Duty

provided the offender was aware of his status as such person. It is true, as Dalloz observes, that the uniform is not merely an ornament but is intended to warn the citizen of the character of the person charged with a public duty; but his conclusion that, without such uniform, the public officer must be treated like any other private citizen, cannot be accepted without great qualification. For one thing, the uniform does not make the public officer; secondly there are public officers who do not wear any uniform or other distinguishing marks of office. Provided his capacity is not unknown to the person committing the insult, threat or bodily harm in the circumstances described in the definition of the offence, the punishment provided in the section applies. This principle was affirmed several times by our Courts; in the case "The Police vs. Giuseppe Borg"84, Sir Vincent Prendo Azzopardi C.J. said:

“Nel reato di oltraggio ad ufficiale od impiegato pubblico, oltre il dolo specifico desunto dal fine dell’agente, er necessario ad integrare l'elemento morale od intenzionale del reato, la scienza della qualità ufficiale dell'oltraggiato, ma questa scienza può sussistere indipendentemente dalla questione se il pubblico ufficiale portasse o no la divisa della sua carica al tempo dell'oltraggio; di guisacchè il reato può avverarsi anche se l’ufficiale non indossasse tale divisa a patto, ben inteso, che risulti della scienza nell'oltraggiente della qualità ufficiale dell' oltraggiato"85 .

4. Attack or Resistance with Violence or Active Force against Persons Charged with a Public Duty.

This crime in its simple form consists in an attack or resistance by violence or active force (vie di fatto), not amounting to public violence, against a person lawfully charged with a public duty, while acting in execution of the law or of a lawful order of the competent authority.

This provision (Section 95) of our Code was derived from article 178 of the Neapolitan Code which was itself modelled on article 209 of the French Code where the crime was called by the name of "Rebellion".

84 Criminal Appeal, 24/11/1917 85 Law Reports, Vole XXXII, Part I, page 1086

The first element of this crime consists in an attack or resistance. Mere disobedience of the law or of the orders of the public authority does not constitute the crime in question. When a person fails or omits to do that which the law enjoins, he, no doubt, commits a wrong, but such wrong is not always liable to penal sanctions. The same with regard to orders given by a public authority. A person, for instance, who fails to appear before a Court when subpoenaed to give evidence undoubtedly disobeys an order of a competent authority; but he does not, by the mere omission, commit a criminal offence. It is only when the insubordination or defiance goes so far as to obstruct the execution of the law or of the lawful orders of the competent authorities that the crime of attack or resistance with which we are now dealing can arise. The purpose of the agent in this crime, therefore, must be precisely that of obstructing or frustrating the execution of the law or the lawful orders of the competent authority, by opposing the action of those who are charged therewith. If this purpose is absent, though there may have been acts of violence, or threats or insults, the crime in question cannot subsist; we could have the crime under Section 92 or Section 94.

Such attack or resistance must be made with violence or active force. The opposition we have mentioned does not, therefore, constitute the material element of this crime unless it is made with such means. In other words, the law requires the use of private force, which is alone calculated to offer a serious obstacle to the action of the officers concerned with executing the law or the orders thereunder and to impede such action. If, therefore, a man makes opposition to a Warrant of Seizure merely by refusing to open the door of his house, he does not commit this crime. The law would have exacted heroism had it expected anyone to submit cheerfully to an unpleasant execution of a Warrant against him. The same may be said where a person avoids the execution of a Warrant of Arrest by running away at the arrival of the police, or, by freeing himself from their hands without, however, using any violence whatever. The law respects the natural instincts of every man and does not pretend that he should renounce a way which appears open to him to maintain his liberty. Indeed, we shall see that the law does not even punish the simple escape from prison of a person under arrest or trial (as distinct from a person undergoing sentence: Section 149). Likewise, a mere passive resistance to arrest is not punishable. The old Italian text spoke of “violenza o vie di fatto”. A like expression was used in the French Code and the Court of Cassation thus made out the difference between the two:

“La violenza suppone una resistenza, ciò che non suppone punto la via di fatto. Così ogni violenza e’ via di fatto, ma non ogni via di fatto e’ violenza. Via di fatto e in generale ogni atto col quale ai esercitino di autorità privata pretensioni o diritti contrari a quelli di un altro”86 .

