisions of the Code are similar to those currently in force in Ireland.

4.2

In 1987, the Canadian Law Reform Commission published a new draft Criminal Code,5 being the culmination of fifteen years work on the simplification and rationalisation of the substantive criminal law. The proposed Code contains a useful classification of offences against the person, in the following terms:


(a)


Crimes against personal safety and liberty6


1

Criminal Code, S.C. 1892, C. 29.

2

Criminal Code, S.C. 1953–54, C. 29.

3

Criminal Code, R.S.C 1970, C. 34. The Law Reform Commission of Canada has been abolished and its functions taken over by the Federal Department of Justice.

4

Report on Recodifying Criminal Law (Report 31), Ottawa: L.R.C.C., 1987, at p.1. This Report is a revised and enlarged edition of Report 30 (1986).

5

Id, Introduction pp. 1–5.

6

S.7 of the Canadian Charter of Rights and Freedoms provides, in terms similar to s.7(a) of the Canadian Bill of Rights and to the Fifth and Fourteenth Amendments to the U.S. Constitution, that: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. It is established that each of these rights “is a distinct though related concept to be construed as such by the courts in a substantive, not merely procedural, sense”: see Reference re. s.94(2) of the Motor Vehicle Act (1985) 24. D.L.R. (4th) 536 at 546–7. See generally, Hogg, Canada's New Charter of Rights (1984) 32 Am. J. Comp. L. 283; Alexander, The Canadian Charter of Rights and Freedoms in the Supreme Court of Canada (1989) 105 L.Q.R. 561.



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(i)


crimes against life (unlawful homicide)


(ii)


crimes against bodily integrity


(iii)


crimes against psychological integrity


(iv)


crimes against personal liberty


(v)


crimes causing danger; and


(b)


Crimes against personal security and privacy, which comprise unlawful surveillance and criminal intrusion.

4.3

The proposed Code does not ascribe sentences to these or any other offences, this task having been left to the Canadian Sentencing Commission.7

Crimes Against Bodily Integrity

4.4

Two basic offences of assault and of causing bodily harm are defined in ss.244 to 245.3 of the present Criminal Code. Assault may be committed in four different ways; by direct application of force8 (common law battery); by threatening to apply force9 (common law assault); by attempting to apply force10 (a surplusage since an attempt to commit a crime is itself a crime); and by armed begging11 (an act remote from both the actual application of force and the threat of immediate violence). The offence of causing bodily harm, though nowhere defined, includes all assaults other than those of a trifling nature.12 Other provisions in the Code provide for assaults on peace officers13 and officiating clergymen14, for masters causing bodily harm to servants and apprentices15, and for causing bodily harm with intent16, an aggravated form of the offence defined in s.245.3.

4.5

Other related offences include those of prize fighting17, pointing a firearm18, causing a disturbance in a public place by a variety of acts including fighting, molesting and discharging firearms19, the throwing of offensive volatile


7

The general principles of sentencing reform in Canada are set out in “Sentencing Reform, A Canadian Approach”, Report of the Canadian Sentencing Commission (1987).

8

Para. 244(1)(a). “Force” covers any touching, however slight and brief, without the exertion of strength or power: see R v Burden (1981) 64 C.C.C. (2d) 68.

9

Para. 244(1)(b).

10

Id.

11

Para. 244(1)(c).

12

Subs.245(2) of the Code formerly provided for two offences, unlawfully causing bodily harm and assault occasioning bodily harm. By reason of a 1982 amendment (S.C. 1980–81–82–83, c. 125, s.19), assault causing bodily harm, punishable by five years imprisonment, is now governed by para. 245(1)(1)(6), whereas the offence of unlawfully causing bodily harm is governed by s.245.3. Like assault with a weapon, it is punishable by ten years imprisonment. The penalty for aggravated assault, defined in s.245.2 as one which wounds, maims, disfigures or endangers the life of the victim, is fourteen years.

