NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 REVISED - Section 1-5 and Relevant Case Law

Question 1

Harm

Answer 1

s1(1) - Harm to body or mind and includes pain and unconsciousness

Question 2

Serious harm

Answer 2

s1(1) - Injury which
- creates a substantial risk of death or
- causes serious disfigurement of the body
- causes substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ;

Question 3

s2 Assault (Assault, force, exceptions, penalties)

Answer 3

MR = Intentionally or recklessly
AR:
- Without lawful excuse
- s2(1)
(a) directly or indirectly applies force to or causes an impact on the body of another, or
(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact,
without the consent of the other.

• S2(2) - In subsection (1) (a), “force” includes—
  (a) application of heat, light, electric current, noise or any other form of energy, and
  (b) application of matter in solid liquid or gaseous form.

S2(3) - No offence committed if the force is not intended or likely to cause injury. Force generally acceptable in the ordinary conduct of daily life and the defendant does not know or believe that it is in fact unacceptable to the other person.

S2(4) - Summary penalty = Fine not greater than €2500 and/or up to 6 months’ imprisonment

Question 4

R v Ireland (HoL)

Answer 4

• Silent telephone calls can be an assault
• Case like that now under Irish law – Wouldn’t be restricted to an assault case, could use a stalking or harassment offence; legislation passed to catch those kind of crimes

Question 5

S2A Assault Aggravated by Hatred inserted by the Criminal Justice (Hate Offences) Act 2024

Answer 5

(1) Guilty of an offence under this section where commit an offence under section 2 which is aggravated by hatred for the purposes of this section.
2) Summary penalty = Class B fine and/or up to 9 months in prison
(3) Can alternatively be found guilty of an offence under section 2

Question 6

Hatred and protected characteristics

Answer 6

S. 2 of the Criminal Justice (Hate Offences) Act 2024:
“hatred” means hatred against a person or a group of persons in the State or elsewhere on account of their protected characteristics or any one of those characteristics;

S. 3 of the Criminal Justice (Hate Offences) Act 2024:
“protected characteristic”, in relation to a person or a group of persons, means any one of the following, namely—
(a) race,
(b) colour,
(c) nationality,
(d) religion,
(e) national or ethnic origin,
(f) descent,
(g) gender,
(h) sex characteristics,
(i) sexual orientation, or
(j) disability

Question 7

s3 Assault causing harm

Answer 7

s3(1) - Offence (Harm = Harm to body or mind and includes pain and unconsciousness)

s3(2) - Penalties
a) Summary conviction - Up to 12 months’ imprisonment and/or a fine up to €2500
b) Indictment conviction - Fine and/or up to 10 years’ imprisonment

Question 8

Section 3A - Non-fatal strangulation or non-fatal suffocation

Answer 8

• S3A(1) - MR = Intentionally or recklessly
• S3A(1) - AR:
  Without lawful excuse
  a) Strangles or suffocates another
  b) Causes another to believe on RG of that immediate likelihood
• S3A(2) - Consent defence
• S3A(3)
  a) Summary penalty = Class A fine and/or up to 12 months’ imprisonment
  b) indictment penalty = Fine and/or up to 10 years’ imprisonment
  -S3A(4) - Section 3 offence conviction possibility
  -S3A(5) - Strangle and suffocate definitions
  “strangle” includes applying, directly or indirectly, force to the neck of another so as to impede breathing or the circulation of blood;
  “suffocate” includes—
  (a) asphyxiating another, an

(b) impeding the breathing of another, including by—
(i) covering the mouth or nose,
(ii) constricting the chest, or
(iii) blocking, by means of a foreign object, the airways,
of the other.]

Question 9

Minister for Justice v Dolny

Answer 9

S2 and S3 separate offences. No absence of consent requirement in s3 (Overruled in DPP v Browne)

Question 10

DPP v Browne (SC)

Answer 10

• Assault has same meaning in s2 and s3.
• Must prove an absence of consent in s2 and s3

Question 11

s3A inserted by the Criminal Justice (Miscellaneous Provisions) Act 2023 - Assault Causing Harm: Non-Fatal Strangulation

Answer 11

• s3A.—(1) A person shall be guilty of an offence who, without lawful excuse, intentionally or recklessly—
  (a) strangles or suffocates another, or
  (b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to suffocation or strangulation
• s3A(2) - Consent defence
• s3A(3) - Penalties
• s3A(4):
  ““strangle” includes applying, directly or indirectly, force to the neck of another so as to impede breathing or the circulation of blood;

suffocate” includes—
(a) asphyxiating another, and
(b) impeding the breathing of another, including by—
(i) covering the mouth or nose,
(ii) constricting the chest, or
(iii) blocking, by means of a foreign object, the airways,

of the other.

Question 12

S3B - Assault Causing Harm Aggravated by Hatred

Answer 12

Section 3B
(1) Guilty of an offence under this section if commit an offence under section 3 which is aggravated by hatred for the purposes of this section.
(2) Penalties
(a) Summary conviction = Class B fine or and/or up to 12 months’ imprisonment, or
(b) Indictment conviction = A fine and/or up to 12 years’ imprisonment

Question 13

S4 - Causing serious harm

Answer 13

• S4(1) - MR = Intentionally or recklessly and offence statement
• S4(2) - Indictment penalty = Fine and/or life imprisonment

Question 14

DPP v Kirwan (CCA)

Answer 14

• Serious harm = Not necessarily long term or protracted consequences
• Rejected MT argued – Stitches as a result of injury, no break in the chain of causation
• Disfigurement – Don’t need immediate impact, could be a longer term outcome
• Impairment – Could be short term
• Serious harm – Broad definition to include short and long term; no durational requirement

Question 15

Section 4A - Non-fatal strangulation or non-fatal suffocation causing serious harm

Answer 15

• S4A(1) - MR = Intentionally or recklessly and offence statement
• S4A(2) - Indictment penalty = Fine and/or life imprisonment
• S4A(3) - S4 conviction possibility
• S4A(4) - Strangle and suffocate same meaning as S3A (as amended)

Question 16

S4B - Causing serious harm aggravated by hatred

Answer 16

(1) A person shall be guilty of an offence under this section if he or she commits an offence under section 4 which is aggravated by hatred for the purposes of this section.
(2) Indictment penalty = Fine and/or life imprisonment

Question 17

S5 - Threats

Answer 17

Section 5 of the 1997 Act:
‘(1) A person who, without lawful excuse, makes to another a threat, by any means intending the other to believe it will be carried out, to kill or cause serious harm to that other or a third person shall be guilty of an offence.’
- MR = Did intend person to believe it; victim’s belief irrelevant.
- Very serious threat
* There must be an intention to have the other person believe that the threat will be carried out.