One punch attack...civil action as well as criminal?

Dancost

Hypothetical story here....

A lad is standing outside a well known pub on a main street in Galway a few months back, waiting for his friend to come outside, when a person he never met, never spoke to or never even made eye contact with, assaults him. It is one of those all too fashionable 'one punch attacks'. The fictional assaulter ran away after splitting the lad open.

He went to A&E, was glued, but the scar is deep and well over and inch and a half long. A number of days off work due to migraines etc etc. The Galway guards are great and identify him relatively quickly and arrest him for a Section 3 'Assault causing harm' which carries a possible jail sentence. The case is proceeding as the fictional Clare man assaultee feels the fictional Galway man has no right to assault someone in such a cowardly way, especially when there is a significant height a weight differential.

Also the assaulter's family is of relative means, and finishing University close to where the fictional incident happened.

So question is, can the unfortunate Clare lad, take a civil suit against the gigantic assaulter as well as letting the Guards proceed with their criminal case?! Or even after the guards have proceeded with the fictional case?!

Hopefully happily ever after.....

Peregrinus

Yes, he can.

He would be advised to wait until the fictional Galway lad is convicted, since his case will be that much stronger.

He should be aware that if he gets an award of damages against fictional Galway lad, that's a judgment against fictional Galway lad, not against fictional Galway lad's wider family, however large their means are. If fictional Galway lad is a student, he may not have much in the way of income or assets against which a judgment could be enforced. His family may be embarrassed into honouring the judgment, or at least into making some financial contribution towards settling the matter, but they have no legal obligation. So there is the possiblity that fictional Clare lad could end up with the satisfaction of a large judgment, plus a large legal bill for his own lawyers, but no actual money.

Little CuChulainn

It would not be unusual in a case like this for the accused to offer compensation as part of mitigation in order to avoid prison.

endacl

Little CuChulainn wrote: »

It would not be unusual in a case like this for the accused to offer compensation as part of mitigation in order to avoid prison.

Hypothetically?

Dancost

On behalf of a totally imaginary person,thanks.
Opinions greatly appreciated.

Dancost

One quick question again. The fictional assaulter has no criminal record and the guards are saying that jail time of about three months is a genuine possibility. Possibly suspended. Regardless of how much the Clare character struggled with the incident, does a conviction like this pretty much ruin the college students future?! Would it generally be considered better to settle out of court if the option arises. Hypothetically speaking, of course.

punisher5112

Had this happen to me a few years back in Sligo town and same was actually outside along the river and chatting with my friend and next thing is I get a box in back of the head.

By time I had turned his friends had jumped on him and 2dragged him off up the road while the 3rd guy was apologising for what he done as they knew we hadn't crossed paths.

5 min later same thing taken from behind and get my eye bust open blood everywhere.

Flagged cops down they took me in car and found the guy cuffed and into station and then when back there the guy went for me again.
Very weird situation as didn't know the guy or never found out what the deal was.

Cops dropped me to hospital which was very nice of them and had the joys of hanging around for nearly 5 hours.

234

Dancost wrote: »

Would it generally be considered better to settle out of court if the option arises. Hypothetically speaking, of course.

I'm not sure if you think that you can settle a criminal case, you can't. The state is in control, you are just providing evidence. In relation to a civil claim, then you will have a solicitor who can advise, but yes, settlement is usually better in the long run. I would expect an early offer if there was a criminal conviction in place for the same incident. Worth accepting it if the price was right.

Peregrinus

Dancost wrote: »

One quick question again. The fictional assaulter has no criminal record and the guards are saying that jail time of about three months is a genuine possibility. Possibly suspended. Regardless of how much the Clare character struggled with the incident, does a conviction like this pretty much ruin the college students future?! Would it generally be considered better to settle out of court if the option arises. Hypothetically speaking, of course.

As 234 says, the victim can't settle the criminal case. The victim is witness in that case, not a party. If the defendant wants to plea-bargain or whatever, he needs to talk to the prosecution, not the witnesses.

What the defendant can do, though, is decide to pursue a strategy of pleading guilty, expressing remorse, offering any mitigating circumstances that he thinks might weigh with the court, and hoping to avoid a prison sentence. Very often a part of this strategy is that he will approach the victim (either through the guards, or through lawyers) with an offer of compensation. Even if that offer is not taken up, he will make the point at the sentencing stage that he made an offer, and that it stands. And part of the sentence may well be that he must pay the victim a stated amount of compensation.

