Theoretical Questions regarding alleged assault - all opinions welcome

FutureGuy

Theoretical situation...

Person A is at the cinema watching a movie with her partner. Person B is at the cinema watching the same movie with a related child. Person B is sitting directly in front of person A.

For the first 100 minutes of the film, person B is turning the phone screen on and off checking for messages and general browsing, thus ruining the enjoyment of the film for person A.

After having enough of the situation, person A places her arm on the seat of person B and asks her to turn off her phone. Person B apologizes and starts to watch the film. This does not stop person B checking her phone in an albeit slightly more discreet, but still distracting, manner.

Person A is accompanied by her partner. Person B is accompanied by a related child.

After the performance, person B, in earshot of person A, rings the Gardai stating that she had been "assaulted" and "hit" by person A. Person B also accuses person A of assult and of hitting her in front of multiple cinema-goers.

The Gardai arrived and took notes from both people. The partner of person A saw the incident and saw person A place her hand on the chair, not on the person. It is expected that person A will be asked to make a statement. Person A has never had any issues ever with the Gardai and has a completely clean record.

Questions

1) Should person A be concerned in any way regarding being charged for an assault that did not happen?

2) If person A was looking to be Garda vetted for, let's say, career purposes, would this record affect said vetting process?

3) Should person A be stating their intention to investigate defamation of character?


Thanks all

Ken.

99% of cinema's now have night vision cameras to cut down on piracy.They cover the entire cinema. Person A should ask the cinema for a look(or ask the Gardai to request a copy) before proceeding any further.

Zambia

FutureGuy wrote: »

Questions

1) Should person A be concerned in any way regarding being charged for an assault that did not happen?

2) If person A was looking to be Garda vetted for, let's say, career purposes, would this record affect said vetting process?

3) Should person A be stating their intention to investigate defamation of character?


Thanks all

If I was person A I would not be worried.

FutureGuy

ken wrote: »

99% of cinema's now have night vision cameras to cut down on piracy.They cover the entire cinema. Person A should ask the cinema for a look(or ask the Gardai to request a copy) before proceeding any further.

Let's say that, theoretically, that A has already asked this question and cinema have stated that they do not employ recording devices during the screening.

Zambia

The onus is on the prosecution to prove it did occur. Not on person A to prove their innocence.

Put yourself in the Gardai's place. How on earth are you going to prove an "assault" that never happened?

brian_t

FutureGuy wrote: »

Theoretical situation...

Person B also accuses person A of assult and of hitting her in front of multiple cinema-goers.

What evidence are all these multiple witnesses giving - presumably none.

FutureGuy

Zambia wrote: »

The onus is on the prosecution to prove it did occur. Not on person A to prove their innocence.

Put yourself in the Gardai's place. How on earth are you going to prove an "assault" that never happened?

Having said that, can person B still bring person A to court?

Zambia

FutureGuy wrote: »

Having said that, can person B still bring person A to court?

They can try and sue for damages but the case is terrible from the example. Civil court is not criminal. Gardai would not be involved.

A good question to ask is if given your example any lawyer would take this case for person B on a no win no fee basis?

FutureGuy

Zambia wrote: »

They can try and sue for damages but the case is terrible from the example. Civil court is not criminal. Gardai would not be involved.

A good question to ask is if given your example any lawyer would take this case for person B on a no win no fee basis?

By attempting to sue for damages, regardless of the ridiculous claim, this would force person A to spend money on legal representation correct?

Zambia

FutureGuy wrote: »

By attempting to sue for damages, regardless of the ridiculous claim, this would force person A to spend money on legal representation correct?

It would be wise to.

However in the case described I am surprised the garda didn't tell her to cop on.

Plus to sue for damages how did b gets a s name?

FutureGuy

Theoretically, B does not have A's name but Gardai have both names.

Pat Mustard

FutureGuy wrote: »

Questions

1) Should person A be concerned in any way regarding being charged for an assault that did not happen?

2) If person A was looking to be Garda vetted for, let's say, career purposes, would this record affect said vetting process?

3) Should person A be stating their intention to investigate defamation of character?

1. Absolutely. Person A should be concerned. Not distressed, but concerned, certainly. Somebody is accusing them of assault. If somebody did that to me, I'd see my solicitor. I certainly wouldn't make a statement without it being drafted by my solicitor beforehand.

2. Can never remember that. Think it's on garda.ie.

3. Maybe not. Person B may have no money and might cost money to sue; money which may have no chance of being recovered, depending on the circumstances of Person B. People who have something to lose are are less likely to be so careless as to expose themselves to potential legal action.

