August 4, 2013 by kaine Agary (pocketlawyer@dtalkshop.com)
Kaine Agary
| credits: File copy
| credits: File copy
Most people in Nigeria do not think twice about using force to establish or defend their space, or even their place with regard to the next person, but in the past few weeks, with the Rivers State House of Assembly Majority Leader, Chidi Lloyd, being questioned by Police for his actions during the botched takeover of the seat of Speaker of that House, the criminal offence of assault has been in focus.
Our criminal code defines assault as such: “A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent, if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, in such circumstances that the person making the attempt or threat has actually or apparently a present ability to affect his purpose, is said to assault that other person, and the act is called an assault.”
Basically, an assault is an act which directly and intentionally causes any one to believe that violence is about to be inflicted on him. A person may be liable for assault even though he has not had physical contact with the victim. All that is required is the reasonable worry of fear that some harm or violence is about to come their way. Therefore to approach a person threateningly with a clenched fist or pointing finger may amount to an assault. English courts have also ruled in a case that silence over the telephone constituted an assault. The silence was threatening enough to make the victim apprehend force or violence against them.
Our Criminal Code goes on to define “assaults unlawful” as an assault that is unauthorised or justified or excused by law as there as cases where an assault is lawful, for instance in the reasonable application of force to lawfully execute a sentence, process a warrant or in making an arrest. The force used must not be excessive. Reasonable force may also be used to prevent escape from arrest and, in fact, deadly force may be used by law officers if the person trying to escape arrest is an offender being arrested for an offence that carries a punishment of death or at least seven years’ imprisonment.
The law also excuses the use of a reasonable amount of force for parents in the correction and/or discipline of a child or ward under the age of 16; for masters in the correction and/or discipline of a servant or apprentice under the age of 16; and for schoolmasters using their delegated powers as guardians over the children in their care.
There are defences (lawful excuses) to the offence of assault namely, provocation and self- defence. The law provides that: “A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely, to cause death or grievous harm.” A person could be provoked by an act or insult by another and react with an action that constitutes an assault, the circumstances surrounding the provocation and the resulting assault will determine whether the defence is available to the offender or not. For instance, if two men are quarrelling and in the heat of the exchange, John says to Jack, “I slept with your mother last night”, that could be an insult (provocation) worthy of an assault (i.e., an act or insult that deprives the receiver of the power of self-control). If Jack slaps John immediately after the statement, that may be reasonable and lawful, but if Jack turns around, takes time to search for a stone or other weapon and uses it to strike John, causing grievous harm, then issues about the amount of force used proportionate to the provocation, and whether there was time for Jack’s passion to cool, will then come into question to determine if the assault was lawful or not. The facts of each case will determine these issues.
Self defence is another lawful excuse for assault. The law allows a person to use such force as is necessary to defend their person or another against an assault, and in some cases, deadly force may be lawful if a person is defending their person or another against a reasonable fear of death or grievous bodily harm. If John charges at Jack and Jack pushes him away to avoid being knocked into a gutter or into the path of danger, then Jack could plead self-defence. However, if under the same circumstances, Jack picks John up and slams his head onto a concrete pavement, it is highly unlikely that he can rely on self-defence as a lawful excuse for that assault. Here again, the facts of the case will determine whether the defence is available to the offender or not.
The law also allows reasonable force, causing no harm, against trespassers, in the defence of movable and immovable property.
There are different types of assault defined by law, each carrying different punishments ranging from one year to 14 years’ imprisonment. A simple assault is a misdemeanour carrying a penalty of at least one year imprisonment.
No comments:
Post a Comment