The victim should talk to his lawyer about this, and soon, but my impression is that amounts offered or ordered by way of compensation in a criminal trial are generally much less than the kinds of amount you would exepct to be awarded by way of damages in a civil action for personal injuries. And that might colour the victims attitude towards accepting the offer of compensation. At the very least, the victim might want to have his civil proceedings commenced, if not pursued very far, before any offer of compensation in the context of criminal proceedings is made. The fact that the victim has launched proceedings for damages sends a signal to the offender about the scale of compensation he will need to offer if he wants his offer to be entertained.

Dancost

Thanks for that people! Good advice and much appreciated. The poor Clare lad has a pretty bad scar now. Will tell the women it's from playin' hurling.....

siochain

Peregrinus wrote: »

As 234 says, the victim can't settle the criminal case. The victim is witness in that case, not a party. If the defendant wants to plea-bargain or whatever, he needs to talk to the prosecution, not the witnesses.

.

Just to confirm, if a summons is issued but cased hasn't been heard yet can the victim drop the case?

234

siochain wrote: »

Just to confirm, if a summons is issued but cased hasn't been heard yet can the victim drop the case?

No, it's entirely in the state's hands. However, if they say that they won't give evidence then the prosecutor effectively has no case.

TeaBagMania

Even though the fictional Galway lad is a poor student and has no income today can’t his future wages be garnished until the settlement is paid?

234

TeaBagMania wrote: »

Even though the fictional Galway lad is a poor student and has no income today can’t his future wages be garnished until the settlement is paid?

Even if the court could make such an order, and I'm doubtful that it can, I don't think it ever would unless it had clear evidence that the defendant was starting an identified job in the near future. The order would be without any value and completely pointless until you had the information that could identify the employer. I don't think a court would be comfortable making such an order. And in any event, I'm not up to date on the necessary formalities of such orders but I'd imagine that you would need to specify an employer rather than just send copies of the order to any person who currently employs the defendant.

Dancost

The Galway guards told the fictional Clare lad that at any stage before it gets to court, if he is approached by the father for example and offered say, €7,000 to drop all charges and not go to court then there is nothing the Galway guards can do. They told the Clare lad that these 'out of court settlements' nearly always happen, once there is means involved.

Quite the moral dilemma. Does the broke ex student innocent Clare lad who was violently assaulted in a one punch attach and is going to be left with a hefty scar over his eye for most of his life, proceed and ensure a conviction is brough on the Galway assaulter. Or, if a large offer of compensation comes through, does he take the money which would undoubtedly be significantly more than even what a judge would order in order to avoid conviction....

It's a story or innocence, violence, justice and morality.....

234

Dancost wrote: »

It's a story or innocence, violence, justice and morality.....

Coming soon to a theatre near you.!

Peregrinus

siochain wrote: »

Just to confirm, if a summons is issued but cased hasn't been heard yet can the victim drop the case?

No, but he can influence the guards to drop the case. Without the victim's evidence, the prosecution cannot succeed. In theory, the prosecution can compel the victim to give evidence but, in practice, very few prosecutors want to run a prosecution which depends on a reluctant chief witness, so if the victim is unco-operative the state will nearly always drop the case.

So, yes, the usual form is that the defendant approaches the victim and makes an offer of compensation to settle all civil claims, and in return for the victim indicating to the guards that he does not wish a criminal case to succeed.

The alternative facing the victim is to let the prosecution proceed, run a civil case himself and secure an award of damages. But he'll incur costs to do so, and he might have difficulty enforcing his award. So an agreed settlement does have attractions.

Peregrinus

TeaBagMania wrote: »

Even though the fictional Galway lad is a poor student and has no income today can’t his future wages be garnished until the settlement is paid?

If you get a judgment against somebody for (say) ten thousand euros, you're in exactly the same position as anyone else who is owed ten thousand euros, and you have the same enforcement mechanisms. If the judgment debtor (the guy who owes you ten thousand euros) owns a home or any land, you can take court proceedings to register a judgment mortage and, if necessary, seek the sale of the land. If he has personal asets you can send the sherriff around. If he is earning you can go to court and seek and attachment of earnings order. If he has none of these things, you can commence bankruptcy proceedings. This will inconvenience him (to put it mildly) but it won't necessarily generate much money for you.

