Non-Fatal Offences Against the Person

  1. What act governs non-fatal offences against the person?
    The Non-Fatal Offences Against the Person Act, 1997
  2. What is the definition of assault under the NFOAP Act, 1997? In which section can it be found?
    This definition can be found in Section 2(1). It states:

    • "A person shall be guilty of assault who, without lawful excuse, intentionally or recklessly
    • a) directly or indirectly applies force 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."

    This section provides that it is a defence where the act is committed with lawful excuse or with the consent of the injured party.

    Note: apprehension is not required for type (a) here. Think of the Prince in Sleeping Beauty; he could be charged with type (a) assault, but not type (b).
  3. Is 'recklessly' for the purposes of assault defined objectively or subjectively?
     Common-law subjective test applies xxxxxxxx
  4. In what circumstances might force by used lawfully? How is this defence governed?
    The rules that govern this defence depend on the degree of the force used.

    If the force is fatal, its lawfulness falls to be determined in accordance with common law.

    If it is not fatal, its lawfulness is governed by sections 18 to 20 of the 1997 Act. 

    The circumstances in which force might be used lawfully include: to defend oneself or another person; to protect property; or to prevent crime or a breach of the peace.
  5. Provide a quote to support the notion that consent is a defence to assault.
    In R v Brown (1994), Lord Templeman stated: "There can be no conviction for the summary offence of common assault if the victim has consented to the assault."
  6. What is the doctrine of implied consent? What section of the 1997 Act deals with this concept?
    The doctrine of implied consent is explained in S2(3),which states: "No such offence [assault] is committed if the force of the impact, not being intended or likely to cause injury, is in the circumstances such as is 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."
  7. What are some examples of actions for which consent would be implied? Support with a quote.
    Goff LJ provided some examples of actions for which consent would be implied in Collins v Wilcock (1984). These included 'jostling' in a supermarket, or having your hand grabbed or back slapped in friendship at a party. He also mentioned "touching a person for the purpose of engaging their attention", but noted that no more physical contact than reasonably necessary should be used.
  8. How is 'force' defined, and in what section of the 1997 Act?
    • Force is defined in S2(2) of the Act as including: 
    • 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."
  9. What is the minimum level of force required for an S2(1) assault offence? Support with a quote.
    There is no minimum level of force. In R v Thomas (1985), Ackner LJ held that "if you touch a person's clothing while he is wearing them, that is equal to touching him. The merest touch could amount to battery." (In this case, the defendant held the bottom of a woman’s skirt and rubbed it; this was held to amount to battery despite the woman not even feeling it.)
  10. Assault involves the application of direct or indirect force or impact to another person. Give an example of a case where indirect force constituted an assault, supported by a quote.
    Indirect force was held to be assault in the case of DPP v K (a minor), 1990. In this case, a schoolboy poured acid into a hand-dryer in the school toilets. The next person to use the machine was badly injured by the acid. 

    In this case, Parker LJ stated: "A defendant who pours a dangerous substance into a machine just as truly assaults the next user of the machine as if he had himself switched the machine on."
  11. In the definition of assault in S2(1)(b), it states that the apprehension required must be of the immediate infliction of force. Provide a quote to explain what this means.
    In R v Horseferry Road Magistrates Court ex parte Siadatan (1991), Watkins LJ noted that 'immediate' should not be confused with 'instantaneous'; it merely implies that the violence will result "within a relatively short period of time and without any intervening occurrence". Applying this understanding of the word 'immediate' is known as the 'flexible proximity test'.
  12. Can words amount to assault?
    If words give rise to the apprehension of immediate force as described in S2(1)(b), it could be argued that they constitute force, but this would more than likely be dealt with under Section 5, which deals with the offence of threats to kill or cause serious injury. Words accompanied by an action could constitute assault if they created apprehension of immediate violence.
  13. Can silent phone calls amount to assault? Support by reference to case law.
    Yes; in R v Ireland (1997), per Swinton LJ, it was held that a series of silent phone calls could constitute assault, as they had the effect of causing the recipient to fear the possibility of immediate personal violence. Ireland had made numerous silent telephone calls to several women, causing them psychological trauma.
  14. Can words negative an assault? Support by reference to case law.
    Yes, words can negative an assault. In Tuberville v Savage (1669), the defendant, Savage, placed his hand upon his sword and said to another: "If it were not assize time, I would not take such language." (Assize time was when judges were in town for court sessions.) It was held that Savage's actions in placing his hand on his sword could have amount to an assault (causing apprehension of immediate violence), but his words neutralised the threat by making it clear that there would be no violence.
  15. What are the potential penalties for assault?
    A summary conviction of S2 assault is punishable by a fine not exceeding 1,900 euro or to a term of imprisonment not exceeding six months, or both.
  16. What is the definition of assault causing harm, and where can this definition be found?
    Assault causing harm is dealt with in S3 of the Non-Fatal Offences Against the Person Act, 1997, which states: "A person who assaults another causing him harm shall be guilty of an offence." 

