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Supreme Court of Ireland Decisions


You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Grealis v. D.P.P. [2001] IESC 50; [2002] 1 ILRM 241 (31 May 2001)
URL: http://www.bailii.org/ie/cases/IESC/2001/50.html
Cite as: [2001] 3 IR 144, [2002] 1 ILRM 241, [2001] IESC 50

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Grealis v. D.P.P. [2001] IESC 50; [2002] 1 ILRM 241 (31st May, 2001)

THE SUPREME COURT


KEANE C.J.
DENHAM J.
MURPHY J.
MURRAY J.
HARDIMAN J.
257 & 262/99


BETWEEN:

PADRAIC GREALIS

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND ATTORNEY GENERAL


BETWEEN:

EMMETT CORBETT

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

THE ATTORNEY GENERAL

Notice Party


[Judgments by Keane C.J., Denham and Hardiman JJ.; Murphy J. agreed with Hardiman J.; Murray J. agreed with Denham J.]

JUDGMENT delivered the 31st day of May 2001 by Keane C.J.
Introduction


The factual background to these two cases is as follows. In the first (hereafter “Grealis”), three summonses were issued by the District Court against the applicant, the first two dated the 11th September 1997 and the third dated the 12th September 1997. The first recited a complaint that the applicant did
“assault one Margaret Sweeney contrary to common law”
on the 4th May 1997 at Hotel Westport, Westport, Co. Mayo. The second was in identical terms, the name of the person allegedly assaulted in that instance being Francis Sweeney. In the third, the complaint recited was that the applicant
“on the 11th May 1997 at Mulranny, Co. Mayo in the (district court area of Newport) did unlawfully assault one Christopher McGinty, of Dooriel, Ballycroy, Westport, Co. Mayo thereby occasioning him actual bodily harm ... contrary to s. 47 Offences Against the Person Act, 1861.”

In the second case (hereafter “Corbett”), a summons was issued on the 6th August 1997 alleging that the applicant on the 3rd February 1997 at William Street, Cork
“did assault one Brian Cashman, contrary to common law and
s. 47 of the Offences Against the Person Act, 1861 as amended by s. 10 Criminal Justice (Public Order) Act, 1994.”

On the 19th May 1997 the Non-Fatal Offences against the Person Act 1997 (hereafter “the 1997 Act” ) was enacted by the Oireachtas. Section 28(1) provided that:
“The following common law offences are hereby abolished -
(a) assault and battery,
(b) assault occasioning actual bodily harm,
(c) kidnapping,
(d) false imprisonment.”

This provision came into force on the 19th August 1997. In both Grealis and Corbett, accordingly, it was not in force on the dates on which the alleged offences were committed. It was not in force at the date the summons was issued in Corbett, but was in force on the dates when the three summonses in Grealis were issued.

The 1997 Act provided for the creation inter alia of three new statutory offences, i.e. “assault”, “assault causing harm” and “causing serious harm” . There were, however, no transitional provisions in respect of any common law offences of assault and battery or assault occasioning actual bodily harm alleged to have been committed, but not prosecuted to conviction, prior to the coming into force of s. 28(1) of the 1997 Act.

On the 29th October 1997, in the case of The People .v. Joseph Kavanagh , in which the defendant had been charged inter alia with the common law offence of false imprisonment (also abolished by s. 28(1) of the 1997 Act), the Special Criminal Court held that, in the absence of any transitional provisions in the 1997 Act, it could not consider the charges in question. On the 4th November, 1997, the Oireachtas enacted the Interpretation (Amendment) Act, 1997, (hereafter “the 1997 Interpretation Act” ), s. 1 of which contains detailed provisions as to the operation of statutes abolishing common law offences.

The Proceedings
On the 15th June 1998, in Grealis, leave was given to the applicant by the High Court to apply by way of judicial review for an order prohibiting the first-named respondent (hereafter “the DPP” ) from taking any further steps in the prosecution against him on foot of the three summonses. Leave was given in respect of the first two summonses on the ground that at the time when they were issued the common law offences to which they related had been abolished by operation of law. In the case of the third summons, it was given on the ground that the offence of assault occasioning actual bodily harm was a common law offence which had also been abolished at the time the summons was issued.

In the case of Corbett, on the 10th November 1997 the applicant was also given leave by the High Court to apply for judicial review by way of prohibition prohibiting the respondent from taking any further steps in the prosecution on foot of the summons in that case. Leave was given on three grounds, only one of which was pursued in the High Court and again in this court, i.e. that the continuance of the prosecution was not in accordance with law, following the abolition of the common law offence with which the applicant had been charged.

In Grealis, the High Court, by an order of the 18th January 1999, gave the applicant liberty to amend the proceedings so as to seek a declaration that the 1997 Interpretation Act was unconstitutional and Ireland and the Attorney General were by the same order joined in the proceedings. In Corbett the Attorney General was also made a notice party to the proceedings and it would appear that an argument was advanced to the effect that the 1997 Interpretation Act was unconstitutional, although it would seem that there was no order giving leave to the applicant to amend the grounds on which he had originally been given leave.

1. Statements of opposition having been filed by the DPP and the Attorney General in both cases, the hearing of the motion claiming the relevant relief came on first in Grealis and was heard by O’Donovan J. In a reserved judgment, he accepted the submission on behalf of the applicant that, in the absence of any transitional provisions in the 1997 Act, the applicant could not be convicted of the common law offences with which he was charged, they having been abolished by that Act. It was conceded on behalf of the DPP that s. 21 of the Interpretation Act, 1937 (hereafter “the 1937 Act” ) dealing with the effect of the repeal of offences could not be availed of by him, so far as the common law offences were concerned, since it applied only to statutory offences. O’Donovan J. pointed out that this was also in accordance with the views expressed in two earlier High Court decisions, Quinlivan .v. The Governor of Portlaoise Prison and Others (1998) 2 IR 113 and Mullins .v. Harnett (1998) 2 ILRM 304. However, he was also satisfied that the offence with which the applicant was charged in the third summons was a statutory offence and not a common law offence, having regard to the observations of

2. Ó Dálaigh C.J. in The State (at the prosecution of O.) .v. Eveleen O’Brien (1971) IR 42 and that, accordingly, the prosecution could be maintained in respect of that summons by virtue of the provisions of the Interpretation Act 1937.


3. The learned High Court judge then went on to consider the provisions of the 1997 Interpretation Act and concluded that it was invalid having regard to the provisions of the Constitution, since it entrusted to judges of the District Court the determination of its constitutionality contrary to the provisions of Article 34.3.2, allowed for the unequal treatment of citizens contrary to the provisions of Article 40.1 and constituted an interference with judicial processes in being. He accordingly granted the relief sought in respect of the first two summonses.


4. A statement of opposition having also been filed in Corbett, the motion seeking the relevant relief came on for hearing before McGuinness J. The learned trial judge rejected a submission advanced on behalf of the applicant that the DPP was bound in the instant case by a concession said to have been made on his behalf by counsel in The People .v. Kavanagh , i.e. that a prosecution could not be maintained in respect of common law offences abolished by the 1997 Act, adhering to the view she had formed to the same effect in Quinlivan .v. The Governor of Portlaoise Prison and Others . While her judgment does not contain any express finding on the issue, it must, I think, be inferred that she took the same view as O’Donovan J. as to the consequences of the absence of any transitional provisions in the 1997 Act, since she went on to consider the constitutionality of the 1997 Interpretation Act. (It should be pointed out, in this context, that arguments were addressed to the learned High Court judge in this case which do not appear to have been advanced in Quinlivan.) She was, however, satisfied that the 1997 Interpretation Act was not unconstitutional and that the effect of it was to enable the prosecution in the instant case to proceed. She accordingly refused to grant the applicant the relief sought.


In Grealis, an appeal has now been brought to this court on behalf of the DPP and the Attorney General against the judgment and order of O’Donovan J. The applicant has brought a cross appeal in respect of the finding of the learned High Court judge that the alleged offence to which the third summons relates was a statutory offence and that, accordingly, the prosecution could proceed by virtue of the provisions of the Interpretation Act 1937. In Corbett, the applicant has appealed from the judgment and order of McGuinness J. refusing the relief sought.

In Grealis, the claim on behalf of the applicant that the provisions of the 1997 Interpretation Act were invalid having regard to the provisions of the Constitution was not pursued in this court. While it was not formally abandoned in Corbett, it was not pressed in the oral arguments to any serious extent.


Submissions of the parties

5. In this court, broadly similar arguments in respect of the two appeals were advanced in Grealis and Corbett. It is, accordingly, convenient to deal with them together.


6. It was submitted on behalf of the applicants that it was a settled rule of the common law that, in the absence of any saving transitional provisions in the statute under consideration, the effect of the abolition of an offence by statute was that it ceased to exist for all purposes, save in cases which had been prosecuted to finality prior to the enactment of the relevant legislation. Were it otherwise, it was said, a person could be charged with, and convicted of, an offence unknown to the common law. They referred in this connection to a number of English and American authorities, viz, Miller’s case (1764) 1 WI.P.l 450; R. .v. MacKenzie (1820), Russ and Ry 429; Kay .v. Goodwin (1830)

6 Bing. 576; R. .v. Swann (1849) 4 Cox CC 108; The General Pickney ( Yeaton .v. USA ) 9 US 281 (1809); Commonwealth .v. Cooley (1830) HF & H 36; United States .v. Tynen , 11 Wall 88; Massey .v. United States , 291 US 608. While these were cases of statutory offences and it had been possible in England and Ireland, since the enactment of the various Interpretation Acts, to rely on the general saving provisions contained in those Acts, they did not apply to common law offences. It was urged that no distinction in principle existed between such offences and statutory offences. Accordingly, the absence of transitional provisions in the 1997 Act was, it was submitted, fatal.

As to the 1997 Interpretation Act, it was submitted that subsection (4) of s. 1 of that Act made it clear that it could not be construed in such a fashion as to conflict with the constitutional rights of any persons. Hence, it was said, the Act was clearly not intended to apply to any criminal proceedings in being at the date of its enactment, since that would infringe the constitutional rights of the defendants in those proceedings and would be an impermissible invasion of the judicial domain, in contravention of the decision of the former Supreme Court in Buckley and Others .v. Attorney General (1950) IR 67 (hereafter “the Sinn Féin Funds case” ).

In the Corbett case, Dr. White S.C. on behalf of the applicant further submitted that, in any event, the DPP was bound by the concession claimed to have been made on his behalf in The People .v. Kavanagh , i.e. that no prosecution could be maintained in respect of offences abolished by the 1997 Act in the absence of transitional provisions.

In Grealis, Mr. Gerard Hogan S.C. on behalf of the DPP and the Attorney General, submitted that, applying normal canons of construction, it could not have been the intention of the Oireachtas to have abolished the common law offence of assault in such a manner as to confer immunity from prosecution on persons who had committed assaults prior to the coming into operation of the 1997 Act. He said that the 1997 Act was clearly prospective in its operation and that it was not intended to affect the legal status of offences alleged to have taken place prior to the coming into force of the relevant provision. He further submitted that the Oireachtas could not have constitutionally created the immunity claimed on behalf of the applicant, having regard to the express obligation imposed on the State and its organs by Article 40.3.2 ° of the Constitution to protect as best it might the life and person of the citizen, which necessitated the existence of a substantial criminal law in respect of acts of assault. He further urged that, to the extent that the 1997 Act was ambiguous in failing to make any provision for what was to happen in the case of offences alleged to have been committed before it came into force, the “double construction” rule explained in East Donegal Co-operative Livestock Marts Ltd. .v. Attorney General (1970) IR 317 should be applied so as to ensure that the Act was interpreted in a constitutional manner which recognised the obligations of the State under Article 40.3.2 °.

7. Mr. Hogan said that, in the result, the DPP did not have to rely on the provisions of the 1997 Interpretation Act. He submitted that, in any event, the Act did no more than codify the existing common law in relation to the abolition of offences. He conceded, however, that it would be difficult for the DPP to rely on the 1997 Interpretation Act, if that arose, having regard to the decision in the Sinn Féin Funds case .


8. On behalf of the DPP and the Attorney General in Grealis, Mr. Maurice Gaffney, S.C. made submissions to the same effect as those advanced by

Mr. Hogan in Corbett. He also relied on certain maxims of statutory interpretation and constitutional rules of construction referred to in the judgments in Quinlivan and Mullins .v. Harnett .

9. He further submitted that the provisions in the 1997 Interpretation Act preserving the constitutional rights of persons which might otherwise be infringed by its provisions meant no more than that the courts, in giving effect to the 1997 Act in allowing the prosecution in Grealis to proceed, must uphold any constitutional rights of the applicant if they came under threat: it did not have the consequence of rendering the further prosecution of the offences unconstitutional, as contended for on behalf of the applicant.


10. As to the cross appeal in Grealis, Mr. Counihan S.C. on behalf of the applicant submitted that the learned trial judge was in error in treating the offence in the third summons as a statutory offence. He said that the observations of Ó Dálaigh C.J. in The State (O.) .v. Eveleen O’Brien were obiter, were erroneous in point of law and should not be followed. He submitted that the only effect of s. 47 of the Offences Against the Person Act, 1861 (hereafter “the 1861 Act” ) was to provide for a particular penalty where the common law offence of assault gave rise to the consequence of occasioning actual bodily harm. He relied in this context on the judgment of Egan J. speaking for this court in DPP .v. E.F. (unreported: judgments delivered 24th February 1994).


11. Replying on behalf of the DPP, Miss Adrienne Egan submitted that the law had been correctly stated by Ó Dálaigh C.J. in The State (O.) .v. Eveleen O’Brien : both the actus reus and mens rea of the offence of assault occasioning actual bodily harm were different from the actus reus and mens rea which had to be established in the common law offence of assault.


The statutory framework
Section 47 of the 1861 Act provides that:
“Whosoever shall be convicted upon an Indictment of any Assault occasioning actual bodily Harm, shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for the Term of Three Years, or to be imprisoned for any Term not exceeding Two Years, without or without ( sic) Hard Labour; and whosoever shall be convicted upon an Indictment for a common Assault shall be liable, at the Discretion of the Court, to be imprisoned for any Term not exceeding One Year, with or without Hard Labour.”