With reference to the crime under discussion, however, it appears that both terms denote the use of private force the difference being one merely of degree: every “voie de fait” degenerates into violence when it encounters the resistance of the person against whom it is used. The slightest use of force, however, when accompanying the attack or resistance is sufficient to constitute the material element of this crime. It has been held that for a man to lay his hands in a hostile manner (upon a public officer) is enough to constitute a “voie de fait”87 .

On the contrary mere insults or threats without the actual use of force would not be sufficient. With regard to threats, however, it seems that this preposition holds good only where they are merely by words of mouth or in writing and not where the threats are accompanied with such circumstances of fact (e.g., show of weapons, aggressive attitude) as are calculated to impede the execution of the law or of a lawful order. This latter kind of threats can be considered as a “voie de fait” within the meaning of Section 95.

“In quell’atto di minaccia si contiene lo a e tantamente la forze fisica soggettivo di questo reato, perchè e’ sufficiente a trattenere gli esecutori dall’ufficio loro per l’aspetto del proprio pericolo non appreso soltanto oome una previsione di possibile ma come reale e sovrastante"88 .

The second element of this crime refers to the condition or capacity of the person against whom the attack or resistance is directed. The law speaks of any person lawfully charged with a public duty. We have already had occasion to discuss which persons in the public service come under that category. Here again we must note that it is not necessary that the person concerned with the execution of the law, or a lawful order should at the time be wearing his uniform or any other badge or distinctive mark of office: but it is nevertheless necessary that his capacity should be known to the

86 Vide Marlin, “Questions de Droit”, article Voie de Fait” 87 Criminal Appeal, The Police vs. Gius. Debono et., 3.11.45 88 Carrara, op. cit., 1. c. para .2747: he calls this type of threat "minaccia reale"

agent: so that if on the evidence it appears that he was not aware of it he would not be guilty of this crime:

"Non occorre che il pubblico ufficiale vesta la divisa, ma la sua qualità deve essere nota a chi resiste"89 .

In the third place it is necessary that the attack or resistance against the said persons should take place in the act of the execution by them of the law or of a lawful order from a competent authority. We have already said that the formal element of this crime consists in the purpose of the offender of impeding or frustrating the execution of the law or of a lawful order. Therefore, any violence committed after the law or the order has already been executed, even though it may be on account of such execution, would not give rise to this crime. In Section 95 the law does not use the same expressions as in Section 92 and Section 94.

The question arises whether resistance would be punishable if the officer was at the time abusing his powers or exceeding his jurisdiction, or otherwise acting unlawfully or arbitrarily. In an attempt to give a reply to this question some old writers distinguished the case in which the act of the officer was manifestly unjust from the case in which such injustice was merely doubtful and took the view that only in the former case resistance should go unpunished. Other writers made a distinction between the case in which the execution of the act on the part of the officer might cause an irreparable injury and that in which the injury was reparable. Others, finally held that under a properly ordered system of government there could not be any injustice truly irreparable and that in any case it was unwise policy to authorize private individuals to resist the public officers: consequently ,resistance was, in their view, always punishable because the law itself sufficiently provides for the repression of any abuse on the part of any officer and, thus, offers an effective guarantee in favour of the subject against oppression. In our law the solution of this question is clear. So that the crime under Section 95 may arise it is essential that the officer to whom resistance is offered should be acting in the execution of the law or of a lawful order of the competent authority. “Donde segue che se questa esecuzione lungi dall'essere voluta dalla legge, vi si trovi in opposizione, viene a mancare quel dato essenziale che si richiede per la criminosità della incontrata resistenza”. This is clearly the best and most

89 Maino, op. cit., para. 1007; Carrara, op. cit. 2757; Roberti, op. cit., Vol. III, page 406

equitable solution. The law gives its special protection to the officer not to the man, and, therefore, just as resistance to the representative of public authority while he is discharging his lawful duty is, and should be, severely repressed, so, conversely, the subject has, and should have, the right to resist any arbitrary or illegal act. It would be inequitable to require a passive obedience and submission in all circumstances from the subject who cannot be denied the right of expecting faithful observance of the law from the officers whose duty it is to cause it to be observed by others90 .

