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Cite as: [2005] IESC 67

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Judgment Title: Cummins -v- His Honour Judge MacCartan & ors Neutral Citation: [2005] IESC 67 Supreme Court Record Number: 169/03 High Court Record Number: 2001 No 656 JR Date of Delivery: 25/10/2005 Court: Supreme Court Composition of Court: Murray C.J., Mc Guinness J., Hardiman J., Geoghegan J., Fennelly J. Judgment by: Mc Guinness J. Status of Judgment: Approved

Judgments by	Result	Concurring	Dissenting
Mc Guinness J.	Appeal allowed - vary High Court Order	Murray C.J., Hardiman J., Geoghegan J., Fennelly J.

Outcome: Allow And Set Aside

- 20 -

Murray J.
McGuinness J.
Hardiman J.
Geoghegan J.
Fennelly J.

BETWEEN



Judgment of Mrs Justice McGuinness delivered the 25th day of October 2005


INTRODUCTION


This is an appeal against the judgment and order of the High Court (Ó Caoimh J.) made and delivered on the 21st day of March 2003 refusing the relief sought by the applicant in the above entitled judicial review proceedings. In his proceedings the applicant sought orders of certiorari quashing orders of conviction entered against him by the fourth named respondent, Judge Constantine O’Leary, on 19th May 1998 and confirmed on appeal by the first named respondent on the 8th June 1999. These orders of conviction arose out of complaints against the applicant that on the 6th day of January 1997 he committed the offence of assault contrary to common law.
By order of the High Court (Butler J.) on 10th October 2001 the applicant was granted leave to seek the single relief of certiorari on a number of grounds which in essence claimed that the offence of assault contrary to common law was not an offence for which the applicant could be convicted on the date of his conviction since that offence had been abolished with effect from 19th August 1997 by the provisions of section 28 of the Non-Fatal Offences Against the Person Act 1997.
On 28th January 1997 a summons was issued by the District Court against the applicant reciting a complaint that the applicant “did on the 6th day of January 1997 outside Bridewell Garda Station, Cork, in the (District Court Area of Cork) assault one Sergeant Duane 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) 1994”. The return date of the summons was 24th March 1997. The prosecution did not proceed on that date but was adjourned to 21st April 1997. A number of further adjournments followed to 16th June 1997, to 20th July 1997, to 11th November 1997 to 12th January 1998 and to 12th February 1998. The case eventually came on for hearing on 19th May 1998. There is some dispute between the affidavits of the applicant grounding his judicial review proceedings and the affidavits of Inspector William Duane on behalf of the respondents as to whether any or all of these adjournments were sought by the prosecution or by the defence, but this dispute is of no great significance to the issues to be decided by this court.
As stated, the applicant came on for trial before the fourth named respondent in the District Court on the 19th May 1998. The applicant was represented by solicitor. He pleaded not guilty to the charge but was convicted. A fine of £50 was imposed.
The applicant appealed both conviction and sentence to the Circuit Court. The appeal was heard by the first named respondent, the applicant on this occasion appearing unrepresented. Both the conviction and the sentence of the District Court were affirmed.
The applicant in his grounding affidavit avers that in August 2001 he became aware of the decision of this court in the cases of Grealis v The Director of Public Prosecutions and Corbett v Director of Public Prosecutions [2001] 3 IR 144. He formed the opinion that these cases were analogous to his own and it was on this basis that on 10th October 2001 he sought leave to institute his judicial review proceedings. A statement of opposition was filed on behalf of the respondents on 21st February 2002. Following a further exchange of affidavits the matter came on for hearing before Ó Caoimh J. in the High Court on 2nd December 2002. As already noted, the learned Ó Caoimh J. by judgment and order dated 21st March 2003 refused the relief sought by the applicant.

