Quinlivan v. Governor of Portlaoise Prison [1997] IEHC 181; [1998] 2 IR 113 (9th December, 1997)

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1. The Applicant in these proceedings was arrested on the 14th day of October, 1996 at his home address at 5 Knockalisheen Avenue, Ballynanty Beg, Limerick and was detained under the provisions of Section 30 of the Offences Against the State Act 1939. On the following day 15th October, 1996 the Applicant was released from that arrest and was rearrested at common law for the offence of false imprisonment. On 16th October, 1996 the Applicant was brought before the Special Criminal Court in Dublin and was formally charged with the offence of false imprisonment of one Michael Lyons at Greenhill Road, Garryowen, Limerick on the 25th day of August, 1996 contrary to common law and Section 11 of the Criminal Law Act, 1976. On that day the case was adjourned to 13th November, 1996 and the Applicant was remanded in custody.

2. It subsequently transpired that one of the judges who had been sitting on the Special Criminal Court on the 16th October, 1996 was no longer a member of the Special Criminal Court and that the legal effect of this circumstance was that there was no valid court sitting on 16th October, 1996. The Applicant had therefore not been validly remanded in custody and his imprisonment in Portlaoise Prison was unlawful. A direction was given by the Minister for Justice for the release of the Applicant and he was released together with a number of other persons in similar circumstances at approximately midnight on the night of November 6th/7th 1996. He was virtually immediately rearrested and brought before a properly constituted Special Criminal Court on 7th November, 1996 where he was recharged with the said offence of false imprisonment contrary to common law and Section 11 of the Criminal Law Act, 1976. He was again remanded in custody to Portlaoise Prison.

3. The Applicant then commenced proceedings in this Court pursuant to the provisions of Article 40 of the Constitution challenging the lawfulness of his detention arising out of the proceedings on 7th November, 1996. This Court (Mr. Justice Kelly) refused the relief sought by the Applicant in those proceedings; the Applicant appealed this decision to the Supreme Court and the appeal was heard on the 20th October, 1997. The Supreme Court gave judgment on 7th November, 1997 (during the course of the present application before this Court) and upheld the judgment and Order of Mr. Justice Kelly.

5. On the 29th October, 1997 the Special Criminal Court gave judgment in the case of The People -v- Joseph Kavanagh . In this judgment the Special Criminal Court considered the effect of Section 28 of the non-fatal offences Against the Person Act, 1997. This Act, inter alia, created a new statutory offence of false imprisonment and abolished the common law offence of false imprisonment. The Court held that it was not possible for the Court to consider counts of false imprisonment in the indictment of Mr. Kavanagh as the offences charged had been abolished by the 1997 Act.

6. The Applicant in the present proceedings, Mr. Quinlivan, had been remanded in custody pending trial on a charge of false imprisonment. On 30th October, 1997 he applied ex parte to this Court pursuant to Article 40 of the Constitution on the grounds that he was unlawfully in custody and an Order was made by Mr. Justice Carney directing that he be produced before the Court by the Respondent Governor of Portlaoise Prison and that the Respondent should certify in writing the grounds of his detention. On 31st October, 1997 the Respondent duly certified the grounds of the Applicant's detention by production of the Committal Warrant of the Special Criminal Court dated 16th July, 1997 remanding the Applicant in custody pending his trial on 11th November, 1997. The enquiry into the lawfulness of the Applicant's detention pursuant to Article 40.4.2 was listed for hearing before this Court on 5th November, 1997 and the Director of Public Prosecutions was joined as a Notice Party. On 3rd November, 1997 a Notice pursuant to Order 60 of the Rules of the Superior Courts was served on the Attorney General raising the constitutionality of the relevant Sections of the Non-Fatal Offences Against the Person Act, 1997.

7. The matter was heard before this Court on the 5th, 6th and 7th November, 1997 and submissions were made on behalf of the Applicant, the Director of Public Prosecutions and the Governor of Portlaoise, and the Attorney General. Owing to the imminence of the listed date of trial of the Applicant I gave an ex tempore judgment on

8. I should note at this point that on account of the urgency of the matter and the short time available prior to its coming on for trial it was not possible for the various counsel involved to provide the Court with written legal submissions. It should be acknowledged, however, that the counsel involved presented their oral submissions to this Court with both learning and clarity, which was of considerable assistance to the court.

11. The position of the Special Criminal Court, and in particular the independence of its judges, was challenged in the case of Eccles -v- Ireland [1986] ILRM 343 . Its position and independence was upheld both by this Court and on appeal by the Supreme Court. In delivering the Judgment of the Court the then Chief Justice Mr. Justice Finlay stated (at

12. A number of aspects of the functioning of the Special Criminal Court were also challenged in Joseph Kavanagh -v- The Government of Ireland, the Director of Public Prosecutions, the Attorney General and the Special Criminal Court [1996] 1IR 321. In particular in that case the Supreme Court held that the maintenance in being of the Special Criminal Court under Part V of the Offences Against the State Act, 1939 continued to be justified and could not be regarded as an invasion or infringement of the constitutional rights of individual citizens. In the present proceedings it is accepted by all parties that the Director of Public Prosecutions correctly carried out the procedures necessary for the bringing to trial of the Applicant before the Special Criminal Court. It is clear that, apart from the issue of Section 28 of the Non-Fatal Offences Against the Person Act, 1997. The Applicant has been properly returned for trial in due course of law before the Special Criminal Court.

13. These proceedings arise therefore solely from the decision of the Special Criminal Court in The People -v- Joseph Kavanagh and from the judgment of that Court delivered by Mr. Justice Barr on the 29th day of October, 1997. This Court, while treating the judgment of the Special Criminal Court with great respect, is of course not bound by it.

