Assault Not Causing Harm –
Assault Not Causing Harm
Mairead and Ashleigh were next door neighbours. Both were young women pursuing third-level education while in full-time employment. They were both Irish nationals, but were of different ethnicities: Mairead was white; Ashleigh was from a minority ethnic background.
Ashleigh and her family reported suffering from racial abuse throughout their many years in the neighbourhood. While Ashleigh and Mairead had been amicable towards each other as pre-teens, tensions rose between their parents over neighbourly disputes and racial abuse. Subsequently, the girls’ relationship deteriorated until they ignored one another.
On the day of the offence, both were in their own homes alone. After an argument over noise, Mairead came into Ashleigh’s home and there was an altercation. Ashleigh reported that Mairead had pulled out her hair and banged her head on the ground repeatedly. When Mairead returned home, she called the Gardaí to say that she had been assaulted. Ashleigh, believing she had a concussion, went to an Accident and Emergency Unit in a local hospital.
The Gardaí took statements, documented Ashleigh’s injuries, and ended up offering both women an Adult Caution, which Mairead accepted. Ashleigh refused the caution, believing she had done nothing wrong, that she had been assaulted in her own home, and that she was also the only one of the two women to have sustained a visible injury. Because Mairead accepted the caution and Ashleigh did not, the Gardaí charged Ashleigh with a Section 2 Assault (an assault not causing harm) and named Mairead as the victim.
The Office of the Director of Public Prosecutions confirmed the charge and the matter went to the District Court. Ashleigh pleaded guilty and, at the suggestion of the defence solicitor, the sitting Judge referred the matter to an NGO that delivers restorative justice.
The NGO’s Caseworker met with Ashleigh to explain what restorative justice was and to hear her story. Ashleigh took responsibility for what she referred to as ‘her part’ in the incident, acknowledging that she had not opened the door to Mairead looking to reconcile calmly with her, but suspecting things would escalate. She said that she was disappointed that the matter had been progressed by the criminal justice system and concerned about the consequences of this for her future, but that she was not bitter towards Mairead.
The Caseworker then contacted Mairead. She initially expressed suspicion of the restorative process, agreeing only to speak on the phone about her own victimisation and the contents of her victim impact statement. Mairead did not want to discuss the assault, but stated that she was more affected by the deterioration of the friendship than by the incident itself. The Caseworker and Mairead built trust, and Mairead eventually acknowledged that ‘there were two of us in [the assault].’ Mairead then agreed to meet the Caseworker in person.
At this meeting, the Caseworker asked Mairead a series of non-judgemental, impartial and open questions relating to ‘what happened’ and ‘who was affected.’ Mairead, who was the named victim in the District Court case for Ashleigh’s assault charge, eventually disclosed that she had initiated the fight and assaulted Ashleigh. She also detailed a long history of her own mental health issues, and gave insight as to the wider issues between the families.
Mairead said that, while she would like to reconcile with Ashleigh as the two continued to live next door to one another, she was hesitant to meet her in a victim-offender mediation. While the Caseworker told her that the process was confidential, Mairead was afraid that she would get into trouble should the Judge or Gardaí realise her full role in the incident.
Meanwhile, not knowing if the case would progress to victim-offender mediation, Ashleigh met with the reparation panel, including the Caseworker, a volunteer chairperson, a Garda and a Probation Officer. The reparation panel aims to explore the story of what happened, encourage an awareness of who was affected and how, and agree reparative actions. This conversation is confidential, aside from an agreement that is presented to the Court.
The reparation panel process was especially beneficial in a case like this, where it could take a wider view of the case before them. The reparation panel members delicately encouraged and praised Ashleigh for her ability to identify different choices she could have made on the day of the incident, while also validating her own experience of the racial abuse and physical violence she suffered, without undermining the Court’s ruling.
The Garda panel member encouraged her to request another opportunity to claim the Adult Caution from the Court and the arresting Garda. Together, Ashleigh and the panel members agreed that the Caseworker would explore if Mairead was willing to meet Ashleigh through a victim-offender mediation. If not, Ashleigh would write Mairead a letter expressing her remorse and her desire for peace, and that she would write a reflective piece for the Court outlining her experience of the offence and what she had learned from the panel process.
With Ashleigh’s permission, the Caseworker told Mairead that Ashleigh wished to meet and present her with a letter. She was also informed of the possibility of Ashleigh claiming the caution. Mairead said that she was glad Ashleigh might claim the caution as she didn’t want Ashleigh to get a conviction, and that she would like to meet. She gave permission for this to be relayed to the Court, which adjourned matters to allow for further preparation.
It was arranged that the Caseworker would have another preparatory meeting with Mairead to explore what she wanted to say to Ashleigh, and hear some of the items Ashleigh wished to ask her, including the issues between their families and their own relationship, and why Mairead called the Gardaí that day. Shortly thereafter, however, Mairead unexpectedly ceased all contact with the Caseworker. Further attempts by the Caseworker to re-establish contact with Mairead by telephone and letter elicited no response.
Ashleigh returned to Court having completed the panel process and her written work, and requested the opportunity to claim an Adult caution. The Caseworker stated in a report that Ashleigh had engaged very honestly and maturely, and that Mairead had been informed and gave her support of Ashleigh being granted the caution instead of a conviction. The Court granted the opportunity for this option to be pursued, but as there had been a guilty plea in Court, the Gardaí advised they could not facilitate the request. The Court instead directed Ashleigh to pay a large financial sum to a charitable organisation, after which the matter was ‘struck out’, leaving Ashleigh with no criminal conviction.
While Ashleigh was disappointed that she couldn’t have a facilitated meeting with Mairead, she was relieved not to get a conviction as she would have lost her job. Ashleigh stated that she hoped an opportunity would present itself whereby Mairead would accept her letter of apology. Later, Ashleigh told the Caseworker that, while the two aren’t friends and the racial abuse continues between their wider families, the two women don’t have conflict, and they smile and wave at one another when passing. Ashleigh believes that by engaging separately with the service, they were able to share an acknowledgement that they were both sorry for what had happened. She felt that the reparation panel and Caseworker allowed her to keep some faith in the criminal justice system.
For the Caseworker, this case highlighted the occasionally administrative nature and the wider shortcomings of the judicial system, and how restorative justice can provide a more holistic and inclusive approach to repairing harm. While Ashleigh may have benefited from the process if the Court looked favourably on her participation and any efforts she made to repair the harm that she caused, the case challenged the principle of facilitator neutrality, as it appeared that the more significant harm had been done to the person presenting as the ‘offender’. The case also illustrated the difficulties and potential challenges of pre-sanction restorative interventions, and the principle of confidentiality within the process.