Court held assault occasioning actual bodily harm is a common law offence abolished by statute, barring further prosecution.

[2001] IESC 50

THE SUPREME COURT

257 & 262/99

Keane C.J.

Denham J.

Murphy J.

Murray J.

Hardiman J.

Between;

PADRAIC GREALIS

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS IRELAND and THE ATTORNEY GENERAL

Respondents

Between:

EMETT CORBETT

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

THE ATTORNEY GENERAL

Notice Party

JUDGMENT delivered the 31st day of May, 2001 by Hardiman J.

1. I agree with the judgment of the learned Chief Justice in these cases save in one respect. I have the misfortune to differ on the

issue of whether assault occasioning actual bodily harm, as it existed prior to coming into effect of Sections 28 or 32 of the Non-Fatal

Offences against the Person Act, 1997 was a statutory or a common law offence. This is the issue raised in Mr. Grealis’s cross appeal.

The resolution of this issue will decide whether or not he can be further prosecuted on the charge contained in the Summons issued

against him on the 12th September, 1997.

Sections 28 and 31 of the Non-Fatal Offences against the Person Act, 1997.

2. Section 28 provides as follows:

“The following common law offences are hereby abolished -

(a) Assault and battery,

(b) Assault occasioning actual bodily harm,

(c) Kidnapping,

(d) False imprisonment.

3. It is clear from this that the draftsman of the Act and, one must presume, the Oireachtas, regarded the offence of assault

occasioning actual bodily harm as a common law offence. This was so despite high judicial support, albeit obiter, for the contrary view

in a case which is discussed below. However, the point is of limited significance since the statutory description of the offence would

hardly bind the Court if it were clearly to be established to be wrong in law. It is of no significance outside the immediate context of

this case because if the offence is indeed a statutory one it can only be so by virtue of Section 47 of the Offences against the

person Act, 1861. That provision is in any event repealed by Section 31 of the 1997 Act.

Assault and battery at common law.

4. The wrongs known as assault and battery have been recognised at common law from a very remote time and both civil and criminal

remedies have been provided for them. In Sir William Blackstone’s Commentaries on the Law of England 6th Edition Dublin 1775 each

is described separately, both as a crime and as a tort. By 1861, and probably much earlier in most usages, they had become largely

assimilated under the name assault: see for example Section 47 of the 1861 Act, discussed below. However, somewhat confusingly,

they also preserved a separate existence which is testified to in a small number of cases.

5. Blackstone Book III page 120 defined assault as “...... an attempt or offer to beat another without touching him”. As to battery he

said that it is:-

“...... the unlawful beating of another. The least touching of another’s person, wilfully, or in anger, is a battery; for the law cannot

the draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s

person being sacred, and no other having a right to meddle with it, in any the slightest manner.”

6. From the same source it appears that aggravated forms of assault were not recognised at common law unless they reached the

degree of wounding “which consists in giving another some dangerous hurt and is only an aggravated species of battery”, or mayhem

“which is an injury still more atrocious, and consists in violently depriving another of the use of a member proper for his defence in

fight. This is a battery, attended with this aggravating circumstance, that thereby the party injured is for ever disabled from making

so good a defence against future external injuries as he otherwise might have done”.

7. It appears, therefore, that at common law any unlawful touching with consequences less serious than would amount to wounding

or mayhem was described as battery. That term became assimilated over time, for most purposes, into the term “assault”, certainly

by the middle of the 19th century. This assimilation is manifest even in statutory provisions, as appears below.

The 1861 Act.

8. It is important to consider Section 47 of the Offence against the Person Act, 1861 in its statutory context. Sections 36 - 47 are all

under the general heading “Assaults”. Sections 36 - 41 provide penalties for assaults on specific persons or in specific circumstances

or both. For example, assault on a Magistrate while he is preserving a wreck, or on a clergyman while he is going to or returning from

the performance of his functions. They also provide in places for specific intents or a specific state of knowledge required for the

offence to come within the Section.