14. The judgment of the Special Criminal Court in The People -v- Kavanagh is a long and detailed judgment containing some twenty-six pages. However, of these rather less than two pages deal with the issue which is before this Court. It is useful, therefore, to quote these pages in full. Under the heading "Counts 1, 2 and 3 in the indictment" the Court states:-

"Mr. White, counsel for the accused, has raised an issue of law regarding Counts 1, 2 and 3 in the indictment. They relate to respectively the false imprisonment of James Lacey, Joan Lacey and Suzanne Lacey which are stated to be 'contrary to common law and as provided for by Section 11 of the Criminal Law Act, 1976' (the 1976 Act). It is submitted that the offence charged is one at common law only and that Section 11 deals with penalty and does not create a statutory offence. The significance of this is that a statutory offence of false imprisonment has been created by Section 15 of the Non-Fatal Offences Against the Person Act, 1997 (the 1997 Act), which also abolishes the prior common law offence. There is no provision in that Act or in the interpretation Acts saving prosecution of such offences at common law allegedly committed prior to the date when the 1997 Act came into force

Mr. O'Higgins, Counsel for the Prosecution, accepts that such a lacuna exists, but he submits that Section 11 of the 1976 Act creates a statutory offence of false imprisonment which has not been abolished by the 1997 Act. Mr. White concedes that if there is a statutory offence of false imprisonment created by Section 11 in addition to that at common law, then the Accused may be prosecuted and tried for the statutory offence therein created after the 1997 Acts came into operation.

In the opinion of the Court the foregoing provision does not create a statutory offence. What it does is to categorise the common law offences of kidnapping and false imprisonment as being felonies and it provides also the maximum penalty which may be imposed on a person guilty of such offences. Section 11 is not a provision similar to Section 47 of the Offences Against the Person Act, 1861 which does create a statutory offence in addition to a similar offence of common law - see the judgment of Ó Dhálaigh C.J. in The State (O) -v- O'Brien [1971] IR 42 at pages 50 and 51. It follows, therefore, that Mr. White's submission is well founded that it is not possible for the Court to consider Counts, 2 and 3 in the indictment as the offences charged have been abolished the 1997 Act.

15. From this part of the judgment it is clear that the Special Criminal Court considered arguments by Counsel with regard to Section 11 of the 1976 Act and also with regard to Section 21(1) of the Interpretation Act, 1937. No other submissions are referred to in the judgment of the Special Criminal Court. In this Court, in regard to the charge of false imprisonment against the Applicant, Counsel made submissions in regard to the correctness or otherwise of the Special Criminal Court's decision in holding that Section 11 of the 1976 Act did not create a statutory offence and that therefore Section 21(1) of the Interpretation Act, 1937 did not apply but in addition Counsel also made wide ranging submissions in regard to the proper construction of the relevant sections of the Non-Fatal Offences Against the Person Act, 1997. Many of these matters do not appear to have been raised before the Special Criminal Court.

16. Another preliminary or subsidiary issue was raised by Mr. O'Carroll, Senior Counsel for the Applicant who challenged the propriety of the position taken by Counsel for the Director of Public Prosecutions in arguing for an interpretation of Section 28 of the 1997 Act contrary to that taken by the Special Criminal Court. Mr. O'Carroll pointed out that Counsel for the Prosecution in Kavanagh's case had accepted that there is a lacuna in the Act and that the Director of Public Prosecutions could not now resile from that position. He also claimed that the Oireachtas itself had accepted the correctness of the decision of the special criminal court in enacting (in considerable haste) the interpretation (amendment) Act, 1997, which purported to remedy the error criticised by the Special Criminal Court. Mr. O'Carroll challenged the ability of the Director of Public Prosecutions to raise the issue of the correctness or otherwise of the judgment of the Special Criminal Court, given that the Oireachtas and indeed the Director himself appeared to have accepted its correctness. While Counsel for the Applicant did not use the phrase "locus standi" his submissions appeared to me to amount to a challenge to the Director's locus standi. He submitted that the Director was a creature of the State and that his office could be abolished by the Oireachtas at any time.

17. Mr. McGuinness, Senior Counsel for the Director of Public Prosecutions and for the Respondent, submitted that the Director had a distinctive role as representing and protecting the rights of the victims of crime and in particular the victim of the crime with which the Applicant was charged. Mr. O'Carroll submitted that the victims of crime did not have a specific right to have a prosecution carried out on their behalf and that the Director did not have any such role.

18. The office of the Director of Prosecutions was established by the Prosecution of Offences Act, 1974. Under Section 2 subsection (4) it is provided that the Director shall be a civil servant in the Civil Service of the State and under subsection (5) it is stated that the Director shall be "independent in the performance of his functions". The fact that the Director is a civil servant of the State as opposed to being a civil servant attached to any particular department of government adds to and emphasises his independence and, while I accept, of course, that his office could be abolished by legislation passed by the Oireachtas in the future it appears to me that while the 1974 Act is in being the independence of the Director of Public Prosecutions in the performance of his functions is a vital feature of his position. While I would to a limited degree accept that in his role in promoting the prosecution of offences the D.P.P. is vindicating the rights of victims of crime Mr. O'Carroll is clearly correct in stating that not all victims of crime can have a right to have a prosecution carried out on their behalf. There can be many reasons (the state of the law, the unavailability of witnesses, etc.) which may mean that there will not be a prosecution in a particular case where a crime has been committed and where the rights of the victim cannot be vindicated in this way.

