Criminal Offences & Defences Lecture Notes

Introduction to Criminal Law in Ireland

Criminal law at University College Dublin involves a specialized focus on three primary forms of assault: regular assault, assault causing harm, and assault causing serious harm. There is a significant emphasis placed on the practical application of the law to various scenarios. Students are expected to utilize the primary textbook, Criminal Law in Ireland: Cases and Commentary (second edition, 2021) by Liz Campbell, Shane Kilcommins, Catherine O’Sullivan, and Alan Cusack. It is noted that legislation in this jurisdiction can often be produced in a reactive manner, specifically in response to high-profile cases.

Non-Fatal Offences Against the Person (NFOAP)

Non-fatal offences are generally categorized as less serious than fatal offences, such as homicide, as they fall short of causing death. This area is heavily legislated and largely codified, meaning it is governed by statutory law rather than purely common law. The central piece of legislation is the Non-Fatal Offences Against the Person Act 1997, which saw its most recent amendment in November $2023$. This act is a revised act, maintained by the Law Reform Commission to ensure all amendments are integrated. Before the implementation of the $1997$ Act, these offences were governed by common law principles.

Simple Assault (Section 2)

Under Section $2$ of the $1997$ Act, simple assault is classified as a summary offence, typically tried in the District Court. A person is guilty of assault if, without lawful excuse, they intentionally or recklessly: (a) directly or indirectly apply force to or cause an impact on the body of another; or (b) cause another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact without the consent of the other. The actus reus involves either the application of force or causing the belief of imminent impact, while the mens rea is intention or recklessness. Force is broadly defined in section $2.2$. Threatening behavior can be established through body language, the use of a weapon, or words, provided the victim experiences reasonable fear of immediate force. In R v Ireland, the House of Lords held that silent telephone calls can constitute assault depending on the specific facts. Penalties include a Class C fine or a prison sentence of up to $6$ months.

Section $2.3$ clarifies that no offence is committed if the force or impact is not intended, originating from the common law principle in Collins v Wilcock. This raises questions regarding implied consent by simply being present in public. The mens rea of intention or recklessness is defined via common law locus classicus cases.

Assault Causing Harm (Section 3)

Section $3$ deals with assault causing harm, where harm is defined in Section $1$ as "harm to body or mind and includes pain or unconsciousness." This section is frequently utilized in domestic violence prosecutions. Penalties under S3.2 include: (a) on summary conviction, imprisonment up to $12$ months, a fine not exceeding $ext{£}1500$, or both; or (b) on conviction on indictment, a fine, imprisonment up to $10$ years, or both.

A new Section $3A$ was inserted by the Criminal Justice (Miscellaneous Provisions) Act $2023$, specifically criminalizing non-fatal strangulation or suffocation. This occurs if a person, without lawful excuse, intentionally or recklessly strangles/suffocates another or causes another to believe on reasonable grounds that they are likely to be subjected to such.

In jurisdictional interpretation, Peart J in Minister for Justice v Dolny stated that Section $2$ and Section $3$ are separate offences. He argued that Section $3$ does not require proving elements of Section $2$, specifically noting it is not part of the offence that it occur without consent. This was an unusual interpretation, as many view Section $3$ as the same offence as Section $2$ with the additional element of harm. This approach was accepted by the High Court but later challenged in the Brown case.

Assault Causing Serious Harm (Section 4)

Section $4$ defines "serious harm" in Section $1$ as a "substantial risk of death/serious disfigurement/loss/impairment of the mobility of the body." Unlike Section $3$, "serious harm" does not include mental harm or factors like mere pain/unconsciousness. The punishment for this offence on indictment is a fine or imprisonment for life, or both, reflecting its extreme severity. Section $4A$ was recently added to cover non-fatal strangulation or suffocation causing serious harm. Legally, a person cannot consent to serious harm.

In DPP v Kirwan, the defendant attacked someone with a pint glass in a nightclub, causing an eye injury. Although the victim's vision eventually returned after stitches, an expert witness classed it as a "serious injury" due to permanent facial scarring and potential future issues. The court rejected Kirwan's appeal that the treatment caused the injury rather than the act itself, ruling that long-term consequences are not necessary to prove "substantial impairment" and meet the definition of serious harm.

Consent to Assault and Public Policy

Consent as a defense is nuanced. While Section $3A.2$ allows a specific defense of consent, Section $4A$ does not. In R v Donovan, it was established that no person can license another to commit a crime. In DPP v Brown, involving the assault of a prisoner (a former Garda), the Supreme Court overruled the Dolny decision. Dunne J ruled that the word "assault" in Section $2$ and Section $3$ must have the same meaning, and Section $3$ imports the Section $2$ definition. What constitutes a "lawful excuse" is a matter of public policy, with exceptions including sports, surgery, or medical treatment. McKechnie J in the same case noted that public policy limits the type of harm one can consent to.

British case law has heavily influenced Irish public policy. In R v Brown (UK), consensual sado-masochistic activities resulting in no permanent injury were prosecuted under assault occasioning actual bodily harm. The House of Lords held that the prosecution does not have to prove lack of consent, as the activities "glorify cruelty." Conversely, in R v Wilson, a husband who branded his wife with a hot iron at her request was not convicted, as it was deemed a private matter between a married couple. However, Laskey and others v UK saw the ECHR rule that the state is entitled to regulate physical harm through criminal law under Article $8$. In R v Emmett, where a woman was suffocated with a plastic bag and burned with consent, the court followed Brown and distinguished Wilson, ruling that consent was no defense. Finally, in R v BM, a tattoo artist (body piercer) was convicted for procedures like ear removal and tongue splitting, as they were surgical interventions without medical reason and offered no discernible social benefit.

Specific Consent Issues: STIs, Medicine, and Sport

In cases of STI transmission, Child FA v AA suggested that failing to disclose HIV status is not necessarily reckless, but failing to take prescribed antiretroviral drugs could be. In the UK, R v Dica held that consenting to the risk of an STD is a valid defense, but R v Konzani clarified that consenting to unprotected intercourse does not automatically mean consenting to STI transmission.

Regarding medical treatment, consent by a competent adult renders injury lawful if performed by a practitioner for therapeutic purposes. In sports, R v Barnes involved an amateur footballer whose tackle caused serious injury. The appeal court overturned the conviction, stating the tackle was within the run of play and that criminal prosecution is generally undesirable in sports where disciplinary procedures exist.

Other Non-Fatal Offences

Section $5$ (Threats) requires the perpetrator to intend the victim to believe the threat. In Min for Justice v Mach…, an implied threat to drive a victim to a forest to break their legs was sufficient, as the court looks at the state of mind of the accused rather than whether the victim was actually in fear.

Section $6$ (Syringe Offences) addresses the threat of blood diseases. It is not necessary to prove blood is infected; the mens rea is the intention to make someone believe they will be infected or recklessness. In DPP v O’Brien, the court focused on the accused's actions, not the victim's state of mind. Section $6.2$ covers substances resembling blood. Section $7$ criminalizes the possession of a syringe with intent to cause injury, while Section $8$ covers the abandonment of a syringe in a manner likely to cause injury.

Section $9$ (Coercion) involves hierarchy situations common in gang crimes. Section $10$ (Harassment and Stalking), updated in $2023$, includes interfering with peace or causing alarm. It contains both subjective (acting intentionally/recklessly) and objective (a reasonable person would have realized the effect) elements. DPP v Woods held that $2000$ phone calls constituted "persistence." Stalking (Section $10.2$) has a higher threshold, involving fear of violence or serious distress. DPP v Ramachundron found that sending a book once is not harassment because it is not persistent. Section $10A$ prohibits broadcasting material about convictions for these offences unless it is in the public interest.

Other sections include: Section $11$ (Demands for payment causing alarm), where the prosecution only needs to prove actions were "calculated" to cause alarm; Section $12$ (Poisoning), which requires administering a substance without consent that interferes with bodily functions; Section $13$ (Endangerment), requiring conduct creating a substantial risk of death or serious harm (quashed in DPP v Cagney and McGrath because the judge did not consider the accused's subjective state); Section $14$ (Endangering traffic); and Section $15$ (False imprisonment).

Property Offences: Theft

The Criminal Justice (Theft and Fraud Offences) Act $2001$ modernized the law. Section $4(1)$ defines theft as dishonestly appropriating property without the owner's consent with the intention of depriving the owner of it.

• Property: Defined in Section $2(1)$ as money and all other property (real/personal) including intangible property. Information is not property.

• Appropriating: Section $4(5)$ means usurping or adversely interfering with proprietary rights. For example, if Person A lends a laptop to Person B for a week, but Person B keeps it and uses it for other purposes, appropriation occurs at the point of interference with A's rights.

• Depriving: Section $4(5)$ covers both temporary and permanent deprivation.

• Exceptions: Section $4(2)$ excludes belief in consent or belief that the owner cannot be found. Section $5(2)$ states land cannot generally be stolen except by trustees or through severance. Section $5(4)$ covers wild mushrooms (theft only if for commercial sale), and Section $5(5)$ covers wild creatures.

In DPP v Valentine, establishing ownership was deemed essential. DPP v O Loughlin clarified "dishonesty" as acting without a claim of right made in good faith; the court held that an honest (though perhaps legally incorrect) belief that one is entitled to property to satisfy a debt can negate dishonesty. Regarding intention, DPP v Keating established that one doesn't have to leave the shop to be guilty of theft if fraudulent intention is proven. Penalties on indictment include a fine or up to $10$ years in prison.

Burglary and Robbery

Burglary (Section $12$) involves entering a building or part of it as a trespasser with intent to commit an arrestable offence (one carrying a $5$-year sentence). R v Collins defined entry as "substantial and effective." In R v Brown, an arm reaching through a window was sufficient. R v Jones and Smith held that one can be a trespasser if they enter with permission but exceed that permission for an illegal purpose. DPP v Barnes highlighted the constitutional protection of the dwelling, noting burglary violates human dignity. Aggravated Burglary (Section $13$) involves a weapon. In R v Kelly, using a screwdriver to break in did not count as a "weapon of offence" because there was no intention to use it against a person.

Robbery (Section $14$) is defined as Theft plus Force. The force must be used "in order to" steal and can be actual or threatened. In DPP v Mangan, the seriousness of force was treated as a factual matter based on victim perception.

Stolen Property, Deception, and Forgery

Handling stolen property (Section $17$) and possession (Section $18$) are mutually exclusive. Recklessness here is defined in Section $16(2)$ as "disregarding a substantial risk."

Deception is defined in Section $2.2$ as creating false impressions, withholding information, or failing to correct mistakes in a fiduciary relationship. Section $6$ covers making a gain or causing a loss by deception. Loss/gain can be actual or potential. In Minister for Justice v Laks, the court found that overdrawing a bank account did not automatically prove dishonesty or an intent to make a gain under Section $6$. Section $7$ specifically covers obtaining services by deception.

Forgery (Section $25$) involves making a false instrument to induce another to accept it as genuine. In DPP v Malocco, it was clarified that the accused does not need to benefit personally; the intent to cause prejudice to another is sufficient.

Computer Hacking and Criminal Damage

The Criminal Justice (Offences Relating to Information Systems) Act $2017$ covers unlawfully accessing systems (Section $2$), interfering with systems (Section $3$), interfering with data (Section $4$), and intercepting data (Section $5$). All require intentional mens rea.

Criminal Damage (Act of $1991$) Section $2(1)$ criminalizes damaging property belonging to another. Section $2(2)$ covers dangerous damage intended to endanger life. Arson (Section $2.4$) involves damaging property by fire and carries life imprisonment. Penalties for standard damage include up to $ext{€}10000$ on indictment or life for arson.

Sexual Offences

Common law rape (codified in Section $2$ of the $1981$ Act) is gendered, committed only by men. Actus reus includes penetration (however slight, People v Dermody) and absence of consent. DPP v CO'R defined consent as the active communication of agreement. The $1990$ Amendment Act lists eight situations negating consent, including force, fear, sleep/unconsciousness, intoxication, and mistake as to nature/identity. In R v Olugboja, the court distinguished submission from consent. In R v McNally, deception as to gender was held to vitiate consent. Consent is continuing and can be withdrawn; continuing penetration after withdrawal constitutes rape (Kaitamaki).

The mens rea for rape is knowledge of or recklessness regarding the absence of consent. DPP v Morgan (UK) originally established a subjective belief in consent as a defense, but modern law requires that the belief be reasonable. Section $4$ Rape (Amendment Act $1990$) is non-gendered and covers anal/mouth penetration by a penis or vaginal penetration by objects.

Sexual assault involves assault and indecency. R v Court defined indecency as an affront to "sexual modesty." Aggravated sexual assault (Section $3$) involves serious violence, grave injury, or humiliation. In DPP v Naughton, choking and hair pulling were cited as aggravating factors.

Sexual Offences Against Children

Following CC v Ireland, the law was reformed via the $2006$ and $2017$ Acts. A sexual act (Section $2$) with a child under $15$ carries life imprisonment. A defense exists if the defendant was "reasonably mistaken" about the child's age (objective test). For children between $15$ and $17$ (Section $3$), the penalty is $7$ years, or $15$ years if the perpetrator is in a position of authority. A "Peer Exemption" (Section $3.8$) exists if the perpetrator is less than $2$ years older than the child, they are not in authority, and the relationship is not exploitative. Interestingly, Section $5$ of the $2006$ Act prevents a female child under $17$ from being criminalized for intercourse, though a boy could be.

Capacity Defences

Defences fall into justifications (the act wasn't wrongful) or excuses (the actor isn't to blame).

• Insanity: The Criminal Law (Insanity) Act $2006$ provides three forms: the insanity defense (Not Guilty by Reason of Insanity), unfitness to be tried, and diminished responsibility for murder. Mental disorder excludes intoxication. The M'Naghten Rules require the accused didn't know the nature of the act, didn't know it was wrong, or had an irresistible impulse (Doyle v Wicklow CC). Legal insanity differs from medical insanity; epilepsy can be legal insanity (R v Sullivan).

• Infancy: Under the Children Act $2001$, the age of criminal responsibility is $12$, though $10$- and $11$-year-olds can be charged with murder or rape. This is notably low by European standards.

• Intoxication: Voluntary intoxication is not a defense for "basic intent" crimes (requiring recklessness) but can mitigate "specific intent" crimes (intent only), as per DPP v Majewski. Involuntary intoxication (e.g., spiked drinks) might be a full defense. In DPP v Murphy, a combination of prescribed painkillers and alcohol was considered in sentencing.

• Mistake: Mistake of fact can negate mens rea if it is honest/reasonable (DPP v Morgan). Mistake of law is generally not an excuse, as citizens are presumed to know the law, though "officially induced error" was discussed in DPP v Casey (bank fraud).

General Defences

• Justifiable Use of Force: Under the $1997$ Act, the force must be reasonable in the circumstances as the defendant believed them to be (DPP v Quinn). DPP v O'Sullivan outlined three verdicts: acquittal, murder, or manslaughter (if force was excessive but honestly believed necessary). There is no duty to retreat from one's home (DPP v Barnes).

• Duress: This requires threats of immediate death or serious violence that would overbear the will of an ordinary person (People v Whelan). Hurley & Murray set eight strict criteria. It is unavailable for murder or to those who voluntarily joined violent gangs (R v Fitzpatrick).

• Necessity: Choosing the lesser of two evils. Requirements include imminent peril and no lawful alternative (R v Loughman). It is not a defense to murder (R v Dudley & Stephens).

• Automatism: Involuntary muscle action without mind control (Bratty). "Insane automatism" stems from internal factors (insanity), while "non-insane automatism" comes from external factors (e.g., medication reactions in R v Quick). Dissociative states from trauma have been recognized in R v Falconer.

• Entrapment: Not a traditional defense based on culpability but focuses on state misconduct. The test is whether the police provided an "unexceptional opportunity" or went too far by offering inducements/persuasion (R v Loosely and DPP v Mills).

Questions & Discussion

Exam Format: The exam consists of $5$ questions, and students must choose $2$. Both questions are problem-based. Students are instructed to identify the appropriate offence, outline the actus reus and mens rea, and explore potential defenses. Detailed application of the law to the specific facts is crucial for success.