This is also, substantially, the English law91 . Having thus defined the constituent elements of the crime, let us now see how it is punishable. If the attack or the resistance is committed by one or two persons, the punishment is imprisonment from four months to one year; but if it is committed by three or more persons the punishment is hard labour or imprisonment from seven months to two years (Section 95). If anyone of the offenders shall use any arm proper in the act of the attack or resistance or shall have previously provided himself with such weapon with the design of aiding such attack or resistance and shall on apprehension be found in possession of any such arm, he shall be punished with hard labour or imprisonment from nine months to three years (Section 96). It appears from the wording of this last Section 96 that the higher punishment therein provided applies only to the person using or providing himself with the weapon even though the other person or persons joining in the attack or resistance may have been aware of the use of the weapon at the time of the commission of the act and may have done nothing to prevent it, or may have been even previously aware that that person had provided himself with the weapon with the design of aiding the attach or resistance92. This is an anomalous departure from the general rule as to the communicability of material circumstances laid down in Section 46 of our Criminal Code.

It must be noted that in the case in which the offender is taken with the weapon (as distinct from the case in which he actually made use thereof) he is answerable for the aggravated form of the crime only if it is made to appear that he had previously provided himself with such weapon with the design of aiding the attack or resistance.

90 Vide Carrara, Prog. Parte Speciale, Vol. V, para. 2760: Pessina, “Elementi di Diritto Penale”, Vol. 3, pg. 98 91 Cf. Archbold, op. cit. Ed. 1931, pg. 989 92 Vide Roberti, op. cit., Vol. V, pg. 94, n.(2)

In article 179 of the Neapolitan Code, on which the provision of our Code was framed, it was sufficient if the offender "nel luogo stesso dell’attacco o della resistenza fosse preso con un’arma propria anche nascoste.” It appeared to Jameson that this phraseology might lend to injustice. The fact that the offender is taken on the spot and weapons found on him might in some instances be altogether accidental, as in the case of sudden encounters and affrays end if no bad use were made of the weapons being so accidentally in the possession of the offender, this would be a circumstance of extenuation rather than aggravation. Such a provision is both arbitrary in character and contrary to the just principles of a penal code, which ought to reject all arbitrary presumptions of guilt or aggravation and allow every circumstance of suspicion to be gifted at the trial according to the evidence. It ought to appear that the weapons were provided beforehand with the intent to aid such an attack or resistance93. Jameson therefore recommended that the article of the Draft should be amended, which it was. It is true that in the text of Section 96 of our Code there is an "or" instead of an "and". The section reads:

"If any of the offenders […] shall use any arm proper in the act of assault or resistance, or shall have previously provided himself with any such arm with the design of aiding such assault or resistance or shall, on apprehension, be found in possession of any such arm, he shall be punished ... etc.” But this "or" must, it is submitted, have crept in by mistake instead of an "and", if the idea was, as it was, to give effect to Jameson’s recommendation. That “or” instead of removing the defect animadverted on by Jameson, adds another defect to the section, for it makes a separates case of aggravation of the condition which he suggested should be fulfilled in order that the mere possession of the weapon by the offender on the spot of the crime should constitute an aggravation. In other words if one were to accept that ‘or’ instead of an ‘and’, not only the mere accidental possession of the weapon at the time of the attack or resistance would be an aggravation in spite of the objection pointed out by Jameson - but there would also be the aggravation if the offender had previously to the attack or resistance provided himself with the weapon to aid the attack or resistance, although he may have subsequently thought better and dispossessed himself of such weapon before the actual attack or resistance. If the

93 Report viii