However, a complaint concerning malicious prosecution could be considered, depending on all of the circumstances.

FutureGuy

The Mustard wrote: »

1. Absolutely. Person A should be concerned. Not distressed, but concerned, certainly. Somebody is accusing them of assault. If somebody did that to me, I'd see my solicitor. I certainly wouldn't make a statement without it being drafted by my solicitor beforehand.

2. Can never remember that. Think it's on garda.ie.

3. Maybe not. Person B may have no money and might cost money to sue; money which may have no chance of being recovered, depending on the circumstances of Person B. People who have something to lose are are less likely to be so careless as to expose themselves to potential legal action.

However, a complaint concerning malicious prosecution could be considered, depending on all of the circumstances.

So basically if the Gardai ask to come in to make a statement, person A should get said statement drafted correct?

Pro Hoc Vice

Zambia wrote: »

They can try and sue for damages but the case is terrible from the example. Civil court is not criminal. Gardai would not be involved.

A good question to ask is if given your example any lawyer would take this case for person B on a no win no fee basis?

A civilian can bring a private prosecution in a criminal matter.

Pro Hoc Vice

FutureGuy wrote: »

So basically if the Gardai ask to come in to make a statement, person B should get said statement drafted correct?

If AGS ask any one to make a statement and they are an accused that person has a number of options, which every one should be decided after advice.

1. Go to station and make a statement to Garda,
2. Go to solicitor and have solicitor draft statement.
3. Tell AGS thanks but no thanks.

If a person is arrested and asked questions under caution they can either answer or refuse to answer. AGS are now allowing legal advisor to sit in on interview so that should be used.

FutureGuy

Pro Hoc Vice wrote: »

If AGS ask any one to make a statement and they are an accused that person has a number of options, which every one should be decided after advice.

1. Go to station and make a statement to Garda,
2. Go to solicitor and have solicitor draft statement.
3. Tell AGS thanks but no thanks.

If a person is arrested and asked questions under caution they can either answer or refuse to answer. AGS are now allowing legal advisor to sit in on interview so that should be used.

So basically A should sit tight and wait, then assess options.

Pro Hoc Vice

FutureGuy wrote: »

So basically A should sit tight and wait, then assess options.

No A should seek legal advice from someone who actually knows what they are doing. Assault does not require actual contact.


"Assault.

2.—(1) A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly—

(a) directly or indirectly applies force to or causes an impact on the body of another, or

(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact,"

FutureGuy

Pro Hoc Vice wrote: »

No A should seek legal advice from someone who actually knows what they are doing. Assault does not require actual contact.


"Assault.

2.—(1) A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly—

(a) directly or indirectly applies force to or causes an impact on the body of another, or

(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact,"

Well, theoretically, A did neither. A asked the person to turn off her phone without touching B.

Even if A did it, B has no proof. However, if you still think it is prudent to seek legal representation, A will certainly consider it tomorrow.

Pro Hoc Vice

FutureGuy wrote: »

Well, theoretically, A did neither. A asked the person to turn off her phone without touching B.

Even if A did it, B has no proof. However, if you still think it is prudent to seek legal representation, A will certainly consider it tomorrow.

Can I ask you what you think a court will accept as proof. I'll answer for you many minor and major convictions have no more than the evidence given by the complainant in his or her verbal evidence to the court.

While A's version of events may very well be supported by independent persons, no one other than B and AGS know exactly what B has said or will say.

As I said A does not have to touch B, what matters is does B believe A was about to touch B. A can not have any idea what A reasonably believed.

Pat Mustard

FutureGuy wrote: »

So basically if the Gardai ask to come in to make a statement, person A should get said statement drafted correct?

That's not exactly what I meant.

Depending on all of the circumstances, it is possible that it may be more appropriate to make no statement. However, if it is possible that the matter may be taken further, and if a statement would be helpful rather than detrimental, then the safer course of action would be that a solicitor should draft it.

Greendiamond

It's the Garda who decide to take or not to take a case. If , after investigation, they feel there is a case to answer then they send the file to the DPP who will decide if they feel they can win the case. If so the case will go forward to the appropriate court and if not there will be no court case.
In theory B coud take civil case but without a criminal conviction or medical records of assault it woud be difficult to prove.

What are they saying is the nature of the assault?

Has A said anything to the gaurds? Even informally without being cautioned ?

It sounds like there is very little evidence to support a case however I woud ere on the side of caution and take legal advice. I woud not deal with the gaurds without consulting a good criminal solicitor.

