1. This
case comes before the Court on foot of an Order granting the Applicant leave to
apply by way of application for Judicial Review for an injunction restraining
the Director of Public Prosecutions from continuing the prosecution of a case
against the Applicant.
The
Applicant was charged with assault "contrary to common law and Section 42 of
the Offences Against the Person Act, 1861 as amended by Section 11 of the
Criminal Justice Act, 1951 as amended by Section 10 of the Criminal Justice
(Public Order) Act, 1994."
By
virtue of Section 8(1) of the Non-Fatal Offences Against the Person Act, 1997,
which came into effect on the 19 August, 1997, the common law offence of
assault is abolished. The date of the alleged commission of the offence the
subject matter of this case, was the 24 May 1997. The date for the hearing of
the Summons was the 2 September 1997.
The
point at issue is as follows: Do the provisions of the Non-Fatal Offences
Against the Person Act operate retrospectively?
Mr
Grogan, for the Applicant, argues that since (a) the crime of assault contrary
to common law was abolished on the 19 August, 1997 and (b) there was no saving
for offences charged prior to that date, (either in the provisions of the Act,
or by virtue of the Interpretation Act, 1937), after the 19 August no such
offence could be prosecuted. While conceding that point had been considered in
detail in the recent case of Quinlivan and The Governor of Portlaoise Prison
and Others (Judgment of McGuinness J delivered 9 December, 1997) which is of
persuasive authority, Counsel for the Applicant argued that the decision in
that case was incorrect.
The
Interpretation Act
The
Interpretation Act of 1937 deals with a situation where an Act of the
Oireachtas repeals in whole or in part the provisions of a previous statue. The
relevant provisions are as follows in Section 21(1)
(c)
"where an Act of the Oireachtas repeals the whole or portion of a previous
statute, then, unless the contrary intention appears, such repeal shall not . .
.
(d)
effect any penalty, forfeiture, or punishment, incurred in respect of any
offence against or contravention of the statute or portion of statute so
repealed which was committed before such repeal, or
(e)
prejudice or effect 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."
Counsel
for the Applicant contends that the 'saving' provisions of the Interpretation
Act do not apply, as the Non-Fatal Offence Against the Person Act,
1997,repeals, not a portion of a previous statute, but a common law offence.
Counsel
for The Director of Public Prosecutions, however, takes issue with this
contention and says that the provisions of the Interpretation Act do apply in
the following circumstances:-
By
Section 31 of the Non-Fatal Offences Against the Person Act, 1997:-
"each
enactment specified in column 2 of the Schedule to the Act is hereby repealed
to the extent specified in column 3 of the Schedule."
The
Schedule to the Non-Fatal Against the Person Act repeals Section 42 of the
Offences Against the Person Act and Section 11 of the Criminal Justice Act,
1951. It is contended that, since those sections are part of previous statutes
repealed by an Act of the Oireachtas, they are covered by the relevant "saving"
provisions of the Interpretation Act, 1937.
In
my view, however, the offence of common assault is clearly a common law
Offence. Section 42 of the Offences Against the Person Act, 1861, merely
provides a penalty as does Section 10 of the Criminal Justice Act, 1951 as
amended by Section 10 of the Criminal Justice (Public Order) Act, 1994. It is
not a "hybrid" of offence similar to Section 47 of the Offences Against the
Person Act, 1861, which does create a statutory Offence in a similar offence of
common law, and was dealt with in the case The State (o) vO'Brien [1971] IR 42.
I am strengthened in my view, by both the decision of the Special Criminal
Court in The People v Kayanagh delivered by Mr Justice Barr on the 29 October,
1997 and by the Quinlivan Case where Mrs Justice McGuinness came to the same
conclusion. It is a pre-requisite for the saving provisions of Section 21(1)d
of the Interpretation Act to be applied that the whole or part of a previous
statutory provision be repealed. In the present case since "a statute or part
of it was not repealed by the abolition of the offence of assault by Section 28
of the Non-Fatal Offences Against the Person Act, 1997, the Respondent cannot
avail of the provisions of the Interpretation Act.
Construction
and Interpretation
The
following seem to me to be the principles and canons of construction and
interpretation to be applied to the Act:-
Presumption
against retrospection.
2.
"Public good" construction.
3.
The "common sense" rule of construction.
4.
Rules of construction of transitional provision.
5.
The principle of not adding words to a statute.
6.
The principle against doubtful penalisation.
7.
The "so called" principle of strict interpretation of penal statutes.
I
propose to deal with these matters seriatim.
1.
