Criminal Offences and Defences

Assault

Section 2 of the NFOAP Act 1997

(1) Without lawful excuse, intentionally or recklessly—

(a) directly or indirectly applied force to or cause an impact on the body of another, or

(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subject to any such force or impact

without the consent of the other

(2) “force” includes (a) application of heat, light, electric current, noise or any other form of energy, and (b) application of matter in solid, liquid or gaseous form

(3) No such offence is committed if the 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 person.

Assault aggravated by hatred

Section 2A of the NFOAP Act 1997

Commits an an assault which is aggravated by hatred

“aggravated by hatred” typically means a base offence where hatred is demonstrated or is the motivation for an offence towards a person or group defined by protected characteristics.

Assault causing harm

Section 3 of the NFOAP Act 1997

Assaulting another causing them harm.

“harm” means harm to the body or mind and includes pain and unconsciousness.

Non-fatal strangulation or non-fatal suffocation

Section 3A of the NFOAP Act 1997

(1) Without lawful excuse, intentionally or recklessly—

(a) strangles or suffocates another, or

(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subject to suffocation or strangulation

(2) it shall be a DEFENCE for the accused to show that the other consented…

Assault causing harm aggravated by hatred

Section 3B of the NFOAP Act 1997

Commits assault causing harm which is aggravated by hatred

“aggravated by hatred” typically means a base offence where hatred is demonstrated or is the motivation for an offence towards a person or group defined by protected characteristics.

Causing serious harm

Section 4 of the NFOAP Act

Intentionally or recklessly causes serious harm to another

“serious harm” means injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ.

Non-fatal strangulation or non-fatal suffocation causing serious harm

Section 4A of the NFOAP Act 1997

Intentionally or recklessly causes serious harm to another by suffocating or strangling the other.

“serious harm” means injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ.

Causing serious harm aggravated by hatred

Section 4B of the NFOAP Act 1997

Commits an offence of serious harm which is aggravated by hatred

“aggravated by hatred” typically means a base offence where hatred is demonstrated or is the motivation for an offence towards a person or group defined by protected characteristics.

Threats to kill or cause serious harm

Section 5 of the NFOAP Act 1997

Without lawful excuse, makes to another a threat, by any means intending the other to believe it will be carried out, to kill or cause serious harm to that other or a third person.

“serious harm” means injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ.

Threats to kill or cause serious harm aggravated by hatred

Section 5A of the NFOAP Act 1997

threatens to kill or cause serious harm to another (section 5 offence) which is aggravated by hatred

“serious harm” means injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ.

“aggravated by hatred” typically means a base offence where hatred is demonstrated or is the motivation for an offence towards a person or group defined by protected characteristics.

Syringe attacks

Section 6 of the NFOAP Act 1997

A person who—

• injures another by piercing the skin of that other with a syringe, or

• threatens to so injure another with a syringe

• sprays, pours or puts onto another blood or any fluid or substance resembling blood, or

• threatens to spray, pour or put onto another blood or any fluid of any substance resembling blood

with intention of or where there is a likelihood of causing that other to believe that he or she may become infected with disease as a result of the action caused or threatened

A person who in committing or attempting to commit a syringe offence—

• injures a third person with a syringe by piecing his or her skin, or

• sprays, pours or puts onto a third person blood or any fluid or substance resembling blood,

resulting in the third person believing that he or she may become infected with disease as a result of the injury or action caused.

“syringe” includes any part of a syringe or needle or any sharp instrument capable of piercing skin and passing onto or into a person blood or any fluid or substance resembling blood.

Offences of possession of syringe

Section 7 of the NFOAP Act 1997

A person who has with him or her in any place—

• a syringe, or

• any blood container

intended by him or her unlawfully to cause or threaten to cause injury to or to intimidate another.

Can be searched and detained without warrant by a garda with reasonable cause.

Placing or abandoning syringe.

Section 8 of the NFOAP Act 1997

A person who places or abandons a syringe in any place in such a manner that is likely to injure another and does injure another or is likely to injure, cause a threat or frighten another.

