Assaults
Cases
DPP v Brown
[2016] IECA 405
Judgment of the Court delivered on the 21st day of December 2016 by Mr. Justice Mahon
1. This is an appeal by the appellant against his conviction on one count of assault causing harm contrary to s. 3 of the Non Fatal Offences against the Person Act 1997 at Portlaoise Circuit Criminal Court on 6th November 2015 following a three day trial. The appellant was sentenced to three years imprisonment consecutive to the lawful termination of a sentence then being served by him.
2. The victim of the assault was one Stephen Cooper. Mr. Cooper and the appellant were both prisoners in the Midlands Prison on 20th May 2014. Mr. Cooper was previously a member of An Garda Síochána, but was serving a sentence for offences contrary to s. 15 of the Misuse of Drugs Act 1977 (as amended), fraud and perverting the course of justice. As a former member of An Garda Síochána, Mr. Cooper was afforded special protection within the prison. On 20th May 2015, as Mr. Cooper was being escorted to the prison gym, he was assaulted by the appellant when forcefully struck on the head two or three times with a mug concealed inside a sock. Mr. Cooper suffered a serious head injury requiring a number of stitches. The incident was captured on CCTV and was witnessed by a prison officer.
3. The appellant admitted that he attacked Mr. Cooper in the manner described. He claimed however that Mr. Cooper had consented to being assaulted, having requested the appellant to attack him for the purposes of facilitating or orchestrating Mr. Cooper’s early release from prison on the basis that the prison authorities would consider that his safety inside the prison was at serious risk. The appellant maintained that Mr. Cooper instructed him not to “hold back” and to “just make sure there is blood” in order to make the attack look convincing and genuine. He alleged that Mr. Cooper agreed in return, to provide him with certain documentation and information, as well as €1,000 in cash.
4. For his part, Mr. Cooper gave evidence at the appellant’s trial that he had not consented to being assaulted in the manner described, or at all. He insisted that he had no agreement with the appellant, as claimed by him.
Appeal grounds
5. The following grounds of appeal are promoted on behalf of the appellant:-
(i) The learned trial judge erred and misdirected the jury in law with regard to the interpretation of s. 2 and s. 3 of the Non Fatal Offences against the Persons Act 1997, in particular, the learned trial judge erred in distinguishing “assault” for the purpose of a s. 3 offence from “assault” as defined by s. 2 of the Non Fatal Offences against the Persons Act 1997;
(ii) the learned trial judge erred and misdirected the jury in law by interpreting s. 3 of the Non Fatal Offences against the Persons Act 1997 – so as to remove the concept of consent therefrom, and in so doing, the learned trial judge conducted the trial of the accused other than in due course of law in breach of Art. 38.1 of Bunreacht na hÉireann and in breach of obligations under Art. 6 of the European Convention on Human Rights;
(iii) the learned trial judge erred in law in holding that an agreement or consent to the physical application of force, was vitiated or removed as an element of the offence to be established by the prosecution, for reasons that it was contrary to public policy, for a dishonest purpose, tainted by unlawfulness and incapable of enforcement, whilst expressly acknowledging its applicability or the existence of the defence in other circumstances;
(iv) The learned trial judge erred in law in refusing an application on behalf of the appellant for an accomplice warning to be given to the jury.
Non Fatal Offences against the Persons Act 1997
6. The relevant provisions of the Non Fatal Offences against the Persons Act 1997 are:-
2(1) A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly:-
(a) directly or indirectly applies force to or causes an impact on the body of another, or
(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact,
without the consent of the other.
(2) In subsection (1)(a), “force” includes:-
(a) application of heat, light, electric current, noise or any other form of energy, and
(b) application of matter in solid liquid or gaseous form.
(3) No such offence is committed if the force or impact, not being intended or likely to cause injury, is in the circumstances such as is generally acceptable in the ordinary conduct of daily life and the defendant does not know or believe that it is in fact unacceptable to the other person.
(4) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months or to both.
3(1) A person who assaults another causing him or her harm shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable:-
(a) on summary conviction, to imprisonment, for a term not exceeding 12 months or to a fine not exceeding £1,500 or to both, or
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or to both.
4(1) A person who intentionally or recklessly causes serious harm to another shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or to imprisonment for life or to both.
22(1) The provisions of this Act have effect subject to any enactment or rule of law providing a defence, or providing lawful authority, justification or excuse for an act or omission.
(2) Notwithstanding subsection (1) any defence available under the common law in respect of the use of force within the meaning of section 18 or 19 , or an act immediately preparatory to the use of force, for the purposes mentioned in section 18 (1) or 19(1) is hereby abolished.
28(1) The following common law offences are hereby abolished:-
(a) assault and battery,
(b) assault occasioning actual bodily harm,
(c) kidnapping, and
(d) false imprisonment.
7. The Act of 1997 does not define ‘assault’; other than what is provided in s. 2 of the Act.
Submissions made to the Trial Judge
8. At the conclusion of the evidence, including the evidence of the appellant himself, and immediately prior to the jury being charged, submissions were made on behalf of the appellant and the respondent in relation to two issues. The first related to the interpretation of ss. 2 and 3 of the Act of 1997, and whether or not lack of consent is a necessary proof for an offence charged under. s. 3 of the Act. The second concerned the necessity or otherwise for an accomplice warning.
9. In relation to ss. 2 and 3 of the 1997 Act, it was argued on behalf of the appellant that the issue of consent was an essential ingredient to the offences of assault, be they s. 2 or s. 3 assaults. It was contended that ss. 2 and 3 must be read as one, insofar as s. 2 purports to define the ingredients of assault and that, in effect, the provisions set out in s. 2 are carried over into s. 3. Section 2(1) provides that a person shall be guilty of an offence of assault “..who, without lawful excuse, intentionally or recklessly…applies force to or cases an impact on the body of another…without the consent of the other”. It was contended that s. 3 of the Act creates the offence of assault “causing harm” where such an assault is committed (as provided for in s. 2(1)) without the consent of the other person. It was submitted that the jury ought to be have been charged on the issue of consent and, more particularly, they should have been directed to consider whether or not, on the evidence heard by them, Mr. Cooper had consented to being assaulted by the appellant, and that if they were satisfied that he had so consented they should acquit.
10. A counter argument was made on behalf of the respondent. It was to the effect that the provisions of s. 2 did not carry over to s. 3, and that the offences created by both sections were completely separate and unconnected. Particularly the respondent argued that an absence of consent is not an ingredient of a s. 3 offence.
11. In his submissions to the learned trial judge, Mr. Fennelly BL, on behalf of the respondent, submitted as follows:-
“…what I am simply saying is that the Court, unless there are exceptional circumstances to it, and in my respectful submission there are none in the present case, consent can’t be a defence to an assault occasioning actual bodily harm or in the case of our Statute, the offence of assault causing harm. And it does not require, for the purposes of clarity, it does not require that what we would consider serious bodily harm or grievously body harm under the old regime, be achieved. Once there is harm within the old definition,..that is the threshold.”
The learned trial judge’s ruling
12. The learned trial judge ruled as follows:-
“Sections 2 and 3 are standalone offences in the Non Fatal Offences against the Person Act Statute. If it was intended that the definition of assault in s. 2 was to be carried over to s. 3, than the Statue would have clearly provided for this. Section 2 defines for the first time in a Statute the offence of assault simpliciter. It does nothing else. If the Statute was intended to define assault in all its forms then this would have been covered in the interpretation section of the Statute. It doesn’t do this. I am satisfied that the term “assault” as used in s. 3 derives from the definition which is enjoyed in law at the time that the Non Fatal against the Person Act was enacted.”
13. Later in his ruling, the learned trial judge stated:-
“…According to the accused the purpose of the assault was to assist Mr. Cooper in getting a transfer out of Portlaoise Prison. I am satisfied that in the circumstances of the present case Mr. Cooper on grounds of public policy could not have consented to the imposition of an injury on him by the accused, which resulted in Mr. Cooper having to get twelve stitches to the head … I am further satisfied that on the grounds of public policy that the courts could not permit the defence of consent to apply in this case as to do so would be to enforce the purported agreement between the accused and Stephen Cooper. This agreement is my view is illegal and could not be enforced on grounds of public policy as it endeavours to use force as a means to force the prison authorities to transfer Mr. Cooper from the Portlaoise prison. To allow enforcement or recognition of such an agreement would be to undermine the proper governance of the prison and would therefore be contrary to public policy and not in the public interest.”
14. The learned trial judge went on to state that when charging the jury he intended to advise them that there was no need to consider the issue of consent, because, on grounds of public policy, a person cannot agree to the infliction of bodily harm on themselves unless there is a legitimate purpose for such to be done. He addressed the jury in the following terms:-
“In that respect, the accused has proffered the defence that he applied this force and caused the injury to Mr. Cooper in pursuance of an agreement he had entered into with Mr. Cooper, under which Mr. Cooper was to give him some confidential information that he had when he was a garda, together with a sum of €1,000. … But the law is that infliction of force causing injury or harm is not a lawful defence and accordingly my direction to you is that you do not need to concern yourselves with the issue of consent in this trial. Mr. Cooper could not consent to the infliction of the type of injury he sustained. Our law states that, for public policy reasons, you cannot consent to yourself being injured in that fashion. And, for that reason, you are not to concern yourselves with the issue of consent. Consent is not a lawful defence to the charge of assault. And in this case, there is a double reason for that because, even if you accept Mr. Brown’s evidence, the assault was perpetrated in pursuance of an agreement, which was to ensure that Mr. Cooper would be moved from Portlaoise Prison, and that type of an agreement in my view, is an unlawful agreement for public policy reasons because it involves the use of violence for the purpose of arranging the transfer of a prisoner, and that is an attack on the governance of the prison and the maintenance of peace in the prison, and as such any agreement that purports to involve the use of violence in that manner is unlawful and could not be enforceable for public policy reasons. So what you need to be satisfied beyond all reasonable doubt is that there was an application of force and that there was no lawful excuse for the application of that force, and that it caused harm. If you are satisfied on all of those issues, beyond all reasonable doubt, then you are entitled to convict …”
The appellant’s submissions
15. It was argued on behalf of the appellant that the learned trial judge erred in his decision not to allow the defence of consent to go to the jury.
16. The appellant maintained that the criteria for the commission of a s. 3 assault is the same criteria as applies to a s. 2 assault. In terms of gravity, a s.2 assault is less serious than a s.3 assault. It followed therefore that the requirement that there be an absence of consent on the part of a victim to being subjected to force or impact was necessary for the commission of the offence of a s. 3 assault, as it is stipulated to be for a s. 2 assault, notwithstanding the fact that the reference to consent only appears in s. 2.
The respondent’s submissions
17. The respondent maintains that ss. 2 and 3 each define discreet offences, and that the criteria identified in the legislation as constituting the former offence does not apply to the latter offence.
18. The respondent’s position is perhaps best explained in para 2.09 of her submissions, wherein it is stated as follows:-
“It is accordingly submitted that the learned trial judge did not err in construing sections 2 and 3 of the 1997 Act as creating two discreet and separate offences and that such construction correctly positions “consent” solely within the confines of a s. 2 assault. Insofar as consent is concerned therefore, the law permits a person to consent to the direct / indirect application of force etc. upon himself / herself (or the causing of an apprehension of such contact / force) but no more than that. The law specifically does not permit a person to consent to the infliction upon himself / herself of “harm to body or mind..(including) pain and unconsciousness.”
Discussion and conclusion
19. The first matter for decision is the extent to which the provisions of ss. 2 and 3 of the Non Fatal Offences against the Person Act 1997 represent the creation of two discreet and separate offences, so that nothing stated in s. 2 applies in respect of s. 3, and vice versa. A s. 3 assault is clearly a more serious assault than is a s. 2 assault, with the former attracting a prison sentence of up to five years convicted on an indictment. Section 4 of the Act concerns an even more serious assault.
20. Section 2(1) provides that A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly… applies force.. or causes an impact on the body of another, or causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact, without the consent of the other [emphasis added].
21. Section 3 on the other hand simply provides that A person who assaults another causing him or her harm shall be guilty of an offence. It does not go on to expressly incorporate or repeat the detailed explanatory provisions of s. 2, and, more importantly, it does not expressly state that the commission of the offence involves a lack of consent on the part of the victim.
22. Section 22 of the Act of 1997 must also be considered. The explanatory memorandum accompanying the Non Fatal Offences against the Person Bill 1997 expressed the view that s. 22 ensures the continuance of “the common law rules under which bodily harm caused with consent in the course of sports, dangerous exhibitions or medical treatments will apply to exempt the actor from criminal liability”. This section already contemplates the continuance of the old common law rule that consent cannot be a defence to the infliction of serious harm save in very particular circumstances.
23. If a s. 3 assault is an offence in respect of which consent is irrelevant and therefore doesn’t require to be established, are there circumstances where consent nevertheless provides a defence? The answer to this question is: yes. In particular circumstances the infliction of physical harm may be permissible.
24. In R v. Donovan [1934] 2K.B.498, the Court of Criminal Appeal included the following passage in its judgment:-
“‘If an act is unlawful in the sense of it being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can license another to commit a crime. So far as the criminal law is concerned, therefore, where the act charged is in itself unlawful, it can never be necessary to prove absence of consent on the part of the person wronged in order to obtain the conviction of the wrongdoer. There are, however, many acts in themselves harmless and lawful which become unlawful only if done without the consent of the person affected. What is in one case an innocent act of familiarity or affection, may, in another be an assault, for no other reason than that, in the one case there is consent, and in the other consent is absent. As a general rule, although it is a rule to which there are well established exceptions, it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and when such an act is proved, consent is immaterial.’
25. It is of course the case, and it occurs frequently in everyday life, that many types of medical treatment, and in particular invasive surgery invariably requires the use of force and involves the infliction of bodily harm. As such, it is permissible that persons who subject themselves to such force lawfully consent to same. Another example of activity where consent to the infliction of physical harm arises is in the sporting sphere. Issues may however arise in relation to certain so called sporting activity and unregulated sporting activity where consent becomes an irrelevant factor. It can be seen therefore that consensual violence is therefore permissible in certain limited circumstances.
26. In R v. Nazif [1987] 1 NZLR 122, the New Zealand Court of Appeal noted that while consent is a defence to assault there are exceptions, both statutory and otherwise, where the public interest is involved.
27. In R. v. Wilson [1997] QB 47, the accused branded his initials on his wife’s buttocks with a heated knife with her consent and active encouragement, supposedly as an act of love. In that case the Court of Appeal overturned a conviction for assault occasioning actual bodily harm on the basis that the conduct was lawful and was not dangerous.
28. In Attorney General’s Reference (No. 6 of 1980) [1981] QB 715 at 719, the Court stated:-
“Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in other cases.”
29. In R v. Jones [1986] 83 Cr.App.R. 375, the activities of rough and undisciplined horseplay were added to this list of exceptions.
30. The issue of the relationship between ss. 2 and 3 of the Act of 1997 was considered by Peart J. in The Minister for Justice, Equality and Law Reform v. Damien Dolny [2008] IEHC 326, and by Denham J. (as she then was) in an appeal of that case to the Supreme Court: [2009] IESC 48. The case concerned an application for the surrender of Mr. Dolny to Poland for the purposes of serving a prison sentence imposed on him there in December 2004 following his conviction for an offence of assault. Amongst a number of issues raised on Mr Dolny’s behalf was a suggestion that the offence for which Mr. Dolny was convicted in 2004 did not correspond to any offence under Irish law. The basis for this submission was that the facts as recited in the warrant did not go so far as to explicitly state that the offence was committed without the consent of the victim.
31. Submissions made on behalf of Mr. Dolny were to the effect that the provisions of s. 2 of the Act of 1997, (that a person shall be guilty of the offence of assault who without lawful excuse intentionally or recklessly … applies force to or causes an impact on the body of another, or causes another to believe … that he or she is likely .. to be subjected to any such force or impact … without the consent of the other), constitutes a definition of assault carried over to s.3, although nothing is specifically stated to that effect. In his judgment, Peart J. stated:-
“In my view, this submission is wrong. The offences created respectively by s. 2 and s. 3 of the 1997 Act, are distinct and different offences. An assault under s. 2 requires for its commission that the person assaulted did not consent to being assaulted, as well as that the assault be inflicted without lawful excuse and intentionally or recklessly. The section is clear in that regard. But the separate and distinct offence of ‘assault causing harm’ in s. 3, contains no such requirements. It is a separate offence, and it is not the case that s. 2 is intended to define the concept of “assault” for all purposes of the Act. There is no definition of assault contained in s. 1 of the 1997 Act, or elsewhere therein.
Section 3 provides for a freestanding offence of ‘assault causing harm’, as opposed to a simple assault. In order to be guilty of this offence, a person must have carried out an assault and must have caused ‘harm’ as defined in section 1 of the 1997 Act. In such an offence, it is not part of the offence that it occurs without the consent of the victim. That is clear from the plain meaning of the words used in the section. In section 3, the word ‘assault’ is not used as a term of art by reference to the provisions of s. 2, or by reference to any statutory definition of that word. The Concise Oxford Dictionary definition of ‘assault’ is a “violent physical or verbal attack”. That is the meaning to be given to the word ‘assault’ for the purpose of the section 3 offence.”
32. In the Supreme Court appeal from the decision of Peart J., Denham J. affirmed the approach taken by Peart J.:-
33. The judgment of Lord Jauncey in R v. Brown [1993] EWCA Crim J0311-1 is interesting, although it is important to be aware when reading it that both sections 20 and 47 of the Offences Against the Person Act 1861 were expressly repealed by the Act of 1997. Lord Jauncy stated:-
“…In my view the line properly falls to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by section 47 of the Offences Against the Person Act 1861, with the result that consent of the victim is no answer to anyone charged with the latter offence or with a contravention of section 20 unless the circumstances fall within one of the well known exceptions such as organised sporting contests and games, parental chastisement or reasonable surgery. There is nothing in sections 20 and 47 of the Act of 1861 to suggest that consent is either an essential ingredient of the offences or a defence thereto. If consent is to be an answer to a charge under section 47 but not to one under section 20, considerable practical problems would arise. It was held in Reg. v. Savage [1992] 1 AC 699 that a verdict of guilty of assault occasioning actual bodily harm is a permissible alternative verdict on a count alleging unlawful wounding contrary to section 20 (Lord Ackner at p. 740D). A judge charging a jury in a section 20 case would therefore not only have to direct them as to the alternative verdict available under section 47, but also as to the consequences of consent in relation to that alternative only. Such direction would be more complex if consent was an answer to wounding under section 20, but not to the infliction of grievous bodily harm under the same section. These problems would not arise if consent is an answer only to common assault. I would therefore dispose of these appeals on the basis that the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer.”
34. Section 22 of the Act of 1997, as already noted, provides a defence to any offence created under the act where there exists “lawful authority justification or excuse”. Section 23 provides for consent by a minor over sixteen years of age to surgical, medical and dental treatment, and s. 24 removes the previous immunity enjoyed by teachers in respect of physical chastisement of pupils.
35. It is not contended or suggested that the statutory provisions relating to a s. 2 offence should be also applicable to a s. 4 offence. Section 4 provides:-
“4(1) A person who intentionally or recklessly causes serious harm to another shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or to imprisonment for life or to both.
While s. 4 does not use the term ‘assault’, it clearly creates an offence which might be described as an assault type offence, albeit of a more serious nature than ss. 2 and 3 assaults. Indeed an s. 4 offence is often referred to as an assault causing serious harm.
36. Section 2 of the act of 1997 specifically creates an offence of assault occurring without the consent of the other. Section 3 contains no such provision. The drafting of these related sections, (to the extent that they both refer to assault), creates confusion as is evident from this and other cases and might have been the subject of more careful drafting. It is nevertheless appropriate that the offences described in ss. 2 and 3, respectively, should be treated as separate and distinct offences, as indeed should the offence described in s. 4.
37. In Howard v. Commissioners of Public Works [1994] 1 I.R. 101 Blaney J. stated:-
“The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense.”
And
“…The meaning which words ought to be understood to bear is not to be ascertained by any process akin to speculation: the primary duty of a court of law is to find that natural meaning of the words used in the context in which they occur, the context including any other phrases in the Act which may throw light on the sense in which the makers of the Act used the words in dispute.”
38. Proof of an absence of consent is therefore not a necessary ingredient in a s. 3 assault. Consent may however provide a defence to a s. 3 assault charge in limited circumstances such as, for example, legitimate sporting activity and necessary and appropriate medical treatment.
39. An assault causing harm committed in circumstances where the purpose and / or intention of the assault is itself unlawful and / or contrary to public policy can never be rendered lawful on the basis that the victim invited the assault or consented to being assaulted. Consent in those circumstances would not serve to undermine the criminalisation of such conduct under s. 3 of the Act of 1997. In this Court’s view, the ruling of the learned trial judge in this case was correct, as was his charge to the jury to the effect that the very serious attack on Mr. Cooper by the appellant was not excusable on the basis that it had been consented to, if indeed there was any such consent.
40. It is therefore unnecessary for the Court to consider the ground of appeal concerning the decision of the learned trial judge not to give an accomplice warning to the jury.
41. The appeal against conviction is dismissed.
D.P.P. v. Brennan
[1997] IEHC 3 (16th January, 1997)
JUDGMENT of McCracken J. delivered the 16th day of January, 1997 .
This is a Consultative Case Stated by Judge Hogan arising out of the provisions of Section 19 of the Criminal Justice (Public Order) Act, 1994. The relevant portions of Section 19 are as follows:-
“(1) Any person who –
(a) assaults a peace officer acting in the execution of the peace officer’s duty, knowing that he is, or being reckless as to whether he is, a peace
officer acting in the execution of his duty, or
(b) assaults any other person acting in the aid of a peace officer, or
(c) assaults any other person with intent to resist or prevent the lawful
apprehension or detention of himself or any other person for any offence,
shall be guilty of an offence.
(2) A person guilty of an offence under subsection (1) shall be liable:-
(a) having elected for summary disposal of the offence, on summary
conviction, to a fine not exceeding £1,000 or to imprisonment for a
term not exceeding 12 months, or to both,
(b) on conviction on indictment, to a fine or imprisonment for a term not
exceeding 5 years or to both.
(5) The provisions of this section are in addition to and not in substitution of any provision in any other enactment relating to assault or obstruction of a peace officer”.
This Act repeals Section 38 of the Offences Against the Person Act, 1861 and Section 12 of the Prevention of Crimes Act, 1871, which dealt with assault on police officers in the execution of their duty.
1. In the present case, the Accused was charged with common assault, although it is alleged that that assault in fact took place on a police officer acting in the execution of his duty, and I refer to the finding of Judge Hogan at paragraph 4 of the Case Stated.
2. The essence of the Accused’s case is that he is charged with a summary offence before the District Court while Section 19(2) makes it clear that if he had been charged under that section, he might elect to be sent forward to be tried on indictment.
3. The first point that arises in this case is that the words in Section 19(2) “having elected for summary disposal of the offence” were not in the Bill as initiated, and the Applicant argues that I am entitled to look at the reasons for the inclusion of these words, and for this purpose to read the relevant Dail debates. I am satisfied that I have power to do so under the authority of The People (Director of Public Prosecutions) v. McDonagh (1996) 2 I.L.R.M. 468.
