Statute - Interpretation - Abolition of offence of common assault - New statutory offence created - Whether new statute operated retrospectively - No express saving provision in new Act - Whether a statute or part thereof repealed by new Act - Canons of construction and interpretation - Whether different principles of interpretation apply to penal statutes - Whether new provision ambiguous - Interpretation Act 1937, section 21(1) - Non-Fatal Offences Against the Person Act 1997, sections 8(1), 28 and 31.

The High Court (before Mr Justice O'Higgins); judgment delivered 1 April 1998.

Where the offence of common assault had been abolished by the Non-Fatal Offences Against the Person Act 1997, and a new statutory offence created, then the effect on proceedings already in being but not determined at the date of operation of the 1997 Act fell to be construed under the canons of construction and in the case of penal statutes there were principles of interpretation to be applied in addition to the other canons of construction and not in substitution for them.

Applying all the canons of interpretation the matter was not ambiguous in the sense that being a penal section it would be resolved in the manner most favourable to the citizen, and the offence of common assault was not abolished for pre-existing charges by the 1997 Act. Mr Justice O'Higgins, in the High Court, so held in dismissing an application for an injunction restraining the DPP from continuing a prosecution against the applicant.

Brendan Grogan SC and Jeremy Maher BL for the applicant; Adrienne Egan BL for the respondents.

Mr Justice O'Higgins said that the applicant was granted 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 who had been charged with assault "contrary to common law and section 42 of the Offences Against the Person Act 1861, as amended by section 11 of the Criminal Justice Act 1951, as amended by section 10 of the Criminal Justice (Public Order) Act 1994." Mr Justice O'Higgins noted that by virtue of section 8(1) of the Non-Fatal Offences Against the Person Act 1997, which came into effect on 19 August 1997, the common law offence of assault was abolished and the date of the alleged commission of the offence in this case was 24 May 1997 and the date for the hearing of the summons was 2 September 1997. Mr Justice O'Higgins said that the point at issue was whether the provisions of the Non-Fatal Offences Against the Person Act operated retrospectively. It was argued on behalf of the applicant that since (a) the crime of assault contrary to common law was abolished on 19 August 1997, and (b) there was no saving for offences charged prior to that date (either in that Act or in the Interpretation Act 1937) after 19 August 1997, no such offence could be prosecuted. While it was conceded that the point had been considered in detail in Quinlivan v The Governor of Portlaoise Prison and Others (High Court, 9 September 1997) it was argued that the decision in that case was incorrect.

Turning to the Interpretation Act 1937, Mr Justice O'Higgins said it dealt with a situation where an Act of the Oireachtas repealed in whole or in part the provisions of a previous statute and the relevant provisions of section 21(1) provided that such repeal "shall not . . . (d) affect any penalty, forfeiture, or punishment, incurred in respect of any offence against or contravention of the statute or portion of statute so repealed which was committed before such repeal, or (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 contended that the saving provisions of the Interpretation Act did not apply as the 1997 Act repealed, not a portion of a previous statute, but a common law offence.

Counsel for the DPP contended that the provisions of the 1937 Act did apply and referred to section 31 of the Non-Fatal Offences Against the Person Act, 1997 which provides "each enactment specified in column 2 of the Schedule to the Act is hereby repealed to the extent specified in column 3 of the Schedule." Mr Justice O'Higgins said that the schedule repealed section 42 of the Offences Against the Person Act 1861 and section 11 of the Criminal justice Act 1951 and it was contended that since those sections were part of previous statutes repealed by an Act of the Oireachtas, they were covered by the relevant saving provisions of the 1937 Act.

However, Mr Justice O'Higgins said that the offence of common assault was clearly a common law offence and section 42 of the 1861 Act merely provided a penalty as did section 10 of the 1951 Act as amended by section 10 of the 1994 Act and it was not a hybrid offence similar to section 47 of the 1861 Act which did create a statutory offence in a similar offence of common law, and was dealt with in The State v O'Brien [1971] IR 42. Mr Justice O'Higgins said he was strengthened in this view by the decision of the Special Criminal Court in The People v Kavanagh (29 October 1997) and the decision in Quinlivan. It was a prerequisite for the saving provisions of section 21(1) of the 1937 Act to be applied that the whole or part of a previous statutory provision be repealed and in the present case "a statute or part of it" was not repealed.