    'Harm' is defined in S1 of the Act, and includes harm to the body or mind, including pain, unconsciousness and mental suffering.
  17. What is the mens rea for assault causing harm? Where is it indicated?
    The mens rea for the offence is recklessness or intention. These are not expressly stated in the legislation, but they are implied as assault causing harm is a form of assault, which is defined in S2 as involving both forms of mens rea.

    This approach has been questioned, particularly since the case of Minister for Justice, Equality and Law Reform v Dolny (2008). In this case, in the context of a challenge to a European Arrest Warrent, Peart J took the view that Section 3 did not rely on Section 2 for its definition. This would mean that the prosecution do not have to prove mens rea for a Section 3 assault (making it a crime of strict liability).
  18. Aside from Dolny (2008), what other arguments could be made to support the view that a S3 assault is a crime of strict liability?
    • 1) The defence attracts the same maximum penalty as the offence considered in Shannon Regional Fisheries Board v Cavan County Council (1996), which was deemed by the Supreme Court to be an offence of strict liability. 
    • 2) 'Assault causing harm' replaced 'assault occasioning actual bodily harm'. The latter still exists in English law, and is considered an offence of strict liability. 
    • 3) Section 4 'causing harm' spells out a mens rea, so surely if the legislature had wanted to it would have done so for Section 3 assault as well. 

    Note: despite Dolny and the above arguments, the DPP continues to prove a S3 assault by proving the elements of S2, including the presence of mens rea. The correct approach is to view Dolny as relating only to European Arrest Warrant law and not to the interpretation of the criminal law.
  19. Section 3 doesn't mention consent. Does the prosecution need to prove a S3 assault was carried out without the consent of the other person?
    Yes, the prosecution should prove the absence of consent. While it isn't expressly mentioned in S3, it is implied because assault causing harm is a form of assault, which is defined in S2 as an act carried out without the consent of the victim.
  20. Describe a case in which the infliction of mental suffering was held to be assault causing harm.
    In R v Miller (1954), Miller threw his wife to the floor three times during a rape, causing a hysterical reaction. It was held that this hysteria could constitute harm for the purposes of Section 3 assault.
  21. Describe an English case in which the issue of consent was raised in relation to assault causing harm.
    While the legislation on assault causing harm could be interpreted to suggest that consent from the 'victim' would negative any criminal charge, this has not been borne out in case law.

    The issue of consent was discussed by the House of Lords in R v Brown & Ors (1994). This case concerned sado-masochistic activity on the part of the accused and as many as 44 other men. The activity included the maltreatment of the genitalia with hot wax, sandpaper, fish hooks and needles; ritualistic beatings with bare hands or instruments such as nettles or spiked belts; branding; and injuries that resulted in blood flow and scarring. These encounters were had been video-taped, and the tapes were shared among members of the group, though not elsewhere. They were consensual and had been conducted in private. No serious injuries resulted. 

    The accused were charged and convicted of assault occasioning actual bodily harm under the S47 of the Offences Against the Person Act 1861, the equivalent in 1994 of assault causing harm under S3 of the 1997 Act. They appealed to the House of Lords on the following certified point of law of public importance: 

    "Where A wounds or assaults B occasioning him actual bodily harm in the course of a sado-masochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A's guilt under S20 or S47 of the 1861 Act?" 

    The appeal was dismissed, the House of Lords stating that, among other things, that it wasn't enough to consider the actual results of such S&M activity; regard should be had also for the potential results, including infection, the spread of HIV, corruption of youth, or getting carried away and inflicting an injury beyond what was agreed. They also noted that this type of activity could not be included in the same special category of lawful activity causing harm that included boxing and surgery. 

    The convicts appealed to the European Court of Human Rights, contending that their convictions and sentences violated Article 8 of the European Convention, which states that everyone has the right to respect for his private life. The Court unanimously held that there had been no violation, questioning whether the nature of the activities (which involved numerous people and video tapes distributed among members of the group) fell entirely within the notion of 'private life'. They also noted that the State is entitled to seek to regulating, through criminal law, activities that involves the infliction of physical harm. 