13

Para. 246(1)(a). Although a person who assaults another whom he knows to be an officer does so at his peril, the prosecution having no need to prove that the accused knew he was so acting, the offence requires the officer to be executing his duty at the time of the assault. This duty extends to taking reasonable steps to save the life of a person attempting suicide: see R. v Dietrich (1978) 39 C.C.C. (2d) 361 at 364.

14

S.172.

15

S.201.

16

S.228. This section is similar in terms to s.18 of the Offences Against the Person Act, 1861, supra, Chapter 1, page 63, though an ulterior intent to endanger the life of any person is included instead of an intent to disable.

17

S.81.

18

S.84.

19

S.171.



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substances20, administering a noxious thing21, and setting traps likely to cause bodily harm.22 Other specific offences contained in the Code include the communication of a venereal disease23, the uttering of threats by letter, telegram, telephone, etc24, and threats, etc, made in order to compel another to do or abstain from doing anything that he has a lawful right to do or abstain from doing.25

4.6

The exact nature of the mens rea for assault is less than certain in Canada26. There is also considerable lack of clarity as to the exact scope of the actus reus of the basic offences, in particular as to whether they may be committed by omission or by words alone and as to the meaning of “bodily harm”.27 This confusion, according to the Commission, is exacerbated by a conceptual flaw in the structure of the offences outlined above:

“More serious, however, is the way the law [has] erected serious assaults on the back of technical assaults. To a large extent many of the specific aggravated offences of violence are viewed as differing from the basic offences only in degree. Ordinary assault is applying technical force to a non-consenting victim, and aggravated assault is applying more force, that is, more than technical force, to a non-consenting victim. And force that is more than technical is force that causes bodily harm.

This view obscures at least three things. It blurs the fact that the difference between simple and aggravated assault is not so much a difference in degree as a difference in kind – touching that causes harm involves an additional dimension quite absent from mere touching. It confuses the two different values at stake: the law against simple assault protects one's right to bodily inviolability and to security against having liberties taken with one's person, whereas the law against assaults causing bodily harm protects one's right to bodily integrity and to security against bodily injury – the former looks to a kind of right to privacy and the latter to a right to be left whole. Finally it muddies the waters as concerns consent, because true consent is always a defence to simple


20

S.174.

21

S.229, requiring an intent to endanger the life of, or to cause bodily harm to, the victim, or an intent to aggrieve or annoy the victim.

22

S.231.

23

S.253.

24

The essence of this offence, provided for in s.331 under the chapter on offences against property, is the means of expressing the threat: see R. v Basaraba (1976) 24 C.C.C. (2d) 296 at 297. In consequence, when uttered through the required means, it is not necessary that the recipient appreciated that he was being threatened: R. v Carons (1978) 42 C.C.C. (2d) 19 at 21, or that the accused intended to carry out the threat: R. v Johnson (1913) 9 Cr. App. 57, 49. Nor need the intended victim be the direct recipient of the threat: R. v Thompson (1981) 59 C.C.C. (2d) 514 at 516. The offence has therefore been critically described as one which “consists in the simple expression of a thought” (per Beats J.) in R. v Nabis (1975) 18 C.C.C. (2d) 144 at 154.

25

S.381. This offence extends also to intimidation, watching, besetting and following for such purpose, and although usually prosecuted in relation to industrial disputes, it is not limited to that context: R. v Basaraba 24 C.C.C. (2d) at 298. The offence of threatening extends to a veiled or indirect threat without physical violence: R. v Bonhomme (1947) 88 C.C.C. 100 at 102–103.

26

Assault was traditionally viewed as a crime of intent, a view apparently accepted in R v George [1960] S.C.R. 871 at 877 and 891 and Leafy v The Queen [1977] 33 C.C.C. (2d) 473 at 476, 481 and 495. Since Venna [1976] Q.B. 421, the textbooks are in conflict, see L.R.C.C. W.P.38, Assault (1984) pp.6–7.

27

L.R.C.C. W.P.38, Assault (1984), pp.7–16 and 23–24.