Mr Justice O'Higgins then set out the principles and canons of construction and interpretation to be applied to the Act: (1) presumption against retrospection; (2) "public good" construction; (3) the "common sense" rule of construction; (4) rules of construction of transitional provision; (5) the principle of not adding words to a statute; (6) the principle against doubtful penalisation; (7) the so called principle of strict interpretation of penal statutes. Turning to the presumption against retrospection, Mr Justice O'Higgins said that this principle was discussed by Mrs Justice McGuinness in Quinlivan and a number of cases were cited. The principle was stated in the judgment of Mr Justice Henchy in Hamilton v Hamilton [1982] IR 466 that when an Act changed the substantive, as distinct from procedural law, then regardless of whether the Act was otherwise prospective or retrospective in its operation, it was not to be deemed to affect proceedings brought under the pre-Act law and pending at the date of the coming into effect of the Act, unless the Act expressly or by necessary intendment provided to the contrary. Mr Justice Henchy went on to say that the judicial authorities showed that this was a universal rule which applied to all pending actions, unless the language used in the enactment was susceptible of no other conclusion than that the rights of the parties to the pending action were intended to be affected. Dealing with the principle of public good construction, Mr Justice O'Higgins referred to Bennion: Statutory Interpretation (2nd edition) at page 217 where it was stated that one of the principles governing statutory interpretation was that the construction adopted should serve the public interest. Mr Justice O'Higgins said that it was argued on behalf of the respondent that it would be contrary to the public interest that immunity should be granted to all of those who were charged with offences abolished by section 28 of the 1997 Act. Mr Justice O'Higgins then referred to the common sense rule and said that Bennion had said that it was a rule of law that when considering which of the opposing constructions of the enactment would give effect to the legislative intention, the court should presume that the legislature intended common sense be used in construing the enactment. It was argued on behalf of the respondents and notice party that a certain set of facts constituted the criminal offence of common assault prior to the 1997 Act and the Oireachtas made the same set of facts constitute another offence on the coming into force of the Act. In those circumstances, it was contended that it defied common sense that the Oireachtas intended to give immunity to those already charged with offences arising out of a set of facts which , both before and after the enactment constituted a criminal offence.

Mr Justice O'Higgins said that when dealing with the rules of construction of transitional provisions, Mrs Justice McGuinness in Quinlivan had referred to Bennion at page 213 where it was stated that where an Act failed to include transitional provisions expressly, the court was required to draw inferences as to the intended transitional arrangements, as in the light of interpretative criteria, it considered parliament to have intended. Mr Justice O'Higgins said that counsel for the applicant did not dispute the existence of principles (1) to (4) nor were the observations made on them by the respondent seriously disputed. However, it was submitted that those principles did not apply in criminal cases and somewhat different principles applied to criminal cases, namely (5), (6) and (7) above.

Mr Justice O'Higgins said that the principle against adding words to a statute was stated by Maxwell at page 33 to be a corollary to the general rule of literal construction that nothing was to be added or taken away from a statute unless there were adequate grounds to justify the inference that the legislature intended something which it omitted to express. The applicant submitted that the legislature failed to express the continuation of offences already charged and that no words should be added. However, Mr Justice O'Higgins said that what was sought in this case was not to add or take from the words of the statute but to interpret it in the absence of words and if that were wrong, Mr Justice O'Higgins said that regard must be had to the fact that the provisions were transitional in deciding whether there were adequate grounds to justify the inference that the legislature intended something which it omitted to express. Mr Justice O'Higgins said that the principle against doubtful penalisation and the so-called principle of strict construction of penal statutes were in addition to and not in substitution for the other canons of construction. According to the former, Mr Justice O'Higgins said that nobody suffered a detriment by the application of a doubtful law and by virtue of this concept that a construction of a statute was of necessity doubtful if it imposed ex post facto law and this matter was dealt with by article 15(5) of the Constitution. According to Maxwell, Mr Justice O'Higgins said that the strict interpretation of a penal statute manifested itself in four ways: in requiring express language for the creation of an offence; in interpreting strictly the words setting out elements of an offence; in requiring the fulfilment of the letter of the statutory conditions precedent to the infliction of punishment; and in insisting on a strict observance of technical provisions concerning criminal procedure and jurisdiction. Mr Justice O'Higgins observed that it would appear that the principle applied not only to criminal offences but to any form of detriment. Mr Justice O'Higgins also referred to Bennion at page 572 where it was noted that the greater the unfairness the more it was expected that parliament would make it clear if that was intended. Mr Justice O'Higgins said that in the present case it was doubtful to see how any unfairness could be contended for by the applicant but unfairness could be contended for by the respondents. Also, it seemed that the principle was largely, if not entirely, concerned with the creation of ex post facto law and was bound up by the seventh canon of construction, namely the so-called principle of strict construction.

Turning to this principle, Mr Justice O'Higgins referred to Bennion at page 382 where it was stated that the true principle had never been that a penal statute must be construed strictly, but that a penal statute must be construed with due regard to the principle against doubtful penalisation, along with all relevant criteria. Maxwell at page 246 stated that the effect of the strict rule of construction might be summed up by saying that where the equivocal word or ambiguous sentence left a reasonable doubt which the canons of interpretation failed to solve, the benefit of the doubt should be given to the subject against the legislature which has failed to explain itself. Mr Justice O'Higgins referred to Bowers v Gloucester Corporation [1963] 1 QB 881 where Lord Parker had said that a provision could only be said to be ambiguous where having applied all the canons of interpretation the matter was still left in doubt. Mr Justice O'Higgins said that in construing penal (not only criminal) statutes the same principles applied as to other statutes, but additional criteria had to be taken into account also. Having applied all the canons of interpretation the matter did not appear to be ambiguous (in the sense that, being a penal section, it would be resolved in a manner most favourable to the citizen). Therefore, taking all the factors outlined into consideration, Mr Justice O'Higgins said that the respondents had established that the offence of common assault contrary to common law was not abolished for pre-existing charges by the enactment of section 28 of the 1997 Act.

Mr Justice O'Higgins said that since his decision was based on the canons of interpretation and the case law, it was unnecessary to examine the constitutional position and in the light of the decision in McDaid v Sheehy [1991] 1 IR 1 it would not be appropriate to do so.

Solicitors: Lanigan O'Mahoney (Kilkenny) for the applicant; Chief State Solicitor for the respondents.