19. It would seem to me to be preferable to see the Director of Public Prosecutions in his role in the prosecution of criminal offences as being a representative of the right of the community to have alleged crimes prosecuted. This right has been referred to by the Supreme Court in D. -v- Director of Public Prosecutions [1994] 1 ILRM 435 at 442 and again in the lengthy and careful judgment of Denham J. in the Supreme Court in B. -v- Director of Public Prosecutions [1997] 2 ILRM 118. At page 127 of the report the learned Denham J. under the heading "Community's Right" states:-

"It is not B.'s interests only which have to be considered. It is necessary to balance B.'s right to reasonable expedition in prosecution of the offences with the community's right to have criminal offences prosecuted. The community's right to have offences prosecuted is not absolute but is to be exercised constitutionally, with due process."

20. The learned Denham J. goes on to state that the accused's right to a fair trial in a case where there is a real risk that he would not receive one would prevail over the community's right to have offences prosecuted. However, it is clear that this right of the community is an important one and in the instant case no issue has been raised which would suggest that the Applicant would not receive a fair trial.

21. Bearing in mind the statutory independence of the Director of Public Prosecutions and the role which he plays in vindicating the community's right to prosecute alleged offences I have no doubt that he may properly, through his Counsel, make the submissions which he has done in this Court in regard to the proper interpretation of

"Ordinarily, one might be content to accept a defendant's concession for the purpose of determining an appeal, but where this involves the construction of a statute which must affect the fortunes of may others, such a concession should not be accepted unless one is satisfied that it is correct. I am not so satisfied."

24. With regard to the interpretation (Amendment) Act, 1997 which was enacted on 4th November, 1997 which was subsequent to the commencement of the present proceedings it is agreed by all parties that this statute can have no effect on these proceedings. This statute has clearly been enacted by the Oireachtas as a matter of caution and in an effort to cure any possible lacuna in the Non-Fatal Offences Against the Person Act, 1997. It has obviously been enacted somewhat hastily and Mr. O'Carroll himself suggests that it may be open to constitutional challenge. Be that as it may, I cannot accept that its enactment represents a conclusive acknowledgement by the Oireachtas of the binding force of the judgment of the Special Criminal Court or that it operates as a bar to prevent the Director of Public Prosecutions and/or The Attorney General from canvassing an alternative interpretation of the relevant Sections of the 1997 Act.

26. The long title of this Act describes it as "an Act to revise the law relating to the main non-fatal offences against the person and to provide for connected matters". In a number of its aspects the 1997 Act is effectively a response by the legislature to the recommendations of the Law Reform Commission made in its Report on Non-Fatal Offences Against The Person (LRC45-1994). This Report drew attention, inter alia, to a number of difficulties inherent in the common law offences of kidnapping and false imprisonment and made recommendations for statutory reform of the law in this area. In response to these recommendations the legislature in the 1997 Act established a newly defined statutory offence of false imprisonment to replace the prior common law offences of kidnapping and false imprisonment.

28. Section 30 makes a number consequential amendments to the Schedule to the Bail Act, 1997. Section 31 provides that each enactment specified in column (2) of the Schedule to the Act is hereby repealed to the extent specified in column (3) of that Schedule. The relevant part of this Schedule provides that subsection (2) of Section 11 of the Criminal Law Act, 1976 is to be repealed. The relevant sections of the Act came into force on

29. This Section makes it unnecessary to provide a saver in the case where a statute repeals a previous statute or part thereof but, as pointed out by the Special Criminal Court, it does not cover a situation where there is a statutory abolition of a common law offence.

30. As was pointed out by Counsel for the Applicant there are a number of statutes, both in this jurisdiction and in England, where specific provision is made to deal with proceedings already in being. Counsel for the Applicant gave the example of the English Criminal Law Act, 1977, Section 5 of which abolished the offence of conspiracy at common law. However, Section 5 subsection (4) provided that the abolition would not effect any proceedings commenced before the time when that part of the Act came into force. An example in this jurisdiction would be Section 1 of the Family Law Act, 1981 which provided as follows:-

32. Equally, however, there are statutory provisions which are not specific as to whether they are to operate retrospectively, and these have from time to time had to be interpreted by the Courts. A well known example, which was dealt with in the case of Hamilton -v- Hamilton [1982] IR 466, is Section 3 of the Family Home Protection Act, 1976. A similar difficulty of interpretation arose in connection with Section 29 of the Judicial Separation and Family Law Reform Act, 1989; in his judgment in O'H. -v- O'H . [1990] 2 IR 558 at 565 Barron J. in interpreting this Section made the distinction between applying a new law to past events (which was not permissible) and taking past events into account (which would not be giving the Act retrospective effect).

33. I have no difficulty in accepting that the inclusion of an explicit saver is the preferable legislative practice; to that extent I would certainly agree with the criticism of the drafting of the 1997 Act voiced by the Special Criminal Court. However, Counsel for the Director of Public Prosecutions, supported by Counsel for Ireland and the Attorney General, strongly urged that the absence of an explicit saver was not the end of the matter and that considerations of statutory interpretation and also constitutional factors affected the proper construction of the relevant Sections. The issue before this Court on which Counsel based their submissions is whether, on a proper construction of the relevant sections of the 1997 Act, the intention of the Oireachtas was that the abolition of the common law offence of false imprisonment was to apply to all pending cases - and indeed to cases which were at hearing at the time the Act came into operation - where persons had been charged with the common law offence of false imprisonment and whose trial had not yet been completed. Such a provision would, of course, have the effect of providing immunity for all those, including the Applicant, who had been charged with the offence of false imprisonment and were awaiting trial.

34. The submissions of Counsel as to the proper construction of the Sections in question fell under a number of headings. Firstly, the question arose as to whether the abolition of the common law offence of false imprisonment taken together with the repeal of Section 11 of the Criminal Law Act, 1976 brought Sections 28 and 31 of the 1997 Act within the ambit of the saver provided by Section 21(1)(e) of the Interpretation Act, 1937 (quoted above).