9. Sections 43 - 46 relate to the exercise of summary jurisdiction. Thus, by Section 42, a summary jurisdiction is conferred on two

justice of the peace to try a charge of assault or battery and a maximum sentence of two months is provided. Section 43 provides

that two justices may inflict a penalty of up to six months imprisonment if the assault is on a woman or a boy under the age of 14.

Section 44 provides that Magistrates who dismissed a charge in the exercise of this summary jurisdiction should issue a Certificate of

Dismissal and the next section provides that such certificate is a bar to other proceedings arising out of the same incident. Section 46

provides the circumstances in which summary jurisdiction may be ousted.

10. After these provisions comes Section 47 which is of central importance in this case. So far as relevant it provided in its original

form as follows:-

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

the Court, to be kept in Penal Servitude for the Term of three years...... and whosoever shall be convicted upon an Indictment for a

common Assault shall be liable at the Discretion of the Court to be imprisoned for any Term not exceeding One Year......”

11. Remote though it now is, the 1861 Act was by no means the first statute to provide specific penalties for specific aggravated

forms of assault. These earlier statutes no doubt reflect the concerns of their times; for example 37 Henry VIII Cap 6 relating to the

felonious cutting of ears. The 1861 Act in turn reflects the concerns of mid-Victorian Britain with its specific emphasis on crimes

against clergymen, magistrates in certain circumstances, seamen and assaults interfering with the supply of grain or in support of

unlawful combinations. It goes on to provide a summary jurisdiction of a modest nature and for the circumstances in which this

jurisdiction will be ousted. It then provides a general penalties for “any assault occasioning actual bodily harm” and for “a common

assault”, in each case when prosecuted on indictment.

12. Speaking of these and other provisions of the 1861 Act Mr. Peter Charlton in his book Offences against the Person Dublin 1992

say at page 196:-

“The elements of the offence [of assault] are of great importance as a host of offences are built upon the proof of the commission of

an assault. The structure of these offences divides them into basic assaults aggravated either by the harm done, the nature of the

intent of the accused, the status of the victim, or the circumstances of commission”.

13. Speaking specifically of assault occasioning actual bodily harm he says, at page 206:-

“The aggravating factor of bodily harm takes the penalty for a simple assault, prosecuted on indictment, from one year to five years”.

This last figure reflects a subsequent amendment of the 1861 statute.

14. If Section 47 is considered in the broader context of the 1861 Act, it will be seen that outside the context of the Section on

“assaults” other, more serious forms of offences against the person are created. Thus, Section 20 provides the offence of wounding

in a more modern form than is found at common law: “whosoever shall unlawfully and maliciously wound or inflict any grievous bodily

harm upon any other person either with or without any weapon..... shall be guilty misdemeanour......”. Similarly Section 20 creates an

aggravated offence of felonious wounding: “whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any

grievous bodily harm to any person...... within intent...... to maim disfigure or disable any person...... shall be guilty of felony and

being convicted thereof shall be liable to be kept in penal servitude for life.....”.

15. All of these aspects of the statutory context of Section 47 seem to me to support the proposition that Sections 36 - 47 deal with

the common law offence of assault and battery in various circumstances. Where specific new aggravated offences are created, they

are created elsewhere in the Statute. The Act of 1861 was, as its title suggests, an act to consolidate and amend the law relating to

offences against the person and it did so, inter alia, by creating aggravated offences which, in practice, superseded most of the

common law and earlier statutory provisions. But none of this was done in the section on “assaults” and in my view the natural

meaning of Section 47 provides that common assault prosecuted on indictment shall thereafter attract one sentence and an assault

which occasions actual bodily harm, a greater sentence. The Section does not appear to me, in its own terms, to create a new

offence of assault occasioning actual bodily harm anymore than it creates a new offence of assault. Certainly, it does not use the

language in which other sections, such as those quoted above, create new offences.

The State (O) v. O’Brien.