You have (I think) six years to do any or all of these things, so if the guy is a penniless but promising student in his final year, you might simply wait until he leaves college and gets a job, and then move to enforce your judgment. On the other hand, he might leave college and then leave the country. While you can enforce judgments cross-border, what is involved depends on where he has moved to (and on you knowing where he has moved to) and it's all a bit of a production.

The_Minister

I would just, speaking as a bored practitioner, randomly remind the bored Clare lad that there is a statute of limitations on civil actions, and while that might not be up for some time, given that criminal matters can sometimes run on, it might be worth keeping an eye on.

It should be more than long enough though.

EDIT: Nevermind, being too much negligence PI, there's aaaages left

hullaballoo

That's actually probably a topic worthy of its own thread, whether the limitation period for assault is 2 or 6 years. I've not seen a solid answer to that since the limitation for PI changed.

the world wonders

Peregrinus wrote: »

So, yes, the usual form is that the defendant approaches the victim and makes an offer of compensation to settle all civil claims, and in return for the victim indicating to the guards that he does not wish a criminal case to succeed.

What's to stop the victim from taking the 7 grand and then testifying anyway? Is an agreement like this enforceable on the victim,and if so, how? Could the arrangement even amount to "perverting the course of justice"?

conorh91

the world wonders wrote: »

What's to stop the victim from taking the 7 grand and then testifying anyway?

You mean in the prosecution?

Nothing.

In theory, the Victim has no control over the prosecution. Obviously if he were unwilling, his hostility could possibly bind the DPP from prosecuting. For serious crimes, a court has ways of mitigating this problem.

Fred Swanson

This post has been deleted.

The_Minister

hullaballoo wrote: »

That's actually probably a topic worthy of its own thread, whether the limitation period for assault is 2 or 6 years. I've not seen a solid answer to that since the limitation for PI changed.

Did Geoghegan not do a judgement saying 6?

GerardKeating

234 wrote: »

No, it's entirely in the state's hands. However, if they say that they won't give evidence then the prosecutor effectively has no case.

The prosecutor can still summons the victim and force them to give evidence..

Fred Swanson

This post has been deleted.

234

GerardKeating wrote: »

The prosecutor can still summons the victim and force them to give evidence..

Yeah, chances of anybody wanting to examine a hostile complainant are slim.

lawfilly

There is also the option for the OP to apply to the Criminal injuries Compensation Tribunal. They have a very tight limitation period of three months which can be extended in exceptional circumstances.

the world wonders

conorh91 wrote: »

You mean in the prosecution?

Nothing.

In theory, the Victim has no control over the prosecution. Obviously if he were unwilling, his hostility could possibly bind the DPP from prosecuting. For serious crimes, a court has ways of mitigating this problem.

No, I mean what if the victim says to the accused "thanks very much for the €7k present, I'm still going to testify against you". Does the accused have any way of enforcing the agreement? It's hard to imagine a judge enforcing a contract to frustrate the ends of justice...

Fred Swanson

This post has been deleted.

conorh91

the world wonders wrote: »

No, I mean what if the victim says to the accused "thanks very much for the €7k present, I'm still going to testify against you". Does the accused have any way of enforcing the agreement?

In a criminal prosecution, no. An accused person is not entitled to bribe potential witnesses for their non-cooperation with a criminal investigation or prosecution, which includes the victim.

If the accused person paid €7,000 to the Victim in order to avoid a civil suit, that's perfectly fine. But the accused person could still be prosecuted by the DPP and victims could be required to give evidence. It's a totally different process.

Chemical Byrne

Whats more how would the transaction for the €7k be executed. Are they typically cash payments or cheques or witnesses at the handover etc?

If cash what is to stop the victim continuing to press charges and when the accused brings up "what about the 7k?" the victim could just give the Seanie Gallagher response - ie, "I have no recollection of receiving €7k" ?

Of course he may present withdrawal slips etc, but who's to say he didn't blow it on prostitutes n coke or piss it up the wall?

Peregrinus

The payment would normally be made through lawyers. Or, at the very least, by cheque. There'll be a paper trail.