35. Counsel for the Applicant relied on the judgment of the Special Criminal Court which held (at page 2 of the judgment) that the offence of false imprisonment was not a statutory offence despite the effect of Section 11 of the 1976 Act. Section 21(1) of the Interpretation Act, 1937 therefore could not apply to it.

36. Counsel for the Respondent submitted that the enactment of Section 11 of the 1976 Act changed the nature of the offence of false imprisonment, not merely imposing a much heavier penalty but also making the offence a felony rather than a misdemeanour. This had a number of new implications, including the power of arrest without warrant. False imprisonment, therefore, became at the very least what was described by O Dhálaigh C. J. in the State (O) -v- O'Brien [1971] IR 42 as a "hybrid offence". Such a "hybrid offence" would benefit from the saver contained in Section 21(1) of the Interpretation Act, 1937.

In the State (O) -v- O'Brien the learned then Chief Justice was dealing with the offence of assault occasioning actual bodily harm as set out in Section 47 of the Offences Against the Person Act, 1861 and its relationship to the common law offence of assault. The accused in that case was charged with assault occasioning actual bodily harm contrary to Section 47 of the Offences Against the Person Act 1861 as amended by the Criminal Justice Act, 1951. In that case it was submitted that Section 47 of the Offences Against the Person Act, 1861 was merely a punishment section and that the offence of assault was in fact a common law offence. At page 50 of the Report the learned Chief Justice O Dhálaigh, discussing the nature of the offence with which the accused was charged, states:-

"The need for reference to Section 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 ......But does Section 47 do more than refer to sentence? Archbold's practice in criminal cases 26th Edition (1922), deals with the offence as a statutory offence. There, at page 929, the statement of offence is 'assault, contrary to Section 47 of the Offences Against the Person Act 1861.' The 36th edition (1936), on the other hand, at page 978 paragraph 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 Section 47 of 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."

37. However, it is clear from this passage that Section 47 of the Offences Against the Person Act, 1961 did more than provide a penalty for the offence of common law assault; it also altered the nature of the offence by adding an aggravating factor. It does not appear to me that the combination of common law false imprisonment and Section 11 of the 1976 Act creates a "hybrid offence" of this nature, which could conveniently be brought within the classification of a statutory offence.

40. It also appears to me that the Special Criminal Court was correct in deciding that the addition of the words "and as provided for by Section 11 of the Criminal Law Act, 1976" to the charge of false imprisonment in the indictment does not bring the charge within the category of a statutory offence. While Section 11 of the 1976 Act alters the penalty for the offence and has a number of other peripheral effects, the core offence with which the Applicant is charged remains an offence under the common law. It cannot, therefore, benefit from the saver contained in Section 21(1)(e) of the Interpretation Act, 1937.

41. It is also submitted on behalf of the Respondent and the Director of Public Prosecutions that, despite the fact that the 1997 Act contains no specific provision to cover prosecutions such as that of the Applicant, the general principles of statutory interpretation, or canons of construction, would enable (and indeed convince) this Court to imply that Section 28 should not operate retrospectively so as to eliminate prosecutions already in being on

42. Before considering in detail the material put before this Court by Counsel on both sides it seems to me relevant to refer to a statement of general principle set out in Cross; Statutory Interpretation (3rd Edition) at pages 22 - 23 where the learned author refers to the authority of Blackstone's commentaries:

'the fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence or the spirit and reason of the law.'

For him, words are generally to be understood 'in their usual and most known signification', although terms of art 'must be taken according to the acceptation of the learned in each art, trade and science'. 'If the words happen still to be dubious', we may establish their meaning from the context, which includes the preamble to the statute and laws made by the same legislator on the same subject.

43. Volume 44 of the 2nd Issue of the English and Empire Digest, as referred to by Counsel, deals with the possible retrospective effect of statutory provisions in Section 5 which begins at page 284. The learned authors refer to a number of dicta concerning the possible retrospective effect of statutes in general. At paragraph 1135, for example, Avory J. is quoted in the case of Gloucester Union -v- Woolwich Union [1917] 2KB 374 as stating:-

"A statute is prima facie prospective and does not interfere with existing rights, unless it contains clear words to that effect, or unless, having regard to its object, it necessarily does so, and that a statute is not to be construed to have a greater retrospective operation than its language renders necessary whatever view may be entertained as the probable intention of the legislature unless some manifest absurdity or inconsistency results from such construction."

45. A number of references are also given which would tend to indicate that a statute should not be interpreted as having retrospective effect unless a clear intention to the contrary is shown in the actual wording. In Thompson -v- Lack (1846) 3 C.B. 540 it was stated that:-

"It is a well known maxim doctrine of law that an Act of Parliament which deals with substance of law, and does not merely regulate procedure, is to apply to the future and not to the past, unless it so specifically provides. Now, one ought to see a very strong indication of intention on the part of the legislature to break through that wholesome rule."

46. In his submissions Mr. McGuinness, Senior Counsel for the Respondent, also referred to a number of passages contained in Bennion's Statutory Interpretation referring to the retrospective operation of Acts. Bennion gives the rule (at page 214) that, unless the contrary intention appears, an enactment is presumed not to be intended to have a retrospective operation. At page 217 he states that:-

47. Counsel for the Respondent submits that it could not be held to be in the public interest that immunity should be granted to all those alleged to have committed offences of false imprisonment (and indeed the other offences listed in Section 28 of the 1997 Act) and that it cannot have been the intention of the Oireachtas that such an immunity should be conferred. In dealing with general interpretative principles the learned author again returns to this theme stating:

"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 legislator intended to observe this principle. It should therefore strive to avoid adopting a construction which is in any way adverse to the public interest."

"It is a rule of law (in this code referred to as the common sense construction rule) 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 legislator intended common sense to be used in construing the enactment.".

