Criminal - Non Fatal Offences Against The Person Act 1997

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Non Fatal Offences Against the Person Act 1997 Section 2 - Assault

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s. 2(1): an offence to intentionally or recklessly, and without lawful excuse or consent,

(a) directly/indirectly apply force to or cause impact on the body of another, or

(b) cause another to reasonably believe that he/she is likely to be subjected to such force or impact.

Thus, assault includes both old common law offences: battery and assault.

s. 2(2): “Force” = application of energy in solid, liquid or gaseous form, including heat, light, electric current, noise.

Generally even the slightest application of force will qualify a transaction as assault.

“Directly”, e.g., hitting with a hammer.

“Indirectly”: DPP v. K (1990): a schoolboy poured acid into a toilet hand-dryer, left the toilets, and the next boy was injured.

A necessary element: reasonable belief of immediate use of force – thus threatening telephone calls do not constitute assault; however, s. 5(1) makes it an offence to threaten somebody, by any means, with killing them or causing them serious injury.

s. 18 of the 1997 Act sets out when force is lawful.

s. 2(3): Doctrine of Implied Consent – negatives liability for all of the ordinary transactions of daily life. Thus, it is for the Prsc to prove brd that no consent was expressly or implicitly given.

Penalty: summary = max 6 months and/or £1,500 fine.

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DPP v. K (1990)

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A schoolboy poured acid into a toilet hand-dryer, left the toilets, and the next boy was injured.

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Non Fatal Offences Against the Person Act 1997 Section 2 (3) - Doctrine of Implied Consent

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s. 2(3): Doctrine of Implied Consent – negatives liability for all of the ordinary transactions of daily life. Thus, it is for the Prsc to prove brd that no consent was expressly or implicitly given.

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Non Fatal Offences Against the Person Act 1997 Section 3 (1) - Assault Causing Harm

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s. 3(1): an offence to assault and cause harm.

s. 1: “harm” = harm to body or mind, including pain and unconsciousness.

All elements of assault (including absence of consent) must be shown, plus harm.

Leading case (UK): R v. Brown (1987): HL majority ratio = consent not a defence in the context of sado-masochistic activities; society entitled to protect itself against a cult of violence. ECHR ratio = State entitled to regulate the level of permitted violence; questioned whether the facts really came within “private life” (but they did!)

R v. Wilson (1996): conviction quashed by CA where a man branded his wife’s buttock with a hot knife, with her consent; the court distinguished Brown, but the distinction is questionable – perhaps the courts are more open to the consent defence

Assault causing harm is a strict liability offence per Dolny, constitutionality hasn't been challenged.

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Non Fatal Offences Against the Person Act 1997 Section 1 - Harm

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s. 1: “harm” = harm to body or mind, including pain and unconsciousness.

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R v. Brown (1987)

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HL majority ratio = consent not a defence in the context of sado-masochistic activities; society entitled to protect itself against a cult of violence.

ECHR ratio = State entitled to regulate the level of permitted violence; questioned whether the facts really came within “private life” (but they did!)

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R v. Wilson (1996)

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Conviction quashed by CA where a man branded his wife’s buttock with a hot knife, with her consent; the court distinguished Brown, but the distinction is questionable – perhaps the courts are more open to the consent defence.

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Non Fatal Offences Against the Person Act 1997 Section 4 - Causing Serious Harm

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s. 4: an offence to cause serious harm.

No assault necessary, thus poisoning etc. are allowed for.

Because no assault is necessary, no consent is necessary to achieve a conviction under s. 4.

Psychological harm not included here, unlike assault causing harm.

Mens rea is required.

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Non Fatal Offences Against the Person Act 1997 Section 6 - Syringe Attacks

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s. 6 makes it an offence to commit a syringe attack.

Broadly defined by s. 6 – threatening or actually piercing skin with contaminated or non-contaminated instrument etc.

Section 6 (2) makes it an offence to spray. pour, or put onto another blood or any fluid or substance resembling blood or threatening to do so. In respect of both offences, there must be proof either that the accused intended to cause the other to believe that he may become infected with disease or that there was a likelihood of causing the other to so believe. Neither of these offences requires proof that the victim was in fact caused to believe that he may become infected with disease.

