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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,
[2001] IESC 50,
[2002] 1 ILRM 241
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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
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
“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.
“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
1
were
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.
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
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.
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
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)
. . . ”
“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.”
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 ILRM 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
.
. .
.
. . , 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
)
. . .
.
. .
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
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:
and,
accordingly, its repeal is governed by the provisions of
s. 21(1) of
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
89. D. In
these circumstances, it is not necessary to place any reliance on the
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.
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.
“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
“.
. . 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.
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.
(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.’
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
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.
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.
“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.”
“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.”
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.
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
- 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.
- For
the reasons stated, the Interpretation (Amendment) Act, 1997 applies
prospectively.
- 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.
- 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:-
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”.
“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.....”.
“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.