49. He submitted that it would be totally contrary to common sense to believe that in framing Section 28 of the 1997 Act the Oireachtas intended to grant immunity from prosecution to all those charged with the relevant offences prior to the coming into force of the Act but whose trials had not yet been completed.

"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."

"Transitional provisions in an Act or other instrument are provisions which spell out precisely when and how the operative parts of the instrument are to take effect. They serve a very useful purpose, since merely to say that an enactment comes into force on a specified date is often insufficient to produce a clear meaning. Lord Bridge said that the purpose of a transitional provision is 'to facilitate the change from one statutory rating to another' (Britnell -v- Secretary of State for Social Security [1991] 2 All ER 726 at 729].

52. This last statement is well reflected in the criticisms voiced by the Special Criminal Court of the drafting of the 1997 Act. However, I would accept that, as stated above, where the Act fails to include transitional provisions the Court has a duty to draw such inferences as to the intended transitional arrangements as it considers Parliament to have intended.

In Re: McLoughlin's application [1963] IR 465. In that case the applicant, who was the owner of a hotel premises, on the 3rd March, 1967 gave notice of her intention to apply to the Circuit Court for the grant of a certificate entitling her to obtain a licence for her premises by virtue of the provisions of paragraph 2 of Section 2 of the Licensing (Ireland) Act, 1902. At that date those provisions required the Applicant, at the hearing of her application, to establish (inter alia) that her premises contained at least ten apartments set aside and used exclusively for the sleeping accommodation of travellers. At the hearing of the application on the 31st May, 1960 the Circuit Judge would have been disposed to grant the application but for the fact that the furnishing of the ten apartments had not been completed and he adjourned the hearing, without having ruled upon the objections to the application, so as to enable the Applicant to complete such furnishing. On the 4th July, 1960 the Intoxicating Liquor Act, 1960 was passed and by Section 21 subsection (1) amended the provisions of the said paragraph 2 so as to require twenty apartments set aside and used as aforesaid in relation to premises situate in a County Borough. The Applicant completed the furnishing of the ten apartments and at the resumed hearing of her application on the 8th July, 1960 the Circuit Judge refused to grant the application on the ground that the applicant's premises, being within the County Borough, did not have twenty apartments so set aside and used.

54. As is set out in the head note, the learned then President of the High Court, Davitt P. held that when the Intoxicating Liqueur Act, 1960 was passed on the 4th July, 1960 the applicant had not acquired a right, protected by Section 21(1) of the Interpretation Act, 1937 to have a certificate granted as the Circuit Court Judge had not then made any adjudication upon the objections raised at the hearing of the application. Any right which the applicant had to have her application determined in accordance with paragraph 2 of Section 2 of the Licensing (Ireland) Act, 1902 (Unamended) was derived only from the common law and therefore was not protected by Section 21(1) of the 1937 Act. However, the learned President held that the circumstances of the Applicant's application fell within the principle of the common law rule that the rights of parties in proceedings pending when a statute is passed shall be determined in accordance with the law in existence at the commencement of the proceedings unless the statute contains provisions showing a clear intention to provide otherwise.

"in regard to party and party litigation the general rule appears to be, as submitted by Counsel for the applicant, that where, after an action has been commenced, the law is altered by statute so as apparently to affect the rights of the parties the action must nevertheless be decided according to the law as it existed when the action was commenced, unless the legislature by the language used shows a clear intention to provide otherwise."

56. The learned President went on to refer to a number of English cases, some of which I have referred to above in the context of statutory interpretation. He points out that the rule is not invariable and "does not apply if the language of the statute is clear and express", as was the situation in some cases arising under the Rent Acts.

"O'Leary's case is almost directly in point. There, one Patrick Brosnan had applied for a certificate for a publican's licence at the appropriate annual licensing sessions for 1901. On the hearing the justices were equally divided, and the hearing was adjourned until the next annual licensing sessions. On the 31st July, 1902, the Licensing Act of that year was passed. By Section 2 it provided that, subject to certain exceptions which could not help Brosnan, from and after the passing of the Act no publican's licence could be granted. When Brosnan's adjourned application came on for hearing at the annual licensing sessions for 1902 it was nevertheless granted by the justices. Their Order was set aside in the King's Bench Division on Certiorari as being made without jurisdiction. O'Brien L.C.J. dealt with the matter very briefly, as reported, he said that Section 2 of the Act of 1902 was of a most severe and peremptory character, and that nothing could be clearer. While there were certain exceptions to the prohibition against the granting of new licences they did not include any saving for pending applications; and Brosnan, accordingly, had no greater right than any other qualified person. The ratio decidendi is clearly to be found in the uncompromising nature of the prohibition whose intractable terms permitted no interpretation other than the plain meaning that subject to the exceptions no new licence was to be granted after the 31st July, 1902.

The proceedings in O'Leary's case, as in the present case, were not party and party litigation in the ordinary sense; yet the principles upon which the arguments (as indicated by the authority cited), and the decision, proceeded appeared to be the same as in the other authorities to which I have made reference. I can see no valid distinction to be drawn in this connection between ordinary party and party litigation and proceedings to obtain a licence. In my opinion the same principles apply to both. The matter is therefore, in my view, reduced to the issue whether the enactment in question clearly shows that the legislature intended that it should apply to pending proceedings.

Section 21 subsection 1 of the Intoxicating Liquor Act, 1960 merely repeals a certain provision of Section 2 of the Act of 1902 and substitutes another. There is nothing in it to indicate that the substitution is intended to affect any proceedings pending at the date of its enactment..... Applying to this case the principle (of common law) to which I have referred, I am satisfied that the Applicant's application must be determined in accordance with Section 2 of the Act of 1902 as unamended."

