Definition of a Crime

Definition of a Crime

A crime is one type of wrong doing, tortuous, immoral and anti-social behaviour also constitutes wrong doing. But what distinguishes a crime from all other types of wrong doing?

The seminal case in this area is Melling v O’Mathghamhna, Kingsmill Moore J asked what is a crime? He stated that the anomalies which still exist in the criminal law and the diversity of expression in statutes makes a comprehensive definition all but impossible to frame. The Supreme Court, using a number of headings, upheld the High Court judgement and answered the question posed by Kingsmill Moore J.

Punishment:

Generally if the law prescribes punishment for those who engage in certain wrong doing, then such wrong doing is a crime. Kingsmill Moore J referred to Atkin J in Proprietary Articles Trade Association v Attorney General for Canada who said that the question in determining if something is a crime is: “Is the act prohibited with penal consequences?” Kingsmill Moore J also referred to Professor Kenny’s definition of a crime: “crimes are wrongs whose sanction is punitive and is remissible by the state if remissible at all.”

However punishment is not exclusive to crime. In McLoughlin v Tuite the Supreme Court upheld the High Court decision of Carrol J that Section 500 of the Income Tax Act 1967, which imposes a fixed monetary penalty on any person who fails to comply with a notice served upon him which requires him to deliver or to furnish any particulars, falls into the category of a deterrent/incentive and is not a criminal sanction. Generally the law of tort provides remedies for victims whereas criminal law provides punishments for the perpetrators of crimes. Although there are certain circumstances where criminal law does permit the compensation of the victim of a crime; Section 9 Criminal Damages Act, 1991.

In contrast to this in a recent case, The Registrar of Companies v District Judge David Anderson and System Partners Limited, System Partners Limited was late filing its tax returns for the years 2000 and 2001. As a result it had to pay a late filing fee of €1,200 for the year 2000 and €379 for the year 2001. Ordinarily the fee payable if filed on time was €30. Subsequent to the late filing and the payment of the associated late filing fees, two prosecutions pursuant to Section 125 of the Companies Act 1963, as amended by Section 59 of the Company Law Enforcement Act, 2001, were initiated in the District Court against System Partners Limited. This Act states that any company who fails to file its tax returns on time “the company and every officer of the company who is in default…shall be guilty of an offence.” The company had actually filed their returns, albeit late, and paid a fee far in excess of the fee required if they had been on time. Applying the principle of double jeopardy, Judge David Anderson struck out the summonses. The Registrar then went to the High Court who refused them on the basis that the offence gave rise to a criminal sanction when there was already a civil sanction in place, the applicant then appealed to the Supreme Court. It was held that ‘the obligation to pay extra fees for a late return of a company’s annual report is in form an administrative sanction…that is to say a sanction that does not have as its purpose the punishment of an offence but the achievement of a legitimate administrative objective’. They also pointed out that ‘Since there was no other criminal process, no charge, no trial of guilt or innocence the question of double jeopardy in relation to the District Court prosecution could not arise’. In this case the late filing fee cannot be considered a punishment relieving a company of the criminal charge but rather a deterrent against late filing.

Public Wrong:

Prosecution of a crime involves a public prosecution. The Director of Public Prosecutions (DPP) conducts criminal prosecutions on behalf of the state, in the public interest. This is because a crime is regarded not only as a wrong doing but also, as Kingsmill Moore J stated “a crime against the community at large.” The role of the victim in the prosecution is therefore limited. The prosecution of a tort is undertaken by the victim, thus torts are the concern of private individuals only. A victim of a tort may decide not to prosecute; a victim of a crime has no choice.

Moral Culpability:

Most crimes are regarded as immoral, although that which is regarded as immoral doesn’t necessarily constitute a crime. Morality plays a greater role in criminal law than it does in tort. to be convicted in criminal law Kingsmill Moore J  said that it will nearly always be proved that the accused acted intentionally or recklessly. Tort generally only requires proof of negligence. In terms of moral culpability negligence ranks lower than both intention and recklessness. Generally many fundamentals of criminal law are based on prevailing perceptions of morality.

Procedure:

Laverty J in the same case assigned a procedural definition of a criminal charge:

(i) Proceedings that permit the detention of the person concerned, the bringing of him into custody to a Garda station,

(ii) entry of a charge in all respects appropriate to the charge of the criminal offence,

(iii) the searching of the person detained and the examination of papers and other things found upon him,

(iv) bringing him before a District Justice in custody, the admission to bail to stand his trial and the detention in custody if bail is not granted or is not forthcoming and

(v) Imposition of a pecuniary penalty with the liability to imprisonment if the penalty is not paid.

