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

© Copyright The Law Reform Commission 1994

First Published February 1994

Cover: The Courthouse, Washington Street, Cork.

(photo courtesy of “Cork Examiner”)

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.

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.

INTRODUCTION

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:

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

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

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

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

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:

1.18

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

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

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

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

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

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:

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

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

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:

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:

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

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

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:

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

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.

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

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:

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

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.

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:

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

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:

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

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

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

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

inflicted:

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

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

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:

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

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.:

1.99

Although the proportionality requirement has always been interpreted

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:

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

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

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.

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:

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

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:

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

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,

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:

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

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

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

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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

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

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

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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.:

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Nevertheless, where the sterilisation or other medical treatment has been

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

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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:

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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

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

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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

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“[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

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.

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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

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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:

Dangerous Exhibitions

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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:

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.

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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

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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.

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.

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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

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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

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.

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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

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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

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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

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:

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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

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)

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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

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

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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

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

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

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:

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)

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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.

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:

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:

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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