59. Counsel for the Applicant, Mr. O'Carroll, argued that all the principles of statutory interpretation called in aid by the Respondent, and the common law rule in McLoughlin's case had been applied in party and party litigation or other forms of civil litigation. None of the cases cited dealt with the position which arose in criminal proceedings in regard to pending cases where statutory change was made effecting the common law. He submitted that the wording of Section 28 of the 1997 Act was clear and had been accepted as being so by the Special Criminal Court and that it was unjustifiable to imply a provision dealing with pending cases where no specific saver had been included in the statute by the Oireachtas. It was open to the legislature, who, under the doctrine of the separation of powers, had the primary constitutional role in the drafting, wording and enacting of statutes, to include a specific saver applying to pending cases (as they had in other instances). The omission of any such saver in the 1997 Act was a clear indication that no such saver existed. The common law offence of false imprisonment had been abolished as and from

60. I have carefully considered the helpful submissions in regard to statutory interpretation and the "common law rule" made on behalf of the Respondent. They are undoubtedly persuasive and if one were to apply the rules of "public interest" or "common sense" it would be difficult to accept that the intention of the Oireachtas in enacting

61. However, I would agree with Mr. O'Carroll that there is an element of doubt in applying canons of construction derived from civil cases to criminal proceedings. There is also the difficulty that in the case law dealing with the undesirability of retrospection the decision of the court is generally directed towards preventing retrospection of a type which would be damaging to the party involved. In the instant case a decision that the abolition of the common law offence of false imprisonment operates retrospectively to affect those charged with that offence prior to the coming into force of Section 28 of the 1997 Act would be to the Applicant's advantage. Retrospectivety in a statute is defined in Craies on Statute Law as being when the statute:-

"(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

"The Act .... having been passed since the coming into force of the Constitution, the first and fundamental rule which governs that interpretation is that it must be presumed that the Oireachtas intended an interpretation which will not offend any express or implied provision of the Constitution - see McDonald -v- Bord na gCon (No. 2) [1965] IR 217 and East Donegal Co-operative -v- The Attorney General [1970] IR 317."

69. In the instant case it is submitted by Counsel for the Respondent that if Section 28 of the 1977 Act were to be interpreted as preventing the continuation of the prosecution of the Applicant on the charge of false imprisonment by bringing him to trial on the date fixed, this would represent an impermissible interference in the independent judicial process. Counsel referred the Court to Buckley -v- The Attorney General [1950] IR 67 (the "Sinn Féin Funds case") The facts of that case are well known and need not be recited here. They have been recalled in detail in an interesting article by Mr Gerard Hogan in the July 1997 issue of the "Bar Review". The action of the Oireachtas in purporting to intervene by means of legislation to prevent a trial in a case which was already before the courts was rejected in ringing terms by Gavin Duffy P. At page 69 of the report the learned then President described the case as raising:-

"I am not today concerned with the merits of the Plaintiffs' claim, but with their right to have a trial by a Judge of the High Court ... I assume the Sinn Fein Funds Act, 1947 .... to have been passed by the legislature for excellent reasons .... but I cannot lose sight of the constitutional separation of powers. This Court cannot, in deference to an Act of the Oireachtas, abdicate its proper jurisdiction to administer justice in a cause whereof it is duly seized. This Court is established to administer justice and therefore it cannot dismiss the pending action without hearing the Plaintiffs .....Moreover, this action is not stayed unless and until it is stayed by a judicial order of the High Court of Justice; the payment out of the funds in Court requires a judicial Order of this Court, and under the Constitution no other organ of State is competent to determine how the High Court of Justice shall dispose of the issues raised by the pleadings in this action."

71. The matter was appealed to the Supreme Court by the Attorney General and the judgment of the Court was delivered by O'Byrne J. In the main the Supreme Court dealt with the constitutional right to property but it also dealt with the issue of separation of powers. At page 84 of the Report the learned O'Byrne J. states:-

"There is another ground on which, in our view, the Act contravenes the Constitution. We have already referred to the distribution of powers effected by Article 6. The effect of that Article and of Articles 34 - 37, inclusive, is to vest in the Courts the exclusive right to determine justiciable controversies between citizens or between a citizen or citizens, as the case may be, and the State. In bringing these proceedings the Plaintiffs were exercising a constitutional right and they were, and are, entitled to have the matter in dispute determined by the judicial organ of the State. The substantial effect of the Act is that the dispute is determined by the Oireachtas and that the Court is required and directed by the Oireachtas to dismiss the Plaintiffs' claim without any hearing and without forming any opinion as to the rights of the respective parties to the dispute. In our opinion this is clearly repugnant to the provisions of the Constitution, as being an unwarrantable interference by the Oireachtas with the operations of the Courts in a purely judicial domain."

In Maher -v- Attorney General [1973] IR 140, for instance, the discretion of the Courts in evaluating evidence was upheld as being an integral part of the Court's competence to administer justice. This case arose on Section 44(2)(a) of the Road Traffic Act, 1968 which provided that a certificate stating that a specimen of a person's blood contained a specific concentration of alcohol, was to be:-

"[This provision] precludes the District Justice from forming any other judgment in respect of this vital ingredient for the prosecution's case; he is bound under the terms of the statutory provision to proceed and act as if this had been his own judgment on the matter. It was clearly intended by the Oireachtas that ..... the statutory provision was to remove this element altogether from the area of contestable facts. In effect it means that an accused person is not free to contest the determination of the concentration of alcohol set out in the certificate.

The administration of justice, which in criminal matters is confined exclusively by the Constitution to the courts and judges set up under the Constitution, necessarily reserves to those courts and judges the determination of all the essential ingredients of any offence charged against an accused person. In so far as the statutory provision in question here purports to remove such determination from the judges of the courts appointed and established under the Constitution, it is an invalid infringement of the judicial power."