Words used to identify Wrong Doing

O’Deilrigh J said that if wrongdoing is described as an ‘offence’ and the wrongdoer as an ‘offender’ then such wrong doing is probably a crime. A number of guidelines as to what a crime is may be distilled from the Melling judgement:

-         Crime is a wrong that attracts punishment

-         Crime is a wrong against the public at large

-         Crime is a wrong that is immoral

-         Crime is a wrong, the prosecution of which follows criminal procedure

-         Crime is a wrong described by law in the vocabulary of the criminal law

These factors have been applied in subsequent cases.

As already stated in Tuite although the penalty is punitive it was recoverable by way of civil proceedings, absence of criminal vocabulary. In Goodman v Hamilton, which arose out of the beef tribunal, the applicant alleged that in essence he was undergoing a criminal trial and therefore he was entitled to all the constitutional safeguards that go hand in hand with such a trial. Finlay CJ in the Supreme Court concentrating on the procedural aspects of the tribunal rejected this argument. He stated that the enquiry has no jurisdiction or authority to impose a penalty or punishment on any person. Its findings can form no basis for either the conviction or the acquittal of the party concerned if one were subsequently brought, nor can it form any basis for the punishment by any other authority of that person.

DPP v Boyle concerned Section 24 of the Finance Act, 1926 where the failure of a bookmaker to pay duty on bets was described as an ‘offence’ and which prescribed a penalty on a ‘summary conviction’ of £500. The High Court, noting the language of the provision, held that the wrong is a crime.

The Proceeds of Crime Act, 1996 came under scrutiny in Gilligan v CAB. The Act permitted the forfeiture of property in excess of £10,000 if the High Court was satisfied that on the balance of probabilities such property directly/indirectly represents the proceeds of crime. Most significantly such forfeiture does not depend on the owner of such property having being convicted of any criminal offence. Gilligan argued that the proceedings under the Act are criminal in nature as a successful prosecution necessarily entails a finding, on the balance of probability, of criminal activity having taken place. McGuiness J rejected this argument in the High Court and the Supreme Court unanimously agreed. McGuiness J said that the provisions were ‘in rem’ (against property) as against ‘in personam’ (against the person). Forfeiture of property amounts to refraction not punishment, the court was merely taking what was not his in the first place. Procedure is not criminal it does not permit the arrest of a person.

It is important to be aware of the distinction between a crime and a civil wrong (tort). A person being prosecuted for a crime enjoys certain constitutional safeguards:

-         Criminal matters must be dealt with by a judge or a court appointed or established as such under the constitution.

-         Trial of a criminal offence must take place before a jury with three exceptions: minor offences, special courts and military tribunals.

-         No person shall be tried on any criminal charge save in due course of law.

Recklessness

Recklessness

In terms of criminal responsibility recklessness is subordinate only to intention. There are two types of recklessness: subjective and objective. Walsh J in DPP v Murray explained the two. He stated that subjective recklessness is where the accused consciously took an unjustified risk which the accused knew existed. Objective recklessness is where the accused again took an unjustified risk however he didn’t actually know that it was an unjustified risk but he should have been aware of it.

An unjustified risk involves the weighing of factors justifying the risk against those indications of the absence of justification. A justified risk is one that can be vindicated. If the risk is justified then there is no recklessness. Sometimes a justified risk might be fraught with risk.

Whether a person is aware of a risk will determine whether he acted subjectively reckless or objectively reckless. There is some authority to suggest that only subjective recklessness is applicable in Irish criminal law.

DPP v Murray in this case a husband and wife committed an armed robbery. They were pursued by an off-duty Garda who was subsequently shot and killed by the wife. Both were convicted of capital murder. They appealed to the Supreme Court where each of the judges considered if appellants knew whether or not the victim was a Garda acting in the course of his duty or whether the appellants were reckless as to whether or not he was a Garda acting in the course of his duty. Walsh J didn’t indicate which form of recklessness should prevail. Henchy J quoted the definition given by the American Law Institutes Model Penal Code; “a person acts recklessly with regard to the material element of the crime when he consciously disregards a substantial unjustifiable risk that the material element exists or will result from his conduct.” This statement concerns subjective recklessness. However Henchy J stated that this definition was the test of recklessness for this specific offence. So could objective recklessness secure a conviction for other less serious offences? Charleton points out that the above definition has been used where recklessness is a live issue in rape proceedings. Henchy J stated that objective recklessness wouldn’t suffice in this instance. Griffin J quoted long passages from Professor Glanville Williams and favoured a subjective approach to recklessness simplicter; “conscious taking of a risk.” Kenny J endorsed the subjective approach to recklessness in the context of capital murder but he didn’t deny the existence of objective recklessness. Mary McAleese forwarded the opinion that Walsh, Henchy JJ favoured a notion of recklessness encompassing both objective and subjective. She also criticised the court for an over reliance on Professor Glanville Williams’ opinion.

