Mullins v. Harnett

Factual and Procedural Background

This case concerns an application for Judicial Review seeking an injunction to restrain the Director of Public Prosecutions from continuing prosecution against the Applicant for assault contrary to common law and statutory provisions. The alleged offence occurred on 24 May 1997, prior to the commencement of the Non-Fatal Offences Against the Person Act, 1997, which came into effect on 19 August 1997 and abolished the common law offence of assault. The hearing of the summons was scheduled after the Act's commencement. The central procedural issue is whether the 1997 Act operates retrospectively to bar prosecution for offences committed before its commencement.

Legal Issues Presented

1. Does the Non-Fatal Offences Against the Person Act, 1997 operate retrospectively to abolish prosecution for the common law offence of assault committed before 19 August 1997?
2. Do the saving provisions of the Interpretation Act, 1937 apply to offences charged prior to the repeal or abolition of common law offences?
3. How should the relevant statutory provisions be construed in light of principles of statutory interpretation, including presumptions against retrospection and rules relating to penal statutes?

Arguments of the Parties

Applicant's Arguments

• The common law offence of assault was abolished by the Non-Fatal Offences Against the Person Act, 1997 as of 19 August 1997.
• There is no saving provision in the 1997 Act or the Interpretation Act, 1937, to allow prosecution for offences committed before that date.
• The Interpretation Act's saving provisions do not apply because the 1997 Act abolishes a common law offence, not a statutory provision.
• Principles of statutory interpretation applicable to criminal cases require strict construction, no addition of words, and protection against doubtful penalisation.
• The legislature did not express an intention to continue prosecution for offences charged before the Act's commencement.

Respondent's Arguments (Director of Public Prosecutions)

• The Interpretation Act, 1937 applies because the 1997 Act repealed statutory sections (Section 42 of the Offences Against the Person Act, 1861 and Section 11 of the Criminal Justice Act, 1951) which provided penalties for assault.
• These statutory repeals are subject to the saving provisions of the Interpretation Act, preserving penalties and proceedings pending at the time of repeal.
• It would be contrary to the public interest to grant immunity to persons charged with offences that remain criminal under the new Act.
• The facts constituting assault before and after the 1997 Act remain offences, and it defies common sense that immunity was intended.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analyzed whether the Non-Fatal Offences Against the Person Act, 1997 applies retrospectively to abolish the common law offence of assault for acts committed before its commencement. It distinguished between statutory repeal and abolition of common law offences, noting that the 1997 Act abolished a common law offence rather than repealing a statutory provision. Consequently, the saving provisions of the Interpretation Act, 1937, which apply only to statutory repeals, do not apply.

The court reviewed established principles of statutory interpretation, including the presumption against retrospection, the public good construction, the common sense rule, and rules concerning transitional provisions. It emphasized the principle that substantive changes in law do not affect pending proceedings unless there is a clear and unambiguous legislative intention to the contrary.

Furthermore, the court considered principles specific to penal statutes: no addition of words to statutes, protection against doubtful penalisation, and strict construction of penal statutes. It found no clear legislative intention to abolish prosecution for offences charged before the Act's commencement.

Applying these principles and relevant case law, the court concluded that the offence of common law assault was not abolished for pre-existing charges by the 1997 Act. It found that the Respondent had established this to the court's satisfaction.

The court declined to address constitutional questions, noting that its decision based on statutory interpretation rendered such examination unnecessary and that it is not appropriate to question the validity of Acts of the Oireachtas unless essential for the decision.

Holding and Implications

The court held that the Non-Fatal Offences Against the Person Act, 1997 does not operate retrospectively to abolish the common law offence of assault for acts committed before its commencement, and prosecution for such offences may continue.

The direct effect of this decision is that ongoing prosecutions for assault committed before 19 August 1997 are not barred by the 1997 Act. No new legal precedent was established beyond the application of established principles of statutory interpretation and penal law construction to the facts of this case.