defense for assault & criaminal damage ?

trilarkin

Hi There just doing some research on defences for assault & criminal damage, example : Guy is arrested under section 4,6 & 8 of Criminal Justice (Public Order) Act, 1994, as he is being put into a position for arrest on the ground (hes resisting) the act of arresting causes mirror on petrol car to be broken, being handcuffed on ground & up to 10 guards handling him, is lifted from ground arms 1st, the act of this causes extreme pain on his wrists as cuffs are over tightened, he then turns & bites in to leg of an officer in what he calls "an act of defence from the pain". section 18 (3)(b) Non-Fatal Offences Against the Person Act, 1997 allows for "he or she acted under duress, whether by threats or of circumstances" as a defence to assault, being put in this circumstance by pain can this follow threw for his defence & section 2 (2)(a) Criminal Damage Act, 1991 "intending to damage any property or being reckless as to whether any property would be damaged" can this be used as his defence as he did not intend to cause damage because in the course of his arrest the method the guards used caused this to happen. also knowing that he resisted arrest & being 10 guards on the seen there was more than enough strength on guards part to insure this did not happen. Thanks

gustafo

I think he is a bit of a nutter:)

trilarkin

If he his he could plea insanity but seriously that's what Irish statute book is there for, take being "in a state of intoxication" why the hell but it in there if it is hardly used any more as a defence, the statutes are absent of opinion & Judges by the most part are too but as i can see it that is the flaw in law & this affects Innocent & guilty alike

Reloc8

So is this a homework problem question or what ?

MagicSean

trilarkin wrote: »

Hi There just doing some research on defences for assault & criminal damage, example : Guy is arrested under section 4,6 & 8 of Criminal Justice (Public Order) Act, 1994, as he is being put into a position for arrest on the ground (hes resisting) the act of arresting causes mirror on petrol car to be broken, being handcuffed on ground & up to 10 guards handling him, is lifted from ground arms 1st, the act of this causes extreme pain on his wrists as cuffs are over tightened, he then turns & bites in to leg of an officer in what he calls "an act of defence from the pain". section 18 (3)(b) Non-Fatal Offences Against the Person Act, 1997 allows for "he or she acted under duress, whether by threats or of circumstances" as a defence to assault, being put in this circumstance by pain can this follow threw for his defence & section 2 (2)(a) Criminal Damage Act, 1991 "intending to damage any property or being reckless as to whether any property would be damaged" can this be used as his defence as he did not intend to cause damage because in the course of his arrest the method the guards used caused this to happen. also knowing that he resisted arrest & being 10 guards on the seen there was more than enough strength on guards part to insure this did not happen. Thanks

Have you ever tried to arrest someone off their head on cocaine?

I didn't think self defence could be used in a situation where the other party was acting lawfully. In such a situation any person being arrested could attack the Gardaí and claim self defence.

detective

k_mac wrote: »

Have you ever tried to arrest someone off their head on cocaine?

I didn't think self defence could be used in a situation where the other party was acting lawfully. In such a situation any person being arrested could attack the Gardaí and claim self defence.

I don't think the OP is saying this is his belief personally but rather what he could put forward in a courtroom as a defense to throw in the auld "element of doubt". Its not for us to criticise, however, I have seen Judges eating the heads off of solicitors for saying things like this. Then again, I've also seen them acquit people!

Reloc8

There's so much stuff engaged here its difficult to be precise (duress by the way has not a lot to do with the issues engaged)...

...I just want to know if by replying I'm doing someone's homework or wha...

trilarkin wrote: »

If he his he could plea insanity but seriously that's what Irish statute book is there for, take being "in a state of intoxication" why the hell but it in there if it is hardly used any more as a defence, the statutes are absent of opinion & Judges by the most part are too but as i can see it that is the flaw in law & this affects Innocent & guilty alike

^ This, I don't follow.

trilarkin

detective wrote: »

I don't think the OP is saying this is his belief personally but rather what he could put forward in a courtroom as a defense to throw in the auld "element of doubt". Its not for us to criticise, however, I have seen Judges eating the heads off of solicitors for saying things like this. Then again, I've also seen them acquit people!

Your right detective, If this hypothetical case sits before a jury the element of doubt will have to be raised, mush of what aids defence of these charges is a true belief in what the person did "he believes he done right in his own belief" cases like this can go either way & the dpp know this very well when they give the defendant a choice between district & circuit court,where sentences can go up to life, a person who believes hes Innocent might plea guilty in district & get a much smaller sentence rather than pealing not guilty and facing up to life, the risk is much greater & the reward is too when they can be acquitted where doubt is involved.

