High Court of Ireland Decisions

Grealis v. D.P.P. [1999] IEHC 35; [2000] 1 ILRM 358 (18th October, 1999)

1. This case comes before the Court on foot of an Order of the High Court dated the 15th day of June 1998 granting the Applicant leave to apply for Judicial Review by way of prohibition for an Order prohibiting the Respondents from taking any further steps in the bringing of a prosecution against the Applicant on foot of three summonses, namely;

(a) A summons dated the 11th of September 1997 returnable on the 3rd day of October 1997 to the sittings of the District Court, District No 3, the District Court area of Westport at Westport in the County of Mayo, alleging that the Applicant assaulted Margaret Sweeney contrary to common law subject to Section 11 (2) of the Criminal Justice Act 1951, as amended by Section 10 (2) of the Criminal Justice Act 1994,

(b) A summons dated the 11th of September 1997 returnable on the 3rd day of October 1997 to the sittings of the District Court, District No 3, the District Court area of Westport at Westport in the County of Mayo, alleging that the Applicant assaulted Francis Sweeney contrary to common law subject to Section 11 (2) of the Criminal Justice Act 1951, as amended by Section 10 (2) of the Criminal Justice Act 1994, and

(c) A summons dated the 12th day of September 1997, returnable on the 17th day of October 1997 to the sittings of the District Court, District No 3, the District Court area of Newport at Newport in the County of Mayo, alleging that the Applicant unlawfully assaulted ChristopherMcGinty contrary to Section 47 of the Offences Against the Person Act 1861.

By virtue of Section 28 (1) of the Non-Fatal Offences Against the Person Act 1997, which came into effect on the 19th day of August 1997, the Common Law Offences of Assault and Assault occasioning Actual Bodily Harm were abolished. The dates of the alleged commission of the offences, the subject matter of these proceedings, were respectively the 4th day of May 1997, the 4th day of May 1997 and the 11th day of May 1997 and the dates for the hearing of the said summonses were respectively the 3rd day of October 1997, the 3rd day of October 1997 and the 17th day of October 1997.

2. Counsel on behalf of the Applicant submitted that, in the circumstance that (a) the crimes of Assault and Assault occasioning Actual Bodily Harm contrary to Common Law were abolished on the 19th day of August 1997, (b) the crime of Assault occasioning Actual Bodily Harm, although alleged in the said summons dated the 12th day of September 1997 to be a statutory offence, is, in fact, a Common Law Offence and (c) there is no saving for offences charged after the 19th day of August 1997 (either in the provisions of theNon-Fatal Offences Against the Person Act 1997, or by virtue of the Interpretation Act 1937), no such offences could be prosecuted. In this regard, it was conceded on behalf of the Applicant that the point at issue in these proceedings appears to have been considered in detail by the Honourable Mrs. Justice McGuinness in the case of Quinlivan -v- The Governor of Portlaoise Prison, The Director of Public Prosecutions, Ireland and the Attorney General (1998 2 I.R. A-P 113) and by the Honourable Mr. Justice O'Higgins in the case of Michael Mullins -v- District Judge William Harnett, The Director of Public Prosecutions and the Attorney General (judgment delivered on the 1st day of April 1998) and that the decisions laid down in those two cases are persuasive authority, which I accept to be so. However, it was argued on behalf of the Applicant that the decisions in those two cases were incorrect. In this regard, a significant distinguishing feature between the circumstances of this case and those which obtained with regard to the cases ofQuinlivan and Mullins is that, whereas the prosecutions against Messrs. Quinlivan and Mullins commenced prior to the 19th day of August 1997 (the date upon which the Non-Fatal Offences Against the Person Act 1997 came into effect) the prosecutions against this Applicant did not commence until after that date. Accordingly, as it appears to me that the decisions of the learned McGuinness J. and the learned O'Higgins J. in those two cases were based on the fact that the prosecutions against Messrs. Quinlivan and Mullins were in being at the time that the Interpretation (Amendment) Act 1997 came into effect, different considerations apply in this case and it is not, therefore, necessary for me to consider the propriety of those decisions.

3. 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 Section 47 of the Offences Against the Person Act 1861 alleged against the Applicant in the said summons dated the 12th of September 1997 is, as submitted on behalf of the Applicant, a common law offence and, thereby, included among the provisions of Section 28 (1) of theNon-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 the State (at the prosecution of O) -v- Eveleen O'Brien (1971 I.R. at page 42) which is a binding authority and in which it was held that the offence of Assault occassioning Actual Bodily Harm is a statutory offence. Accordingly, I must conclude that the offence of assault contrary to Section 47 of the Offences Against the Person Act 1861 alleged against the Applicant in the said summons dated the 12th of September 1997 does not come within the provisions of Section 28 (1) of theNon-Fatal Offences Against the Person Act 1997. That as it may be, however, is equally clear, by virtue of the provisions of Section 31 of the said Act of 1997 and the schedule thereto, that the offence of assault occasioning Actual Bodily Harm contrary to the provisions Section 47 of the Offences Against the Person Act 1861 was abolished with effect from the 19th of August 1997.

