Never take your eye off the ball.
The State (the Government) decided to do something. It introduced an Act, the Non-Fatal Offences against the Person Act 1997, in and through the Oireachtas, which was enacted on 19th May 1997.
Section 28 (1) of the Act provided that;
The following common law offences are hereby abolished –
(a) assault and battery,
(b) assault occasioning actual bodily harm,
(c) kidnapping,
(d) false imprisonment.â?
Something happened in Westport on 4th May 1997; consequently a Mr. Grealis was charged with assault contrary to common law.
Something happened in Mulranny on 11th May 1997; consequently Mr. Grealis was charged with assault contrary to common law.
Something happened in Cork on 3rd February 1997; consequently a Mr. Corbett was charged with assault contrary to common law and contrary to Section 42 of the Offences Against the Person Act, 1861 as amended by Section 10 Criminal Justice (Public Order) Act, 1994 (âassault occasioning actual bodily harmâ?).
Section 28 (1) of Non-Fatal Offences against the Person Act 1997 came into force on the 19th August 1997. In both Grealis and Corbett, accordingly, it was not in force on the dates on which the alleged offences were committed. It was not in force at the date the summons was issued in Corbett, but was in force on the dates when the three summonses in Grealis were issued.
Mr. Grealis and Mr. Corbett were given leave by the High Court to apply by way of judicial review for an order of Prohibition of the prosecution of the offences alleged against them on the grounds that the Non-Fatal Offences against the Person Act 1997 had abolished the offences with which they were charged.
The High Court agreed and made an order of Prohibition and the Supreme Court affirmed on appeal.
During the proceedings the State cited in its support Section 1 of the Interpretation (Amendment) Act 1997, which reads:
1. – (1) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law, then unless the contrary intention appears, such abolition, abrogation or repeal shall not –
(a) affect the previous operation of the law in relation to the offence so
abolished, abrogated or repealed or any other offence or anything
duly done or suffered thereunder,
(b) affect any penalty, forfeiture or punishment incurred in respect of any
such offence so abolished, abrogated or repealed or any other offence
which was committed before such abolition, abrogation or repeal, or
(c) prejudice or affect any proceedings pending at the time of such abolition, abrogation or repeal in respect of any such offence or any other offence.(2) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law, then unless the contrary intention appears, any proceedings in respect of any such offence or any other offence committed before such abolition, abrogation or repeal of any such offence at common law may be instituted, continued or enforced and any penalty, forfeiture or punishment in respect of any such offence at common law or any other offence may be imposed and carried out as if such offence at common law had not been abolished, abrogated or otherwise repealed.
(3) This section applies to an offence which is an offence at common law abolished, abrogated or otherwise repealed before or after the passing of this Act.
(4) If, because of any or all of its provisions, this section would, but for the provisions of this subsection, conflict with the constitutional rights of any person, the provisions of this section shall be subject to such limitations as are necessary to secure that they do not so conflict, but shall otherwise be of full force and effect.â?
The Supreme Court held that this could only be read prospectively (into the future) and did not avail the State in its arguments. (The Supreme Court also found that the Act, as so read, was constitutional. It also found that the offence “assault occasioning actual bodily harm” was a common law offence.)