Section 6( 3) provides another statutory illustra tion of the doctrine of transferred malice. It criminalises a person who, in committing or attempting to commit an offence contrary to s 6 ( 1) or ( 2). either (i) injures a 3rd party with a syringe by piercing his skin or. (ii) sprays, pours or puts onto a third party blood or any fluid or substance resembling blood. Unlike the offences governed by s 6 (1) and ( ] ) , this offence does require proof tha t the victim was. in fact caused to believe that he may become infected with disease.

The more serio us syringe a ttacks are governed by s 6 ( 5) of the 1997 Ac t. These are a ttacks
with COI1/(/11linated sy ringes. They a ttract a maximum punishment o f life imprisonment. 15 S.
6(5J( a ) - (c ) o f the 1997 Act enact:
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( a ) A person who intentionally injures ano ther by piercing th e skin of that o ther with a
contaminated syringe shall be guilty of an offence.
( h J A person who intentio nally sprays. po urs or puts onto another contaminated blood
shall be guilty of an o!Tence.
( c ) A person who in committing or attempting to commit an offence under puragrap!t
( a ) or ( h ) :
( i ) injures a third person with a contaminated syringe by piercing his ... skin. or
( ii) sprays, pours or puts onto a third person contaminated blood,
shall be guilty of an offence.
To secure a conviction for any of the s 6 ( 5) offences. it does not have to be proved that the
victim was in fact infected with a life-threatening or po tentially life -threatening disease.

Penalty: summary = max £1,500/12 months; indictment max 10 years/unlimited fine.

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Non Fatal Offences Against the Person Act 1997 Section 15 - False Imprisonment

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s. 15(1): an offence to intentionally or recklessly (a) take or detain, (b) cause to be taken or detained, (c) otherwise restrict the liberty of a person, without his consent.

s. 15(2): somebody forced to consent or deceived into consent shall not actually have consented.

s. 15(3): indictment = life imprisonment; summary = 12 months/£1,500/both.

How severe must the restriction of libery be? Old common law rule: proof needed of “a total restraint of the liberty of the person”. So, surrounding a person on three sides would not constitute the offence.

Kane v. Governor of Mountjoy Prison (1988): SC held that extremely close surveillance is not false imprisonment, where it is justified.

NB: No minimum temporal requirement (can last just a moment); no requirement of awareness of imprisonment on the part of the victim.

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Kane v. Governor of Mountjoy Prison (1988)

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SC held that extremely close surveillance is not false imprisonment, where it is justified.

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Minister for Justice. Equality and Law Reform -v- Dolny (2008)

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The High Court (Peart J) held that for the purposes of s.3(1), "assault" is not to be defined by reference to s.2 (1) of the 1997 Act. It had been submitted "that the references [in s.2( I) of the I 997 Act] to ·without lawful excuse' and 'intentionally or recklessly' as well as 'without the consent of the person' must be present also for the purpose of the s 3 offence of assault causing harm, since they are necessary ingredients of the 'assault' referred to in s.2
thereof. . . . [In particular, it was submitted] that lack of consent is a necessary proof for an offence under s 3 of the 1997 Act. just as it is for an offence under s 2 thereof.'

The High Court rejected these submissions. saying. ''[t]he offences created respectively by s 2 and s 3 of the 1997 Act are distinct and different offences."

It identified the following requirements for an assault under s (1) of the 1997 Act:

(i) "that the person assaulted did not consent to being assaulted".
(ii) "that the assault be inflicted without lawful excuse", and
(iii) "that the assault be inflicted ... intentionally or recklessly."

It held that proof of these matters is not required to secure a conviction for assault causing harm:

... the separate and distinct offence of assault causing harm in s 3. contains no such
requirements. It is a separate offence and it is not the case that s 2 is intended to define
rhe concept of 'assault' for all purposes of the Act . ...

S. 3 provides tor a freestanding offence of ·assault causing harm'. as opposed to a simple assa ult. In order to be guilty of this offence, a person must have carried out an assault and must have caused 'harm' as defined in s1 of the 1997 Act.

In such an offence it is not port of the offemce that it occurs without the consent of the victim. That is clear from the plain meaning of the words used in the section in s 3.

The word 'assault' is not used as a term of art by reference to the provisions of s 2. or by reference to any statutory definition of that word.

The Concise Oxford Dictionary definition of ·assault' is a violent physical or verbal attack'.

That is the meaning to be given to the word 'assault' lor the purpose of the s 3 offence . .. .

The requirement that the assault be without the consent of the victim or that there he any mental element, is distinctly absent from the express provisions of the s 3 offence (assault causing harm).

