The High Court has refused Warren Higgins’s application to stop a prosecution under section 4 of the Non-Fatal Offences Against the Person Act 1997, ruling that the Director of Public Prosecutions was entitled to bring the charge despite Higgins’s earlier signed guilty plea to a section 3 offence arising from the same incident.
The judgment, delivered by Mr Justice O’Neill on 1 May 2009, concerns an assault on Daniel O’Shea in Cork on 23 June 2008. The judgment says O’Shea was attacked with a bottle on wasteground known as Patch Field, in the Onslow Gardens area of Fairhill, and suffered a serious injury that caused the loss of sight in his left eye.
Higgins was initially charged with assault causing harm under section 3. On 6 August 2008, he signed a guilty plea in the District Court and was sent to the Circuit Court for sentencing. The DPP had first consented to that course while medical evidence was awaited. After receiving medical reports describing serious harm and likely permanent loss of sight, the DPP directed on 21 August that a section 4 charge of intentionally or recklessly causing serious harm be brought. Higgins was charged on 24 September.
Higgins sought judicial review, arguing that the DPP was prevented from prosecuting him on the section 4 charge after consenting to his being sent forward on the section 3 plea. He also argued that the plea meant he could rely on the special plea of autrefois convict, which protects against a further prosecution after a prior conviction.
The court rejected both arguments. It found no statutory basis for treating the DPP’s consent to the section 3 plea as a bar to a section 4 prosecution, and no representation by the DPP that the more serious charge would not be brought. The court also said that the signed plea could still be withdrawn and that the DPP could discontinue a charge before indictment.
On autrefois convict, the judge held that a final determination of the first proceeding was required, including the passing of sentence. Higgins had not yet been sentenced on the section 3 plea when the section 4 prosecution began. The judgment treated the related proceedings as one criminal process and concluded that the special plea was unavailable.
The court accepted the DPP’s stated intention to have the charges arising from the incident dealt with in a single unitary trial. It noted that the Circuit Court would decide whether to sentence Higgins on the section 3 plea before or after the section 4 trial. The High Court did not decide the section 4 charge or determine guilt; it refused the judicial review relief sought.