NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 - Relevant Cases

Question 1

R v Ireland

Answer 1

Words can constitute an assault in certain circumstances
* Lord Steyn:
- Victim’s fear of what silent caller may do next, inflict violence, dominate her thinking, may suffer psychiatric illness
- Psychiatric illness may constitute bodily harm - Relevant psychiatric illness are anxiety and depression, forms of neuroses recognized as psychiatric illnesses (1995 LC consultation paper on liability for psychiatric injury)
- Bourhill v Young – Lord Macmillan = Law no longer just recognizes physical injury caused by actual impact; injuries from what seen or heard without direct contact also recognized
- Criminal law – R v Chan-Fook – Psychiatric injury BH under s47 1861 Act; Hobhouse LJ = Body includes whole body, including organs, brain, nervous system; psychiatric injury not just emotions, need evidence of an identifiable clinical condition
- Two types of s47 assault – Battery (application of force) and causing the victim to apprehend an imminent application of force upon her (Fagan v. Metropolitan Police Commissioner)
- Gesture assault but words not is unrealistic – Something said could cause apprehension of immediate personal violence e.g. “Come with me or I will stab you” said in a dark alley
- Silent caller – Could be guilty of assault depending on the facts – “I will be at your door in a minute or two” menacingly would be guilty of assault; Silent caller intends silence to cause fear – Uncertainty about caller’s intentions – Fear possibility of caller immediately at door/immediate violence

• Lord Hope:
• Agrees with Lord Steyn
• Public interest to give assault ordinary and natural meaning as understood based on current medical knowledge and means for causing harm by one person to another
• Battery depends on circumstances, same with words – “If the words or gestures are accompanied in their turn by gestures or by words which threaten immediate and unlawful violence, that will be sufficient for an assault. The words or gestures must be seen in their whole context”.
• Current case – Silent telephone call communicating as direct as if in with room but without benefit of seeing demeanour – Silence conveying message to victims; Also malice and deliberate purpose

Question 2

Collins v Wilcock

Answer 2

– Goff LJ = Implied consent, treat them now as embracing all physical contact which is generally acceptable in the ordinary conduct of daily life; touching a person or attention

Question 3

Minister for Justice v Dolny (HC) (overruled in DPP v Brown)

Answer 3

• Peart J:
• • S2 & s3 separate and distinct offences
• S2 – No consent a requirement (also no lawful excuse and intentionally or recklessly)
• S3 – No such requirements
• S2 not intended to be a definition for the whole act; no definition of assault in s1
• S3 – Need to have caused harm, no consent not part of the offence; Clear from words used in s3 as no reference to s2 or any statutory definition
• Concise Oxford Dictionary definition of ‘assault’ is “a violent physical or verbal attack” – Give that meaning to the word ‘assault’ for the purpose of the section 3 offence

Question 4

DPP v Brown

Answer 4

• Dunne J:
  S2/S3 Assault Question:
• • S2 and S3 different offences as vastly different penalties and s3 assault must cause harm unlike s2
• Only definition of assault in the 1997 Act in s2 (no whole Act definition); Section 20 of the Interpretation Act of 2005 – ‘Where an enactment contains a definition or other interpretation provision, the provision shall be read as being applicable except in so far as the contrary intention appears in -
  (a) the enactment itself, or
  (b) the Act under which the enactment is made.’
• The State (McGroddy) v Carr – Henchy J = ‘… when expressions are repeated in the same instrument, and more especially in a particular part of the same instrument, they should be given a common force and effect unless the context requires otherwise.’
• 2005 Act and Henchy J – S2&S3 assault same meaning
• Definition of assault = Includes ‘without the consent of another’ – An assault is when a person ‘directly or indirectly applies force to or causes an impact on the body of another, or causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact’; Assault requires absence of consent
• McAuley & McCutcheon in Criminal Liability (2000) – Carry absence of consent from s2 into s3; s22
  Question of whether consent to an assault in furtherance of an unlawful purpose ever be taken into consideration in deciding whether someone is guilty or not of the offence contrary to s. 3 of the Act of 1997?
• Can’t consent to assault in furtherance of a criminal act e.g. Staged RTA for insurance scenario, Social welfare benefit
• Current case – Deceive prison authorities for money and disclosure of information, neither a lawful purpose
• Recognised at common law that consent in respect of an unlawful activity could not be given – R v Coney = A case about prize fighting where the Court of Criminal Appeal concluded that whilst one could consent to assault, one could not give an effectual consent to conduct which amounts to a breach of the peace.
• S2 of the Criminal Law (Sexual Offences) Act 2006, as amended – Sexual act with person under 15 – Consent not a defence
• If the Oireachtas had intended to introduce a radical change in the law to the effect that consent would render lawful the infliction of harm on someone no matter what the circumstances, one would expect to have seen that clearly stated in the legislation.
• Valid consent e.g. not obtained through fraud
• Contrary to public policy to allow consent for assault in furtherance of an unlawful person
• McKechnie J:
• Agreed on s2/s3 assault issue
• PP dissent
• Gonthier J – “The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl…”.
• Absence of consent must be proved by the prosecution
• Gap between non trivial harm and serious harm

Question 5

DPP v Kirwan

Question 6

DPP v Brown

Question 7

R v Donovan

Question 8

R v Brown

Question 9

R v Wilson

Question 10

Laskey & Ors v UK

Question 11

R v Emett

Question 12

R v BM

Question 13

Child & Family Agency v AA

Question 14

R v Kanzani

Question 15

R v Dica

Question 16

R v Barnes

Question 17

DPP v O’Brien

Question 18

DPP v Woods

Question 19

DPP v Lynch

Question 20

DPP v Cagney and McGrath

Question 21

DPP v Dunden [2008] IECCA 14