THE DECISION OF THE HIGH COURT
The arguments made in the High Court by both counsel for the applicant and counsel for the respondents are fully set out in the judgment of the learned trial judge. In essence the applicant argued that the offence of assault contrary to common law had been abolished by section 28 of the Non-Fatal Offences Against the Person Act 1997 which came into effect on 19th August 1997. Following that date he could therefore not be convicted of an alleged offence which in fact no longer existed. Since the purported conviction in the District Court was of no effect, the decision of the Circuit Court on appeal was equally void, in that it purported to uphold the conviction of the applicant for a matter that was not a criminal offence then known to the law. Relying on the decision of this court in the Grealis and Corbett cases the applicant submitted that the prosecution against him and his conviction were not saved by the provisions of the Interpretation (Amendment) Act 1997. With regard to the question of delay, he submitted that the position in regard to prosecutions for the offence of assault contrary to common law was not clarified until this court gave judgment in the Grealis and Corbett cases on 31st May 2001. The applicant became aware of this judgment in August 2001 and thereafter moved with due expedition in issuing his judicial review proceedings.
It was argued on behalf of the respondents that the Non-Fatal Offences Against the Person Act 1997 did not abolish the offence of assault contrary to common law in circumstances where the courts had seisin of criminal proceedings involving that offence prior to 19th August 1997. The respondents also pleaded the delay of the applicant in bringing the proceedings which was contrary to the time limits set by order 84 of the Rules of the Superior Courts. It was also submitted that on the basis of the case of Buckley and Others (Sinn Féin) v Attorney General [1950] I.R. 67, as the District Court proceedings were pending in August 1997, the Act of 1997 could have no application to those proceedings. Reference was also made to the decision of this court in Hamilton v Hamilton [1982] I.R. 466.
The learned trial judge delineated the issues before the High Court as follows (at page 6 of his judgment):-
“This case turns essentially upon a consideration of whether it can be said that the prosecution against the applicant was pending at the date of the repeal of the common law offence, such that the repeal could not interfere with the then pending proceedings in the District Court or otherwise. Furthermore, even if there was no pending prosecution at the relevant date, can the delay on the part of the applicant be such that this court should in its discretion refuse the relief sought.”

The learned trail judge first dealt briefly with the issue of delay, as follows:
“With regard to the issue of delay, I am satisfied that the relief which the applicant seeks is such that, assuming there was no pending prosecution in the District Court, he would be entitled ex debito justitiae. Accordingly, in these circumstances, I would not be disposed on the basis of the delay on the part of the applicant in moving to this court to refuse him the relief which he seeks.”

With regard to the central issue the learned trial judge held that the charges against the applicant were pending at the time that the Act of 1997 came into force. He expressed himself satisfied, therefore, on the basis of the decision in Hamilton v Hamilton [1982] I.R. 466, that the Act of 1997 did not affect the then pending proceedings in the District Court unless it could be shown that the Act expressly or by necessary intendment provided to the contrary. He was satisfied that it did not do so. The learned trial judge concluded at (page 7):
“It is clear that the act of 1997 changed the substantive as opposed to the procedural law. The Act was prospective in its operation. I am satisfied that it cannot be deemed to affect proceedings brought under the pre-Act law and pending at the date of the coming into operation of the Act, unless the Act expressly or by necessary intendment provided to the contrary. As I have held that this it did not do, I am satisfied that the Act of 1997 cannot be deemed to have affected proceedings such as those in the instant case pending at the date of the coming into operation of the Act.”

He therefore refused the relief sought by the applicant. It does not appear that the learned trial judge considered what effect, if any, the provisions of the Interpretation (Amendment) Act 1997 had on the applicant’s prosecution and conviction.