12. I have already set out the provisions of s. 28(1) of the 1997 Act. It should also be noted that, by virtue of s. 31 of that act and the Schedule, s. 47, together with a number of other sections in the 1861 Act, was repealed.


Section 21(1) of the Interpretation Act 1937 provides that:-
“Where an Act of the Oireachtas repeals the whole or a portion of a previous statute, then, unless the contrary intention appears, such repeal shall not ...
(b) affect the previous operation of the statute or portion of a statute so repealed or anything duly done or suffered thereunder, or
(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under the statute or portion of a statute so repealed, or
(d) affect any penalty, forfeiture, or punishment incurred in respect of any offence against or contravention of the statute or portion of a statute so repealed which was committed before such repeal, or
(e) prejudice or affect any legal proceedings, civil or criminal, pending at the time of such repeal in respect of any such right, privilege, obligation, liability, offence or contravention as aforesaid.”

13. These provisions replicated almost verbatim the corresponding provisions in s. 38 (1) of the Interpretation Act, 1889, which were repealed by the 1937 Act.


14. Section 1 of the 1997 Interpretation Act provides as follows:-

“Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law, then unless the contrary intention appears, such abolition, abrogation or repeal shall not -
(a) affect the previous operation of the law in relation to the offence so abolished, abrogated or repealed or any other offence or anything duly done or suffered thereunder,
(b) affect any penalty, forfeiture or punishment incurred in respect of any such offence so abolished, abrogated or repealed or any other offence which was committed before such abolition, abrogation or repeal, or
(c) prejudice or affect any proceedings pending at the time of such abolition, abrogation or repeal in respect of any such offence or any other offence.
(2) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law then, unless the contrary intention appears, any proceedings in respect of any such offence or any other offence committed before such abolition, abrogation or repeal of any such offence at common law may be instituted, continued or enforced and any penalty, forfeiture or punishment in respect of any such offence at common law or any other offence may be imposed and carried out as if such offence at common law had not been abolished, abrogated or otherwise repealed.
(3) This section applies to an offence which is an offence at common law, abolished, abrogated or otherwise repealed before or after the passing of this Act.
(4) If, because of any or all of its provisions, this section would, but for the provisions of this subsection, conflict with the constitutional rights of any person, the provisions of this section shall be subject to such limitations as are necessary to secure that they do not so conflict, but shall otherwise be of full force and effect.”

Conclusions

15. Where parliament by legislation abolishes a criminal offence and says that, in effect, the conduct which it was there to restrain will henceforth be lawful, it would seem a matter of common sense that no court could convict a person of such an offence. How, it might well be asked, could any court have power to inflict punishment on a person who had done nothing wrong?


16. Fortunately, the law as evolved in judicial decisions frequently, if not invariably, does accord with common sense and so it is in the present case. As long ago as 1764, an English court said in Miller’s case :-

“Even offences committed against the clause (while in force) could not have been now punished, without a special clause to allow it; and therefore, a clause is inserted in the repealing statute for that purpose.”

17. But that case recognised, as common sense would also have suggested, that it is perfectly competent for the legislature to provide in the repealing statute that it is not to affect crimes alleged to have been committed before it was enacted.


18. As Tindal C.J. put it in the later case of Kay .v. Goodwin in 1830:-

“I take the effect of repealing a statute to be, to obliterate it as completely from the records of the parliament as if it had never passed; and, it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law.”

19. The same view of the law was expressed in even more trenchant language by Rolfe B. in R. .v. Swann , where he said:-

“I think it perfectly clear that, when a statute is repealed simpliciter, you cannot afterwards proceed against a person for anything done under it. I desired to have handed up to me Sir Robert Peel’s Acts, and I find a vast number of statutes, constituting certain offences, were by them repealed, and new acts substituted; in all of them I see that the Acts are repealed from a certain day except as to offences committed before their repeal, and which are to be dealt with as though their repeal had not taken place. I presume that was only done because the legislature thought such a provision necessary ... Some of those offences were capital ones by the old law, but the punishment of death was repealed by the 6 Geo. 4, c 16, and if the principle now contended for had been upheld, a man might have been hanged at a time when a statute was in force which declared that such a punishment should not be awarded. It might be by mistake that the new Act did not contain such a provision as I have mentioned, but it very positively repeals all that has gone before, and it is much safer to adhere to what the legislature enact than to speculate on what it intended.”

20. The law was stated in similarly emphatic terms by the Supreme Court of the United States in The General Pickney and in United States .v. James Tynen , where it was laid down, without any qualification, that there could be no legal conviction, unless the law creating the offence was in existence at the time.


21. Following the enactment of the Interpretation Act, 1889, it was possible for courts to convict in respect of offences allegedly committed prior to the enactment of the repealing statute, even in the absence of saving or transitional provisions, but the legislation in question applied only to statutory offences. The United States Supreme Court made it clear in United States .v. Chambers (291 US 217), that where the repealing statute contained no such saving or transitional provisions and the Act of Congress corresponding to the Interpretation Act was not applicable, the law remained as stated in the earlier decisions.


Chambers arose out of the repeal in 1933 of the 18th Amendment to the Constitution which introduced prohibition. As a result of the repeal, the National Prohibition Act, which gave effect to the 18th Amendment, ceased to be of any effect. A prosecution was instituted in June 1933 in North Carolina against two persons for conspiring to violate the National Prohibition Act and for possessing and transporting intoxicating liquor contrary to the Act. The case did not come on for trial until December 6th, 1933, i.e. the day after the repeal of the Prohibition Amendment became effective. Congress had enacted a general provision corresponding to s. 21 of the Interpretation Act, 1889, but the Supreme Court held that this could have no effect where an Act, such as the National Prohibition Act, was rendered inoperative, not because an Act of the Congress had repealed an earlier Act, but because of a subsequent amendment of the Constitution. Chief Justice Hughes, delivering the unanimous opinion of the court, recalled the words of Chief Justice Marshall in the General Pickney :
“It has long been settled on general principles that, after the expiration or appeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force, unless some special provision be made for that purpose by statute.”

22. It was held that, in the absence of any such special provision, the prosecution in that case could not be maintained.


23. This formidable body of authority, it is said on behalf of the DPP, applies only to the repeal of statutory offences. No logical or principled distinction was drawn, however, between the application of this well settled rule of law to statutory offences and to common law offences and, with good reason, since it is clear that there is no such distinction. Common sense, as well as authority, leads one inexorably to the conclusion that, where a common law offence is repealed by statute, in the absence of any saving provision it ceases to exist for all purposes and no prosecution can be maintained in respect of it after the repealing statute has taken effect.


24. Faced with this difficulty, counsel on behalf of the DPP in both Grealis and Corbett have sought to rely on various principles of statutory interpretation and on the provisions of the Constitution.


25. The first line of argument takes as its starting point the fact that the 1997 Act did more than repeal the existing common law offences of assault and assault occasioning actual bodily harm. (I shall assume for the moment that, contrary to the argument advanced on behalf of the DPP in the cross appeal in Grealis, the latter offence is properly so described.) It replaced them with three new offences framed in such a way as to remove features of the old common law which might seem anomalous or inappropriate to contemporary sensibilities.


26. The argument advanced on behalf of the DPP in both cases was in essence that, given that the repealed common law offences were simply being replaced by modernised versions of the same offences, it cannot have been the intention of parliament that persons who had allegedly committed the common law offences before the enactment of the 1997 Act should be given immunity against prosecution, there being, as it was said, no rational basis for such an immunity to be afforded them. The first maxim of interpretation deployed in favour of that argument was the statement of the law in Bennion on Statutory Interpretation , Third Edition, at p. 233 as follows:

“Where an Act contains substantive, amending or repealing enactments, it commonly also includes transitional provisions which regulate the coming into operation of those enactments and modify their effect during the period of transition. Where the Act fails to include such provisions expressly, the court is required to draw such inferences as to the intended transitional arrangements as, in the light of the interpretative criteria , it considers parliament to have intended.” [Emphasis added]

27. That statement of the law depends, of course, on what the applicable interpretative criteria are. The first of them relied on is what was described as the “public interest” principle. That is explained by the learned author at p. 606 as follows:

“It is the basic principle of legal policy that law should serve the public interest. The court when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislature intended to observe this principle. It should therefore strive to avoid adopting a construction which is in any way adverse to the public interest.”

28. The public interest identified in this case is, of course, that acts of violence committed against anyone should not, in general, go unpunished. That is also reflected, it is argued, in the provisions of Article 40 of the Constitution guaranteeing the personal rights of citizens.


29. The next principle referred to in Bennion which is relied on is what is described as “the common sense construction rule” and is explained as follows at p. 427:

“It is a rule of law ... that when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, the court should presume that the legislature intended common sense to be used in construing the enactment.”

30. Common sense, it is said, would suggest that it cannot have been the intention of the Oireachtas to leave assaults, even in a limited category, unpunished.


In Quinlivan, McGuinness J. was not satisfied that the application of these canons of construction resolved the difficulty created by the omission of any saving or transitional provisions in the 1997 Act. In Mullins .v. Harnett , O’Higgins J. took a different view and was satisfied that they had the effect contended for on behalf of the prosecution in that case.

31. The application of the rules in question manifestly depends on the existence of what are called “opposing constructions” of the enactment in question. Works such as Bennion and Craies on Statute Law , Seventh Edition, are replete with examples of cases in which the courts have had to consider such opposing constructions. The language used in the statute may be ambiguous. The enactment may be capable of either a literal construction or a strained construction. In such cases, it may well be that the interpretative maxims in question can resolve the problem for the court.


32. Section 28(1) of the 1997 Act is, however, clear and unambiguous. The only construction of which it is capable is that the common law offences to which it applies are abolished from the coming into force of the section. They cease to exist in law with all the consequences that flow from their abolition spelled out in the many authorities to which I have referred. Counsel in the present case have been unable to put forward any construction of the provision in question which displaces the plain and unambiguous meaning of the words the draughtsman has used.


33. A further rule of construction advanced on behalf of the DPP was what is sometimes described as the presumption against retrospectivity. In Hamilton .v. Hamilton (1982) IR 466, O’Higgins C.J. cited the following general statement from the judgment of Wright J. in In re Athlumney (1898) 2 QB 547:-

“No rule of construction is more firmly established than this, that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.”

34. Again, that principle can have no application where, as here, the language used is capable of one interpretation only. In the same case, Henchy J. referred to the general principle that the rights of the parties should be decided according to the law as it existed when the action was begun

“unless the new statute shows a clear intention to vary such rights.”

35. Again, that rule can have no application where, as here, the wording of the statute permits of only one construction. In any event, the cases in which that maxim have been applied appear generally to have been cases in which the rights of parties in civil law are under consideration. No authority, other than the constitutional cases to which I shall shortly turn, was cited to us for the proposition that the principle applied also in criminal cases.


In Quinlivan, McGuinness J. held that to interpret s. 28(1) of the 1997 Act as applying to offences allegedly committed before it came into operation would represent an impermissible interference in the judicial process and would violate the principle of the separation of powers embodied in the Constitution, contrary to the decisions of the Sinn Féin Funds case , in Maher .v. Attorney General (1973) IR 140 and Costello .v. The Director of Public Prosecutions (1984) IR 436. In addition, as we have seen, Mr. Hogan urged that the construction contended for on behalf of the applicants would result in the State being in breach of its obligations under Article 40.

36. McGuinness J. expressed her conclusion as follows:

“Where two constructions or interpretations of the relevant statutory provisions are open, the court must adopt that which is not in conflict with the Constitution ... The (1997 Act) does not contain any provision dealing with pending cases, but neither does it state specifically that the abolition of the common law offence of false imprisonment is to have the effect of bringing to an abrupt end all prosecutions for that offence now before the courts.”

Again, the “double construction” rule invoked in that passage can have no application in the present case. It would appear that, in that case, the attention of the learned High Court judge was not drawn to the clear line of authority to which I have already referred that, in the absence of any saving provisions, there can be no room for doubt or ambiguity as to the meaning and effect of a provision such as s. 28 (1) of the 1997 Act. The same considerations apply to the arguments based on Article 40 of the Constitution.

37. The applicants will, accordingly, be entitled to succeed, unless the DPP can rely on the 1997 Interpretation Act. If that Act is valid having regard to the provisions of the Constitution and if it did not contain subsection (4), it would unquestionably put an end to the difficulties experienced by the DPP in these two cases. The wording of s. 1(1)(c) and subsection (2) is clear and comprehensive and they apply by virtue of subsection (3) to common law offences abolished before or after their enactment.


38. Subsection (4) has been inserted in the section as a form of constitutional safety net to ward off a possible finding of unconstitutionality. It is in virtually identical terms to provisions in earlier legislation also enacted by the Oireachtas in response to difficulties arising in some cases, as here, from judicial decisions.


39. In the case of the Courts (No. 2) Act, 1988, the difficulty arose, not as a result of a judicial decision, but because of the belated discovery that a District Justice had been sitting at a stage when he had passed the retirement age. The legislation provided for the validation of acts performed by him during that time, but s. 1(3) provided:-

“If, because of any validation expressed to have been effected by subsection (2) of this section, that subsection would, but for this subsection, conflict with a constitutional right of any person, the validation shall be subject to such limitation as is necessary to secure that it does not so conflict but shall be otherwise of full force and effect.”

40. The High Court and this court (by a majority) held in Shelley .v. District Justice Mahon and Anor. (1990) IR 36 that the purported conviction of the applicant in that case by the District Justice was a nullity and that any purported retrospective validation would conflict with his constitutional right to be tried on a criminal charge in due course of law by a judge duly appointed under the Constitution.


