Threatening & Abusive Behaviour

karlitob

Hi all

A man abused a teacher who confiscated his daughters phone - see below link.

Not defending or condoning his behaviour whatsoever - but he said to the Guard ‘I only called her a b***h’ and got me thinking as to where the line is. I see in the Criminal Justice Act that you must intend to breach the peace. How is breach of the peace defined? If you don’t intend to breach the peace (or not recklessly occasion it) can you call people what you like? Does someone else have to hear it? Does a Guard have to hear it? Does a public place exclude your garden - can you call my neighbour what you want from your over your hedge? Can you call someone what you want if you’re both in a private house?

Appreciate anyones musings or insights on the matter. I’m sure (or rather I presume) that there’s a lot of discretion by the Guards used on this one.

Thanks all.

6. —(1) It shall be an offence for any person in a public place to use or engage in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned.

https://m.independent.ie/regionals/dublin/fingal/man-verbally-abused-teacher-after-daughters-phone-was-confiscated-41540928.html

volchitsa

Well not in any way a lawyer, but in this case it seems he admits the abuse, so no need for guards to have heard it? But presumably "public" does mean that other people are likely to have heard it. If there was nobody else around, that probably makes it hard to prove.

Margaret Clarke

Is the jumped up teacher guilty of theft in this circumstance?

https://www.boards.ie/discussion/2058241268/threatening-abusive-behaviour

I have read of people using their garden not a public place argument

But this was at the school wasn't it? It's the public order act 

"If you don’t intend to breach the peace (or not recklessly occasion it) can you call people what you like?"

I would say if you call people what you like you are at least "being reckless as to whether a breach of the peace may be occasioned " if not actually having the intent.

Peregrinus

"Breach of the peace" is harm, or the fear of harm, to a person or their property, or a fear of harm from assault, affray, riot, etc.

Whether particular words amount to a breach of the peace doesn't depend just on the precise words but also on the context in which they are uttered, the manner in which they are uttered, etc. A man calling a woman a "bitch", if he does it with sufficient aggression, could, with other circumstances, cause the women - or anyone else present - to fear that the woman might be assaulted. That would be a breach of the peace.

https://www.boards.ie/discussion/comment/118913175#Comment_118913175

Why "jumped up"?

Very very unlikely to be theft, barring some truly bizarre facts. The basic principle at work here is that as regards discipline a school acts - and has the right to act - in loco parentis ("in the place of a parent"). (Note: It does not mean that they have to do what a particular child's parents would do, or what those parents want it to do.) Parents can confiscate their child's property, either temporarily or permanently. So can a school, even though in other circumstances this would be theft. Parents can "ground" a child; so can a school (by imposing detention) even though in other circumstances this would be false imprisonment. And so on.

This doesn't mean that a school can do whatever the hell it likes. On top of this general principle there is a statutory overlay in the Education Act 1998 and the Education (Welfare) Act 2000, which provide for fair procedures, for the publication of disciplinary policies, etc, but there is nothing in them to overturn the basic "in loco parentis" principle.

Mrs OBumble

What is the legal basis for a parent to confiscate a child's property?

If the parent purchased the thing, then they are just taking back what they own. But what if the child purchased it?

Still stihl waters 3

https://www.boards.ie/discussion/comment/118913175#Comment_118913175

How is the teacher "jumped up" I can't see anything in the article to indicate where the teacher was wrong

Peregrinus

https://www.boards.ie/discussion/comment/118914283#Comment_118914283

There's a distinction between confiscating an item, and confiscating property in an item.

Suppose my child buys (or otherwise acquires) a knife or a gun. I don't allow my child to have a knife or a gun, so I confiscate it. Have I merely deprived the child of possession the item, or of the ownership of the item? In real life that's not a question that we would normally ask, but my main concern is with the child's possession of the knife/gun, and my concerns - that he will injure himself, or someone else, or give the weapon to someone who will - are addressed if I take it and lock it away, matter a damn who "owns" the bloody thing.

I think it's pretty well established that a parent has a right to do that. The (negative) evidence in favour of that proposition is the complete absence of reported cases in which children have successfully recovered confiscated property, or compensation for the same, from parents.

Where schools confiscate property, it's nearly always possession, not ownership, that is denied to the student. If the item is valuable it will be returned at the end of the class/the day/the term, accompanied by dire warnings about what will happen if it is brought to school again. The only cases where this wouldn't happen would be items which the school cannot legally return to the student (e.g. tobacco, alcohol) or items of trivial value (e.g. a stick of chewing gum). In the latter case the student could possibly, in theory, sue the school for the value of the chewing gum, but I think would be laughed out of court.

karlitob

@Peregrinus

"Breach of the peace" is harm, or the fear of harm, to a person or their property, or a fear of harm from assault, affray, riot, etc.