"Presumption Against Retrospection"
This
principle was discussed in the judgment of Mrs Justice McGuinness in the
Quinlivan case, and a number of cases were cited including Gloucester Union v
Woolwich Union [1917] 2 KB 374; Attorney General v Marquess of Hartford (1849)
3 Exch 670: Hitchcock v Way (1837) 6 Ad and El 943; in re McLoughlin's
application [1963] IR 465. R (O'Leary) v Justices of Kerry 3 NIJR 251; in re
Athlumney [1898] 2 QB 551, and Hamilton v Hamilton [1982] IR 466 and 1982 ILRM
at page 290.
The
principle was stated in the judgment of Henchy J in the Hamilton case 92IR page
466 at page 480 and 481 as follows:-
"from
a wide range of judicial decisions I find the relevant canon of interpretation
at Common Law to be this. When an Act changes the substantive, as distinct from
procedural law then, regardless of whether the act is otherwise prospective or
retrospective in its operation, it is not to be deemed to effect proceedings
brought under the pre-Act Law and pending at the date of the coming into
operation of the Act, unless the Act expressly or by necessary intendment
provides to the contrary".
Henchy
J also says as follows:-
"Maxwell
on the interpretation of statutes, (12 Ed, pp 220-1), puts the applicable rule
of interpretation thus:-
'In
general when the substantive law is altered during the pendency of an action,
the rights of the parties are decided according to the Law as it existed when
the action was begun, unless the new statute slows a clear intention to vary
such rights'.
I
would cavil at that statement of law to the extent that the rule of
interpretation sets out is stated to be only a general one, thereby suggesting
that it admits of exceptions. In my opinion, the judicial authorities show that
it is a universal rule which applies to all pending actions, unless the
language used in the enactment is susceptible of no other conclusion than that
the rights of the parties to pending action are intended to be effected".
In
the same judgment at page 484 Henchy J continues:-
"The
judicial authorities (which are mentioned in the judgment which the Chief
Justice has just delivered) make clear that, because there is a presumption
that a statute does not intend to operate unfairly, unjustly or oppressively by
trenching on rights or obligations lawfully acquired or created before the
statute came into force, it should be construed as prospective in its
application and not retrospective, unless there is a clear and unambiguous
intention to the contrary expressed, or necessarily implied in the statute, or
unless the change affected by the statute is purely procedural".
2.
"Public Good Construction "
In
Bennion Statutory Interpretation 2 Ed at page 217 the author defines this as
follows:-
"One
of the principles governing statutory interpretation is that the construction
adopted should serve the public interest. This criterion, like many others, can
effect the question of whether an enactment should be given a retrospective
construction".
Counsel
for the Respondent argues that it would be contrary to the public interest that
immunity should be granted to all of those who were charged either with the
offence of assault contrary to common law, assault occasioning actual bodily
harm, kidnapping, and false imprisonment (all of which offences were abolished
by Section 28(1) of the Non-Fatal Offences Against The Person Act, 1997)
regardless of the circumstances of the commission of those offences.
3.
"Common Sense Rule"
I
was referred by Counsel (as indeed was Mrs Justice McGuinness in the Quinlivan
case) to the following passage in the Bennion's book at page 407:-
"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
legislator intended common sense to be used in construing the enactment".
The
argument on behalf of the DPP and indeed the Notice Party goes as follows:-
A
certain set of facts constituted the criminal offence of common assault prior
to the Non-Fatal Offences Against The Person Act, 1997. The Oireachtas made the
same set of facts constitute another offence on the coming into force of the
Act. Given those circumstances (the contention is) that it defies common sense
that the Oireachtas intended to give immunity to those already charged with
offences arising out of a set of facts which, both before and after the
enactment, constituted a criminal offence.
4.
"Rules of Construction of Transitional Provision"
In
the Quinlivan case Mrs Justice McGuinness referred to Bennions work at page
213), where he refers to the position of transitional provisions in an
enactment 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".
At
page 26 of her judgment Mrs Justice McGuinness said:-
However,
I would accept that, as stated above, where the Act fails to include
transitional provisions, the Court has a duty to draw such inferences as to the
intended transitional arrangements as it considers Parliament to have intended."
Counsel
for the Applicant does not dispute the existence of principles 1-4 above. nor
does he seriously dispute the observations made on those principles by the
Respondent. He submits, however, that those principles do not apply in criminal
cases. It is "of the core" of his submission that "somewhat different
principles arise to criminal cases" and he relies on (5) the principle of not
adding words to a statute (which is not confined to penal measures), (6) the
principle against doubtful penalisation, and (7) the so-called principle of
strict construction of penal statutes.
5"Principle
Against Adding Words to a Statute"
This
principle is stated by Maxwell at page 33 as follows:-
"It
is a corollary to the general rule of literal construction that nothing is to
be added to or taken from a statute unless there are adequate grounds to
justify the inference that the legislature intended something which it omitted
to express".