Reloc8

trilarkin wrote: »

section 18 (3)(b) Non-Fatal Offences Against the Person Act, 1997 allows for "he or she acted under duress, whether by threats or of circumstances" as a defence to assault, being put in this circumstance by pain can this follow threw for his defence & section 2 (2)(a) Criminal Damage Act, 1991 "intending to damage any property

Sorry mate you've got that section very wrong. Section 18(3)(b) says that for the purposes of S. 18 that a crime is considered a crime even though a person charged with it would be acquitted on grounds of duress.

Section 18(1) says use of reasonable force in the circumstances as the accused believed them to be is not an offence if it is done to prevent crime or to protect yourself or a another person from injury, assault or detention caused by a criminal act (amongst other things).

So Section 18(3)(b) just means that if you use reasonable force to prevent what would be a crime or criminal act, that's permissible even though the person you use the force against would be aquitted on grounds of duress.

i.e. you're entitled to use force to protect yourself/another against someone who is assaulting you or another, even if the person assaulting you is under 7 years old, intoxicated, acting involuntarily, insane, or duressed and would therefore be either wholly or partly not liable criminally for their actions.

trilarkin

Reloc8 wrote: »

So Section 18(3)(b) just means that if you use reasonable force to prevent what would be a crime or criminal act, that's permissible even though the person you use the force against would be aquitted on grounds of duress.

i.e. you're entitled to use force to protect yourself/another against someone who is assaulting you or another, even if the person assaulting you is under 7 years old, intoxicated, acting involuntarily, insane, or duressed and would therefore be either wholly or partly not liable criminally for their actions.

Ok what about unintentionally doing what he did, the pain causing his lack of attention in the way he acted, when the intention isn't there the crime isn't there?

seamus

trilarkin wrote: »

Ok what about unintentionally doing what he did, the pain causing his lack of attention in the way he acted, when the intention isn't there the crime isn't there?

You can't argue that because something wasn't intentional, that it didn't occur.
The argument here would be whether or not his intention was to bite something or whether the Garda's leg simply got in the way of the man's open mouth. Since he presumably bit down, I would suggest that his intention was to bite (to cause harm) and therefore it was not accidental.

Think about it this way - if a man is carrying a baseball bat, feels pain and then indiscriminately swings the bat in response to that source of pain, his intention is to hit *something*. On the other hand if he drops the bat in response to the pain and it hits someone, then there's no crime there because there's no intent.

trilarkin

seamus wrote: »

You can't argue that because something wasn't intentional, that it didn't occur.
The argument here would be whether or not his intention was to bite something or whether the Garda's leg simply got in the way of the man's open mouth. Since he presumably bit down, I would suggest that his intention was to bite (to cause harm) and therefore it was not accidental.

Think about it this way - if a man is carrying a baseball bat, feels pain and then indiscriminately swings the bat in response to that source of pain, his intention is to hit *something*. On the other hand if he drops the bat in response to the pain and it hits someone, then there's no crime there because there's no intent.

To have intent you have to have "The mind and will focused on a specific purpose" & The state of one's mind at the time one carries out an action in law has to be taken into account also, example : your getting your teeth pulled the dentist hits a nerve & continues applying pressure you jump from your seat headbutting the guy breaking his nose ! this is a natural reaction to your circumstances your focus is not on intending to hurt but on the pain you are receiving?

Reloc8

trilarkin wrote: »

Ok what about unintentionally doing what he did, the pain causing his lack of attention in the way he acted, when the intention isn't there the crime isn't there?

If you're not doing homework (which was why I asked) you're looking for legal advice on a case arn't you. There's no point in trying to persuade people on an internet forum that you or your mate are in the right.

Check forum charter & good luck with it.

source

By resisting arrest he is being reckless as to whether or not damage would be caused, so i would see the charge of criminal damage holding. I've highlighted the relevant subsection below.

2.—(1) A person who without lawful excuse damages any property belonging to another intending to damage any such property or being reckless as to whether any such property would be damaged shall be guilty of an offence.


(2) A person who without lawful excuse damages any property, whether belonging to himself or another—


( a ) intending to damage any property or being reckless as to whether any property would be damaged, and


( b ) intending by the damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered,


shall be guilty of an offence.

