Defences

Consent

The absence of consent is required for assault.  However, consent must be freely given. The  person concerned must know the nature of the act.  He must be of sound mind and full age.

Consent is not a defence to the infliction of bodily injury or injuries constituting a breach of the peace.Most fights are unlawful.  If they are in public, they constitute a breach of the peace.  If they are in private, they would run the risk of actual harm, to  which a person may not consent.

Persons over 16 years of age may give consent to any surgical, medical or dental treatment which would otherwise constitute a trespass to his person –

There are limits to the extent to which a person may consent to the imposition of harm.  Questions of public interest arise as to how far persons should be allowed consent to the infliction of  bodily harm.  The social acceptability of conduct would be relevant.  Where there is no aggressive intent, parties may consent to certain acts in private where there is no compelling public reason to the contrary.

Proof of psychological or psychiatric harm  would normally require proof by an expert.  There may be assault causing harm silent or threatening  phone calls on a persistent basis causing diagnosable symptoms or other or discernible harm.

Limits to Consent

In the context of consent it has  been held by the UK courts that sadomasochistic desires are not sufficiently good reason to permit consent to the  imposition of serious harm.

A person knowing, he has a sexual disease, who recklessly transmit it to another through  consensual sexual intercourse may be guilty of causing serious harm. The consent is negated if the person  concerned is unaware of the risk of being subject to a serious disease.

A certificate signed by a registered medical practitioner relation to the examination of the victim shall until contrary prove the evidence of any fact certified without further proof of any signature.

Defences

There are defences to the use of force in the legislation. They include

• self defence and defence of family
• protecting from trespass to the person
• protecting property from a criminal act
• protecting another’s property from a criminal act
• prevention of crime
• prevention of the breach of the peace
• effecting a lawful arrest

This use of force must be as reasonable as is honestly believed necessary.  A belief need not necessarily be objectively justified if it is honestly held.

A person is deemed to use force in relation to another person not only when he applies force, but also when he causes an impact on the body of another person or property . A person is treated as using force in relation to another person if he  threatens that person with its use or he detains a person without actually using it.

Force includes acts immediately preparatory for the use of force. A threat of force may be reasonable although the actual use of force may not be

A member of a family or a person means a spouse, child, including stepchildren, adopted children, grandparent, parent, grandparent, stepparent, grandchild, half-brother, half-sister, uncle aunt, nephew, niece or co-habitee.

Protection of Property

The use of force for the following purposes if it is only such as reasonable in all the circumstance as he or she believe them to be is not an offence —

• protection of his or her property from appropriation, destruction, damage caused by a criminal act,  trespasser or infringement
• protection of property belonging to another from appropriation, destruction or damage caused by a criminal act or with the authority of that other from trespassing or infringing.

Force may be used to expel a burglar.  Force may be used to resist a person who attempts to take one’s property or another person’s property in the above circumstances.  In the case of the trespasser, he should be first requested to leave the property before force is used.

A person is not generally obliged to retreat from threatening circumstances, but the totality of the circumstances will be taken into account.Legislation has sought to remove the obligation to retreat in one’s own home.. A person is not obliged to retreat within his dwelling house.

The actions of the person exercising defence must be reasonable and proportionate in the case of property.

Preventing Crime or Breach of the Peace

The use of force, to prevent a crime or a breach of the peace, which is reasonable in the circumstances, is a defence. For this purpose, the conduct is deemed criminal notwithstanding that  person may not be convicted on the grounds of duress, involuntary action, being underage, absence of sound mind or intoxication.

The protection of a person or property from anything includes protection from a state of affairs continuing. The question is as to whether an act in relation which force is used falls in the above categories is determined in accordance with  the circumstances as the person using the force believes them to be.

A person who believes that circumstance  exist justifying or excusing the use of force has no defence if the force is used against a member of an Garda Síochána acting in the course of his duty or a person assisting him, unless he or she believes the force to be immediately necessary  to prevent harm to himself or another.

Limits to Defences

The defence does not apply to a  person who causes conduct or a state of affairs with a view to use in force to resist or terminate it.  It may apply although the occasion for the use of force only arises because the person does something he may lawfully do, even if he knows that such occasion may arise.

The above provisions apply to acts immediately preparatory for  the use of force as they apply to the use of force themselves.  This may refer, for  example to acts of preparing for defence against attack. However, if the person continues the actions, or for example, possesses a weapon when the threat is no longer applicable, the defence is no longer available.

The use of force by a person in effecting or assisting a lawful arrest is lawful provided strictly that it is reasonable in the circumstance as he believes them to be.

The circumstances are determined in accordance with how the person using the force believes them to be. The fact that a person has an opportunity to retreat before using force is taken into account in conjunction with other relevant evidence in determining whether the use of force was reasonable.