4. Serious doubts were expressed in the Dail by several deputies as to the desirability of a charge of assaulting a peace officer being tried by a Judge alone as a summary offence, and ultimately an amendment proposed by Michael McDowell T.D. to Section 19(2) was accepted in the terms of the section as it now stands. Unfortunately, no consideration was given in these discussions in the Dail as to what would happen if a person who in fact assaulted a peace officer was charged with a different summary offence, as in the present case. What I am being asked to do is to infer that if the point had been considered, common assault would have been expressly excluded in such circumstances, and therefore I should imply that, it being the intention of the legislature that a person who assaults a peace officer should have the right to trial by jury, ipso facto such a person has that right, and that I should interpret the Act in that way. I cannot accept this argument. The normal rules of interpretation must apply. There is nothing in the 1994 Act which could reasonably be interpreted as limiting the scope of the offence of common assault, and I cannot use the Dail debates to add something to the Act which is not alluded to at all.
5. In any event, Section 19(5) makes it clear that the Oireachtas considered there could be other offences arising where a peace officer is assaulted. It expressly preserves other enactments, which would include Section 42 of the Offences Against the Person Act, 1861 which refers to a person unlawfully assaulting “any other person” , and this phrase must include a peace officer. In my view, therefore, the offence of common assault is expressly preserved, insofar as it is referred to in that section.
6. Finally, I think that the result of a prohibition on charging a person who assaults a peace officer with common assault could seriously limit the discretion of the Director of Public Prosecutions as to what charges he may choose to bring, and could unduly complicate the conduct of prosecutions. During the hearing I gave the example of a person driving a stolen car who abandons the car when a police squad car appears, runs down the road chased by a garda and assaults somebody in the road who gets in his way. The Director of Public Prosecutions might decide it would be difficult to prove that the assault was with the intent of resisting arrest, and not simply, for example, because the accused was under the influence of drugs. Surely the Director of Public Prosecutions must be able to use his discretion to bring the charge of common assault, which he knows he can prove.
7. Ms Donnelly, on behalf of the Applicant, says that the Director of Public Prosecutions in those circumstances can charge the accused with both offences. I do not think that this is an answer. For example, if at the trial the witness as to intent, such as the garda who was chasing the accused in the example I have given, did not turn up at the trial, it would not be open to the Director of Public Prosecutions to abandon a Section 19 charge because the accused might give evidence that he did commit assault with the intent of resisting arrest, and therefore he must be acquitted of common assault. It seems to me, therefore, that the interpretation put forward by the Applicant is unreasonable, and I would answer question (a) of the Case Stated “No”.
8. With regard to questions (b) and (c), namely, whether to charge a person with common assault in circumstances such as the present would be an abuse of the process of the Court, or be a breach of the constitutional right to fair procedures, I would emphasise that the questions are asked as general questions, and I can only answer them as such in the absence of any specific facts. I see no reason why it is an abuse of the process of the Court or a breach of any constitutional right in general or in principle to charge a person with an offence of which he is guilty, and to bring him before a duly constituted Court in the due course of law. Of course, there may be particular circumstances where this would be so, for example, if mala fides could be shown.
9. Accordingly, I would also answer questions (b) and (c) “No”.
Donnelly v Ingram
Circuit Court
1 July 1897
[1897] 31 I.L.T.R 139
Palles C.B.
Armagh, July, 1897
Where a summons has been brought at Petty Sessions for assault, and an order made certifying That the summons was “dismissed,” this is no bar to subsequent civil proceedings. “Dismissed” is no order in law.
Civil bill Appeal by Patrick Donnelly from a dismiss on the merits given by the County Court Judge against him in an action against John Ingram to recover damages for assault and battery. Before civil proceedings had been taken a summons had been brought at Petty Sessions, and “dismissed” by the magistrates.
Campbell, Q.C. ( Murphy with him), for the respondent, submitted that the action could not proceed, as the action brought at Petty Sessions had been heard and “dismissed” under 24 & 25 Vic., c. 100, and the order of “dismiss” was a bar to subsequent proceedings.
W. H. Brown, for the appellant.—This Act, 24 & 25 Vic., c. 100, is under the Petty Sessions code, the provisions of which made it necessary for the justices to make a dismiss either “on the merits” or “without prejudice,” and in an assault to certify that the assault was “trifling” or “justified,” in order to be a bar to subsequent proceedings. The order “dismissed” was no order in law. Bridges v. Justices of Armagh (unreported, Q. B. D., 1897).
Palles, C.B., ruled in favour of the appellant, and heard the action.
People (DPP) v Kirwan
[2005] I.E.C.C.A.
JUDGMENT of the court delivered on the 28th day of October, 2005, by Kearns J.
The appellant was on the 6th December, 2004, convicted at Dublin Circuit Criminal Court of two offences of assault under the Non-Fatal Offences against The Person Act, 1997 (hereinafter referred to as “the Act”).
The first conviction was in respect of an assault causing harm, contrary to s.3 of the Act, which was perpetrated by the appellant on Derek White on the 20th July, 2002, in a nightclub attached to a public house known as “The Black Sheep” in the city of Dublin. The appellant was also convicted of the offence of assault causing serious harm to Derek White in the same incident, contrary to s.4 of the Act. Following conviction, sentences of 2 years imprisonment on each count were imposed on the 28th January, 2005, such sentences to run concurrently from the 28th January, 2005. The sum of €5,000 was also paid by way of compensation by Mr. Kirwan to Derek White and was taken into account by the trial judge when imposing sentence.
The appeal before this court is confined to two grounds, one of which has already been dealt with in ex tempore fashion by this court at the conclusion of the hearing on the 17th October, 2005. The court on that occasion rejected so much of the appellant’s appeal which claimed that evidence given by an eye-witness, Karen Byrne, was so unsatisfactory and inconsistent that the trial judge should not have permitted the offences charged under the Act to go to the jury. The court further rejected submissions that the verdict of the jury was perverse or unsafe on that particular ground.
The court however reserved its judgment on the other ground of appeal which may be characterised as a contention that the evidence offered by the prosecution did not comply with the detailed requirements for establishing that there was ‘serious harm’ as that term is defined at s.1 of the Act and that the learned trial judge did not properly or adequately direct the jury as to the meaning of “serious harm” under s.1 of the said Act.
The evidence given in the Circuit Court was that Derek White had gone with friends to the nightclub in question on the 20th July, 2002. In the course of the evening, three young men, of whom the appellant was one, came up to Derek White while he was dancing with Karen Byrne. According to the prosecution evidence, the appellant, without any prior provocation or warning, stuck a pint glass into the face of Derek White, causing lacerations to Mr. White’s left eye, his nose and lip. Mr White bled extensively and was removed from the scene by ambulance to Beaumont Hospital. He remained there for several hours before being transferred to the Mater Hospital where surgery was performed on the 20th July, 2002. Mr. White told the court that he had 24 stitches inserted in his left eye and 13 stitches around his face, nose, lip and both cheeks. His evidence as to the number of stitches required was not challenged.
Detailed evidence about the eye injury was given by Mr. Tim Fulcher, consultant ophthalmologist. He described how Derek White, who was born on the 18th January, 1982, came under his care following surgery on the 20th July, 2002. He carried out an examination of Mr. White on that day and told the court that Mr. White had sustained a slit-like injury which perforated the cornea and part of the sclera of the left eye. The wound was about 4mm in length. On examining the eyeball itself, he stated that one could see that the wound had been repaired with a number of stitches. He noted that the iris, which he described as the coloured part of the eye, had prolapsed out through the wound and had been pushed back in. He also observed a number of stitches to Mr. White’s face, and in particular to his eyelid, face and lip. At that stage the vision in Mr. White’s eye was “fairly reduced”. During his stay in hospital, Mr. Fulcher stated that Mr. White was treated with antibiotics to prevent an infection of the eye, an event which, if it had occurred, could have caused him to lose the sight completely of his eye. Having been started on intravenous antibiotics for 2 days, Mr. White was then changed over to oral antibiotics which were continued for a period of about a week after the injury. He was also given eye drops. Following his discharge he returned to the hospital for review one week later. At that stage his eye was healing up and his vision was starting to improve. Mr. Fulcher stated that his vision was down by about 50% in the left eye primarily because of the stitches in the eye. They distorted the shape of the eye and caused some stigmatism which Mr. Fulcher described as a refractive change within the eye which causes blurring of vision. As the eye heals and the stitches are removed, that blurring and stigmatism reduces. When seen again at the clinic on the 9th August, 2002 the eye had healed up and vision had improved to normal vision.
Mr. Fulcher described the eye injury as a “serious injury”. He stated in evidence that perforating injuries to an eye can result in complete loss of vision or loss of the eye. Fortunately for Mr. White his injury was “quite neat” and was repaired “quite nicely”. Mr. White had a good outcome from the operation and had not been back to the clinic since. There was a possibility however that problems might arise some years down the line.
On cross-examination by Mr O’Higgins, senior counsel for the appellant, Mr. Fulcher agreed that part of the reduction in vision in the eye was attributable to the stitching.
Mr. O’Higgins’ contended in submissions that the evidence in the case failed to satisfy any one of the three limbs of the test as to what constitutes “serious harm” in the Act. He submitted that “serious harm” under the Act means an injury which must meet one of the following requirements, being one:-
(a) which creates a substantial risk of death
or
(b) which causes serious disfigurement
or
(c) which causes substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ.
Mr O’Higgins submitted that the only medical or expert evidence led by the prosecution was of a laceration to the left eye which was followed by blurred vision which lasted for a number of days. The primary cause of this blurring was not due to the injury but to the treatment (i.e. stitching) which Mr White had received. There was no evidence of serious disfigurement or substantial impairment of the mobility or the function of any particular member or organ as required by the definition of “serious harm” in s.1 of the Act. No evidence had been adduced to establish disfigurement to any degree, either in photographic form or otherwise to show how the injured party’s face presented at the time of the injury, or in its immediate or later aftermath. It was common case that there had been an excellent recovery from the eye injury, so there was no question of any lasting disfigurement or impairment of mobility of that organ.
In response, Mr. Fergal Foley B.L., submitted that there was no need for the injury to have permanent or lasting consequences. While Mr. White had made a speedy recovery and had recovered normal eyesight, that fact was entirely due to the medical treatment which he had received. Mr White had in addition been left with some permanent scarring to the face. The attack had been a particularly violent and dangerous assault, involving as it did a glass which was capable of, and indeed did, inflict a serious injury on the night in question. Mr. Foley submitted that the court should not lose sight of ordinary common sense when construing the terminology of the Act and the definition of “serious harm” set out in s.1 thereof.
Decision
Existing common law and statutory definitions of various forms of assault were replaced by those contained in the Non-Fatal Offences against The Person Act, 1997. It is therefore appropriate to set out those provisions of the Act which define ‘harm’ and which create the new statutory offences.
“Harm” under s.1 (1) of the Act:-
“means harm to body or mind and includes pain and unconsciousness”
“Serious harm” as defined by the same section:-
“means injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ”
Section 2 of the Act describes the offence of assault simpliciter in the following manner:-
“A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly –
(a) directly or indirectly applies force to or causes an impact on the body of another…”
A person guilty of an offence under s.2 is liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months or both.
Section 3 describes the offence of “assault causing harm” in the following manner:-
“(1) A person who assaults another causing him or her harm shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable –
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding £1,500 or to both,
or
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding five years or to both.”
The offence of assault “causing serious harm” is described at s.4 of the Act as follows:-
“(1) A person who intentionally or recklessly causes serious harm to another shall be guilty of an offence
(2) A person guilty of an offence under this section shall be liable on conviction and indictment to a fine or to imprisonment for life or to both.”
The new Act thus provided in increasing order of severity for the offences of, firstly, assault (s.2), then assault causing harm (s.3) and, thirdly, the offence of assault causing serious harm (s.4). The terminology of ss. 2-4 largely follows the recommendations contained in the report of the Law Reform Commission LRC 45-1994, (Dublin, 1994) at pp.252-256). That report makes it clear that the Commission was concerned to simplify and clarify the law on assault and for that purpose to replace ss. 18, 20 and 47 of the Offences against the Person Act, 1861, with clearer and more straightforward definitions. As noted by Ivana Bacik when writing in the Irish Criminal Law Journal (Vol. 7 no. 1, 1997 at p.58):-
“No longer will generations of law students and practitioners have to wade through the provisions of the 1861 Act ; no longer will the antiquated duelling language of ‘maiming’ and ‘wounding’ be used to describe stabbings and knifings outside pubs and clubs. The clear and straightforward language used by the Law Reform Commission and adopted in the assault provisions of the Act is to be welcomed, as it marks another step on the long and arduous road to making legislation accessible and understandable, not just by lawyers, but also by laypeople.”
As part of its recommendations, the Law Reform Commission noted that in any description of the consequences of an assault the word “harm” was more comprehensive than the word “injury” because it could more readily be seen and understood as including mental hurt also. The Commission in addition saw the word “bodily” in the 1861 Act as superfluous in the context of “harm”, and the use of the word “actual” was also seen as superfluous. The Commission felt the word “grievous” was a somewhat antiquated word, opting instead for “serious”, being the word used already in the context of harm in road traffic legislation. The recommended formula of words to define “serious harm” was set out in the L.R.C. report in the following terms:-
“Serious harm should be defined as ‘injury which creates a substantial risk of death or which creates serious permanent disfigurement or protracted loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ’. ”
It is interesting, however, to note that the wording which appears in the legislation as enacted does not contain either the words “permanent” or “protracted”, from which one may infer that the Oireachtas was quite consciously abstracting or removing requirements of permanence or even long term consequences from the definition of ‘serious harm’, requirements which, had they been enacted, might have been seen as requiring that proof of such matters was necessary to constitute the offence of ‘assault causing serious harm’.
It may be noted in this regard that the legislation as enacted in no way represented any major new departure in the understanding of what constitutes serious harm or grievous bodily harm. In The People (A.G.) v. Messitt [1974] I.R. 406, O’Dhálaigh C.J., who delivered the judgment of the Supreme Court, had to consider whether or not an injury alleged to have been intended by a person charged under s.18 of the Offences against The Person Act, 1861, i.e. to maim, disfigure or disable or to do some other grievous bodily harm, must be of a ‘grave and permanent nature’. At p.414 he stated:-
“I have already referred to the terms of s.18 of the Act of 1861. The use of the words ‘or to do some other grievous bodily harm’ after the words ‘maim, disfigure or disable’ indicate, if it were necessary to do so, that ‘maiming’ ‘disfiguring’ and ‘disabling’ are, severally, species of ‘grievous bodily harm.’ To maim is to do an injury to the body which causes loss of a limb or the use of it; here it seems to me permanency is an element. But ‘disable’ and ‘disfigure’ do not necessarily imply permanency; indeed, modern surgical skills can go a great distance towards undoing what heretofore would formerly have been ‘disablement’ or ‘disfigurement’. Nor in the phrase ‘or to do some other grievous bodily harm’ is there anything to indicate that bodily harm must be permanent. The only requirement is that it should be ‘grievous’. I think the term ‘grave’ has weightier connotations than ‘grievous’ and that the two words are not wholly interchangeable. I see no reason to seek a definition of ‘grievous’, but if one should be required I think Lord Kilmuir’s ‘really serious’ in Director of Public Prosecutions v. Smith [1961] A.C. 290,334 is as simple and effective a definition as one could desire.”
In DPP v. Smith Viscount Kilmuir L.C. had stated as follows (at p.334):-
“My Lords, I confess that whether one is considering the crime of murder or the statutory offence, I can find no warrant for giving the words ‘grievous bodily harm’ a meaning other than that which the words convey in their ordinary and natural meaning. ‘Bodily harm’ needs no explanation, and ‘grievous’ means no more and no less than ‘really serious’.”
The court is satisfied therefore that the term ‘serious harm’ does not per se mean or require proof of an injury with protracted or long term consequences. The court would equally be of the view that there is no distinction of significance to be drawn between the expressions “serious hurt”, “serious harm” or “serious injury”, save in the sense mentioned by the Law Reform Commission in its report.
The court has no difficulty in rejecting submissions made during the course of the appeal to the effect that the side-effects or consequences of the stitching of Mr. White’s left eye should not be seen as part of the “harm” suffered by Mr. White. The stitching was immediately and intimately associated with the original injury and necessitated by it. Mr. White only obtained the good result which eventuated because of such surgical intervention. The idea that remedial medical attention may in some way detract from the gravity of the original injury so as to automatically take it out of the category of “serious harm” is a proposition which, even to the limited extent to which it was argued during the course of the appeal, the court rejects as absurd.
That view is however subject to this qualification: where in any case of assault causing serious harm the degree of ‘disfigurement’ is the critical issue, the court will normally be dealing with a cosmetic injury. The court would be of the view that in this context the outcome of any medical treatment must be taken into account as it would be unreal to hold that someone was ‘disfigured’ if in fact and in the aftermath of medical treatment that was not the case. The word ‘disfigure’ is described in the Concise Oxford Dictionary (11th Ed) as meaning ‘to spoil the appearance of’. The word ‘disfigurement’ thus connotes an outcome rather than an immediate effect – in contradistinction to the word ‘impairment’ which clearly may encompass a consequence of short duration, particularly when the word is employed as an alternative to the word “loss” and is used in conjunction with the word “function” as it appears in s.1 of the Act.
Mr. O’Higgins has argued that none of the evidential requirements to prove ‘serious harm’ in any of the three ways set out in s.1 of the Act were fulfilled in the instant case. On the run of the evidence, this court is disposed to accept part of that submission because there was certainly no evidence that the injury inflicted by the applicant created a substantial risk of death. Nor was there any evidence that Mr. White had been left with any serious disfigurement. No evidence was given to the court or jury to indicate the extent or severity of the scarring suffered by Mr. White to his nose, lip and face. The trial judge, incorrectly in our view, declined a request that the jury be allowed to closely inspect the scarring. Be that as it may, there was in the event no evidence from a plastic surgeon, or Mr. White himself for that matter, as to whether this scarring was raised, reddened or particularly noticeable. There was further no evidence as to the dimensions of any scarring suffered by Mr White. The jury members were effectively left to do the best they could on the basis of what they could see from the jury box either when Mr. White gave his evidence or sat in the courtroom thereafter.
However, the court is in no doubt whatsoever that the evidence tendered at the trial fully met the requirements of the third limb of the test in that the medical evidence which was given clearly established a substantial, though temporary, impairment of the function of the left eye. Mr. Fulcher described it as a “serious injury” and his evidence was not controverted by any medical evidence led on behalf of Mr. Kirwan. Indeed the court notes that Mr. Fulcher’s evidence went almost completely without challenge, save in respect of the issue as to whether the stitching to the left eye was responsible for the blurred vision which was noticeable on examination a week after the attack. In the view of the court there was ample evidence from which the jury could form the view that Mr White had suffered a substantial impairment of the function of his left eye amounting to ‘serious harm’ as defined by s.1 of the Act.
The court is satisfied that the appropriate direction to give to a jury where assault causing serious harm is being considered is to tell the jury about the various alternative circumstances in which serious harm as defined in the Act may arise and to further direct the jury that the words in each of the circumstances identified in the statutory definition be given their natural and ordinary meaning. In addition it would seem appropriate in cases where ‘disfigurement’ is to be considered by a jury that the jury be told that the outcome of any medical treatment actually given or received, and not just the appearance of the injury in the immediate aftermath of the assault, must be taken into account when assessing whether or not there has been “serious disfigurement”. However, where “substantial impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ” is concerned, a jury should be told that no requirement of permanent or protracted impairment of the mobility of the body or of the function of any particular bodily member or organ is required, provided they are satisfied beyond reasonable doubt that such impairment was or is ‘substantial’.
Having read the trial judge’s charge to the jury and his subsequent further directions given following requisitions, the court is satisfied that the trial judge adequately and appropriately directed the jury in the circumstances of this case and submissions that he failed to do so are rejected.
People (DPP) v O’Reilly
[2017] IECA 89
THE COURT OF APPEAL
Sheehan J.
Mahon J.
Edwards J.
Record No: 190/2013
Between
The People at the suit of the Director of Public Prosecutions
Respondent
V
Stephen O’Reilly
Appellant
JUDGMENT of the Court delivered on 20th March 2017 by Mr. Justice Edwards.
Introduction
1. On 8th July, 2013 the appellant was convicted by the unanimous verdicts of a jury in the Dublin Central Criminal Court of two offences, namely causing serious harm contrary to s. 4 of the Non Fatal Offences against the Person Act, 1997 (“the Act of 1997”) (Count No. 1); and production, in a manner likely unlawfully to intimidate another person, of an article capable of inflicting serious injury, contrary to s. 11 of the Firearms and Offensive Weapons Act, 1990 (Count No. 2).
2. The appellant was subsequently sentenced to 12 years’ imprisonment on Count No. 1 to date from 23rd February, 2012 with the final 3 years of the said 12 year sentence suspended upon conditions. Count No. 2 was taken into consideration.
3. The appellant now appeals against his conviction and also against the severity of his sentence. This judgment deals solely with the appeal against conviction.
Summary of the evidence before the jury
4. The injured party was a Mr. Stephen O’Brien. The case involved the very serious stabbing of Mr. O’Brien on the evening of the 16th of August 2011 in the course of which Mr. O’Brien sustained significant injuries including a penetrating injury to the chest, in which the membrane of his lung was burst by the blade of the knife which then continued into and penetrated his lung, thereby causing some internal bleeding and also causing Mr. O’Brien to suffer a pneumothorax, the latter of which required to be treated surgically by the insertion of a chest drain in order to facilitate the re-inflation of Mr. O’Brien’s collapsed lung.
5. The primary evidence concerning who perpetrated the stabbing came from the injured party himself, who claimed to recognise his assailants as being the appellant, and Gerard (“Ger”) Keogh. The jury also heard evidence from Mr. Keogh, who on the injured party’s account had acted as an accomplice to the appellant, but who denied that that was the case. Mr. Keogh confirmed that the injured party had been stabbed by the appellant and sought to place all the blame on the appellant.
6. In the course of his evidence Mr. O’Brien told the jury that he was living at 2A Montrose Court in Artane on 16th August, 2011. On that day he had collected his social welfare payment. Later he was at home alone when two people came to his flat and they were his friend Ger Keogh, and the appellant Stephen O’Reilly. He said that he knew Stephen O’Reilly both by the names Chisler and Stephen. When asked what happened next he said:
“A. Well, within a flash he took my eye out, he took a large scar across me he took my whole forehead off.
Q. With what?
A. A knife, an apex knife, and stabbed me a couple of times in the back.
Q. And what conversation, if any, did you have with him?
A. None, it just happened.
Q. And where were you when he stabbed you
A. “Give us, give us your bank card”, I was asked.
Q. Sorry, where were you when he stabbed you?
A. About two foot away from the door, the front door.
Q. I see. Now, what did you say about the bank card?
A. Oh they asked for my bank card and
Q. Who asked you for the bank card?
A. I’m not sure which one, I think it was Chisler.
Q. What did you do?
A. I actually gave it to him, I didn’t want to be stabbed again, you know, and gave him my PIN number and he disappeared.”
7. Mr. O’Brien further gave evidence that €180 was later taken from his bank account. He claimed that as he lay bleeding Mr. Keogh had stood watch over him armed with a knife, awaiting the return of the appellant. He said that when Chisler came back the two of them “sat on the end of the bed and having a big smile between each other and one said to me, ‘Do you want your balls chopped off?’ I said, ‘No’, and he says, ‘Do you want your ears chopped off?’ I says, ‘No’, and then they left”.
8. Mr. O’Brien to the jury that after his assailants had left he sought assistance from his neighbours, that an ambulance was called and that he was taken to hospital.
9. The jury further heard from a Mr. Paul Burke who placed Mr. Keogh and the appellant in each other’s company near the locus of the offence. They also heard evidence from a paramedic who had brought Mr. O’Brien to hospital, having assessed Mr. O’Brien’s injuries as being life threatening. The jury further heard evidence from the nurse who treated Mr. O’Brien on his arrival at hospital and evidence from Prof. Broe, the surgeon who inserted a drain to re-inflate Mr. O’Brien’s collapsed lung.