As for the assault, it's not just a section 2 or 3 assault, it's assault on a peace officer.

As for biting the Garda's leg. You can't just take a paragraph from a subsection without reading the whole section and taking it into consideration. Read 18 (1) (a) below, it states that a person may use force to protect himself a family member or another person from injury, assault or detention CAUSED BY A CRIMINAL ACT.

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 .


(3) For the purposes of this section an act involves a “crime” or is “criminal” although the person committing it, if charged with an offence in respect of it, would be acquitted on the ground that—


(a) he or she was under 7 years of age; or


(b) he or she acted under duress, whether by threats or of circumstances; or


(c) his or her act was involuntary; or


(d) he or she was in a state of intoxication; or


(e) he or she was insane, so as not to be responsible, according to law, for the act.

Lawful arrest is not a criminal act, so as reloc8 said you're mate doesn't have a leg to stand on.

trilarkin

Reloc8 wrote: »

If you're not doing homework (which was why I asked) you're looking for legal advice on a case arn't you. There's no point in trying to persuade people on an internet forum that you or your mate are in the right.

Check forum charter & good luck with it.

Hi reloc8, no I'm not doing homework or looking for advice either I'm doing research on what makes a defence against particular charges when verbal evidence it stacked up against an accused, taking the statute`s into account & applying peoples basic instinct to protect themselves might make what may look like a very guilty person to not so & with that bring the element of doubt into consideration.

trilarkin

foinse wrote: »

By resisting arrest he is being reckless as to whether or not damage would be caused, so i would see the charge of criminal damage holding. I've highlighted the relevant subsection below.



As for the assault, it's not just a section 2 or 3 assault, it's assault on a peace officer.

As for biting the Garda's leg. You can't just take a paragraph from a subsection without reading the whole section and taking it into consideration. Read 18 (1) (a) below, it states that a person may use force to protect himself a family member or another person from injury, assault or detention CAUSED BY A CRIMINAL ACT.



Lawful arrest is not a criminal act, so as reloc8 said you're mate doesn't have a leg to stand on.

The arrest wasn't a criminal act i know & in this HYPOTHETICAL case the act of over tightened cuffs & excessive force applied when carrying out the arrest is a criminal act, as defending council both accounts have to be taken into equal consideration.

source

trilarkin wrote: »

Hi reloc8, no I'm not doing homework or looking for advice either I'm doing research on what makes a defence against particular charges when verbal evidence it stacked up against an accused, taking the statute`s into account & applying peoples basic instinct to protect themselves might make what may look like a very guilty person to not so & with that bring the element of doubt into consideration.

Right if that's the case, then, read my post. You must realise that you really need to read a section of law in full for it to make sense. If you just take a subsection, or part of a subsection then you may not take out of the section what you need to. Which will lead to you making incorrect assumptions about law and what it allows.

seamus

trilarkin wrote: »

To have intent you have to have "The mind and will focused on a specific purpose" & The state of one's mind at the time one carries out an action in law has to be taken into account also, example : your getting your teeth pulled the dentist hits a nerve & continues applying pressure you jump from your seat headbutting the guy breaking his nose ! this is a natural reaction to your circumstances your focus is not on intending to hurt but on the pain you are receiving?

Correct, but in this case, the headbutt is an unintended consequence of the action - jumping out of one's seat.
You couldn't equally argue that biting someone is an unintended consequence of biting. Like I say, he was either biting or he wasn't. To use your dentist's example - perhaps in that case, the patient may instinctively push out with his arms, striking the dentist and pushing him away. It's greyer, but pushing him away could be argued as a normal reflex action against the source of the pain.

The defendent in your case would need to convince the court that reaching out and biting someone's leg was a reflex action caused by the pain. Since pain causes reflex actions which are generally directed towards the source of that pain, then you may have a tough time proving this.

In terms of the tightened cuffs and "excessive force" being a criminal act, you would again need to satisfy the court that the cuffs were too tight or that excessive force was used. The Gardai involved would likely testify that the cuffs were no tighter than normal and that the force applied was necessary, making the defendant's claims somewhat null.

source

trilarkin wrote: »

The arrest wasn't a criminal act i know & in this HYPOTHETICAL case the act of over tightened cuffs & excessive force applied when carrying out the arrest is a criminal act, as defending council both accounts have to be taken into equal consideration.

No it's not a criminal act, if a suspect is resisting arrest Gardai have a power to use whatever force deemed necessary to arrest that suspect.

