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1. Statements of opposition having been filed by the DPP and the Attorney General in both cases, the hearing of the motion claiming the relevant relief came on first in Grealis and was heard by O’Donovan J. In a reserved judgment, he accepted the submission on behalf of the applicant that, in the absence of any transitional provisions in the 1997 Act, the applicant could not be convicted of the common law offences with which he was charged, they having been abolished by that Act. It was conceded on behalf of the DPP that s. 21 of the Interpretation Act, 1937 (hereafter “the 1937 Act” ) dealing with the effect of the repeal of offences could not be availed of by him, so far as the common law offences were concerned, since it applied only to statutory offences. O’Donovan J. pointed out that this was also in accordance with the views expressed in two earlier High Court decisions, Quinlivan .v. The Governor of Portlaoise Prison and Others (1998) 2 IR 113 and Mullins .v. Harnett (1998) 2 ILRM 304. However, he was also satisfied that the offence with which the applicant was charged in the third summons was a statutory offence and not a common law offence, having regard to the observations of

2. Ó Dálaigh C.J. in The State (at the prosecution of O.) .v. Eveleen O’Brien (1971) IR 42 and that, accordingly, the prosecution could be maintained in respect of that summons by virtue of the provisions of the Interpretation Act 1937.

3. The learned High Court judge then went on to consider the provisions of the 1997 Interpretation Act and concluded that it was invalid having regard to the provisions of the Constitution, since it entrusted to judges of the District Court the determination of its constitutionality contrary to the provisions of Article 34.3.2, allowed for the unequal treatment of citizens contrary to the provisions of Article 40.1 and constituted an interference with judicial processes in being. He accordingly granted the relief sought in respect of the first two summonses.

4. A statement of opposition having also been filed in Corbett, the motion seeking the relevant relief came on for hearing before McGuinness J. The learned trial judge rejected a submission advanced on behalf of the applicant that the DPP was bound in the instant case by a concession said to have been made on his behalf by counsel in The People .v. Kavanagh , i.e. that a prosecution could not be maintained in respect of common law offences abolished by the 1997 Act, adhering to the view she had formed to the same effect in Quinlivan .v. The Governor of Portlaoise Prison and Others . While her judgment does not contain any express finding on the issue, it must, I think, be inferred that she took the same view as O’Donovan J. as to the consequences of the absence of any transitional provisions in the 1997 Act, since she went on to consider the constitutionality of the 1997 Interpretation Act. (It should be pointed out, in this context, that arguments were addressed to the learned High Court judge in this case which do not appear to have been advanced in Quinlivan.) She was, however, satisfied that the 1997 Interpretation Act was not unconstitutional and that the effect of it was to enable the prosecution in the instant case to proceed. She accordingly refused to grant the applicant the relief sought.

5. In this court, broadly similar arguments in respect of the two appeals were advanced in Grealis and Corbett. It is, accordingly, convenient to deal with them together.

6. It was submitted on behalf of the applicants that it was a settled rule of the common law that, in the absence of any saving transitional provisions in the statute under consideration, the effect of the abolition of an offence by statute was that it ceased to exist for all purposes, save in cases which had been prosecuted to finality prior to the enactment of the relevant legislation. Were it otherwise, it was said, a person could be charged with, and convicted of, an offence unknown to the common law. They referred in this connection to a number of English and American authorities, viz, Miller’s case (1764) 1 WI.P.l 450; R. .v. MacKenzie (1820), Russ and Ry 429; Kay .v. Goodwin (1830)

7. Mr. Hogan said that, in the result, the DPP did not have to rely on the provisions of the 1997 Interpretation Act. He submitted that, in any event, the Act did no more than codify the existing common law in relation to the abolition of offences. He conceded, however, that it would be difficult for the DPP to rely on the 1997 Interpretation Act, if that arose, having regard to the decision in the Sinn Féin Funds case .

