In a decision with implications for other persons charged with assaults in 1997, the Supreme Court yesterday granted orders restraining the prosecution of two men on assault charges.
The five-judge court ruled the offences of common assault were abolished by the Non-Fatal Offences Against the Person Act 1997. It held the Act came into effect on August 19th 1997 and it had no saving provision for transitory arrangements permitting the prosecution of persons alleged to have committed abolished offences.
As the summonses for the alleged assaults were issued after the Act came into effect, there was no common law offence of assault when these were issued, the court held. There were also no transitional arrangements in place when proceedings commenced. The proceedings could not therefore be lawfully taken.
The court also held, by a four to one majority, that the offence of assault occasioning actual bodily harm (AOABH) is a common law offence, that it no longer existed when a summons alleging that charge against one of the men was issued and consequently he could not be prosecuted on that charge.
On September 11th, 1997, a summons was issued charging Mr Padraic Grealis, a former garda, with the assault of Margaret and Francis Sweeny on May 4th, 1997. On September 12th, proceedings were commenced against Mr Grealis alleging unlawful assault on Mr Christopher McGinty on May 11th, 1997.
In judicial review proceedings, Mr Grealis sought to prohibit his prosecution. In October 1999, the High Court held the offence of common assault had been abolished by the Non-Fatal Offences Act and, in the absence of a statutory transitional clause when proceedings against Mr Grealis were commenced, these could not have been lawfully instituted.
The High Court also ruled the offence of AOABH was a statutory offence and that the proceedings against Mr Grealis on that charge were valid. It further found that the Interpretation (Amendment) Act 1997 was unconstitutional.
The Attorney General and Director of Public Prosecutions appealed those rulings to the Supreme Court while Mr Grealis appealed the AOABH finding. The Supreme Court agreed the offences of common assault were abolished by the NonFatal Offences Act.
It also upheld the High Court decision that the prosecutions were not saved by the Interpretation Amendment Act. However, it disagreed that the Interpretation Act was unconstitutional because, it ruled, that Act applied prospectively.
The Supreme Court disagreed with the High Court decision that AOABH is a statutory and not a common law offence and upheld Mr Grealis's cross-appeal.
For similar reasons, the court also upheld an appeal by Mr Emmet Corbett against the High Court's refusal to restrain his prosecution on an assault charge.
