Mullins v Harnett

 
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High Court

[1997 No. 346 J.R.]
Mullins v. Harnett
Michael Mullins
Applicant
and
District Judge William Harnett and The Director of Public Prosecutions
Respondent
The Attorney General, Notice Party

Cases mentioned in this report:-

Att. Gen. v. Marquis of HertfordENR (1849) 3 Exch. 670.

In re Athlumney Ex parte WilsonELR [1898] 2 Q.B. 547.

Bowers v. Gloucester Corpn.ELRWLRUNK [1963] 1 Q.B. 881; [1963] 2 W.L.R. 386; [1963] 1 All E.R. 437.

Gloucester Union v. Woolwich UnionELR [1917] 2 K.B. 374.

Hamilton v. HamiltonIRDLRM [1982] I.R. 466; [1982] I.L.R.M. 290.

Hitchcock v. WayENR (1837) 6 Ad. & El. 943.

The King (O'Leary) v. Justices of Kerry (1902) 3 N.I.J.R. 251.

McDaid v. Judge SheehyIRDLRMDLRM [1991] 1 I.R. 1; [1991] I.L.R.M. 250; [1989] I.L.R.M. 342.

In re McLoughlin's ApplicationIR [1963] I.R. 465.

The People v. Kavanagh (Unreported, Special Criminal Court, 29th October, 1997).

Quinlivan v. Governor of Portlaoise PrisonIR [1998] 2 I.R. 113.

The State (O.) v. O'BrienIR [1971] I.R. 42.

Criminal law - Retrospective effect of legislation - Whether prosecutions commenced prior to abolition of common law offence ought to be continued - Interpretation Act, 1937, (No. 38), s. 21 - Non-Fatal Offences Against the Person Act, 1997 (No. 26), s. 28.

Statute - Interpretation - Retrospective effect - Abolition of common law offence - Canons of construction - Interpretation Act, 1937, (No. 38), s. 21 - Non-Fatal Offences Against the Person Act, 1997 (No. 26), s. 28.

Cur. adv. vult.

O'Higgins J

1st April, 1998

This case comes before the court on foot of an order granting the applicant leave to apply for judicial review for an injunction restraining the Director of Public Prosecutions from continuing the prosecution of a case against the applicant.

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

By virtue of s. 28(1) of the Non-Fatal Offences Against the Person Act, 1997 ("the Act of 1997" hereafter), which came into effect on the 19th August, 1997, the common law offence of assault was 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.

The point at issue is as follows: Do the provisions of the Act of 1997 operate retrospectively?

Counsel 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, 1997, no such offence could be prosecuted. While conceding that the point had been considered in detail in the recent case of Quinlivan v. Governor of Portlaoise PrisonIR [1998] 2 I.R. 113, which is of persuasive authority, counsel for the applicant argued that the decision in that case was incorrect.

The Interpretation Act

The Interpretation Act, 1937, deals with a situation where an Act of the Oireachtas repeals in whole or in part the provisions of a previous statute. The relevant provisions are as follows in section 21(1):-

"(1) Where an Act of the Oireachtas repeals the whole or a portion of a previous statute, then, unless the contrary intention appears, such repeal shall not -

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

    1. (e) prejudice or affect 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."

Counsel for the applicant contends that the 'saving' provisions of the Interpretation Act, 1937, do not apply, as the Act of 1997, repeals, not a portion of a previous statute, but a common law offence.

Counsel for the Director of Public Prosecutions however, takes issue with...

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