THE STATUTORY FRAMEWORK
Section 28(1) of the Non-Fatal Offences Against the Person Act 1997 provides as follows:

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

Among the enactments listed as repealed in the schedule to the Act of 1997 is section 42 of the Offences Against the Person Act 1861. The Act of 1997 provided inter alia for the creation 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 section 28(1) of the Act of 1997.
Section 21(1) of the Interpretation Act 1937 provides that:
“Where an Act of the Oireachtas repeals the whole or a portion of a previous Statute, then, unless the contrary intention appears, such repeal shall not…(b) affect the previous operation of the statute or portion of a statute so repealed or anything duly done or suffered thereunder, or (c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under the statute or portion of a statute so repealed, or (d) affect any penalty, forfeiture, or punishment incurred in respect of any offence against or contravention of the statute or portion of a statute so repealed which was committed before such repeal, or (e) prejudice or affect any legal proceedings, civil or criminal, pending at the time of such repeal in respect of any such right, privilege, obligation, liability, offence, or contravention as aforesaid.”

It is clear that this section applies solely to the repeal of a statutory provision; it has no application to the abolition of a common law offence.
The difficulty which was caused by the absence of any transitional provisions in the Act of 1997 was first highlighted in the judgment of the Special Criminal Court in the People (Director of Public Prosecutions) v Kavanagh (unreported 29th October 1997). As a result, the Oireachtas enacted the Interpretation (Amendment) Act 1997 which came into effect on the 4th November 1997. Section 1 of that Act provides as follows:

“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.”

During the years following the passing of that Act consideration was given in a number of decisions of the High Court to the combined effect of section 28(1) of the Act of 1997 and the provisions of the Interpretation (Amendment) Act 1997. The position was somewhat confused. The law was, however, clarified by the decision of this Court in Grealis v Director of Public Prosecutions and Corbett v Director of Public Prosecutions [2001] 3 IR 144 to which I shall refer in some detail later in this judgment.

SUBMISSIONS OF COUNSEL
There was no issue between the parties as to the question of delay. It was accepted that if the applicant was in law entitled to the relief sought he was so entitled ex debito justitiae and not as a matter of discretion.
Twelve detailed grounds of appeal were set out it the applicant’s notice of appeal. In his submissions to this court, however, senior counsel for the applicant, Mr O Tuathail, relied in the main on the first and central ground of appeal – that the learned trial judge fell into error in not having any, or any sufficient regard to the decision of this court in the case of Grealis v Director of Public Prosecutions. Mr O Tuathail submitted that that case had strong parallels with and was analogous to the present case.
He submitted that the learned trial judge erred in relying on the authority of the Buckley (Sinn Féin Funds) case and of Hamilton v Hamilton, in that he applied a form of “double construction rule” which had been specifically rejected by Keane C.J. in his judgment in the Grealis case. Hamilton v Hamilton, was in any case, Mr O Tuathail said, a civil case inter partes, a very different situation from that of a criminal prosecution. Mr O Tuathail argued that once the common law offence with which the applicant was charged was abolished the prosecution of the applicant was dead and could not be revived. The applicant could not, in 1998, be convicted of a non-existent offence. As far as the Interpretation (Amendment) Act 1997 was concerned its effect, as had been held by this court in Grealis, was prospective. It could not retrospectively revive the prosecution of the applicant.
Counsel for the respondents, Mr McDonagh, put forward a rather different line of argument from that put forward on behalf of the respondents in the High Court. He referred in some detail to the judgments of this court in Grealis and submitted that the factual situation in Grealis differed from that in the present case. In Grealis, while the alleged assault took place prior to the 19th August 1997, the summonses were not issued until September 1997 after the abolition of the common law offence. Keane C.J. in his judgment did not deal with the situation that applied in the present case where both the summons and the return date before the District Court predated the abolition of the offence; many of Chief Justice Keane’s more general dicta were obiter. Mr McDonagh submitted that Denham J. in her judgment had specifically dealt only with the situation where there was no common law offence when the summonses were issued. She had stated (at page 178 of the report) that proceedings in the cases in issue were not pending when the Act came into force, so that that issue did not arise. In the instant case, counsel argued, both the summons and the return date of 24th March 1997 were prior to the 19th August 1997; proceedings against the applicant were therefore pending.
Mr McDonagh referred to the constitutional importance of the community’s right to prosecute offences. He submitted that section 1 of the Interpretation (Amendment) Act 1997 operated to validate the prosecution of the applicant unless it could be shown that his constitutional rights were thereby adversely affected. It was established law that the community’s right to prosecute was outweighed by the right of an accused person to a fair trial, but no argument had been made by the applicant to show that he did not receive a fair trial in the District Court or on appeal in the Circuit Court. Section 1(1) of the Interpretation (Amendment) Act 1997 therefore applied in the case of the applicant; section 1(4) did not come into effect.
In reply counsel for the applicant again stressed what he submitted was the ratio of the decision in Grealis, that after the offence was abolished by an Act which did not provide for any transitional arrangements the applicant was in a situation where he was not liable for his actions as being an offence.



