Court allows appeal where retrospective abolition of common law assault does not invalidate prior prosecutions.

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

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

Introduction

The factual background to these two cases is as follows. In the first (hereafter “Grealis”), three summonses were issued by the

District Court against the applicant, the first two dated the 11th September 1997 and the third dated the 12th September 1997. The

first recited a complaint that the applicant did

“assault one Margaret Sweeney contrary to common law”

on the 4th May 1997 at Hotel Westport, Westport, Co. Mayo. The second was in identical terms, the name of the person allegedly

assaulted in that instance being Francis Sweeney. In the third, the complaint recited was that the applicant

“on the 11th May 1997 at Mulranny, Co. Mayo in the (district court area of Newport) did unlawfully assault one Christopher

McGinty, of Dooriel, Ballycroy, Westport, Co. Mayo thereby occasioning him actual bodily harm ... contrary to s. 47 Offences

Against the Person Act, 1861.”

In the second case (hereafter “Corbett”), a summons was issued on the 6th August 1997 alleging that the applicant on the 3rd

February 1997 at William Street, Cork

“did assault one Brian Cashman, contrary to common law and s. 47 of the Offences Against the Person Act, 1861 as amended

by s. 10 Criminal Justice (Public Order) Act, 1994.”

On the 19th May 1997 the Non-Fatal Offences against the Person Act 1997 (hereafter “the 1997 Act”) was enacted by the

Oireachtas. Section 28(1) provided that:

“The following common law offences are hereby abolished -

(a) assault and battery,

(b) assault occasioning actual bodily harm,

(c) kidnapping,

(d) false imprisonment.”

This provision came into force on the 19th August 1997. In both Grealis and Corbett, accordingly, it was not in force on the dates on

which the alleged offences were committed. It was not in force at the date the summons was issued in Corbett, but was in force on

the dates when the three summonses in Grealis were issued.

The 1997 Act provided for the creation inter alia of three new statutory offences, i.e. “assault”, “assault causing harm” and “causing

serious harm”. There were, however, no transitional provisions in respect of any common law offences of assault and battery or

assault occasioning actual bodily harm alleged to have been committed, but not prosecuted to conviction, prior to the coming into

force of s. 28(1) of the 1997 Act.

On the 29th October 1997, in the case of The People .v. Joseph Kavanagh, in which the defendant had been charged inter alia with

the common law offence of false imprisonment (also abolished by s. 28(1) of the 1997 Act), the Special Criminal Court held that, in

the absence of any transitional provisions in the 1997 Act, it could not consider the charges in question. On the 4th November, 1997,

the Oireachtas enacted the Interpretation (Amendment) Act, 1997, (hereafter “the 1997 Interpretation Act”), s. 1 of which contains

detailed provisions as to the operation of statutes abolishing common law offences.

The Proceedings

On the 15th June 1998, in Grealis, leave was given to the applicant by the High Court to apply by way of judicial review for an order

prohibiting the first-named respondent (hereafter “the DPP”) from taking any further steps in the prosecution against him on foot of

the three summonses. Leave was given in respect of the first two summonses on the ground that at the time when they were issued

the common law offences to which they related had been abolished by operation of law. In the case of the third summons, it was

given on the ground that the offence of assault occasioning actual bodily harm was a common law offence which had also been

abolished at the time the summons was issued.

In the case of Corbett, on the 10th November 1997 the applicant was also given leave by the High Court to apply for judicial review

by way of prohibition prohibiting the respondent from taking any further steps in the prosecution on foot of the summons in that case.

Leave was given on three grounds, only one of which was pursued in the High Court and again in this court, i.e. that the continuance

of the prosecution was not in accordance with law, following the abolition of the common law offence with which the applicant had

been charged.

In Grealis, the High Court, by an order of the 18th January 1999, gave the applicant liberty to amend the proceedings so as to seek a

declaration that the 1997 Interpretation Act was unconstitutional and Ireland and the Attorney General were by the same order joined

in the proceedings. In Corbett the Attorney General was also made a notice party to the proceedings and it would appear that an

argument was advanced to the effect that the 1997 Interpretation Act was unconstitutional, although it would seem that there was

no order giving leave to the applicant to amend the grounds on which he had originally been given leave.

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 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.

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.

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

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.

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°.

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.

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.

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.

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).

Replying on behalf of the DPP, Miss Adrienne Egan submitted that the law had been correctly stated by Ó Dálaigh C.J. in The State

(O.) .v. Eveleen O’Brien: both the actus reus and mens rea of the offence of assault occasioning actual bodily harm were different

from the actus reus and mens rea which had to be established in the common law offence of assault.

The statutory framework

Section 47 of the 1861 Act provides that:

“Whosoever shall be convicted upon an Indictment of any Assault occasioning actual bodily Harm, shall be liable, at the

Discretion of the Court, to be kept in Penal Servitude for the Term of Three Years, or to be imprisoned for any Term not

exceeding Two Years, without or without (sic) Hard Labour; and whosoever shall be convicted upon an Indictment for a

common Assault shall be liable, at the Discretion of the Court, to be imprisoned for any Term not exceeding One Year, with or

without Hard Labour.”

I have already set out the provisions of s. 28(1) of the 1997 Act. It should also be noted that, by virtue of s. 31 of that act and the

Schedule, s. 47, together with a number of other sections in the 1861 Act, was repealed.

Section 21(1) of the Interpretation Act 1937 provides that:-

“Where an Act of the Oireachtas repeals the whole or a portion of a previous statute, then, unless the contrary intention

appears, such repeal shall not ...

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

thereunder, or

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

statute so repealed, or

(d) affect any penalty, forfeiture, or punishment incurred in respect of any offence against or contravention of the

statute or portion of a statute so repealed which was committed before such repeal, or

(e) prejudice or affect any legal proceedings, civil or criminal, pending at the time of such repeal in respect of any such

right, privilege, obligation, liability, offence or contravention as aforesaid.”

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

repealed by the 1937 Act.

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

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. 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.”

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 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.”

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.”

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.

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.”

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

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.

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.

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.

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]

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.”

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.

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.”

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.

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.

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.

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.”

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.”

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.

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.

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.

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.

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.”

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.

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.”

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.

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.

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 ...”

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.

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.

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.

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.”

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.

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.

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.

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”.

An issue arose as to the nature of the mens rea which had to be proved by the prosecution before a conviction could be recorded:

was it necessary for the prosecution to establish that the defendants knew that the victim was a garda or 1were recklessly

indifferent as to whether he was or not or was it sufficient to establish that they intended to kill, or cause serious injury to, the

victim, the mens rea required, also since the enactment of the 1964 Act, in cases of murder generally?

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.

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.

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.

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.

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.

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.

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.”

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.