The Supreme Court has quashed Michael Cummins’s conviction for common-law assault, ruling that the prosecution could not continue after the offence was abolished in August 1997.
In a judgment delivered on 25 October 2005, Mrs Justice McGuinness allowed Mr Cummins’s appeal from a High Court decision that had refused his application for judicial review. The order of certiorari quashes the conviction entered by the District Court in May 1998 and upheld on appeal in the Circuit Court in June 1999.
The case arose from a complaint that Mr Cummins assaulted Sergeant William Duane outside Bridewell Garda Station in Cork on 6 January 1997. A summons was issued on 28 January 1997, and the case was adjourned several times before it was heard on 19 May 1998. Mr Cummins, who was represented by a solicitor at trial, pleaded not guilty and was convicted. The District Court imposed a £50 fine. He appeared without representation in the Circuit Court appeal, where his conviction and sentence were affirmed.
The Non-Fatal Offences Against the Person Act 1997 abolished common-law assault from 19 August 1997. Mr Cummins argued that he could not be convicted in 1998 of an offence that no longer existed. The State argued that the prosecution was already pending before the District Court when the offence was abolished, and that the Interpretation (Amendment) Act 1997 preserved it.
The High Court had refused relief in March 2003, holding that the proceedings were pending when the 1997 Act took effect and were not displaced by it. The Supreme Court said that the return date of Mr Cummins’s summons had been before the abolition, but that this did not change the result. Once common-law assault ceased to exist, the prosecution could not continue and he could not be convicted for conduct that was no longer unlawful.
The court also held that applying the later Interpretation (Amendment) Act to validate criminal proceedings that had become unlawful would be retrospective and contrary to due process and constitutional principles. The appeal was allowed and the conviction quashed. The judgment does not record a separate order on the fine or the Circuit Court decision.