CONCLUSIONS
In his application to the High Court for an Order of Certiorari and in his appeal to this court the applicant has essentially relied on the decision of this court in Director of Public Prosecutions v Grealis and Director of Public Prosecutions v Corbett [2001] 3 IR 144. Counsel for the respondents accepts, as he must, the authority of Grealis, but seeks to give a relatively narrow interpretation to the ratio of that decision and to distinguish Grealis from the present case on the facts. The distinction argued for is that in the present case the return date before the District Court (24th March 1997) predated the abolition of the common law offence, whereas in the case of Grealis the summonses were not issued until after its abolition. In the case of Corbett, which was dealt with together with that of Grealis, the summons predated 19th August 1997 but the return date (1st September 1997) did not. In his judgment the learned trial judge seems to have given little detailed consideration to the decision in Grealis, holding as he did that the case turned on whether the abolition of the offence could “interfere with the then pending proceedings in the District Court”. In order to reach a conclusion in the present case it is thus necessary to consider in some detail the ratio of this court’s decision in Grealis.
In his judgment, under the heading “Conclusions” Keane C.J. approached the matter in a robust fashion. He stated (at page 155 of the report):-
“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?

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.”

The learned Chief Justice went on to refer to a long established line of English authority, as follows:
“As long ago as 1764, an English court said in Miller’s case (1764) 1 W.I.P. 450:-
‘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.’

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.

As Tindal C.J. put it in Kay v Goodwin (1830 6 Bing. 576 at p.582):-
’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 while it was an existing law.’

The same view of the law was expressed in even more trenchant language by Rolfe B. in R. v Swan (1849) 4 Cox C.C. 108 where he said at p.114:
‘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 then repealed, and new Acts substituted; in all of them I feel 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 is gone before, and it is much safer to adhere to what the legislature enact than to speculate on what it intended.’”

Keane C.J. also referred to a number of United States authorities, in particular the words of Chief Justice Marshall in Yeaton v United States (The General Pickney) (1809) 9 U.S. 281:

“It has long been 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.”

In that case it was held that in the absence of any such special provision the prosecution could not be maintained. At this point it is useful to note that Denham J. in her judgment also relied on the authority both of Yeaton v United States and of R v Swan (page 177 of the report).
In his judgment Keane C.J. went on to reject any interpretation of the Act of 1997 which relied on the “double construction” rule or other rules of statutory interpretation which would imply an unexpressed intention of the Oireachtas. Such rules could only apply where the language of the statute might be ambiguous. He went on to say (at page 158):

“Section 28(1) of the Act of 1997 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 spelt 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 draftsman has used.”

Similarly Denham J. in her judgment, referred to the well known passage in Howard v Commissioners of Public Works [1994] 1 I.R. 101 in which Blayney J. stated at p.151:

“The cardinal rule of 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 statutes are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense.”