10. In the course of the Garda investigation into the attack the appellant was arrested and interviewed. In the course of being interviewed the appellant denied knowing Mr. O’Brien. When it was put to him that Mr. O’Brien’s phone number had been found on his phone under the name “Stephen O’B” he relented and agreed that he knew Mr. O’Brien. The prosecution adduced evidence before the jury in support of their case concerning his initial lie when he claimed that he did not know Mr. O’Brien.
The grounds of appeal
11. The appellant initially sought to appeal against his conviction on nine discrete grounds as set out in his notice of appeal. However, at the oral hearing before this Court counsel for the appellant indicated that the appeal would in fact be confined to 2 grounds. These were Grounds 7 and 8 in the original notice of appeal and were in the following terms:-
“7. The trial was unsatisfactory and the verdicts are unsafe having regard to the refusal by the trial judge to recharge the jury on foot of requisitions made to him by prosecuting counsel inter alia as to the appropriate warning to the jury in respect of the evidence of a person who might be regarded as an accomplice.
8. The trial was unsatisfactory and the verdicts are unsafe having regard to the manner in which the trial judge recharged the jury in respect of the definition of serious harm including in circumstances where the prosecution evidence was to the effect that the injury itself (as opposed to the action of stabbing) had not caused a risk to the life of the complainant; the jury asked a question on the matter; and counsel repeatedly requisitioned in respect of same.”
The alleged inadequacy of the accomplice warning
12. In the course of charging the jury, the trial judge told them:
“In respect of Mr. Keogh’s evidence, a further matter of law has been referred to and I will deal with it, he is potentially an accomplice, it has been established through questioning by Mr. Ó Lideadha that he himself asserts he did nothing wrong. He was there, but he did not engage in any robbery, he did nothing wrong and did not assault and was not involved in the criminality, so to speak. He was arrested, he was not charged and he is not likely to be charged at this juncture, but he comes with the assailant, he knocks on the door and immediately behind him the assailant enters. He sits on the bed, on one account of it, with the assailant afterwards and smokes with him and he leaves with him. I think those facts, if you accept that they are established to your satisfaction, would give you a fair basis of believing, and it is open to you to draw that conclusion, that Mr. Keogh was actively involved, he was an accomplice and that being so, you must again treat his evidence to the extent that he blames Mr. O’Reilly for the wrongdoing with scepticism, with care, with caution, realising that people who are engaged in criminal activity often seek to put the blame elsewhere, to try and exonerate themselves, to minimise their involvement. So, that is a further caution necessary for you in assessing the evidence of Mr. Keogh and what he says if you are of the view on the evidence that he amounts to or was an active participant in what happened, an accomplice.”
13. Counsel on both sides raised requisitions with the trial judge with respect to this aspect of the judge’s charge. Counsel for the prosecution stated:
“Judge, my only concern is just in relation to the accomplice warning and I am just relying on Ms. Coonan’s book, Judge, where she seems to suggest that the law is that where the prosecution relies on the evidence of an accomplice and Mr. Keogh may be an accomplice:
‘The trial judge must instruct the jury on the dangers of acting on such evidence in the absence of corroboration. This warning must be given, even where it is clear there is evidence capable of constituting corroboration and this is because the task of determining whether evidence is corroborative is clearly for the jury.’
And I would suggest, Judge, that perhaps it would – if the jury were warned of that and then it was pointed out to them what the evidence was that could be – could amount to corroboration, namely the evidence of Mr. O’Brien.”
14. Counsel for the defence supported the prosecution’s requisition:
“Well, first of all, Judge, I would agree with my friend’s submission with regard to that matter. In my respectful submission, you, Judge, did not use the word ‘dangerous’ to convict on the evidence of an accomplice in the absence of corroboration and I would ask you to do so and, as far as corroboration is concerned, I would ask the Court to tell the jury in explicit terms that if, having considered the evidence of Mr. O’Brien, the jury comes to a conclusion his evidence cannot be relied on beyond reasonable doubt, then the position is that it appears that the evidence of Mr. Keogh is not corroborated in as far as the allegation of the offences is concerned and, therefore, the warning would be fully activated in that sense.”
15. The trial judge ruled on the requisition applications as follows:
“Alright, the first proposition that has been raised is in respect of the advice I gave the jury with regard to Mr. Keogh’s evidence and that of being a potential accomplice. I am satisfied I have adequately dealt with that. I did not use the word ‘dangerous’ but I used language which I believe is very close to it, if not as strong as to say that it was open to the jury to consider him to be an accomplice and that, in that capacity, to be someone who would be self-serving potentially in their evidence. I have not coupled it with a direction to the jury to search through the evidence to look for corroborative evidence and I believe that, in fact, in doing so I have been fair to the defence to the accused, saying that whether or not there was corroboration they should treat Mr. Keogh’s testimony with a degree of scepticism, with a degree of care, having regard to the risks that he is not telling the truth and being potentially an accomplice and someone actively involved in this crime. So, I am satisfied that that has been adequately dealt with.”
16. We were referred to para. 33-05 in “The Judge’s Charge in Criminal Trials” by Genevieve Coonan and Brian Foley (Round Hall: 2008) where the authors state:
“Where prosecution relies on the evidence of an accomplice, the trial judge must instruct the jury on the dangers of acting on such evidence in the absence of corroboration. This warning must be given even where it is clear that there is evidence capable of constituting corroboration. This is because the task of determining whether evidence is corroborative is purely for the jury. That said, if the trial judge fails to administer the warning in circumstances where there is clear corroborative evidence, the appellate court may apply the proviso contained within s. 3(1)(a) of the Criminal Procedure Act, 1993 and find that no miscarriage of justice has occurred. In R. v. Lewis [1937] 4 All E.R. 360 Lord Hewart C.J. noted that the English version of the proviso will be applied where:
‘… the corroborative evidence exists, and is of such a convincing, cogent and irresistible character that it is apparent that, even after a proper direction, the jury, would inevitably have come to the same conclusion.’”
17. We were also referred to para. 33-16 of the same work where the authors state:
“The essence, of course, of the warning is that the jury should have communicated to it that it may be dangerous (but not necessarily improper) to convict on uncorroborated evidence. Although the courts have said time and time again that the warning need not be given in any particular form of words, the decision of Butler J. in Dental Board v. O’Callaghan [1969] I.R. 181 is nevertheless useful in setting out its essential constituents. In that case he said:
‘The rule is that the tribunal of fact, be it District Justice or jury, must clearly bear in mind and be warned that it is dangerous to convict upon the evidence of an accomplice unless it is corroborated; but that having borne that in mind and having given due weight to the warning, if the evidence is nonetheless so clearly acceptable that the tribunal is satisfied beyond doubt of the guilt of the accused to the extent that the danger which is generally inherent in acting on the evidence of an accomplice is not present in the case, then the tribunal may act upon the evidence and convict.’”
18. Counsel for the appellants submits that the jury in this case were misdirected in as much as the trial judge did not give a warning in the requisite terms and specifically made no warning as to the dangers of convicting an accused upon evidence given by an accomplice unless it is corroborated. The trial judge told the jury that the evidence of Mr. Keogh was supported in part by the evidence of Padraig Burke and also appeared to suggest that the appellant’s telling of a lie to the Gardaí (falsely denying that he knew the complainant) could be regarded as supporting evidence as to the guilt of the appellant in that context.
19. In the course of requisitions defence counsel referred on a number of occasions to the fact that both Mr. Keogh and Mr. Burke had accepted that they could be wrong about the occasions to which they had referred in their direct evidence. It was suggested that this had pointed up the particular need in the circumstances of this case for the trial judge to direct the jury as to the danger of convicting on the uncorroborated evidence of an accomplice.
20. Counsel for the respondent accepts that a trial judge ought to give a corroboration warning where accomplice evidence is before the jury. However he submits that the partial accomplice warning given by the trial judge in this case was not such as to render the trial of the appellant unfair. There was as a matter of fact a substantial amount of evidence in the case tending to corroborate the evidence of Mr. Keogh including:
(i) the evidence of Mr. Stephen O’Brien that the appellant attacked him;
(ii) the evidence of Mr. Paul Burke placing the appellant in Mr. Keogh’s company near the locus of the offence at about the time of the offence, the two being unaccounted for during a short period; and
(iii) the appellant’s lies when asked if he knew Mr. O’Brien.
21. As the trial judge had pointed out, it would not have helped the defence case for the jury to have had it pointed out to them that there was this abundant material that was potentially corroborative of the evidence of Mr. Keogh. Counsel for the respondent has submitted that, in the context of the broad warning that the trial judge gave, linking it to a need to search for corroborative evidence, where there was abundant material that was potentially corroborative of the evidence of Mr. Keogh, would have served to diminish the thrust of the warning given by implying that the dangers inherent in Mr. Keogh’s evidence would been lessened by its corroboration. As matters stood before the jury, the warning stood, stark and unqualified. Accordingly, it was submitted, the refusal of the trial judge to give the conventional warning was not unfair to the appellant.
22. Counsel for the respondent further submits that even if we are satisfied that the trial judge’s corroboration warning was inadequate, and represented a misdirection, this is a situation in which we ought to apply the proviso under s. 3(1)(a) of the Criminal Procedure Act, 1993.
23. Having carefully considered the submissions on both sides we are not satisfied that we can uphold the limited warning given by the trial judge as being adequate. To do so would be to fly in the face of clearly established jurisprudence, in particular Dental Board v. O’Callaghan [1969] I.R. 181 and the more recent reiteration of the principles stated therein by the Supreme Court in The People (Director of Public Prosecutions) v. Gilligan [2006] 1 IR 107 where Denham J. (as she then was) emphasised (at para. 72):
“The warning is mandatory, but, that having been given, corroboration is not. The trier of fact, having considered the circumstances and the warning, may determine that the evidence is credible and accept such testimony. Alternatively, it is open, in all the circumstances, to require that there be independent evidence to support the testimony of such a witness. Such a determination will depend on the facts and circumstances of the case.”
24. The rationale for the rule requiring the giving of a corroboration warning in respect of the evidence of an accomplice is well recognised, and is rehearsed in some detail (at paras. 4-22 – 4-26) by Declan McGrath B.L., in his well regarded work on “Evidence” (2nd Ed.), in the following terms:
“4-22. The requirement for a corroboration warning in respect of accomplices is predicated on the danger that an accomplice might fabricate evidence and/or falsely implicate an accused. There are a number of reasons why an accomplice might attempt to do so. The first, and perhaps most obvious danger, is that an accomplice may attempt to transfer blame. There is a natural tendency for an accomplice faced with punishment for a criminal offence to minimise his or her own role in the crime and this, consequently, may lead him or her to exaggerate that of the accused.
4-23. Secondly, an accomplice may hope to obtain more favourable treatment by co-operating with the prosecution in helping them to convict his or her confederates. To this end, ‘he may be tempted to curry favour with the prosecution by painting their guilt more blackly than it deserves’. … In other cases, an accomplice may have received or may hope to receive a lighter sentence by virtue of his or her co-operation with the prosecution. This danger is particularly acute when the accomplice remains unsentenced at the time he or she gives evidence.
4-24. In addition there is the possibility that an accomplice may be actuated by malice or a desire for revenge towards the person implicated by him or that he or she may implicate an innocent party in order to shield the real culprits.
4-25. There is also the objection that the accomplice is by definition a criminal and thus is an inherently unreliable witness because of his moral culpability. In Cosgrave v. DPP [2012] 3 I.R. 666 at p. 731, Hardiman J. took the view that an accomplice is necessarily a person of compromised character and his confession of involvement in the crime was sufficient to establish that ‘but little credit is due to him’.
4-26. These dangers may not be obvious to the jury and are accentuated by the fact that ‘the accomplice knows all the details of the crime and will be able to relate them accurately and in order to involve another person has only to introduce him into the story which in its main essentials, is true.’ Hence, it is easy for an accomplice to weave a detailed and convincing narrative which it is difficult to unravel on cross examination.”
25. There was a clear need for a full accomplice warning in the circumstances of this case in our view. There had to be a basis for concern that the evidence of Garry Keogh could be unreliable at least in some respects in circumstances where the victim was clearly contending in his evidence that Keogh had been affording comfort and assistance to the appellant at the time of the crime and in its immediate aftermath, even if he did not personally wield the knife. For many of the reasons suggested by McGrath he may well have been motivated to seek to transfer blame and to minimise his own involvement. It will be recalled that his evidence was that he did not participate in any robbery of Mr. O’Brien with the appellant. He said that what Mr. O’Brien was suggesting was “completely untrue”.
26. It was not enough in the circumstances for the trial judge to merely invite the jury to treat Mr. Keogh’s evidence “with scepticism, with care, with caution realising that people who are engaged in criminal activity often seek to put the blame elsewhere, to try and exonerate themselves, to minimise their involvement.” It was necessary for the trial judge to go further and to link the infirmity or potential infirmity of such evidence with the desirability that it should be independently supported. In the circumstances of this case, it was necessary to give the conventional warning and to tell the jury in terms that it is dangerous to convict on the evidence of an accomplice in the absence of corroboration, but that having borne that in mind, and having given due weight to the warning, they were not precluded from doing so if they were satisfied beyond reasonable doubt that the accomplice’s evidence was true and could be relied upon. The trial judge did not tell the jury this, and this was an error of principle.
27. It is appropriate to remark that the circumstances of this case are readily distinguishable from those in The People (Director of Public Prosecutions) v Quinn [2015] IECA 308, where we indicated, obiter dictum, that a warning in less strident terms than the conventional accomplice warning might have sufficed in the circumstances of that case. In the Quinn case the trial judge had correctly concluded that the impugned witnesses were not in fact accomplices in the generally understood sense, although they were possibly liable to prosecution for other matters and might therefore have had an incentive to put forward a certain account of events. In the present case, however, Mr Keogh is alleged to have been an accomplice with the appellant in the crime the subject matter of the trial. That is far from the situation that obtained in the Quinn case, and there can be no doubt but that if the allegation is correct Mr Keogh was indeed an accomplice in the generally understood sense.
28. All of that having been said there was, as counsel for the respondent has pointed out in his excellent written submissions, abundant evidence in the case tending to corroborate the evidence of Mr. Keogh. In saying that, we recognise and acknowledge without hesitation that the task of determining whether evidence is corroborative is, strictly speaking, one for the jury. Nevertheless we are also convinced that if the jury had been properly instructed in this case they would inevitably have come to the conclusion that the evidence of Mr. Keogh was corroborated by some or all of the matters identified by counsel for the respondent in his submissions to this Court. In those circumstances we are prepared to apply the proviso contained within s. 3(1)(a) of the Criminal Procedure Act, 1993 and find that no miscarriage of justice has occurred as a result of the trial judge’s misdirection on this issue. We therefore reject this ground of appeal.
The serious harm issue
29. Counsel for the appellant has submitted that the trial judge ought to have granted a direction on Count No 1, and to have withdrawn that count from the jury, at the end of the prosecution case.
30. The basis for this submission was that the prosecution had failed to satisfy the first limb of Lord Lane’s statement of the principles applicable to how a judge should approach a submission of “no case” contained in R. v. Galbraith [1981] 73 Cr.App.R. 124; [1981] 1 W.L.R. 1039. Lord Lane had stated:
“How then should the judge approach a submission of “no case”? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.”
31. The appellant’s argument was therefore based upon an alleged insufficiency of evidence. In order to appreciate the thrust of his argument it is necessary to set out in the first instance the ingredients of the offence of causing serious harm contrary to s. 4 of the Act of 1997 and also to set out the relevant evidence in the area of the alleged deficiency.
32. Section 4 of the Act of 1997 is in the following terms:
“ (1) A person who intentionally or recklessly causes serious harm to another shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or to imprisonment for life or to both.”
33. Accordingly it is necessary for the prosecution to prove that the accused caused serious harm to another and that he did so intentionally or recklessly. Serious harm is defined in s. 1 of the Act of 1997 as meaning “injury which causes a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ.”
34. The appellant’s case is that although the prosecution successfully proved that the injured party was assaulted by stabbing, and that he was caused harm, the evidence did not establish that he was caused serious harm.
35. Apart from the injured party’s own testimony concerning what injuries he suffered and what treatment he received for them, the main evidence as to the nature and degree of the harm caused to the injured party came from the ambulance paramedic, Jason Kennedy, who attended to the injured party at the scene of the stabbing and who conveyed him to hospital by ambulance; from Ms. Melanie Brady, an accident and emergency nurse at Beaumont Hospital who received the injured party from the ambulance crew; and from Professor Patrick Broe, the surgeon who operated on the injured party.
36. A statement from Jason Kennedy was read into the record at the trial pursuant to s. 21 of the Criminal Justice Act, 1984 in the course of which he stated:—
“On arrival to the house I noticed a patient sitting down in the kitchen with another person giving first aid by holding a cloth to the patient’s head. There was evidence of blood on his chest, clothing, on the back of his neck, hair, on the floor and all over his hands. When I treated him there was an avulsion to his forehead which we dressed. There was an incision-like haemorrhage to the posterior occipital area of the head which we dressed. At this stage I directed the crew to expose and examine. We discovered wounds to the patient’s left hand side, upper left arm incision no haemorrhage, lower left forearm incision no haemorrhage, posterior incision left hand side at lung no haemorrhage but evidence of pneumothorax. At this stage I decided to run a line to maintain blood pressure while directing the crew to check all vitals and to check all dressings. Placed patient on oxygen and removed to hospital immediately. … I did not want the patient to talk … because of the injury to his lung and placed him on oxygen for the short journey to Beaumont, approximately 4 minutes away. At this stage I had the Beaumont Resus Room on standby that he was a Delta classified patient, which is life-threatening. On arrival to A&E patient was fatal and the emergency staff were waiting in the Resus Room for handover which we did, handed over the patient.”
37. Nurse Melanie Brady gave evidence before the jury at the trial. She told them that on the night of 17th August, 2011 she was a nurse working in the Accident and Emergency Unit in Beaumont Hospital. She was asked about the injured party’s arrival to the A&E by ambulance and in particular concerning what she remembered about his injuries. She stated that he had multiple stab wounds to the head, the arms and to the back and that he was in a critical condition when he was admitted. He was short of breath and it was confirmed on x-ray that he had a collapsed lung from a stab wound. She stated that he was admitted to the hospital for surgery but that she had no further dealings with the patient affidavit after he left the A&E unit.
38. Professor Patrick Broe gave evidence on day 2 of the trial. He was the admitting surgeon on call at Beaumont Hospital on the night in question. He stated that at roughly 1.15 a.m. a 46 year old man, i.e. the injured party, was brought in by ambulance having sustained multiple stab wounds to the left upper scapular area on his chest, the scalp, the left upper arm and the left forearm. The patient was quickly resuscitated so that by the time he was seen by the doctors on Prof. Broe’s team his blood pressure and pulse were satisfactory, his oxygenation was satisfactory and his level of consciousness was satisfactory. The witness was asked about the injured party’s treatment and this gave rise to the following exchanges:
Q. In relation to his treatment, first of all his chest wound, how was that treated?
A. Well, it’s standard management of someone who comes in with multiple penetrating trauma would be to establish the extent of them first. So, he had established quickly that he had six individual stab wounds, two to his scalp as I say, one to his upper left arm, one to his left forearm and two on his back into his chest and one of the ones into his chest penetrated into his chest cavity, collapsed his lung and required the insertion of a drain into his chest so that the lung could re expand. That was all done fairly shortly after his admission and he then, once he was stable, underwent some scans, CT scan of his brain and a CT scan of his chest and abdomen to look for my occult injuries.
Q. Now, I think you are aware of the definition of serious harm in the Non Fatal Offences Against the Person Act of 1997; isn’t that right?
A. Correct.
Q. Now, in particular I think you’re aware that serious harm is defined as “means injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ.” What is your view as to whether or not the injuries sustained by Stephen O’Brien come within that definition of serious harm?
A. Well, the penetrating injury to his chest, by definition, if his lung was collapsed that means that the stab wound into his chest, one of them, had burst the membrane of the lung and entered and punctured his lung and therefore that knife was technically very close to major structures such as the heart, the pulmonary artery and the thoracic aorta and had either of those three structures been lacerated then obviously the potential for death is extremely high. So
Q. So, in the definition of serious harm I think there are three different limbs?
A. Yes.
Q. I think as you’re aware and I think one is injury which creates a substantial risk of death?
A. And yes.
Q. The second limb I’m sorry?
A. Yes, yes, go ahead, sorry.
Q. If you could perhaps tell the jury which, if any, of those
A. It’s the first of those. So, this injury put this patient, this person, at substantial risk of death as a result of penetrating his thoracic cavity. The five lacerations elsewhere on his body would not be in that category. He bled a lot from them but he would not have been in that category. The penetrating injury to his chest, and we read all too frequently of instantaneous death or very quick death as a result of stab injuries to the chest in particular because the structures are big, the volumes of blood going through them are enormous and you can exsanguinate very quickly as a result of a penetrating stab injury to the aorta, to the heart or to the pulmonary artery.
Q. And I think when you say exsanguinate, does that mean bleed out?
A. Bleed out.
Q. Thank you very much. If you answer any questions.
39. Prof. Broe was cross examined by counsel on behalf of the appellant and was asked just two questions as follows:
“Q. So I think, doctor, what you’re really saying is that the sticking a knife deep into somebody in this area will result in a serious risk to the life of the person if that knife strikes against and punctures certain things you’ve identified, luckily in this case it didn’t happen?
A. No.
Q. But it could have happened; isn’t that correct?
A. Correct.”
40. Prof. Broe was then re-examined by counsel for the prosecution, giving rise to the following further exchanges:
“Q. Just arising out of that, Professor Broe, if you could just clarify, arising out of my friend’s question, the injury which Stephen O’Brien received in this case, is it your evidence that that of itself did not create a substantial risk of death or did it is it your evidence that it did create a substantial risk of death, that injury?
A. Well, a stab wound to the chest has a lethal potential, that’s all I can say. I mean in this case, as counsel has said, it penetrated into his lung tissue only and the lung tissue has a low blood pressure. So, the volume of blood loss from a bleeding lung is small unless you lacerate the major pulmonary artery which is about that width in someone in a male of his build. So, he did bleed from his lung. We drained about three or four hundred CCs into that drain when it went in. So, he had lacerated structures within his chest but not ones that exsanguinated at such a rate that meant that he would have been in a very serious situation by the time of arrival at hospital. So, the deaths that occur as a result of a stab wound result nearly always from a lacerated thoracic aorta, a lacerated pulmonary artery or a lacerated ventricle of the heart, neither of which he had, but the potentials were there I mean you’re talking, you know, the distance of the penetration of the knife of a number of centimetres or millimetres in some case.
Q. And I think you say that he came within there was a substantial risk of death; is that right?
A. I think you have to conclude that, although luckily for the patient it didn’t happen, the potential for that kind of a penetrating injury to the chest is very highly associated with major vessel injury.
Q. Thank you.”
41. At the close of the prosecution case counsel for the appellant applied for a direction on Count No. 1 on the basis that the prosecution had failed to establish that the injured party had suffered serious injury. He conceded that the evidence went so far as to establish that the deep penetrating wound inflicted had the potential to create a serious risk of death but he submitted that the evidence did not establish that a substantial risk of death was in fact created in this particular instance. Counsel for the prosecution responded to this contending that the evidence of Prof. Broe in particular could only be interpreted on the basis that the injury had created a substantial risk of death. Counsel made the point that it cannot seriously be suggested that a deep penetrating wound to the chest, which has the potential to create a substantial risk of death, and which is inflicted on someone who is lucky enough to be right beside a hospital so that he can be operated upon immediately, does not represent serious harm. She submitted that there was sufficient evidence to allow the matter to go to the jury.