In The State (McEldowney) -v- Kelleher [1983] IR 289 the Supreme Court held unconstitutional Section 13(4) of the Street and House and House Collections Act, 1962 because it provided, where an appeal was brought to the District Court against a refusal of a police chief superintendent to grant a collection permit, that if a police officer stated on oath that he had reasonable grounds for believing that money raised by the collection would be used for one or more of a number of listed unlawful purposes, the District Judge was to disallow the appeal. In the Supreme Court Walsh J. said that:-

In Costello -v- Director of Public Prosecutions [1984] IR 436 the Supreme Court dealt with the power of the Attorney General given by Section 62 of the Courts of Justice Act, 1936 which enabled the Attorney General (and subsequently the Director of Public Prosecutions), in a case where the District Judge after hearing depositions, held that they did not disclose a prima facie case against the accused and refused a return for trial could himself order a return for trial to the Circuit Court on the same charges for which the District Judge had refused to make a return. This matter had been dealt with previously in The State (Shanahan) -v- Attorney General [1964] IR 239 but in Costello's case the Supreme Court took a different line, holding that the determination by the District Judge that there was not sufficient evidence to put the accused on trial for an indictable offence was a judicial one and the effect of a direction under Section 62 was "to render this determination nugatory". Also the Court did not accept that a direction under the Section was not an intervention in the "particular controversy before the District Court which has, in any event, already been brought to an end by the refusal of information". On this aspect of the matter O'Higgins C.J. said:-

"The controversy which was before the District Court was one between the people and Plaintiff as to whether there was sufficient evidence to put him on trial. A power given to a non judicial authority to come to a conclusion different from that of the District Court and to enforce that conclusion by compelling the person accused to stand trial is .... an impermissible intervention in the controversy between the people and that person. "

74. The principles set out in Costello's case have a distinct relevance to the instant case where the Court had completed all preliminary processes and had returned the Applicant for trial before the Special Criminal Court and subsequently the legislature enacted a statute which on the interpretation canvassed by the Applicant would in fact prevent his trial.

76. Counsel for the Applicant on this point stresses the power of the legislature to enact statutes which effect the criminal law and the fact that it is for the legislature to decide the form and content of statute law. This power is undoubted; the question in the instant case, however, is whether it is permissible for the legislature to take steps which would actually intervene in a case already before the Court. Counsel for the Applicant in referring to the Buckley/Sinn Fein Funds case points out that this was an interference by the legislature on an individual basis in an individual case and that Section 28 of the 1997 Act is a general provision not directed only to the case of the Applicant. This is undoubtedly true but in some of the other cases quoted and in particular in Maher's case and Costello's case the intervention of the legislature was also of a general nature rather than intervention in an individual case.

77. Finally I have been referred both by Counsel for the Respondent and by Counsel for Ireland and The Attorney General, Mr. Butler, to the leading case of Hamilton -v- Hamilton [1982] ILRM 290 [1982] IR 466, in which the Supreme Court dealt with the question as to whether Section 3 of the Family Home Protection Act, 1976 could operate retrospectively. The facts of that case are well known and may be summarised briefly. On 25th January, 1973 Major Charles Hamilton entered into a valid and enforceable written agreement to sell a certain property which was the family home of himself and his wife to Frank Dunne. The property was held in the sole name of the husband. The husband had refused to complete the sale by 25th January, 1975, the latest date provided for by the contract, and the purchaser Mr. Dunne commenced specific performance proceedings on

10th November, 1975. While these proceedings were in progress the family Home Protection Act, 1976 was enacted. While the husband defended the specific performance proceedings he failed to rely on Section 3 of the 1976 Act as a defence. When the case came on for hearing Hamilton J. gave a decree for specific performance. After the bringing of proceedings to enforce that decree the Court directed that the sale be closed and possession handed over before 1st November, 1979. The conveyance had been made without the consent of the wife and in July 1979 she instituted proceedings against both Mr. Dunne and her husband seeking a declaration that the conveyance signed (but not executed) by her husband was void by reason of Section 3 of the 1976 Act. In the High Court Gannon J. held that any purported conveyance in pursuance of the specific performance decree would be void under Section 3 of the 1976 Act and he directed that all further proceedings in the specific performance suit should be stayed. The purchaser appealed. The Supreme Court allowed the appeal and set aside the declaration made in the High Court.

78. Subsections (2) and (3) and Section 4 were not of particular relevance in the Hamilton case and need not be considered here. This Act made a crucial and far reaching change in the law as regards conveyancing. The Section contains no provisions or saver to cover transactions which had been begun, but not completed, or in respect of which proceedings were pending, at the time of the passing of the Act. As was stated by

"these being the relevant provisions of the Family Home Protection Act, 1976 the first matter which should be noted is that this Act sets out to alter the law. It is not an Act dealing merely with form or procedure. It is an Act which declares transactions previously regarded in law as binding and valid to be unenforceable and void if not carried out in accordance with the provisions of Section 3."

ex post facto statutes are to be in Acts of immunity or pardon. Other statutes having retrospective effect are statutes dealing with the practice and procedure of the Courts applying to causes of action arising before the operation of the Act. Such statutes do not and are not intended to impair or effect vested rights and are not within the type of statute with which, it seems to me, this case is concerned. For the purpose of stating what I mean by retrospectivity in a statute, I adopt a definition taken from Craies on Statute Law which is, I am satisfied, based on sound authority. It is to the effect that a statute is to be deemed to be retrospective which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already passed (See Craies 5th Edition 357)."

"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 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."