8. On behalf of the DPP and the Attorney General in Grealis, Mr. Maurice Gaffney, S.C. made submissions to the same effect as those advanced by

9. He further submitted that the provisions in the 1997 Interpretation Act preserving the constitutional rights of persons which might otherwise be infringed by its provisions meant no more than that the courts, in giving effect to the 1997 Act in allowing the prosecution in Grealis to proceed, must uphold any constitutional rights of the applicant if they came under threat: it did not have the consequence of rendering the further prosecution of the offences unconstitutional, as contended for on behalf of the applicant.

10. As to the cross appeal in Grealis, Mr. Counihan S.C. on behalf of the applicant submitted that the learned trial judge was in error in treating the offence in the third summons as a statutory offence. He said that the observations of Ó Dálaigh C.J. in The State (O.) .v. Eveleen O’Brien were obiter, were erroneous in point of law and should not be followed. He submitted that the only effect of s. 47 of the Offences Against the Person Act, 1861 (hereafter “the 1861 Act” ) was to provide for a particular penalty where the common law offence of assault gave rise to the consequence of occasioning actual bodily harm. He relied in this context on the judgment of Egan J. speaking for this court in DPP .v. E.F. (unreported: judgments delivered 24th February 1994).

11. Replying on behalf of the DPP, Miss Adrienne Egan submitted that the law had been correctly stated by Ó Dálaigh C.J. in The State (O.) .v. Eveleen O’Brien : both the actus reus and mens rea of the offence of assault occasioning actual bodily harm were different from the actus reus and mens rea which had to be established in the common law offence of assault.

12. I have already set out the provisions of s. 28(1) of the 1997 Act. It should also be noted that, by virtue of s. 31 of that act and the Schedule, s. 47, together with a number of other sections in the 1861 Act, was repealed.

13. These provisions replicated almost verbatim the corresponding provisions in s. 38 (1) of the Interpretation Act, 1889, which were repealed by the 1937 Act.

14. Section 1 of the 1997 Interpretation Act provides as follows:-

15. Where parliament by legislation abolishes a criminal offence and says that, in effect, the conduct which it was there to restrain will henceforth be lawful, it would seem a matter of common sense that no court could convict a person of such an offence. How, it might well be asked, could any court have power to inflict punishment on a person who had done nothing wrong?

16. Fortunately, the law as evolved in judicial decisions frequently, if not invariably, does accord with common sense and so it is in the present case. As long ago as 1764, an English court said in Miller’s case :-

17. But that case recognised, as common sense would also have suggested, that it is perfectly competent for the legislature to provide in the repealing statute that it is not to affect crimes alleged to have been committed before it was enacted.

18. As Tindal C.J. put it in the later case of Kay .v. Goodwin in 1830:-

19. The same view of the law was expressed in even more trenchant language by Rolfe B. in R. .v. Swann , where he said:-

20. The law was stated in similarly emphatic terms by the Supreme Court of the United States in The General Pickney and in United States .v. James Tynen , where it was laid down, without any qualification, that there could be no legal conviction, unless the law creating the offence was in existence at the time.

21. Following the enactment of the Interpretation Act, 1889, it was possible for courts to convict in respect of offences allegedly committed prior to the enactment of the repealing statute, even in the absence of saving or transitional provisions, but the legislation in question applied only to statutory offences. The United States Supreme Court made it clear in United States .v. Chambers (291 US 217), that where the repealing statute contained no such saving or transitional provisions and the Act of Congress corresponding to the Interpretation Act was not applicable, the law remained as stated in the earlier decisions.

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

23. This formidable body of authority, it is said on behalf of the DPP, applies only to the repeal of statutory offences. No logical or principled distinction was drawn, however, between the application of this well settled rule of law to statutory offences and to common law offences and, with good reason, since it is clear that there is no such distinction. Common sense, as well as authority, leads one inexorably to the conclusion that, where a common law offence is repealed by statute, in the absence of any saving provision it ceases to exist for all purposes and no prosecution can be maintained in respect of it after the repealing statute has taken effect.