4. Arising from the foregoing, Counsel for the Applicant submitted that, since the Non-Fatal Offences Against the Person Act 1997 contains no saving provisions in respect of offences abolished by that Act which are charged after the Act came into effect on the 19th of August 1997, the offences alleged against the Applicant in the said summonses respectively dated the 11th day of September 1997, the 11th day of September 1997 and the 12th day of September 1997 can no longer be prosecuted. In this connection, it is a fact that the said Act of 1997 contains no such saving provisions; a fact which the Special Criminal Court in ajudgment delivered on the 29th day of October 1997 in a case of the People -v- Kavanagh described as "surprising and most unfortunate"; a view with which I concur. However, Counsel for the Respondents has submitted that, in that connection, regard must be had for the provisions of the Interpretation Act 1937 and, in particular, Section 21 thereof which provides (inter alia) as follows:-

"21(1) 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;

(a) revive anything not in force or not existing immediately before such repeal takes effect, or

(b) effect the previous operation of a statute or portion of a statute so repealed or anything duly done or suffered thereunder, or

(c) effect any right, privilege, obligation or liability acquired, accrued or incurred under the statute or portion of a statute so repealed or

(d) effect 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 effect any legal proceedings, civil or criminal, pending at the time of such repeal in respect of any such rights, privilege, obligation, liability, offence or contravention as aforesaid.

(2) Where an act of the Oireachtas repeals the whole or a portion of a previous statute, then, unless the contrary intention appears, any legal proceedings, civil or criminal, in respect of any rights, privilege or liability acquired, accrued, or incurred under or any offence against or contravention of the statute or portion of a statute so repealed may beinstituted, (my emphasis) continued or enforced, and any penalty, forfeiture or punishment in respect of any such offence or contravention may be imposed and carried out as if such statute or portion of a statute had not been repealed."

5. In so far as the foregoing provisions of the Interpretation Act 1937 are concerned, Counsel for the Applicant submitted that the saving provisions therein contained do not apply to the circumstances of this case because Section 28 (1) of the Non-Fatal Offences Against the Person Act 1997 repeals: not a portion of a previous statute, but a number of common law offences. As I interpreted his submissions, Counsel for the Respondents conceded that, so far as the offences alleged against the Applicant in the summonses aforesaid constitute common law offences, they cannot benefit from the savers contained in Section 21 of the Interpretation Act 1937 for the reason that those savers only apply to statutory offences: a concession which accords with the views in that behalf expressed by both McGuinness J. in Quinlivan -v- The Governor of Portlaoise Prison and Others and by O'Higgins J. in Mullins -v- District Judge Hartnett and Others and a view with which I fully and respectfully concur. Accordingly, I am satisfied that, on the 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, no saving provisions in respect of the offences of common assault alleged against the Applicant in the said summonses dated the 11th day of September 1997. However, the same considerations do not apply with regard to the offence of assault contrary to Section 47 of the Offences Against the Person Act 1861 which is alleged against the Applicant in the said summons dated the 12th day of September 1997. In that regard, not withstanding the repeal of Section 47 of the Offences Against the Person Act 1861 by Section 31 of theNon-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 Section 21 (2) of that Act which provides (inter alia):-

"where an act of the Oireachtas repeals the whole or a portion of a previous statute, then unless the contrary attention appears any legal proceedings, civil or criminal, in respect of any .....contravention of the statute......so repealed may be instituted(my emphasis) .....and carried out as if such statute....had not been repealed." Enable the continuance of the prosecution of the Applicant for the offence of assault contrary to Section 47 of the Offences Against the Person Act 1861 alleged in the said summons of the 12th day of September 1997. In this regard, for the sake of completeness, I should add that I have carefully considered the detailed and learned submissions with regard to statutory interpretation made by Counsel on behalf of the Applicant and, in particular, his submission that, in the absence of specific provision in the Non-Fatal Offences Against the Person Act 1997 for saving offences abolished by that Act, the Court cannot fill the gap by implying such provisions for whatever reason. In my view, the provisions of Section 21 (2) of the Interpretation Act 1937 admit to no doubt but that, assuming the constitutionality of that Act, which is presumed and has not been challenged, the saving provisions therein provided for are appropriately applicable to the statutory offences abolished by theNon-Fatal Offences Against the Person Act 1997 and I am not persuaded by the several authorities in that behalf to which Counsel for the Applicant has referred, but which I do not consider it necessary to review for the purpose of this judgment, to conclude otherwise. Insofar as the construction of penal statutes is concerned and, in my view, the Non-Fatal Offences Against the Person Act 1997 is of that class, I would adopt the statement of Walsh J. in the course of his judgment in the case of the People -v- Murray (1977 I.R. at page 377) in which he said:-

"they must be fairly construed according to the legislative intent as expressed in the enactment and persons liable to a penalty should be entitled to the benefit of any genuine doubt or ambiguity as distinct from spurious doubts or ambiguities."

