Assault

Triangla · 03-01-2014 3:05pm

OP You are the victim of a crime.

I think having a quiet word with someone who leathered you outside a pub is a bit daft to be honest.

Gardai and the courts exist for a reason. My advice is to follow the options available to you and seek a prosecution. As an adult the attacker is responsible for his actions.

I hope you follow up on this.

Allknowing · 03-01-2014 3:06pm

chops018 wrote: »

It would be extremely difficult without hearing the story from the defendant.

But off the top of my head - provocation, intoxication. Although they will not be complete defences, they are still available to him and may help greatly depending on the defendant's Solicitor and Judge. It could very well be taking into account when determining the penalty imposed, and as I said in a post above that penalty may very well be a donation to the poor box - in essence, being let off without a conviction, or else being given the Probation Act.

I'm not saying the above would work, just using them to add to the discussion as they are a possibility.

More than likely if the OP does proceed it will be a run of the mill Criminal case in the DC anyway which could either see him get a few months and a fine, none at all but suspended and a fine, none but suspended, a fine, a donation to the poor box, or nothing.

I believe you are referring to mitigating factors rather than defence.

chops018 · 03-01-2014 3:18pm

234 wrote: »

Provocation only applies to murder charges to downgrade the conviction to one of manslaughter.

Not true. They only apply to murder charges as a complete defence, whereas they can apply to other crimes to mitigate the penalty..... this is all reclaiming knowledge from my head, so apologies if I am wrong, and if I am then I will stand corrected.

Yes, mitigating factors..... but, for something like what would seem like section 2 assault it could be enough for the judge to let him away with it!

As I said, I've seen provocation being used in section 2 assault cases in the DC (although not being explicitly stated as provocation, but the reasoning used by the Solicitor definitively correlated as such), and ending up in a donation to the poor box and thus no conviction.

EDIT: I saw someone said I was talking about mitigating factors.... and I suppose, looking back now, I should have said mitigating factors instead of a defence.

Allknowing · 03-01-2014 3:24pm

chops018 wrote: »

Not true. They only apply to murder charges as a complete defence, whereas they can apply to other crimes to mitigate the penalty..... this is all reclaiming knowledge from my head, so apologies if I am wrong, and if I am then I will stand corrected.

Yes, mitigating factors..... but, for something like what would seem like section 2 assault it could be enough for the judge to let him away with it!

As I said, I've seen provocation being used in section 2 assault cases in the DC (although not being explicitly stated as provocation, but the reasoning used by the Solicitor definitively correlated as such), and ending up in a donation to the poor box and thus no conviction.

EDIT: I saw someone said I was talking about mitigating factors.... and I suppose, looking back now, I should have said mitigating factors instead of a defence.

Your welcome :-)

03-01-2014 4:15pm

chops018 wrote: »

EDIT: I saw someone said I was talking about mitigating factors.... and I suppose, looking back now, I should have said mitigating factors instead of a defence.

Indeed.

DC not the best place to see the law, as such, in action.

Defences go to liability. They are separate from considerations when sentencing. Though obviously there can be factual overlap.

hullaballoo · 03-01-2014 4:49pm

chops018 wrote: »

Not true. They only apply to murder charges as a complete defence, whereas they can apply to other crimes to mitigate the penalty..... this is all reclaiming knowledge from my head, so apologies if I am wrong, and if I am then I will stand corrected.

I'm just going to point out to you that you said the following earlier in this thread:

chops018 wrote: »

There are numerous other defences available to a defendant. Please don't make such a comment unless you have studied the intricacies of Criminal Law.

I think that if you are going to accuse someone else of being unfamiliar with the "intricacies" of criminal law, you ought to at least know the difference between a defence and a plea in mitigation.

Also, you have referred to the incident in this thread as a fight on a number of occasions. A fight has to have more than one aggressor. On the basis of what has been said in this thread, there was only one. It is basically an unprovoked assault. In my view, a decent prosecutor could turn the involvement of alcohol (if any) into an aggravating factor.

Anyway, each to their own in terms of how they wish to see justice done but it doesn't seem to me to be a case where there is any real prospect of reconciliation.

chops018 · 03-01-2014 5:35pm

hullaballoo wrote: »

I'm just going to point out to you that you said the following earlier in this thread:

I think that if you are going to accuse someone else of being unfamiliar with the "intricacies" of criminal law, you ought to at least know the difference between a defence and a plea in mitigation.

Also, you have referred to the incident in this thread as a fight on a number of occasions. A fight has to have more than one aggressor. On the basis of what has been said in this thread, there was only one. It is basically an unprovoked assault. In my view, a decent prosecutor could turn the involvement of alcohol (if any) into an aggravating factor.

Anyway, each to their own in terms of how they wish to see justice done but it doesn't seem to me to be a case where there is any real prospect of reconciliation.

