Assaults

Non-Fatal Offences Against the Person

The Non-Fatal Offence against the  Person Act 1997 modernise law in relation to non-fatal offences against a person.  Many common law crimes were abolished and replaced with statutory crimes.

The elements of the respective crimes are now defined by the statute. The common law immunity for parents, teachers and other persons in loco parentis to use reasonable chastisement was abolished.

Requirements for Assault

Assault must generally comprise an act.  An omission will not generally suffice.  Even if a person accidentally causes a state of affairs, an omission to correct it, does not deem the original application of force to be an assault.

The basic offence of assault is committed where a person without lawful excuse intentionally or recklessly causes another to believe on reasonable grounds, that he or she is likely immediately to be subject directly or indirectly to a force or impact without consent.

Generally, words are not sufficient to constitute assault.  However, words, accompanied by some gestures and action may be sufficient. Words may negate an intention to assault. A person by his words may undo the effect of apparently threatening and menacing behaviour.

The modern view appears to be that assault may be committed by words alone.  There should be a means or apparent means of carrying out the assault.

Ordinary Assault

A person is guilty of assault if he without lawful excuse intentionally or recklessly-

• directly or indirectly applies forces 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
• without the consent of the other.

The person must intend the assault or be reckless (i.e. avert to an obvious risk but ignore it) as to whether the assault takes place.

Assault can be direct or indirect. Force includes the application of heat, light, noise, electricity or another form of energy or anything in solid, liquid or gaseous form. An impact involves an action that causes force to be applied to the body of another.

Criminal assault is effectively an amalgam of the civil law of assault and battery. The civil wrong (tort) of assault requires the apprehension of a battery.

Simple assault is the equivalent of the civil wrong (tort) of battery. It committed by the application of the slightest amount of force. It can be committed by without the person concerned being aware. Touching the body includes touching clothes.

Force

Force may be applied directly or indirectly.  The direct application of force would include immediate, personally inflicted violence.  It would also include setting a dangerous animal or some other direct act that causes an immediate personal impact.

Indirect assault embraces a range of possibilities. It may arise from something some considerable time before the relevant event. It may for example, involve setting a dangerous device.

Force refers to any physical force but also includes heat, light, electric current noise or another form of energy or the application of something in solid,liquid or gaseous form.

No offence is committed if the force of impact is not intended or likely to cause injury and 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.

Assault without Physical Impact

The second form of assault is equivalent to the civil wrong of assault. The person must apprehend the immediate infliction of force or impact. In respect of this type of assault, the person must apprehend a possible contact. It does not matter whether the person fears the contact. The question is whether he or she consents. It must be reasonable for the person to apprehend the touching or impact.

The apprehension must be immediate. It must be apprehended within a reasonably short time. General threats made, for example, remotely would not be generally sufficient. An immediate impact of force is required.

Words by themselves may be enough to constitute an assault. A threat may be made which would make a reasonable person fear an immediate physical impact. Actions and gestures may be enough, provided that objectively, they create an apprehension of immediate violence.

Technically any contact without consent constitutes an assault. However, there is some degree of deemed consent to contact, for example, in a crowd or similar other everyday situations. In effect, the consent of others is implied.

The legislation provides that no offence is committed if force or 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 persons.

Assault Causing Harm

The offence of assault causing harm is committed when a person assaults another, causing him or her harm.  There is no requirement of intention or recklessness, as in the case of simple assault. Harm includes any harm to the body or mind.  It includes pain and unconsciousness.

In order to be guilty of assault causing harm,  the person must be guilty of ordinary assault and harm as defined in the legislation must have occurred.

Aggravated assault is assault causing harm. It can be prosecuted summarily or on indictment. On summary trial, the maximum penalty is €1,905 or 12 months imprisonment or both. On conviction on indictment, the maximum penalty is fine or  5 years’ imprisonment.

This offence replaced the older offence of assault causing bodily harm under the  Offences Against the Person Act 1861.  Cases under that Act illuminate the meaning of harm.  Harm includes most hurts or injuries which interfere with health and comfort.

Non-fatal strangulation or non-fatal suffocation

A person shall be guilty of an offence who, without lawful excuse, intentionally or recklessly—

• strangles or suffocates another, or
• causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to suffocation or strangulation.

In a prosecution  it shall be a defence for the accused to show that the other consented to the strangulation or suffocation of which the offence consists.

A person guilty of an offence  shall be liable—

• on summary conviction, to a class A fine or to imprisonment for a term not exceeding 12 months, or to both, or
• on conviction on indictment, to a fine or to imprisonment for a term not exceeding 10 years, or to both.

A person charged with an offence  if the evidence does not warrant a conviction for that offence but warrants a conviction for assault causing harm, be found guilty of that offence.

• “strangle” includes applying, directly or indirectly, force to the neck of another so as to impede breathing or the circulation of blood;
• “suffocate” includes— asphyxiating another, and  impeding the breathing of another, including by— covering the mouth or nose,  constricting the chest, or  blocking, by means of a foreign object, the airways, of the other.