Keane C.J. (concluded at page160) that the applicants in both cases in Grealis and Corbett were entitled to succeed unless the State could rely on the Interpretation (Amendment) Act 1997. It does not appear that he considered the question of whether the prosecution was pending before the District Court or not as being particularly relevant; indeed he specifically rejected an approach based on the Buckley (Sinn Féin Funds) case taken by the High Court in the case of Quinlivan v Governor of Portlaoise Prison (No. 2) [1998] 2 IR 113. The position, as simply stated, was that no court could convict a person of an offence which no longer existed.
Keane C.J. went on to discuss the provisions of section 1 of the Interpretation (Amendment) Act 1997 in the light of the decision of this court in Shelly v District Justice Mahon [1990] 1 I.R. 36. In that case the High Court and this court (by a majority) held 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. Keane C.J. went on to conclude (at page 161):-

“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 (Director of Public Prosecutions) v Kavanagh (unreported Special Criminal Court 29th October 1997), the Oireachtas must have envisaged that the retrospective validation of prosecutions instituted before the coming into force of the Act of 1997 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.”

Denham J. in her judgment was satisfied that the common law offence of assault ceased to exist as of 19th August 1997. She concluded (at page 179) that:

“Subject to an 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.”

Later in her judgment Denham J. compared the terms of section 1(4) of the Interpretation (Amendment) Act 1997 to those of section 1(3) of the Courts (No. 2) Act 1988 and referred to the judgment of Blayney J. in the High Court in Shelly v District Justice Mahon [1990] 1 I.R. 36 at page 40 where the learned judge stated:

“It seems to me that subsection (3) of section 1 of the Act of 1998 envisages that the matters validated by subsection (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 subsection provides that in regard to the second category the validation affected by subsection (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.”

At page 187 of the report Denham J. summarised her conclusions in the Grealis case as follows:

“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 the 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 section 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 section 1 of the Interpretation (Amendment) Act 1997. It is an Act which, in accordance with constitutional principles, applies prospectively.”

As regards the Corbett case, despite the fact that in that case the summons had been issued prior to 19th August 1997, Denham J. reached the same conclusions.
Of the other members of the court, Murphy J. agreed with the judgment of Hardiman J., who himself agreed with that of Keane C.J. on all matters relevant to the present case. Murray J. (as he then was) agreed with Denham J.
As was pointed out by counsel for the respondent in his submissions to this court Denham J. noted (at page 178) that the proceedings in Grealis and Corbett were not pending when the Act of 1997 came into effect. She therefore did not make any finding on this issue. No such limitation appears in the judgment of Keane C.J., with whom both Hardiman J. and Murphy J. agreed. It appears to me to be of importance that in his judgment Keane C.J. specifically referred to the authority of Tindal C.J. in Kay v Goodwin (at page 155):

“I take the effect of repealing a statute to be, to obliterate it as completely from the records of 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.” (my emphasis)

It appears to me, therefore, that the ratio of the decision of this court is that the common law offence of assault was abolished in clear and unambiguous terms by the Non-Fatal Offences Against the Person Act 1997; the common law offence of assault ceased to exist as of 19th August 1997; there was no express transitional provision in the Non-Fatal Offences Against the Person Act 1997 providing for proceedings after the offence was abolished; there are no words in the Non-Fatal Offences Against the Person Act 1997 from which an attempt to establish a transitional provision could be inferred. After 19th August 1997, since the offences alleged against the applicants in that case were no longer in being, the prosecution against them could not continue. In addition the State could not rely on section 1 of the Interpretation (Amendment) Act 1997, which Act in accordance with constitutional principles applies prospectively to criminal proceedings initiated subsequent to the coming into force of the Act.
In the present case the return date before the District Court predated the 19th August 1997. In my view that fact does not alter the position that once the offence of assault with which the applicant was charged no longer existed, the prosecution against him could not continue. Still less could he be convicted in respect of conduct which was no longer unlawful. That was the situation which applied from 19th August 1997 onwards. The Interpretation (Amendment) Act 1997 came into effect on the 4th November 1997. To permit a prosecution existing or pending on that date to be validated would be, as was held in Grealis, to apply that Act retrospectively in breach of due process and fundamental constitutional principles. Accordingly, and in the light of subsection 4 of s.1, the Interpretation (Amendment) Act 1997 cannot be interpreted as having the effect of validating criminal proceedings which prior to its enactment were unlawful.
I would allow the appeal, grant the order of certiorari and quash the conviction of the applicant.
















Cummins v McCartan