The High Court has rejected a constitutional challenge to the offence of threatening another person with a syringe, holding that the law can be interpreted as requiring proof of subjective recklessness.
The applicant argued that section 6(1)(b) of the Non-Fatal Offences Against the Person Act 1997 could impose criminal liability without a guilty mind. The phrase “where there is a likelihood” of causing a person to believe they may become infected could, he said, establish an objective test that did not require proof that the accused appreciated the risk.
The State respondents argued that the provision should be read as requiring a mental element, and nominated recklessness. The court found that the statutory wording could reasonably bear that interpretation. It said the likelihood could be assessed subjectively by the accused, who must have recognised a significant risk that the threatened conduct would cause fear of infection and proceeded regardless.
The judge concluded that this reading was consistent with the Constitution, the presumption that statutes are constitutional, and Irish authorities on mens rea in serious criminal offences. The applicant’s challenge was therefore unsuccessful. The judgment did not determine whether the applicant committed the alleged offence.
The case arose after the applicant was charged under section 6(1)(b). The judgment records an allegation that he produced a syringe at Waterford Hospital and told a security guard he would stick it into him. A syringe was found on him when he was arrested. Two security guards provided statements describing the incident and saying they did not know what the syringe contained, although they described liquid squirting out. The applicant made no admissions at interview. These matters were set out as background to the legal challenge, not findings on guilt.
The judge distinguished the Court of Appeal’s earlier decision in DPP v O’Brien, which addressed whether the victim had to actually perceive a risk of infection, rather than whether the accused had to subjectively anticipate that risk. The court said O’Brien did not decide the mens rea question.
In a separate ruling on costs on 14 November 2024, the court made no order as to costs. It said the issue was of general importance and that imposing costs on the applicant could deter similar challenges, while also noting that his case was not strong. The applicant was not awarded any portion of his costs and was not required to contribute to the respondents’ costs.