The
Applicant says that the legislator failed to express the continuation of
offences already charged, when it could have done so, and that no words should
be added. However, what is sought in this case is not to add to or take from
the words of the statute but to interpret the statute in the absence of words.
If I am wrong in that, however, I still must have regard to the fact that the
provisions are transitional, in deciding whether there are adequate grounds to
justify the inference that the legislature intended something which it omitted
to express.
6.
"The Principle Against Doubtfull Penalisation" and
7.
The so-called "Principle of Strict Construction of Penal Statutes
It
appears to me that the latter two canons of construction, which apply to penal
statutes, are in addition to, and not in substitution for, other canons of
construction. Penal statutes are not only criminal statutes, but any statutes
that impose a detriment. In addition to the application of the principles set
out above in 1-5, the latter two principles also apply.
6.
The Principle Against Doubtful Penalisation
According
to this principle nobody suffers a detriment by the application of a doubtful
law. By virtue of that concept a construction of a statute is of necessity
doubtful if it imposes ex-post facto law. The matter is specifically dealt with
by Article 15(5) of the Constitution which says "the Oircheatas shall not
declare Acts to be infringements of the law which were not so at the date of
their commission."
According
to Maxwell 12 Ed pp 23 9-240 "the strict construction of a penal statute seems
to manifest itself in four ways: in the requirement of express language for the
creation of an offence; in interpreting strictly the words setting out elements
of an offence; in requiring the fulfilment of the letter of the statutory
conditions precedent to the infliction of punishment; and in insisting on a
strict observance of technical provisions concerning criminal procedure and
jurisdiction". It would appear that the principle applies not only to criminal
offences but to any form of detriment. At page 572 of Bennion the nature of the
principle is stated thus: "whenever it can be argued that an enactment has a
meaning requiring the infliction of a detriment of any kind, the principle
against doubtful penalisation comes into play. If the detriment is minor, the
principle will carry little weight. If the detriment is severe, the principle
will be correspondingly powerful. As Staughton LJ said in relation to
penalisation through retrospection, "it is a matter of degree -- the greater
the unfairness, the more it is to be expected that Parliament will make it
clear if that is intended'. However it operates, the principle requires that
that person should not be subjected by law to any sort of detriment unless this
is imposed by clear words." In the present case, it is doubtful to see how any
"unfairness" could be contended for by the Applicant, and unfairness could be
contended for by the Respondents. It seems, moreover that the principle, is
largely, if not entirely concerned with the creation of ex post facto law, and
is bound up with the seventh canon of construction, namely, the so-called
principle of strict construction.
7.
"The so-called principle of strict interpretation of penal statutes"
At
page 382 of the 2nd Edition of Bennion the principle is explained as follows:-
"The
true principle has never been that a penal statute must be construed strictly,
(though it is often stated in such terms). The correct formulation is that a
penal statute must be construed with due regard to the principle against
doubtful penalisation, along with all relevant criteria. "(my underlining)
The
following passage occurs at page 246 of the twelfth edition of Maxwell
concerning this canon of construction:-
"The
effect of the strict rule of construction might be summed up by saying that,
where the equivocal word or ambiguous sentence leaves a reasonable doubt which
the canons of interpretation fail to solve (my underlining), the benefit of the
doubt should be given to the subject against the legislature which has failed
to explain itself. If there is no ambiguity and the act or omission in question
fails clearly within the mischief of the statute, the construction of the penal
statute differs little if at all from that of any other."
In
the case of Bowers v Gloucester Corporation [1963] 1 QB 881 at page 886/87 Lord
Parker CJ stated:-
"A
provision can only be said to be ambiguous, in the sense that if it be a penal
section it would be resolved in a manner most favourable to the citizen, where
having applied all the canons of interpretation (my underlining) the matter is
still left in doubt." It seems to me, therefore, that in construing penal (not
only criminal) statutes the same principles apply as to other statutes, but
additional criteria have to be taken into account also. Having applied "all the
canons of interpretation" the matter does not appear to me to be ambiguous (in
the sense that, being a penal section, it would be resolved in a manner most
favourable to the citizen). In my judgment, taking all the factors outlined
above into consideration, the Respondent has established to my satisfaction
that the offence of assault contrary to common law was not abolished for
pre-existing charges by the enactment of Section 28 of the Non-Fatal Offences
Against the Person Act, 1997.
"It
is clear from our jurisprudence that that Courts should not engage in the
question of the possible invalidity of an act of the Oireachtas unless it is
necessary for its decision to do so" (per Finlay CJ in McDaid v Sheehy [1991] 1
IR 1 at p 17).
In
view of the fact that I have arrived at a decision based on the canons of
interpretation and the case law, it is unnecessary for me to examine the
constitutional position. and, in the light of the decision in McDaid &
Sheehy, it would not be appropriate for me to do so.