24. Faced with this difficulty, counsel on behalf of the DPP in both Grealis and Corbett have sought to rely on various principles of statutory interpretation and on the provisions of the Constitution.

25. The first line of argument takes as its starting point the fact that the 1997 Act did more than repeal the existing common law offences of assault and assault occasioning actual bodily harm. (I shall assume for the moment that, contrary to the argument advanced on behalf of the DPP in the cross appeal in Grealis, the latter offence is properly so described.) It replaced them with three new offences framed in such a way as to remove features of the old common law which might seem anomalous or inappropriate to contemporary sensibilities.

26. The argument advanced on behalf of the DPP in both cases was in essence that, given that the repealed common law offences were simply being replaced by modernised versions of the same offences, it cannot have been the intention of parliament that persons who had allegedly committed the common law offences before the enactment of the 1997 Act should be given immunity against prosecution, there being, as it was said, no rational basis for such an immunity to be afforded them. The first maxim of interpretation deployed in favour of that argument was the statement of the law in Bennion on Statutory Interpretation , Third Edition, at p. 233 as follows:

27. That statement of the law depends, of course, on what the applicable interpretative criteria are. The first of them relied on is what was described as the “public interest” principle. That is explained by the learned author at p. 606 as follows:

28. The public interest identified in this case is, of course, that acts of violence committed against anyone should not, in general, go unpunished. That is also reflected, it is argued, in the provisions of Article 40 of the Constitution guaranteeing the personal rights of citizens.

29. The next principle referred to in Bennion which is relied on is what is described as “the common sense construction rule” and is explained as follows at p. 427:

30. Common sense, it is said, would suggest that it cannot have been the intention of the Oireachtas to leave assaults, even in a limited category, unpunished.

31. The application of the rules in question manifestly depends on the existence of what are called “opposing constructions” of the enactment in question. Works such as Bennion and Craies on Statute Law , Seventh Edition, are replete with examples of cases in which the courts have had to consider such opposing constructions. The language used in the statute may be ambiguous. The enactment may be capable of either a literal construction or a strained construction. In such cases, it may well be that the interpretative maxims in question can resolve the problem for the court.

32. Section 28(1) of the 1997 Act is, however, clear and unambiguous. The only construction of which it is capable is that the common law offences to which it applies are abolished from the coming into force of the section. They cease to exist in law with all the consequences that flow from their abolition spelled out in the many authorities to which I have referred. Counsel in the present case have been unable to put forward any construction of the provision in question which displaces the plain and unambiguous meaning of the words the draughtsman has used.

33. A further rule of construction advanced on behalf of the DPP was what is sometimes described as the presumption against retrospectivity. In Hamilton .v. Hamilton (1982) IR 466, O’Higgins C.J. cited the following general statement from the judgment of Wright J. in In re Athlumney (1898) 2 QB 547:-

34. Again, that principle can have no application where, as here, the language used is capable of one interpretation only. In the same case, Henchy J. referred to the general principle that the rights of the parties should be decided according to the law as it existed when the action was begun

35. Again, that rule can have no application where, as here, the wording of the statute permits of only one construction. In any event, the cases in which that maxim have been applied appear generally to have been cases in which the rights of parties in civil law are under consideration. No authority, other than the constitutional cases to which I shall shortly turn, was cited to us for the proposition that the principle applied also in criminal cases.

36. McGuinness J. expressed her conclusion as follows:

37. The applicants will, accordingly, be entitled to succeed, unless the DPP can rely on the 1997 Interpretation Act. If that Act is valid having regard to the provisions of the Constitution and if it did not contain subsection (4), it would unquestionably put an end to the difficulties experienced by the DPP in these two cases. The wording of s. 1(1)(c) and subsection (2) is clear and comprehensive and they apply by virtue of subsection (3) to common law offences abolished before or after their enactment.