42. The trial judge ruled as follows:
“The second issue raised by Mr. Ó Lideadha is on the first count of the indictment, assault causing serious harm and here again the evidence of Professor Broe is carefully phrased and analysed and it is the submission that Professor Broe’s evidence does not go far enough because he says that in the instant case this significant the more significant of the injuries sustained by Mr. O’Brien in fact did not threaten his life. The definition of serious harm under the act is an injury which creates a substantial risk of death or which causes harm and goes on. In any event we needn’t worry about the latter aspects of the definition in the act because both counsel for the prosecution and Professor Broe focused on the first section of the act and I am satisfied, without any hesitation, that the injury sustained by the victim, Mr. O’Brien, and as described in the medical evidence by Professor Broe, well comes within the definition of an injury which creates a substantial risk of death. It did not in fact threaten his life as it happened but it certainly did in its inception or on its infliction represent a substantial risk. It was within the area of vital organs. It penetrated the lung. It caused the collapse of the lung. It required restorative surgery and I am satisfied that it is open to the jury, having regard to all of the evidence and the arguments that will be raised one way or another, to make their decision; does this fall within the definition of creating a substantial risk? It is a matter of evidence and for the jury to decide. I therefore propose to allow that charge rest with the jury.”
43. The appellant did not go into evidence and so the trial proceeded to the next stage, namely the closing speeches of counsel and the judge’s charge to the jury. In the course of his charge to the jury the trial judge stated (inter alia):
“Here the attack on Mr. O’Brien as described by him would seem to have been done with a degree of vigour, a weapon used and he was stabbed six times, one taking his eye and the other and another at least penetrating from behind his back into his lung. So, I don’t think you’ll have much difficulty in meeting those proofs from the evidence and the account you’ve heard. It’s a matter, again, for you. Causes serious harm to another, and this is defined in the Act and it has been read to you and I read it as a definition, means: “Injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ.” That’s the definition and Professor Broe who spoke to you about all of this said that he considered the injuries inflicted on Mr. O’Brien to amount to serious harm. He said, in particular, the penetrating wound that invaded the lung from the back and caused damage there, that injury in particular, the rest he said on their own could not or would not amount to serious harm, in his view, but that particular one and all of them together, which creates a substantial risk of death. It’s a matter for you, having regard to his evidence, whether or not you believe that that definition has been met. Mr. Ó Lideadha has argued that what Professor Broe was saying to you, in fact, was that the an injury of that sort has the potential, but that particular injury didn’t because it didn’t strike any of the vital three organs he spoke about in the interior, but the definition talks about a substantial risk of death and you have to be satisfied on the evidence you’ve heard from Professor Broe in its entirety, that what occurred to Mr. O’Brien meets that. If you have a reasonable doubt about it, well then you acquit the accused of the offence. It’s your assessment of Professor Broe’s evidence in that regard, coupled with all of the other evidence you’ve heard of the victim himself telling you how he was, of how he was found and described by the ambulance personnel as a critical high risk, they were put on alert, the staff were waiting for him, he had to be operated on, lung drained, all of that done, did that amount to a substantial risk of death [in the case] of Mr. O’Brien,[that] is a matter for you to assess, ladies and gentlemen.”
44. Counsel for the appellant was unhappy with the trial judge’s charge on this issue and sought to requisition him. Counsel stated:
“With regard to the issue of serious harm, the Court, in my respectful submission, did not articulate the proposition on which the defence relies with clarity. The doctor said that a wound of this kind had the potential to cause serious harm and the prosecuting counsel specifically asked does that mean what you’re really saying is, or something along those lines, clearly inviting the witness to say what he really meant was the injury did, in fact, cause a risk to the person’s life and the answer was not in the affirmative. It is a question of potential and that was not articulated. And not only that, but the Court then referred to something counsel for the prosecution had referred to, which is the comments of the hospital staff saying, in effect, that he was at high risk, counsel prosecution referred to it as a delta, I think, classification admission and the Court referred to the fact that the lung was drained. Now, in my respectful submission, that is completely irrelevant to the question of whether or not there was serious harm in this case. The fact that the nurses or any other emergency personnel make an assessment that because of the nature of an injury certain precautionary emergency steps should be taken, is entirely irrelevant from the point of view of discerning whether or not, in fact, the injury qualified under the offence.
In effect, what it means, what is being said is the expert didn’t say it but you can infer from the fact that the nurse treated it as an emergency, that in fact it amounts to serious harm and that, in my respectful submission, is not correct. Now, this witness did actually say in evidence that, in his opinion, it met the criteria under the under the Act, but I would ask the Court to make to give a specific direction to the jury that it is not for an expert to decide for the jury the ultimate issue as to whether or not an offence has been committed by a particular definition under the Act. They should be specifically directed on that and told that what they must address is the substantive evidence the witness gave as to whether the injury actually caused serious harm in the sense of caused a risk caused I don’t have the actual phrase itself, I’ll ask my junior just to get the phrase. Yes, I mean, what he said was a potential substantial risk a potential risk of death. An injury which creates a substantial risk of death and the injury didn’t. The stabbing, stabbing in that direction may well have caused a substantial risk of death, but the actual injury did not and the so I’m asking for the Court to tell the jury that the expert doesn’t decide the question for the jury, they must address the substantive evidence.”
45. In response to the requisition the trial judge stated:
“In respect of the evidence on the serious harm matter, again it seems to be that Mr. Ó Lideadha is making an argument for both ends of the spectrum. He, on the one hand, says that Professor Broe’s evidence is the evidence to be acted [on] and considered and that the evidence of the nurse and other personnel, paramedical personnel is entirely irrelevant and then goes on to say that, in addition, he should tell the jury that it isn’t Dr Broe’s, Professor Broe’s, evidence to be given, but that they must look at all of the evidence and satisfy themselves. I’ve spoken to the jury about this, but I don’t propose to revisit it, save to this, I will remind the jury when they return when I call them back, that in respect of the alternative verdict open to them of actual bodily harm.”
46. The jury returned with a question having been deliberating for one hour and twenty minutes. They asked:
“FOREMAN: We are wondering can we have some further advice on the definition, the legal definition, of serious harm or could we get a copy of the Acts or the section of the Act and secondly if we could be presented with a copy of the doctor from Beaumont Hospital’s testimony.”
47. The judge recharged the jury in response to this on the morning of day 4. He commenced by reviewing the evidence of Prof. Broe again for the jury and having done so then continued:
“How do you apply that then to the definitions that you have there? The — it is important, and you have the wording, serious harm means, “Injury which creates a substantial risk of death”. Professor Brough is the expert and he’s called as such. However, we are not trying the accused man by expert, we’re trying by the evidence and your view of it, and I have said that one of the values of a jury is that you bring your good common sense to bear. The definition of serious harm talks about the risk, Professor Broe talks about the potential, and you ask yourself this: if taking a large kitchen-like knife that you’ve been shown as the exhibit and you plunge into the back of another person to the point that it gets within millimetres of his heart, his aorta or pulmonary artery, which if punctured would lead to inevitable almost instant death because of the extent of the bleeding, is that presenting to that person a serious — a risk within the definition that’s there; a substantial risk of death? It’s the risk of it that you’re being asked to deal with. As Mr. Ó Lideadha has elicited from Professor Broe, luckily on this occasion that didn’t happen, but you use your good sense. Does what was done present a serious risk of death? If it does, and you’re satisfied that beyond doubt on the evidence you’ve heard, it’s open to you to convict. If you are unsure of it, if you are left with a reasonable doubt, then it is open to you consider the alternative offence, which is that of causing harm, of which I’ve given you the definition of also.”
48. A short time later, in response to yet another requisition from counsel for the appellant, the trial judge brought the jury back and stated to them:
“Ladies and gentlemen, both counsel have asked me to draw your attention to a word in the definition of serious harm which I overlooked to mention, it appears, in what I was saying to you. It is this: the section serious harm means, “Injury which creates a substantial risk”. So, coupled with your view of the evidence and what you’ve heard, you have to be mindful of what, is that the injury presented a serious risk of death, all right? Thank you.”
49. Following this there was yet another requisition from counsel for the appellant who said:
“Judge, I’m sorry, Judge, because I know I may be trying your patience, but in my respectful submission, it is essential to make clear the distinction to the jury because the Court has told the jury in emphatic terms the question is, what was done, whether what was done created a serious risk. And instead of saying to the jury — well, I’m asking you, Judge, to say to the jury that not only is it a consideration, but it is the consideration, and the question is not whether or not the actual stabbing action involved a — involved a serious risk, instead it is whether or not the actual injury did, otherwise the jury is left with the unqualified direction which the Court just gave minutes ago. That’s my submission.
JUDGE: Do you wish to say anything?
MS ROWLAND: I’ve nothing to say, Judge.
JUDGE: The section says, “A person who intentionally or recklessly causes serious harm to another shall be guilty of an offence.” I am satisfied that the submission made by Mr. Ó Lideadha is not in fact correct in law, having regard to how this section is drafted, and I’m satisfied that I have directed the jury adequately and sufficiently in respect of the law in this area. I don’t propose to recharge them.”
50. In submissions before this Court counsel for the appellant has contended that the trial judge’s commentary on the medical evidence in the case went beyond that permitted and involved him entering the arena or at the very least would have been taken by a reasonable impartial observer to have so entered the proceedings, in an adversarial fashion and that on any objective assessment it must regrettably be taken to have unnecessarily and unfairly prejudiced the accused in the mind of the jurors as they considered their verdicts. In particular he complains concerning the trial judge’s summary of the evidence of Prof. Broe (quoted above) and submits that the trial judge erred in law and in fact in instructing the jury that the evidence of Prof. Broe amounted to expert evidence that the test for “serious harm” had been met. Rather it was the case that Prof. Broe stated that a wound of the type suffered by the injured party had the potential to cause serious harm.
51. The witness was specifically asked by prosecuting counsel whether he was stating that the injury in question did, in fact, cause a risk to the person’s life and this was not met with an answer in the affirmative. The issue of potential which was expressed by Prof. Broe was not addressed by the trial judge in his charge to the jury. It was submitted that the trial judge should have instructed the jury that the decision as to whether the evidence given by Prof. Broe met the test for serious harm and lay squarely with them and could not be stated as a matter of fact in evidence.
52. It was further submitted that the trial judge erred in referring to and endorsing statements made by counsel for the prosecution relating to comments made by hospital staff to the effect that the injured party was at critical high risk; that they were on alert, that he had to be operated on, and that it was necessary for his lung to be drained. It was submitted that these matters were not relevant in any sense to the issue of serious harm in respect of which Prof. Broe gave evidence. However, the trial judge implied to the jury that these were factors which they should take into account when deciding on the issue of serious harm.
53. There is also a complaint that the trial judge erred in recharging the jury on the morning of day 4 in respect of the definition of serious harm. It was submitted that the trial judge’s recharge had suggested that the act of stabbing and the nature of the weapon used were relevant to the issue before the jury concerning whether or not an injury had been caused which created a substantial risk of death. It was submitted that it is the injury and the injury alone which was at issue and whether such an injury brought about a substantial risk of death. How the injury was inflicted was not directly relevant to that.
54. In seeking to respond to the appellant’s complaints counsel for the respondent suggests that s. 4 of the Act of 1997, incorporating the definition of the phrase “serious harm” should read as follows:
“A person who intentionally or recklessly causes [injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ] to another shall be guilty of an offence.”
55. The respondent has submitted that the word injury is not a term of art and that it takes its plain and ordinary meaning. Its ordinary meaning includes both the act whereby the damage is inflicted and, if accompanied with the indefinite article, the damage itself. In support of this contention, counsel referred the Court to the definition of “injury” in the Oxford English Dictionary which is to the following effect:
“1. Wrongful action or treatment; violation or infringement of another’s rights; suffering or mischief wilfully and unjustly inflicted; With an and pl, A wrongful act; a wrong inflicted or suffered.
…”
56. The Court was asked to note that the legislature did not preface the word injury in the definition with the indefinite article which might have suggested that they intended to refer solely to damage inflicted, e.g. an injury (or injuries in the plural), as contended for by the appellant. Counsel for the respondent has submitted that the absence of the indefinite article is consistent with a legislative intention that the broader interpretation of the term applies which includes the infliction of the injuries sustained. In those circumstances counsel submits the trial judge was correct in his interpretation of serious harm as including the infliction of the wounds on the injured party. Approaching the testimony of Prof. Broe in that way, there was ample evidence before the jury upon which they could find beyond a reasonable doubt that serious harm had been done to the injured party.
57. Counsel for the respondent argues in the alternative that the evidence of Jason Kennedy, taken at its height, was sufficient evidence for a jury to find that the injuries caused to the injured party, which included an apparent “pneumothorax” (subsequently borne out), were “life threatening” and that therefore serious harm was caused to him. Mr. Kennedy’s evidence was consistent with the evidence of the accident and emergency nurse who referred to the injured party’s condition as being “critical” and with Prof. Broe’s evidence that he had been “quickly resuscitated so that by the time he was seen by the doctors on my team… his blood pressure and pulse were satisfactory, his oxygenation was satisfactory and his level of consciousness was satisfactory.”
58. Counsel for the respondent, addressing the criticisms of the judge’s charge, points out that the trial judge repeatedly advised the jury that the determination of whether there was serious harm was for them alone. Counsel did not accept that the trial judge had sought to endorse prosecuting counsel’s comments in telling the jury that there was evidence other than that from Prof. Broe which they might find relevant to the issue namely that of the victim, the paramedic, and the nurse. While acknowledging the expertise and evidence of Prof. Broe, the trial judge told the jury that whether or not they accepted that evidence and the issue as to what weight they attached to it was uniquely a matter for them. Counsel for the respondent submits that in the last analysis the trial judge’s charge with respect to the definition of causing serious harm contrary to s. 4 of the Act of 1997, and how the jury should approach the evidence relevant to that charge, was correct.
Analysis and Decision
59. We consider that counsel for the respondent has advanced a serious argument in support of interpreting the word “injury” within the definition of serious harm contained in s.1 of the Act of 1997 as bearing the wider meaning that he contends for, namely as embracing both wrongful action and damage caused.
60. There is, however, a counter argument which says that s.4 (including the term “serious harm” as defined in s.1) of the Act of 1997 has to be viewed in the context of the Act of 1997 read as a whole, and in particular having regard to the terms of s.13 of that Act.
61. S.13(1) of the Act of 1997 creates the offence of endangerment, and it provides:
“A person shall be guilty of an offence who intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm to another”
62. The counter-argument is to the effect that if the intention of the legislature had been to allow the definition of injury for the purposes of s. 4 of the Act of 1997 to be satisfied by wrongful action (as opposed to actual damage) “which creates a substantial risk of death”, as well as by actual damage “which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ”, there would have been no need to include so much of s. 13 of the Act of 1997 as relates to the creation of “a substantial risk of death”. It is suggested that the enactment of s.13 of the Act of 1997 in the terms in which it was enacted supports the notion that “injury” for the purposes of s. 4 of the Act of 1997 means actual damage that either “creates a substantial risk of death” or “which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ”
63. We consider it unnecessary in the circumstances of this case to rule definitively on this issue because we are satisfied that even if the statute is given the narrower interpretation contended for by the appellant, there was evidence in this case capable of satisfying the definition of serious harm.
64. We consider that it is sufficient for the purposes of the definition if the injured party is placed at substantial risk of death, or caused serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ” at any point, however brief or transient, as a result of the infliction of violence on him or her. The fact that prompt first responder or paramedical assistance, or accident and emergency resuscitation, quickly stabilises the patient so as to greatly reduce the risk of death, and to restore or ameliorate the loss of the function of a bodily member or organ, is neither here nor there. The substantial risk of death, and/or loss or impairment of a bodily member or organ, although quickly addressed in that situation, has nonetheless existed.
65. There was clear evidence in this case from the ambulance paramedic Jason Kennedy that when he encountered the injured party in this case the latter had multiple stab wounds, and an apparent pneumothorax (or collapsed lung). The pneumothorax, as we know, was subsequently confirmed by the evidence of Prof. Broe. This was clear evidence of the substantial impairment of a bodily organ, namely the lung involved. The ambulance paramedic, a trained first responder, graded or categorised the condition of the patient as being a “Delta” case i.e., a patient with life threatening injuries. He immediately placed him on oxygen and communicated with the resuscitation team in the Accident and Emergency Department at Beaumont Hospital, which fortunately was only four minutes away, to have them on standby to receive the patient and treat him immediately upon arrival of the ambulance at the hospital. Mr. Kennedy was not challenged or cross-examined with respect to his assessment that the patient had life threatening injuries at the time of his involvement with him.
66. Similarly, Nurse Brady was not challenged or cross-examined on her evidence that when the injured party was first brought in to Accident & Emergency, and until he was stabilised, he was regarded as “critical”.
67. Prof. Broe’s evidence was entirely consistent with this. His testimony was that by the time his team arrived in A & E the patient had been stabilised, and it was following this that he was taken to the operating theatre for surgery. It was never suggested to Prof. Broe, that the patient had not needed stabilisation, that the patient had not been critical before being stabilised, or that an as yet untreated pneumothorax was not a life threatening condition, or at the very least the substantial impairment of a bodily organ, namely the lung involved.
68. The exploration in the cross-examination of Prof. Broe of the extent to which there was a “substantial risk of death”, focussed narrowly on the risk of death from exsanguination in circumstances where, fortuitously, none of the injured party’s major blood vessels was impacted by the knife that penetrated the chest. Prof. Broe was, of course, obliged to concede that the stabbing had merely created the potential for death by exsanguination. However, contrary to what was contended both to the judge and jury at the court of trial, and again to this court, the matter does not begin and end there. There was clear evidence of a penetrating wound to the chest involving a lung, of pneumothorax, of breathing difficulty necessitating oxygen, of perceived criticality and perceived threat to life in the early stages of the involvement of medical personnel requiring stabilisation by the emergency resuscitation team, and of the need for subsequent surgery involving the insertion of a chest drain to re-inflate the collapsed lung in the operating theatre. There was clear evidence both of a substantial risk of death, happily abated at a relatively early stage, and of substantial impairment of a bodily organ, namely the lung involved, before the insertion of the chest drain.
69. In the circumstances the trial judge was entirely correct to allow the matter to go to the jury in our judgment. He was also entirely correct to draw the jury’s attention to the entirety of the medical evidence, including that of Jason Kennedy, and Nurse Brady as well as that of Professor Broe. We find no error in the matter in which he charged the jury.
70. We therefore are not disposed to uphold this ground of appeal.
Conclusion.
71. In circumstances where this Court has not upheld either of the grounds of appeal being relied upon, we consider the trial to have been satisfactory, and the conviction to be safe. The appeal against conviction is therefore dismissed.
DPP v Brown
[2018] IESC 67
JUDGMENT of Ms. Justice Dunne delivered the 21st day of December2018
Introduction
1. The accused/appellant, Gerard Brown, was tried at Portlaoise Circuit Criminal Court in respect of one count on indictment, namely “that on the 20/05/2014 at Midlands Prison Dublin Road Portlaoise in the County of Laois, in the said District of Portlaoise he did assault one Stephen Cooper causing him harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997”. Following a three day trial, Mr. Brown was found guilty by unanimous verdict on the 6th November, 2015 of the offence of assault causing harm and was sentenced to three years imprisonment consecutive to his current sentence.
2. Mr. Cooper (hereinafter referred to as “the injured party”), previously a member of An Garda Síochana, gave evidence that he was a prisoner in the Midlands Prison on the 20th May, 2014, having been convicted of offences contrary to s. 15 of the Misuse of Drugs Act, 1977 (as amended), fraud, and perverting the course of justice.
3. The injured party (who was on protection in prison) gave evidence that on the morning of the 20th May, 2014, he was being escorted to the prison gym by a prison officer at approximately 10am. The injured party gave evidence that he was attacked by Mr. Brown on the 20th May, 2014 in the Midlands Prison whereby Mr. Brown struck him two to three times on the top of the head causing him injury.
4. The injured party formally identified the accused from a photograph during the trial process. During cross-examination it was put to the injured party that he asked Mr. Brown to attack him in order to facilitate a transfer to another prison. The injured party expressly denied that he asked Mr. Brown to attack him and denied that he consented to the assault.
5. In his evidence, Mr. Brown accepted that he was a prisoner with a number of previous convictions and that he had hit the injured party on the top of the head with a mug in a sock. He gave evidence that he had a cordial rapport with the injured party and spoke to the injured party regularly through the bars on their respective landings. He gave evidence that the injured party informed him that he was refused a transfer to Shelton Abbey open prison. Mr. Brown gave evidence that he said to the injured party that the only way he was going to get out of Portlaoise Prison place was “if there is a serious threat on you, a serious threat on your life or if you are seriously assaulted”.
6. Mr. Brown gave evidence that he spoke to the injured party and alleged that the injured party suggested that he pretend to attack him when he was going to the gym. Mr. Brown gave evidence that the injured party stated “Don’t hold back” in terms of the assault and “Just make sure there is blood”. In return the injured party stated that he would give Mr. Brown sensitive documentation and information together with €1,000 in cash.
7. At the close of the prosecution case, counsel on behalf of Mr. Brown made an application that the trial judge should allow the defence of consent go to the jury, arguing that insofar as s. 3 of the Non-Fatal Offences Against the Person Act 1997 (the Act of 1997) builds on s. 2 of the said Act, the criteria under s. 2 must be satisfied in order for the crime of “assault causing harm” to be established pursuant to section 3. Counsel for the DPP argued that s. 3 of the Act of 1997 is a standalone offence in which the element of consent was not relevant and that to conclude otherwise would be contrary to public policy. Following the submissions, the learned trial judge refused to allow the defence of consent to go to the jury.
8. The learned trial judge ruled that ss. 2 and 3 of the Act of 1997 are standalone offences. He further ruled that if the definition of assault in s. 2 was to be carried over to s. 3, this would have been clearly provided for in the statute. He further ruled that the injured party could not have consented to the imposition of an injury on him by the applicant on the grounds of public policy and furthermore, that on the grounds of public policy, the courts could not permit the defence of consent to apply as to do so would enforce the purported agreement between Mr. Brown and the injured party. Finally he indicated that he was satisfied that the term “assault” as used in s. 3 of the Act of 1997 derives from the definition which it enjoyed at the time that the Act of 1997 was enacted.
9. Mr. Brown then appealed against his conviction to the Court of Appeal on a number of grounds, namely:
“(i) The learned trial judge erred and misdirected the jury in law with regard to the interpretation of s. 2 and s. 3 of the Non Fatal Offences against the Persons Act 1997, in particular, the learned trial judge erred in distinguishing ‘assault’ for the purpose of a s. 3 offence from ‘assault’ as defined by s. 2 of the Non Fatal Offences against the Persons Act 1997;
(ii) the learned trial judge erred and misdirected the jury in law by interpreting s. 3 of the Non Fatal Offences against the Persons Act 1997 – so as to remove the concept of consent therefrom, and in so doing, the learned trial judge conducted the trial of the accused other than in due course of law in breach of Art. 38.1 of Bunreacht na hÉireann and in breach of obligations under Art. 6 of the European Convention on Human Rights;
(iii) the learned trial judge erred in law in holding that an agreement or consent to the physical application of force, was vitiated or removed as an element of the offence to be established by the prosecution, for reasons that it was contrary to public policy, for a dishonest purpose, tainted by unlawfulness and incapable of enforcement, whilst expressly acknowledging its applicability or the existence of the defence in other circumstances;
(iv) The learned trial judge erred in law in refusing an application on behalf of the appellant for an accomplice warning to be given to the jury.”