41. Rejecting a submission on behalf of the respondents that the subsection could be construed as surplusage, Griffin J. said

“In construing a statute, it is permissible to reject words or phrases as surplusage if it is necessary to do so to give a sensible meaning to a section. That however is very far removed from treating one of three subsections as surplusage. It is not in my view a permissible approach to the construction of a statute to explain the presence of a subsection by an argument or submission that it is surplusage. In my opinion, the construction of subsections 2 and 3 is clear and the intention of the Oireachtas, as expressed in the words used, is also clear. Subsection (2)(a) is a blanket provision designed to cover every order made by the respondent subsequent to the date of his retirement on the 4th January 1984. It is however obvious that if that subsection stood alone it would be bound to trench on constitutional rights of at least some of the persons against whom such orders were made, in which event Article 15.4 of the Constitution [guaranteeing the right of persons to be tried on criminal charges in due course of law by a judge appointed under the Constitution] would have been breached and the subsection would be invalid. The Oireachtas was, however, alive to this danger and subsection 3 was accordingly enacted for the purpose of qualifying subsection 2(a) ... If the purported validation conflicts with a constitutional right of any person, it would be ineffective to such an extent as is necessary to ensure that it does not conflict with that right.”

42. If the argument advanced on behalf of the DPP in Grealis in this case is well founded, then the subsection with which we are concerned would be truly surplusage. A judge at any level is obliged to uphold the constitutional rights of persons who may be prosecuted in reliance on the provisions of the 1997 Interpretation Act and, if that was all that the subsection was intended to ensure, it was wholly unnecessary. The conclusion is, in my view, irresistible that the Oireachtas, rightly or wrongly, were of the view that the operation of the 1997 Interpretation Act would, in some circumstances at least, infringe the constitutional rights of persons affected by its provisions, unless sub-s. (4) was inserted.


43. Given that the purpose of the Act was to validate prosecutions in respect of common law offences which could not otherwise be maintained because of the state of the law as found by the Special Criminal Court in The People .v. Kavanagh , the Oireachtas must have envisaged that the retrospective validation of prosecutions instituted before the coming into force of the 1997 Act would be a breach of the constitutional rights of defendants in such cases. It follows inevitably that subsection (4) must have been inserted so as to prevent the Act from taking effect in the case of such prosecutions.


44. A somewhat analogous situation arose in Pine Valley Developments .v. Minster for the Environment (1987) IR 23. In that case, a planning permission granted to the plaintiff developers by the Minister for Local Government (as he was then styled) on appeal had been found by this court (in an earlier decision reported at (1984) IR 407) to be ultra vires . That, of course, had the consequence that the many similar permissions granted by the Minister on appeal were also ultra vires , although in many cases buildings etc. had been erected in reliance on them. In those circumstances, s. 6 of the Local Government (Planning and Development) Act, 1982, was enacted so as to validate those permissions. However subsection (2) provided, in terms identical to the provision now under consideration, that it was not to conflict with the constitutional rights of any person. Lardner J., sitting as a member of this court, commented on the provisions as follows:

“In considering the effect of the provisions of section 6 subsections 1 and 2 of the Act of 1982, it is helpful to remember that the proceedings in the High Court and in the Supreme Court to which I have referred raised justiciable issues between the parties to those proceedings, one of whom is now one of the plaintiffs in the present proceedings. As was held in [the Sinn Féin Funds case] the effect of Articles 34 to 37 of the Constitution is to vest in the courts the exclusive right to determine issues of this nature. In instituting and defending the proceedings to which I have referred, the parties thereto were exercising a constitutional right and they were entitled to have the issues determined by the judicial organ of the State ... No doubt it was apprehended that s. 6, subsection 1 of the Local Government (Planning and Development) Act, 1982 might operate to reverse retrospectively this court’s decision and that this might constitute an unwarrantable interference by the legislature in a decision of the courts. It seems probable that it was in these circumstances that s. 6, subsection 2 was enacted with a view to avoiding such interference ...”

45. The 1997 Interpretation Act does not go so far as to reverse retrospectively any decision of the courts. In the absence of sub-s. (4), it might have been said to constitute an unjustifiable interference in litigation pending before the courts by, in effect, requiring the courts to decide the cases in question on a different legal basis. But it is unnecessary in this case to decide whether the effect of the Sinn Féin Funds case is to render such an interference (or the interference under consideration in Pine Valley ) impermissible. It is sufficient to say that subsection (4) must have been intended to preserve the constitutionality of the section as a whole by excluding prosecutions initiated before the commencement of the 1997 Interpretation Act from the ambit of the Act. Any other construction, such as that relied on on behalf of the DPP in Grealis, would render the provision otiose.


46. It remains to be said that I would have no hesitation in rejecting the submission advanced by Dr. White on behalf of the applicant in Corbett to the effect that the DPP was bound by the concession claimed to have been made on his behalf in The People .v. Kavanagh . The DPP is, save in exceptional circumstances, the only authority entrusted with the prosecution of indictable crime in this country and he necessarily discharges his functions by retaining counsel and solicitors to act on his behalf. The fact that counsel in a particular case may have made a concession, for whatever reason, which was erroneous in law, cannot have the effect of estopping the Director from canvassing the point in subsequent proceedings: to hold otherwise would be a recipe for ensuring the perpetuation of legal error and, it may well be, injustice.


47. The cross appeal in Grealis on behalf of the applicant remains to be considered. The question as to whether the offence described in s. 47 of the 1861 Act as “assault occasioning actual bodily harm” is a common law offence or a statutory offence was considered by Ó Dálaigh C.J. in The State (O.) .v. Eveleen O’Brien in a judgment with which Walsh J. and Fitzgerald J. agreed. In that case, a district justice had certified, pursuant to s. 207 (1) of the Mental Treatment Act, 1945, that a person detained in a district mental hospital was suitable for transfer to the Central Mental Hospital. The district justice could only so certify where inter alia the person was charged with an indictable offence. In that case, he had been charged with an assault occasioning actual bodily harm “contrary to s. 47 of the (1861) Act ...” . It was argued on behalf of the prosecutor that the charge against him was bad because s. 47 of the 1861 Act did not create an offence but merely declared the penalty for an existing common law offence.


48. Ó Dálaigh C.J., having pointed out that assault was a common law misdemeanour and, as such, triable on indictment but had been triable summarily since the enactment of the Criminal Justice Act, 1951, said that it was proper to invoke the statute in describing the offence in the complaint, but that in any event the court was not concerned in that case with examining a conviction but simply with the question of whether an offence was charged and, if so, whether it was an indictable offence. As to whether it was appropriate to refer to the statute in the complaint, he said:-

“Archbold’s Practice in Criminal Cases, 26th Ed. (1922), deals with the offence as a statutory offence. There, at p. 929, the statement of offence is ‘assault contrary to s. 47 of the (1861 Act).’
The 36th Ed. (1966) on the other hand, at p. 978, para. 2637 treats it as a common law offence, and the statement of offence is simply ‘assault occasioning actual bodily harm’. But is this correct? Where, prior to the enactment of the (1861 Act), do we find any evidence of the existence of such an offence? Common assault, yes; but not ‘assault occasioning actual bodily harm.’ The latter offence is the common law offence with the addition of aggravating circumstances. I would describe the offence so created as a hybrid offence and, as a choice has to be made between stating the offence as a common law offence (i.e. without adding the words ‘contrary to s. 47 of the (1861 Act)’ or as a statutory offence simply (i.e. with the said addition), I consider that the view of the editor of the 1922 edition is preferable. The hybrid offence is a kind of statutory offence; it is not a common law offence. If it is to be assimilated into a category, then in my opinion it falls to be identified as a statutory offence. Therefore, I think it was proper to invoke the statute.”

49. Since, as the learned Chief Justice pointed out, the issue in that case was as to whether an offence was charged and, if so, whether it was an indictable offence, this passage must be regarded as obiter. It is, however, relied on by the DPP as correctly stating the law.

50. The 1861 Act contains eleven separate sections under the cross heading “assaults”. Some of these provide expressly for the creation of new offences. Thus, a person found guilty of assaulting and striking or wounding any magistrate is to be guilty of a misdemeanour. Some of the other sections, however, such as s. 47, do no more than provide for an increased penalty, depending on the circumstances of the assault. Thus, persons convicted of assaults of an aggravated nature on females or male children under the age of 14 are liable to increased penalties. It is possible to construe s. 47 as doing no more than providing that, where the common law misdemeanour of assault had as its consequence the infliction of actual bodily harm, the perpetrator was liable to an increased sentence.


51. So to read it, however, would in my view be to pay insufficient regard to the fact that the section introduces another ingredient which must be proved by the prosecution before the penalty prescribed by the section can be imposed. Where a person is prosecuted for an offence - in this case “assault occasioning actual bodily harm” - which requires the proof of two distinct ingredients, i.e. assault and bodily harm resulting from the assault, it cannot be said that they are being prosecuted for the offence of assault simpliciter.


52. That conclusion is confirmed, not merely by the passage from the judgment of Ó Dálaigh C.J. already cited, but also by the decision of this court in The People .v. Murray (1977) IR 416. One of the defendants in that case had shot dead an unarmed garda in plain clothes while they were fleeing from the scene of a bank robbery. They were prosecuted for the crime of “capital murder” and convicted in the Special Criminal Court. The Criminal Justice Act 1964 had abolished the death penalty in all save a limited category of cases, i.e. the murder of gardaí or prison officers in the course of their duties and of heads of state and ambassadors, these categories being described as “capital murder” .


53. An issue arose as to the nature of the mens rea which had to be proved by the prosecution before a conviction could be recorded: was it necessary for the prosecution to establish that the defendants knew that the victim was a garda or 1were recklessly indifferent as to whether he was or not or was it sufficient to establish that they intended to kill, or cause serious injury to, the victim, the mens rea required, also since the enactment of the 1964 Act, in cases of murder generally?


54. The defendants having been convicted in the Special Criminal Court of capital murder, an appeal was brought to the Court of Criminal Appeal. That court, in upholding the convictions, concluded that the mens rea which the prosecution had to prove was the same as in cases of murder generally. The court reached that conclusion because it was satisfied that the offence of capital murder of which the defendants had been found guilty was not a new offence created by the 1994 Act: the offence with which the defendants had been charged, and of which they had been found guilty, was the common law offence of murder. The effect of the 1994 Act was simply to provide that where, as in this case, the victim was a member of the Garda Síochána killed in the course of his duties, a person convicted of the crime was to be sentenced to death.


55. The Court of Criminal Appeal having certified that its decision involved a point of law of exceptional public importance, an appeal was brought to this court, which reversed the finding that the offence of capital murder was not a new offence. The judgments went on to consider the nature of the mens rea required in a case of capital murder and reached their conclusions on that difficult topic by a majority: they were, however, unanimous as to the first issue.


56. The judgments of Griffin J. and Kenny J. in that case make it clear that they were satisfied that the fact that that the prosecution had to prove, at the least, not merely that the defendants intended to kill, or cause serious injury to, the victim but also that the victim was a member of the Garda Síochána who had been killed in the course of his duties and that the charge had to be laid as one of “capital murder” and not of murder simpliciter demonstrated that the offence was a new offence created for the first time by the 1964 Act. It is true that Walsh J. and Henchy J., in the judgments which they delivered, also laid strong emphasis on the awesome consequences which flowed from a conviction of capital murder as distinct from murder simpliciter, but I do not read their judgments as depending crucially on that fact. The ratio of the decision was clearly that, following the enactment of the 1964 Act, there existed for the first time in our law a new offence described as “capital murder” the ingredients of which were significantly different from those which had to be proved in murder simpliciter.


57. These considerations also apply to the offence of “assault occasioning actual bodily harm” which appeared for the first time in the 1861 Act. I am satisfied that the law was correctly stated by Ó Dálaigh C.J. in The State (O.) .v. Eveleen O’Brien and that the cross appeal by the applicant should be dismissed.


58. It should be pointed out that counsel for the DPP also relied on what she said was the different nature of the mens rea which had to be established by the prosecution in the case of an assault occasioning actual bodily harm. The nature of the mens rea required in such cases is referred to in the judgment of the Court of Criminal Appeal in The DPP .v. McBride [(1996) 1 IR 426] but the judgment does not resolve the issue as to whether the mens rea is of a different nature from that required in cases of assault at common law. In England, there had been conflicting decisions on the point, but the law in that jurisdiction appears to have been put beyond doubt by the decision of the House of Lords in R. .v. Savage ; R. .v. Parmenter (1991) 4 All ER 698, which was not referred to in the arguments before us but which made it clear that, in order to establish the offence of assault occasioning actual bodily harm contrary to s. 47 of the 1861 Act, it was sufficient for the prosecution to show that the defendant committed an assault and that actual bodily harm was occasioned by it; the prosecution was not obliged to prove that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused. Since, however, the conclusion I have reached is not in any way dependent on the prosecution being required to establish a different degree of mens rea in cases of assault occasioning actual bodily harm, it is unnecessary to consider further whether R. .v. Savage ; R. .v. Parmenter should be followed in this jurisdiction.


59. I should also point out that my view that the offence of occasioning actual bodily harm is a statutory offence and not a common law offence is unaffected by the fact that the 1997 Act, as we have seen, describes it as a common law offence. That was an error of draughtsmanship in the 1997 Act which cannot have the effect of converting retrospectively what was always a statutory offence into a common law offence.


60. The intention of the Oireachtas in enacting the relevant provisions of the 1997 Act is not in doubt. They intended to replace inter alia the offence of assault occasioning actual bodily harm with two other offences, “assault causing harm” and “causing serious harm” . It was entirely immaterial in that context whether the offence they were replacing was properly described as a statutory offence or a common law offence. The fact that they erroneously chose to describe it as the latter (perhaps misled by the incorrect statement of the law in the Law Reform Commission report on Non-Fatal Offences Against the Person which in turn appears to have overlooked the decision of this court in The State (O.) .v. Eveleen O’Brien ) is nihil ad rem . As Lord Reid pointed out in Inland Revenue Commissioners .v. Dowdall O’Mahony & Company Ltd . (1952) AC 401:-

“There is a difference between parliament exhibiting an erroneous opinion as to the existing law and enacting that that law shall be changed.”

