The Supreme Court of Ireland handed down judgment in the case of Higgins v Director of Public Prosecutions [2010] IESC 46 on the 27th July 2010. The case concerned the question of whether restraint of prosecution was available to the appellant on the ground that a prosecution brought on a second charge would be an abuse of process.

The appellant had been involved in the perpetration of an assault. Voluntarily attending a garda station, the appellant was charged with an offence under s 3 of the Non-Fatal Offences Against the Person Act 1997 (the Act). Prosecution on a s 3 charge was directed by the Director of Public Prosecutions who consented to trial and for the appellant to be sent forward on signed pleas for sentencing. In a communication with the Assistant State Solicitor the Director set out that prosecution under s 4 of the Act would not be directed. Pleas on the s 3 charge were signed under procedures under s 13(b) of the Criminal Procedure Act 1967 on the 6th August 2008. On the 21st August the direction for a prosecution on s 4 was made.

Before the High Court the appellant unsuccessfully argued that the effect of the plea under s 13(b) was to invoke the doctrine of autrefois convict. Rejecting this argument, the court relied on the Privy Council decision of Richards v The Queen [1993] AC 217, in which it was determined that a person whose guilty plea had been accepted but who had not been sentenced could not invoke the autrefois convict rule.

Dispensing with this argument before the Supreme Court, the appellant instead argued that to proceed with prosecution on the s 4 charge, despite the failure of the Director to communicate a reservation of his position, would be an abuse of process. In an affidavit sworn by the Assistant State Solicitor it was declared that rather than prosecuting s 4 in lieu of the s 3 charge, the two prosecutions would proceed together in line with the process outlined in Director of Public Prosecutions v Finnamore [2009] 1 IR 153.

Acknowledging that the action of the prosecution in dealing with the case was not above reproach, the court also noted that the interests of the accused must be included in any consideration of a humane and efficient criminal justice system.

Finding however that the action of the prosecution did not amount to an abuse of process, a trial on s 4 would not violate fair trial provisions of art 38 of the Irish Constitution. Considering the case of Eviston v Director of Public Prosecutions [2002] 3 IR 260, the leading case which demonstrates the circumstances in which a trial would be considered an abuse of process, the court determined that the facts of the case fell short of this benchmark.

Dismissing the appeal, the court also noted that the appellant’s solicitor had not sworn an affidavit declaring it to be believed that the plea signing was an end to possibility of further prosecution. The court found that the events took place in a reasonably short period of time, and only general clumsiness and lack of communication by the prosecution did not render a trial on the s 4 charge an abuse of process.