The Court of Appeal rejected the appeal against conviction brought by Mr. Brown and an application was thereafter made for leave to appeal to this Court on the basis that the judgment of the Court of Appeal raised a number of issues of general public importance. Leave to appeal to this Court was granted to Mr. Brown in respect of the following issues:
“(1) The interpretation of s. 2 and s. 3 of the Non-Fatal Offences Against the Person Act 1997.
(2) Whether the concept of consent as provided for in s. 2(1)(a)(b) of the Non-Fatal Offences Against the Person Act 1997 is removed from s. 3(1) of the same Act.
(3) The interpretation and scope of ‘assault’ as defined in s. 2 of the Non-Offences Against the Person Act 1997.
(4) Whether s. 2 and s. 3 of the Non-Fatal Offences Against the Person Act 1997 are separate or distinct offences.
(5) To what extent can the courts dictate public policy contrary to the express intentions of the legislature.”
The statutory provisions
10. Given that ss. 2 and 3 of the Act of 1997 are central to the issues arising in this case it would be prudent to set out those provisions at this stage:
“2. (1) A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly –
(a) directly or indirectly applies force to or causes an impact on the body of another, or
(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact, without the consent of the other.
(2) In subsection (1)(a), ‘force’ includes –
(a) application of heat, light, electric current, noise or any other form of energy, and
(b) application of matter in solid liquid or gaseous form.
(3) No such offence is committed if the force or impact, not being intended or likely to cause injury, is in the circumstances such as is generally acceptable in the ordinary conduct of daily life and the defendant does not know or believe that it is in fact unacceptable to the other person.
(4) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months or to both.
3. (1) A person who assaults another causing him or her harm shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable –
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding £1,500 or to both, or
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or to both.”
By way of contrast to ss. 2 and 3 it may also be useful to refer briefly to the provisions of
s. 4 of the Act of 1997 which provides as follows:
“4. (1) A person who intentionally or recklessly causes serious harm to another shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable on conviction
on indictment to a fine or to imprisonment for life or to both.”
The judgment of the Court of Appeal
11. The critical findings of the judgment of the Court of Appeal (Mahon J.) are to be found at para. 36 of the judgment onwards where it is stated:
“36. Section 2 of the act of 1997 specifically creates an offence of assault occurring without the consent of the other . Section 3 contains no such provision. The drafting of these related sections, (to the extent that they both refer to assault), creates confusion as is evident from this and other cases and might have been the subject of more careful drafting. It is nevertheless appropriate that the offences described in ss. 2 and 3, respectively, should be treated as separate and distinct offences, as indeed should the offence described in s. 4. . . .
38. Proof of an absence of consent is therefore not a necessary ingredient in a s. 3 assault. Consent may however provide a defence to a s. 3 assault charge in limited circumstances such as, for example, legitimate sporting activity and necessary and appropriate medical treatment.
39. An assault causing harm committed in circumstances where the purpose and/or intention of the assault is itself unlawful and/or contrary to public policy can never be rendered lawful on the basis that the victim invited the assault or consented to being assaulted. Consent in those circumstances would not serve to undermine the criminalisation of such conduct under s. 3 of the Act of 1997. In this Court’s view, the ruling of the learned trial judge in this case was correct, as was his charge to the jury to the effect that the very serious attack on Mr. Cooper by the appellant was not excusable on the basis that it had been consented to, if indeed there was any such consent.”
The ruling of the trial judge
12. As can be seen from the passage referred to above from the judgment of the Court of Appeal at the heart of this case is the issue of consent. Following the conclusion of the evidence in the course of the trial submissions were made on behalf of Mr. Brown in relation to the interpretation of ss. 2 and 3 of the Act of 1997 and whether or not lack of consent was a necessary proof for an offence charged under s. 3 of the Act. The question of public policy was also referred to in the context of the issue of consent. The ruling of the trial judge on these issues dictated the manner in which the trial judge charged the jury and consequently the trial judge’s ruling on these issues was central to the appeal before the Court of Appeal. His comments to the jury in the course of his charge are also of relevance. For that reason, it would be helpful at this stage to refer in some detail to the ruling of the trial judge made on foot of the submissions made to him in relation to the interpretation of ss. 2 and 3 of the Act of 1997 and on the issue of consent. The learned trial judge stated as follows:
“Sections 2 and 3 are standalone offences in the Non Fatal Offences against the Person Act, Statute. If it was intended that the definition of assault in s. 2 was to be carried over to s. 3, then the Statute would have clearly provided for this. Section 2 defines for the first time in a Statute the offence of assault simpliciter. It does nothing else. If the Statute was intended to define assault in all its forms then this would have been covered in the interpretation section of the Statute. It doesn’t do this. I am satisfied that the term ‘assault’ as used in s. 3 derives from the definition, which it enjoyed in law at the time that the Non Fatal Offences against the Person Act was enacted. This definition is informed by precedent case law.
Both Mr. Hennessy and Mr. Fennelly have done considerable research into this area, they are both to be commended for their efforts, which have been of considerable assistance to the Court. Mr. Hennessy has cogently argued that the dicta of Peart J. in Donnelly , (sic) which was approved by the Supreme Court, is not binding in this Court as it did not form part of the ratio decidendi of the Donnelly decision and that the Donnelly decision can be distinguished from the present case as it involved the issue of a European Arrest Warrant where the burden of proof is the balance of probabilities. I agree that this Court is not bound by Peart J.’s dicta , nevertheless it is highly persuasive and cannot be disregarded lightly. The English case law, which Mr. Fennelly has referred to, and which is primarily R. v. Brown , a House of Lords decision delivered on the 11th March 1993, provides a very useful analysis of the case law in this area and ultimately concludes that the defence of consent to an assault charge cannot, on grounds of public policy be used where the victim has suffered bodily injury and there is no other purpose, such as sport or surgery served by the infliction of the injury. In the present case, if one were to accept the accused’s version of events, he inflicted on Stephen Cooper pursuant to an agreement with Mr. Cooper for which he was to receive confidential documents and the sum of €1,000 cash. According to the accused, the purpose of the assault was to assist Mr. Cooper in getting a transfer out of the Portlaoise Prison. I am satisfied that in the circumstances of the present case Mr. Cooper, on the grounds of public policy could not have consented to the imposition of an injury on him by the accused, which resulted in Mr. Cooper having to get twelve stitches to his head.
I am further satisfied that, on grounds of public policy, the courts could not permit the defence of consent to apply in this case as to do so would be to enforce the purported agreement between the accused and Stephen Cooper. This agreement, in my view, is illegal and could not be enforced on grounds of public policy as it endeavours to use force as a means to force the prison authorities to transfer Mr. Cooper from the Portlaoise Prison. To allow enforcement or recognition of such an agreement would be to undermine the proper governance of the prison and would therefore be contrary to public policy and not in the public interest. Mr. Hennessy has argued that to take the issue of consent from the jury would be to deny the accused of his constitutional right to a trial by his peers. I do not agree with this contention. The accused has been afforded a jury trial and he has chosen to accept that he inflicted the bodily injury on Mr. Cooper. He has sought to justify his actions on the grounds that Mr. Cooper consented to the infliction of such injury. I am absolutely satisfied, for the reasons outlined already, that in the circumstances of the current case the defence of consent is not available to the accused. . . .”
13. The reference to the case of Donnelly in the ruling of the learned trial judge is in fact a reference to the decision in the case of Minister for Justice v. Dolny [2008] IEHC 326 which was then the subject of an appeal to the Supreme Court in 2009, Minister for Justice v. Dolny [2009] IESC 48.
14. The jury was subsequently charged by the learned trial judge in accordance with his ruling.
A Brief Outline of the Submissions
15. The submissions on behalf of Mr. Brown centre on the construction of ss. 2 and 3 of the Act of 1997. It is argued that the phrase “without the consent of another” used in s. 2 is unequivocal. Insofar as s. 3 uses the term “assault”, it must be interpreted as having the same meaning as in s. 2 and, that as an assault under s. 2 of the Act of 1997 specifically provides that it must take place “without the consent of another”, it is contended that an assault under s. 3, that is to say an assault causing harm, necessarily must have the same meaning as an assault under section 2. Accordingly it is argued that absence of consent is a necessary ingredient of the offence of “assault causing harm” contrary to s. 3 of the Act of 1997.
16. Counsel on behalf of Mr. Brown further contended that the provisions of s. 22 of the Act of 1997 (which preserved defences available under the common law or statute) referred to in the judgment of the Court of Appeal had no relevance to the question of construction of s. 3 of the Act of 1997.
17. Finally, submissions were made as to the role of public policy in relation to the interpretation of the legislation. Both the trial court and the Court of Appeal relied on the concept of public policy in interpreting the provisions of the Act of 1997. In that context it was argued on behalf of Mr. Brown that the approach to the question of public policy by the trial court and the Court of Appeal was at odds with the public policy behind the legislation discernible from parliamentary debate in relation to the introduction of the legislation. For that reason, it was submitted that it would have been appropriate in this case notwithstanding the general approach of the courts to the question of parliamentary debates being used as a tool in aid of interpretation that the defence should have been invited to make submissions on the issue of public policy by reference to the parliamentary debate in respect of the legislation.
18. The final argument made on behalf of Mr. Brown involved the decision of this Court in the case of Minister for Justice v. Dolny [2008] IEHC 326 and [2009] IESC 48. That was a decision made in respect of a European Arrest Warrant concerning the doctrine of equivalence. It was submitted on behalf of Mr. Brown that the decision of the Court in that case was wrong and should be re-visited.
19. Counsel on behalf of the DPP focused on the interpretation of the High Court and the Supreme Court in the case of Dolny . It was contended that for this Court to now come to a view that Dolny should be departed from, it would be necessary for Mr. Brown to meet a high threshold in establishing that the decision in Dolny is “clearly wrong” and that there are “compelling reasons” to depart from it. Accordingly, it was submitted on behalf of the DPP that “assault” in s. 3 of the Act of 1997 means an act by a person done intentionally or recklessly.
20. Insofar as it was sought to refer to and rely on parliamentary debate, together with ministerial statements when introducing legislation, the DPP relied on the decision of this Court in the case of Crilly v. Farrington [2001] 3 IR 251.
21. The point was also made that there is a presumption against radical amendments and that the interpretation of ss. 2 and 3 of the Act of 1997 as contended for by Mr. Brown would represent a radical amendment to the law concerning consent to the infliction of injury upon oneself. If that was what was in fact intended by the legislation, it was submitted that this could only have been achieved through language of greater clarity and certainty.
22. Finally on the issue of public policy, it is contended on behalf of the DPP that assault as defined preserves a public policy remit for the courts which has been historically exercised on a case by case basis to determine on which side of the dividing line certain matters fall in the context of, for example, contact sports, medical treatment/examination, diverse expressions of intimacy, tattooing/body piercing, prizefighting, sado-masochistic acts, etc. Accordingly, even if this Court was of the view that the decision in the case of Dolny was incorrect it was submitted that this Court should find that the courts retain a public policy remit which ensures that “consent” does not become a device to render legal that which is demonstrably contrary to public policy.
Discussion and decision
23. Prior to the enactment of the Act of 1997 assault was a common law offence for which the penalty was specified in the Offences Against the Person Act 1861 (the Act of 1861). The Act of 1861 contained a range of penalties depending on the seriousness of the form of assault concerned. As Charleton, McDermott and Bolger wrote in their work Criminal Law about the Act of 1861, “This Act is cast in outdated language which now contrasts with the modern formulation of the 1997 Act”. They referred to the traditional distinction that existed between assault and battery and at para. 9.03 of Criminal Law they wrote:
“The parameters of these two separate crimes are explained by East:
‘An assault is any attempt to offer with force and violence to do a corporal hurt to another, whether from malice or wantonness; as by striking at him, or even by holding up one’s fist at him in a threatening or insulting manner, or with such other circumstances as denote at the time an intention, coupled with a present ability of using actual violence against his person; as by pointing a weapon at him within the reach of it. Where the injury is actually inflicted, it amounts to a battery, (which includes an assault;) and this, however small it may be; as by spitting in a man’s face, or in any way touching him in anger without any lawful occasion. But if the occasion were merely accidental and undesigned, or if it were lawful . . . it is no assault or battery in the law’.”
24. It was pointed out by the authors at para. 9.05 that the word ‘battery’ has fallen out of use: “An assault that occurs by creating the apprehension of immediate physical violence in the victim is now usually referred to as ‘psychic assault’.” They pointed out that the distinction was no longer valid. The Act of 1997 was an attempt to codify the law in this area. Charleton et al . went on to observe in relation to the Act of 1861 at para. 9.14:
“The elements of the offence are of great importance as a host of offences are built upon the proof of the commission of an assault. The structure of these offences divides them into basic assaults aggravated either by the harm thereby done, the nature of the intent of the accused, the status of the victim, or the circumstances of commission. There is no rationality to the disparate collection of offences set out in the Offences Against the Person Act 1861, either in the elements by which they are defined or in the range of sentences which they may attract. Some offences are obsolete. Many more are cast in the language of a former age. The offences share the fact that they are built upon the base of the crime of assault. Assault is thus available as an alternative verdict where the circumstances of aggravation or its accompanying mental state are not proven.”
25. Before leaving Criminal Law by Charleton et al. I propose to refer to two further passages at paras. 9.15 and 9.16 respectively in which the learned authors discuss the issue of consent as a defence. It is said:
“The absence of consent is an element of some crimes. As such the proof of the absence of consent is an external element which must be proved, as with every other element, beyond reasonable doubt by the prosecution. Rape and indecent assault require that the victim did not consent to the sexual activity of which she complains. Usually, the only issue at a trial on these offences is whether the victim consented or not. Where the victim is under a particular age, or under a particular infirmity, the law has for policy reasons removed consent as an element of such crimes altogether. We consider this further in the context of sexual offences in Chapter 8.
Consent may be a defence to a charge of assault. A victim cannot consent to an act which has as its purpose, or which will have the effect of probably causing to him or her bodily harm. The reason is one of public policy; it is in the interest of society at large that an individual is not always free to consent to certain harmful acts. A similar policy underpins the law forbidding the consumption of dangerous drugs. Sometimes this common good will be apparent and other times there is only a very thin line between conduct to which an individual may consent and conduct which will give rise to a criminal liability regardless of the victim’s consent. In K, the Court of Appeal of Saskatchewan held that violent and dangerous conduct is excluded from the scope of an implied consent, even where there is express consent, because in law an assault cannot be consented to where actual bodily harm is intended. On the basis of this and some Australian precedents, it would seem that the dividing line may be between assault occasioning actual bodily harm and assault occasioning grievous bodily harm or unlawful wounding. It is manslaughter to kill a person by an assault in which the accused intends to hurt the victim or to cause him more than trivial harm. It would thus appear the policy of the law to make non-trivial assaults unlawful. This would appear to be so despite consent. If two men wish to fight it should be done under the controlled circumstances of sport.”
26. It might be thought that those observations have no relevance following the updating of the law in relation to assault but it is in this regard that the provisions of s. 22 of the Act of 1997 have some bearing. It provides as follows:
“(1) The provisions of this Act have effect subject to any enactment or rule of law providing a defence, or providing lawful authority, justification or excuse for an act or omission.
(2) Notwithstanding subsection (1) any defence available under the common law in respect of the use of force within the meaning of section 18 or 19, or an act immediately preparatory to the use of force, for the purposes mentioned in section 18 (1) or 19(1) is hereby abolished.”
27. I will discuss the relevance of this section further in the course of this judgment. For the moment, it is sufficient to note that for the purpose of what was known as common assault, absence of consent was an element of the offence and was therefore required to be proved by the prosecution. In cases involving more serious assaults the absence of consent was not required to be proved by the prosecution because it was contrary to public policy to permit a victim of an assault causing harm to consent to same, save that in certain circumstances, consent may be a defence to an offence such as in the case of surgery or sporting activity.
28. It is now necessary to examine the role of consent in relation to the provisions of ss. 2 and 3 of the Act of 1997. It was contended on behalf of Mr. Brown that the phrase “without the consent of another” governs both s. 2(1)(a) and (b) of that section. Clearly, the absence of consent is an essential element in the proof of an offence contrary to s. 2 of the Act of 1997. It is then contended that the term “assault” as used in s. 3 must be read as having the same meaning as in s. 2 of the Act and that, accordingly, the absence of consent is an essential element of the offence of “assault causing harm” as defined in s. 3 of the Act of 1997. Reference was made in the course of submissions to Mason v. Leavy [1952] I.R. 40 in which Murnaghan J. stated:
“Where a statute such as the Rent Restrictions Act, 1946, defines its own terms and makes what has been called its own dictionary, a Court should not depart from the definitions given by the statute and the meanings assigned to the words used in the statute.”
Reference was also made to Bennion on Statutory Interpretation (6th Ed., p. 1034) where it is stated:
“It is presumed that a word or phase is not to be taken as having different meanings within the same instrument, unless this fact is made clear. Where therefore the context makes it clear that the term has a particular meaning in one place, it will be taken to have that meaning elsewhere.”
Essentially, it is contended that having repealed ss. 42 and 47 of the Act of 1861, the only statutory definition of “assault” in this jurisdiction is that contained in s. 2 of the Act of 1997 and that “assault” in s. 3 must be interpreted as having the same meaning. For that reason, counsel on behalf of Mr. Brown contends that in giving the judgment of the Court of Appeal, Mahon J. was wrong to have said at para. 36:
“The drafting of these related sections, (to the extent that they both refer to assault), creates confusion as is evident from this and other cases and might have been the subject of more careful drafting. It is nevertheless appropriate that the offences described in ss. 2 and 3, respectively, should be treated as separate and distinct offences, as indeed should the offence described in s. 4.”
29. It was accepted that the offence created by s. 4 of the 1997 Act was clearly a separate and distinct offence and is “a standalone offence” in that it has deliberately omitted the word “assault” from the section and thus has removed the issue of consent from the offence of “causing serious harm” as provided for in s. 4 of the 1997 Act. Criticism was also made of a further statement to be found at para. 21 of the judgment of the Court of Appeal where it was stated of s. 3 of the Act of 1997 as follows:
“It does not go on to expressly incorporate or repeat the detailed explanatory provisions of s. 2, and, more importantly, it does not expressly state that the commission of the offence involves a lack of consent on the part of the victim.”
30. In the course of argument, it was submitted on behalf of Mr. Brown that the Act of 1997 introduced a gradation of offences having regard to the level of injury inflicted: hence the Act provides different sanctions accordingly. It was then argued that there was a clear distinction between ss. 2 and 3 on the one hand and s. 4 on the other hand which involves the infliction of serious harm given that s. 4 does not use the word “assault”. This difference, it was argued, showed that the absence of consent was part of the actus reus of assault under ss. 2 and 3 and that the policy of the legislation, as could be seen from the way in which the sections were laid out, was that solely for an act causing serious harm absence of consent was removed from the actus reus of the offence. In other words, it was contended that consent was irrelevant to the causing of harm contrary to section 4. In essence this distinction marked the line of public policy as to when consent should be or, as the case may be, should not be an ingredient of the relevant offence. Counsel on behalf of Mr. Brown referred to the Canons of Construction and to a number of authorities referred to previously in support of their submissions. There was also discussion as to the question of public policy and the role of parliamentary debate in considering public policy which led to the reference to the well known decision in the case of Crilly v. Farrington [2001] 3 IR 251.
31. Counsel on behalf of the DPP took a different view as to the interpretation of ss. 2 and 3 of the Act of 1997. Reliance was placed to a significant degree on the decision of the High Court and subsequently by this Court in the case of Minister for Justice v. Dolny referred to previously.
32. Dolny is a decision that arose in the context of a European Arrest Warrant. As was mentioned previously, it played a part in the ruling of the trial judge which is at the heart of the issue in this case. Further, the decision in Dolny was considered in the judgment of the Court of Appeal in this case. The issue considered in that case was the question of correspondence. Mr. Dolny was sought by the Republic of Poland to serve a sentence of imprisonment following his conviction in that country for an offence. The offence was described in the European Arrest Warrant as follows:
“On 20th June 2004 in . . ., acting together and in collaboration with . . ., he beat . . . by hitting him on the face and head with his fists, thereby causing injury to his body in the form of a contused wound in the left suborbital area and a contused wound in the area of the right superciliary ridge – thus exposing him to the direct danger of sustaining grievous detriment to his health.”
The question then arose as to whether the offence involved in that case was one which corresponded to an offence under the law of this State in accordance with the provisions of s. 5 of the European Arrest Warrant Act 2003, as amended (the Act of 2003). At p. 5 of his judgment Peart J. having looked at the provisions of ss. 2 and 3 of the Act of 1997 considered an argument that lack of consent was a necessary proof for an offence under s. 3 of the Act of 1997, as it was for an offence under s. 2 of the said Act. Peart J. commented:
“In my view, this submission is wrong. The offences created respectively by s. 2 and s. 3 of the 1997 Act, are distinct and different offences. An assault under s. 2 requires for its commission that the person assaulted did not consent to being assaulted, as well as that the assault be inflicted without lawful excuse and intentionally or recklessly. The section is clear in that regard. But the separate and distinct offence of ‘assault causing harm’ in s.3, contains no such requirements. It is a separate offence, and it is not the case that s. 2 is intended to define the concept of ‘assault’ for all purposes of the Act. There is no definition of assault contained in s. 1 of the 1997 Act, or elsewhere therein.
Section 3 provides for a freestanding offence of ‘assault causing harm’, as opposed to a simple assault. In order to be guilty of this offence a person must have carried out an assault and must have caused ‘harm’ as defined in s.1 of the 1997 Act. In such an offence it is not part of the offence that it occurs without the consent of the victim. That is clear from the plain meaning of the words used in the section. In s.3, the word ‘assault’ is not used as a term of art by reference to the provisions of s. 2, or by reference to any statutory definition of that word. The Concise Oxford Dictionary definition of ‘assault’ is ‘a violent physical or verbal attack’. That is the meaning to be given to the word ‘assault’ for the purpose of the s.3 offence.
I note in passing that the offence ‘assault causing serious harm’ under s.4 of the 1997 Act, again includes a mental element, namely, that the offence occurs where ‘a person intentionally or recklessly causes serious harm to another’.
The requirement that the assault be without the consent of the victim, or that there be any mental element is distinctly absent from the express provisions of the s.3 offence of assault causing harm. In my view the facts as outlined in the warrant and which resulted in the conviction of the [appellant] in Poland, come within the words used in s.3 of the 1997 Act in order to create that offence, and in these circumstances, correspondence in accordance with s.5 of the Act, and I am satisfied also that the minimum gravity requirement is satisfied also, since the offence is punishable by a fine, or by a sentence of imprisonment of up to five years imprisonment, or both.”
33. The Supreme Court upheld the decision of the High Court on the issue of correspondence. There was no detailed consideration of the provisions of ss. 2 or 3 in the course of the judgment of this Court.
34. Given the reliance by the DPP on the Dolny decision in arguing that consent is not an element of the offence assault causing harm contrary to s. 3 of the Act of 1997, it was contended that this Court should not depart from that decision. It was pointed out that the circumstances in which this Court will depart from a previous decision are very exceptional. (See, for example, D.H. v. Groarke and The Director of Public Prosecutions [2002] 3 IR 522).
35. By contrast counsel on behalf of Mr. Brown urged on this Court the view that the decision in Dolny was arrived at in error having regard, inter alia , to the principles of statutory interpretation and that the decision should be re-visited by this Court.