Denham J. for the Supreme Court, "affirmed th[is] approach··

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Fagan v Metropolitan Police Commissioner (1968)

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Fagan drove his car onto a police officer's foot and left it there deliberately. It was held that because he stayed in the car. there was a deliberate act.

However, the better view may be that he omitted to remove the car and so committed assault by omission.

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Apprehension of the Application of Force

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Where the apprehension of the application of force is concerned. this is assessed on an objective basis. This has two bases.

This means that the person is subject to the apprehension need not actually be afraid of the acts of the perpetrator though they did sense a danger - this is made clear by the facts of R v Lamb (1967).

Secondly, it protects the accused from overly nervous people who may unjustly over-react to actions by the defendant.

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R v Lamb (1967)

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Here one friend pointed a gun at another in jest. They knew the gun was loaded and believed due to a misunderstanding of how the gun worked, that it was safe to fire it. Thus. there was an apprehension of danger without any actual fear.

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R v Ireland (1998)

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Silent telephone calls were held to constitute an assault due to the harm which they caused the victim, as Lord Steyn indicated that

"a thing said is a thing done".

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R v Constanza (1997)

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The requirement for a temporal immediacy between the words spoken and any apprehended fear was overturned.

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People (DPP) v Kirwan (2005)

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The accused assaulted the victim with a glass in a night club. He required an operation on his left eye and a number of stitches in his eye. His injury was characterised by a consultant ophthalmologist as being serious in nature.

The accused submitted that the threshold of serious harm had not been met. The Court of Criminal Appeal rejected this contention. It is not necessary that the injury inllicted be one with protracted or long term consequences.

Serious temporary impairment of the eye's function was enough to ground the charge. Similarly, where disfigurement is concerned. the jury should be told by the judge to consider the outcome of any medical attention given or received by the victim and not just the
appearance of the injury in the immediate aftermath of the assault.

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"serious harm"

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Defined in s 1 of the Act as

".. injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ."

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Non Fatal Offences Against the Person Act 1997 Section 2 - Threats to Kill or Seriously Harm

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According to s 5 (1) of the 1997 Act.

"[a] person who. without lawful excuse, makes to another a threat bv anv means intending the other to believe it will be carried out. to kill or to cause serious harm to that other or a third person shall be guilty of an ofTence."

A threat to kill or seriously harm mar constitute an assault also, in that the threat may cause another person to reasonably believe that he is likely to be subjected to immediate personal
violence.

We have already encountered the definition of ·serious harm· in s 1 of the 1997 Act. It does not have to be proved that the accused intended to execute the threat.

Rather. it must be proved that he intended the other person to believe that it would be executed. Even if that other person did not believe the accused's threat. the accused would be guilty as charged.

Section 5 (2) prescribes a maximum punishment. upon summary conviction, of 12 months' imprisonment and a €1,905 fine. and. upon conviction on indictment. of 10 years' imprisonment and an unlimited fine.

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Non Fatal Offences Against the Person Act 1997 Section 9 - Coercion

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The essence of coercion is engaging in conduct, wrongfully and without lawful authority for the purpose of compelling another person to either (i) do any act which that other has a lawful right to abstain from doing. or (ii) abstain from doing any act which that other has a lawful right to do. If a person engages in any of the following conduct. specified in s 9( 1) ( a) - (e) of the 1997 Act. for either of the aforementioned purposes. he may be guilty of coercion:

(1) uses violence to or intimidates that other person or a member of the family of the other. or
(2) injures or damages the property of that other. or
(3) persistently follows that other about from place to place. or
(4) watches or besets the premises or other place where that other resides, works or carries on business. or happens to be. or the approach to such premises or place or
(5) follows that other with one or more other persons in a disorderly manner through any public place. (Footnote added.)

Section 9( 3 ) of the 1997 Act prescribes a maximum punishment of 12 months' imprisonment and a €1.905 fine upon summary conviction. and a maximum punishment of 5 years' imprisonment and an unlimited fine upon conviction on indictment

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Non Fatal Offences Against the Person Act 1997 Section 10 - Harassment

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Section 10( 1) of the 1997 Act enacts:
Any person who, without lawful authority or reasonable excuse. by any means including by use of telephone. harasses another by persistently following , watching.
pestering. besetting or communicating with him or her. shall be guilty of an offence.