A person who intentionally places a contaminated syringe in any place in such a manner that it injures another

Does NOT apply to persons placing a syringe whilst administering or assisting in medical, dental or veterinary procedures.

It is a DEFENCE to show that the person did not intentionally place the syringe…

Poisoning

Section 12 of the NFOAP Act 1997

He or she intentionally or recklessly administers to or causes to be taken by another a substance which he or she knows to be capable of interfering substantially with the other’s bodily function, knowing that the other does not consent to what is being done.

• a substance capable of inducing unconsciousness or sleep is capable of interfering substantially with bodily functions.

Harassment

Section 10(1) of the NFOAP Act 1997

The person, without lawful authority or reasonable excuse, persistently, by his or her acts, intentionally or recklessly, at the time when the acts occur or when the other becomes aware of them—

• seriously interferes with another’s peace and privacy, or

• causes alarm, distress or harm to the other

and the person’s acts are such that a reasonable person would realize that the acts would seriously interfere with the other’s peace and privacy or cause alarm, distress or harm to the other at the time when the acts occurred or when the other becomes aware of them.

Stalking

Section 10(2) of the NFOAP Act 1997

The person, without lawful authority or reasonable excuse, by his or her acts, intentionally or recklessly causes another, at the time when the acts occur or when the other becomes aware of them—

• to fear that violence will be used against him or her or another person connected to him or her, or

• serious alarm or distress that has a substantial adverse impact on his or her usual day-to-day activities

and the person’s acts are such that a reasonable person would realize that the acts would cause the other, at the time when the acts occur or when the other becomes aware of them, to fear that violence will be used against him or her or another person connected to him or her, or serious alarm or distress that has a substantial adverse impact on his or her usual day-to-day activities.

Prohibition on publication or broadcasting or certain material

Section 10A of the NFOAP Act 1997

a person who, where a person is charge with an offence under section 10 (staking and harassment), publishes or broadcasts identifying material (personal information or depictions)

• this shall not apply where the alleged victim consents in court to being identified

or the court may specify that certain material can or cannot be published or broadcasted

• the person who contravenes these orders

It is a DEFENCE for a person who is charged with an offence to prove that at the time of the alleged offence the person was not aware, and neither suspected nor had reason to suspect

Harassment aggravated by hatred

Section 10B of the NFOAP Act 1997

Any person who commits the act of harassment which is aggravated by hatred

If not able to be convicted under his offence, they may be convicted of harassment (section 10(1))

Demands for payment of debt causing alarm

Section 11 of the NFOAP Act 1997

A person who makes any demand for payment of debt, if—

• the demand by reason of their frequency are calculated to subject the debtor or a member of the family of the debtor to alarm, distress or humiliation, or

• the person falsely represents that criminal proceedings lie for non-payment of the debt, or

• the person falsely represents that he or she is authorized in some official capacity to enforce payment, or

• the person utters a document falsely represented to have an official character.

Endangerment

Section 13 of the NFOAP Act 1997

A person who intentionally or recklessly engaged in conduct which creates a substantial risk of death or serious harm to another

Endangerment aggravated by hatred

Section 13A of the NFOAP Act 1997

A person who commits the offence of endangerment which is aggravated by hatred.

“aggravated by hatred” typically means a base offence where hatred is demonstrated or is the motivation for an offence towards a person or group defined by protected characteristics.

“serious harm” means injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ.

Endangering traffic

Section 14 of the NFOAP Act 1997

A person who—

• intentionally places or throws any dangerous obstructions upon a railway, road, street, waterway or public place or interferes with any machinery, signal, equipment or other device for the direction, control or regulation of traffic thereon or interferes with or throws anything at or on any conveyance used or to be used thereon, and

• is aware that injury to the person or damage to property may be caused thereby, or is reckless in that regard.