16. This case, reported at [1971] IR 42, is however one where a contrary opinion is strongly expressed by O’Dálaigh C.J. and his

learned colleagues. It is pointed out that assault occasioning actual bodily harm is variously treated as a common law or a statutory

offence by the editors of different editions of Archbold. The learned Chief Justice concluded, on this point:-

“I would describe the offence so created as a hybrid offence and, as a choice has to be made between stating the offence as a

common law offence.... or as a statutory offence simply...... I consider that the view of the editor of the 1922 edition is preferable.

The hybrid offence is a kind of statutory offence; it is not a common law offence. If it is to be assimilated into a category, then in my

opinion it falls to be identified as a statutory offence. Therefore I think it was proper to invoke the statute”.

17. I agree that this passage is obiter, for the reason stated by the Chief Justice in his judgment in this case. Counsel on both sides

of O had submitted that the offence was a common law one. Counsel for the State contended:-

“Assault is an indictable common law offence; the effect of finding that an assault has occasioned actual bodily harm to the victim is

merely to increase the penalty which can be imposed on a person convicted of such assault”.

18. Counsel for the Prosecutor expressed the same opinion in this way:-

“........ Section 47 of the Offences against the Person Act, 1861 does not create an offence but merely declares the penalty for an

existing common law offence....”.

19. It does not appear to me that a statute which penalises some action in different degrees by reference to its consequences

thereby creates two different offences. For example, Section 53 of the Road Traffic Act, 1961 as amended in 1968 and 1984,

provides as follows:-

“(1) A person shall not drive a vehicle in a public place in a manner (including speed) which having regard to all the circumstances of

the case..... is dangerous to the public.

(2) A person who contravenes subsection (1) of this section shall be guilty of an offence and

(a) In case the contravention causes death of serious bodily harm to another person, he shall be liable on

conviction on indictment to penal servitude for any term not exceeding five years or, at the discretion of the Court,

to a fine not exceeding £3,000 or to both such penal servitude and such fine and

(b) In any other case, he shall be liable on summary conviction to a fine not exceeding £1,000 or, at the discretion

of the Court to imprisonment for any term not exceeding six months or to both such fine and such imprisonment”.

The penalties for dangerous driving have since been altered, but that is not material to the present case.

20. It appears to me that Section 53, in more modern statutory language, creates a single offence while providing vastly different

penalties depending on the consequence of the offence. But the different consequences and the different penalties do not take from

the fact that there is one offence only. If there were two offences, a person acquitted of dangerous driving causing death could be

later prosecuted for dangerous driving. But this cannot occur: see AG (Ward) v. Thornton [1964] IR 458 at 483. Equally, a person

may be charged summarily with an offence contrary to Section 53(1) even though death or serious injury was caused by the alleged

dangerous driving. See The People (AG) v. Wall, High Court unreported 9th June, 1969.

21. There is clearly a vast difference in the techniques of statutory drafting manifested in Section 47 of the 1861 Act as compared to

the dangerous driving provision a century later. And there are other differences: the later section creates an offence and goes on to

provide different modes of prosecution, and different penalties, depending on the consequences, while the earlier section merely

refers to a common law offence, which is triable on indictment regardless of the consequences and provides different penalties

depending on those consequences. There is in each case a single offence. In the case of assault, it is an offence at common law.

DPP v. Murray.

22. In DPP v. Murray [1977] IR 360 it was held that Section 1 of the Criminal Justice Act, 1964 had created a new statutory offence

of capital murder which requires proof of mens rea in relation to each of its constituent elements. Counsel for the Prosecution had

contended that capital murder was merely a type or species of common law murder. On this distinction there vitally depended the

question of what had to be proved in the way of mens rea: if the lower test applicable to common law murder applied, the

Defendants would have been exposed to the death penalty.

23. The Supreme Court, reversing the Court of Criminal Appeal, held that the offence of capital murder was a new offence.