38. Subsection (4) has been inserted in the section as a form of constitutional safety net to ward off a possible finding of unconstitutionality. It is in virtually identical terms to provisions in earlier legislation also enacted by the Oireachtas in response to difficulties arising in some cases, as here, from judicial decisions.

39. In the case of the Courts (No. 2) Act, 1988, the difficulty arose, not as a result of a judicial decision, but because of the belated discovery that a District Justice had been sitting at a stage when he had passed the retirement age. The legislation provided for the validation of acts performed by him during that time, but s. 1(3) provided:-

40. The High Court and this court (by a majority) held in Shelley .v. District Justice Mahon and Anor. (1990) IR 36 that the purported conviction of the applicant in that case by the District Justice was a nullity and that any purported retrospective validation would conflict with his constitutional right to be tried on a criminal charge in due course of law by a judge duly appointed under the Constitution.

41. Rejecting a submission on behalf of the respondents that the subsection could be construed as surplusage, Griffin J. said

42. If the argument advanced on behalf of the DPP in Grealis in this case is well founded, then the subsection with which we are concerned would be truly surplusage. A judge at any level is obliged to uphold the constitutional rights of persons who may be prosecuted in reliance on the provisions of the 1997 Interpretation Act and, if that was all that the subsection was intended to ensure, it was wholly unnecessary. The conclusion is, in my view, irresistible that the Oireachtas, rightly or wrongly, were of the view that the operation of the 1997 Interpretation Act would, in some circumstances at least, infringe the constitutional rights of persons affected by its provisions, unless sub-s. (4) was inserted.

43. Given that the purpose of the Act was to validate prosecutions in respect of common law offences which could not otherwise be maintained because of the state of the law as found by the Special Criminal Court in The People .v. Kavanagh , the Oireachtas must have envisaged that the retrospective validation of prosecutions instituted before the coming into force of the 1997 Act would be a breach of the constitutional rights of defendants in such cases. It follows inevitably that subsection (4) must have been inserted so as to prevent the Act from taking effect in the case of such prosecutions.

44. A somewhat analogous situation arose in Pine Valley Developments .v. Minster for the Environment (1987) IR 23. In that case, a planning permission granted to the plaintiff developers by the Minister for Local Government (as he was then styled) on appeal had been found by this court (in an earlier decision reported at (1984) IR 407) to be ultra vires . That, of course, had the consequence that the many similar permissions granted by the Minister on appeal were also ultra vires , although in many cases buildings etc. had been erected in reliance on them. In those circumstances, s. 6 of the Local Government (Planning and Development) Act, 1982, was enacted so as to validate those permissions. However subsection (2) provided, in terms identical to the provision now under consideration, that it was not to conflict with the constitutional rights of any person. Lardner J., sitting as a member of this court, commented on the provisions as follows:

45. The 1997 Interpretation Act does not go so far as to reverse retrospectively any decision of the courts. In the absence of sub-s. (4), it might have been said to constitute an unjustifiable interference in litigation pending before the courts by, in effect, requiring the courts to decide the cases in question on a different legal basis. But it is unnecessary in this case to decide whether the effect of the Sinn Féin Funds case is to render such an interference (or the interference under consideration in Pine Valley ) impermissible. It is sufficient to say that subsection (4) must have been intended to preserve the constitutionality of the section as a whole by excluding prosecutions initiated before the commencement of the 1997 Interpretation Act from the ambit of the Act. Any other construction, such as that relied on on behalf of the DPP in Grealis, would render the provision otiose.

46. It remains to be said that I would have no hesitation in rejecting the submission advanced by Dr. White on behalf of the applicant in Corbett to the effect that the DPP was bound by the concession claimed to have been made on his behalf in The People .v. Kavanagh . The DPP is, save in exceptional circumstances, the only authority entrusted with the prosecution of indictable crime in this country and he necessarily discharges his functions by retaining counsel and solicitors to act on his behalf. The fact that counsel in a particular case may have made a concession, for whatever reason, which was erroneous in law, cannot have the effect of estopping the Director from canvassing the point in subsequent proceedings: to hold otherwise would be a recipe for ensuring the perpetuation of legal error and, it may well be, injustice.