6. That statement of the law was supported by the statement of Denham J. in, the course of a judgment dealing with the construction of statutes delivered in a case of Howard -v- the Commissioners of Public Works (1994 1 I.R. at page 163) in which she said:-

"The correct conclusion to be drawn is that the plain language of the Act must not be extended beyond its natural meaning so as to supply omissions or remedy defects. The court should neither misconstrue words so as to amend defects in the Legislation nor legislate to fill gaps left by the legislature. If there is a plain intention expressed by the words of the statute then the court should not speculate but rather construe the Act as enacted."

7. In the case of the Non-Fatal Offences Against the Person Act 1997, the expressed legislative intent is to "revise the law relating to the main non-fatal offences against the person" and not to grant immunity from prosecution in respect of statutory offences committed before the passing of that Act. In my view, that expressed intent does not admit to any genuine doubt or ambiguity in respect of which the Applicant is entitled to the benefit.

8. In the light of my conclusions with regard to the absence of any saving for the common law offence of assault which was abolished by Section 28 (1) of the Non-Fatal Offences Against the Person Act 1997 with effect from the 19th day of August 1997, I must now consider the submission on behalf of the Respondents that the omission to include a saving for the offence of common assault in the said Act of 1997 was redressed by the provisions of the Interpretation (Amendment) Act 1997. Section 1 of that Act provides:-

"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 attention 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....and

(b) where an act of the Oireachtas abolishes, abrogrates or otherwise repeals an offence which is an offence at common law, then, unless the contrary attention 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 lawmay be instituted, (my emphasis) continued or enforced....and

(c) 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."

9. There is no doubt but that, on it's face value, the aforesaid provisions of the Interpretation (Amendment) Act 1997 permits a prosecution in respect of an offence of common assault after the date upon which the Non-Fatal Offences Against the Person Act 1997 took effect provided that the alleged offence was committed prior to that date and not withstanding the absence of any saving provisions for the said offence in that Act or that the provisions of Section 21 of the Interpretation Act 1937 does not apply to the offence of common assault. However, Counsel for the Applicant points to the provisionsSub-Section 4 of Section 1 of the Interpretation (Amendment) Act 1997 which provides:-

"(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."

10. And he argues that, in effect, the said Subsection is a nonsense, in that:-

(a) It implicitly recognises the possibility that the Interpretation (Amendment) Act 1997 may be unconstitutional; in other words, it recognises an uncertainty,

(b) It purports to permit judges of the District Court, who are called upon to adjudicate on charges for the offence of common assault, to make judgments in respect of which they have no jurisdiction, in that, on any reasonable interpretation of the provisions of the said subsection, a District Court judge must either determine the constitutionality of the provisions of the Interpretation (Amendment) Act 1997, which he or she is not, at law, entitled to do or, otherwise, ignore the Subsection altogether, which would be an absurdity and

(c) It purports to divest the authority of the legislature in favour of the courts, in that, it requires the courts to determine the limitations which are necessary to secure that the provisions Section 1 of the Interpretation (Amendment) Act 1997 do not conflict with the provisions ofBunreacht na hEireann; that being a legislative role which the courts are not entitled to assume."

11. In support of these arguments, Counsel for the Applicant referred to the provisions of Article 15 (2) (1) and (2) of Bunreacht na hEireann which provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas and that no other legislative authority has power to make laws for the State although provision may be made by law for the creation or recognition of subordinate legislatures. However, it was submitted that the courts are not recognised as a subordinate legislature. Counsel for the Applicant also referred to the provisions of Article 34 (3) (2) ofBunreacht na hEireann which provides (inter alia) that no question with respect to the validity of any law having regard to the provisions of the Constitution shall be raised in any court established under the Constitution other than the High Court or the Supreme Court and to Article 40 (1) of Bunreacht na hEireann which provides that all citizens shall be held equal before the law; the relevance of that Article in the context of these proceedings being, that on any reasonable interpretation of the provisions of Section 1 (4) of the Interpretation (Amendment) Act 1997 there is a presumption of inequality between citizens, in that, it allows for different limitations to be laid down for securing that the provisions of the said Act do not conflict with the constitutional rights of any given individual.