36. As stated previously, the issue in Dolny arose in the context of a consideration of whether the Polish offence of which Mr. Dolny had been convicted corresponded with an Irish offence as required by s. 5 of the Act of 2003. It was contended on behalf of Mr. Dolny that the warrant did not indicate that what was alleged to have been done by Mr. Dolny was done “without the consent of the victim” and that therefore there was no correspondence between the offence in Poland with the offence of assault causing harm contrary to s. 3 of the Act of 1997. Peart J. in his judgment had observed that:
“The offences created respectively by s. 2 and s. 3 of the 1997 Act, are distinct and different offences.”
37. There is no difficulty in accepting the proposition that ss. 2 and 3 of the Act of 1997 create separate and distinct offences. Clearly they must do so as the penalty for an offence contrary to s. 2 is much less than the penalty for an offence under s. 3 of the Act of 1997. A s. 3 assault involves causing harm unlike a s. 2 assault. Leaving aside those somewhat trite observations, is there any other basis for distinguishing assault as understood and defined in s. 2 from assault in the context of section 3? It is at this point, however, that I have concern as to the view that the provisions of s. 3 of the Act create a “freestanding offence” of “assault causing harm” which is completely distinct from the concept of assault within the meaning of s. 2 of the Act. The Act of 1997 in its interpretation section does not provide a single definition of the word “assault”. Such a definition is to be found in s. 2 of the Act. Section 20 of the Interpretation Act of 2005 provides:
“Where an enactment contains a definition or other interpretation provision, the provision shall be read as being applicable except in so far as the contrary intention appears in –
(a) the enactment itself, or
(b) the Act under which the enactment is made.”
In the case of The State (McGroddy) v. Carr [1975] I.R. 275 at p. 285 it was stated by Henchy J. that:
“. . . when expressions are repeated in the same instrument, and more especially in a particular part of the same instrument, they should be given a common force and effect unless the context requires otherwise.”
38. Given those principles of interpretation, it seems to me to be difficult to see any basis as to how the word “assault” as used in s. 2 of the Act of 1997 could have a different meaning or interpretation in s. 3 of the Act. It is difficult to understand or accept the approach of the High Court in resorting to an examination of a dictionary definition of “assault” in order to ascribe a different meaning to the word “assault” as used in s. 3 of the Act of 1997. To that extent I disagree with the conclusion of the learned trial judge in the Dolny case to the effect that the meaning to be given to the word “assault” for the purpose of a s. 3 offence is “a violent physical or verbal attack”. I therefore conclude that the word “assault” as used in s. 3 has the same meaning as “assault” in section 2.
39. The fact that I have come to the conclusion that the word “assault” as defined in s. 2 of the Act must have the same meaning in s. 3 of the Act does not resolve the issues in this case. The next task is to examine the provisions of ss. 2 and 3 of the Act of 1997 more closely with a view to ascertaining precisely the definition of assault to be found in section 2. It seems to me that s. 2 of the Act of 1997 does two things. It sets out the ingredients of the offence of assault that have to be established by the prosecution before someone can be convicted of the offence of assault. Thus, the act involved is one done “without lawful excuse, intentionally or recklessly” and “without the consent of another”. The second function of s. 2 is to explain what must be done to constitute an assault. An assault is when a person “directly or indirectly applies force to or causes an impact on the body of another, or causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact”. That is the definition of assault. Of course, the offence of assault is not committed unless the other elements referred to above are present, including the absence of consent. Section 2(2) provides a definition of “force” as used in s. 2(1) as previously set out. It would also be helpful to bear in mind the provisions of s. 2(3) which to some extent reinforces my view as to the interpretation of section 2(1). It provides:
“No such offence is committed if the force or impact, not being intended or likely to cause injury, is in the circumstances such as is generally acceptable in the ordinary conduct of daily life and the defendant does not know or believe that it is in fact unacceptable to the other person.”
40. Actual force or impact, or in the alternative, the belief that one is likely to be immediately subjected to such force or impact is necessary for there to be an assault. The other elements referred to in s. 2(1) are necessary to constitute the offence of assault and relate to the intention in which the accused subjects the other to “force or impact” or the circumstances in which this occurs.
41. What then of section 3? The first point to note is that s. 3(1), which makes assault causing harm an offence, is terse in its description of the offence. It does not give any definition of what is meant by the word “assault” and as I have already said I see no reason for concluding that it means anything different to “assault” as used in section 2(1). “Harm” is defined in s.1 of the Act of 1997 as follows: “”harm” means harm to body or mind and includes pain and unconsciousness”. Charleton et al . in Criminal Law made the following observation about consent (para. 9.87):
“Since the requirement of an absence of consent of the victim is not included as an element of the offence of assault causing harm, as defined by s 3, it becomes strongly arguable that a person may consent to assaults up to a level where those physically or psychically harm him or her. Harm, in this context, it is submitted, must mean more than trivial or trifling annoyance or pain”.
42. Whereas the absence of consent is referred to expressly as an element of the offence to be found in s. 2 of the Act, the absence of consent is not expressly referred to as an element of the offence in relation to section 3.
43. In the course of their submissions, counsel on behalf of Mr. Brown made reference to McAuley & McCutcheon in Criminal Liability (2000) where the authors at p. 532 observed:
“The extent to which the Non-Fatal Offences Against the Person Act 1997 has modified the common law on consensual force has yet to be determined. Section 2 expressly makes lack of consent part of the actus reus of assault and this definition must be carried into section 3 which provides the offence of assault causing harm.”
44. It is interesting in this context to look at what the authors in that work went on to say and I propose to refer to a passage from the book at some length. They said:
“Thus it seems to follow that consent of the complainant will absolve an accused of liability for the offences of assault and assault causing harm. ‘Harm’ is defined in section 1 as meaning: ‘harm to body or mind and includes pain and unconsciousness’. This definition broadly corresponds with ‘actual bodily harm’ under the 1861 Act and it accommodates the recent recognition that psychological harm can amount to bodily harm. But if consent is a defence to assault causing harm it would follow that the threshold has been increased beyond that tolerated by the common law rule. Consent is not a definitional element of the offence of causing serious harm under section 4 and this would now appear to be the new threshold. However, the magnitude of the potential change is evident when the definition of serious harm is considered. That is defined, in section 1, as ‘injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ’. This is a more restrictive definition than that attributed to ‘grievous bodily harm’ and thus the threshold would appear to be set at life threatening injuries or maiming. This, of course, would easily accommodate the force inflicted in R v. Brown .
It must be questioned whether that was the intention of the Oireachtas when it enacted the 1997 Act. A liberalisation of the law might well have been contemplated but it is debatable whether it was intended that the old law be replaced by so high a threshold. Nevertheless as a matter of literal interpretation this conclusion seems inevitable. Doubt, however, is thrown on this interpretation by section 22 which states that “The provisions of this Act have effect subject to any enactment or rule of law providing a defence, or providing lawful authority, justification or excuse for an act or omission’. While consent relates to the definitional element of the offences of assault and assault causing harm, rather than being a defence in the strict sense, there is evidence that it was contemplated that section 22 would preserve the law of consent. The explanatory memorandum accompanying the Bill expresses the view that section 22 ensures the continuance of ‘The common law rules under which bodily harm caused with consent in the course of sports, dangerous exhibitions or medical treatments will apply to exempt the actor from criminal liability’. But these cases were exceptions that the common law recognised and they pre-suppose the applicability of the general rule that sets the lower threshold. If this still is the law, as the explanatory memorandum suggests, it cannot be reconciled with the literal interpretation of sections 2, 3 and 4. Thus the courts will be called upon to resolve a dilemma that should have been anticipated and solved at the legislative stage.”
45. Reference was made in the course of that passage to the decision of the House of Lords in the case of R. v. Brown [1993] 2 All ER 75. That was a case which involved a group of homosexual men who engaged in consensual sadomasochistic activities. It appears that no long-lasting injuries were inflicted. “Actual bodily harm” and “wounds” were inflicted but the argument was made that the consent of the participants was such that the defendants could not be guilty of an assault occasioning actual bodily harm or unlawful wounding in respect of acts carried out in private with the consent of the victims. The majority in that case concluded that the convictions should be upheld. They took the view that consent is not a defence where the force involved was intended or calculated to inflict actual bodily harm. Lord Templeman in the course of his opinion at p. 78 stated:
“When no actual bodily harm is caused, the consent of the person affected precludes him from complaining. There can be no conviction for the summary offence of common assault if the victim has consented to the assault. Even when violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating. Surgery involves intentional violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity. Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear piercing and violent sports including boxing are lawful activities.”
In the same case Lord Jauncey stated at p. 90 of the judgment:
“In my view the line properly falls to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by s. 47 of the 1861 Act, with the result that consent of the victim is no answer to anyone charged with the latter offence or with a contravention of s. 20 unless the circumstances fall within one of the well known exceptions such as organised sporting contests and games, parental chastisement or reasonable surgery.”
46. That decision makes clear that the position at common law was such that as a general proposition, consent was not a defence to the offence of assault occasioning actual bodily harm created by s. 47 of the Act of 1861. Nevertheless, at common law there were recognised certain exceptions to that general rule.
47. Quite clearly, McAuley and McCutcheon in the passage referred to above have identified some of the difficulties with the interpretation of ss. 2 and 3 of the Act of 1997. As the authors recognised, the effect of the interpretation which is contended for by counsel on behalf of Mr. Brown in this case, namely that consent is a “definitional element” of the offence of assault causing harm, is at odds with the possibility of relying on consent as a defence to a charge pursuant to s. 3 of the Act and cannot be reconciled with the provisions of s. 22 of the Act. Given that the common law always recognised certain circumstances which permitted a defence of consent to be relied on, could it be that the legislature on the one hand intended to make absence of consent an ingredient of the offence of assault under s. 3 whilst at the same time providing that consent would be a defence to a charge of assault under section 3? As the word “assault” in ss. 2 and 3 must have the same meaning, it seems to me that the use of the word “assault” in s. 3 imports the elements of the offence as set out in s. 2 of the Act of 1997. This is undoubtedly a departure from the common law position as is clear from the passages cited from R. v. Brown referred to above and does mean that the threshold in relation to consent has changed from the common law position where it was possible to consent to common assault but not possible to consent to any form of assault above that level save as provided for in the well-known exceptions such as medical treatment or sporting activities referred to previously. I am thus reinforced in my view that the decision in Dolny to the effect that “it is not part of the offence that it occurs without the consent of the victim” cannot be correct. Bearing in mind that this conclusion as to the interpretation of s. 3 is a change in the common law position that pertained until the Act of 1997, it would have been preferable if this had been clearly and expressly spelt out in the legislation. Be that as it may, I am satisfied that absence of consent is an ingredient of the offence of assault causing harm contrary to s. 3 of the Act of 1997. I am of the view that s.22 of the Act of 1997 cannot have had the effect of re-importing the defence of consent into the provisions of ss. 2 and 3, given that absence of consent is an element of the offence under each section. That is not to say that s. 22 of the Act of 1997 is of no practical effect. It appears to me to ensure that consent may be a defence to an offence under s. 4, by reference to the long established common law exceptions.
48. This brings me to the issue of public policy. There was some debate on the issue of public policy but that turned on the extent to which public policy could be discerned by the courts in circumstances where the public policy asserted by the courts was said to be at variance from that articulated in the Oireachtas during the debate on the Bill. That raised the issue as to introduction of Dail debates to support the contentions of Mr. Brown as to public policy. That aspect of the debate as to public policy is no longer relevant as I accept the contention on behalf of Mr. Brown as to the interpretation of the Act of 1997.
49. It will be recalled that a further ingredient of the offence of assault is that the act concerned is committed “without lawful excuse”. A consideration of what may or may not be a lawful excuse will give rise to a consideration of public policy. Given that the absence of consent is a necessary ingredient of the offence of assault causing harm, could consent to an assault in furtherance of an unlawful purpose ever be taken into consideration in deciding whether someone is guilty or not of the offence contrary to s. 3 of the Act of 1997? It is necessary to bear in mind the evidence as to the nature of the assault in question and the fact that it is alleged to have occurred in circumstances where Mr. Brown alleges that he was requested by the injured party to assault him for the purpose of trying to facilitate his early release from prison in exchange for a sum of money together with information and documents. This was denied by the injured party.
50. Section 22 of the Act of 1997 must also be considered in this context. It expressly provides that “the provisions of this Act have effect subject to any enactment or rule of law providing a defence, or providing lawful authority, justification or excuse for an act or omission”. The common law defence of consent was not available in every circumstance as is clear from the case law. In this context, the passages cited above from R. v. Brown illustrate the point. In parenthesis, it might be observed that activities of a sado-masochistic nature, such as those at issue in R. v. Brown , between consenting adults in private, provided they did not go beyond the level of causing harm, could now be viewed in a different light in this jurisdiction by reason of changes to the Constitution together with the changes brought about by the Act of 1997.
51. Further, it has long been recognised that consent is recognised as a defence in the case of surgery. As Charleton et al . explained at paras. 9.23 and 9.24:
“There is a clear common good in performing surgical procedures where the benefit of the medical treatment outweighs any burdens that may be caused to, or risks undergone by, the patient. This is so even though almost any surgical procedure will cause at least grievous bodily harm. Consent to such a procedure will render it lawful where it is carried out by a suitably qualified person and for a legitimate medical purpose. A surgeon will, further, have no intent to do harm, or will not be reckless that such harm will result, and so such element of individual assault charges will be missing. A reckless state of mind is incompatible with a public benefit. More difficult questions arise where a person is unable to consent, but this will frequently constitute a case of necessity.
Where a person is able to consent to medical treatment but chooses not to, any forcible application of that treatment will clearly constitute an assault.”
52. Likewise, the position has been recognised in relation to sporting activity that consent may be a defence. Thus Charleton et al . commented at para. 9.26:
“It is generally accepted that once participants in sporting activities keep within the parameters of lawful behaviour acceptable within the context of that sport, they are taken to consent to the risks inherent in those activities. Consent is a question of degree depending upon the circumstances.”
53. It may be observed that the situations in which the law traditionally recognised a defence of consent to assault causing harm were those which, in general, reflected the benefits of the activity involved for society in general. Where harm was caused it could be consented to provided it came within one of the exceptions recognised at common law. The threshold for consent may have moved by reason of the changes brought about by the Act of 1997 but one element of the offence which remains is, that as part of the actus reus of the offence, it must be established that what occurred was something done “without lawful excuse”. This imports into the offence of assault and assault causing harm a consideration of the circumstances in which the offence is alleged to have occurred.
54. In the course of the discussion on the subject of consent McAuley and McCutcheon refer to a Canadian case, R. v. Jobidon [1991] 66 CCC (3D) 454, a decision of the Supreme Court of Canada where the “fair fight” defence was rejected. That case concerned a situation where the accused had been charged with manslaughter, through the offence of assault, following a fist fight which started in a bar. Ultimately the parties went outside the bar and continued to fight in the parking lot. Unfortunately, the victim was struck in the head and ultimately died. At trial, the accused was found not guilty of manslaughter as the trial judge held that the victim’s consent to a “fair fight” negated assault. The Court of Appeal set aside the acquittal and substituted a guilty verdict and the matter was then appealed to the Supreme Court of Canada which rejected the appeal. The issue before the Court was whether absence of consent is an element which must be proved by the Crown in all cases of assault under s. 265 of the Criminal Code or whether there were criminal law limitations which restrict or negate the legal effectiveness of consent in certain types of cases. Section 265(1)(a) of the Canadian Criminal Code provides that an assault occurs when “[w]ithout the consent of another person, he applies force intentionally to that other person, directly or indirectly”. It was further provided that the section concerned applies to “all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault”. Thus, absence of consent was a necessary ingredient in the charge before the Court. It was argued in that case that it was not in the public interest that people should engage in street brawls or fist fights and thus on public policy grounds, it was the view of the prosecution that the word “consent” in s. 265 of the Criminal Code should be read in light of the common law, which limits its applicability as a defence to assault. The prosecution noted that fist fighting is without social value and has been outlawed in other common law jurisdictions. The Supreme Court of Canada in that case embarked on a considerable analysis of the law in relation to assault both in Canada and in the courts of the United Kingdom. Ultimately the Court, in the judgment of Gonthier J. at pp. 39 to 47, stated:
“How, and to what extent is consent limited? The law’s willingness to vitiate consent on policy grounds is significantly limited. Common law cases restrict the extent to which consent may be nullified; as do the relevant policy considerations. The unique situation under examination in this case, a weaponless fist fight between two adults, provides another important boundary.
The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. (This test entails that a minor’s apparent consent to an adult’s intentional application of force in a fight would also be negated). This is the extent of the limit which the common law requires in the factual circumstances of this appeal. It may be that further limitations will be found to apply in other circumstances. But such limits, if any, are better developed on a case by case basis, so that the unique features of the situation may exert a rational influence on the extent of the limit and on the justification for it.
Stated in this way the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game. Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile….
There is also nothing in the preceding formulation which would prevent a person from consenting to medical treatment or appropriate surgical interventions. Nor, for example, would it necessarily nullify consent between stuntmen who agree in advance to perform risky sparring or daredevil activities in the creation of a socially valuable cultural product. A charge of assault would be barred if the Crown failed to prove absence of consent in these situations, in so far as the activities have a positive social value and the intent of the actors is to produce a social benefit for the good of the people involved, and often for a wider group of people as well. This is a far cry from the situation presented in this appeal, where Jobidon’s sole objective was to strike the deceased as hard as he physically could, until his opponent either gave up or retreated. Fist fights are worlds apart from these other forms of conduct.
Finally, the preceding formulation avoids nullification of consent to intentional applications of force which cause only minor hurt or trivial bodily harm. The bodily harm contemplated by the test is essentially equivalent to that contemplated by the definition found in s. 267(2) of the Code, dealing with the offence of assault causing bodily harm. The section defines bodily harm as ‘any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature’.”
55. That case is significant in making it clear that apart from the statutory provisions, the common law had set limits on the types of harmful actions to which one can validly consent. Just as s. 22 in our jurisdiction preserves the common law rules in relation to defences or providing lawful authority, justification or excuse for an act or omission, the Canadian Criminal Code also provided that common law principles continued to apply to the extent that they were not inconsistent with the Code or other Act of Parliament. While that decision focussed on the definition of “bodily harm” contained in the Criminal Code, it is a useful reminder of the role that common law principles may have to play in any given case.
56. Finally, in this context, it would be useful to refer to the decision in the case of R. v Donovan [1934] 2 K.B. 498 in which Swift J. made the following observation at p. 507:
“If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can license another to commit a crime. So far as the criminal law is concerned, therefore, where the act charged is in itself unlawful, it can never be necessary to prove absence of consent on the part of the person wronged in order to obtain the conviction of the wrongdoer.”
Thus, it is apparent that in some instances the circumstances in which an assault causing harm is committed may vitiate the consent given to the infliction of harm. It clearly cannot be the case that one could consent to an assault causing harm in furtherance of a criminal act. For example, if two parties engage in a staged road traffic collision thereby causing injury for the purpose of enabling one of the parties to claim damages for personal injuries, if the party causing the collision was subsequently prosecuted for assault causing harm, how could that person be allowed to rely on consent to say that he/she should not be convicted. Likewise, if an individual asked another person to injure them so that, once injured, the individual concerned could claim a social welfare benefit in respect of the injury inflicted, could consent prevent a successful prosecution against the person inflicting the injury? It seems to me that the answer to these questions can be found by looking at the circumstances and the purpose of the act for which the consent was given. The nature of the alleged agreement in this case does not come within any of the recognised exceptions which would have permitted a defence of consent to be relied on under the 1861 Act. The agreement between the parties as alleged is one intended to deceive the prison authorities into a situation where the alleged victim would be, potentially, the beneficiary of an early release from prison. In exchange, Mr. Brown was to receive a sum of money, sensitive information and documentation. Under no circumstances could this ever have been a lawful purpose. The disclosure of such material by a former member of the Gardaí could not have been lawful. In circumstances such as these, consent quite simply could not be relied on as a defence to a charge of assault causing harm. It seems to me that the alleged consent in this case could not be relied on by Mr. Brown to negate the absence of consent in respect of a charge contrary to s. 3 of the Act of 1997. In short, consent to an assault causing harm for an unlawful purpose is no consent.
57. This situation is not without parallel. It was recognised at common law that consent in respect of an unlawful activity could not be given. See in this context R. v. Coney [1882] 8 QBD 534, a case about prize fighting where the Court of Criminal Appeal concluded that whilst one could consent to assault, one could not give an effectual consent to conduct which amounts to a breach of the peace. Thus, the illegal aspect of the conduct involved meant that one could not give an effectual consent. (See Boxing, The Common Law and the Non-Fatal Offences against the Person Act 1997 [2002] 12 I.C.J.L.15 by Brian Foley). In the area of some sexual offences, absence of consent is an ingredient of the offence concerned. For example, in certain situations, having regard to the age of the person against whom it is alleged an offence has been convicted, the law recognises that individuals under a certain age do not have the capacity to consent. (See for example s. 2 of the Criminal Law (Sexual Offences) Act 2006, as amended which provides at s. 2(1): “A person who engages in a sexual act with a child who is under the age of 15 years shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment”. Section 2(6) provides: “It shall not be a defence to proceedings for an offence under this section for the defendant to prove that the child against whom the offence is alleged to have been committed consented to the sexual act of which the offence consisted.”). In such circumstances, the Oireachtas has chosen to specifically provide that consent shall not be a defence to such an offence. Equally, it is recognised that certain complainants simply do not have the capacity to consent. McAuley and McCutcheon observe at p. 513 ( op.cit ) as follows:
“A complainant who is incapable of consenting by reason of some personal characteristic lacks capacity. This could be due to a transient factor, such as intoxication, sleep or concussion. These factors cause little difficulty since it is obvious that any complainant who falls into one of those states is incapable of consenting. By the same token, it is clear that some individuals are incapable of consenting because of their youth, immaturity or mental incompetence.”
58. It is understandable therefore that in the case of a charge of rape involving a minor of say ten years of age, even though the absence of consent is an ingredient of the offence of rape, the law recognises that a child of that age does not have the capacity to consent. Indeed, this is reflected in the offences created in the Criminal Law (Sexual Offences) Act 2006, as amended, to which I have already referred.
59. The Act of 1997 has modernised and updated the law in relation to non fatal offences against the person. Some offences under the Act of 1861 have disappeared, eg. placing a man trap contrary to s. 31 of the Act of 1861. New offences have been introduced , e.g. those in relation to the use of syringes (see s. 6 of the Act of 1997). The Act of 1997 has changed the law by introducing the absence of consent as an ingredient to the offence of assault causing harm. However, the fact that the law has changed to that extent does not mean that the Oireachtas has provided that in all cases that an act which has the effect of hurting or causing harm to someone can be committed as long as there is consent. That was never the law. It was always a crime to hurt someone but the law recognised that in certain circumstances which have been discussed above, such as in the case of surgery or sporting activity, consent would be a defence or alternatively, in certain circumstances the absence of consent was an element of the offence required to be established by the prosecution. If the Oireachtas had intended to introduce a radical change in the law to the effect that consent would render lawful the infliction of harm on someone no matter what the circumstances, one would expect to have seen that clearly stated in the legislation. There were exceptions provided in the law for particular situations in which one could consent to the harm being inflicted. Outside those exceptions, the infliction of harm was unlawful. That which is unlawful cannot be made lawful simply by the presence of consent without regard to the circumstances in which the consent is given. Equally, to be effective, a consent must be a valid consent. For example, a consent obtained by fraud is no consent. While the obligation on the prosecution under s. 3 is to establish the absence of consent, a consent to an act which would be unlawful is not a consent. In this case, the consent is one which cannot be recognised in law because the consent, if given, was given for an unlawful purpose and it would be contrary to public policy to allow an accused to rely on a consent which is in furtherance of an unlawful purpose. Such a consent would never have been recognised at common law. Notwithstanding the changes brought about by s. 3 of the Act of 1997, a consent given for an unlawful purpose could not excuse what would otherwise have been an unlawful act.