47. The cross appeal in Grealis on behalf of the applicant remains to be considered. The question as to whether the offence described in s. 47 of the 1861 Act as “assault occasioning actual bodily harm” is a common law offence or a statutory offence was considered by Ó Dálaigh C.J. in The State (O.) .v. Eveleen O’Brien in a judgment with which Walsh J. and Fitzgerald J. agreed. In that case, a district justice had certified, pursuant to s. 207 (1) of the Mental Treatment Act, 1945, that a person detained in a district mental hospital was suitable for transfer to the Central Mental Hospital. The district justice could only so certify where inter alia the person was charged with an indictable offence. In that case, he had been charged with an assault occasioning actual bodily harm “contrary to s. 47 of the (1861) Act ...” . It was argued on behalf of the prosecutor that the charge against him was bad because s. 47 of the 1861 Act did not create an offence but merely declared the penalty for an existing common law offence.

48. Ó Dálaigh C.J., having pointed out that assault was a common law misdemeanour and, as such, triable on indictment but had been triable summarily since the enactment of the Criminal Justice Act, 1951, said that it was proper to invoke the statute in describing the offence in the complaint, but that in any event the court was not concerned in that case with examining a conviction but simply with the question of whether an offence was charged and, if so, whether it was an indictable offence. As to whether it was appropriate to refer to the statute in the complaint, he said:-

49. Since, as the learned Chief Justice pointed out, the issue in that case was as to whether an offence was charged and, if so, whether it was an indictable offence, this passage must be regarded as obiter. It is, however, relied on by the DPP as correctly stating the law.

50. The 1861 Act contains eleven separate sections under the cross heading “assaults”. Some of these provide expressly for the creation of new offences. Thus, a person found guilty of assaulting and striking or wounding any magistrate is to be guilty of a misdemeanour. Some of the other sections, however, such as s. 47, do no more than provide for an increased penalty, depending on the circumstances of the assault. Thus, persons convicted of assaults of an aggravated nature on females or male children under the age of 14 are liable to increased penalties. It is possible to construe s. 47 as doing no more than providing that, where the common law misdemeanour of assault had as its consequence the infliction of actual bodily harm, the perpetrator was liable to an increased sentence.

51. So to read it, however, would in my view be to pay insufficient regard to the fact that the section introduces another ingredient which must be proved by the prosecution before the penalty prescribed by the section can be imposed. Where a person is prosecuted for an offence - in this case “assault occasioning actual bodily harm” - which requires the proof of two distinct ingredients, i.e. assault and bodily harm resulting from the assault, it cannot be said that they are being prosecuted for the offence of assault simpliciter.

52. That conclusion is confirmed, not merely by the passage from the judgment of Ó Dálaigh C.J. already cited, but also by the decision of this court in The People .v. Murray (1977) IR 416. One of the defendants in that case had shot dead an unarmed garda in plain clothes while they were fleeing from the scene of a bank robbery. They were prosecuted for the crime of “capital murder” and convicted in the Special Criminal Court. The Criminal Justice Act 1964 had abolished the death penalty in all save a limited category of cases, i.e. the murder of gardaí or prison officers in the course of their duties and of heads of state and ambassadors, these categories being described as “capital murder” .

53. An issue arose as to the nature of the mens rea which had to be proved by the prosecution before a conviction could be recorded: was it necessary for the prosecution to establish that the defendants knew that the victim was a garda or 1were recklessly indifferent as to whether he was or not or was it sufficient to establish that they intended to kill, or cause serious injury to, the victim, the mens rea required, also since the enactment of the 1964 Act, in cases of murder generally?