    The main takeaway from R v Brown & Ors (1994): consent is not a defence to assault causing harm.

    The decision has been criticised as 'paternalistic'. It has been said that the House of Lords didn't consider S&M to be in the same category as boxing or surgery because they didn't see any social utility in the activity. It has also been suggested that their views on S&M are outdated and that a similar case would have perhaps a different result today.
  22. Contrast R v Brown & Ors (1994) with a case in which consent was a defence to assault causing harm (or its earlier equivalent, occasioning actual bodily harm).
    The issue of consent arose in R v Wilson (1997), in which a man was convicted of assault occasioning actual bodily harm after branding his initials on his wife's buttocks with a hot knife, with her consent. The Court of Appeal allowed his appeal, Russell LJ stating there was no "factual comparison" to be made with Brown and comparing the act to tattooing. He further stated that consensual activity between a man and his wife in the privacy of their home was not a matter for criminal investigation, let alone prosecution.
  23. Describe an Irish case that considered the issue of consent in relation to assault causing harm.
    In the aptly named case of DPP v Brown (2016), a prisoner was charged with assault causing harm. He claimed the victim, another prisoner, had asked him to attack him to that he would be transferred to solitary confinement. The Supreme Court ruled that consent cannot be a defence to an assault causing harm or serious harm where the harm was inflicted for an unlawful purpose.
  24. What are the penalties for assault causing harm?
    • On summary conviction, a fine of up to 1,900 euro and/or prison for up to 12 months
    • On conviction on indictment, a fine and/or prison for up to five years
    • The accused has no right to elect summary vs indictment.
  25. What is the definition of causing serious harm, and where can this definition be found?
    Causing serious harm is defined under S4(1) of the 1997 Act, which reads: "A person who intentionally or recklessly causes serious harm to another person shall be guilty of an offence."

    NOTE: This offence is 'causing serious harm', NOT 'assault causing serious harm'. It is not necessary to prove an assault in order to secure a conviction. Therefore, it is also not necessary to prove that the victim did not consent to the act.
  26. What is the definition of 'serious harm', and where can it be found?
    Serious harm is defined in S4(1) as "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 the function of any particular bodily member or organ." 

    In other words it could be the loss of the function of a hand or eye, paralysis, a large scar, or anything that could have killed you. Note that there is no reference to harm to the mind.
  27. Name a case that considered the definition of 'serious harm' and explain what that case established.
    The People (DPP) v Kirwan (2005) considered the definition of 'serious harm', and according to Kirwan, serious harm does not mean or require proof of an injury with long-term or permanent consequences. The court also observed that when assessing 'serious disfigurement', the jury should take into account the outcome of any medical treatment, not just the person's appearance in the immediate aftermath of the incident.
  28. What are the penalties for causing serious harm?
    A person convicted of causing serious harm is liable on conviction on indictment to a fine or to life imprisonment or both.
  29. Can a parent who slaps a child be charged with assault?
    No; 'lawful chastisement' used to be a common-law offence, but it was abolished by the Children First Act, 2015. A parent who slaps a child can now be charged with the relevant assault offence under the 1997 Act.
  30. What happens if an assault is committed during the context of a sporting event? Name a case where this has been considered.
    The English Court of Appeal considered assault in the context of sport in the case of R v Barnes (2005), in which Barnes injured someone while making a tackle in football. The court favoured a cautious approach. They noted that most organised sports have their own disciplinary procedures, so in most cases there would be no need for legal intervention. Criminal proceedings should only be brought in the gravest of cases. The consent of the victim could only be a defence if the conduct had not gone beyond what would reasonably be expected in the context of the sport. Even if conduct were to go beyond such expectations in the heat of the moment, they still might not reach the threshold required to be criminal. It seems likely that a similar approach would find favour in the Irish courts.
  31. What section of the 1997 Act governs threats to kill or cause serious harm, and what does it say?
    Section 5(1) of the 1997 Act says: "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 party, shall be guilty of an offence."
  32. Name a case that dealt with threats to kill or cause serious harm.
    This was dealt with in Minister for Justice v Machevicius (2007), where it was held that the recovery of one's property is not a 'lawful excuse' to make a threat.
  33. What are the penalties for an offence under S5 of the 1997 Act, ie making a threat to kill or cause serious harm?
    A person convicted of an offence under S5 is liable:

    on summary conviction to a fine up to 1,900 euro and/or a prison term of up to 12 months

    or on conviction on indictment to a fine and/or imprisonment for a term of up to 10 years.
  34. What sections of the 1997 Act deal with syringe offences?
    Syringe offences are dealt with in Sections 6, 7 and 8 of the 1997 Act.
  35. Where and how is 'syringe' defined in the 1997 Act?
    S1 defines a syringe as including any part of a syringe or needle or any sharp instrument capable of piercing the skin and passing into the person blood or any substance resembling blood.
  36. What provisions are made in S6 regarding syringe offences?
    Section 6 deals with: piercing or threatening to pierce the skin of another, or threatening to do so; spraying, pouring or putting on another blood or a substance that looks like blood, or threatening to do so; and offences with contaminated blood.

    S6(1)
     
    deals with piercing or threatening to pierce the skin of another.

    It provides that a person is guilty of an offence if he injures someone by piercing their skin with a syringe, or threatens to do so. This must be done with the intention of causing them to believe they might become infected with a disease as a result, or where it is likely they will believe that. (It doesn't matter if they didn't actually become infected.) 

    S6(2) deals with spraying or threatening to spray blood or a substance resembling blood. It provides that a person is guilty of an offence if he sprays, pours or puts onto another person blood or any fluid or substance resembling blood; or if he threatens to do so. This must be done with the intention of causing them to believe they might become infected with a disease as a result, or where it is likely they will believe that.

    S6(3) indicates that the above offences are subject to the doctrine of transferred intent.

    S6(4) outlines penalties for the offences outlined in subsections 1, 2 and 3. These penalties are the same as those for a S5 (threat) offence: on summary conviction, a fine of up to 1,900 euros and/or a prison term of up to 12 months; and on conviction on indictment, a fine and/or a prison term of up to 10 years.

    S6(5) deals with offences with contaminated blood. These are the most serious syringe attacks. A person is guilty of an offence if he: a) intentionally pierces the skin of another with a contaminated syringe; b) intentionally sprays, pours or puts on another person contaminated blood; or c) injures a third party in attempting to do either of the above. The penalty for an offence under this section is imprisonment for life on conviction for indictment.
  37. What offence is dealt with under S7 of the 1997 Act? What provisions are made?
    S7 deals with possession of a syringe. S7(1) provides that a person is guilty of an offence where he or she has possession of a syringe or blood container in any place with intention to cause or threaten to cause injury or to intimidate another person. They don't have to have had any particular person in mind. Absent an adequate explanation, and with regard to all of the circumstances of the case, the court can regard possession of the syringe sufficient evidence of intent. (An adequate explanation could be that they're diabetic.)

    S7(7)
    provides the penalties for a person guilty of such an offence: on summary conviction, a fine of up to 1,900 euro and/or prison for up to 12 months; or, on conviction on indictment, to a fine and/or up to seven years in prison. (These are the same penalties as for: syringe abandonment; harassment; endangerment; S17 abduction)

    S7(2) gives powers to An Garda Síochána to stop, question and search any person they suspect, with reasonable cause, has a syringe or blood container in a public place with intention to injure, threaten to injure or intimidate someone. The guard can seize or detain any such syringe or container unless that person has a reasonable excuse for having it. The guard can also require the name and address of the person.

    S7(3) gives Gardaí the power to arrest without warrant where a person fails to cooperate. Under S7(4), such a person will be guilty of an offence and liable on summary conviction to a fine of up to 1,900 euro and/or to imprisonment for up to six months.
  38. What offence is dealt with under S8 of the 1997 Act? What provisions are made?
    S8(1) states that it is an offence to place or abandon a syringe in any place in such a manner that it is likely to injure another and does injure another or is likely to injure, cause a threat to or frighten another. 

    (Note that this doesn't apply if you place a syringe somewhere it's NOT likely to injure someone, but does.) 

    Defences for this offence are outlined in S8(3) and (4). They include: 1) (under ss3) placing the syringe in any place while administering or assisting in lawful medical, dental or veterinary procedures; 2) (under ss4) where the syringe was placed in a private dwelling and the accused did not intentionally place it in such a manner that it was likely to injure, cause a threat to or frighten someone. 

