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Posts Tagged ‘The People (AG) v Commane (1975) 1 Frewen 400

Lecture given to Bodyguards on The Law relating to Assault

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 The job of the Bodyguard is a dangerous one which can only be undertaken by those trained to the highest standards. Today I am here to lecture you on the law in Ireland as it relates to you and the execution of your duties in this Country.


Assault – the criminal law

Defence of Self-Defence

As a general rule, the use of force, whether it is fatal or non-fatal, is unlawful.

(1) If fatal force is employed, its lawfulness falls to be determined in accordance with the common law.

(2) If the force used is non-fatal, ss18-20,  Non-Fatal Offences Against the Person Act 1997  comes into play.


The People (AG) v Dwyer [1972] IR 416.

Supreme Court; “where a person, subjected to a violent and felonious attack, endeavours, by way of self-defence, to prevent the consummation of that attack by force, but, in doing so, exercises more force than is necessary but no more than he honestly believes to be necessary in the circumstances, such person is guilty of manslaughter and not murder.”

The People (AG) v Commane (1975) 1 Frewen 400.

The accused was held not to have had such an honest belief. He had rendered his assailant unconscious by fracturing his skull with a whiskey bottle and proceeded to strangle him. He argued that, in strangling his assailant, he had used no more force than he honestly believed to be necessary. His conviction for murder was affirmed on the basis that the jury was entitled to conclude that he had used more force than he had known to be reasonably necessary.

In the premises the test for determining whether or not fatal force is lawful is threefold:

  1. It must be used for the purpose of defending a person or property or preventing a crime.

  2. The use of some force must be necessary (the necessity of force is judged according to objective standards).

  3. Fatal force must be no more than is reasonably necessary. It is murder if the accused knows it is more than is reasonably necessary. It is manslaughter if the accused honestly believes that it is necessary.

So in relation to point (iii), in the recent Nally case, the jury determined that the force actually used, ie shooting a traveller who trespassed on the accused’s property, was in fact necessary.


S. 18 – The use of force for certain specified purposes:

Force must be used for one or more of certain purposes in order to be lawful.

s.18(1) of the 1997 Act, a person may lawfully use force:

(a) to protect himself or a member of his family or another from injury, assault or detention caused by a criminal act,

(b) to protect himself, or another from trespass to the person,

(c) to protect his property,

(d) to protect property belonging to another,

(e) to prevent crime or breach of the peace.

According to s. 18(5), ‘the question whether the act against which force is used is of a kind mentioned in paragraphs (a) to (e) of subsection 1 shall be determined according to the circumstances as the person using the force believes them to be.’ So essentially the test is twofold, partly objective and partly subjective. It is subjective in it looks at the circumstances as the accused believed them to be. Then it is objective in that it looks at whether it was reasonable in those circumstances.

S. 18 does not apply to a person who sets out to create a situation in which it becomes necessary for him to use force (s18(7)).

S. 19 – the use of force to effect or assist a lawful arrest:

It may be lawful to use force for the purpose of effecting or assisting in a lawful arrest. An unlawful arrest is regarded as being lawful for the purpose of s. 19 if the person using the force believes that he is effecting or assisting in the lawful arrest. The force used must be reasonable in the circumstances, as the accused believes them to be.

S. 20 (sets out definition of force)

‘Force’ is defined in s.20(1) as the application of force to, or causing an impact on, the body of a person or property. It includes threatening a person with force against that person or property and detaining that person without actually using force.

Finally, ‘the fact that a person had an opportunity to retreat before using force shall be taken into account, in conjunction with other relevant evidence, in determining whether the use of force was reasonable.’

Civil Law (Trespass to the person)

Trespass to the person can take the form of battery (unlawful personal contact), assault (threat of battery) or false imprisonment (unlawful deprivation of personal liberty).

Assault – defined as “an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person”. The belief of contact must be reasonable but the fact that the defendant was not in a position to execute the threat is irrelevant.

Battery – defined as “the actual intended use of unlawful force to another person without his consent … or any other lawful excuse”.

False imprisonment – defined as the unlawful restraint or detention of the plaintiff. Imprisonment is a misleading term since this tort is committed whenever one is restrained by another or constrained from movement from a place whether that place is a shop, school or one’s own home.

Many civil actions for battery are taken against employees such as security guards  who make contact with or cause injury to another. The employee must show that he acted proportionately and with minimal force to the situation in question and this may be justified as self-defence or defence to property. If the person uses excessive or disproportionate force, a battery will have occurred. Furthermore, in general it will be held that an employee is acting outside the scope of his employment if excessive force is used and therefore the employer is not vicariously liable and the employee alone is liable to the plaintiff.