61. Or, as Lord Radcliffe put it in the same case (at p. 426):-

“The beliefs or assumptions of those who frame acts of parliament cannot make the law.”

In Grealis, I would allow the appeal by the Attorney General against the finding of the learned High Court judge that the 1997 Interpretation Act was invalid having regard to the provisions of the Constitution. I would dismiss the appeal of the Director of Public Prosecutions against the order of the High Court granting the relief sought by way of prohibition, and would also dismiss the cross appeal by the applicant. In Corbett, I would allow the appeal of the applicant and substitute for the order of the High Court an order granting the relief by way of prohibition sought in respect of the summons on foot of which the prosecution was brought.

THE SUPREME COURT

Keane C.J.
Denham J.
Murphy J.
Murray J.
Hardiman J.
Record No. 262/99
BETWEEN/ PADRAIC GREALIS
APPLICANT/RESPONDENT
and
THE DIRECTOR OF PUBLIC PROSECUTIONS,
IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS/APPELLANTS
And Record No. 16/2000
EMMETT CORBETT
APPLICANT
and
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
and
THE ATTORNEY GENERAL
NOTICE PARTY



Judgment of Mrs. Justice Denham delivered on 31st day of May, 2001.

1. Issues

62. These cases were heard together. They raise similar fundamental issues. First, the question is whether common law offences abolished by the Non-Fatal Offences Against the Person Act, 1997 may be prosecuted after that Act came into effect. Secondly, whether the offence of occasioning actual bodily harm was a common law offence or a statutory offence. Upon these determinations consequences flow. Further, the place of the Interpretation (Amendment) Act, 1997 in relation to these prosecutions and its constitutionality fall to be decided.

2. The Facts in Grealis

63. On 4th day of May, 1997 an incident took place which it is alleged involved an assault by Padraic Grealis (hereinafter referred to as the first applicant) on Margaret Sweeney and Francis Sweeney. It is alleged also that on 11th May, 1997 an assault by the first applicant on Christopher McGinty took place. On 19th May, 1997 the Non-Fatal Offences Against the Person Act, 1997 became law, by which statute the common law offences of assault and battery and assault occasioning actual bodily harm were abolished on 19th August, 1997. On 11th September, 1997 proceedings in respect of the incident on 4th May, 1997 were commenced by way of summonses which referred to an assault on Margaret Sweeney and Francis Sweeney as being contrary to common law, subject to s.11(2) of the Criminal Justice Act, 1951 as amended by s.10(2) of the Criminal Justice Act, 1994. On 12th September, 1997 proceedings were commenced in respect of the incident on the 11th May, 1997, by way of summons which referred to an unlawful assault on Christopher McGinty, contrary to s. 47 of the Offences Against the Person Act, 1861. On 15th June, 1998 leave was granted by the High Court to seek an order of prohibition in respect of the said summonses issued. On 18th October, 1999 the High Court held that assault occasioning actual bodily harm was a statutory offence and that the provisions of s. 21 of the Interpretation Act, 1937 applied. The High Court also held, in relation to the offence of common assault, that in the absence of a statutory transitional clause in force at the time when the proceedings were commenced, the proceedings could not have been lawfully instituted in respect of an abolished offence. Further, the Court held that the Interpretation (Amendment) Act, 1997 which sought to insert a transitional clause retrospectively was unconstitutional. On 22nd November, 1999 the first applicant filed an appeal and on 23rd November, 1999 the Director of Public Prosecutions, Ireland and the Attorney General (hereinafter referred to as the respondents) filed an appeal.

3. The Summonses
1(a) In Grealis the summonses stated, of the first applicant:
(i) “WHEREAS a complaint has been made to me that you the said
defendant on the 4th day of May, 1997, at Hotel Westport, New Road, Westport Demesne, Westport, Co. Mayo within the court area and district aforesaid, did

64. Assault one Margaret Sweeney.


65. Contrary to Common Law. Penalty.

Subject to Section 11(2) of the Criminal Justice Act, 1951,
as amended by Section 10(2) of the Criminal Justice Act 1994.

66. THIS IS TO COMMAND YOU to appear as defendant on the hearing of the said complaint at the District Court at Courthouse, Westport, Co. Mayo,

in said court area and district, on 3rd day of October, 1997
at 11 o’clock, a.m. to answer the said complaint.

Dated this 11.9.97.”


(ii) “WHEREAS a complaint has been made to me that you the said defendant on
the 4th day of May, 1997, at Hotel Westport, New Road, Westport Demesne,

67. Westport, Co. Mayo within the court area and district aforesaid, did

68. Assault one Francis Sweeney.

69. Contrary to Common Law. Penalty

Subject to Section 11(2) of the Criminal Justice Act 1951,
as amended by Section 10(2) of the Criminal Justice Act 1994.

70. THIS IS TO COMMAND YOU to appear as defendant on the hearing of

the said complaint at the District Court at Courthouse, Westport, Co. Mayo
in said court area and district, on the 3rd day of October, 1997
at 11 o’clock, a.m., to answer the said complaint.
Dated this 11.9.97.”




(iii) “WHEREAS a complaint has been made to me that you the said defendant
on the 11th day of May, 1997, at Mulranny. Co. Mayo, within the court
area and district aforesaid, did on the 11th of May, 1997 at Mulranny, Co.

71. Mayo in the said District did unlawfully assault one Christopher McGinty of

72. Dooriel, Ballycroy, Westport, Co. Mayo thereby occasioning him actual

bodily harm.
Contrary to Section 47 Offences Against the Person Act, 1861.

73. THIS IS TO COMMAND YOU to appear as defendant on the hearing of the said complaint at the District Court at Newport in the said court area and

district, on the 17th day of October, 1997, at 11 o’clock, a.m., to answer
the said complaint.
Dated this 12.09.’97.”


4. Law

74. The relevant statutory law includes the Offences Against the Person Act, 1861; the Interpretation Act, 1937; the Non-Fatal Offences Against the Person Act, 1997; and the Interpretation (Amendment) Act, 1997.


The Non-Fatal Offences Against the Person Act, 1997.

75. The Non-Fatal Offences Against the Person Act, 1997 abolished certain common law offences and statutory offences. Section 28 states:

“28.-(1) The following common law offences are hereby abolished -
(a) assault and battery,
(b) assault occasioning actual bodily harm,
(c) kidnapping, and
(d) false imprisonment

(2) . . . ”

76. Section 31 states:


“31.- Each enactment specified in column (2) of the Schedule to this Act is hereby repealed to the extent specified in column (3) of that Schedule.”

77. The schedule sets out the extent of the repeal of the Offences Against the Person Act, 1861 which includes s. 47. Section 11 of the Criminal Justice Act, 1951 was also repealed. There were no saving or transitional arrangements in the Act of 1997 in relation to the abolition of the offences.

The Interpretation (Amendment) Act, 1997.

78. The Interpretation (Amendment) Act, 1997, states:

1. - (1) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law, then unless the contrary intention appears, such abolition, abrogation or repeal shall not -


(a) affect the previous operation of the law in relation to the offence so
abolished, abrogated or repealed or any other offence or anything
duly done or suffered thereunder,
(b) affect any penalty, forfeiture or punishment incurred in respect of any
such offence so abolished, abrogated or repealed or any other offence
which was committed before such abolition, abrogation or repeal, or
(c) prejudice or affect any proceedings pending at the time of such abolition, abrogation or repeal in respect of any such offence or any other offence.

(2) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law, then unless the contrary intention appears, any proceedings in respect of any such offence or any other offence committed before such abolition, abrogation or repeal of any such offence at common law may be instituted, continued or enforced and any penalty, forfeiture or punishment in respect of any such offence at common law or any other offence may be imposed and carried out as if such offence at common law had not been abolished, abrogated or otherwise repealed.

(3) This section applies to an offence which is an offence at common law abolished, abrogated or otherwise repealed before or after the passing of this Act.

(4) If, because of any or all of its provisions, this section would, but for the provisions of this subsection, conflict with the constitutional rights of any person, the provisions of this section shall be subject to such limitations as are necessary to secure that they do not so conflict, but shall otherwise be of full force and effect.”


79. There have been a number of cases arising from the Non-Fatal Offences Against the Person Act, 1997. In The People v. Kavanagh (Unreported, Special Criminal Court, Barr J., 29th October, 1997) it was held that a charge of false imprisonment commenced prior to 19th August, 1997 could not proceed due to the effect of s. 28(1) of the Act of 1997. In Quinlivan v. Governor of Portlaoise Prison [1998] 2 IR 113, the High Court held that the abolition effected by s. 28(1) of the Act of 1997 did not apply in respect of charges of false imprisonment pending before the courts at the time of the abolition. The Interpretation (Amendment) Act 1997 was not relied upon by the State. In Mullins v Harnett [1998]

4 I.R. 426 the High Court held that the abolition effected by s. 28(1) did not apply in respect of charges of common assault pending before the courts at the time of the abolition. The Interpretation (Amendment) Act, 1997 was not relied upon by the State in that case either.

5. The High Court Judgment in Grealis

80. In the High Court, [2000] 1 I.L.R.M. 358, O’Donovan J. held that: (a) assault occasioning actual bodily harm is a statutory offence, s. 21 of the Interpretation Act, 1937 applies, and so the proceedings were valid; (b) in respect of the offence of common assault (because of the absence of transitional arrangements at the time the proceedings were commenced) the proceedings could not be lawfully instituted; and c) the Interpretation (Amendment) Act, 1997, in attempting to insert a transitional clause retrospectively, was unconstitutional.


81. The learned trial judge stated at p. 362 et seq. of the report:


“At the outset, it seems to me that the first issue which I must determine is whether or not the offence of assault contrary to s. 47 of the Offences Against the Person Act, 1861 alleged against the applicant in the said summons dated 12 September 1997 is, as submitted on behalf of the applicant, a common law offence and thereby included among the provisions of s. 28(1) of the Non-Fatal Offences Against the Person Act 1997 or whether, as submitted on behalf of the respondents, it is a statutory offence and, therefore, excluded from those provisions. In this connection, I think that I need look no further than to the judgment of the Supreme Court delivered in the case of State (O.) v. O’Brien [1971] I.R. 42 which is a binding authority and in which it was held that the offence of assault occasioning actual bodily harm is a statutory offence. Accordingly, I must conclude that the offence of assault contrary to s. 47 of the Offences Against the Person Act 1861 alleged against the applicant in the said summons dated 12 September 1997 does not come within the provisions of
s. 28(1) of the Non-Fatal Offences Against the Person Act 1997. That as it may be, however, it is equally clear, by virtue of the provisions of s. 31 of the said Act of 1997 and the schedule thereto, that the offence of assault occasioning actual bodily harm contrary to the provision of s. 47 of the Offences Against the Person Act 1861 was abolished with effect from 19 August 1997.
. . .

. . . , I am satisfied that, on 19 August 1997, there were no saving provisions in respect of the common law offences abolished by s. 28(1) of the Non-Fatal Offences Against the Person Act 1997 and, in particular, no saving provisions in respect of the offences of common assault alleged against the applicant in the said summonses dated 11 September 1997. However, the same considerations do not apply with regard to the offence of assault contrary to s. 47 of the Offences Against the Person Act 1861 which is alleged against the applicant in the said summons dated 12 September 1997. In that regard, notwithstanding the repeal of s. 47 of the Offences Against the Person Act 1861 by s. 31 of the Non-Fatal Offences Against the Person Act 1997 and the schedule to that Act, I am satisfied that the provisions of the Interpretation Act 1937 and, in particular, the provisions of s. 21(2) of that Act which provide ( inter alia ) . . .
. . .


enable the continuance of the prosecution of the applicant for the offence of assault contrary to s. 47 of the Offences Against the Person Act 1861 alleged in the said summons of 12 September 1997.”


82. In relation to the Interpretation (Amendment) Act, 1997, as a saving for the common law offence of assault, the learned trial judge held that it was repugnant to the Constitution because:

“(a) Section 1(4) purports to permit judges of the District Court to determine its constitutionality contrary to the provisions of Article 34.3.2 ° of Bunreacht na hÉireann,

(b) Section 1(4) purports to divest the authority of the legislature in favour of the courts contrary to the provisions of Article 15.2.1 ° and 2 ° of Bunreacht na hÉireann.

(c) Section 1(4) purports to permit inequality before the law for citizens of the State contrary to the provisions of Article 40(1) of Bunreacht na hÉireann and

(d) The Act, generally, purports to permit interference in a judicial process in being.

In the light of the foregoing, I am persuaded that the charges of common assault alleged against the applicant in the said summonses dated 11 of September 1997 can no longer be prosecuted. However, as I have already indicated, I am equally satisfied that the provisions of s. 21 of the Interpretation Act 1937 enable the continuance of the prosecution of the applicant for the offence of assault contrary to s. 47 of the Offences Against the Person Act 1861 alleged in the said summons of 12 September 1997. Nevertheless, in that regard, I cannot ignore the very persuasive and able submissions by junior counsel for the applicant, Mr. Comerford, with regard to the jurisdiction of the courts to enforce legislation which has been repealed and the several authorities to which he referred in support of the proposition that no such jurisdiction exists. While I would reject the submissions by counsel for the respondents that the authorities cited by Mr. Comerford are a relic of a bygone era and have no relevance today, I think that, in the context of this case, their relevance has been nullified by the saving provisions with regard to the prosecution of statutory offences which have been repealed which are contained in the Interpretation Act 1937. If it were not for those saving provisions, I think that there is considerable substance to the argument, based on the authorities to which Mr. Comerford referred, that the courts cannot enforce legislation which has been repealed.”




6. Appeals in Grealis Case

83. The respondents appealed against so much of the judgment as held that the charges of common assault alleged against the first applicant in the summonses dated 11th day of September, 1997 can no longer be prosecuted; and so much of the judgment as held that s.1 of the Interpretation (Amendment) Act, 1997 purported to create new law and that the said provision of the Interpretation (Amendment) Act, 1997 is repugnant to the Constitution. The respondents appealed also against the decision prohibiting the further prosecution of the offences of common assault alleged against the first applicant and the declaration that s.1 of the Interpretation (Amendment) Act, 1997 was repugnant to the Constitution.


