The accounts of Minister Eamon O’Cuiv’s assault on a student are somewhat confused. He admits grabbing the student by the arms.

He justifies this, it appears, by claiming to have been acting in defence of his secretary. The uncertainty lies in the issue as to why she needed defending. The Minister according to one account believed the secretary “felt” threatened and on another account asserted that she had been assaulted (by being kicked) and that the person he, the Minister, grabbed (or restrained) had been armed with a piece of wood.

Mr Ó Cuív said he acted in defence of his secretary who had been threatened by an individual who was wielding “a piece of timber” and had to act to defend his secretary and himself.

“I think I was right to defend my secretary. She was very, very upset because one of the protesters had a piece of timber. And it was the second time in a week that she had been intimidated by some of the same students because they forcibly entered my office last week. They occupied my office and there was only female staff there at the time,”

Subject to qualification, if the latter account is accurate, the Minister has a good defence. Section 18 of the Non-Fatal Offences Against The Person Act 1997, provides:

18.—(1) The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence—“

This is a somewhat peculiar expression. It alludes to an objective standard (“…as is reasonable in the circumstances…” and also to a subjective standard (“…the circumstances as he or she believes them to be…”).

The Minister’s articulation of his justification is itself a complicating factor; he was, variously defending himself and his secretary and/or his secretary, and was doing so because of an immediate threat (“wielding a piece of timber”) but also because of the perceptions of the secretary and the quality of the threat as revealed by the alleged (by the Minister) behaviour of some of the students in the previous week in occupying his office. Later, his office asserted the secretary was being squashed against a wall and was being kicked.

The Minister is certainly entitled to defend himself:

( a ) to protect himself……………. from injury, assault or detention caused by a criminal act;”

and to defend another person;

( a ) to protect himself ………… or another………”

He is also entitled to use force:

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

In any prosecution of the Minister for the assault on the protester, the prosecutor would have to negative the Minister’s defence of acting within the provisions of Section 18.

It may seem perverse to say it currently, but the world is improving. The world financial system is teetering; the people of Iceland must pay in cash for their needs and we in Ireland must endure cynical lies from people who personally failed in their jobs and wish the consequences to fall elsewhere on victims without power.

Nevertheless, it is true.

We see it in the abolition of an outrageous assumption; that people of power may beat up other people.

Section 24 of the Non-Fatal Offences Against the Person Act 1997 provides;

24.—The rule of law under which teachers are immune from criminal liability in respect of physical chastisement of pupils is hereby abolished.”

My goodness, is it possible we may yet see a disciplinary code and complaints and regulation system for judges?

The existence of absolute privilege (in the Oireachtas and the courts) is generally known. The existence of qualified privilege is less well known. There is a qualified privilege for words spoken, without malice, to protect property or detect crime. The leading UK textbook on Defamation, “Gatley on Libel and Slander�? states:

Though there is no common interest involved, the Courts have long held that statements are privileged if made bona fide for the purpose of detecting and bringing to punishment a suspected criminal, or of recovering stolen goods. Thus, a person who suspects another of a particular theft may, with a view to inquiry, tax that individual with the theft, and although the suspicion turns out to be erroneous, the law gives no redress to the party accused.”

Consequentially, in the High Court case of McCormack v Olsthoorn [2004] IEHC the Defendant, wrongly believing the Plaintiff had stolen a plant from him, publicly challenged him to that effect. The court ruled that the statement was made on an occasion of qualified privilege and found for the Defendant on that issue. (The Defendant lost on the issues of assault and false imprisonment).

[McCormack v Olsthoorn MAY REST ON ITS PARTICULAR FACTS. ARGUABLY, THE DEFENDANT COULD HAVE DEALT WITH THE MATTER A LITTLE DIFFERENTLY. WAS IT UNAVOIDABLE OF HIM TO SAY WHAT HE SAID, IN PUBLIC?]