12. In addition to the foregoing, Counsel on behalf of the Applicant submitted that, in the circumstance that the prosecutions foresaid against the Applicant were commenced prior to the passing of the Interpretation (Amendment) Act 1997, that enactment, at the date of its passing, constituted an invasion of what was then an exclusively judicial preserve which is not constitutionally permissable; in support of which submission, Counsel referred to the judgment of Henchy J. given in a case of Hamilton -v- Hamilton (1982 I.R. at page 466) in the course of which the learned Henchy J. expressly approved of a statement at page 191 of the first edition (1980) of the Irish Constitution by the late Professor J. M. Kelly which declares:-

"what does appear to be inviolable is the actual judicial process itself while in operation; once begun, it must be allowed to run its course without interference".

13. The judicial authority for that statement, as the learned Henchy J. pointed out, is the case of Buckley and Others (Sinn Féin) -v- The Attorney General and Another (1950 I.R. at page 66) which was held that Section 10 of the Sinn Féin Funds Act 1947 which purported to stay all further proceedings in an action then pending before the High Court was repugnant to Bunreacht na hEireann as being an unwarrantable interference by the Oireachtas with the operations of the courts in a purely judicial domain.

14. In so far as the constitutionality of the Interpretation (Amendment) Act 1997 is concerned, Counsel on behalf of the Respondents submitted that there is a presumption that that Act is constitutional and that the Applicant had not rebutted that presumption. He also argued that the dates of the summonses aforesaid which had been served on the Applicant are irrelevant, in that, the service of the said summonses was only a process for securing the Applicant's attendance in court and did not indicate when the applications for the summonses had been made. In any event, he submitted that no proceedings were in being at the date of the repeals which were affected by the Interpretation (Amendment) Act 1997. Moreover, he maintained that the Interpretation (Amendment) Act 1997 was essentially declaratory of the law rather than creating new law. I accept that there is a presumption of constitutionality in so far as the provisions of the Interpretation (Amendment) Act 1997 is concerned. However, given that there were no saving provisions with regard to the offence of common assault which was abolished by theNon-Fatal Offences Against the Person Act 1997, which came into effect on the 19th day of August 1997, and that I am satisfied that the provisions of Section 21 of the Interpretation (Amendment) Act 1937 do not apply to the offence of common assault, I am not persuaded that the Interpretation (Amendment) Act 1997 was declaratory of the law rather than creating new law. In my view, Section 1 of the Interpretation (Amendment) Act 1997 introduced the concept that a prosecution in respect of the offence of common assault, allegedly committed prior to itsabolition by the Non-Fatal Offences Against the Person Act 1997, could be instituted after that abolition took effect on the 19th day of August 1997 and thereby purported to create new law. Neither am I persuaded that no proceedings were in being against the Applicant at the time of the passing of the Interpretation (Amendment) Act 1997 because I heard evidence from Mr. PatrickO'Connor, Solicitor for the Applicant, which satisfied me that, apart from the fact that the summonses aforesaid were served on the Applicant prior to the passing of the Interpretation (Amendment) Act 1997 on the 4th day of November 1997, he (Mr. O'Connor) attended the District Court at Westport on the 3rd day of October 1997 at which an application was made on behalf of the prosecution to adjourn the hearing of the said summonses dated the 11th day of September 1997 to the sittings of the District Court at Westport on the 5th day of December 1997 and that he also attended the sittings of the District Court at Newport on the 17th day of October 1997 at which an application was made on behalf of the prosecution to adjourn the hearing of the said summons dated the 12th day of September 1997 to the sittings of the District Court atWestport on the 5th day of December 1997; both of which applications were acceded to by the court with the consent of Mr. O'Connor. Accordingly, I have no doubt but that the proceedings on foot of said summonses were in being well in advance of the passing of the Interpretation (Amendment) Act 1997. Furthermore, although I accept that, until the contrary is established, there is a presumption that the provisions of the Interpretation (Amendment) Act 1997 are constitutional, I am persuaded that, in law, it is repugnant to the provisions ofBunreacht na hEireann for the reasons that I accept that:-

(a) Section 1 (4) purports to permit judges of the District Court to determine its constitutionality contrary to the provisions of Section 34 (3) (2) of Bunreacht na hEireann,

(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) (i) and (ii) of Bunreacht na hEireann,

(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 hEireann and

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

15. In the light of the foregoing, I am persuaded that the charges of common assault alleged against the Applicant in the said summonses dated the 11th of September 1997 can no longer be prosecuted. However, as I have already indicated, I am equally satisfied that the provisions of Section 21 of the Interpretation Act 1937 enable the continuance of the prosecution of the Applicant for the offence of assault contrary to Section 47 of the Offences Against the Person Act 1861 alleged in the said summons of the 12th of 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.