24. Having considered the terms of the Criminal Justice Act, 1964, I have no doubt that the decision of the Supreme Court in Murray

was correct. According to the long title of the Act of 1964, its object was “to amend the law as to the imposition of the death

penalty and as to malice in the case of murder”. Section 1(1) provided as follows:-

“A person shall not be liable to suffer death for any offence other than-”

25. There followed a list of three offences or types of offences. It is clear, therefore, that the draftsman had proceeded on the basis

that each of the matters which followed the initial words quoted was a separate offence. The first and third following matters were:-

“(a) Treason under the Treason Act, 1939.

(c) An offence by a person subject to military law under section 124, 125, 127 or 128 of the Defence Act, 1954”.

The second of the offences which followed the initiating words was:-

“(b) Capital murder, namely-”

There followed four types of murder of which the first was:-

“(i) Murder of a member of the Garda Síochána acting in the course of his duty”.

26. Section 3(1) of the Act provided that:-

“Where a person is accused of murder which is alleged to be capital murder, he shall be charged with capital murder in the

indictment”.

27. Still more significantly, Section 3(2) provided:-

“A person indicted for capital murder may, if the evidence does not warrant conviction for capital murder but warrants a conviction

for murder, be found not guilty of capital murder but guilty of murder.....”.

28. Section 3(3) provided that:-

“Capital murder shall be treated as a distinct offence from murder for the purposes of an appeal against conviction”.

29. Rather confusingly, Section 3(5) went on to provide that:-

“Subject to the foregoing subsections, capital murder shall not be treated as a distinct offence from murder for any purpose”.

30. Since DPP v. Murray was an appeal against conviction in which the Court of Criminal Appeal had certified that its decision involved

a point of law of exceptional public importance, it appears to me that Section 3(3) of the 1964 Act imperatively required the Court to

treat the offence of capital murder as distinct from the offence of murder. That is the plain, unambiguous and sole possible meaning

of the subsection. The offence of capital murder was both created and defined by Section 3(1) of the Act, and was required to be so

described in an indictment. The provision of a power both in the trial court and on appeal, to acquit of capital murder but convict of

murder emphasises the separateness of the offences. In other words, the 1964 Act in my view expressly creates a new offence,

committed in the four factual circumstances set out in the Act. It does not provide, as it might have, that a person convicted of

murder shall be liable to suffer death if the victim is a member of the Garda Síochána acting in the course of his duty, or in the other

circumstances mentioned, but otherwise shall be liable to penal servitude for life. It is not analogous in its draftsmanship either to

Section 47 of the 1861 Act or to Section 53 of the 1961 Road Traffic Act, set out above. As Henchy J. said, at page 394 of the

Report:-

“If the term ‘capital murder’ was not being used to denote a new offence, one might ask why it was introduced into the subsection

(or indeed into the act) for the types of murder which are to carry the death penalty are sufficiently identified in the four types of

murder set out”.

31. Walsh J., at page 380 of the Report said:-

“In my view, the whole context of the statute indicates the intention of the Oireachtas to create a new offence of capital murder. To

my mind, the statutory requirement that it should be charged as such requires that it should be charged as a statutory offence in the

indictment. One must also bear in mind that additional weight for the view that capital murder is a new offence is to be found in the

statutory provision of the alternative verdict to it being a verdict of murder. The statute also provides that, for the purpose of an

appeal against a conviction, capital murder shall be treated as a distinct offence from murder”.

32. At page 381, dealing with a submission based on Section 3(5) of the Act of 1964, the same learned judge suggested several

reasons for that provision and went on:-

“I do not think, however, that it can be read as if it said that there was no such offence as capital murder and that the expression

‘capital murder’ is simply to be used in cases of murder where capital punishment may be imposed. If that had been the intention of

the Oireachtas I think that the Statute would have been worded in a very different way”.