False imprisonment

Section 15 of the NFOAP Act 1997

A person who intentionally or recklessly—

• takes or detains, or

• causes to be taken or detained, or

• otherwise restricts the personal liberty of,

another without that other’s consent

A person acts without the consent of another if the person obtains the other’s consent by force or threat of force, or by deception causing the other to believe that he or she is under compulsion to consent.

Abduction of a child by parent

Section 16 of the NFOAP Act 1997

A person who takes, sends or keeps a child under the age of 16 years out of the State or causes a child under that age to be so taken, sent or kept (a) in defiance of a court order or (b) without the consent of each person who is a parent, or guardian or person whom custody of the child had been granted by a court unless the consent of a court was obtained.

• does not apply to a parent who is not a guardian of the child

It shall be a DEFENCE to charge under this section that the defendant—

• has been able to communicate with the persons referred to, but believes they would consent if they were aware of the relevant circumstances; or

• did not intend to deprive others having right to guardianship or custody in relation to the child of those rights.

Abduction of a child by other persons

Section 17 of the NFOAP Act 1997

A person (other than a parent or guardian) who without lawful authority or reasonable excuse, intentionally or recklessly take or detains a child under the age of 16 years or causes a child under that age to be so taken or detained (a) so as to remove the child from the lawful control of any person having lawful control of the child; or (b) so as to keep him or her out of the lawful control of any person entitled to lawful control of the child.

It shall be a DEFENCE to a charge under this section that the defendant believed the child had attained the age of 16 years.

Distributing, publishing or threatening to distribute or publish intimate images without consent with intent to cause harm or being reckless as to whether harm is caused

Section 2

of the Harassment, Harmful Communications and Related Offences Act 2020

A person who distributes, publishes or threatens to distribute or publish an intimate image of another person (a) without that other person’s consent, and (b) with intent to cause harm to, or being reckless as to whether or not harm is caused to the other person.

A person causes harm to another person where—

• he or she, by his or her acts, intentionally or recklessly seriously interferes with the other person’s peace and privacy or causes alarm or distress to the other person, and

• his or her acts are such that a reasonable person would realize that the acts would seriously interfere with the other person’s peace and privacy or cause alarm or distress to the other person

Recording, distributing or publishing intimate images without consent

Section 3 of the Harassment, Harmful Communication and Related Offences Act 2020

A person who (a) records, distributes or published an intimate image of another person without that other person’s consent, and

that recording, distribution or publication, as the case may be, seriously interferes with that other person’s peace and privacy or causes alarm, distress or harm to that other person

This shall NOT apply to a person who does this for the purpose of prevention, investigation or prosecution of an offence under this section.

Distributing, publishing or sending threatening or grossly offensive communication

Section 4 of the Harassment, Harmful Communications and Related Offences Act 2020

A person who (a) by any means (i) distributes or publishes any threatening or grossly offensive communication about another person, or (ii) sends any threatening or grossly offensive communication to another person and (b) with intent by so distributing, publishing or sending to cause harm

To “cause harm” means to intentionally seriously interfere with the other person’s peace and privacy or causes alarm or distress to the other person.

Anonymity of a victim in regards to distributing, publishing and/or recording intimate images without the other’s consent

Section 5 of the Harassment, Harmful Communication and Related Offences Act 2020

Those who publish or broadcast any information about or relating o the victim’s identification

Mens rea: the knowledge of the wrongfulness in publishing or broadcasting such information

Offences of female genital mutilation

Section 2 of the Female Genital Mutilation Act 2012

A person who does or attempts to do an act of female genital mutilation

A person is not guilty if—

• performed my a medical professional for the protection of the girl or woman’s physical or mental health

• performed by a medical professional for purposes relating to labor or birth

• the person is the girl or woman on whom the act is performed

• it is performed on a woman who is not less than 18 years of age with no permanent bodily harm

NO mens rea is needed

Offence of removal from State for purposes of female genital mutilation

Section 3 of the Female Genital Mutilation Act 2012

A person who intends to removes or attempts to remove a girl or woman from the State where one of the purposes for the removal is to have an act of female genital mutilation done to her

A person is not guilty if—

• performed my a medical professional for the protection of the girl or woman’s physical or mental health

• performed by a medical professional for purposes relating to labor or birth

• it is performed on a woman who is not less than 18 years of age with no permanent bodily harm

Female genital mutilation outside of the State

Section 4 of the Female Genital Mutilation Act 2012

A person who does or attempt to do an act of female genital mutilation in a place other than the State, but only if it is attempted to be done—

• on board an Irish ship

• on an aircraft registered in the State, or

• by a person who is a citizen of Ireland or is ordinarily a resident in the State, and would constitute an offence in the place in which it is done.

NO mens rea is needed

Constitutional protections of personal liberties and the procedure for challenging unlawful detention (habeas corpus)

Article 40.4 of the Irish Constitution

40.4.1 General principle of personal liberty

40.4.1 enquiry into lawfulness of detention

40.4.3 detention under invalid laws

40.4.4 composition of the High Court

40.4.5 exceptions during war or rebellion

40.4.6 refusal of bail

Theft

Section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001

A person who dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it

A person is NOT guilty if the person believes they have the owner’s consent or believes that the owner cannot be found using in taking reasonable steps

Consent CANNOT be obtained through deception or intimidation

“dishonestly” means without claim of right made in good faith.

Exceptions to theft

Section 5 of the Criminal Justice (Theft and Fraud Offences) Act 2001

• good faith transfers

• land cannot generally be stolen

• picking natural items (unless for commercial purposes)

• wild animals (unless already captured or controlled or in the process of being captured or controlled)

Making gain or causing loss by deception

Section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001

A person who dishonestly, with the intention of making gain for himself or herself or another, or causing loss to another, by any deception, induces another to do or refrain from doing an act

“dishonestly” means without claim of right made in good faith.

Obtaining services by deception

Section 7 of the Criminal Justice (Theft and Fraud Offences) Act 2001

A person who dishonestly, with the intention of making gain for himself or herself or another, or causing loss to another, by any deception, obtains services from another

“dishonestly” means without claim of right made in good faith.

Burglary

Section 12 of the Criminal Justice (Theft and Fraud Offences) Act 2001

A person who—

(a) enters any building or part of a building as a trespasser and with intent to commit an arrestable offence, or

(b) having entered any building or part of any building as a trespasser, commits or attempts to commit any such offence therein

Applies to any structure, vehicle, etc. that a person is living in.

Aggravated burglary

Section 13 of the Criminal Justice (Theft and Fraud Offences) Act 2001

a person who commits burglary and at the time had with him or her any firearm or imitation firearm, any weapon of offence or any explosive.

Robbery

Section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001

A person who steals, and immediately before or at the time of doing so, and in order to do so uses force on any person or puts or seek to put any person in fear of being then and there subject to force.

Handling stolen property

Section 17 of the Criminal Justice (Theft and Fraud Offences) Act 2001

A person who (otherwise than in the course of stealing), knowing that the property is stolen or being reckless as to whether it was stolen, dishonestly—

(a) receives or arranges to receive it, or

(b) undertakes, or assists in, its retention, removal, disposal or realization by or for the benefit of another person or arranges to do so

A person can be tried even if the principle offender has not been previously convicted.

Possession of stolen property

Section 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001

A person who, without lawful authority or excuse, possesses stolen property (otherwise than in the course of the stealing), knowing that the property was stolen or being reckless as to whether it was stolen.

A person can be tried even if the principle offender has not been previously convicted.

Forgery

Section 25 of the Criminal Justice (Theft and Fraud Offences) Act 2001

A person who makes a false instrument with the intention that it shall be used to induce another person to accept it as genuine and, by reason of so accepting it, to do some act, or to make some omission, to the prejudice o that person or ay other person.

Using a false instrument

Section 26 of the Criminal Justice (Theft and Fraud Offences) Act 2001

A person who uses an instrument which he or she knows or believes to be, a false instrument, with the intention of inducing another person to accept it as genuine and, by reason of so accepting it, to do some act, or to make some omission, or to provide some service to the prejudice of that person or any other person

Copying a false instrument

Section 27 of the Criminal Justice (Theft and Fraud Offences) Act 2001

a person who makes a copy of an instrument which is, and which he or she knows or believes to be, a false instrument with the intention that it shall be used to induce another person to accept it as a copy of a genuine instrument and, by reason of so accepting it, to do some act, or to make some omission, or to provide some service, to the prejudice of that person or any other person

Using a copy of a false instrument

Section 28 of the Criminal Justice (Theft and Fraud Offences) Act 2001

A person who uses a copy of an instrument which is, and which he or she knows or believes to be, a false instrument with the intention of inducing another person to accept it as a copy of a genuine instrument and, but reason of so accepting it, to do some act, or to make some omission, or to provide some service, to the prejudice of that person or another person.

Controlling a false instrument

Section 29 of the Criminal Justice (Theft and Fraud Offences) Act 2001

A person who has in his or her custody or under his or her control an instrument which is, and which he or she knows or believes to be, a false instrument with the intention that it shall be used to induce another and, by reason of so accepting it, to do some act, or to make some omission, or to provide some service, to the prejudice of that person or any other person.

Possession of knives and other articles

Section 9 of the Firearms and Offensive Weapons Act 1990

(1) Where a person has with them in any public place any knife or any other article which has a blade or which is sharply pointed.

(5) Where a person has with them in any public place any article intended by him unlawfully to cause injury to, incapacitate, or intimidate any person wither in a particular eventuality or otherwise

It shall be a DEFENCE for—

• a person to prove that they had good reason or lawful authority for having the article with them in public

• a person to prove that they had the article with them for use at work or for recreational purposes

Do NOT have to prove intent

Do NOT have to prove it is targeted

Possession of a realistic imitation firearm in a public place

Section 9A of the Firearms and Offensive Weapons Act 1990

Criminalizes possession of a realistic imitation firearm in a public place without lawful authority or reasonable excuse.

Authorization of use of realistic imitation firearms at specified venues, theatres, etc.

Section 9B of the Firearms and Offensive Weapons Act 1990

Allows exemptions for theatres and other specified venues for the use of realistic imitation firearms.

Damaging property

Section 2(1) of the Criminal Damage Act 1991

A person who without lawful excuse damages property belonging to another intending to damage any such property or being reckless as to whether any such property would be damaged

• DEFENCE: having a lawful excuse (ex. fireman breaking down a door)

“without lawful excuse” includes reasonable mistake or belief

Dangerous damage to property

Section 2(2) of the Criminal Damage Act 1991

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 thereby be endangered

“without lawful excuse” includes reasonable mistake or belief

Damage with intent to defraud

Section 2(3) of the Criminal Damage Act 1991

A person who damages any property, whether belonging to himself or another, with intent to defraud

Arson

Section 2(4) of the Criminal Damage Act 1991

Damaging property by fire

Damaging property aggravated by hatred

Section 2A of the Criminal Damage Act 1991

A person who causes damage to property which is aggravated by hatred.

“aggravated by hatred” typically means a base offence where hatred is demonstrated or is the motivation for an offence towards a person or group defined by protected characteristics.

Threats to damage property

Section 3 of the Criminal Damage Act 1991

A person who without lawful excuse makes to another a threat, intending that the other person would fear it would be carried out—

(a) to damage any property belonging to that other or third person, or

(b) to damage his own property in a way which he knows is likely to endanger the life of that other or third person

“without lawful excuse” includes reasonable mistake or belief

Possessing anything with intent to damage property

Section 4 of the Criminal Damage Act 1991

A person (possessor) who has any thing in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it (a) to damage any property belonging to some other person, or (b) to damage his own or intended user’s property (i) in a way which he knows is likely to endanger the life of a person other than the possessor, or (ii) with intent to defraud.

“without lawful excuse” includes reasonable mistake or belief

Justifiable use of force/self-defence

3 sources of law on the defence:

• the common law n(not applicable in this course)

• Criminal Law (Defences and the Dwelling) Act 2011

  • applies to where someone lives, not owns

  • Section 2(1): castle doctrine

• NFOAP Act 1997 — lawful use of non-fatal force

  • Section 18: allowed to protect oneself, another person(s), property, or to prevent a crime

  • Section 20: need to show the state of affairs, necessity, and the reply to force

2 part test:

• honest belief that the force was necessary (subjective)

• reasonability of the honest belief in the circumstances (objective)

Rape (common law)

Section 2 of the Criminal Law (Rape) Act 1981

Where a man (a) has sexual intercourse who at the time does not consent, and (b) at the time he knows or is reckless as to whether she does or does not consent

This offence is gendered

DEFENCE: proving consent

Restriction on evidence at trials for rape offences

Section 3 of the Criminal Law (Rape) Act 1981

No questions shall be asked by or on behalf of the accused on the victim’s sexual experience (other than what relates to the charges) of a complaint with any person and in relation to a sexual assault tried summarily

Sexual assault

Section 2 of the Criminal Law (Rape) (Amendment) Act 1990

Indecent assault on any male or female person.

“assault” means non-consensual touching

“indecency” means pulling/ripping clothes, touching specific areas, etc.

DEFENCE: proving consent

Aggravated sexual assault

Section 3 of the Criminal Law (Rape) (Amendment) Act 1990

Sexual assault that involves violence or the threat of serious violence or is such as to cause injury, humiliation or the degradation of a grave nature to the person

• very high threshold

Assault (along with aggravating factors) + Indecency + Lack of consent

“assault” means non-consensual touching

“indecency” means pulling/ripping clothes, touching specific areas, etc.

DEFENCE: proving consent

Rape under section 4

Section 4 of the Criminal Law (Rape) (Amendment) Act 1990

Sexual assault that includes (a) penetration (however slight) of the anus or mouth by the penis or (b) penetration (however slight) of the vagina by any object or manipulated by another person with intention to commit the sexual assault and penetration without the consent of the victim.

DEFENCE: proving consent

Consent

Section 9 of the Criminal Law (Rape) (Amendment) Act 1990

8 circumstances where there is NOT consent to a sexual act:

1. where there is a threat or fear

2. he or she is asleep or unconscious

3. he or she is unable to consent because of the effect of alcohol or some other drug

4. he or she has a physical disability which prevents them from communicating whether they agree

5. he or she is mistaken as to the purpose of the act

6. he or she is mistaken as to the identity of the other person involved

7. he or she is unlawfully detained at the time

8. the consent or agreement to the act comes from somebody other than the person himself or herself.

“sexual act” means sexual intercourse or buggery

Soliciting or importuning for purposes of prostitution and payment

Section 7 and 7A of the Criminal Law (Sexual Offences) Act 1993

7: A person who in a street or public place solicits or importunes another person(s) for the purpose of prostitution

7A: A person who pays, gives, offers or promises to pay or give a person money or any other form of remuneration or consideration for the purpose of engaging in sexual activity with a prostitute

“sexual activity” means activity where a reasonable person would consider that the activity is or is of a sexual nature.

Child trafficking and sexual exploitation

Section 3 of the Child Trafficking and Pornography Act 1998

Anyone who—

• Is involved or in charge of recruiting, transporting, harboring, or controlling a child for the purpose of sexual exploitation

• Takes, detains, or restricts a child’s liberty for sexual exploitation

• directly commits these acts, causes another person to do so, or attempts to do so

“child” means any person under the age of 18 years

Defilement of a child under 15 years of age

Section 2 of the Criminal Law (Sexual Offences) Act 2006

A person who engages, or attempts to engage, in a sexual act with a child who is under the age of 15 years

DEFENCE: Reasonable mistake as to age (the child has attainted the age of 15 years)

• decided based on the circumstances and what a reasonable person would have thought

Consent is NOT a defence

Defilement of a child under 17 years of age

Section 3 of the Criminal Law (Sexual Offences) Act 2006

A person who engages, or attempts to engage, in a sexual act with a child who is under the age of 17 years

DEFENCE: reasonable mistake as to age (child had attained the age of 17 years)

• decided based on the circumstances and what a reasonable person would have thought

Consent is NOT a defence

DEFENCE: where the child is between the age of 15 and 17 years of age and the defendant is—

(a) younger or less than 2 years older than the child,

(b) was not a person in authority of the child, AND

(c) was not in a relationship with the child that was intimidatory or exploitative of the child

Offence by a person of authority

Section 3A of the Criminal Law (Sexual Offences) Act 2006

A person in authority who engages, or attempts to engage, in a sexual act with a child who has attained the age of 17 years, but is under the age of 18 years

DEFENCE: reasonable mistake as to age (child attained the age of 18 years)

• decided based on the circumstances and what a reasonable person would have thought

DEFENCE: prove that they weren’t a person in authority in relation to the child

Consent is NOT a defence

Consent (defence)

Can be used in relation to

• non-fatal offences,

• property offences,

• and sexual offences (most common)

must be freely given, informed, and cannot be based on fraud or deception

Duress (defence)

The accused person had been coerced by serious threats in order to force him or her to commit a crime — constrained by a threat

• they have a choice, but the alternative to committing the wrongful act is so unattractive that it leaves the accused, in their mind, with no real choice

One’s will must be overborn, threats must be imminent, and there must be no opportunity to escape

CANNOT be a defence to murder and CANNOT be used if in a (violent) gang

Not easily available and should be harder to prove than self-defence

Necessity (defence)

A person must chose between two evils — constrained by circumstance

• there is a general duty to obey the law — defence is not easily obtainable

Entrapment (defence)

Where someone is actively induced or persuaded into committing an offence by someone acting in an investigation

• ex. undercover operations

Not really a defence, but more often determines the admissibility of evidence

Mistake (defence)

Mistake as to fact:

• the accused does not fulfill the mens rea because they are mistaken as to a fact

  • Irish courts often take a subjective approach

Mistake as to law:

• there is a presumption that people living here know the law

• “officially induces error”: given incorrect legal advice from a trusted professional

Insanity (defence)

Criminal Law (Insanity) Act 2006

Insanity defence:

• 3 elements:

  • evidence that the accused person was suffering from a mental disorder when they committed the criminal act

  • this mental disorder rendered them not responsible for the act (there must be a causal link)

  • the mental disorder has affected the accused person in 1 or 3 ways:

    • they were unable to appreciate the nature and quality of their act

    • they did not know that the act was wrong

    • they were unable to stop themselves form committing the act

Not guilty by reason of insanity

• section 5(2) and (3) of the Act — committed for up to 14 days, then reassessed

Unfit to be tried

• section 4 of the Act — unable to understand the nature or course of the proceedings, and may be ordered to in in-patient or out-patient care

Caused by an internal factor.

Automatism (defence)

Someone might commit the actus reus of a crime as the result of an involuntary action — no awareness or control over what they are doing

• cannot be held criminally responsible unless there was an alternative course of action available to them — FULL DEFENCE

must be caused by an external factor

• internal is often better suited for insanity.

Intoxication (defence)

Criminal Law (Insanity) Act 2006

To be so intoxicated you cannot preform the mens rea

• must be INVOLUNTARY intoxication

“intoxication” means being under the intoxicating influence of any alcoholic drink, drug, solvent, or any other substance or combination of substances.

Infancy (defence)

Different age groups:

• 0-6: conclusively presumed incapable of crime

• 7-14: rebuttably presumed incapable of crime

• 14+: rebuttably presumed capable of crime

Children Act 2001

• a child under 12 shall not be charged with an offence

• presumption that a child might not have the capacity to know what they are doing over the age of 7 is abolished

• actions must be taken by the DPP

• case may be dismissed if it is proven that the child did not have the capacity to understand their actions

Dishonesty

Without claim of right made in good faith