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assault but not necessarily always to assault causing bodily harm. Simple assault is essentially an act in invitum and assault causing bodily harm is not. However, offences which are not in invitum cannot really be built on the backs of those which are.

Most noteworthy of all, however, is the failure of English and hence Canadian law to recognise the existence of anything between simple assaults and those involving bodily harm. All that the law has provided for is simple assault (in the sense of battery) and a variety of more serious assaults causing harm. And, as we saw, the latter are seen simply as aggravated forms of the former.

Yet if we step back from the law, we cannot help seeing that in this context there are not two but three possibilities. At one end of the spectrum is touching, which only becomes objectionable when the victim objects or where it is clear that anybody in his shoes would object. At the other end is harming, which produces some permanent or long-lasting impairment of the victim's body or its functions and which may be objectionable whether or not the actual victim objects. There is a value set on physical wholeness and a general objection made to its impairment. Midway between touching and harming comes hurting (in the sense of inflicting pain without causing injury or damage) which is objectionable but only prima facie because there is no objection where the actual victim consents.

In our view, the failure to recognise a place for hurting has contributed to confusion. It has led the courts to stretch the meaning of 'bodily harm' to cover 'hurt ... that interferes with comfort' so long as it is more than transient or trifling – presumably it would cover what is done to patients sometimes by dentists and doctors. It has helped to misconceive the role of consent, because it may be argued that consent can legitimise hurt but cannot in general legitimise harm. It also obscures the existence of another value – the value set on the right to be free from pain and suffering, as opposed to the right to be free from having liberties taken with oneself and the right to be secure from harm and injury. Finally, it prevents a truly principled approach to the issues of medical treatment and physical sports.”28

4.7

The new Code accordingly restricts this area of the law to crimes of actual violence, relocates the crime of threatening immediate violence to the Chapter on “crimes against psychological integrity”29 and reduces the rest of the law to two offences, in the following terms:

“7. –(1) Assault by Touching or Hurting. Everyone commits a crime who [offensively] touches or hurts another person without that


28

Id, pp.25–26.

29

See our discussion later in this Chapter, page 172 et seq.



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other's consent.

7.-(2) Assault by Harming. Everyone commits a crime who harms another person


(a)


purposely;


(b)


recklessly; or


(c)


through negligence.”

4.8

Whereas the first offence is committed “purposely” only (a term which replaces “intent” in the new Code in order to overcome problems of specific and general intent)30, assault by harming may be committed recklessly or through criminal negligence. Recklessness in the Code is given a subjective meaning, in that the defendant must be conscious that consequences will probably result from his deliberate conduct or that the circumstances of such conduct probably obtain.31 By contrast, criminal negligence, which is confined in the Code to negligently causing death or harm to another, or risk of death or harm to another, constitutes “a marked departure from the ordinary standard of reasonable care” in engaging in conduct, or taking a risk (conscious or otherwise) that consequences will result or that circumstances obtain.32 Where the risk is taken consciously, the difference between negligence and recklessness depends on the degree of unreasonableness, and this calls for a value judgment in each particular case.

4.9

Unlike assault by touching or hurting, assault by harming may also be committed by omission.33 As regards assault by touching, a minority of the Commission would add the word “offensively” before “touches” to rule out trivial touching not ordinarily considered objectionable and to avoid resort to the fiction of implied consent as a means of excluding liability for non-hostile social contact. However, this approach was considered by the majority to be problematic. If the term is used subjectively, then it merely repeats the requirement that the touching be against the victim's will. If it is used objectively, then the law would be saying that, even in the absence of a legally recognised excuse or justification, it is not necessarily a crime deliberately to touch another against his will – which would be to abandon the notions of privacy and bodily inviolability which the offence is designed to protect.34


30

Clause 2(4)(b) provides:

(i)

A person acts purposely as to conduct if he means to engage in such conduct, and, in the case of an omission, if he also knows the circumstances giving rise to the duty to act or is reckless as to their existence.