Granted both sides do have to be taken into consideration. However, when there are as you put it, 10 Garda witnesses who state that the suspect was resisting. Also you said it yourself that he was resisiting arrest. Which is an offence in itself.

trilarkin

foinse wrote: »

Right if that's the case, then, read my post. You must realise that you really need to read a section of law in full for it to make sense. If you just take a subsection, or part of a subsection then you may not take out of the section what you need to. Which will lead to you making incorrect assumptions about law and what it allows.

Hi foinse what I'm tiring to get at is given an accused brought this on himself by getting arrested under section 4,6 & 8 & by resisting arrest he caused more force to be brought to arrest him, he put himself into a situation he could not control, control of him was in the hands of the guards, he had no intention of assaulting anyone a belief he truly believes in but being cuffed & extreme pain being put on his person he acted unintentionally. its a basic instinct he acted on & can he be guilty of a crime under them circumstances, this would be an in depth defence to his actions, one that a Judge may not be willing to hear. This is what the law allows for but seldom accommodates it as you can see with the responses this thread has got.

source

trilarkin wrote: »

Hi foinse what I'm tiring to get at is given an accused brought this on himself by getting arrested under section 4,6 & 8 & by resisting arrest he caused more force to be brought to arrest him, he put himself into a situation he could not control, control of him was in the hands of the guards, he had no intention of assaulting anyone a belief he truly believes in but being cuffed & extreme pain being put on his person he acted unintentionally. its a basic instinct he acted on & can he be guilty of a crime under them circumstances, this would be an in depth defence to his actions, one that a Judge may not be willing to hear. This is what the law allows for but seldom accommodates it as you can see with the responses this thread has got.

It's not a defence at all. While being arrested he was resisting arrest. While resisting a lawful arrest he bit a Garda and damaged an official Garda Vehicle, in front of 10 Garda witnesses. The best barrister in the country couldn't come up with a defence for that, well not one that any sane judge would take seriously anyway.

trilarkin

seamus wrote: »

Correct, but in this case, the headbutt is an unintended consequence of the action - jumping out of one's seat.
You couldn't equally argue that biting someone is an unintended consequence of biting. Like I say, he was either biting or he wasn't. To use your dentist's example - perhaps in that case, the patient may instinctively push out with his arms, striking the dentist and pushing him away. It's greyer, but pushing him away could be argued as a normal reflex action against the source of the pain.

The defendent in your case would need to convince the court that reaching out and biting someone's leg was a reflex action caused by the pain. Since pain causes reflex actions which are generally directed towards the source of that pain, then you may have a tough time proving this.

In terms of the tightened cuffs and "excessive force" being a criminal act, you would again need to satisfy the court that the cuffs were too tight or that excessive force was used. The Gardai involved would likely testify that the cuffs were no tighter than normal and that the force applied was necessary, making the defendant's claims somewhat null.

Hi Seamus to convince a court that taught was absent from his actions would be very hard but if a case like this was ever in front of a jury i think the in depth look at the factors surrounding it might be enough to bring doubt in to account & that in itself would bring a verdict of not guilty.

trilarkin

foinse wrote: »

It's not a defence at all. While being arrested he was resisting arrest. While resisting a lawful arrest he bit a Garda and damaged an official Garda Vehicle, in front of 10 Garda witnesses. The best barrister in the country couldn't come up with a defence for that, well not one that any sane judge would take seriously anyway.

Maybe not & so what a defence council has to focus on is peoples doubt & with this long winded approach it might be a good template to defend someone when they have little to go on.

source

trilarkin wrote: »

Maybe not & so what a defence council has to focus on is peoples doubt & with this long winded approach it might be a good template to defend someone when they have little to go on.

If you can find some statute or case law that allows for a defence for what you outlined then I'd be very interested to read it. But from my knowledge of the law I cannot think of any reasonable defence.

MagicSean

trilarkin wrote: »

Ok what about unintentionally doing what he did, the pain causing his lack of attention in the way he acted, when the intention isn't there the crime isn't there?

I think you are mixing up mens rea and intent.

trilarkin wrote: »

Hi foinse what I'm tiring to get at is given an accused brought this on himself by getting arrested under section 4,6 & 8 & by resisting arrest he caused more force to be brought to arrest him, he put himself into a situation he could not control, control of him was in the hands of the guards, he had no intention of assaulting anyone a belief he truly believes in but being cuffed & extreme pain being put on his person he acted unintentionally. its a basic instinct he acted on & can he be guilty of a crime under them circumstances, this would be an in depth defence to his actions, one that a Judge may not be willing to hear. This is what the law allows for but seldom accommodates it as you can see with the responses this thread has got.

