Thursday, September 16, 2010

Assault, False Imprisonment, Arson, Endangerment, Criminal Damage, Common Design – April ’09 – Q8

Assault, False Imprisonment, Arson, Endangerment, Criminal Damage, Common Design – April ’09 – Q8

1.         Assault by Noel and Rory on Fergus.
2.         False Imprisonment – putting Fergus in the boot.
3.         Arson/ Criminal Damage – Lighting car on fire.
4.         Endangerment - Lighting car on fire with Fergus in it.
5.         Assault by Fergus on Noel and Rory, reasonable self defence?
6.         Stabbing by Noel, reasonable defence of his brother’s life?
7.         Common Design – is Rory liable for Noel’s actions.

Looking at the first issue we must familiarise ourselves with the Non Fatal Offences Against the Person Act, 1997. Section 2 (1) of the act states that:

“A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly:

(a)        Directly/Indirectly applies force to or causes impact on the body of another.
(b)        Causes another to believe on reasonable grounds that s/he is likely immediately to be subject to any such force/impact.”

Section 2 (2) gives a broad definition of the word force:

“Force is any application of heat, light, electric current, noise or any other form of energy and application of matter in solid, liquid or gaseous form.”

This means that the slightest touch can constitute force, and force can be direct or indirect. A good example of the broad its definition can be seen in the case of DPP v K [1990] where indirect force was found to amount to assault. In this particular case a schoolboy poured acid into a hand dryer and turned the nozzle upwards. A fellow schoolboy subsequently went to use the dryer and when he pressed the button, he was covered in the acid and sustained serious injuries.

The next issue, false imprisonment, is dealt with in S.15 of the same Act. The act state that:
A person shall be guilty of the offence of false imprisonment who intentionally or recklessly:
(a)        takes or detains, or
(b)        causes to be taken or detained, or
(c)        otherwise restricts the personal liberty of,
another without that other's consent.”
False imprisonment may be momentary only, no minimum temporal requirement, furthermore it doesn’t have to be proved that the victim was aware of his false imprisonment. A summary conviction for false imprisonment can amount to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or on indictment it can be life imprisonment. An example of false imprisonment can be seen in the Irish case of Kane v The Governor of Mountjoy Prison [1988], where it was held that placing a person under extremely close surveillance did not amount to false imprisonment.
The next issues that we shall discuss are arson, criminal damage and endangerment. Criminal damage is dealt with under the Criminal Damage Act, 1991. S. 2 (1) states that:
“A person who, without lawful excuse damages any property belonging to another, intentionally or recklessly, shall be guilty of an offence.”
Further more S. 2 (2) states that:
“Person is guilty of an offence where they without lawful excuse, intended to damage property or were reckless about it and where they intended to endanger life or were reckless to it.”
Damage is explained in S. 1 “in relation to property…to destroy, deface, dismantle whether temporary or otherwise, render inoperable r unfit for use or prevent/impair the operation of.” Arson is regarded as the most serious type of criminal damage and is dealt with in S. 2 (4)
A person guilty of an offence under S. 2 shall be liable—
(a)        on summary conviction, to a fine not exceeding £1,000 or imprisonment for a term not exceeding 12 months or both, and

(b)        on conviction on indictment—

(i) in case the person is guilty of arson under subsection (1) or (3) or of an offence under subsection (2) (whether arson or not), to a fine or imprisonment for life or both, and
(ii) in case the person is guilty of any other offence under this section, to a fine not exceeding £10,000 or imprisonment for a term not exceeding 10 years or both.

Endangerment is dealt with separately in NFOAP Act, 1997 under S. 13, which states:
(1) A person shall be guilty of an offence who intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm to another.
(2) A person guilty of an offence under this section shall be liable—
(a)        on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or
(b)        on conviction on indictment, to a fine or to imprisonment for a term not exceeding 7 years or to both.

If we look at the issues mentioned so far; in the case at bar we can see that the brothers committed assault on Fergus by dragging him out of the car, tying him up and bundling him into the boot. They may not have used a lot of force to do this but the slightest touch can be sufficient. They also would have made Fergus fear that he is in immediate danger which by statute constitutes force, refer to S.2 NFOAP Act. They have both the actus reus, dragging and forcing him into the boot, and the mens rea, teaching him a lesson for what they believed he had done, for the crime. When they tied Fergus up and put him into the boot even though it was only for a short duration, this according to S. 15 of the act amounts to false imprisonment. It need only be momentary to falsely imprison somebody. In regards what the brothers did while Fergus was imprisoned in the boot, lighting the engine of the car on fire will amount to Criminal Damage. Furthermore, they lit it on fire while Fergus was trapped inside. They may have been only doing this to scare Fergus and never actually believed that he was in danger but this would be considered reckless and the court would consider this to be damage of property and endangering life.
Another issue that will arise comes under S. 4 of the NFOAP Act, 1997. This deals with assault causing serious harm, it states that:
“A person who intentionally or recklessly causes serious harm to another shall be guilty of an offence.”
S.1 defines “serious harm” as an injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ. A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or to imprisonment for life or to both.
There is however occasions where force is permitted; S. 18 of the NFOAP Act, 1997. This deals with justifiable use of force. S. 18 (1) states that:
The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence -
(a)        to protect himself or herself or a member of the family of that person or another from injury, assault or detention caused by a criminal act; or
(b)        to protect himself or herself or (with the authority of that other) another from trespass to the person; or
(c)        to protect his or her property from appropriation, destruction or damage caused by a criminal act or from trespass or infringement; or
(d)        to protect property belonging to another from appropriation, destruction or damage caused by a criminal act or (with the authority of that other) from trespass or infringement; or
(e)        to prevent crime or a breach of the peace.