60. I have had the advantage of reading the judgment of McKechnie J. in this matter in draft form and as he has pointed out in para. 144, we are in agreement up to a certain point on the interpretation of ss. 2 and 3 of the Act of 1997. We part company on the question of public policy and the extent to which the Act of 1997 has amended the law on consent. Can a person consent to all forms of assault causing harm or are there circumstances in which the Act of 1997 limits the consent to a consent which is lawful? As I have indicated above, a consent, in order to be valid, must be given freely for a lawful purpose. Otherwise, it is immaterial.
61. It is undoubtedly the case that the Act of 1997 was a long overdue exercise on the part of the Oireachtas to update the law given the complexity of the Act of 1861, not to mention the outdated nature of some of the offences contained therein as described previously. However, if the Act of 1997 was intended and understood to have effected the radical change described in the judgment of McKechnie J. so that consent to assault causing harm in all cases negates the commission of an offence, including those where the consent was given for an ulterior, unlawful purpose, it is undoubtedly the case that such a radical amendment to the law would have to have been spelt out clearly by the Oireachtas. In my view, that has not been done and for that reason I respectfully disagree with McKechnie J. on this aspect of his judgment and with the conclusion he has reached.
Conclusions
62. I would conclude as follows:
1. Assault as used in s. 2 and s. 3 of the Act of 1997 has the same meaning.
2. The concept of consent provided for in s. 2(1)(a)(b) of the Act of 1997 is not removed from s. 3(1) of the Act. Section 2 and s. 3 of the Act of 1997 are separate and distinct offences but insofar as they both use the word “assault”, that word has the same meaning in both sections.
3. The question as to whether or not courts can dictate public policy contrary to the express intentions of the legislature does not arise.
63. For the reasons set out above I cannot agree with the conclusion of the Court of Appeal to the effect that absence of consent is not a necessary ingredient in a s. 3 assault.
64. In this case, the learned trial judge did not allow the issue of consent to go to the jury. The basis of the ruling may have been erroneous but the nature of the consent in this case was such that it was unlawful and therefore, there was no effectual consent. Accordingly, the conviction can stand and I would dismiss the appeal.
JUDGMENT of Ms. Justice Iseult O’Malley delivered the 21st of December 2018
1. I agree with Dunne J. that the appeal should be dismissed and wish only to add a few observations in respect of certain suggestions made by McKechnie J.
2. It may be helpful to stress the matters on which all the members of the Court are in agreement. We accept that the appellant’s analysis of the relationship between s. 2 and s. 3 of the Non-Fatal Offences Against the Person Act 1997 (hereafter “the Act of 1997”) is correct, and that the absence of consent is an ingredient of a charge under s. 3. The dicta to the contrary in Minister for Justice, Equality and Law Reform v Dolny [2009] IESC.48, [13] are, accordingly, to be seen as incorrect. Further, it is accepted that the impact of this provision is that an individual may give effective consent to an assault that causes harm up to the threshold for an offence under s. 4. It may well be that cases such as R. v Brown [1994] 1 AC 212 would be decided differently here under the Act of 1997, especially since considerations of privacy and autonomy would be involved. The point at which the members of the Court differ is on the question whether consent may be vitiated, or rendered legally ineffective, by circumstances such as the presence of an ulterior unlawful objective. That, and not the previous common law rule that rendered consent irrelevant in the case of actual bodily harm, is the public policy issue to be determined here.
3. I think that it is also helpful to bear in mind the provisions of s. 18 of the Act of 1997. This section enumerates five sets of circumstances in which the use of subjectively reasonable force will not constitute an offence. In brief summary, they are: the protection of oneself or another; the protection of property; and the prevention of crime or a breach of the peace. It has not been argued in this case, and I do not wish to be taken as holding, that this provision is entirely exhaustive of the circumstances in which force may lawfully be used but it is, in the first instance, an indication of the policy of the legislature on the issue. Its relevance also lies in the fact that it gives central importance to the subjective motivation of the person using the force.
4. The assessment of the lawfulness or criminality of the use of violence has always involved an assessment of the purpose of the action and motivation of the actor, in the circumstances as they pertained at the relevant time. Self-defence is one example – the court considers the factual circumstances, the perception of those circumstances by the accused and the intentions of the accused in doing what he or she did. Depending on the outcome of that assessment, the accused may be entitled to a full acquittal on a charge of assault or homicide. Alternatively, he or she may succeed in reducing a charge of murder to manslaughter. It is clear, therefore, that a defined act of violence can only be described as lawful or unlawful by reference to the facts of the case and the motivation of the accused.
5. The argument put forward by the appellant, which has found favour with McKechnie J. and Finlay Geoghegan J., is that an accused cannot be convicted of the offence under s. 3 if there was consent on the part of the alleged victim, and that the purpose of the consent is irrelevant. Should this argument be accepted, it would have very significant consequences for the operation of other important statutory provisions that have the objective of controlling violence against the person. The question of the lawfulness of consensual fighting in public has been raised, and McKechnie J. suggests that the provisions of ss. 14, 15 and 16 of the Criminal Justice (Public Order) Act 1994 as amended (hereafter “the Act of 1994”) are available “in principle”. I respectfully disagree.
6. The offences of riot (s.14), violent disorder (s.15) and affray (s.16) are statutory offences, designed to replace the common law offences of riot, rout and affray. They are all predicated upon the use, or threatened use, of “unlawful” violence to an extent that would cause a (real or hypothetical) person of reasonable firmness, present at the scene, to fear for his or another person’s safety. All can be committed in a public or a private place. The differences between the three offences are that riot requires a minimum of twelve persons using or threatening unlawful violence for a common purpose; violent disorder requires a minimum of three persons using or threatening unlawful violence, who need not be acting either in concert or against each other; and affray arises where two or more persons use or threaten violence towards each other and the violence so used or threatened on the part of any accused person is unlawful.
7. Consider a straightforward example of two men who fight each other outside a public house. They are charged with affray, and both raise the defence that each agreed to fight the other. If that consent means that a charge of assault cannot be made out, in the event that physical harm was actually caused by violence, in what sense could it be “unlawful” to have used that violence? The fact that fear was occasioned to bystanders would be irrelevant unless the element of unlawfulness could be established. How could it be proved, unless it could be said that the unlawfulness lay in the intentions of the participants to hurt each other as best as they could? Similar considerations could arise in relation to violent disorder and to riot.
8. It is true that the participants might be found guilty of engaging in threatening, abusive or insulting behaviour in a public place (s.6 of the Act of 1994), depending on the location of the incident. That is a summary offence with a maximum sentence of three months. It seems to me that the distress and fear caused to customers and staff in restaurants, bars and other places of evening entertainment, or to the residents of a street, when an outbreak of violence takes place, would scarcely be met by reliance on this measure.
9. McKechnie J. also refers to the offence of endangerment, created by s. 13 of the Act of 1997. Endangerment is the intentional or reckless engaging in conduct which creates a substantial risk of death or serious harm to another. It requires, therefore, an action that creates a risk of very significant harm and, on the face of it, is not suitable for deployment in what could be considered “normal” assault cases. It carries a maximum sentence of seven years, and is accordingly a more serious offence than assault under s.3 of the Act of 1997. In DPP v Cagney and McGrath [2007] IESC 46, this Court expressed a clear view that it is undesirable to charge endangerment where the facts give rise to a more specific charge such as assault.
10. The issue here is whether the Oireachtas had intended, by amending the law as to consent in less serious assaults, to create a situation where the use of force is legitimised in all cases by consent on the part of the alleged victim. If it did, it would have the potential effect of legitimising consensual fighting to a surprising extent. In my view express language would have been used if that was the intended result.
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 21st day of December, 2018
Introduction
1. The central issue arising on this appeal can be simply stated: is a lack of consent a necessary element of a charge of assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997 (“the 1997 Act”)?
2. On the 20th May, 2014, Mr Gerard Brown assaulted one Stephen Cooper at Midlands Prison, Dublin Road, Portlaoise, with the result that Mr Cooper suffered a serious head injury requiring a number of stitches. Both men were prisoners in the prison at the time. Mr Brown was charged with assault causing harm, contrary to section 3 of the 1997 Act. At trial, it was not disputed that such assault had occurred or that Mr Brown was the assailant. Rather, the defence put forward on his behalf was one of consent: he said that Mr Cooper had requested Mr Brown to attack him in order to orchestrate Mr Cooper’s transfer to another prison. Following legal submissions on the matter, the trial judge refused to allow this defence to go to the jury, holding that consent cannot constitute a defence to a charge under section 3 of the 1997 Act. Mr Brown was duly convicted by a jury at Portlaoise Circuit Criminal Court and was sentenced to three years of imprisonment, consecutive to his current sentence. His conviction was upheld by the Court of Appeal ([2016] IECA 405), which affirmed that consent is not a defence to a charge under section 3. He now appeals that judgment to this Court.
3. The manner in which the appeal was argued on Mr Brown’s behalf essentially boils the matter down to one of statutory interpretation. The Court has also been presented with arguments as to the extent to which it is necessary to grapple with public policy in construing sections 2 and 3 of the 1997 Act, and to a lesser extent the appeal raises an issue as to whether it is appropriate to have regard to ministerial pronouncements or Dail debates when assessing said public policy concerns. From the perspective of the Director of Public Prosecutions, Mr Brown’s case requires the Court to depart from its own decision in The Minister for Justice, Equality and Law Reform v. Damian Dolny [2009] IESC 48, and the DPP questions whether the requirements for doing so have been satisfied.
Relevant Statutory Provisions
4. Fundamentally, this case concerns the interpretation of sections 2 and 3 of the 1997 Act. It may therefore be helpful to set out these provisions in full at the outset. Section 2 provides as follows:
“2. Assault
(1) A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly—
(a) directly or indirectly applies force to or causes an impact on the body of another, or
(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact,
without the consent of the other.
(2) In subsection (1)(a), “force” includes—
(a) application of heat, light, electric current, noise or any other form of energy, and
(b) application of matter in solid liquid or gaseous form.
(3) No such offence is committed if the force or impact, not being intended or likely to cause injury, is in the circumstances such as is generally acceptable in the ordinary conduct of daily life and the defendant does not know or believe that it is in fact unacceptable to the other person.
(4) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding [€2,500] or to imprisonment for a term not exceeding 6 months or to both.”
5. Section 3 creates a more serious offence. It states that:
“3. Assault causing harm
(1) A person who assaults another causing him or her harm shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding [€2,500] or to both, or
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or to both.”
Harm is defined in section 1 as meaning “harm to body or mind and includes pain and unconsciousness”.
6. Some discussion was also directed to section 4 of the 1997 Act. It creates another offence, sometimes said to be an “assault-type” offence and often colloquially referred to as “assault causing serious harm”, although it should be noted that the word “assault” appears nowhere within the section (a point of no little significance to the appellant). Further discussion of this section can be deferred until later. For present purposes, a recital of its terms will suffice:
“4. Causing serious harm
(1) A person who intentionally or recklessly causes serious harm to another shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or to imprisonment for life or to both.”
Serious harm is defined in section 1 as meaning “injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ”.
7. Attention should be drawn also to section 22 of the 1997 Act, which is in the following terms:
“22. General defences, etc.
(1) The provisions of this Act have effect subject to any enactment or rule of law providing a defence, or providing lawful authority, justification or excuse for an act or omission.
(2) Notwithstanding subsection (1) any defence available under the common law in respect of the use of force within the meaning of section 18 or 19, or an act immediately preparatory to the use of force, for the purposes mentioned in section 18(1) or 19(1) is hereby abolished.”
Finally, some reference will also be made to the statutory provisions mentioned in this section.
Background
8. A little bit more information about the factual background to this case may help to contextualise what follows. As stated above, the victim of the assault was one Stephen Cooper. Both he and Mr Brown (“the accused” or “the appellant”) were prisoners in the Midlands Prison at the time. The assault occurred on the 20th May, 2014. Mr Cooper was previously a member of An Garda Síochana but was serving a sentence for offences contrary to section 15 of the Misuse of Drugs Act 1977, fraud and perverting the course of justice. As a former garda, he received special protection within the prison.
9. At approximately 10am on the morning in question, as Mr Cooper was being escorted to the prison gym by a prison officer, he was attacked by the accused: Mr Brown struck the victim over the head two or three times with a mug concealed inside a sock. Mr Cooper required twelve stitches to the head as a result of this assault. The incident was captured on CCTV and was witnessed by a prison officer.
Trial
10. Both the victim and the accused gave evidence at trial. No issue was taken with the arrest, detention or identity of the accused. Mr Brown admitted that he had attacked Mr Cooper as above described. His sole defence was one of consent: he claimed that the victim had consented to being assaulted, having requested the accused to assault him in order to facilitate his transfer to another prison. The alleged plan was to convince the prison authorities that Mr Cooper was not safe inside the prison and so the attack was contrived in order to achieve his transfer to elsewhere. The accused alleged that the victim had instructed him not to hold back and to “just make sure there is blood” in order to make the assault look genuine. He said that in return Mr Cooper had agreed to give him €1,000 in cash, in addition to certain documentation and information. For his part, Mr Cooper maintained that there had been no such agreement: he gave evidence at trial that he had not consented to being assaulted in the manner alleged, or at all.
11. The pivotal issue at trial was whether or not this defence could go to the jury. At the conclusion of the evidence, just prior to the judge’s charges, counsel for both sides made submissions on this matter (and also on the matter of whether an accomplice warning was needed on the facts of the case; this point is of no continuing relevance). The accused argued that consent was an essential ingredient of assault, be it under section 2 or section 3 of the Act. He said that such sections must be read as one: section 2 defines the ingredients of assault and that definition carries over to section 3. Thus he said that lack of consent was an element of the offence under section 3 and that the jury ought to have been charged that if they believed that Mr Cooper had consented to being assaulted, they must acquit. The DPP countered to the effect that the provisions of section 2 do not carry over to section 3: it was said that the offences under the two sections are completely separate and unconnected. As such, lack of consent was not an element of the section 3 offence, nor could consent be a defence to same.
12. The learned trial judge ruled against the accused on this issue. He held as follows:
“Sections 2 and 3 are standalone offences in the Non Fatal Offences Against the Person Act statute. If it was intended that the definition of assault in section 2 was to be carried over to section 3, then the statute would have clearly provided for this. Section 2 defines for the first time in a statute the offence of assault simpliciter. It does nothing else. If the statute was intended to define assault in all its forms then this would have been covered in the interpretation section of the statute. It doesn’t do this. I am satisfied that the term ‘assault’ as used in section 3 derives from the definition which was enjoyed in law at the time that the Non Fatal Against the Person Act was enacted.”
He went on to state that:
“… According to the accused the purpose of the assault was to assist Mr. Cooper in getting a transfer out of Portlaoise Prison. I am satisfied that in the circumstances of the present case Mr. Cooper on grounds of public policy could not have consented to the imposition of an injury on him by the accused, which resulted in Mr. Cooper having to get twelve stitches to the head … I am further satisfied that on the grounds of public policy that the courts could not permit the defence of consent to apply in this case as to do so would be to enforce the purported agreement between the accused and Stephen Cooper. This agreement, in my view, is illegal and could not be enforced on grounds of public policy as it endeavours to use force as a means to force the prison authorities to transfer Mr. Cooper from the Portlaoise prison. To allow enforcement or recognition of such an agreement would be to undermine the proper governance of the prison and would therefore be contrary to public policy and not in the public interest. Mr Hennessy has argued that to take the issue of consent from the jury would be to deny the accused of his constitutional right to a trial by his peers. I do not agree with this contention. The accused has been afforded a jury trial and he has chosen to accept that he inflicted the bodily injury on Mr Cooper. He has sought to justify his actions on grounds that Mr Cooper consented to the infliction of such injury. I am absolutely satisfied, for the reasons outlined already, that in the circumstances of the current case the defence of consent is not available to the accused.”
13. This ruling was then reflected in the learned judge’s address to the jury. He advised the jury that consent is not a defence to a charge under section 3 of the 1997 Act. His essential basis for so holding was based on dual public policy grounds: first, that the law does not permit a person to consent to the infliction of the type of injury sustained by the victim; and, second, that the purported agreement between the accused and the victim was unlawful because it involved the use of violence for the purpose of arranging the transfer of a prisoner, and thus the agreement was unenforceable. The relevant part of the judge’s charge was as follows:
“In that respect, the accused has proffered the defence that he applied this force and caused the injury to Mr. Cooper in pursuance of an agreement he had entered into with Mr. Cooper, under which Mr. Cooper was to give him some confidential information that he had when he was a garda, together with a sum of €1,000. … But the law is that infliction of force causing injury or harm is not a lawful defence and accordingly my direction to you is that you do not need to concern yourselves with the issue of consent in this trial. Mr. Cooper could not consent to the infliction of the type of injury he sustained. Our law states that, for public policy reasons, you cannot consent to yourself being injured in that fashion. And, for that reason, you are not to concern yourselves with the issue of consent. Consent is not a lawful defence to the charge of assault. And in this case, there is a double reason for that because, even if you accept Mr. Brown’s evidence, the assault was perpetrated in pursuance of an agreement, which was to ensure that Mr. Cooper would be moved from Portlaoise Prison, and that type of an agreement in my view, is an unlawful agreement for public policy reasons because it involves the use of violence for the purpose of arranging the transfer of a prisoner, and that is an attack on the governance of the prison and the maintenance of peace in the prison, and as such any agreement that purports to involve the use of violence in that manner is unlawful and could not be enforceable for public policy reasons. So what you need to be satisfied beyond all reasonable doubt is that there was an application of force and that there was no lawful excuse for the application of that force, and that it caused harm. If you are satisfied on all of those issues, beyond all reasonable doubt, then you are entitled to convict …”
14. The essential basis of the accused’s defence having been withheld from the jury, a conviction inevitably followed. Thus on the 6th November, 2015, Mr Brown was convicted, following a three-day trial, of the offence of assault causing harm by a unanimous decision of the jury. As above noted, he was sentenced to three years of imprisonment, to begin following the lawful termination of the sentence currently being served by him, with a release date therein of January, 2023.
Court of Appeal
15. Mr Brown appealed his conviction to the Court of Appeal. His submissions, and those of the DPP in response, were in essence the same as those now made to this Court. They are dealt with in detail below (see paras. 29-39, infra ). In summary, he argued that the trial judge erred in his decision not to allow the defence of consent to go to the jury: he said that the criteria for committing a section 3 assault are the same as those that apply to a section 2 assault, and that an absence of consent from the victim is therefore necessary for the commission of an offence under section 3. The DPP maintained that sections 2 and 3 are discrete offences, and that the trial judge had adopted a construction which correctly positioned consent solely within the confines of section 2 assault: a person may consent to the direct/indirect application of force to him or herself, but may not consent to the infliction of harm as defined in the Act.
16. The judgment of the Court was delivered by Mahon J. (Sheehan and Edwards JJ. concurring) on the 21st December, 2016 ([2016] IECA 405). The learned judge first addressed the question of whether sections 2 and 3 of the 1997 Act represent the creation of two discrete and separate offences, so that nothing stated in section 2 applies in respect of section 3, and vice versa. He noted that section 3 does not expressly incorporate or repeat the “detailed explanatory provisions” of section 2, and that it does not expressly state that the commission of the offence involves a lack of consent on the part of the victim.
17. The learned judge held that a lack of consent is not an element of the offence under section 3, and in that regard made reference to the explanatory memorandum accompanying the Bill. Notwithstanding this view however, he was satisfied (that) there are certain particular circumstances in which consent can (nevertheless) provide a defence. Reference was made in this regard to section 22 of the 1997 Act and the explanatory memorandum which accompanied the Act, as well as to a range of judicial decisions from this and from other jurisdictions: R v. Donovan [1934] 2 KB 498, R v. Nazif [1987] 1 NZLR 122, R v. Wilson [1997] QB 47 and Attorney General’s Reference (No. 6 of 1980) [1981] QB 715 were mentioned in this regard. Per these decisions, not all of which need be taken as having expressly been endorsed, the circumstances in which the infliction of physical harm may be permissible include medical treatment (and in particular invasive surgery, which invariably requires the use of force and involves the infliction of bodily harm), properly conducted games and sport, dangerous exhibitions, tattooing and piercing, and rough and undisciplined horseplay.
18. The Court of Appeal also referred to the judgments of the High Court ([2008] IEHC 326) and this Court ([2009] IESC 48) in The Minister for Justice, Equality and Law Reform v. Damian Dolny (“Dolny”) , which was a European Arrest Warrant (“EAW”) case and is addressed in more detail at para. 22 et seq., infra . For present purposes it is sufficient to say that Mr. Dolny resisted his surrender on the grounds of lack of correspondence of offences, as part of which he argued that lack of consent is a necessary proof for an offence under section 3 of the 1997 Act. For reasons addressed at greater length in a moment, Peart J. in the High Court rejected this argument, holding that the offences under sections 2 and 3 are “distinct and different offences”, that the section 3 offence is a “freestanding offence” that does not contain a requirement of a lack of consent, that section 2 is not intended to define “assault” for all purposes of the Act, and that that term as used in section 3 should be given its ordinary, dictionary definition instead. This approach was approved by this Court (Denham J., Kearns and Macken JJ. concurring) on appeal.
19. The Court of Appeal went on to refer to the judgment in R v. Brown [1994] 1 AC 212, where Lord Jauncey stated that “the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer.” Ultimately, Mahon J. held as follows on the central issue:
“36. Section 2 of the Act of 1997 specifically creates an offence of assault occurring without the consent of the other . Section 3 contains no such provision. The drafting of these related sections, (to the extent that they both refer to assault), creates confusion as is evident from this and other cases and might have been the subject of more careful drafting. It is nevertheless appropriate that the offences described in ss. 2 and 3, respectively, should be treated as separate and distinct offences, as indeed should the offence described in section 4.” (Emphasis in original)
Having referred to the well-known principles of statutory construction as set out in Howard v. Commissioners of Public Works [1994] 1 I.R. 101, the Court, in dismissing the appeal, concluded as follows:
“38. Proof of an absence of consent is therefore not a necessary ingredient in a s. 3 assault. Consent may however provide a defence to a s. 3 assault charge in limited circumstances such as, for example, legitimate sporting activity and necessary and appropriate medical treatment.
39. An assault causing harm committed in circumstances where the purpose and / or intention of the assault is itself unlawful and / or contrary to public policy can never be rendered lawful on the basis that the victim invited the assault or consented to being assaulted. Consent in those circumstances would not serve to undermine the criminalisation of such conduct under s. 3 of the Act of 1997. In this Court’s view, the ruling of the learned trial judge in this case was correct, as was his charge to the jury to the effect that the very serious attack on Mr. Cooper by the appellant was not excusable on the basis that it had been consented to, if indeed there was any such consent.”
20. In the circumstances, the Court considered it unnecessary to address a ground of appeal related to the trial judge’s alleged error in refusing an application to give an accomplice warning to the jury. The refusal of that application is not a feature of this appeal.
Appeal to this Court
21. Mr Brown sought leave to appeal against the said judgment and order of the Court of Appeal. In recognition of the importance of the issued raised, the DPP did not oppose the application, nor did she dispute the facts as set out by the appellant in his application. By determination dated the 21st July, 2017 ([2017] IESC DET. 83), this Court granted leave to appeal in respect of the following issues of general public importance:
(a) The interpretation of section 2 and section 3 of the 1997 Act.