"Having, perhaps unnecessarily, referred to the past and the manner in which the Courts both in England and in Ireland considered the question of retrospectively in relation to acts of a sovereign parliament. I must now come to the present and to the examination for the same purpose of an Act of the Oireachtas. The Oireachtas, or legislature, is like all other organs of the State, subject to the Constitution. Its powers are circumscribed by the constitutional limitations. In considering and interpreting Acts of the Oireachtas we must, in the first instance, assume that what the legislature has done was not intended to contravene the Constitution. This presumption of validity prevails until the contrary is clearly established. It follows that in interpreting or construing an Act of the Oireachtas where two possible meanings or intentions are open, one of which conforms with the Act's validity having regard to the provisions of the Constitution, and the other one which does not, that meaning or intention which so conforms must be preferred........

If I were to examine the legislation solely in accordance with the common law principles which I have outlined I would be bound to assume that the legislature did not intend to affect contracts and transactions already entered into but, on the contrary, intended only to affect such contracts and transactions as were entered into after the Act came into operation. I would continue so to view it unless or until something in its provisions compel me to take a contrary view. Adopting this approach, in the first instance, I must at once declare that I can find nothing in this Act which displaces the presumption of prospectivity.... However, when one considers that this is an Act of the Oireachtas, the proposition that it was intended to effect and frustrate pre Act contractual rights becomes unstatable. Were this legislation to have the effect contended for it would constitute an unjust attack upon and a failure by the State to vindicate the property rights of Frank Dunne and of others similarly situated and would constitute a clear infringement of

"I have itemised in chronological order the various relevant steps taken in the first of the two actions that were consolidated, primarily for the purpose of showing that when the 1976 Act came into force, there was pending in the High Court a specific performance suit brought by the purchaser under which he was entitled (as the unappealed Order of Hamilton J. was to prove) to compel the vendor to convey to him the property which was the subject matter of the written agreement of 25th January, 1973. What the Order under appeal has done in effect is to bring to a halt and render sterile the purchaser's judicially approved claim in that specific performance suit; and the authority relied on for so deciding is Section 3 of the 1976 Act. In other words Section 3 has been interpreted as having had the effect of killing off a valid and pending claim in the High Court by a purchaser for the specific performance of a

Even if this consolidated action were to be decided under common law without any reference to the limitations imposed on the legislature by the Constitution, I would feel unable to uphold that ruling. From a wide range of judicial decisions I find the relevant canon of interpretation at common law to be this: when an Act changes the substantive as distinct from the procedural law, regardless of whether the Act is otherwise prospective or retrospective in its operation, it is not to be deemed to affect proceedings brought under the pre-Act law and which were pending at the date of the coming into operation of the Act, unless the Act expressly or by necessary intendment provides to the contrary."

'There is no such express provision or necessary intendment to the contrary in the 1976 Act and the change made in the law by the Act could not be said to be procedural rather than substantival. Its provision that an agreement to sell, as well as the actual conveyance, shall be void without the prior consent in writing of the vendor's spouse, might be argued (in my view without much hope of success) to connote a retrospective operation but a stateable argument could not be compounded that the Act gives an express or necessarily implied power to strike down proceedings which were pending when the Act came into operation. Maxwell, the Interpretation of Statutes,

I would cavil at that statement of law to the extent that the rule of interpretation it sets out is stated to be only a general one, thereby suggesting that it admits of exceptions. In my opinion, the judicial authorities show that it is a universal rule and that it applies to all pending actions unless the language used in the enactment is susceptible of no other conclusion than that the rights of parties depending actions are intended to be affected: see, for instance, the judgment of the privy council in Zainal bin Hashim -v- Government of Malaysia [1980] AC 734.....

But even if the 1976 Act showed a clear intention to put an end to pending proceedings for the specific performance of a pre-Act agreement to sell what the Act was to define as a "family home", such an invasion by the legislature of what is exclusively a judicial preserve would not be constitutionally permissible. As Professor J. M. Kelly has pithily put it in his book, the Irish Constitution (1980) at paged 191:-

"If, therefore, the effect of the 1976 Act was to extinguish or stultify the purchaser's constitutional right to pursue his pending claim for specific performance (a claim which the High Court, after a plenary hearing, has formally declared to be good in law), the Act would to that extent be unconstitutional. However, as the Act enjoys a presumption of constitutionality, and as it makes no reference, expressly or by necessary intendment, to pending proceedings (such as that brought by the purchaser), I would hold that it must be read as having no bearing on such proceedings."

87. I have already surveyed the general trend of the canons of construction and of the common law rule of interpretation as set out in McLoughlin's case. It seems to me that the interpretation of Section 28 of the 1997 Act must be considered not only in the light of these rules but in addition, and simultaneously, in the light of the constitutional requirement of non-interference with the judicial process. This requirement is most clearly set out by the Supreme Court in Buckley's case and in Hamilton -v- Hamilton . These judgments are, of course, binding on this Court.

88. Where two constructions or interpretations of the relevant statutory provisions are open, the Courts must adopt that which is not in conflict with the constitution. As was the case in the Family Home Protection Act 1976, the 1997 Non-fatal Offences Against the Person 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.

If Section 28 and the other relevant provisions of the Non-Fatal Offences Against the Person Act, 1997 are read in this light then I must hold that the intention of the Oireachtas was to act prospectively, and not to interfere with prosecutions under common law and Section 11 of the Criminal Law Act, 1976 of which the Courts were already seised.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Quinlivan v. Governor of Portlaoise Prison [1997] IEHC 181; [1998] 2 IR 113 (9th December, 1997) URL: http://www.bailii.org/ie/cases/IEHC/1997/181.html Cite as: [1998] 2 IR 113, [1997] IEHC 181

High Court of Ireland Decisions

Quinlivan v. Governor of Portlaoise Prison [1997] IEHC 181; [1998] 2 IR 113 (9th December, 1997)