Essentially, the means by which a person harasses another is by persisrcntl1· following. watching. pestering. besetting or communicating with him . Accordingly. ·once-off conduct'
cannot constitute harassment.

According to s 10( 2) of the 1997 Act:

For the purposes of this section a person harasses another where --

(a) he or she, by his or her acts. intentionally or recklessly, seriously interferes
with the other·s peace and privacy or causes alarm, distress or harm to the other, and
(b) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other's peace and pri vacy or cause alarm. distress or harm to the other.

It is clear from this provision that, in addition to proof of persistent following etc. there must be proof that:

(i) The accused's conduct. ie, the persistent following etc., either seriously interfered with the alleged victim's peace and privacy or caused the victim alarm. distress. or harm.

(ii) The accused, by his conduct, intentionally or recklessly caused such serious interference or such alarm, distress, or harm .

(iii) A reasonable person would have realised that the accused's conduct would have either of those results.

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Non Fatal Offences Against the Person Act 1997 Section 11 - Demands for Payment of a Debt

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This offence is designed to deal with 'loan sharks' and is governed by s 11 of the 1997 Act, which enacts:

(1) A person who makes any demand for payment of a debt shall be guilty of an offence if-

(a ) the demands, by reason of their frequency are calculated to subject the debtor or a member of the family of the debtor to alarm. distress or humiliation. or

(b) the person falsely represents that criminal proceedings lie for non-payment of the debt, or

(c) the person falsely represents that he or she is authorised in some official capacity to enforce payment, or

(d) the person utters a document falsely represented to have an official character.

( 2 ) A person guilty or an offence under this section shall be liable on summary conviction to a fine not exceeding €1.905.

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Non Fatal Offences Against the Person Act 1997 Section 12 - Poisoning

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Section 12 (1) of the 1997 Act enacts:

A person shall be guilty of an offence if. knowing that the other does not consent to what is being done. he or she intentionally or recklessly administers to or causes to be taken by another a substance which he or she knows to be capable or interfering substantially with the other's bodily functions.

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Non Fatal Offences Against the Person Act 1997 Section 12 - Endangerment

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A general offence of endangerment is governed by S. 13 (1) of the 1997 Act, which makes it an offence to

'intentionally or recklessly engage in conduct which creates a substantial risk of death or serious harm to another.'

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The People ( DPP) v Cagney

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Hardiman J considered the changes effected by s 13( 1 ) :

It will be seen that the offence itself is general in scope and not specific, so that it may be applied after the event to events which are not obviously criminal in themselves and whose legality or otherwise cannot be accurately assessed in advance.

For example, would the terms of the statute extend to an omission to assist an individual in circumstances which, perhaps, would involve some risk to an intervener? Does it extend to actions done with the alleged victims consent, as in the context of extreme sports?

These are important questions and the fact that the answers to them are not immediately apparent indicates just how radically the law has (or, at least, may have been) altered by s.13.

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Non Fatal Offences Against the Person Act 1997 Section 114 - Endangering Traffic

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A more specific endangerment offence, endangering traffic, is governed by s 14 ( 1) of the 1997 Act, which enacts:

A person shall be guilty of an offence who -

(a) intentionally places or throws any dangerous obstruction upon a railway,
road, street, waterway or public place or interferes with any machinery, stgnal, equipment or other device for the direction, control or regulation of traffic thereon, or interferes with or throws anything at or on any conveyance used or to be used thereon, and

(b) is aware that injury to the person or damage to the property may be caused thereby, or is reckless in that regard.

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DPP (O'Dowd) -v- Martin Lynch (2010)

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The accused was charged with an offence under s. 10 of the Non-Fatal Offences Against the Person Act 1997.

Having established the facts, the District Court Judge posed the following question by way of consultative case stated to the High Court:-

"Are the facts of the case as admitted by the accused such that, as a matter of law, they disclose sufficient persistence for the purposes of an offence under s. 10 of the Non-Fatal Offences against the Person Act 1997?"

Held by the High Court (McCarthy J.), in answering the consultative case stated in the affirmative,

1, that the requirement of persistence in s. 10 of the Act of 1997 was capable of being fulfilled by incidents which were separated by intervening lapses of time.

2. That the requirement of persistence in s. 10 of the Act of 1997 was capable of being fulfilled by incidents that were capable of being severed even if they immediately succeeded each other.

3. That one unambiguously continuous act was capable of having the quality of persistence where the core element of continuity in such a course of action was fulfilled.