Whether particular words amount to a breach of the peace doesn't depend just on the precise words but also on the context in which they are uttered, the manner in which they are uttered, etc. A man calling a woman a "bitch", if he does it with sufficient aggression, could, with other circumstances, cause the women - or anyone else present - to fear that the woman might be assaulted. That would be a breach of the peace.

Thank you for that. Very interesting.

With respect to the ‘fear of harm’ component, how is that proved? Or (if you kindly could) expand on this, please. I get an aggressive man coming into the school all het up calling a teacher a b***h would put the fear into anyone. I’ve experienced it myself in pubs/bars where I’ve been left very shaken. But is it person dependent - one person may not be in as intimidated as another. Do other people have to hear the engagement? Can I still call someone I don’t like a c**t and really mean it.

gmisk

https://www.boards.ie/discussion/comment/118913175#Comment_118913175

Why would they be? They didn't steal it....it was confiscated.

Margaret Clarke

https://www.boards.ie/discussion/comment/118918092#Comment_118918092

I’m not stealing your wallet at knifepoint. I’m confiscating it.

Look up the definition of theft.

maestroamado

https://www.boards.ie/discussion/2058241268/threatening-abusive-behaviour

This happened in an area where people are killing each other with guns and time waste this kinda rubbish...

The man over-reacted and should have apologized immediately in writing and be the end of it... phones in schools?? i don't know circumstances... i was chatting to a guy recently who's daughter's €800 phone was stole in school... i told him she shouldn't have high value phone in school and he agreed... Now he will be asked to donate to teachers fund... waste of expensive resources... we should just grow up...

gmisk

https://www.boards.ie/discussion/comment/118918104#Comment_118918104

Theft - the action or crime of stealing

Confiscation - the action of taking or seizing someone's property with authority; seizure.

"a court ordered the confiscation of her property"

The "with authority".....part....yehhhh

Maybe you should have gone to the effort of looking it up yourself....

Still stihl waters 3

https://www.boards.ie/discussion/comment/118918164#Comment_118918164

Fcuk him, parents are quick to anger over the perception that their little angels can do no wrong, teach your kids some manners and learn to accept that while they're in school they do what their told, little pricks running home with fake stories to parents and knowing no real consequences as mammy or daddy will back them up regardless, verbal abuse of a teacher (or anyone for that matter) is not on

Margaret Clarke

https://www.boards.ie/discussion/comment/118918179#Comment_118918179

From the statute book:

Theft. 4. —(1) Subject to section 5 , a person is guilty of theft if he or she appropriates property without the consent of its owner and with the intention of depriving its owner of it.

gmisk

https://www.boards.ie/discussion/comment/118918286#Comment_118918286

That's nice but it's not theft in this case.

If it's in the school rules they would be entitled to confiscate the phone from the child, however they would be obliged to release it to the parent on request.

maestroamado

https://www.boards.ie/discussion/comment/118918195#Comment_118918195

I totally agree with you but it shouldn't have went to court...

Still stihl waters 3

https://www.boards.ie/discussion/comment/118918286#Comment_118918286

Nonsense again from you, a school is the sole guardian of a student in its care and therefore the student must abide by the rules of the school while in its care, they can't pick and choose which rules to obey , that law doesn't apply in this case

Margaret Clarke

https://www.boards.ie/discussion/comment/118918350#Comment_118918350

Rightio, so teachers years ago buggering young boys were doing no wrong? Glad to know who I’m talking with.

Still stihl waters 3

https://www.boards.ie/discussion/comment/118918363#Comment_118918363

I don't think buggering was written down in the rule book

FishOnABike

https://www.boards.ie/discussion/comment/118918286#Comment_118918286

Unless the school did not intend returning the phone later it would not meet the above definition of theft

Margaret Clarke

https://www.boards.ie/discussion/comment/118918385#Comment_118918385

Grand. I’ll take my neighbours car and plan to give it back later.

https://www.boards.ie/discussion/comment/118918420#Comment_118918420

Tell you what Maggie, instead of trying - and dismally failing - to be a smartass, why not write a letter to the President of the District Court telling him that Judge Dermot Dempsey isn't up to the job and that - as one of Boards.ie's leading legal experts - you'd be delighted to replace him.

Oh and be sure to enclose two copies of your CV and a picture of you in a bikini.

FishOnABike

https://www.boards.ie/discussion/comment/118918420#Comment_118918420

That is specifically defined under a separate piece of legislation - section 112 of the road traffic act

112.—(1) A person shall not use or take possession of a mechanically propelled vehicle without the consent of the owner thereof or other lawful authority.

Peregrinus

https://www.boards.ie/discussion/comment/118918087#Comment_118918087

You're talking about evidentiary problems there - how do you prove the a particular crime has been committed? You'll need evidence that will satisfy a court/jury to prove each element of the crime. And lots of crimes have a mental element; how do you prove somebody's state of mind? In this case it's the state of mind of a victim - you have to prove that they were put in fear of harm - but in other cases it could be the state of mind of the defendant. E.g. theft - you have to prove that the accused appropriated property with the intention of depriving its owner of it.