84. The first applicant appealed against the judgment also and in particular from: (i) the determination that an offence described as the offence of assault occasioning actual bodily harm contrary to s. 47 of the Offences Against the Person Act, 1861 does not come within the terms of s. 28(1) of the Non-Fatal Offences Against the Person Act, 1997; and (ii) the determination that s. 21 of the Interpretation Act, 1937 applies in respect of the abolition of the offence described as the offence of assault occasioning actual bodily harm contrary to

s. 47 of the Offences Against the Person Act, 1861.

7. Submissions in Grealis Case

85. Mr. Gerard Hogan, S.C., counsel for the respondents, presented full oral and written submissions. The conclusions therefrom included the following submissions:


A. Section 47 of the Offences Against the Person Act, 1861 is a statutory offence
and, accordingly, its repeal is governed by the provisions of s. 21(1) of
the Interpretation Act, 1937.

86. B. In the absence of the appropriate transitional provisions in the Non-Fatal Offences Against the Person Act, 1997, the duty of the courts is to draw the appropriate inferences regarding the intention of the Oireachtas.


87. C. Having regard to the provisions of Article 15.5 and Article 40.3.2. of the

88. Constitution, it is in the highest degree improbable that the Oireachtas

intended to create a form of immunity in respect of offences committed prior
to the coming into force of s. 28 of the Non-Fatal Offences Against the Person Act, 1997. Instead, the appropriate inference is that the Act was intended to have prospective application only and not to affect in any way the prosecution of offences committed prior to August, 1997.

89. D. In these circumstances, it is not necessary to place any reliance on the

provisions of the Interpretation (Amendment) Act, 1997. In any event,
s. 1 of that Act does no more than codify in legislative form standard
common law principles regarding the effect of a repeal.

E. Section 1(3) does not purport to interfere with pending litigation in the manner
envisaged in Buckley and Others (Sinn Féin) v. Attorney General and
Another [1950] I.R. 67.

F. Section 1(4) is no more than a standard validation section which does not
purport to give District Judges the power to determine the validity of an Act
of the Oireachtas. Nor does s.1(4) vest the courts with legislative powers
or give them the power to act in a manner contrary to Article 40.1. In these
circumstances, the finding of unconstitutionality made by O’Donovan J.
should be set aside.

90. Mr. Michael Counihan, S.C., counsel for the first applicant, also presented full oral and written submissions. His concluding submissions were:-

(a) All of the offences charged upon the challenged summonses are common law offences.

(b) The effect of the abolition of the offences, in the absence of statutory provision to the contrary, is that no new proceedings can be commenced on foot of the abolished offences.

(c) Any operation of the Interpretation (Amendment) Act, 1997 to retrospectively apply a transitional provision is ineffective and the Act is unconstitutional.



8. Decision in Grealis
(a) Assault Summonses

91. The offence alleged on the summonses dated the 11th September, 1997 is a common law offence. Assault and battery are common law offences to which statutory penalties have been added. Reference to a particular section of the Offences Against the Person Act, 1861 may indicate jurisdiction and/or penalty.


Sections 36 to 47 of the Offences Against the Person Act, 1861 follow the heading “Assaults”. Several sections relate to assaults upon specific persons. Thus, s. 36 relates to assaulting a clergyman, s. 37 relates to assaulting a magistrate, and s. 40 relates to assaulting a seaman. Particular social issues are reflected: s. 39 relates to assaults with intent to obstruct the sale of grain and s. 41 relates to assaults arising from any unlawful combination or conspiracy to raise the rate of wages. Sections 36 to 47 of the Offences Against the Person Act, 1861 set out statutory penalties for common law offences of assault. Thus, e.g., if a seaman was assaulted the penalty is stated in s. 40:

“Whosoever shall unlawfully and with Force hinder or prevent any Seaman, Keelman, or Caster from working at or exercising his lawful Trade, Business, or Occupation, or shall beat or use any Violence to any such Person with Intent to hinder or prevent him from working at or exercising the same, shall, on Conviction thereof before Two Justices of the Peace, be liable to be imprisoned and kept to Hard Labour in the Common Gaol or House of Correction for any Term not exceeding Three Months: Provided that no Person who shall be punished for any such Offence by reason of this Section shall be punished for the same Offence by virtue of any other Law whatsoever.”


92. The social policy behind an assault arising from combinations echoes its time, prior to the development of modern trade union law. Thus s. 41 stated:-


“Whosoever, in pursuance of any unlawful Combination or Conspiracy to raise the Rate of Wages, or of any unlawful Combination or Conspiracy respecting any Trade, Business, or Manufacture, or respecting any Person concerned or employed therein, shall unlawfully assault any Person, shall be guilty of a Misdemeanour, and being convicted thereof shall be liable, at the Discretion of the Court, to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour.”


93. These sections provide procedures and penalties in relation to a variety of assaults at common law.


94. The single nature of the offence of assault was described by Edward Griew “Common Assault and the Statute Book”, [1983] Crim. L.R. 710 at p. 711 as:


“One offence

The definition of common assault does not depend on whether the assault in question is complained of “by or on behalf of the party aggrieved,” or on what court is trying the matter. Common assault is one and the same offence whether punishable under section 42 or section 47 of the 1861 Act.”

And at p. 713:

“The truth that sections 42, 43 and 47 provide different means of dealing with a single offence seems to become increasingly lost sight of during the twentieth century.”

95. The report of the Law Reform Commission ( Report on Non-Fatal Offences Against the Person, LRC-45, 1994) stated that assault and battery are common law crimes with penalties added by statute: see paragraph 1.26. It was recommended that the offences of assault and battery at common law be abolished and replaced by a statutory offence of assault.


96. The words of the statute are plain and unambiguous. The relevant words of the Non-Fatal Offences Against the Person Act, 1997 are to be found in s. 28(1):

“The following common law offences are hereby abolished -
(a) assault and battery,
. . . ”

97. The general principles on the interpretation of statutes were stated in Howard v. Commissioners of Public Works [1994] 1 I.R. 101. In that case at p. 151 of the report

98. Blayney J. stated:


“. . . the interpretation of the Act has to be approached in the light of the general principles to be applied in the interpretation of statutes.
‘The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law giver. “The tribunal that has to construe an Act of a legislature, or indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these words it is natural to enquire what is the subject matter with respect to which they are used and the object in view.” [ per Lord Blackburn in Direct United States Cable Co. v. Anglo American Telegraph Co . (1877) 2 App. Cas. 394].’ Craies on Statute Law (1971) (7th ed., 1971) at p. 65.”


Howard held that the words used in a statute best declare the intent of the Act and statutes should be construed according to the intention expressed in the legislation. I adopt this classic approach in construing the Act of 1997. Taking that approach, I am satisfied that the words of s. 28(1) of the Non-Fatal Offences Against the Person Act, 1997 are clear. The meaning is plain. There is no ambiguity. The offences of assault and battery are classified as a common law offences and are abolished. The words took effect from 19th August, 1997.

99. The alleged offence took place on 4th May, 1997. On 19th August, 1997 the provisions of the Non-Fatal Offences Against the Person Act, 1997 came into effect. The common law offences of assault and battery were abolished by s. 28(1). There are no transitional provisions in the Non-Fatal Offences Against the Person Act, 1997.


100. I would uphold the learned trial judge’s determination that on 19th day of August, 1997 there were no saving provisions in respect of the common law offences abolished by section 28(1) of the Non-Fatal Offences Against the Person Act, 1997 and, in particular, there were no saving provisions in respect of the offence of assault alleged against the first applicant.


101. As there were no transitional provisions enacted in the Act of 1997, no proceedings could be instituted after 19th August, 1997. This follows fundamental principle, long settled even when it was repeated clearly in 1809 by Marshall J. in Yeaton v. The United States 9 U.S.

(5 Cranch) 281 (1809) at p 283.

“. . . it has been long settled, on general principles, that after the expiration or repeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force, unless some special provision be made for that purpose by statute.”



102. This common law rule was restated in R v. Swan 4 Cox C.C. 108 (1849) by Rolf B.:

“I think it perfectly clear that, when a statute is repealed simpliciter, you cannot afterwards proceed against a person for anything done under it. I desired to have handed up to me Sir Robert Peel’s Acts, and I find a vast number of statutes, constituting certain offences, were by them ( sic) repealed, and new acts substituted; in all of them I see that the acts are repealed from a certain day except as to offences committed before the repeal, and which are to be dealt with as though the repeal had not taken place. I presume that was only done because the Legislature thought such a provision necessary. . . . Some of those offences were capital ones by the old law, but the punishment of death was repealed . . . if the principle now contended for had been upheld, a man might have been hanged at a time when a statute was in force which declared that such a punishment should not be awarded. It might be by mistake that the new act did not contain such a provision as I have mentioned, but it very positively repeals all that has gone before, and it is much safer to adhere to what the Legislature enacts than to speculate on what it intended. The defendant must be acquitted.”


103. This is an antique common law rule. The principle is compatible with the constitutional requirement of due process. Further, it is necessary under the separation of powers as the sole and exclusive power of making laws is given to the legislature. The common law rule was amended in relation to statutory offences in the Interpretation Act, 1937. No such amendment was made in relation to common law offences. The offence at common law of assault ceased to exist on 19th August, 1997. Consequently, there was no common law offence of assault when the summonses were issued. Nor were there any transitionary statutory provisions.


104. For the above reasons I am satisfied that: (a) assault is a common law offence; (b) it was expressly so provided in the Non-Fatal Offences Against the Person Act, 1997; (c) the common law offence was abolished by the Non-Fatal Offences Against the Person Act, 1997; (d) the common law offence of assault ceased to exist as of 19th August, 1997;

(e) proceedings in the cases in issue were not pending when the Act came into effect, so this issue does not arise; (f) there was no express transitional provision in the Non-Fatal Offences Against the Person Act, 1997 providing for proceedings after the offence was abolished;
(g) there are no words in the Non-Fatal Offences Against the Person Act, 1997 from which an intent to establish a transitional provision could be inferred; (h) it is not appropriate to seek or make a determination that if the Oireachtas had thought about it they would have introduced transitional provisions providing for the time of transition as the functions of the three organs of government are separate and one should not interfere with another; (i) the common law relating to times of transition is that relevant to statutes prior to the enactment of the Interpretation Act, 1937 and was described (albeit in relation to statutes) by Rolf B. in
R. v. Swan 4 Cox C.C. 108 (1849); (j) in the circumstances there was no common law offence of assault after 19th August, 1997 nor were there any transitional provisions in the Non-Fatal Offences Against the Person Act, 1997 or any other statute at that time; (k) it is a fundamental tenet of law, which is consistent with the Constitution of Ireland, 1937, that after the expiration of a law no penalty or punishment should be inflicted for a violation of that law (committed while it was in force) unless special provision is made by statute; (l) retrospective offences are, in general, anathema to the rule of law and due process.

105. It was submitted that the Interpretation (Amendment) Act, 1997 was effective to enable such proceedings. I will address this issue later in the judgment. Subject to analysis of the Interpretation (Amendment) Act, 1997, the respondents have no entitlement in law to proceed to prosecute the first applicant on foot of the two summonses alleging assault contrary to common law.


(b) Summons alleging assault occasioning actual bodily harm.

106. The first applicant was served with a summons dated 12th September, 1997 alleging that on the 11th May, 1997 he did unlawfully assault one Christopher McGinty thereby occasioning him actual bodily harm. It was stated to be contrary to s. 47 of the Offences Against the Person Act, 1861.


107. I am satisfied that this too is a common law offence. I arrive at this decision for a number of reasons.


108. First, it is described as a common law offence in the Non-Fatal Offences Against the Persons Act, 1997. The words are:

“28.- (1) The following common law offences are hereby abolished -
. . .
(b) assault occasioning actual bodily harm,
. . . ”

109. The words are clear and unambiguous.


110. Secondly, it was a common law offence of assault with penalties provided by statute. I reiterate the reasons, previously stated, in relation to the one offence at common law of assault and the provisions of ss. 36 to 47 of the Offences Against the Person Act, 1861 which related to penalties and matters of jurisdiction.


111. Thirdly, in the High Court reliance was placed upon the judgment of the Supreme Court in The State (O) v. O’Brien [1971] I.R. 42. The High Court considered that it was bound by that decision. However, I am satisfied that the case should be distinguished.


In The State v. O’Brien [1971] I.R. 42 the issue was whether an offence was an indictable offence. The court had to assess whether the offence in issue was indictable. Section 207,
sub-s. 1, of the Mental Treatment Act, 1945 enabled a District Justice to sit in a district mental hospital and to certify that a person who is detained in that hospital is suitable for transfer to the Central Mental Hospital, provided that such person is charged with an indictable offence and that there is evidence which, in the opinion of the Justice, constitutes prima facie evidence that such person has committed the offence and that he would be unfit to plead if placed on trial. While he was being detained in a district mental hospital, the prosecutor was charged with having assaulted a doctor, thereby occasioning him actual bodily harm. The statement of complaint against the prosecutor concluded with the words ‘contrary to s.47 Offences Against the Person Act, 1861, as amended by Criminal Justice Act, 1951.’ Having heard evidence the District Justice determined that the prosecutor had committed the offence charged and that he would be unfit to plead if put on trial. The prosecutor brought habeas corpus proceedings in the High Court unsuccessfully and appealed. The Supreme Court disallowed the appeal holding, inter alia, that the offence of “assault occasioning actual bodily harm” was an indictable offence and that it had been stated correctly in the complaint as being contrary to s. 47 of the Act of 1861, and that the reference to the Act of 1951 could be disregarded as surplusage. In giving his judgment O’Dalaigh C.J., with whom Walsh J. and Fitzgerald J. agreed, stated at p. 47 of the report:

“Assault is a common-law misdemeanour and, as such, is triable on indictment. The punishment on conviction upon an indictment for a common assault is imprisonment for any term not exceeding one year, with or without hard labour: see s. 47 of the Offences Against the Person Act, 1861. The same section, as originally enacted, also provided that 'Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable, at the discretion of the court, to be kept in penal servitude for the term of three years, or to be imprisoned for any term not exceeding two years, with or without hard labour.’ Section 1 of the Penal Servitude Act, 1891, has had the effect, in the case of penal servitude, of amending s. 47 of the Act of 1861 by providing for a maximum sentence of 5 years and a minimum of three years. Since 1951 assault occasioning actual bodily harm may also be tried summarily: see s. 2 and item 5 of the first schedule of the Criminal Justice Act, 1951. However, the conditions stated in s. 2 of the Act of 1951 must be satisfied. In brief, these are that the District Court is of opinion that the facts proved or alleged constitute a minor offence, and that the accused, having been informed of his right to trial by jury, does not object to being tried summarily.”


