Defences
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997
Justifiable use of force; protection of person or property, prevention of crime, etc.
18.—(1) 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.
(2) “use of force” in subsection (1) is defined and extended by section 20.
F9[(3) For the purposes of this section an act is “criminal” notwithstanding that the person doing the act—
(a) if charged with an offence in respect of it, would be acquitted on the ground that—
(i) he or she acted under duress,
(ii) his or her act was involuntary,
(iii) he or she was in a state of intoxication, or
(iv) he or she was insane so as not to be responsible according to law for the act,
or
(b) was a person to whom section 52(1) of the Children Act 2001 applied.]
(4) The references in subsection (1) to protecting a person and property from anything include protecting the person or property from its continuing; and the reference to preventing crime or a breach of the peace shall be similarly construed.
(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.
(6) Notwithstanding subsection (1), a person who believes circumstances to exist which would justify or excuse the use of force under that subsection has no defence if he or she knows that the force is used against a member of the Garda Síochána acting in the course of the member’s duty or a person so assisting such member, unless he or she believes the force to be immediately necessary to prevent harm to himself or herself or another.
(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.
(8) Property shall be treated for the purposes of subsection (1) (c) and (d) as belonging to any person—
(a) having the custody or control of it;
(b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or
(c) having a charge on it;
and where property is subject to a trust, the persons to whom it belongs shall be treated as including any person having a right to enforce the trust.
Property of a corporation sole shall be treated for the purposes of the aforesaid provisions as belonging to the corporation notwithstanding a vacancy in the corporation.
F10[(9) In subsection (3) “intoxication” means being under the intoxicating influence of any alcoholic drink, drug, solvent or any other substance or combination of substances.]
Annotations
Amendments:
F9
Substituted (13.01.2012) by Criminal Law (Defence and the Dwelling) Act 2011 (35/2011), s. 6(a), S.I. No. 2 of 2012.
F10
Inserted (13.01.2012) by Criminal Law (Defence and the Dwelling) Act 2011 (35/2011), s. 6(b), S.I. No. 2 of 2012.
Justifiable use of force in effecting or assisting lawful arrest.
19.—(1) The use of force by a person in effecting or assisting in a lawful arrest, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence.
(2) “use of force” in subsection (1) is defined and extended by section 20.
(3) For the purposes of this section the question as to whether the arrest is lawful shall be determined according to the circumstances as the person using the force believed them to be.
Meaning of “use of force” and related provisions.
20.—(1) For the purposes of sections 18 and 19—
(a) a person uses force in relation to another person or property not only when he or she applies force to, but also where he or she causes an impact on, the body of that person or that property;
(b) a person shall be treated as using force in relation to another person if—
(i) he or she threatens that person with its use, or
(ii) he or she detains that person without actually using it; and
(c) a person shall be treated as using force in relation to property if he or she threatens a person with its use in relation to property.
(2) Sections 18 and 19 shall apply in relation to acts immediately preparatory to the use of force as they apply in relation to acts in which force is used.
(3) A threat of force may be reasonable although the actual use of force may not be.
(4) The fact that a person had an opportunity to retreat before using force shall be taken into account, in conjunction with other relevant evidence, in determining whether the use of force was reasonable.
Amendment of section 6 of the Criminal Damage Act, 1991.
21.—Section 6(2) of the Criminal Damage Act, 1991, is hereby amended by the substitution for paragraph (c) of the following paragraph:
“(c) if he damaged or threatened to damage the property in question or, in the case of an offence under section 4, intended to use or cause or permit the use of something to damage it, in order to protect himself or another or property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another and the act or acts alleged to constitute the offence were reasonable in the circumstances as he believed them to be.”.
General defences, etc.
22.—(1) The provisions of this Act have effect subject to any enactment or rule of law providing a defence, or providing lawful authority, justification or excuse for an act or omission.
(2) Notwithstanding subsection (1) any defence available under the common law in respect of the use of force within the meaning of section 18 or 19, or an act immediately preparatory to the use of force, for the purposes mentioned in section 18(1) or 19(1) is hereby abolished.
Consent by minor over 16 years to surgical, medical and dental treatment.
23.—(1) The consent of a minor who has attained the age of 16 years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his or her person, shall be as effective as it would be if he or she were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his or her parent or guardian.
(2) In this section “surgical, medical or dental treatment” includes any procedure undertaken for the purposes of diagnosis, and this section applies to any procedure (including, in particular, the administration of an anaesthetic) which is ancillary to any treatment as it applies to that treatment.
(3) Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted.
Abolition of common law rule in respect of immunity of teachers from criminal liability for punishing pupils.
24.—The rule of law under which teachers are immune from criminal liability in respect of physical chastisement of pupils is hereby abolished.
F11[
Abolition of defence of reasonable chastisement
24A.—(1) The common law defence of reasonable chastisement is abolished.
(2) Subsection (1) shall not apply in respect of proceedings brought against a person for an offence consisting in whole or in part of any act done by the person before the commencement of section 28 of the Children First Act 2015, whether those proceedings were brought before, on or after such commencement.
(3) This section shall not affect the operation of section 24.]
Annotations
Amendments:
F11
Inserted (11.12.2015) by Children First Act 2015 (36/2015), s. 28, S.I. No. 555 of 2015.
Editorial Notes:
E27
The section heading is taken from the amending section in the absence of one included in the amendment.
Evidential value of certain certificates signed by medical practitioners.
