The Supreme Court has ruled that assault prosecutions against Padraic Grealis and Emmett Corbett could not proceed after the common-law offences involved were abolished without an effective transitional provision preserving them.
Mr Grealis faced three summonses arising from alleged incidents in County Mayo in May 1997. Two alleged assaults on Margaret and Francis Sweeney at Hotel Westport on May 4th. A third alleged that he assaulted Christopher McGinty at Mulranny on May 11th, occasioning actual bodily harm.
The Non-Fatal Offences Against the Person Act 1997 subsequently abolished common-law assault and assault occasioning actual bodily harm with effect from August 19th, 1997. The summonses against Mr Grealis were issued in September, after the abolition took effect.
Mrs Justice Denham held that assault occasioning actual bodily harm was also a common-law offence, notwithstanding the statutory penalty historically provided under section 47 of the Offences Against the Person Act 1861.
The court found that, once the offences were abolished, prosecutions could not subsequently be commenced unless legislation expressly preserved that possibility. The 1997 Act contained no such transitional provision.
A later Interpretation (Amendment) Act 1997 attempted to provide general saving provisions for abolished common-law offences. However, the Supreme Court held that this legislation operated prospectively and could not retrospectively revive prosecutions which had already become legally ineffective during the intervening period.
In Mr Corbett’s case, the alleged assault occurred at William Street, Cork, in February 1997. His summons was issued before the abolition took effect, but the court held that the prosecution had not reached a stage at which it was pending before a court when the offence ceased to exist.
The Supreme Court therefore prohibited the prosecutions against both men. It also overturned the High Court’s broader finding that the Interpretation (Amendment) Act 1997 itself was unconstitutional, holding instead that its constitutional protection clause meant it should be applied prospectively where retrospective operation would infringe individual rights.