112. In this passage O’Dalaigh C.J., having traced out the common law nature of the offence of assault, analyses the offence from the point of view of the issue in the case i.e. as to whether it was an indictable offence. He distinguishes the procedure under the Act of 1951 and describes how it may be an indictable offence. He then analyses the nature of the offence. In this analysis there is a discourse as to whether the offence is a common law or a statutory offence. This discussion is obiter dictum. It is not essential to the decision in the case. Even within the judgment different approaches are referred to. Thus at pp. 50-51 the learned Chief Justice states:


“The prosecutor’s second challenge to the validity of the District Justice’s order is that the offence (assault, occasioning actual bodily harm) is charged ‘contrary to section 47 of the Offences Against the Person Act, 1861, as amended by the Criminal Justice Act, 1951.’ The relevant portions of these two statutes have already been quoted. Section 47 is, it was submitted, merely a punishment section and, as we have seen, the only relevance of the Act of 1951 is that “assault occasioning actual bodily harm” is a scheduled offence under the Act and, therefore, capable of being tried summarily.

In my judgment the validity of the Justice’s certificate is unaffected by the reference to these two statutes. The offence charged was ‘assault occasioning actual bodily harm.’ This is an indictable offence. The patient, as s. 207 of the Act of 1945 requires, is shown to have been charged with an indictable offence. The addition of the words ‘contrary etc.’ do not alter the position that the offence is clearly stated and is indictable. The reference to the Act of 1951 had the effect of calling attention to the fact that the charge can now be disposed of summarily: it is mere surplusage. The need for reference to s. 47 of the Act of 1861 cannot be as readily disposed of. The section does advert to sentence. Therefore, it conveys useful information to the defendant - though attention might usefully have also been called to the amendment effected by the Penal Servitude Act, 1891. But does s. 47 do more than refer to sentence? Archbold’s Practice in Criminal Cases, 26th ed. (1922), deals with the offence as a statutory offence. There, at p. 929, the statement of offence is ‘assault, contrary to section 47 of the Offences Against the Person Act, 1861.’ The 36th edition (1966), on the other hand, at p. 978, para. 2637, treats it as a common-law offence, and the statement of offence is simply “assault occasioning actual bodily harm.” But is this correct? Where, prior to the enactment of the Act of 1861, do we find any evidence of the existence of such an offence? Common assault, yes; but not ‘assault occasioning actual bodily harm.’ The latter offence is the common-law offence with the addition of aggravating circumstances. I would describe the offence so created as a hybrid offence and, as a choice has to be made between stating the offence as a common-law offence (i.e., without adding the words ‘contrary to s. 47 of the Offences Against the Person Act, 1861’) or as a statutory offence simply ( i.e., with the said addition), I consider that the view of the editor of the 1922 edition is preferable. The hybrid offence is a kind of statutory offence; it is not a common-law offence. If it is to be assimilated into a category, then in my opinion it falls to be identified as a statutory offence. Therefore, I think it was proper to invoke the statute. In any event, it has to be borne in mind that we are not examining a conviction but are enquiring if an offence is charged and, if so, whether it is an indictable offence. I have no difficulty in answering both queries affirmatively. The prosecutor’s second ground fails.”


113. This analysis of the offence as a statutory offence is obiter dictum in a case where the ratio decidendi was that the offence was indictable. Thus, in essence the case was about an issue of jurisdiction. Sections of the Offences Against the Person Act, 1861, including s. 47, related to jurisdiction and penalties for the one offence, at common law, of assault.


114. Other case law confirms this approach. In Doolan v. Director of Public Prosecutions [1992]

2 I.R. 399, O’Hanlon J. stated at pp. 403-4:
“The offences of assault and battery certainly formed part of the common law from earliest times. In Blackstone’s Commentaries on the Laws of England (4th Book) (Ch. 15) dealing with offences against the person, the learned author at
p. 216 observes as follows:-

‘The inferior offences, or misdemeanours, that fall under this head, are assaults, batteries, wounding, false imprisonment, and kidnapping.
. . . With regard to the nature of the three first of these offences in general, . . . taken in a public light, as a breach of the king’s peace, an affront to his government, and a damage done to his subjects, they are also indictable and punishable with fines and imprisonment; or with other ignominious corporal penalties, where they are committed with any very atrocious design.’

115. Assault, in the strict sense, merely involved the threat to inflict unlawful force, however slight, on another person - making some movement which caused the other person to believe that such unlawful physical contact was imminent. A battery consists in the actual application of unlawful force; but the word ‘assault’ has been quite commonly used to include what should, more strictly, be called a ‘battery’.


116. As assaults, in the wider meaning of the term, can range from the almost imperceptible use of physical force, such as laying one’s hand on the arm of another in a hostile manner, to assault causing grievous bodily harm, it was though right to regulate by statute the penalties that could be imposed for different circumstances of assault, so that they could be seen to be proportionate to the seriousness of the offence.


117. It appears that what was involved, save in cases where new felonies or misdemeanours were created by statute, was the old common law misdemeanour of assault, (including in appropriate circumstances the features both of assault and battery, or of battery alone), with a statutory regulation of the penalties which could be imposed having regard to the nature of the assault which had taken place.


118. For this reason I find no fault with the course taken by the draftsmen of the Act of 1861, or of subsequent legislation dealing with the same topic, who did not consider it necessary in all cases to create new offences by statute in express terms, but merely spelt out the range of penalties applicable having regard to the circumstances surrounding the application of unlawful force by one person to another.”


119. This is an analysis which I adopt. Applying the analysis to this case, the offence in issue

is a common law offence for which there are specific penalties, having regard to the circumstances of the unlawful force applied by one person to another.

120. The Supreme Court analysed also the offence of indecent assault and its origins in Director of Public Prosecutions v. E.F. (Unreported, Supreme Court, 24th February, 1994). That case was a case stated from the Circuit Court where counsel for an accused man sought to quash the indictment on the ground, inter alia , that the offence alleged on the indictment, indecent assault, was no longer known to law by virtue of the provisions of the Criminal Law (Rape) (Amendment) Act, 1990.


Egan J. stated:
“The offence of ‘indecent assault’ was never created by any statute although punishments for the offence have from time to time been laid down by various statutes. The only reference to indecent assault upon a female in the Offences Against the Person Act, 1861 is contained in s. 52 thereof which provided as follows:-

‘Whosoever shall be convicted of any indecent assault upon any female, or of any attempt to have carnal knowledge of any girl under twelve years of age, shall be liable at the discretion of the Court, to be imprisoned for any term not exceeding two years, with or without hard labour.’

121. This section was repealed by s. 6 of the Criminal Law (Amendment) Act, 1935 which provided that:-


‘Whosoever shall be convicted of any indecent assault upon any female shall be liable, in the case of a first conviction of any such offence, to imprisonment for any term not exceeding two years, and in the case of a second or any subsequent conviction of any such offence, to penal servitude for any term not exceeding five years nor less than three years or imprisonment for any term not exceeding two years.’

122. Another reference to indecent assault in this Act is contained in s. 14 which provided that it would not be a defence to a charge of indecent assault upon a person under the age of fifteen years to prove that such person consented to the act alleged to constitute such indecent assault. S. 15 made provision in certain circumstances for the summary trial of offences of indecent assault.


123. S. 6 of the 1935 Act was repealed by s. 10(2) of the Criminal Law (Rape) Act, 1981 which provides in s. 10(1) that ‘if a person is convicted on indictment of any indecent assault upon a female he shall be liable to imprisonment for a term not exceeding ten years.’


S. 10 of the 1981 Act was repealed by the Criminal Law (Rape) (Amendment) Act, 1990 which came into operation on the 21st January, 1991 and which provides in s. 2 as follows:-

2 (1) The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault.

(2) A person guilty of sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding five years.

(3) Sexual assault shall be a felony.

124. It is clear from the foregoing that the offence of indecent assault remains but as and from the 21st January, 1991 it became known as sexual assault. It still remains a common law offence for which punishment is provided by statute. In regard to indecent assaults which occurred prior to the 21st January, 1991 I see no possible objection to them being referred to in indictments as ‘indecent assaults’. An indictment in this regard should refer to the offence as ‘indecent assault contrary to common law’ and while there is no necessity to include the words ‘and as provided for by s. 10 of the Criminal Law (Rape) Act, 1981’, it might be helpful as pointing out where the punishment provision is to be found.”


125. I am satisfied, for the reasons stated, that the offence of assault occasioning actual bodily harm is the offence of assault for which the penalty is to be found in statute. The offence of assault occasioning actual bodily harm is the common law offence of assault, with a particular statutory penalty proportionate to the offence.


126. Consequently, for the reasons stated above, and previously in relation to the other summonses alleging assault, subject to analysis of the Interpretation (Amendment) Act, 1997, the respondents have no entitlement in law to proceed to prosecute the first applicant on foot of the summons alleging assault occasioning actual bodily harm.



(c) The Interpretation (Amendment) Act, 1997

127. The Interpretation (Amendment) Act, 1997 came into law on 4th November, 1997. It is an act to amend and extend the Interpretation Acts, 1937 and 1993. It applies to offences at common law and provides transitional arrangements where an offence has been abolished. Section 1(1) relates to a situation where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law. It provides inter alia that unless the contrary intention appears, such abolition shall not prejudice any proceedings pending at the time of such abolition.


In Quinlivan v. Governor of Portlaoise Prison [1998] 2 IR 113 the case in issue had been pending when the Non-Fatal Offences Against the Person Act, 1997 was passed. The State did not seek to rely upon the Interpretation (Amendment) Act, 1997 in that case.

In Mullins v. Harnett [1998] 4 IR 426 the charge was one of common assault which was pending at the time of the abolition of the offence by the Non-Fatal Offences Against the Person Act, 1997. The State did not rely upon the Interpretation (Amendment) Act, 1997.

128. In this case the proceedings were commenced after the abolition of the offence by the Non-Fatal Offences Against the Person Act, 1997 and prior to the commencement of the Interpretation (Amendment) Act, 1997. There being no transitional arrangements in the Non-Fatal Offences Against the Person Act, 1997, the query then is whether the prosecutions may be saved by the Interpretation (Amendment) Act, 1997.


129. It is a fundamental principle that the legislature should not interfere with proceedings: Buckley and Others (Sinn Féin) v. Attorney General and Another [1950] I.R. 67. There is a presumption that an act is not intended by the legislature to have a retrospective effect: Hamilton v. Hamilton [1982] I.R. 466.


Sections 1 and 2 of the Interpretation (Amendment) Act, 1997 provide for transitional arrangements to enable the operation of the law in relation to offences which have been abolished. It places common law offences which have been abolished in a similar position to statutory offences which have been abolished.

Section 1(3) provides that the section applies to an offence which is an offence at common law abolished, abrogated or otherwise repealed before or after the passing of the Act. Section 1(1) creates new law for offences at common law, i.e., it changes the common law and makes the law relating to offences at common law which have been abolished similar to that of statutory offences under the Interpretation Act, 1937. Thus, it specifically states that it has a retrospective effect.

Section 1(4) provides:
“If, because of any or all of its provisions, this section would, but for the provisions of this subsection, conflict with the constitutional rights of any person, the provisions of this section shall be subject to such limitations as are necessary to secure that they do not so conflict, but shall otherwise be of full force and effect.”

130. The wording in s. 1(4) of the Interpretation (Amendment) Act, 1997 is similar to s. 1(3) of Courts (No. 2) Act, 1988 which stated:

“If, because of any validation expressed to be effected by (subsection 2) of this section, that subsection would, but for this subsection, conflict with a constitutional right of any person, the validation shall be subject to such limitation as is necessary to secure that it does not so conflict but shall be otherwise of full force and effect.”

131. Of that section Blayney J. held, in Shelly v. District Justice Mahon [1990] 1 I.R. 36 at


pp. 40-41:

“It seems to me that sub-s. (3) of s. 1 of the Act of 1988 envisages that the matters validated by sub-s. (2)(a) would fall into two distinct categories, firstly, those the validation of which would not conflict with the constitutional rights of any person, and secondly, those the validation of which would so conflict. And the sub-section provides that in regard to the second category the validation effected by sub-s. (2)(a) ‘shall be subject to such limitation as is necessary to secure that it does not’ conflict with the constitutional rights of any person.
What is purported to be validated in the present case comes in my opinion within the second category I have just referred to. It is something the validation of which would conflict with the applicant’s constitutional rights”.


132. The order of the High Court was upheld by the Supreme Court. Of sub-s. (3) Griffin J. stated at p. 48 of the report:


“In my opinion, the construction of sub-ss. 2 and 3 is clear and the intention of the Oireachtas, as expressed in the words used, is also clear. Sub-section 2(a) is a blanket provision designed to cover every order made by the respondent subsequent to the date of his retirement on the 4th January, 1984. It is however obvious that if that sub-section stood alone it would be bound to trench on constitutional rights of at least some of the persons against whom such orders were made, in which event Article 15, s. 4 of the Constitution would have been breached and the sub-section would be invalid. The Oireachtas was, however, alive to this danger and subs-s. 3 was accordingly enacted for the purpose of qualifying sub-section 2(a). The effect of sub-s. 3 is that if any expressed validation conflicts with a constitutional right of any person ‘the validation shall be subject to such limitation as is necessary to secure that it does not so conflict.’ In other words, if the purported validation conflicts with a constitutional right of any person, it will be ineffective to such an extent as is necessary to ensure that it does not conflict with that right.”