F12[25.—(1) In any proceedings for an offence alleging the causing of harm or serious harm to a person, the production of a certificate purporting to be signed by a registered medical practitioner and relating to—
(a) an examination of that person by the registered medical practitioner,
(b) an examination of that person by another person who was acting under the supervision, or was otherwise subject to the authority, of the registered medical practitioner, or
(c) the medical assessment by the registered medical practitioner of the medical records relating to an examination of that person,
shall, unless the contrary is proved, be evidence of any fact or opinion (including an opinion in relation to the source or effect of, or a prognosis in respect of, harm or serious harm to the person) thereby certified without proof of any signature thereon or that any such signature is that of such registered medical practitioner.
(2) A certificate to which subsection (1) applies shall include a statement as to which paragraph of that subsection applies to the registered medical practitioner who signs the certificate.
(3) In this section, “registered medical practitioner” means a person who is a registered medical practitioner within the meaning of section 2 of the Medical Practitioners Act 2007.]
Annotations
Amendments:
F12
Substituted (1.11.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 26(1), S.I. No. 525 of 2023.
Modifications (not altering text):
C3
Prior medical certificates unaffected by this section as provided (1.11.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 26(2), S.I. No. 525 of 2023.
Amendment of section 25 of Act of 1997
(2) The validity of a certificate to which section 25 of the Act of 1997 applies that was signed by a registered medical practitioner before the coming into operation of subsection (1) shall not be affected by such coming into operation.
C4
References to “registered medical practitioner” and “General Register of Medical Practitioners” construed (16.03.2009) by Medical Practitioners Act 2007 (25/2007), s. 108, S.I. No. 40 of 2009, as amended (21.12.2007) by Health (Miscellaneous Provisions) Act 2007 (42/2007), s. 20 and sch. 2, commenced on enactment.
Construction of references to registered medical practitioner and Medical Council, etc.
108.— (1) Every reference to a registered medical practitioner contained in any enactment or any statutory instrument shall be construed as a reference to a registered medical practitioner within the meaning of section 2.
(2) Every reference to the General Register of Medical Practitioners contained in any other enactment or any statutory instrument[, on and after the register establishment day,] shall be construed as a reference to any division of the register.
Amendment of Schedule to Criminal Law (Jurisdiction) Act, 1976.
26.—The Schedule to the Criminal Law (Jurisdiction) Act, 1976, is hereby amended—
(a) by the deletion, in paragraph 5, of “False imprisonment.”, and
(b) by the substitution for paragraph 7 of the following:
“7. Any offence under the following provisions of the Non-Fatal Offences against the Person Act, 1997—
(a) section 4 (causing serious harm);
(b) section 15 (false imprisonment).”.
Amendment of First Schedule to Extradition (Amendment) Act, 1994.
27.—The First Schedule to the Extradition (Amendment) Act, 1994, is hereby amended—
(a) by the deletion, in paragraph 4, of “False imprisonment.”,
(b) by the deletion, in paragraph 5, of “Assault occasioning actual bodily harm.”, and
(c) the substitution for paragraph 6 of the following:
“6. Any offence under the following provisions of the Non-Fatal Offences against the Person Act, 1997—
(a) section 3 (assault causing harm);
(b) section 4 (causing serious harm);
(c) section 15 (false imprisonment).”.
Amendment of section 9 of Criminal Law Act, 1997.
29.—Section 9 of the Criminal Law Act, 1997, is hereby amended by the substitution for paragraph (a) of subsection (2) of the following paragraph:
“(a) manslaughter, or causing serious harm with intent to do so, or”.
Amendment of Schedule to Bail Act, 1997.
30.—The Schedule to the Bail Act, 1997, is hereby amended by—
(a) the deletion in paragraph 3 of “Assault occasioning actual bodily harm.”,
(b) the deletion in paragraph 4 of “Kidnapping.”,
(c) the deletion in paragraph 5 of “False imprisonment.”, and
(d) the substitution for the matter contained in paragraph 7 of the following:
“Any offence under the following provisions of the Non-Fatal Offences against the Person Act, 1997—
(a) section 3 (assault causing harm);
(b) section 4 (causing harm);
(c) section 5 (threats to kill or cause serious harm);
(d) section 6 (syringe, etc. attacks);
(e) section 7 (1) (offence of possession of syringe, etc. in certain circumstances);
(f) section 8 (placing or abandoning syringe);
(g) section 9 (coercion);
(h) section 10 (harassment);
(i) section 13 (endangerment);
(j) section 14 (endangering traffic);
(k) section 15 (false imprisonment);
(l) section 16 (abduction of child by parent, etc.);
(m) section 17 (abduction of child by other persons).”.
Repeals.
31.—Each enactment specified in column (2) of the Schedule to this Act is hereby repealed to the extent specified in column (3) of that Schedule.
Short title and commencement.
32.—(1) This Act may be cited as the Non-Fatal Offences against the Person Act, 1997.
(2) This Act (other than sections 6, 7, 8 and 10) shall come into operation 3 months after the date of its passing.
(3) Sections 6, 7, 8 and 10 shall come into operation on the day after the date of the passing of this Act.
SCHEDULE
Enactments Repealed
Section 31.
Session and Chapter or Number and Year
Short Title
Extent of Repeal
(1)
(2)
(3)
24 & 25 Vict., c.100
Offences against the Person Act, 1861
Sections 16 to 26, 28 to 34, 36, 37, 39, 40, 42, 46, 47, 53 to 56, 64, 65 and 73
38 & 39 Vict., c.86
Conspiracy and Protection of Property Act, 1875
Sections 6 and 7
48 & 49 Vict., c.69
Criminal Law Amendment Act, 1885
Paragraph (3) of section 3 and sections 7 and 8
No. 2 of 1951
Criminal Justice Act, 1951
Section 11
No. 32 of 1976
Criminal Law Act, 1976
Subsection (2) of section 11