54. The defendants having been convicted in the Special Criminal Court of capital murder, an appeal was brought to the Court of Criminal Appeal. That court, in upholding the convictions, concluded that the mens rea which the prosecution had to prove was the same as in cases of murder generally. The court reached that conclusion because it was satisfied that the offence of capital murder of which the defendants had been found guilty was not a new offence created by the 1994 Act: the offence with which the defendants had been charged, and of which they had been found guilty, was the common law offence of murder. The effect of the 1994 Act was simply to provide that where, as in this case, the victim was a member of the Garda Síochána killed in the course of his duties, a person convicted of the crime was to be sentenced to death.

55. The Court of Criminal Appeal having certified that its decision involved a point of law of exceptional public importance, an appeal was brought to this court, which reversed the finding that the offence of capital murder was not a new offence. The judgments went on to consider the nature of the mens rea required in a case of capital murder and reached their conclusions on that difficult topic by a majority: they were, however, unanimous as to the first issue.

56. The judgments of Griffin J. and Kenny J. in that case make it clear that they were satisfied that the fact that that the prosecution had to prove, at the least, not merely that the defendants intended to kill, or cause serious injury to, the victim but also that the victim was a member of the Garda Síochána who had been killed in the course of his duties and that the charge had to be laid as one of “capital murder” and not of murder simpliciter demonstrated that the offence was a new offence created for the first time by the 1964 Act. It is true that Walsh J. and Henchy J., in the judgments which they delivered, also laid strong emphasis on the awesome consequences which flowed from a conviction of capital murder as distinct from murder simpliciter, but I do not read their judgments as depending crucially on that fact. The ratio of the decision was clearly that, following the enactment of the 1964 Act, there existed for the first time in our law a new offence described as “capital murder” the ingredients of which were significantly different from those which had to be proved in murder simpliciter.

57. These considerations also apply to the offence of “assault occasioning actual bodily harm” which appeared for the first time in the 1861 Act. I am satisfied that the law was correctly stated by Ó Dálaigh C.J. in The State (O.) .v. Eveleen O’Brien and that the cross appeal by the applicant should be dismissed.

58. It should be pointed out that counsel for the DPP also relied on what she said was the different nature of the mens rea which had to be established by the prosecution in the case of an assault occasioning actual bodily harm. The nature of the mens rea required in such cases is referred to in the judgment of the Court of Criminal Appeal in The DPP .v. McBride [(1996) 1 IR 426] but the judgment does not resolve the issue as to whether the mens rea is of a different nature from that required in cases of assault at common law. In England, there had been conflicting decisions on the point, but the law in that jurisdiction appears to have been put beyond doubt by the decision of the House of Lords in R. .v. Savage ; R. .v. Parmenter (1991) 4 All ER 698, which was not referred to in the arguments before us but which made it clear that, in order to establish the offence of assault occasioning actual bodily harm contrary to s. 47 of the 1861 Act, it was sufficient for the prosecution to show that the defendant committed an assault and that actual bodily harm was occasioned by it; the prosecution was not obliged to prove that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused. Since, however, the conclusion I have reached is not in any way dependent on the prosecution being required to establish a different degree of mens rea in cases of assault occasioning actual bodily harm, it is unnecessary to consider further whether R. .v. Savage ; R. .v. Parmenter should be followed in this jurisdiction.

59. I should also point out that my view that the offence of occasioning actual bodily harm is a statutory offence and not a common law offence is unaffected by the fact that the 1997 Act, as we have seen, describes it as a common law offence. That was an error of draughtsmanship in the 1997 Act which cannot have the effect of converting retrospectively what was always a statutory offence into a common law offence.