133. I would interpret s. 1(4) of the Interpretation (Amendment) Act, 1997 in a similar manner.


Section 1(4) enables a court - a court of any jurisdiction - to protect the constitutional rights of an individual. The District Court remains at all times a court which must protect the individual constitutional rights of the person: Coughlan v. District Justice Patwell [1993]
1 I.R. 31. Such powers are not similar to the powers of the High and Supreme Court to determine the validity of a statute. Questions of the validity of any law having regard to the provisions of the Constitution are limited to the High Court and the Supreme Court by Article 34.3.2. of the Constitution of Ireland. However, the duty to protect the constitutional rights of the individual lies with all judges, including the District Judge.

134. Section 1 sub-ss. (1), (2) and (3) are blanket provisions covering prosecutions of prior common law offences. Section 1(4) protects individuals from the said law infringing their constitutional rights. Whether it is a sound method of drafting statutes or not, it is the method chosen by the legislature. Thus, the relevant court has a duty under s. 1(4) of the Interpretation (Amendment) Act, 1997 to determine whether the operation of s. 1 sub-s. (1), (2) or (3) conflicts with the constitutional rights of the individual before the court.


135. Before the summonses were issued in this case the offences were abolished under the Non-Fatal Offences Against the Person Act, 1997. The actions were an offence when they took place. However, after the offence was abolished by an Act which did not provide for any transitional arrangements, the first applicant was in a situation where he was not liable for his actions as being an offence. This situation continued until the purported change in the law effected by the Interpretation (Amendment) Act, 1997 on 4th November, 1997. That Act purported to retrospectively introduce law so as to reintroduce liability for the actions of the first applicant.


Section 1(4) of the Interpretation (Amendment) Act, 1997 protects the rights of the first applicant. A purported validation retrospectively of the law may be a breach of the Constitution. An application retrospectively of s. 1 of the Interpretation (Amendment) Act, 1997 would conflict with the first applicant’s constitutional right to be tried for an offence at law, in due process of law, in circumstances where the actions had ceased to be an offence and so remained at the time of the issuing of the summonses. A vacuum was created at which time the actions were no longer an offence under the law. A lacuna was left by the legislature. Any prosecution of the first applicant after the abolition of the offence and prior to the coming into effect of the Interpretation (Amendment) Act, 1997 was a nullity. A purported validation retrospectively of the new law would be a breach of the rule of law, due process and fundamental constitutional principles. The general validation would not apply to criminal proceedings such as these issued against the first applicant. Consequently, the respondents may not rely on s. 1 of the Interpretation (Amendment) Act, 1997. It is an Act which, in accordance with constitutional principles, applies prospectively.

9. Corbett Case

136. As the issues in this case were similar to those in Grealis the two cases were heard together. The applicant, Emmett Corbett, is hereinafter referred to as the second applicant. Full oral and written submissions on behalf of the second applicant were made by Mr. John P.M. White, S.C., Mr. Patrick T. Horgan, S.C. and Mrs. Barbara Seligman, B.L.. The Director of Public Prosecutions, represented by Mr. Maurice Gaffney, S.C. and Mr. Diarmuid Rossa Phelan, B.L., also submitted oral and written submissions.


137. The second applicant has appealed against a decision of the High Court given on 7th December, 1999. The basic facts were set out by McGuinness J. thus:

“In these Judicial Review proceedings the Applicant seeks an Order of Prohibition preventing the Respondent from taking any further steps in the prosecution of the Applicant before the District Court. The Applicant is charged with assault contrary to common law and Section 42 of the Offences Against the Person Act, 1861 as amended by Section 10 of the Criminal Justice (Public Order) Act, 1994. He asserts that he is not guilty of the alleged offence.

The prosecution arises out of an incident which is alleged to have taken place on the 3rd February, 1997, and is brought on foot of a summons issued on 24th June, 1997 and signed by Desmond Relihan, the Appropriate District Court Clerk for the Court Area of Cork City. The summons was served in August, 1997 and was returnable before the District Court on 1st September, 1997. On that date it was adjourned to the 11th November, 1997.”

138. The grounds upon which the second applicant seeks an order of prohibition, as permitted by the High Court (Barr J.) on 10th November, 1997, and as before this court, are:


“The continuance of the said prosecution is not, and was not, in accordance with law after the abolition of the said offence on 19th day of August, 1997, and was, and is, in violation of the Rule of Law and contrary to Article 34.1, Article 35.2, Article 38, Article 40.1 and Article 40.3 of the Constitution and contrary to Articles 5, 6, 13, 14 and 17 of the European Convention on Human Rights and Fundamental Freedoms and Article 3 of the Statute of the Council of Europe;
and ... ”


139. The application was refused by the High Court on 7th December, 1999. McGuinness J. held that the prosecution of the second applicant would fall within the terms of s. 1(1)(c) and/or

s. 1(2) of the Interpretation Act, 1997 since the Non-Fatal Offences Against the Person Act, 1997 expresses no “contrary intention”. The learned trial judge stated:

“I accept the submission of Mr. McDonagh that retrospective legislation is not in itself repugnant to the Constitution, provided that it does not contravene the terms of Article 15.5 by declaring an act to be an infringement of the law which was not so at the date of its commission. I also accept that the offence alleged against the Applicant - common assault - was indeed ‘ an infringement of the law’ at the date of its alleged commission.

140. Other examples of retrospective, or validating, legislation include the Garda Siochana Act, 1979, the Local Government (Planning and Development) Act, 1982, Section 6, and to a more limited extent, the Mental Treatment (Detention in

141. Approved Institutions) Act, 1961. An even more striking example is the Marriages Act, 1972 which retrospectively validated marriages previously performed outside the jurisdiction in Lourdes, France.”



142. The High Court (McGuinness J.) referred to Shelly v. District Justice Mahon [1990] 1 I.R.


41and held:

“In the instant case, as I have previously set out, there is no question of unconstitutional retrospection under Article 15.5, and there is no breach of the Applicant’s right to equality before the law. There is nothing whatever to suggest that he will not receive a fair trial in the District Court. On the evidence before me, there is no reason to believe that any conflict with the constitutional rights of the Applicant will arise through the trial of the Applicant in regard to the alleged offence in the District Court. However, should such conflict arise, it is fully open to the trial judge in the District Court to take such steps as he or she considers proper.”


143. The second applicant was summonsed on 6th August, 1997 in the following terms:


“WHEREAS on the 6th day of August, 1997 an application was made to this office by (Garda P. Flynn on behalf of) the above-named Prosecutor for the issue of a summons to you, the above-named Accused, alleging that you, on the 3rd day of February, 1997, at William Street, Cork, within the Court Area and District aforesaid, did assault one Brian Cashman, contrary to common law and Section 42 of the Offences Against the Person Act, 1861 as amended by Section 10 Criminal Justice (Public Order) Act, 1994.

THIS IS TO NOTIFY YOU that you will be accused of the said offence(s) at a sitting of the District Court to be held at Court No. 1, Courthouse, Anglesea Street, Cork on the 1st day of September, 1997 at 10.30 a.m. AND TO REQUIRE YOU to appear at the said sitting to answer the said accusation(s).”


144. At the time of the actions alleged the common law offence of assault was extant. At the time the summons was issued it continued to be in existence. However, from 19th August, 1997 it was abolished. As of the 1st September when the second applicant was to be accused the alleged actions were no longer an offence. The Non-Fatal Offences Against the Person Act, 1997 had no saving provision for transitory arrangements permitting the prosecution of persons alleged to have committed abolished offences. The court did not have seisin of the case on 19th August, 1997.


145. For the reasons stated previously I am satisfied that the Interpretation (Amendment) Act, 1997 acts prospectively and thus has no application to the second applicant’s case. It does not save the prosecution retrospectively. Consequently, the applicable law is the Non-Fatal Offences Against the Person Act, 1997. As the offence was abolished under that Act the prosecution for the (abolished) offence may not proceed.

146. Counsel for the second applicant submitted also that the Director of Public Prosecutions was bound by the concessions made by counsel on behalf of the Director in The People v. Kavanagh (Unreported, Special Criminal Court, Barr J., 29th October, 1997). In this he was in error. The fact that the Director in one case, through counsel, takes a particular approach does not estop a different submission in another case. Law is a growing body and encompasses change and development. Indeed, in each of these two cases counsel on behalf of the State in each did not present identical arguments on all issues.


Conclusion
  1. Common law offences abolished by the Act of 1997 ceased to exist and no proceedings in relation to such actions may be prosecuted in the absence of transitional arrangements.
  2. For the reasons stated, the Interpretation (Amendment) Act, 1997 applies prospectively.
  3. In Grealis, for the reasons stated, I would allow the appeal of the Attorney General against the finding that the Interpretation (Amendment) Act ,1997 was unconstitutional, subject to the determination that the Act applies prospectively. I would dismiss the appeal of the Director of Public Prosecutions against the order of the High Court granting prohibition of the prosecutions for assault. In relation to the offence alleging assault occasioning actual bodily harm, I would allow the appeal of the first applicant and order that the prosecution on foot of the third summons be prohibited.
  4. In relation to Corbett, I would allow the appeal of the second applicant, who is entitled to an order prohibiting the prosecution.


THE SUPREME COURT
Keane C.J. 257 & 262/99
Denham J.
Murphy J.
Murray J.
Hardiman J.
Between;
PADRAIC GREALIS
Applicant
and
THE DIRECTOR OF PUBLIC PROSECUTIONS IRELAND
and THE ATTORNEY GENERAL
Respondents
Between:
EMETT CORBETT
Applicant
and
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
and
THE ATTORNEY GENERAL
Notice Party
JUDGMENT delivered the 31st day of May, 2001 by Hardiman J.

147. I agree with the judgment of the learned Chief Justice in these cases save in one respect. I have the misfortune to differ on the issue of whether assault occasioning actual bodily harm, as it existed prior to coming into effect of Sections 28 or 32 of the Non-Fatal Offences against the Person Act, 1997 was a statutory or a common law offence. This is the issue raised in Mr. Grealis’s cross appeal. The resolution of this issue will decide whether or not he can be further prosecuted on the charge contained in the Summons issued against him on the 12th September, 1997.


Sections 28 and 31 of the Non-Fatal Offences against the Person Act, 1997.

148. Section 28 provides as follows:

“The following common law offences are hereby abolished -
(a) Assault and battery,
(b) Assault occasioning actual bodily harm,
(c) Kidnapping,
(d) False imprisonment.

It is clear from this that the draftsman of the Act and, one must presume, the Oireachtas, regarded the offence of assault occasioning actual bodily harm as a common law offence. This was so despite high judicial support, albeit obiter, for the contrary view in a case which is discussed below. However, the point is of limited significance since the statutory description of the offence would hardly bind the Court if it were clearly to be established to be wrong in law. It is of no significance outside the immediate context of this case because if the offence is indeed a statutory one it can only be so by virtue of Section 47 of the Offences against the person Act, 1861. That provision is in any event repealed by Section 31 of the 1997 Act.

Assault and battery at common law.
The wrongs known as assault and battery have been recognised at common law from a very remote time and both civil and criminal remedies have been provided for them. In Sir William Blackstone’s Commentaries on the Law of England 6th Edition Dublin 1775 each is described separately, both as a crime and as a tort. By 1861, and probably much earlier in most usages, they had become largely assimilated under the name assault: see for example Section 47 of the 1861 Act, discussed below. However, somewhat confusingly, they also preserved a separate existence which is testified to in a small number of cases.
Blackstone Book III page 120 defined assault as “...... an attempt or offer to beat another without touching him”. As to battery he said that it is:-
“...... the unlawful beating of another. The least touching of another’s person, wilfully, or in anger, is a battery; for the law cannot the draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.”

149. From the same source it appears that aggravated forms of assault were not recognised at common law unless they reached the degree of wounding “which consists in giving another some dangerous hurt and is only an aggravated species of battery”, or mayhem “which is an injury still more atrocious, and consists in violently depriving another of the use of a member proper for his defence in fight. This is a battery, attended with this aggravating circumstance, that thereby the party injured is for ever disabled from making so good a defence against future external injuries as he otherwise might have done”.


150. It appears, therefore, that at common law any unlawful touching with consequences less serious than would amount to wounding or mayhem was described as battery. That term became assimilated over time, for most purposes, into the term “assault”, certainly by the middle of the 19th century. This assimilation is manifest even in statutory provisions, as appears below.


The 1861 Act.

151. It is important to consider Section 47 of the Offence against the Person Act, 1861 in its statutory context. Sections 36 - 47 are all under the general heading “Assaults”. Sections 36 - 41 provide penalties for assaults on specific persons or in specific circumstances or both. For example, assault on a Magistrate while he is preserving a wreck, or on a clergyman while he is going to or returning from the performance of his functions. They also provide in places for specific intents or a specific state of knowledge required for the offence to come within the Section.


152. Sections 43 - 46 relate to the exercise of summary jurisdiction. Thus, by Section 42, a summary jurisdiction is conferred on two justice of the peace to try a charge of assault or battery and a maximum sentence of two months is provided. Section 43 provides that two justices may inflict a penalty of up to six months imprisonment if the assault is on a woman or a boy under the age of 14. Section 44 provides that Magistrates who dismissed a charge in the exercise of this summary jurisdiction should issue a Certificate of Dismissal and the next section provides that such certificate is a bar to other proceedings arising out of the same incident. Section 46 provides the circumstances in which summary jurisdiction may be ousted.


153. After these provisions comes Section 47 which is of central importance in this case. So far as relevant it provided in its original form as follows:-

“Whosoever shall be convicted upon an Indictment of any Assault occasioning actual bodily Harm shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for the Term of three years...... and whosoever shall be convicted upon an Indictment for a common Assault shall be liable at the Discretion of the Court to be imprisoned for any Term not exceeding One Year......”

