Mullins v Harnett

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice O'Higgins
• Judgment Date: 01 April 1998
• Neutral Citation: [1998] IEHC 207
• Docket Number: 346 J.R./1997,[1997 No. 346 J.R.]
• Date: 01 April 1998

[1998] IEHC 207

THE HIGH COURT

346 J.R./1997

MULLINS v. D.J. HARNETT, THE DPP & ATTORNEY GENERAL

BETWEEN

MICHAEL MULLINS

APPLICANT

AND

DISTRICT JUDGE WILLIAM HARNETT AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

AND

THE ATTORNEY GENERAL

NOTICE PARTY

Citations:

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S8(1)

QUINLIVAN V GOV OF PORTLAOISE PRISON UNREP MCGUINNESS 9/9/1997

INTERPRETATION ACT 1937 S21(1)

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S31

OFFENCES AGAINST THE PERSON ACT 1861 S42

CRIMINAL JUSTICE ACT 1951 S11

CRIMINAL JUSTICE ACT 1951 S10

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S10

OFFENCES AGAINST THE PERSON ACT 1861 S47

O, STATE V O'BRIEN 1971 IR 42

DPP V KAVANAGH UNREP BARR 29.10.1997

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S28

GLOUCESTER UNION V WOOLWICH UNION 1917 2 KB 374

AG V MARQUESS OF HARTFORD 1849 3 EX 670

HITCHCOCK V WAY 1837 6 AD & EL 973

MCLOUGHLINS APPLICATION, IN RE 1963 IR 465

O'LEARY, R V JUSTICES OF KERRY 3 NIJR 251

ATHLUMNEY, IN RE 1968 2 QB 551

HAMILTON V HAMILTON 1982 IR 466, 1982 ILRM 290

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S28(1)

CONSTITUTION ART 15.5

MAXWELL INTERPRETATION OF STATUTES 12ED 239 – 240

BENNION STATUTORY INTERPRETATION 2ED 382

BOWERS V GLOUCESTER CORP 1963 1 QB 881

MCDAID V SHEEHY 1991 1 IR 1

Synopsis

Criminal Law

Assault contrary to common law; abolition of offence; retrospectivity; statutory intepretation; applicant charged with assault contrary to common law; alleged offence occurred prior to coming into force of Non-Fatal Offences Against the Person Act, 1997; s. 8(1) abolished common law offence of assault; applicant sought order restraining the Director of Public Prosecutions from continuing prosecution; whether pre-1997 offence of assault statutory or hybrid offence; whether Act had retrospective effect; whether legislature intended to discontinue pending prosecutions for assault contrary to common law; applicable principles of statutory interpretation; s. 8(1) Non-Fatal Offences Against the Person Act, 1997; s. 2(1) Interpretation Act, 1937 Held: Abolition of common law offence of assault intended to have prospective effect only; relief refused

Mullins v. Judge Hartnett - High Court: O'Higgins J. - 01/04/1998 - [1998] 4 IR 426 - [1998] 2 ILRM 304

1 Judgment of Mr Justice O'Higgins delivered the 1st day of April 1998.

2 This case comes before the Court on foot of an Order granting the Applicant leave to apply by way of application for Judicial Review for an injunction restraining the Director of Public Prosecutions from continuing the prosecution of a case against the Applicant.

3 The Applicant was charged with assault "contrary to common law and Section 42 of the Offences Against the Person Act, 1861 as amended by Section 11 of the Criminal Justice Act, 1951as amended by Section 10 of the Criminal Justice ( Public Order) Act, 1994."

4 By virtue of Section 8(1) of the Non-Fatal Offences Against the Person Act, 1997, which came into effect on the 19th August, 1997, the common law offence of assault is abolished. The date of the alleged commission of the offence, the subject matter of this case. was the 24th May, 1997. The date for the hearing of the Summons was the 2nd September 1997.

5 The point at issue is as follows: Do the provisions of the Non-Fatal Offences Against the Person Act operate retrospectively?

6 Mr Grogan, for the Applicant, argues that since (a) the crime of assault contrary to common law was abolished on the 19th August, 1997 and (b) there was no saving for offences charged prior to that date, (either in the provisions of the Act, or by virtue of the Interpretation Act, 1937), after the 19th August no such offence could be prosecuted. While conceding that point had been considered in detail in the recent case of Quinlivan and The Governor of Portlaoise Prison and Others (Judgment of McGuinness J. delivered 9th September, 1997) which is of persuasive authority, Counsel for the Applicant argued that the decision in that case was incorrect.