So in some cases the acts by a person which would normally constitute assault can be justified in the particular circumstances. This part of the act gives people the right to defend themselves, others and their property if they are put in danger by another person. In deciding whether the acts fall within this section the courts take a subjective view as can be seen from S. 18 (5):

“For the purposes of this section the question whether the act against which force is used is of a kind mentioned in any of the paragraphs (a) to (e) of subsection (1) shall be determined according to the circumstances as the person using the force believes them to be.”

An example of justified force being used as a defence is AG v Keatley [1954] where the deceased had been fighting with the applicant’s brother when the applicant subsequently struck him, causing him to fall and sustain fatal injuries. The court held that fatal force may be lawfully used in defence of any other person, not just one with whom one has a special relationship but that he has no right to revenge himself and if, when all the danger is past, he strikes a blow not necessary for his defence, he commits an assault and battery.

There are other limits to this defence though for example in S. 18 (7):
“The defence provided by this section does not apply to a person who causes conduct or a state of affairs with a view to using force to resist or terminate it:
But the defence may apply although the occasion for the use of force arises only because the person does something he or she may lawfully do, knowing that such an occasion will arise.”
So if the person, who is pleading that the assault was justified, actually brought about the need for the assault to take place s/he will be found to be guilty of assault. The force used must be reasonable and not excessive to be justified. If we look at the case of DPP v Barnes where it appeared from the evidence that the applicant had entered the premises of the deceased with the intention of burgling him and that whilst there he had been disturbed by the deceased. The deceased had fetched a knife and trapped the applicant in a bedroom. The applicant killed the deceased and later claimed self-defence. At the appeal, Counsel for the applicant submitted that deceased’s act in getting the knife was unlawful and that he had not used reasonable force in getting a knife and threatening to kill the applicant. The court held that this was not the case and they pointed out that the deceased had been “…deliberately subjected to an experience which will shock even the most robust and might make many irrational with terror.” This justified his actions in protecting his own life and property. The fact that Barnes was burgling the deceased’s house and therefore brought about the need for the killing meant that, according to S. 18 (7), the defence of justified assault or self defence did not apply.

The final issue in this case involves the doctrine of common design or joint enterprise. This means people are jointly responsible for any act done in the furtherance of a crime, but will not be jointly responsible for acts that go beyond the crime as originally conceived. A good example of this can be seen in the case of DPP v Murray [1977] where the D’s, husband and wife, had carried out an armed bank robbery and during their escape the wife shot and killed a member of the Garda Síochana. Both D’s were convicted of capital murder. On appeal the court held that there was no evidence that the two had discussed killing a member of the GS if they were pursued but held that there could be a common design for murder just not capital murder.

If we apply the relevant statutes and case law to this particular case we can see where liability will lie. Firstly, in relation to Fergus’ attack on Noel; Fergus had been falsely imprisoned in the boot of his car and was aware that the car had been put on fire as he smelt the smoke. When he emerged he was confronted by Noel and he subsequently attacked him. I believe under S. 18 (1) a (and possibly e) the court would find that Fergus used reasonable force in light of the situation. He may have feared for his life and have attempted to escape from his attackers. The reasonable force is decided subjectively according to S. 18 (5). The problem arises when he chased Rory who was attempting to get away. He caught up with him and proceeded to attack him with a weapon. This is clearly excessive force as he was not in any immediate danger from Rory who was attempting to run away, refer to the decision in Keatley. He may attempt to argue that in the particular situation, which the brothers had put him in, he lost control similar to what happened in Barnes. I believe that this would be hard to prove and the brothers could prove that the attack on Rory was not justified. This then led to Noel stabbing Fergus in the neck, fearing for his brother’s life. This stabbing could amount to an assault under S. 4 of the NFOAP Act, 1997, as it seriously injured him and left him with a rather large scar on his neck. Noel may argue that the force used was justified under S. 18 (1) of the NFOAP Act, 1997 but according to S. 18 (7) as Noel, along with his brother Rory, brought about the circumstances the defence is not available to him, so Noel would then be liable under S. 4. He could also argue that it was justified on grounds similar to the Keatley case. If he is convicted of serious assault, Rory too may be convicted under the doctrine of common design. Both brothers agreed before the incident that they were going to teach Fergus a lesson. The courts may then convict both for the serious assault on Fergus if they can prove that it was an act in furtherance of the crime they had planned. From the facts it seems that the brothers only intended on scaring Fergus and never intended do any serious harm to him. It may have been reasonably foreseeable that Fergus may fight back and the brothers may have been reckless to this but I don’t think what actually happened could have been reasonably foreseeable by Rory, to blame him for Fergus’ stabbing. If we look at the Murray case the D’s were carrying out an armed robbery so there was common design found as it is clear to anybody that if you are committing a crime using guns, you may end up using them and doing serious harm. the brothers crime was much less serious than armed robbery and they were not planning on using weapons. Thus Rory could not be held liable for the stabbing.


No comments:

Post a Comment