    S8(5) outlines the penalties for S8(1) offences as follows: on summary conviction, a fine of up to 1,900 euro and/or a prison sentence of up to 12 months; on conviction on indictment, a fine and/or prison for up to seven years. (These are the same penalties as for: syringe possession; harassment; endangerment; S17 abduction)

    S8(2) provides that a person is guilty of an offence where he or she intentionally places a contaminated syringe in any place in such a manner that it injures a person.

    (Note: the intention is not to injure, but to place a contaminated syringe.) 

    The penalty for this is provided in S8(6): on conviction on indictment, life imprisonment.
  39. What is the definition of coercion, and what section of the 1997 Act deals with this offence?
    • Coercion is dealt with in S9, which provides that it is an offence to compel another, wrongfully and without lawful authority, to do something or abstain from doing something that person has a lawful right to do or abstain from doing, by:
    • 1) using violence or intimidation on that person or a member of their family; 
    • 2) damaging their property (this can include animals, money, anything tangible);
    • 3) persistently following that person from place to place; 
    • 4) watching or besetting (being constantly present at) a place where that person resides, works or carries on business, or where they happen to be, or the approach to such a place; 
    • 5) following that person with one or more other people in a disorderly manner in or through any public place.

    It's a defence if you were at the person's home/workplace merely to obtain or communicate information.
  40. What are the penalties for coercion, and where are they provided?
    The penalties for coercion are provided in S9(3). They are as follows: 

    • on summary conviction, a fine of up to 1,900 euro and/or prison for up to 12 months
    • on conviction on indictment, a fine and/or a prison term of up to five years.
  41. What constitutes harassment, and what section of the 1997 Act deals with this offence?
    Harassment is dealt with in S10. S10(1) provides that it is an offence to harass another, without lawful authority or reasonable excuse, by any means including by use of the telephone or by persistently following, watching, pestering, besetting or communicating with him or her. (FWPBC: Felicia Wants Peanut Butter Cupcakes) 

    S10(2) provides that a person harasses another: a) by intentionally or recklessly causing serious interference with that person's peace and privacy or causing alarm, distress or harm to that person; b) where his actions are such that a reasonable person would realise they would cause such interference, alarm, distress or harm.

    (The words 'reasonable person' denote an objective standard.)

    Note: Oireachtas debates re: the 1997 Act have made it clear that S10 was put in place to deal with stalking.
  42. What are the penalties for harassment and where are they dealt with?
    The penalties for harassment are outlined in S10(6). They are: on summary conviction, a fine of up to 1,900 euro and/or prison for up to 12 months; and on conviction on indictment, a fine and/or imprisonment for up to seven years. (These are the same penalties as for: syringe possession/abandonment; endangerment; S17 abduction)

    Under S10(3), the court can order, instead of or in addition to any other penalty, that the defendant shall not communicate with the victim by any means for a specified time period, and shall not come within a certain distance of their home or workplace. (Such an order can be made even if the person isn't convicted, if the court feels justified in doing so; the constitutionality of this has been questioned.) Under S10(4), a person who fails to comply with such an order is guilty of an offence.
  43. Name and describe two cases in which an accused was found guilty of harassment under S10.
    In The People (DPP) v Quirke (2010), the accused, at various times over a four-year period, followed her and drove to her estate and her workplace. The courts were satisfied that this amounted to harassment.