In England recklessness encompasses both objective and subjective. In R v Caldwell, Lord Diplock defined subjective recklessness as where one had recognised a risk of harmful consequences resulting from his actions but took it anyway. He also defined objective recklessness as failing to give any thought as to whether there was such a risk where if any thought were given to the matter it would be obvious that there was.

This case also brought up another question; What if the defendant had stopped and considered whether there was a risk but mistakenly concludes that there isn’t one, he does not fit either definition of recklessness. This is known as the Caldwell lacuna or gap in the law of recklessness.

In Chief Constable of Avon v Shimmen the defendant was trained in martial arts and he bragged to his friends that he could launch a kick at a plate glass window and stop just short of it. He in fact broke the window and was charged with causing criminal damage. He was acquitted on the grounds that he had not acted recklessly because he considered his actions and concluded there was no risk trusting his ability. The prosecution appealed by way of case stated. The court noted the possibility of a lacuna and accepted that it could exist, but drew a distinction between a defendant who concluded that there was no risk and a defendant who concluded that there was a risk but then took all the steps he thought necessary to eliminate the risk. The first defendant would be entitled to an acquittal as he is outside the definition of recklessness whereas the second defendant would be convicted as he is within the Caldwell definition of recklessness. In this case the defendant had appreciated the risk but concluded that it would not happen because of his skill. he was therefore reckless and the court gave direction to convict.

In Elliot v C (a minor) a 14 year old with a slight mental deficiency burned down a shed by igniting white spirits that she had poured on the floor, intending to keep warm. It was held that the accused had not given any thought to the possibility of a risk and such a risk was obvious to the ordinary prudent person.

Subjective recklessness has essentially the same meaning in Ireland as it does in England. However in Ireland objective recklessness has a broader scope. In England the test is based on whether or not the accused considered the possibility of a risk existing. If a person considers whether or not there was a risk and concludes that there was not one then he is not objectively reckless. In Ireland however if a person considers whether or not there was a risk and concludes that there was not one then he is still objectively reckless if he ought to have concluded otherwise.

Summerr 2008 Q3 – Omissions & Criminal Liability

October 2008 Q3 – Omissions & Criminal Liability

1.   Was Tess responsible for Elaine, did she owe a duty of care to Elaine?

2.   Is Tess Liable for what happened to Elaine?

3.   Did Seamus breach his duty of care?

4.   Is Seamus Liable for what happened to Elaine?

5.   Do Seamus’ actions break the chain of causation between Tess and Elaine?

Ordinarily the criminal law does not punish a failure to act. This was noted in R v Paine where it was stated that:

“If I see a man who is under my charge taking up a tumbler of poison, I should not become guilty of any crime by not stopping him. I am under no legal obligation to protect a stranger.”

In instances like this, though one’s actions may be morally culpable, no criminal liability will arise out of the failure to act. In some instances, however, the law also recognises a positive duty to act, for example in circumstances involving familial relations as was seen in R v Senior, where the defendant was a member of a religious organisation that believed any form of medication was immoral and constituted a lack of faith in God. His 8 month old child got pneumonia and the defendant refused for his child to be treated. The child subsequently died and the defendant was convicted of manslaughter as the court found that the defendant was under a duty to act because of the close relationship with the child.

R v Gibbins and Proctor is an example of how voluntarily acceptance of responsibility of someone can lead to a duty of care. In this case the wife of the first defendant had left him and he had moved in with the second defendant. Both defendants had children and they all lived in the same house. There was no shortage of money which was given by the first defendant to the second for housekeeping expenses. One of the first defendant’s children, a daughter, who was hated by the second defendant and had been physically abused and cursed at by her, was eventually left starve to death. Both of the defendants were found guilty of murder which both subsequently appealed. Their appeals were refused on the basis that the first defendant must have noticed how ill the child was and did nothing, no doctor was called. Implicit in this judgement is a condemnation of the first defendant’s failure to come to his daughter’s aid. The second defendant had taken charge of the child while under no obligation to do so. The child’s welfare was therefore the second defendant’s responsibility; despite this the child had been physically abused and deliberately denied food by the second defendant which caused her death. Another example similar to this is R v Stone and Dobinson where the deceased, an old woman, had been lodging with her brother, the first defendant, and his housekeeper who was also his mistress, the second defendant. The deceased used to pay her brother for her lodgings which consisted of a small room. She had a morbid fear of putting on weight and she refused to eat proper meals. She then became bedridden. The second defendant attempted to wash her with the help of a neighbour. An attempt was also made by them to get a doctor but it failed. Weeks later she was found dead in her room and her body was in dreadful condition. The doctor gave evidence saying that if she had received assistance anytime up to two weeks before she was found dead she may have survived. Defendants claimed that she was more like a stranger and that they were not responsible for her but the Court of Appeal decided since the first defendant was a blood relative and the second defendant fed and washed her that they claimed responsibility. They were both charged with manslaughter.