A number of these issues were discussed in the case of Gibbons v Securicor (unrep 2004). The plaintiff was asked to leave a shopping centre because he was shouting and making gestures at security staff. He refused to leave and tried to strike a security guard. The security staff restrained him and brought him inside to an office and called the Gardai. The plaintiff brought a claim for battery, false imprisonment and defamation. The Court made a number of points:

  1. An occupier of premises can withdraw a person’s licence to be present on the premises and the individual commits a trespass if they refuse to leave;

  2. A degree of force may be used to remove a person from the premises where they are trespassing;

  3. If a person assaults or batters another or attempts to do so, that other person can use reasonable force to defend themselves;

On the facts of the case the Court held that the restraint of the plaintiff and his detention was justified and the plaintiff’s case was dismissed.

Defence of self-defence

It is lawful to use reasonable force in self-defence to an assault and/or battery by another. The response must be proportionate and excessive force may not be used.

In certain circumstances it is also permissible to make a pre-emptive strike. In the Chaplin of Gray’s Inn Case [1400], it was stated that a person threatened with assault is “not bound to wait until the other has given a blow, for perhaps it will come too late afterwards.”

In regard to the defence of property, in MacKnight v Xtravision [unrep 1991], the plaintiff was preventing customers from entering the defendants premises. The defendant instructed the security man to remove him. The security man was a former boxer and he cause the plaintiff injury and significant bruising. The Court held that the appropriate procedure was to request someone to move away and if they refuse, an employee may lay their hands lightly on the person to move them away.There has been endless cases and events where bodyguards protecting celebrities have had assault charges brought against them. The most common case is where, in protecting their clients, they have had run inns with paparazzi.


Rapper Nelly –Avoiding a court appearance in Connecticut, rapper Nelly paid out $20,000 to a photographer who accused the star’s security guards of assaulting him. According to reports, freelance photographer Brian Jones, 39, had accused one of the rapper’s security personnel, Brian Jones, of escorting him to the edge of the stage and ‘violently hitting him’, causing serious injuries, during a concert at the Bridgeport Arena, Connecticut. Livingstone was reportedly cleared to be taking photographs backstage at the time, although the bodyguards allegedly believed he was filming the tape illegally.
Livingstone still has lawsuits posted against the city of Bridgeport and the Bridgeport Arena, over the July 12, 2005 concert incident, reports the Associated Press.

Bodyguards of Leonardo DiCaprio Face Assault Charges –Israeli police revealed last year that they were deciding whether to charge assault charges against the two bodyguards of Leonardo DiCaprio. The two bodyguards were arrested after they were involved in a fight with photographers in Jerusalem. The brawl of the bodyguards with paparazzi happened when the actor Leonardo DiCaprio and his model girlfriend Bar Rafaeli took a private tour of the tunnels next to the Western Wall. Approximately twenty photographers, together with a crowd of fans and curiosity-seekers, waited for the 32-year-old actor to come out of the tunnel. The photographers gathered around as DiCaprio got into a van, and security guards tried to shoo them away.

Israeli authorities are considering whether to file charges against the two bodyguards for the “unnecessary” assault. It was reported that three photographers were injured in the incident.

Micky Rosenfeld, a police spokesman, revealed, “We understand it was the photographers who were attacked. The photographers didn’t attack the security guards. It’s very clear it was an unnecessary incident.” He admitted that he did not know when a decision to press charges would be made. Shawn Sachs, the publicist of Leonardo DiCaprio, said the blame rested solely with the photographers. He revealed, “Leo is horrified that anyone might have gotten hurt in this situation, but the paparazzi really made this happen.” The two bodyguards were released without charge. According to the spokesman of Leonardo DiCaprio, local officials issued a restraining order on Wednesday against several of the paparazzi involved in the brawling incident.

Brad Pitt and Angelina Jolie – MUMBAI: The three bodyguards of star Hollywood couple Brad Pitt and Angelina Jolie, who are wanted to stand trial for allegedly intimidating, insulting and assaulting parents at a local school during the shooting of the film A Mighty Heart in Mumbai have failed to turn up for a single court date.

On a visit to Anjuman-e-Islam school in South Mumbai for the shoot on November 16, 2006, a scuffle broke out between the three men – Thomas McAdam (47), Robert Dunn (35) and Michael Brett (50) – and parents who had come to pick up their children. One of the men is alleged to have abused a parent by calling him “You bloody Indian”. All three bodyguards were arrested the next day and later released on bail.

Jolie herself had strongly denied the charges saying that she would never employ anybody who was racist as her own family was of mixed race. Brad Pitt, who was one of the producers of the film, had even met the then police commissioner A N Roy and said that his men could never hurt children. But now when the time has come to prove their innocence in court the men are not to be found.

All three are British nationals and booked under Section 323 of the IPC for “voluntarily causing hurt”, under section 504, for “intentional insult to provoke breach of peace” and under section 506 for “criminal intimidation”.

A charge sheet was filed in February 2007 but as the bodyguards failed to appear in court the magistrate issued summons asking them to remain present.

“The address given by them was of the Taj Hotel in Colaba and a police team went there with the summons but was informed that the accused had left a long time ago,” said inspector Dhananjay Sonawane.

(This Paper was originally delivered by Tom Baldwin at  The International Bodyguard Association Training Course held in Castlebellingham in 2009)

LegalEagleStar , Wednesday , 31st. August , 2011

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