33. If the victim in the Murray case, Garda Michael Reynolds, had been murdered before the passage of the 1964 Act, his killers would

have been sentenced to death regardless of whether he was a garda, or acting in the course of his duty. After the passage of the

Act, a conviction for his murder would not have attracted the death penalty, which sentence would only be triggered by a conviction

for the new offence of capital murder requiring both that he be a member of the Garda Síochána and be acting in the course of his

duty. These additional elements reflect the fact that the offence was a new offence. This is to be distinguished from the situation

where the same offence attracts different penalties depending on its consequences. This distinction, I believe, lies at the heart of the

passage in the judgment of Griffin J. at page 408 of the Report, in numbered paragraphs 1,2,3.

34. Most fundamentally of all, Walsh J. in his introduction to this aspect of his judgment, at page 375 of the Report, summarised the

State’s contention to the effect that there was no new offence and said:-

“If that be the correct construction then, in the event of the murder of a Civic Guard in the course of his duty by a person who was

unaware that his victim was a Civic Guard and whose act (in that respect) was not intentional, the imposition of the death penalty

would be entirely fortuitous and unrelated to the moral responsibility of those who wilfully kill the State’s officers of the law in the

knowledge that the victims are such officer. Therefore, it becomes necessary to scrutinise carefully the Act of 1964 to see whether it

was clearly the intention of the Oireachtas to enact such a rule which it would be difficult, if not impossible, to defend upon the

grounds of either justice or expediency”.

35. The learned judge went on to expand his reference to expediency by pointing out that there could be no deterrent effect in the

retention of capital punishment for the murder of a garda unless the death sentence would be available “only if the assailant is in a

position to weigh up the consequences of his action before murdering a member of the Garda Síochána”.

36. In my view, Section 1 of the Act of 1964 is quite dissimilar to Section 47 of the Act, 1861 in virtually every respect. No

consideration such as those mentioned by Walsh J. in the last two citations is relevant in construing the earlier section. Neither, for

example, are such considerations relevant to the construction of Section 53 of the Road Traffic Act, 1961. The structure and

draftsmanship of the Sections are entirely different. The Act of 1964 expressly creates a new offence which Section 47 does not. It

is perfectly consistent, in my view, to accept the decision of the Supreme Court in Murray as correct without taking the view that it

requires that Section 47 of the 1861 Act be construed as creating a new statutory offence. The distinction, at bottom, is between a

new offence whose constituents are different to an existing one, and a single offence with different penalties depending on its

consequences. I believe that Section 47 is in the latter category.

37. As is pointed out in the judgment of the learned Chief Justice, the House of Lords in R v. Savage; R v. Parmenter [1991] 2 AER

225 held that to make out the offence contrary to Section 47 it was sufficient for the prosecution to show that the Defendant

committed an assault and that actual bodily harm was occasioned by it; it was not obliged to prove that the Defendant intended to

cause actual bodily harm or was reckless in that regard. It may be that the Section would have been open to constitutional attack on

that ground and, if so attacked, no presumption of constitutionality would have been available to defend it, or arguably to mandate a

different construction. But that possibility, which is now of academic interest only, has no relevance to the question of whether the

section creates a new statutory offence or merely a different penalty for an existing common law offence depending on the

consequences.

Matters not considered.

38. It may be desirable to point out that this judgment does not address the position of allegations of assault occasioning actual

bodily harm which have taken place before the operation of the repealing provision of the Nonfatal Offences against the Person Act,

1997, in respect of which prosecution has instituted after the coming into operation of the Interpretation (Amendment) Act, 1997.

Such a prosecution would not appear to be affected by the prohibition of retroactive penal legislation contained in Article 15.5 of the

Constitution since assault occasioning actual bodily harm was a criminal offence at the material time. Whether the Interpretation

(Amendment) Act, 1997 would operate to allow such a prosecution having regard to the repeal, and to the provisions of the Act

intended to preserve the constitutional rights of persons, is something which will have to be decided in another case on whose facts

the issue is properly raised.

Conclusion.

39. I agree with the orders envisaged in the last paragraph of the learned Chief Justice’s judgment save that I would extend the relief

granted in Mr. Grealis’s case to the third summons against him as well as to the first and second.