Another example of voluntarily taking responsibility for someone and different from the above examples is the Australian case of R v Taktak, the defendant in this case had hired a prostitute for a party, where he left her. He returned to the party later to find her unconscious after taking heroin. He took her away and tried unsuccessfully to revive her. Later he tried calling a doctor but she was already dead. It was found that by taking her away and thereby removing the possibility of help from others the defendant had assumed responsibility for her. The defendant was convicted of manslaughter.

It is quite clear from the above cases that Tess would be found to be responsible for Elaine, her niece. She did not have to take her niece in when her mother died but voluntarily chose to do so. This means Tess owed a duty of care to look after her niece, e.g. minimum provide her with food, clothes, shelter etc. Tess intolerance to her niece’s condition was negligent and she should have taken action to help her to cope with it. She should have made a better attempt at getting Elaine to eat her dinner and failing to do this she should have consulted a doctor. As Tess threw her dinner in the bin for 5 consecutive days she should have been aware of the gravity of Elaine’s situation. Tess would be found by the court to be liable for what had happened her niece and thus could be convicted of manslaughter. She would not be convicted of murder as she did not purposely starve her niece and made some attempt at providing for her. Another question may arise, however, and that is did the hospital visit break the chain of causation between Tess’ failure to act and Elaine’s death?

To answer this question we must look at the law regarding novus actus interveniens. This is where a third party’s actions intervene between the defendant’s actions and the result and may result in the defendant being relieved of liability. For a novus actus to occur the intervening actions must be independent of the defendant’s actions, and must effectively be the cause of the result. If we look at the case of R v Jordan, UK, where the defendant stabbed the deceased who was subsequently hospitalised. While in hospital he was given antibiotics, which he was allergic to, by two different doctors. He was also given abnormal amounts of liquids which waterlogged his lungs. In this case the medical treatment was not only not normal, but it was palpably wrong. The wound was not the cause of death, it was the medical treatment received in the hospital which was independent of the defendant’s actions. The defendant’s conviction was quashed, the medical treatment constituted a novus actus. In contrast to this in another UK case of R v Smith a soldier was stabbed in the arm and back by the defendant. Unknown to anyone the wound in the back had punctured a lung. In the medical field station the doctor was busy and did not appreciate the wound to the deceased’s lung. The treatment he gave was inappropriate and he died from haemorrhaging in his lung. The Court of Appeal accepted that the stab wound was still the operating and substantial cause of death. The court noted the actual chain of causation – the deceased was stabbed in the back, his lung was pierced and haemorrhaged, he died within two hours from the haemorrhaging, and in the interval there was sufficient time for a proper examination. Smith’s appeal was dismissed.

In the case at bar the visit to the hospital cannot constitute a novus actus because there was nothing the doctor could have done to help Elaine as the damage already caused, due to Tess’ negligence, was irreversible. The doctor’s actions were not effectively the cause of Elaine’s irrecoverable state. Tess is therefore liable for Elaine’s death, and could be convicted of manslaughter.

In regards to Seamus’ criminal liability this issue is quite difficult to predict what the courts would decide. They may decide he breached his duty towards Elaine when he, without any consultation, decided not to treat her. If we look back at the case of R v Smith the stab wound was considered to be the operating and substantial cause of death and the doctor’s actions did not constitute a novus actus interveniens. Similarly in the case at bar Tess’ negligence would be considered the operating and substantial cause of death. On the other hand the court may take the view that a doctor has no duty to continue life support when it is no longer in the best interests of the patient similar to Lord Diplock’s statement in R v Miller:

“As a matter of general principle an omission such as this will not be unlawful unless it constitutes a breach of duty to the patient.”

This view was taken in the case of Airedale NHS Trust v Bland. In this case Anthony Bland who was a supporter of Liverpool F.C. injured in the Hillsborough disaster. He suffered severe brain damage that left him in a persistent vegetative state whereby the hospital, with the support of his parents, applied for a court order allowing him to 'die with dignity'. As a result he became the first patient in English legal history to be allowed to die by the courts through the withdrawal of life-prolonging treatment. In this situation however Mr. Bland had been in a persistent vegetative state for over three years with no signs of recovery and they felt it would be better for Mr. Bland and his family if the stopped the life support machine. In Seamus’ case he immediately decided that he would not treat Elaine without consulting another doctor, Elaine’s Aunt or even Mary the social worker. He may have been correct in his diagnosis but the courts may find that it was not his decision to make. Seamus’ may therefore be convicted of professional negligence in tort but as far as criminal liability is concerned it would be very hard to hold him liable for manslaughter.

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

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

Issues:

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.

Conclude.