(ii)

A person acts purposely as to a consequence if he acts in order to effect:

(A)

that consequence; or

(B)

another consequence which he knows involves that consequence.

31

Also defined in clause 2(4)(b). An alternative formulation is also given: “A person is reckless as to consequences or circumstances if, in acting as he does, he consciously takes a risk, which in the circumstances known to him is highly unreasonable to take, that such consequences may result or that such circumstances may obtain”.

32

Id.

33

L.R.C.C. W.P.38, Assault (1984), p.27. See infra, for liability for omissions under the proposed Code in general.

34

L.R.C.C. Report 31, p.62.



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4.10

The fundamental nature of these rights also overcame any objections to the retention of an offence similar to technical battery at common law. The problem of trivial wrongdoing was by no means peculiar to the offence of assault, and could be adequately dealt with by the defence of mistake of fact.35

4.11

The Commission considered that a scheme of assault which distinguished hurting, defined as “inflicting physical pain”, from harming, which means “to impair the body or its functions permanently or temporarily”,36 would have the particular advantage of allowing consent to “operate in law, just as in common sense, as a defence to touching or hurting, but not to harming”:37

“Clearly we recognise that consent can licence infliction of pain, for example, the pain inflicted by a beautician, a tattooist, an arm-wrestler, a boxer, a scientific experimenter, and so forth. And while we don't usually consent to pain, we do so often enough to make it impossible to exclude consent as a defence to hurting. Where problems do arise, they concern pain inflicted for sexual gratification. If the defendant pays the victim to let the defendant flagellate her, should the victim's consent be a defence? If X agrees to let Y, her immediate superior, cane her for some wrongdoing rather than report her to a higher authority with risk of dismissal, should X's consent be a defence for Y? If A pays B to inflict pain on him, should it make any difference to B's criminality whether A wants to conduct a scientific experiment, wants to be punished for his sins or is just indulging his masochism? Our own tentative view is this: since hurting causes no permanent or lasting damage, since it would be difficult for courts to inquire into motives and reasons in such cases and since it is hard to articulate a principle which would criminalise, say, the beating with his own consent of TE Lawrence but legitimise, say, the scourging of Henry II at Canterbury, the law should operate on the principle that consent is always a defence to hurting.”38

4.12

Such consent must be given by a competent person and not obtained by force, threat or deceit.39

4.13

The Commission had initially considered that whereas a defence of informed consent to harm arising from medical treatment should be expressly provided for, no express rule was necessary in respect of sporting injuries – in lawful sports, participants should, by simple inference from the circumstances, be


35

Id. Clause 3(2) provides that no one is liable for a crime committed through lack of knowledge which is due to mistake or ignorance as to the relevant circumstances. This defence is subject to a requirement that the defendant's lack of knowledge, in crimes of recklessness and negligence, is not due to his own recklessness or negligence; nor will it operate where on the facts as he believed them he would have committed an included crime or a different crime to that charged.

36

These definitions are contained in clause 1(2).

37

L.R.C.C. W.P.38, p.27.

38

Id, p.29.

39

Clause 1(2) defines consent in these terms. Duress is provided for in s.3(8) of the Code, in the following terms: “No-one is liable for committing a crime in reasonable response to threats of immediate serious harm to himself or another person unless he himself purposely causes the death of, or seriously harms, another person”.



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taken to consent, so far as the rules specify, to being touched, being hurt or being accidentally touched, hurt or harmed:

“What may require an express rule however is the sport of boxing. This sport, unlike all other lawful sports, allows intentional infliction of harm and injury – in no way can a knock-out blow be reckoned as not inflicting harm. Preservation of the lawful status of boxing then would require a special ad hoc provision based on no underlying principle but solely catering to expediency.”40

Such an exception, it was felt, would also have the virtue of highlighting the social anomaly of boxing.41

4.14

Clause 7(3) of the new Code, however, takes a different approach to the issue in providing that the intentional or reckless infliction of harm will not constitute an offence where such harm arises from: