Civil And Criminal Proceedings For Assault
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb01095.x |
| Published date | 01 January 1966 |
| Author | P. M. North |
| Date | 01 January 1966 |
CIVIL AND CRIMINAL PROCEEDINGS
FOR
ASSAULT
UNDER the Offences against the Person Act
1861,
8s.
42
to
45,
it
is provided that on summary prosecution for
a
common assault
or
an
aggravated assault on
a
female
or
boy under fourteen, further
proceedings, civil
or
criminal, may be barred
in
certain circum-
stances. Section
44
provides that
“
If
the justices, upon the hearing of any such ease of assault
or
battery upon the merits, where the cornplaint was preferred
by
or
on
behalf of the party aggrieved, under either
of
the last
two preceding sections, shall deem the offence not to be proved,
or
shall And the assault
or
battery to have been justified,
or
so
trifling
as
not
to merit
any
punishment, and shall accordingly
dismiss the complaint, they shall forthwith make out
a
certifi-
cate under their hands stating the fact
of
such dismissal, and
shall deliver such certificate to the party against whom the
complaint was preferred.”
“
If
any person against whom any such complaint as
in
either
of the last three preceding sections mentioned shall have been
preferred by
or
on behalf of the party aggrieved shall have
obtained such certificate,
or,
having been convicted, shall
have paid the whole amount adjudged to be paid,
or
shall have
suffered the imprisonment or imprisonment with hard labour
awarded, in every such ease he shall be released from all further
or
other proceedings, civil or criminal,
for
the same cause.”
It
is the purpose of this paper to consider various problems
of
interpretation arising from these sections and to consider some of
the possible consequences of their application.
(a)
BY on
ON
BEHALF
OF
THE
PARTY
AGGRIEVED
l
In
order that the later civil
or
criminal proceedings may be barred
under section
45
the complaint which led to the original criminal
hearing must have been made by the person aggrieved,
i.e.,
assaul-
ted, or on his behalf. In
Nicholson
v.
Booth and
Naylor8
the
information
”
for
I’
complaint
:
Magietratos’ Courts hot
1068,
6.
48.
It
waa
epecially provided
by the Irieh
Snrnmary
Jurisdiction
Act
1862,
6.
9,
that, in Ireland, the jue-
ticee might, if they thought
fit,
proceed agaiffat any ereon charged under
FI.
48
of the Offencee againet the Person Act notwitEetanding that the party
aggrieved
may
decline or refueo to prefer
D
complaint
”;
on
which rovieion
ECO
R.
v.
Wicklow
JJ.
(1802) 80
L.R.Ir.
699;
R.
V.
Galwav
JJ.
6001) 86
I.L.T.R.
166;
R.
v.
00.
Waterford
JJ.
(1004) 88
I.L.T.R.
186;
R.
V.
Cork
JJ.
kg121 2
I.R.
64
at
pp.
90,
04;
cf.
R.
v.
Armagh
JJ.
(1008) 48
I.L.T.R.
128.
2
8
(1888)
67
L.J.M.C.
48;
applied in
R.
v.
Wicklow
JJ.
(supra);
see
also
R.
V.
Deny
(1861)
u)
L.J.M.C.
189,
a
deciaion under the equivalent provision,
66.
27
16
It
is then provided by section
45
that
1
BE.
49, 44
aqQ
4G.
In these eoctione, one ehould now
read
d
ale0
for the origmal offence under
s.
48
to be committed.
JAN.
1966
CIVIL AND CRIMINAL PROCEEDINGS
FOR
ASSAULT
17
defendant had been apprehcndcd by the police on
a
charge of
assaulting Naylor. When the dcfendant was takcn to the police
station, Naylor there charged him with the assault,
but
at
thc
hearing before the justices Naylor did not appear and his complaint
was made by Booth,
a
policc sergeant. The defendant argued that
the magistrates had no jurisdiction
as
the complaint had not been
made by
or
on
behalf of the person assaulted. The defendant was
convicted and the magistrates stated
a
case.
Hawkins
J.
quashed
the conviction on the grounds that the magistrates had acted outside
thc statute and
a
complaint by the police would not sulllce. The
justification given for this was that
as
the pcrson assaulted might
be entitled to heavy damages,
a
conviction other than on the com-
plaint of the party aggrieved would permit thc defendant to be
released, under section
45,
from all further proceedings.
If
the object of section
45
is to prevent the plaintiff from visiting
criminal sanctions upon the defendant and then suing him,
a
bctter
answer to the problem involved herc would be to permit the police
to lay
a
complaint, inlthe interests of preserving the peace, but to
provide that section
45
shall not apply unlcss the complaint has been
laid by
or
on behalf.of the party aggrieved. One might add here
that it is very difficult to find
a
real justification for section
4G
as
earlier civil procccdings are
no
bar to
a
later criminal complaint,
and
so
if the plaintiff chooses to act this way round, he is outside
section
4G
and
is,
thus, able to institute two sets of proceedings
against the defendant for the same a~sault.~
One problem does arise from the interrelation of section
48
with
sections
44
and
45.
The complaint of an assault
or
battery on
a
female
or
boy under fourteen under section
48
may be made by
the party aggrieved
or
otherwise.
Naturally many assaults herc-
under will result in complaint by thc person actually assaulted,
certainly if the assault
is
on an adult female.5 Furthcrmore, if
the person assaulted is an elderly
or
infirm person, then
a
complaint
can quite clearly be made on his behnlf within the mcaning of
sections
42,
44
and
4G.
An cxample
of
this is to be scen
in
Pickering
v.
Willoughby,o
where thc person assaulted was too old, infirm and
feeble to institute proceedings herself.
It
is suggested that this
should apply equally in the case of a child,
i.e.,
infirmity through
lack
of age rather than cxccss. This situation could well be covered
and 28
of
the Offences against the Person Act 1828; cj.
n.
v.
Gaunt
(1806)
GO
J.P.
00.
4
Magee
v.
Slorcv
10291
N.T.
134;
Howard,
"The Offence8 against tho Porson
Act,
8.
46
"
[1068\ Crim.L.R. 93 at pp. 96-38.
5
As
presumably was tho cam in
Woods
v.
Woods
(1884) 10
P.D.
172;
Powell
v.
Powell
(1889) 14 P.D. 177;
Lewin
v.
Lewin
[1891]
P.
2G4;
Jones
v.
Jones
[1806
P.
201;
Bryant
V.
Bryant
[1014]
I?.
277;
Cassidy
v.
Cassidy
[1960
1
also
Re
nice
(1879)
I.R.
7 C.L. 74, especially at p. 78, whoro B'itzgerald
J.
cmphasiscd thnt, under
8.
43, proceedings wore not nccesenrily
at
the suit
of
the party aggrieved.
W.L.
k
.
1024;
all
these
were
cases
of
assault
by
a
husband on his wife.
gee
6
[1907] 2
R.B.
206.
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