8 Jun 2008

Law comparison

I began searching for the laws of Trinidad  and Tobago concerning assault (and battery) after reading the following letter published in today's Guardian. Do the police really have the power to pursue assault if the victim does not press charges against the assailant? At first glance,it seems not.

Weak laws empowering would-be criminals

Excuse me for my ignorance! But the young woman and her parents have to be willing to press charges against the "fondler" for the matter to be pursued by the justice system?

How ludicrous!

This fondling offence should be at least a simple assault or sexual battery.

The way the story is presented makes it sound like a civil matter that without the willingness of "the victim" to press charges (not testify), the charge(s) cannot go forward.

That to me, is part of what is wrong with our justice system in Trinidad and Tobago.

That is why so many criminals and would-be-criminals flaunt the laws of the land and feel they can get away with anything, up to and including murder.

We are weak and incompetent to protect the citizens of the nation from themselves and each other.

There must be a different and better way to prosecute these offences and ensure that law-abiding citizens can live their lives, to include travelling on public transportation, without the fear of someone's unwanted touching and more.

So with the collapse of this case, this man (a father with his own children with him on the bus) will be allowed to walk the country freely to victimise another young girl, child or woman.

It is time for the authorities to implement a sexual offenders' registry and have people like this perpetrator's name and address posted on it. This would be public information to warn the public and make them aware of who is living among them.

It is time we get off our duffs and do something meaningful to protect our wives, mothers and children from these criminals. It is time we turn around our "failing state" before it is too late.

Kelvin C James, Sr

via e-mail

I came across the Offences against the People Act (1925). Yes, 1925. The section dealing with assault follows:

ASSAULTS

      27.  Any person who—

                    (a)  by threats or force, obstructs or prevents, or endeavours to obstruct or prevent, any religious head or official in or from celebrating or otherwise officiating at any religious service, or meeting or at any place of divine worship, or in or from the performance of his duty in the lawful burial or cremation of the dead; or

                    (b)  strikes or threatens any violence to, or upon any civil process, or under the pretence of executing any civil process, arrests any religious head or official who is engaged in, or to the knowledge of the offender is about to engage in, or is going to perform, or is returning from the performance of any rites or duties mentioned in this section, commits an offence and is liable on summary conviction to imprisonment for four years.

      28.  Any person who assaults and strikes or wounds any Magistrate, officer or other person whatsoever lawfully authorised, in or on account of the exercise of his duty, in or concerning the preservation of any vessel in distress, or of any vessel, goods or effects wrecked, stranded or cast on shore, or lying under water is liable to imprisonment for four years.

      29.  Any person who assaults, resists or wilfully obstructs any Magistrate, Justice, constable, peace officer or revenue officer in the due execution of his duty, or any person acting in aid of the Magistrate, Justice, constable, peace officer, or revenue officer, or assaults any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, is liable to imprisonment for four years.

      30.  Any person who is convicted upon an indictment of any assault occasioning actual bodily harm is liable to imprisonment for five years; and any person who is convicted upon an indictment for a common assault is liable to a fine of four thousand dollars and to imprisonment for two years

Hmm, more laws dealing with assaults against religious heads or magistracy/judiciary than anyone else.

Contrast this to the UK law:

COMMON ASSAULT

Section 39 of the Criminal Justice Act 1988 makes this a summary offence.

Actus Reus

The actus reus of assault was traditionally regarded as any act which caused the victim to apprehend the immediate infliction of violence.  For example, in Logdon – The defendant, as a joke, pointed a gun at the victim who was terrified until she was told that it was in fact a replica.  The court held that the victim had apprehended immediate physical violence, and the defendant had been at least reckless as to whether this would occur.

The act must cause a belief that there will be immediate harm but this has been interpreted liberally.  See:

    * Smith v Superintendent of Woking Police Station (where the defendant was outside);
    * Constanza (a case of stalking); and
    * Ireland (where the defendant made silent phone calls to three women).

An assault can now be committed by words.

However, actions can be cancelled by words: Tuberville v Savage.

Mens Rea

The mens rea is fulfilled if the defendant intentionally or recklessly caused the victim to apprehend the immediate infliction of harm.  This was stated in Venna.

So the difference appears that if there is an inclination in the victim to believe s/he will come to harm, then it can be considered assault. In such an event, the CPS (Crown Prosecution Service) takes action.

I am not versed in the law, and I am sure there are readers who can correct my shortcomings, but on the face of it there seems to be something wrong when a country relies on laws from 1925.

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