I'm very familiar between the difference of a defence and a plea in mitigation. I was unfamiliar with the precedence on the defence of provocation which is why I said I would stand corrected regarding whether it could or couldn't be used in a plea for mitigation or whether it was purely a defence for a murder charge to be brought down to manslaughter.

It has been 2 years since my Criminal FE1 and 3 years since my Masters in Criminal Justice, even longer since Criminal Law in my undergrad. And I haven't been working the Criminal side of things for a good while either, so excuse me if I did get a bit hazy. Obviously I need a little brush up. But the other post from the poster which I said not to be commenting on such (which I apologize now after reading back over it, I shouldn't of said it), but it did look from his posts that he didn't have a full understanding of such an area - as evidently I need some brushing up on myself - but I have seen things like this coming before a Judge and the defendant getting off, which is what I was trying to discuss later in the thread.

Earlier though I did suggest reconciliation, but, the OP doesn't seem to think that will work. The only reason I suggested that was because there was a prior relationship and all parties were personally known. So I thought it might have been the best avenue before going down the justice system.

chops018 · 03-01-2014 5:39pm

234 wrote: »

Indeed.

DC not the best place to see the law, as such, in action.

Defences go to liability. They are separate from considerations when sentencing. Though obviously there can be factual overlap.

Yeah tbh I probably took this discussion way to in depth in the law, and then got a bit confused myself as I have been pulling all this from the top of my head and haven't read a criminal law book for a while.

But in actual fact, it is more than likely a simple case for the DC that they will have seen a 1,000 times or more.. and will probably depend on the Judge on the day for the outcome etc etc. No one can say for sure. By the looks of it, he more than likely would be convicted, but it is possible he may get out of it.

doublej · 04-01-2014 8:55am

There have been a number of posters advising OP to secure the CCTV footage.
If there is a criminal investigation, can a civilian seek evidence such as a tape or disc to provide to the Guards and does this affect the chain of evidence.
Secondly, there may be a variety of reasons why an establishment may refuse to hand over their property( disc/tape) to a civilian or even confirm its existence. You do not have a right to view a tape if that recording was made on property that is private, nor do you have a right to secure the tape into your possession.
You, or your solicitor can request that any tape or recording made at the premises on x date or at y hour, x date be preserved but the owner of the tape is not obliged to accede.
If the Guards seek the tape, he can be obliged to allow it to be viewed on the premises but can choose to request a replacement tape or disc in lieu of the recorded product.
Any suggestion that a business owner has an obligation to provide his time and his property to assist the pursuit of a civil claim is in error.

04-01-2014 10:45am

doublej wrote: »

There have been a number of posters advising OP to secure the CCTV footage.
If there is a criminal investigation, can a civilian seek evidence such as a tape or disc to provide to the Guards and does this affect the chain of evidence.
Secondly, there may be a variety of reasons why an establishment may refuse to hand over their property( disc/tape) to a civilian or even confirm its existence. You do not have a right to view a tape if that recording was made on property that is private, nor do you have a right to secure the tape into your possession.
You, or your solicitor can request that any tape or recording made at the premises on x date or at y hour, x date be preserved but the owner of the tape is not obliged to accede.
If the Guards seek the tape, he can be obliged to allow it to be viewed on the premises but can choose to request a replacement tape or disc in lieu of the recorded product.
Any suggestion that a business owner has an obligation to provide his time and his property to assist the pursuit of a civil claim is in error.

This is all so wrong. You could just make a request under the Data Protection Acts.

doublej · 04-01-2014 12:00pm

CCTV not covered by DPA, only computer, manual and paper files are.

Pro Hoc Vice · 04-01-2014 12:08pm

doublej wrote: »

CCTV not covered by DPA, only computer, manual and paper files are.

The Data Commissioner seems to think otherwise,

6.3 What if I am asked for a copy of CCTV footage?

Any person whose image has been recorded has a right to be given a copy of the information recorded. To exercise that right, a person must make an application in writing. A data controller may charge up to €6.35 for responding to such a request and must respond within 40 days. This will, of course, only apply if the recording has been retained and is available at the time the request is made.

http://www.dataprotection.ie/docs/CCTV/1242.htm

04-01-2014 12:10pm

doublej wrote: »

CCTV not covered by DPA, only computer, manual and paper files are.

Again, this is just completely wrong. What are you basing this on?

The DPAs do not restrict the definition of personal data to the categories you have listed. For God's sake, even the Data Protection Commissioner's website covers how to make an access request for CCTV under the DPAs.

http://www.dataprotection.ie/docs/CCTV/1242.htm

Have you done any research on this at all?

doublej · 04-01-2014 12:22pm

My most humble apologies, I am in error and appreciate the efforts of other posters to keep the advice given to OP correct.
My original posting and my subsequent posting was based upon previous personal experience which was obviously pre DPA.
Thanks to all for correction

Assault

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