The Interpretation Act

7 The Interpretation Act of 1937deals with a situation where an Act of the Oireachtas repeals in whole or in part the provisions of a previous statue. The relevant provisions are as follows in Section 21(1)

8 (c) "where an Act of the Oireachtas repeals the whole or portion of a previous statute, then, unless the contrary intention appears, such repeal shall not.....

9 (d) effect any penalty, forfeiture, or punishment, incurred in respect of any offence against or contravention of the statute or portion of statute so repealed which was committed before such repeal, or

10 (e) prejudice or effect any legal proceedings, civil or criminal, pending at the time of such repeal in respect of any such right, privilege, obligation, liability, offence, or contravention as aforesaid."

11 Counsel for the Applicant contends that the "saving" provisions of the Interpretation Act do not apply, as the Non-Fatal Offence Against the Person Act, 1997, repeals, not a portion of a previous statute, but a common law offence.

12 Counsel for The Director of Public Prosecutions, however, takes issue with this contention and says that the provisions of the Interpretation Act do apply in the following circumstances:-

13 By Section 31 of the Non-Fatal Offences Against the Person Act, 1997:-

"each enactment specified in column 2 of the Schedule to the Act is hereby repealed to the extent specified in column 3 of the Schedule."

14 The Schedule to the Non-Fatal Against the Person Act repeals Section 42 of the Offences Against the Person Act and Section 11 of the Criminal Justice Act, 1951. It is contended that, since those sections are part of previous statutes repealed by an Act of the Oireachtas. they are covered by the relevant "saving" provisions of the Interpretation Act, 1937.

15 In my view, however, the offence of common assault is clearly a common la w Offence. Section 42 of the Offences Against the Person Act, 1861, merely provides a penalty as does Section 10 of the Criminal Justice Act, 1951as amended by Section 10 of the Criminal Justice ( Public Order) Act, 1994. It is not a "hybrid" of offence similar to Section 47 of the Offences Against the Person Act, 1861, which does create a statutory Offence in a similar offence of common law, and was dealt with in the case The State v. O'Brien, 1971 Irish Reports page 42. I am strengthened in my view, by both the decision of the Special Criminal Court in The People -v- Kavanagh delivered by Mr Justice Barr on the 29th October. 1997 and by the Quinlivan Case where Mrs Justice McGuinness came to the same conclusion. It is a pre-requisite for the saving provisions of Section 21(1) d of the Interpretation Act to be applied that the whole or part of a previous statutory provision be repealed. In the present case since "a statute or part of it" was not repealed by the abolition of the offence of assault by Section 28 of the Non-Fatal Offences Against the Person Act, 1997, the Respondent cannot avail of the provisions of the Interpretation Act.

Construction and Interpretation

16 The following seem to me to be the principles and canons of construction and interpretation to be applied to the Act:-

17 1. Presumption against retrospection.

18 2. "Public good" construction.

19 3. The "common sense" rule of construction.

20 4. Rules of construction of transitional provision.

21 5. The principle of not adding words to a statute.

22 6. The principle against doubtful penalisation.

23 7. The "so called" principle of strict interpretation of penal statutes.

24 I propose to deal with these matters seriatim.

1. "Presumption Against Retrospection"

25 This principle was discussed in the judgment of Mrs. Justice McGuinness in the Quinlivan case, and a number of cases were cited including Gloucester Union -v- Woolwich Union 1917 2KB 374; Attorney General -v- Marquess of Hartford (1849) 3 Exch 670; Hitchcock -v- Way 1837 6AD and EL 973; in re McLoughlin's application 1963 IR Page 465. R. (O'Learv) -v- Justices of Kerry 3NIJR 251, in re. Athlumney 1968 2QB 2QB at 551, and Hamilton -v- Hamilton 1982 IR page 466 and 1982 ILRM at page 290. The principle was stated in the judgment of Henchy J. in the Hamilton case 92IR page 466 at page 480 and 481 as follows:-

"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 procedural law then, regardless of whether the act is otherwise prospective or retrospective in its operation, it is not to be deemed to effect proceedings brought under the pre-Act Law and pending at the date of the coming into operation of the Act, unless the Act expressly or by necessary intendment provides to the contrary".

26 Henchy J. also says as follows:-

"Maxwell on the interpretation of statutes. (12th Ed., pp220 - 1), puts the applicable rule of interpretation thus:-

"In general when the substantive law is altered during the pendency of an action, the rights of the parties are decided according to the Law as it existed when the action was begun, unless the new statute slows a clear intention to vary such rights".

I would cavil at that statement of law to the extent that the rule of interpretation 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 which applies to all pending actions, unless the language used in the enactment is susceptible of no other conclusion than that the rights of the parties to pending action are intended to be effected".

27 In the same judgment at page 484 Henchy J. continues:-

"The judicial authorities (which are mentioned in the judgment which the Chief Justice has just...