154. Remote though it now is, the 1861 Act was by no means the first statute to provide specific penalties for specific aggravated forms of assault. These earlier statutes no doubt reflect the concerns of their times; for example 37 Henry VIII Cap 6 relating to the felonious cutting of ears. The 1861 Act in turn reflects the concerns of mid-Victorian Britain with its specific emphasis on crimes against clergymen, magistrates in certain circumstances, seamen and assaults interfering with the supply of grain or in support of unlawful combinations. It goes on to provide a summary jurisdiction of a modest nature and for the circumstances in which this jurisdiction will be ousted. It then provides a general penalties for “any assault occasioning actual bodily harm” and for “a common assault” , in each case when prosecuted on indictment.


155. Speaking of these and other provisions of the 1861 Act Mr. Peter Charlton in his book Offences against the Person Dublin 1992 say at page 196:-

“The elements of the offence [of assault] are of great importance as a host of offences are built upon the proof of the commission of an assault. The structure of these offences divides them into basic assaults aggravated either by the harm done, the nature of the intent of the accused, the status of the victim, or the circumstances of commission”.

156. Speaking specifically of assault occasioning actual bodily harm he says, at page 206:-

“The aggravating factor of bodily harm takes the penalty for a simple assault, prosecuted on indictment, from one year to five years”.

157. This last figure reflects a subsequent amendment of the 1861 statute.


158. If Section 47 is considered in the broader context of the 1861 Act, it will be seen that outside the context of the Section on “assaults” other, more serious forms of offences against the person are created. Thus, Section 20 provides the offence of wounding in a more modern form than is found at common law: “whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person either with or without any weapon..... shall be guilty misdemeanour......”. Similarly Section 20 creates an aggravated offence of felonious wounding: “whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person...... within intent...... to maim disfigure or disable any person...... shall be guilty of felony and being convicted thereof shall be liable to be kept in penal servitude for life.....”.


159. All of these aspects of the statutory context of Section 47 seem to me to support the proposition that Sections 36 - 47 deal with the common law offence of assault and battery in various circumstances. Where specific new aggravated offences are created, they are created elsewhere in the Statute. The Act of 1861 was, as its title suggests, an act to consolidate and amend the law relating to offences against the person and it did so, inter alia, by creating aggravated offences which, in practice, superseded most of the common law and earlier statutory provisions. But none of this was done in the section on “assaults” and in my view the natural meaning of Section 47 provides that common assault prosecuted on indictment shall thereafter attract one sentence and an assault which occasions actual bodily harm, a greater sentence. The Section does not appear to me, in its own terms, to create a new offence of assault occasioning actual bodily harm anymore than it creates a new offence of assault. Certainly, it does not use the language in which other sections, such as those quoted above, create new offences.


The State (O) v. O’Brien.

160. This case, reported at [1971] IR 42, is however one where a contrary opinion is strongly expressed by O’Dálaigh C.J. and his learned colleagues. It is pointed out that assault occasioning actual bodily harm is variously treated as a common law or a statutory offence by the editors of different editions of Archbold. The learned Chief Justice concluded, on this point:-

“I would describe the offence so created as a hybrid offence and, as a choice has to be made between stating the offence as a common law offence.... or as a statutory offence simply...... I consider that the view of the editor of the 1922 edition is preferable. The hybrid offence is a kind of statutory offence; it is not a common law offence. If it is to be assimilated into a category, then in my opinion it falls to be identified as a statutory offence. Therefore I think it was proper to invoke the statute”.

161. I agree that this passage is obiter, for the reason stated by the Chief Justice in his judgment in this case. Counsel on both sides of O had submitted that the offence was a common law one. Counsel for the State contended:-

“Assault is an indictable common law offence; the effect of finding that an assault has occasioned actual bodily harm to the victim is merely to increase the penalty which can be imposed on a person convicted of such assault”.

162. Counsel for the Prosecutor expressed the same opinion in this way:-

“........ Section 47 of the Offences against the Person Act, 1861 does not create an offence but merely declares the penalty for an existing common law offence....”.

163. It does not appear to me that a statute which penalises some action in different degrees by reference to its consequences thereby creates two different offences. For example, Section 53 of the Road Traffic Act, 1961 as amended in 1968 and 1984, provides as follows:-

“(1) A person shall not drive a vehicle in a public place in a manner (including speed) which having regard to all the circumstances of the case..... is dangerous to the public.
(2) A person who contravenes subsection (1) of this section shall be guilty of an offence and
(a) In case the contravention causes death of serious bodily harm to another person, he shall be liable on conviction on indictment to penal servitude for any term not exceeding five years or, at the discretion of the Court, to a fine not exceeding £3,000 or to both such penal servitude and such fine and
(b) In any other case, he shall be liable on summary conviction to a fine not exceeding £1,000 or, at the discretion of the Court to imprisonment for any term not exceeding six months or to both such fine and such imprisonment”.

164. The penalties for dangerous driving have since been altered, but that is not material to the present case.


165. It appears to me that Section 53, in more modern statutory language, creates a single offence while providing vastly different penalties depending on the consequence of the offence. But the different consequences and the different penalties do not take from the fact that there is one offence only. If there were two offences, a person acquitted of dangerous driving causing death could be later prosecuted for dangerous driving. But this cannot occur: see AG (Ward) v. Thornton [1964] IR 458 at 483. Equally, a person may be charged summarily with an offence contrary to Section 53(1) even though death or serious injury was caused by the alleged dangerous driving. See The People (AG) v. Wall, High Court unreported 9th June, 1969.


166. There is clearly a vast difference in the techniques of statutory drafting manifested in Section 47 of the 1861 Act as compared to the dangerous driving provision a century later. And there are other differences: the later section creates an offence and goes on to provide different modes of prosecution, and different penalties, depending on the consequences, while the earlier section merely refers to a common law offence, which is triable on indictment regardless of the consequences and provides different penalties depending on those consequences. There is in each case a single offence. In the case of assault, it is an offence at common law.


DPP v. Murray.
In DPP v. Murray [1977] IR 360 it was held that Section 1 of the Criminal Justice Act, 1964 had created a new statutory offence of capital murder which requires proof of mens rea in relation to each of its constituent elements. Counsel for the Prosecution had contended that capital murder was merely a type or species of common law murder. On this distinction there vitally depended the question of what had to be proved in the way of mens rea : if the lower test applicable to common law murder applied, the Defendants would have been exposed to the death penalty.

167. The Supreme Court, reversing the Court of Criminal Appeal, held that the offence of capital murder was a new offence.


168. Having considered the terms of the Criminal Justice Act, 1964, I have no doubt that the decision of the Supreme Court in Murray was correct. According to the long title of the Act of 1964, its object was “to amend the law as to the imposition of the death penalty and as to malice in the case of murder”. Section 1(1) provided as follows:-

“A person shall not be liable to suffer death for any offence other than-”

169. There followed a list of three offences or types of offences. It is clear, therefore, that the draftsman had proceeded on the basis that each of the matters which followed the initial words quoted was a separate offence. The first and third following matters were:-

“(a) Treason under the Treason Act, 1939.
(c) An offence by a person subject to military law under section 124, 125, 127 or 128 of the Defence Act, 1954”.

170. The second of the offences which followed the initiating words was:-

“(b) Capital murder, namely-”

171. There followed four types of murder of which the first was:-

“(i) Murder of a member of the Garda Síochána acting in the course of his duty”.

Section 3(1) of the Act provided that:-
“Where a person is accused of murder which is alleged to be capital murder, he shall be charged with capital murder in the indictment”.

172. Still more significantly, Section 3(2) provided:-

“A person indicted for capital murder may, if the evidence does not warrant conviction for capital murder but warrants a conviction for murder, be found not guilty of capital murder but guilty of murder.....”.

Section 3(3) provided that:-
“Capital murder shall be treated as a distinct offence from murder for the purposes of an appeal against conviction”.

173. Rather confusingly, Section 3(5) went on to provide that:-

“Subject to the foregoing subsections, capital murder shall not be treated as a distinct offence from murder for any purpose”.

Since DPP v. Murray was an appeal against conviction in which the Court of Criminal Appeal had certified that its decision involved a point of law of exceptional public importance, it appears to me that Section 3(3) of the 1964 Act imperatively required the Court to treat the offence of capital murder as distinct from the offence of murder. That is the plain, unambiguous and sole possible meaning of the subsection. The offence of capital murder was both created and defined by Section 3(1) of the Act, and was required to be so described in an indictment. The provision of a power both in the trial court and on appeal, to acquit of capital murder but convict of murder emphasises the separateness of the offences. In other words, the 1964 Act in my view expressly creates a new offence, committed in the four factual circumstances set out in the Act. It does not provide, as it might have, that a person convicted of murder shall be liable to suffer death if the victim is a member of the Garda Síochána acting in the course of his duty, or in the other circumstances mentioned, but otherwise shall be liable to penal servitude for life. It is not analogous in its draftsmanship either to Section 47 of the 1861 Act or to Section 53 of the 1961 Road Traffic Act, set out above. As Henchy J. said, at page 394 of the Report:-
“If the term ‘capital murder’ was not being used to denote a new offence, one might ask why it was introduced into the subsection (or indeed into the act) for the types of murder which are to carry the death penalty are sufficiently identified in the four types of murder set out”.

174. Walsh J., at page 380 of the Report said:-

“In my view, the whole context of the statute indicates the intention of the Oireachtas to create a new offence of capital murder. To my mind, the statutory requirement that it should be charged as such requires that it should be charged as a statutory offence in the indictment. One must also bear in mind that additional weight for the view that capital murder is a new offence is to be found in the statutory provision of the alternative verdict to it being a verdict of murder. The statute also provides that, for the purpose of an appeal against a conviction, capital murder shall be treated as a distinct offence from murder”.

175. At page 381, dealing with a submission based on Section 3(5) of the Act of 1964, the same learned judge suggested several reasons for that provision and went on:-

“I do not think, however, that it can be read as if it said that there was no such offence as capital murder and that the expression ‘capital murder’ is simply to be used in cases of murder where capital punishment may be imposed. If that had been the intention of the Oireachtas I think that the Statute would have been worded in a very different way”.

176. If the victim in the Murray case, Garda Michael Reynolds, had been murdered before the passage of the 1964 Act, his killers would have been sentenced to death regardless of whether he was a garda, or acting in the course of his duty. After the passage of the Act, a conviction for his murder would not have attracted the death penalty, which sentence would only be triggered by a conviction for the new offence of capital murder requiring both that he be a member of the Garda Síochána and be acting in the course of his duty. These additional elements reflect the fact that the offence was a new offence. This is to be distinguished from the situation where the same offence attracts different penalties depending on its consequences. This distinction, I believe, lies at the heart of the passage in the judgment of Griffin J. at page 408 of the Report, in numbered paragraphs 1,2,3.


177. Most fundamentally of all, Walsh J. in his introduction to this aspect of his judgment, at page 375 of the Report, summarised the State’s contention to the effect that there was no new offence and said:-

“If that be the correct construction then, in the event of the murder of a Civic Guard in the course of his duty by a person who was unaware that his victim was a Civic Guard and whose act (in that respect) was not intentional, the imposition of the death penalty would be entirely fortuitous and unrelated to the moral responsibility of those who wilfully kill the State’s officers of the law in the knowledge that the victims are such officer. Therefore, it becomes necessary to scrutinise carefully the Act of 1964 to see whether it was clearly the intention of the Oireachtas to enact such a rule which it would be difficult, if not impossible, to defend upon the grounds of either justice or expediency”.

178. The learned judge went on to expand his reference to expediency by pointing out that there could be no deterrent effect in the retention of capital punishment for the murder of a garda unless the death sentence would be available “only if the assailant is in a position to weigh up the consequences of his action before murdering a member of the Garda Síochána”.


In my view, Section 1 of the Act of 1964 is quite dissimilar to Section 47 of the Act, 1861 in virtually every respect. No consideration such as those mentioned by Walsh J. in the last two citations is relevant in construing the earlier section. Neither, for example, are such considerations relevant to the construction of Section 53 of the Road Traffic Act, 1961. The structure and draftsmanship of the Sections are entirely different. The Act of 1964 expressly creates a new offence which Section 47 does not. It is perfectly consistent, in my view, to accept the decision of the Supreme Court in Murray as correct without taking the view that it requires that Section 47 of the 1861 Act be construed as creating a new statutory offence. The distinction, at bottom, is between a new offence whose constituents are different to an existing one, and a single offence with different penalties depending on its consequences. I believe that Section 47 is in the latter category.

179. As is pointed out in the judgment of the learned Chief Justice, the House of Lords in R v. Savage ; R v. Parmenter [1991] 2 AER 225 held that to make out the offence contrary to Section 47 it was sufficient for the prosecution to show that the Defendant committed an assault and that actual bodily harm was occasioned by it; it was not obliged to prove that the Defendant intended to cause actual bodily harm or was reckless in that regard. It may be that the Section would have been open to constitutional attack on that ground and, if so attacked, no presumption of constitutionality would have been available to defend it, or arguably to mandate a different construction. But that possibility, which is now of academic interest only, has no relevance to the question of whether the section creates a new statutory offence or merely a different penalty for an existing common law offence depending on the consequences.


Matters not considered.

180. It may be desirable to point out that this judgment does not address the position of allegations of assault occasioning actual bodily harm which have taken place before the operation of the repealing provision of the Nonfatal Offences against the Person Act, 1997, in respect of which prosecution has instituted after the coming into operation of the Interpretation (Amendment) Act, 1997. Such a prosecution would not appear to be affected by the prohibition of retroactive penal legislation contained in Article 15.5 of the Constitution since assault occasioning actual bodily harm was a criminal offence at the material time. Whether the Interpretation (Amendment) Act, 1997 would operate to allow such a prosecution having regard to the repeal, and to the provisions of the Act intended to preserve the constitutional rights of persons, is something which will have to be decided in another case on whose facts the issue is properly raised.


Conclusion.

181. I agree with the orders envisaged in the last paragraph of the learned Chief Justice’s judgment save that I would extend the relief granted in Mr. Grealis’s case to the third summons against him as well as to the first and second.


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