Common law offences abolished by statute cannot be prosecuted without transitional saving provisions.

[2001] IESC 50

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

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

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 Assault one

Margaret Sweeney.

Contrary to Common Law. Penalty.

Subject to Section 11(2) of the Criminal Justice Act, 1951, as amended by Section 10(2) of the Criminal Justice Act 1994.

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,Westport, Co. Mayo within the court area and district aforesaid, did Assault one

Francis Sweeney.

Contrary to Common Law. Penalty

Subject to Section 11(2) of the Criminal Justice Act 1951, as amended by Section 10(2) of the Criminal Justice Act 1994.

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. Mayo in the said

District did unlawfully assault one Christopher McGinty of Dooriel, Ballycroy, Westport, Co. Mayo thereby occasioning him

actual bodily harm.

Contrary to Section 47 Offences Against the Person Act, 1861.

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 relevant statutory law includes the Offences Against the Person Act, 1861; the Interpretation Act, 1937; the Non-Fatal Offences

Against the Person Act, 1997; and the Interpretation (Amendment) Act, 1997.

The Non-Fatal Offences Against the Person Act, 1997.

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) ”

Section 31 states:

“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 schedule sets out the extent of the repeal of the Offences Against the Person Act, 1861 which includes s. 47. Section 11 of the

Criminal Justice Act, 1951 was also repealed. There were no saving or transitional arrangements in the Act of 1997 in relation to the

abolition of the offences.

The Interpretation (Amendment) Act, 1997.

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.”

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 I.R. 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

In the High Court, [2000] 1 I.L.R.M. 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.

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 s. 28(1) of the Non-Fatal Offences Against the Person Act 1997. That as it may be, however, it is equally

clear, by virtue of the provisions of s. 31 of the said Act of 1997 and the schedule thereto, that the offence of assault

occasioning actual bodily harm contrary to the provision of s. 47 of the Offences Against the Person Act 1861 was

abolished with effect from 19 August 1997.

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) . . .

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.”

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

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.

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 s. 47 of the Offences Against the Person Act, 1861.

7. Submissions in Grealis Case

Mr. Gerard Hogan, S.C., counsel for the respondents, presented full oral and written submissions. The conclusions therefrom included

the following submissions:

A. Section 47 of the Offences Against the Person Act, 1861 is a statutory offence and, accordingly, its repeal is governed

by the provisions of s. 21(1) of the Interpretation Act, 1937.

B. In the absence of the appropriate transitional provisions in the Non-Fatal Offences Against the Person Act, 1997, the

duty of the courts is to draw the appropriate inferences regarding the intention of the Oireachtas.

C. Having regard to the provisions of Article 15.5 and Article 40.3.2. of the Constitution, it is in the highest degree

improbable that the Oireachtas intended to create a form of immunity in respect of offences committed prior to the

coming into force of s. 28 of the Non-Fatal Offences Against the Person Act, 1997. Instead, the appropriate inference is

that the Act was intended to have prospective application only and not to affect in any way the prosecution of offences

committed prior to August, 1997.

D. In these circumstances, it is not necessary to place any reliance on the provisions of the Interpretation (Amendment)

Act, 1997. In any event, 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.

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.

(c) Any operation of the Interpretation (Amendment) Act, 1997 to retrospectively apply a transitional provision is

ineffective and the Act is unconstitutional.

8. Decision in Grealis

(a) Assault Summonses

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.”

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.”

These sections provide procedures and penalties in relation to a variety of assaults at common law.

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.”

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 words of the statute are plain and unambiguous. The relevant words of the Non-Fatal Offences Against the Person Act, 1997 are

to be found in s. 28(1):

“The following common law offences are hereby abolished -

(a) assault and battery,”

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 . Blayney J. stated:

“.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.

The alleged offence took place on 4th May, 1997. On 19th August, 1997 the provisions of the Non-Fatal Offences Against the Person

Act, 1997 came into effect. The common law offences of assault and battery were abolished by s. 28(1). There are no transitional

provisions in the Non-Fatal Offences Against the Person Act, 1997.

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.

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.”

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.”

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.

For the above reasons I am satisfied that: (a) assault is a common law offence; (b) it was expressly so provided in the Non-Fatal

Offences Against the Person Act, 1997; (c) the common law offence was abolished by the Non-Fatal Offences Against the Person

Act, 1997; (d) the common law offence of assault ceased to exist as of 19th August, 1997; (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.

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.

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.

I am satisfied that this too is a common law offence. I arrive at this decision for a number of reasons.

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,

The words are clear and unambiguous.

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.

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.”

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.”

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.

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.’

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’.

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.

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.

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.”

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.

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.’

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.’

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.

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.’

S. 10 of the 1981 Act was repealed by the Criminal Law (Rape) (Amendment) Act, 1990 which came into operation on the

21st January, 1991 and which provides in s. 2 as follows:-

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.

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.”

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.

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

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 Quinlivan v. Governor of Portlaoise Prison [1998] 2 I.R. 113 the case in issue had been pending when the Non-Fatal Offences

Against the Person Act, 1997 was passed. The State did not seek to rely upon the Interpretation (Amendment) Act, 1997 in that

case.

In Mullins v. Harnett [1998] 4 I.R. 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.

In this case the proceedings were commenced after the abolition of the offence by the Non-Fatal Offences Against the Person Act,

1997 and prior to the commencement of the Interpretation (Amendment) Act, 1997. There being no transitional arrangements in the

Non-Fatal Offences Against the Person Act, 1997, the query then is whether the prosecutions may be saved by the Interpretation

(Amendment) Act, 1997.

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.

Section 1(4) provides:

“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.”

The wording in s. 1(4) of the Interpretation (Amendment) Act, 1997 is similar to s. 1(3) of Courts (No. 2) Act, 1988 which stated:

“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.”

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”.

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.”

I would interpret s. 1(4) of the Interpretation (Amendment) Act, 1997 in a similar manner.

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.

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.

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

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.

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.”

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 ”

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.

Other examples of retrospective, or validating, legislation include the Garda Siochana Act, 1979, the Local Government

(Planning and Development) Act, 1982, Section 6, and to a more limited extent, the Mental Treatment (Detention in

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.”

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.”

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).”

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.

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.

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

1. 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.

2. For the reasons stated, the Interpretation (Amendment) Act, 1997 applies prospectively.

3. 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.

4. In relation to Corbett, I would allow the appeal of the second applicant, who is entitled to an order prohibiting the prosecution.