60. The intention of the Oireachtas in enacting the relevant provisions of the 1997 Act is not in doubt. They intended to replace inter alia the offence of assault occasioning actual bodily harm with two other offences, “assault causing harm” and “causing serious harm” . It was entirely immaterial in that context whether the offence they were replacing was properly described as a statutory offence or a common law offence. The fact that they erroneously chose to describe it as the latter (perhaps misled by the incorrect statement of the law in the Law Reform Commission report on Non-Fatal Offences Against the Person which in turn appears to have overlooked the decision of this court in The State (O.) .v. Eveleen O’Brien ) is nihil ad rem . As Lord Reid pointed out in Inland Revenue Commissioners .v. Dowdall O’Mahony & Company Ltd . (1952) AC 401:-

61. Or, as Lord Radcliffe put it in the same case (at p. 426):-

62. 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.

63. 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.

64. Assault one Margaret Sweeney.

65. Contrary to Common Law. Penalty.

66. 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,

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

68. Assault one Francis Sweeney.

69. Contrary to Common Law. Penalty

70. THIS IS TO COMMAND YOU to appear as defendant on the hearing of

71. Mayo in the said District did unlawfully assault one Christopher McGinty of

72. Dooriel, Ballycroy, Westport, Co. Mayo thereby occasioning him actual

73. 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

74. 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.

75. The Non-Fatal Offences Against the Person Act, 1997 abolished certain common law offences and statutory offences. Section 28 states:

76. Section 31 states:

77. 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.

78. The Interpretation (Amendment) Act, 1997, states:

79. 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 IR 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]

80. In the High Court, [2000] 1 ILRM 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.

81. The learned trial judge stated at p. 362 et seq. of the report:

82. 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:

83. 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.

84. 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

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

86. 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.

87. C. Having regard to the provisions of Article 15.5 and Article 40.3.2. of the

88. Constitution, it is in the highest degree improbable that the Oireachtas

89. D. In these circumstances, it is not necessary to place any reliance on the

90. Mr. Michael Counihan, S.C., counsel for the first applicant, also presented full oral and written submissions. His concluding submissions were:-

91. 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.

92. 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:-

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

94. 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:

95. 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.

96. 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):

97. 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

98. Blayney J. stated:

99. 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.

100. 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.

101. 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.

102. This common law rule was restated in R v. Swan 4 Cox C.C. 108 (1849) by Rolf B.:

103. 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.

104. 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;

105. 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.

106. 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.

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

108. First, it is described as a common law offence in the Non-Fatal Offences Against the Persons Act, 1997. The words are:

109. The words are clear and unambiguous.

110. 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.

111. 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.

112. 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:

113. 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.

114. Other case law confirms this approach. In Doolan v. Director of Public Prosecutions [1992]

115. 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’.

116. 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.

117. 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.

118. 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.”

119. This is an analysis which I adopt. Applying the analysis to this case, the offence in issue

120. 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.

121. This section was repealed by s. 6 of the Criminal Law (Amendment) Act, 1935 which provided that:-

122. 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.

123. 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.’

124. 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.”

125. 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.

126. 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.

127. 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.

128. 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.

129. 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.

130. 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:

131. Of that section Blayney J. held, in Shelly v. District Justice Mahon [1990] 1 I.R. 36 at

132. 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:

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

134. 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.

135. 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.

136. 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.

137. 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:

138. 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:

139. 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

140. 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

141. 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.”

142. The High Court (McGuinness J.) referred to Shelly v. District Justice Mahon [1990] 1 I.R.

143. The second applicant was summonsed on 6th August, 1997 in the following terms:

144. 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.

145. 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.

146. 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.

147. 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.

148. Section 28 provides as follows:

149. 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”.

150. 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.

151. 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.

152. 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.

153. 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:-

154. 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.

155. 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:-

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

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

158. 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.....”.

159. 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.

160. 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:-

161. 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:-

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

163. 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:-

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

165. 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.

166. 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.

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

168. 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:-

169. 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:-

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

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

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

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

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

175. 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:-

176. 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.

177. 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:-

178. 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”.

179. 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.

180. 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.

181. 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.