Pat Mustard

FutureGuy wrote: »

Even if A did it, B has no proof. However, if you still think it is prudent to seek legal representation, A will certainly consider it tomorrow.

I thought that ken made an excellent point about CCTV. CCTV may not be kept for long, and should be taken up while it is still available. A solicitor should be able to do this, whilst a private individual might not be afforded the same courtesy.

FutureGuy

Theoretically, A was questioned by the guards at the time of the incident. A explained what happened and the guards said that, while it is unlikely it will go further, they may call her to the station.

The nature of the assault is that she was hit on the shoulder. B admitted that she was on the phone while the film was on.

Greendiamond wrote: »

It's the Garda who decide to take or not to take a case. If , after investigation, they feel there is a case to answer then they send the file to the DPP who will decide if they feel they can win the case. If so the case will go forward to the appropriate court and if not there will be no court case.
In theory B coud take civil case but without a criminal conviction or medical records of assault it woud be difficult to prove.

What are they saying is the nature of the assault?

Has A said anything to the gaurds? Even informally without being cautioned ?

It sounds like there is very little evidence to support a case however I woud ere on the side of caution and take legal advice. I woud not deal with the gaurds without consulting a good criminal solicitor.

Pro Hoc Vice

FutureGuy wrote: »

Theoretically, A was questioned by the guards at the time of the incident. A explained what happened and the guards said that, while it is unlikely it will go further, they may call her to the station.

The nature of the assault is that she was hit on the shoulder. B admitted that she was on the phone while the film was on.

If a person was hit on the shoulder that may be an assault.

Subsection 3 comes into effect,

"
(3) No such offence is committed if the force or impact, not being intended or likely to cause injury, is in the circumstances such as is generally acceptable in the ordinary conduct of daily life and the defendant does not know or believe that it is in fact unacceptable to the other person."

FutureGuy

The Mustard wrote: »

I thought that ken made an excellent point about CCTV. CCTV may not be kept for long, and should be taken up while it is still available. A solicitor should be able to do this, whilst a private individual might not be afforded the same courtesy.

Theoretically, A has already spoken to the cinema and they unfortunately do not have footage which would show the whole thing.

So does all this mean I could walk into a cinema, watch a movie, ring the guards afterwards to say I was assaulted by a person of my choosing and then have a chance to successfully take legal action against that person?

FutureGuy

Pro Hoc Vice wrote: »

If a person was hit on the shoulder that may be an assault.

Subsection 3 comes into effect,

"
(3) No such offence is committed if the force or impact, not being intended or likely to cause injury, is in the circumstances such as is generally acceptable in the ordinary conduct of daily life and the defendant does not know or believe that it is in fact unacceptable to the other person."

A did not hit B on the shoulder. A placed her hand on the seat of B and asked her to turn off her phone.

Greendiamond

FutureGuy wrote: »

Theoretically, A was questioned by the guards at the time of the incident. A explained what happened and the guards said that, while it is unlikely it will go further, they may call her to the station.

The nature of the assault is that she was hit on the shoulder. B admitted that she was on the phone while the film was on.

I would say it will come to nothing( although the gaurds have up to 6 months to take a case theoretically, it sounds like they saw it for what it was) I would sit tight and not be too concerned. However I would get the name of a good solicitor to have to hand should A be called to give a statement but from the information given i think it's unlikely anything will happen. I can understand how stressful it could be for A feeling like this is hanging over their head. If this is the case then A could get some legal advice to put the mind at rest.

Pat Mustard

FutureGuy wrote: »

Theoretically, A was questioned by the guards at the time of the incident. A explained what happened and the guards said that, while it is unlikely it will go further, they may call her to the station.

The nature of the assault is that she was hit on the shoulder. B admitted that she was on the phone while the film was on.

Obviously they are doing their job with regard to their investigation, but if the matter is truly unlikely to proceed, one would have to seriously consider the wisdom or benefit of making a statement.

It also occurs that B might be liable in respect of the public order offence of disorderly conduct, if the behaviour with the phone took place after midnight. Unless it was a late show, it would be unlikely to be after midnight, I suppose.

Pat Mustard

FutureGuy wrote: »

So does all this mean I could walk into a cinema, watch a movie, ring the guards afterwards to say I was assaulted by a person of my choosing and then have a chance to successfully take legal action against that person?

Anybody can make a complaint to Gardai. This does not mean that the person who is the subject of the complaint would be convicted, or even prosecuted in the first place.

Anybody can choose to bring a civil action. This does not mean that such a civil action would be successful.

If your question is as to whether innocent people have been convicted or if fraudulent civil actions have succeeded before, the answer is yes. These things have happened. They still happen.