A Supreme Court judge has held that assault occasioning actual bodily harm was a common law offence before the relevant provisions of the Non-Fatal Offences against the Person Act 1997 came into force, a finding which affected whether Padraic Grealis could face a further prosecution.
Mr Justice Hardiman delivered the judgment on 31 May 2001 in linked proceedings involving Grealis and Emmett Corbett. He agreed with the Chief Justice on the cases generally but differed on the legal classification of the former offence.
The issue centred on section 47 of the Offences against the Person Act 1861. That section provided a higher penalty where an assault occasioned actual bodily harm. The question was whether it created a distinct statutory offence or merely prescribed a greater punishment for an existing common law assault when bodily harm resulted.
Mr Justice Hardiman concluded that section 47 did not create a new offence. He traced the common law history of assault and battery and contrasted the wording of the 1861 provision with statutes which expressly created separate offences.
He also considered an earlier Supreme Court judgment which had described assault occasioning actual bodily harm as statutory in nature. He regarded that view as non-binding on the point and concluded that the better interpretation was that there remained a single common law offence of assault, with the resulting bodily harm affecting the applicable penalty.
The distinction mattered because the 1997 Act expressly abolished the common law offence of assault occasioning actual bodily harm and repealed section 47.
Mr Justice Hardiman said his conclusion meant the relief granted in Grealis's case should extend to the third summons as well as the first and second.
He deliberately left open a separate issue: whether allegations concerning conduct predating the repeal could still be prosecuted where proceedings were commenced after the Interpretation (Amendment) Act 1997. He said that question would have to be decided in a case where it properly arose.