The bold part is the important part. He put himself in that situation. He relinquished his control through the criminal actions he chose before hand. If you go out and get very drunk and end up punching someone. You can't use your intoxication as a defence because you chose to drink that much.

Reloc8

Just as an aside, mens rea = intent.

Directly on point regarding mens rea/intent, the intent required for a criminal assault is that a person in fact intended to do the act which constitutes the assault, or were reckless as to whether their actions constituted an assault. For example, punch someone = intent, throw a rock out of a window and hit someone = recklessnes, drive into the back of the car in front of you = (in the absence of aggravating circumstances) negligence. The first two are assaults the third is not.

By way of relatively brief comment, and hopefully providing a little bit of focus, the following in my opinion is a reasonable summary of the applicable law in this kind of case :-


- an unlawful arrest may be resisted, using force.

- an arrest may be unlawful on purely legal grounds (e.g. where there is no power to arrest) or where excessive or inappropriate force or threat of force is used. Either may be resisted, using force.

- the level of force used in general is assessed by reference to how the individual person perceives the circumstances. See S. 18(5) in particular. In other words, the accused may be mistaken as to whether the use/level of force is reasonable if the mistake is an honest one, having regard to their individual circumstances & sometimes personality. This applies in respect of an unlawful arrest.

- where a lawful arrest is being effected a person has no defence if they know that this is so, unless that person believes the force to be necessary to prevent immediate harm to himself or another. In other words, sometimes, a lawful arrest may be resisted using force. See S. 18(6) of the Non Fatal Offences Against the Person Act 1997. It applies in respect of gardai acting in the course of their duties and people assist them.

- note that harm can include pain, whether mental or physical. So yes there is a lacunae, quite wide in law, for the use of force in resisting even a lawful arrest. This is probably a legislative error in drafting.

- A Garda who is making an unlawful arrest is not acting in the course of their duties and therefore this situation is governed by the general law.

- note also that under S. 19 of the 1997 Act, use of force in effecting or assisting a lawful arrest is not an offence, if the force is only such as is reasonable in the circumstances as the person making the arrest or assisting it believes to pertain. This is best read as providing a defence to a charge of assault laid against an arresting person or an assisting person but as not affecting any defence open to a person using force against them. It is impossible to reconcile the sections otherwise.

All of that arises from the plain words of the Non Fatal Offences Against the Person Act 1997.

To address directly what k_mac points out above S. 18(7) states that the defence provided by S. 18 does not apply to a person who causes conduct with a view to using force to resist or terminate it, although it may apply to a person who does something they may lawfully do knowing that this may cause a need to use force.

Strictly speaking, the person in the factual scenario put by the OP does indeed have a possible defence in law. However, it will as always be the role of the jury or judge depending on where the case might be fought to determine on the facts whether he comes within the parameters of 'justifiable use of force'. It is not possible to set general parameters as to what an outcome would be. A lot will depend upon the demeanour of the witnesses giving evidence in chief and under cross-examination, and of course on the nature of the force actually used.

Further, a jury/judge are entitled to look at the actual force used, together with the individual's circumstances and the other facts of the case in order to help decide whether in fact the person did honestly and genuinely believe that the actual force used was reasonable in the circumstances.

i.e. person of ordinary intelligence/background pulls out gun and shoots guy who shakes his fist at them = hard to convince jury/judge that the suspect really believed the use of the gun was necessary.

Your mileage may vary.

Bosco boy

The circumstances that led to the arrest would be very relevant and may be consistant with his actions during the arrest such as biting, headbutting, reasonable force is permitted and his actions confirm that handcuffing him tighy or not was necessary to protect the public and gardai, if he had been less violent the cuffs could be easily placed on him, I think in respect to all the solicitors that have served the courts you haven't hit on a unique defence since the public order act was introduced in 1994.

trilarkin

Everyone has valid points, which makes this defence a hard call for both council & accused, it would probably be a guilty plea on summary conviction instead of conviction on indictment, for an accused there stuck between a rock & a hard place when it comes to what they really believe & proving it, but as reloc8 pointed out the defence is there depending on how convincing you can be in court, Judges do bring there own believes into court i see it everyday they don't follow any pattern when it comes to handing out sentences.