    In The People (DPP) v Woods, the accused made over 2,000 phone calls to the victim. This clearly satisfies the 'persistent' requirement; it is unclear whether one or two phone calls would satisfy that requirement, although in Wass v DPP (2000) (see next question), two separate incidents were found to amount to harassment.
  44. 'Persistently' is not defined in the Act. Name and describe some cases that help us understand the meaning of this word for the purposes of S10 harassment.
    In the UK case of Wass v DPP (2000), the accused followed his ex-girlfriend in his car as she travelled on a bus, and blocked her way when she got off. She went into a shop to get away from him, and he waited for her outside and tried to persuade her to get into his car. The court held that these actions constituted two separate incidents, and that this satisfied the UK equivalent of the 'persistent' requirement. UK case law on harassment was adopted by the Irish courts in The People (DPP) v Lynch (2010). In DPP v Aliphon (2016), it was held that a series of incidents that individually would not constitute harassment could do so cumulatively.
  45. What section of the 1997 Act covers poisoning, and what provisions are made?
    Poisoning is covered by S12. A person is guilty of an offence where, knowing that the other does not consent to what is being done, he intentionally or recklessly administers or causes to be taken by another a substance he knows to be capable of interfering substantially with the other's bodily functions. A substance capable of inducing sleep or unconsciousness is capable of interfering with bodily functions.
  46. What are the penalties for poisoning, and where are they provided?
    S12(3) provides the following penalties for poisoning: on summary conviction, a fine of up to 1,900 euro and/or prison for up to 12 months; on conviction on indictment, a fine and/or prison for three years.
  47. What constitutes endangerment, and what section of the 1997 Act covers this offence?
    Endangerment is covered by S13, which provides that it is an offence for a person to intentionally or recklessly engage in conduct that creates a substantial risk of death or serious harm to another. There is no requirement that death or serious harm actually occurs.
  48. What are the penalties for endangerment?
    The penalties are the same as for syringe possession/abandonment and harassment: on summary conviction, a fine of up to 1,900 euros and/or prison for up to 12 months; on conviction on indictment, a fine and/or up to seven years in prison. (These are the same penalties as for: syringe possession/abandonment; harassment; S17 abduction)
  49. Name and describe a case that dealt with endangerment.
    Endangerment under S13 was considered in the case of The People (DPP) v Cagney and The People (DPP) v McGrath (2008). In this case, the accused were acquitted of manslaughter but convicted of endangerment after a drunken brawl that resulted in the death of another man. (In the Supreme Court, however, Hardiman J expressed concern that the offence of endangerment was being charged when more precise options such as assault were available.)
  50. What constitutes false imprisonment, and what section of the 1997 Act covers this offence?
    False imprisonment is covered in S15, which provides that a person is guilty of an offence where he intentionally or recklessly a) takes or detains, or b) causes to be taken or detained, or c) otherwise restricts the personal liberty of another person without that person's consent. 

    Consent is not valid if obtained by force, the threat of force, or deception, eg by causing the person to believe they're legally obliged to consent.

    There is no minimum temporal requirement.
  51. Name three important cases with regard to false imprisonment, and describe their significance.
    Bird v Jones (1845) established that restraint must be complete, with no means of escape (ie surrounding a person on three sides did not constitute false imprisonment).

    Dullaghen v Hillen & King (1957) held that the prisoner does not have to be aware he is being falsely imprisoned. (So it's possible to falsely imprison someone who is asleep.) 

    Kane v Governer of Mountjoy Prison (1988) held that close surveillance does not constitute false imprisonment if there is a basis to justify it.
  52. What are the penalties for false imprisonment?
    S15(3) provides that the penalties for false imprisonment are: on summary conviction, a fine of up to 1,900 euro and/or prison for up to 12 months; and on conviction on indictment, up to life imprisonment.
  53. How does Irish law define the abduction of a child by a parent, etc, and what section of the 1997 Act deals with this offence?
    Abduction of a child by a parent, etc, is dealt with in S16. It's defined as the removal of a child under 16 from the State by a parent, a guardian, or a person to whom custody of the child has been granted by a court. Note: this doesn't include a parent who is NOT a guardian of the child. To qualify as an offence under S16, this removal must be done a) in defiance of a court order, or b) without the consent of each other parent, guardian, etc., unless the consent of the court was obtained.
  54. What defences can someone use if they're convicted of a child abduction offence under S16?
    S16(3) provides the following defences: a) the accused was not able to communicate with the other parent, guardian, etc, but believed they would consent if they were aware of the circumstances; b) the accused did not intend to deprive others of having the right of guardianship or custody they were entitled to.

    The consent of the child is irrelevant.
  55. How does Irish law deal with the abduction of a child by other persons, ie someone other than those mentioned in S16?
    Abduction of a child by other persons is dealt with in S17. A person other than one to whom S16 applies is guilty of an offence if he or she, without lawful authority or reasonable excuse, intentionally takes or detains a child under 16 or causes them to be taken or detained, so as to remove the child or keep the child from the lawful control of any person having lawful control of the child.
  56. Is there a defence to S17 abduction?
    It is a defence if the accused believes the child was over the age of 16. Such belief doesn't have to be reasonable, only honestly held.

    The consent of the child is irrelevant.
  57. What are the penalties for S17 abduction?
    On summary conviction: a fine of up to 1,900 euro and/or up to 12 months in prison; and on conviction on indictment, a fine and/or up to seven years in prison. (These are the same penalties as for: syringe possession/abandonment; harassment; endangerment)
Author
mrh2304
ID
354823
Card Set
Non-Fatal Offences Against the Person
Description
Non-Fatal Offences Against the Person
Updated