The state of a person's mind is as much fact as the state of their digestion, and you prove facts with evidence. In this case it's relatively straightforward; you need to prove that the person to whom these remarks were addressed, or somebody who was present on the occasion, was put in fear by the remarks, so you bring in that person to testify "Yes, I was terrified. I thought he was about to hit me." (Or, "I thought he was about to hit her." The offence is committed if people are put in fear of harm to themselves or to someone else.) The court/jury then assesses the credibility of that evidence; based on the words that were said, the circumstances in which they were said, the manner in which they were said, etc (all of these external, visible facts being themselves established by evidence) do they accept the testimony as to state of mind? Are they satisfied beyond reasonable doubt that the person who says they were put in fear of harm was, in fact, in fear of harm?

TooTired123

https://www.boards.ie/discussion/comment/118918286#Comment_118918286

So schools can’t have rules? Interesting theory. Teachers have been confiscating items belonging to pupils for 100s of years. If only the pupils had known all along it was “illegal”…..

karlitob

https://www.boards.ie/discussion/comment/118919376#Comment_118919376

Very good. Thank you very much for that.

And can I ask more about the fear of harm bit please. If I’m reading you right it’s a fear of physical harm though I’m still struck that it does depend on the person who fears the harm.

Are ‘harm’ and ‘fear of harm’ treated equally re: breach of the peace. I presume they are it’s just that the latter is harder to prove.

Also - these cases need to be brought by the DPP….is it correct to say that there is a line ‘a practical line’ which must be crossed before they go to that effort. In other words, I can certainly imagine that the teacher felt that this lad was going to hurt her…it’s a school with other children and parents and teachers around, it’s unacceptable social behaviour etx. But I’ve never come across anyone being prosecuted for this in all my time working in pubs or working on a door (which means nothing of course). Of the instances where I was left shaken, I guess a bit of me did think they were gonna hit me but going to the Guards didn’t seem like an option or at least they never arrested someone for that when they were spitting feathers at me.

Finally (and it is finally) can you give me an example of what sails close to that law but doesn’t cross it. I hope that makes sense and you understand my meaning even if I don’t and you may not be able to.

either way - thanks for your time and knowledge

Peregrinus

A few points:

1. You’re “struck that it does depend on the person who fears the harm”. Yes, it does. Words addressed by me - a bloke - to a man who is younger, bigger and stronger than me might not put him in fear of harm, but the same words addressed by me to a women who is elderly, and smaller and weaker than me might very well put her in fear of harm. And, leaving size and gender aside, some people are of a more nervous disposition than others, or they have had particular experiences or traumas that leave them vulnerable (and, possibly, that the person addressing them may not know about).  

But the law protects the weak as well as the strong. If I hit you and the blow kills you because you have an unusually fragile skull, it will be no defence in the ensuing murder trial for me to say that you had an unusually fragile skull. The same principle applies here.

2. Are “harm” and “fear of harm” treated equally? In principle, yes; if either is shown to have been caused, the offence has been committed; it doesn’t matter which. But, as you point out, fear of harm is a bit harder to prove, and it has to be a pretty grave fear of significant harm if a jury is to be persuaded that it’s real fear. Plus, in the event of a conviction, a case involving actual physical harm is likely to attract a heavier sentence.

3. Is there a practical line that must be crossed before the DPP will prosecute? There are two issues. First, the DPP won’t prosecute unless he thinks he will get a conviction - all the evidence, on ever element of the crime, is in place. They won’t prosecute a case that he thinks probably won’t succeed merely to reassure victims, or the public, that “something is being done”. Secondly, even if all the elements and evidence are in place, there is “prosecutorial discretion”; is it in the public interest to prosecute this case? If the perpetrator is a minor, for instance, the public interest may be better served by diverting the case into other juvenile justice avenues. Or, if the harm/fear of harm involved is trivial. On the other hand, if the victim is someone performing a public duty - a teacher, a police officer, fire brigade or ambulance staff - the public interest might lean strongly in favour of prosecution. So, yeah, an offence committed against a teacher, perhaps in the presence of children, will be viewed differently from a similar offence in a nightclub queue.

4. As to what sails close to the law but doesn’t cross it — really, this is a pretty fuzzy line. There’s a host of factors involved, and I don’t think you can point to any one factor and say “this is close, but doesn’t cross the line” because, depending on the other factors in the case, it may in fact cross the line. That’s the thing with fuzzy lines - you can’t safely get close to them, because you won’t know that you’ve crossed them until you’re well past them.

karlitob

@Peregrinus

Thank you so much. Very interesting. And makes perfect sense. Thanks again for your time and sharing your knowledge.