(b) Whether the concept of consent as provided for in section 2(1)(a)(b) of the 1997 Act is removed from section 3(1) of the same Act.
(c) The interpretation and scope of ‘assault’ as defined in section 2 of the 1997 Act.
(d) Whether section 2 and section 3 of the 1997 Act are separate or distinct offences.
(e) To what extent can the courts dictate public policy contrary to the express intentions of the legislature.
As can readily be appreciated, issues (a)-(d) above are, in essence, subtle variations on a single theme. Accordingly, they have for the most part been treated collectively by the parties as one larger issue concerning the proper construction of sections 2 and 3 of the 1997 Act. I have likewise followed this approach.
Dolny
22. Before moving to the arguments of the parties, it may be useful to give some background information, at this juncture, on the decisions of the High Court and this Court in The Minister for Justice, Equality and Law Reform v. Damian Dolny ([2008] IEHC 326 and [2009] IESC 48). This may help to contextualise the submissions that follow, as issues arise in this appeal (i) as to whether the decision of this Court in Dolny has the status of a binding decision of this Court on the relationship between sections 2 and 3 of the 1997 Act and (ii), if so, whether the appellant can satisfy the high threshold which must be reached before this Court will depart from one of its previous decisions.
23. The surrender of Mr Dolny was sought by a judicial authority in the Republic of Poland so that he could serve a sentence of imprisonment imposed on him there for an offence that can be loosely be described as an assault. The particulars of that offence were set out at paragraphs E and E2 of the European Arrest Warrant which was the subject of the application before the High Court. The factual description set out in those paragraphs was as follows:
“On 20th June 2004 in Krzyz Wlkp., Wielkopolska district, acting together and in collaboration with Mr Rafal Berger and Mr Tomasz Wyrwa, he beat Mr Andrzej Lnka by hitting him on the face and head with his fists, thereby causing injury to his body in the form of a contused wound in the left suborbital area and a contused wound in the area of the right superciliary ridge – thus exposing him to the direct danger of sustaining grievous detriment to his health.”
The relevant legal provision was Article 158 § 1 of the Polish Penal Code, which provided that:
“Any person who takes part in a beating or battery which exposes the wronged person to a direct danger of losing his/her life or which can result in consequences stated in Article 156 § 1 or in Article 157 § 1, is liable to a penalty of up to 3 years’ deprivation of freedom.”
Article 156 § 1 referred to causing grievous bodily harm resulting in serious loss of eyesight, hearing, speech or the ability to procreate, or the infliction of another serious disability, serious incurable or long lasting illness, illness which constitutes a real threat to the person’s health, lasting mental illness, total or considerable disability to work in his/her profession or lasting disfigurement or deformation of the body. Article 157 § 1 contained the offence of impairment of the functioning of a bodily organ or a disturbance of health, other than that defined in Article 156 § 1.
24. Mr Dolny’s sentence was originally suspended for four years. However, during the probationary period following the offence, Mr Dolny perpetrated a further offence – another beating contrary to Article 158 § 1 – following which the suspension was lifted by the Polish courts. A warrant for the arrest of Mr Dolny was made on the 14th March, 2007; this in turn led to the issue of the European Arrest Warrant, dated the 13th August, 2007, and endorsed by the High Court on the 27th February, 2008 following its transmission to the Irish Central Authority. Mr Dolny was arrested, immediately brought before the High Court, and thereafter remanded on bail from time to time pending the hearing of the application for his surrender pursuant to section 16 of the European Arrest Warrant Act 2003 (“the 2003 Act”).
25. Two objections to surrender were raised at the hearing of the application before Peart J.. The first, which is of no relevance to this appeal, was Mr Dolny’s submission that the warrant failed to adequately specify the offence to which the warrant related, or the nature and classification of the offence under the law of the issuing State. This ground of objection was dismissed by the learned judge.
26. It is the second ground of objection which is of interest to us on this appeal. Mr Dolny argued that the offence for which he was convicted on the 14th March, 2004, did not correspond to any offence under Irish law, as required by sections 5 and 38 of the 2003 Act. Counsel for the Minister contended that the offence above-described corresponded to the offence of assault causing harm pursuant to section 3 of the 1997 Act. However, counsel on behalf of Mr Dolny submitted that the references within section 2 to “without lawful excuse”, “intentionally or recklessly” and “without the consent of the person” must also be present for the purposes of the section 3 offence, since they are necessary ingredients of the “assault” referred to in section 2. It was therefore argued that lack of consent was a necessary proof for the section 3 offence, just as it is for section 2. He thus submitted that as there was nothing in the description of the offence in the warrant to indicate a lack of consent, no correspondence was made out. However, this submission did not find favour with Peart J.:
“In my view, this submission is wrong. The offences created respectively by s. 2 and s. 3 of the 1997 Act, are distinct and different offences. An assault under s. 2 requires for its commission that the person assaulted did not consent to being assaulted, as well as that the assault be inflicted without lawful excuse and intentionally or recklessly. The section is clear in that regard. But the separate and distinct offence of ‘assault causing harm’ in s. 3, contains no such requirements. It is a separate offence, and it is not the case that s. 2 is intended to define the concept of ‘assault’ for all purposes of the Act. There is no definition of assault contained in s. 1 of the 1997 Act, or elsewhere therein.
Section 3 provides for a freestanding offence of ‘assault causing harm’, as opposed to a simple assault. In order to be guilty of this offence, a person must have carried out an assault and must have caused ‘harm’ as defined in section 1 of the 1997 Act. In such an offence, it is not part of the offence that it occurs without the consent of the victim. That is clear from the plain meaning of the words used in the section. In section 3, the word ‘assault’ is not used as a term of art by reference to the provisions of s. 2, or by reference to any statutory definition of that word. The Concise Oxford Dictionary definition of ‘assault’ is ‘a violent physical or verbal attack’. That is the meaning to be given to the word ‘assault’ for the purpose of the section 3 offence.
I note in passing that the offence of ‘assault causing serious harm’ under s. 4 of the 1997 Act, again includes a mental element, namely, that the offence occurs where ‘a person intentionally or recklessly causes serious harm to another’.
The requirement that the assault be without the consent of the victim, or that there be any mental element, is distinctly absent from the express provisions of the s. 3 offence of assault causing harm. In my view, the facts as outlined in the warrant and which resulted in the conviction of the respondent in Poland, come within the words used in s. 3 of the 1997 Act, in order to create that offence, and in these circumstances, correspondence in accordance with s. 5 of the Act …”
Being satisfied that both points of objection must fail, Peart J. made an order pursuant to section 16 of the European Arrest Warrant Act 2003 directing that Mr Dolny be surrendered to such persons duly authorised to receive him on behalf of the Republic of Poland.
27. Mr Dolny appealed that decision to this Court. The judgment of the Court was delivered by Denham J., as she then was (Kearns and Macken JJ. concurring). The learned judge expressly affirmed the approach of the High Court to sections 2 and 3. Short of so doing, the judgment does not contain any further engagement with the appellant’s submission that lack of consent is an element of the offence under section 3. The argument concerning the lack of correspondence was addressed principally through the prism of whether there was sufficiency of the particulars set out on the warrant. So viewed, the question was whether the acts alleged were such that they would constitute an offence if committed in this jurisdiction. Based on the natural and ordinary meaning of the words used, Denham J. was satisfied that the acts alleged – beating the named person by hitting him on the face and head with fists, thereby causing injury to his body – described acts which would constitute an offence if committed in this jurisdiction. She therefore affirmed the judgment and order of the High Court and dismissed the appeal.
28. The precise status of the judgments in Dolny is addressed below (para. 46 et seq: infra ) Before moving on to the operative part of this judgment, it is necessary first to set out the arguments made by the parties.
Submissions
Submissions of the Appellant
29. As was the case in the courts below, the appellant contends that there is no distinguishing “assault” for the purposes of section 2 from “assault” for the purposes of section 3. The latter builds on the former and therefore the criteria under section 2 must be satisfied in order for the crime of “assault causing harm” to be satisfied. Lack of consent is unquestionably an express element of section 2; by using the term “assault” in section 3, that term must be read as defined in the same legislation, that is, in section 2. Thus absence of consent is an essential element of the offence of “assault causing harm” under section 3. As a result, the learned trial judge and the Court of Appeal erred in law in their interpretation of those sections and the trial judge erred his charge to jury when he stated that consent is not a defence under section 3.
30. Mr Brown suggests that the Court of Appeal has taken a very simplistic view of the relevant sections and has adopted an interpretation of the section which is unnecessary when the wording of the section has been legally defined by the legislator. He points to the fact that the word “assault” is not used in section 4 of the 1997 Act and says that it is a mistake to describe the offence created by that section as “an assault type offence” – section 4 is manifestly a separate and distinct offence. Moreover, the appellant submits that section 22 of the 1997 Act has no relevance to the within case and the issues before the court, although it must be said that there was much discussion on that section at the hearing of the appeal, particularly in the context of the tragic death of mixed martial artist Joao Carvalho in a contest at the National Boxing Stadium in April, 2016. Mr Brown says that he is not relying on a common law defence or on a statutory defence such as that contained in section 18 of the Act; instead, he relies on the plain meaning of the phrase “without the consent of the other” and the legal meaning of “assault” as defined in section 2, in circumstances where the burden is on the prosecution to prove every element of the offence. He also submits that the judgment of the Court of Appeal leaves utterly uncertain the requisite intention to establish an offence under section 3. He submits that under the approach taken by the courts below, the intention specified for section 2 assault is presumably likewise not imported into section 3.
31. The appellant refers to the Law Reform Commission’s 1994 Report on Non-Fatal Offences Against the Person (LRC 45-1994), where the Commission proposed, inter alia , a scheme of assault and causing injury under which a person could consent to being touched or hurt (para. 9.130). He also refers to the drafting of sections 2 and 3 of the 1997 Act, stating that the legislator chose the word “assault” for a reason when drafting section 3. Mr Brown cites the case of Mason v. Leavy [1952] I.R. 40, where it was stated by Murnaghan J. that “[w]here a statute … defines its own terms and makes what has been called its own dictionary, a Court should not depart from the definitions given by the statute”. To the same effect, Bennion on Statutory Interpretation (6th Ed., LexisNexis, London, 2013) states that “[i]t is presumed that a word or phrase is not to be taken as having different meanings within the same instrument unless this fact is made clear.” The appellant says that the sections are clear and unambiguous, and that the reference in both to “assault” is a deliberate, conscious and logical step by the legislator. Since the adoption of the 1997 Act, the word “assault” is by definition a legal term with an acquired legal meaning as provided for in section 2. The authors McAuley and McCutcheon reach a similar conclusion at p. 532 of their book Criminal Liability (2000, Round Hall), stating that “Section 2 expressly makes lack of consent part of the actus reus of assault and this definition must be carried into section 3”.
32. Mr Brown submits that the approach adopted by the trial judge and the Court of Appeal is overly deferential to the legislator, subjectively conservative, and fails to strictly construe a penal statute. It is said that this interpretive technique runs counter to any existing rule of construction concerning internal consistency in a document such as this. The appellants submits that the purposive approach adopted by the courts below is illogical and appears to have been adopted in support of the courts’ view on what is or is not acceptable as a matter of public policy, as opposed to correctly interpreting the legislation according to well-established principles of interpretation.
33. Furthermore, he says that sections 2, 3 and 4 self-evidently follow a schematic approach to injuries perpetrated by violence, and that such scheme provides considerable assistance in respect of the wording used and the appropriate meaning to apply to each section. Sections 2-4 reflect a general gradation in the level of injury inflicted. It is submitted that it is evident from the intentional omission of the word “assault” from section 4 that it is solely for an act causing serious harm that an absence of consent is removed as an element of the actus reus. In other words, it is clear from the scheme of the Act that it is only in section 4 that consent is irrelevant. This was a deliberate choice by the legislature. It is for the legislature to set the bar as to what may or may not lawfully be consented to, and it is not for this Court to come to another conclusion if it dislikes where the line has been drawn.
34. The appellant points out that the Oireachtas did not qualify or confine the meaning of assault to section 2 through the use of any legislative “restricting phrases” such as “for the purposes of this section” or “in this section” (see Liston v. G. O’C and A. O’C [1996] 1 I.R. 501 and In re James Application for Judicial Review [2005] NIQB 38); thus, section 3 must be read by reference to section 2. This is said also to be in accordance with section 20 of the Interpretation Act 2005.
35. Mr Brown also refers to several well-known canons of construction. An Act of parliament should be construed according to the intention expressed in the Act itself; if the words used are precise and unambiguous, it is necessary to do no more than give them their ordinary and natural meaning ( Howard v. Commissioner of Public Works [1994] 1 I.R. 101). A word in a statute must be given its natural meaning in the context in which it occurs ( Dunnes Stores v. Director of Consumer Affairs [2005] IEHC 242. Reference has also been made, to similar effect, to the cases of McGrath v. McDermott [1988] I.R. 258 and Inspector of Taxes v. Kiernan [1981 I.R. 117. Moreover, per People (AG) v. Kennedy [1946] I.R. 517, “the same words used in different parts of a statute … should be given the same meaning”; this decision was followed in Meagher v. Minister for Social Protection [2015] IESC 4. Various English authorities in support of this rule have also been cited. Further principles are referred to also: judges must be careful when interpreting legislation not to do so in a way that they cast themselves in the role of legislators ( L O’S v. Minister for Health and Children [2017] IECA 7), and where the legislature enacts through clear and unequivocal language something that is capable of only one meaning, it must be given that meaning however harsh or contrary to common sense the result may be ( DPP v. Corcoran [1995] 2 I.R. 259).
36. Similarly, the appellant refers to the requirement to interpret penal statutes strictly (see. e.g. DPP v. Somers [1999] 1 I.R. 115 and DPP v. Moorehouse [2006] 1 IR 421). Applying these decisions, “assault” must be given its legal meaning in the context in which it occurs, that is, the specified legal definition provided by the Oireachtas in section 2. He says that the reasoning of the trial judge ( i.e . that if it was intended to define “assault” for the purposes of the statute as a whole it would have been defined in the ‘interpretation’ section of the statute) was simplistic and overly deferential to the legislator. Rather he says that the sections are inextricably linked by the word “assault” which is defined in section 2 and does not therefore need to be repeated.
37. Mr Brown draws a comparison with the offences of “burglary” and “aggravated burglary”, as set out in sections 12(1) and 13(1), respectively, of the Criminal Justice (Theft and Fraud Offences) Act 2001. There the legislature did not set out the definition of “burglary” again in section 13(1), but the word must be taken to have the same meaning for each section. He says that the constituent elements of burglary as defined in section 12 must be present in order for the offence under section 13 to be made out. It is submitted that sections 2 and 3 of the 1997 Act were intended to be read in a similar manner.
38. The appellant also adverts to the fact that he invited the Court of Appeal to have regard to the executive expressions of intent to the Oireachtas at the introduction of the Bill. This offer was declined but the appellant maintains that such parliamentary debate is instructive in respect of what is and what is not contrary to public policy for the purpose of an assault causing harm and whether the defence of consent applies. Mr Brown submits that as the Court of Appeal did not seek submissions on the issue of parliamentary debate, nor did it direct queries to either side on the issue of public policy, that court effectively reserved onto itself an inconsistent, indeed diametrically opposite, view of public policy to that stated by the then Minister for Justice, Nora Owen T.D., in her address to the Dail on the relevant sections of the 1997 Act (see para. 136, infra ). Thus he submits that though he is reluctant to ask this court to consider the use of parliamentary debate in the interpretation of a statute, the same is necessary due to the view of public policy taken by the courts below. By deriving a view of public policy based on its own view of same, it is submitted that the Court of Appeal is straying close to legislating. Thus although Mr. Brown submits in the first instance that it should be unnecessary to consider public policy in interpreting the Act, as the Act is clear, but should any ambiguity remain then it ought to be permissible for the Court to resolve same by reference to parliamentary debate. In so submitting he does not seek to have the Court revisit the decision in Crilly v. Farrington [2001] 3 IR 251, in which it was stated that great caution must be exercised in seeking to use parliamentary debates as an interpretive aid; rather he submits that where the meaning of a statute remains utterly ambiguous, it would be preferable for the judiciary to have regard to the pronouncement of policy in the introduction of legislation by the Minister rather than taking it upon themselves to presume upon a policy which contradicts that expressed by the Minister.
39. Finally, Mr Brown submits that the decision in Dolny should be revisited. He says that the context of that decision was very different from the within case: it was an EAW case; sections 2 and 3 were considered under the doctrine of equivalence while the High Court was exercising civil jurisdiction; there was no detailed discussion of the competing techniques of interpretation or canons of construction; and the respondent was not on trial and facing the threat of a criminal conviction carrying a five-year prison sentence. The trial judge in the within case accepted that Dolny was not binding but nonetheless found it highly persuasive. The appellant submits that Dolny was decided in error having regard to the rules of statutory interpretation and the authorities referred to above and the absence of any restrictive or qualifying phrases in sections 2 and 3 of the 1997 Act. In this regard Mr Brown also refers to an academic paper by Dr. Catherine O’Sullivan, who criticised the judgments in Dolny on a number of grounds (O’Sullivan, “The Importance of Correct Statutory Interpretation Technique: the case of Minister for Justice, Equality and Law Reform v Dolny ” 45(1) The Irish Jurist 146-164 (2010)).
Submissions of the Respondent
40. In her written submissions, the DPP relies on the decisions of the High Court and Supreme Court in Dolny , adopting the reasoning set out therein. She submits that although Dolny arose in a different context, this does not detract from or diminish its status as a binding decision of this Court on the relationship between sections 2 and 3 of the 1997 Act. That relationship was directly in issue in Dolny and the Court’s view on same must be treated as the ratio of that decision. The DPP submits that although it is well-established that this Court is not rigidly bound by its previous decisions (see, e.g. Attorney General v. Ryan’s Car Hire Ltd [1965] I.R. 642), it is equally well-established that the circumstances in which it will depart from a previous decision are very exceptional (see, e.g. D.H. v. Groarke and the Director of Public Prosecutions [2002] 3 IR 522). Per D.H., the decision in question must be “clearly wrong”, or there must be “compelling reasons” for treating it as one of those exceptional cases in which the Court will depart from its previous decision. This is a high threshold, and merely establishing that a different view could be formed on the question is not enough.
41. The respondent’s view in relation to Dolny is subject to the caveat that she does not believe that the decision itself is authority for the proposition that she is not required to prove intent or recklessness in relation to the first part of the offence under section 3 of the 1997 Act (para. 121 infra ). That case concerned the question of consent, not mens rea . She submits that an “assault” for the purposes of section 3 can be committed intentionally or recklessly ( R v. Vanna [1976] QB 421, as cited with approval in People (DPP) v. Murray [1977] I.R. 360).
42. The DPP also makes submissions in relation to Crilly v. Farrington [2001] 3 IR 251. She refers to the judgment of Murray J., as he then was, where at pp. 294-295 the learned judge referred to the fact that the Constitution does not assign or recognise any special role for the initiators or promoters of a bill. She further notes that this Court has previously interpreted sections 2 and 3 of the 1997 Act without embarking on an analysis of the parliamentary contributions concerning these provisions. The respondent refers also to the presumption against radical amendments, submitting that if Mr. Brown’s interpretation of the Act is correct then this would represent a radical change to the law concerning consent to the infliction of injury upon oneself; if the same had been intended, it would have been achieved through language of greater clarity and certainty.
43. Moreover, the DPP submits that even if this Court is to adopt the appellant’s construction of the sections, the presence or absence of consent alone is not dispositive of the legality of the appellant’s conduct. She points out that in order for an offence under section 2 to be made out, there must be (i) an absence of “lawful excuse”; (ii) intention/recklessness; and (iii) an absence of consent. Absence of lawful excuse and absence of consent are separate, independent ingredients. Thus she says that consent cannot, of itself, constitute lawful excuse, thereby validating what would otherwise be assault. Here, other than the pursuit of an agreement to circumvent prison management, no “excuse” was contended for in evidence. Such excuse would demonstrably not be lawful. The 1997 Act does not define the phrase “lawful excuse”; it is submitted that it falls to the courts to determine whether, in a given instance, the facts disclose an excuse that is lawful. In effect, the crux of this argument was that one can only consent to conduct that is already lawful.
44. The respondent goes on to refer to a number of cases in which the courts have held, on the basis of public policy, that the consent is immaterial in respect of the infliction of bodily harm (see, for example, Attorney General’s Reference (No.6 of 1980) [1981] 3 WLR. 125; [1981] QB 715, regarding fighting in the street; R v. Coney [1882] 8 QBD 534, concerning prize-fighting; R v. Donovan [1934] 2 KB 498, in respect of caning for the purposes of sexual gratification; and R v. Brown [1994] 1 AC 212, regarding certain consensual sadomasochistic homosexual acts). The decision in Brown ultimately ended up before the European Court of Human Rights, where it was upheld ( Laskey, Jaggard and Brown v. United Kingdom , App. Nos. 21627/93, 21628/93, and 21974/93, judgment of the 19th February, 1997). The DPP therefore submits that assault, as defined, preserves a public policy remit for the courts, which they have historically exercised on a case-by-case basis to determine which side of the dividing line matters such as different contact sports, medical treatments, tattooing/piercing etc. lie on.
45. Finally, the respondent submits that if the appellant is correct, the “defence” of consent exists for any assault not otherwise penalised under the 1997 Act which falls short of causing serious harm under section 4. Thus all of the old common law would be swept away and people would be free to lawfully “settle” issues on the street, provided that they did not cause serious harm, as statutorily defined. It is moreover submitted that the phrase “without lawful excuse” in section 2(1) would be a redundant term, somehow annulled or subsumed into “consent”, if the appellant’s interpretation is favoured. Thus the DPP invites the Court to uphold the decision in Dolny, but, if of the view that such decision was wrongly decided, it is submitted that the courts retain a public policy remit which ensures that consent does not become a device to render legal conduct that is demonstrably contrary to public policy.
Decision
The starting point – Dolny:
46. It is said by the DPP that Dolny is a binding decision of this Court on the proper interpretation of sections 2 and 3 of the 1997 Act. She thus submits that, in addition to any other barriers facing the appellant, he must also navigate the test according to which this Court will depart from its own established jurisprudence.
47. It is well-established that, although not bound per se by the principle of stare decisis , this Court will refuse to follow one of its previous decisions only if satisfied that it is “clearly wrong” (see Attorney General v. Ryan’s Car Hire Ltd [1965] I.R. 642), and for a more recent consideration of this review jurisdiction The People (DPP) v. J.C. [2017] 1I.R. 417 at p. 664 et seq ). Perhaps the classic statement of the balance to be struck is that of Henchy J. in Mogul of Ireland v. Tipperary (North Riding) County Council [1976] 1 I.R. 260 at pp. 272-273:
“A decision of the full Supreme Court (be it the pre-1961 or the post-1961 Court), given in a fully-argued case and on a consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion. Of course, if possible, error should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability, and predictability should yield to the demands of justice. However, a balance has to be struck between rigidity and vacillation, and to achieve that balance the later Court must, at the least, be clearly of opinion that the earlier decision was erroneous. In Attorney General v. Ryan’s Car Hire Ltd . the judgment of the Court gave examples of what it called exceptional cases, the decisions in which might be overruled if a later Court thought them to be clearly wrong. While it was made clear that the examples given were not intended to close the category of exceptional cases, it is implicit from the use in that judgment of expressions such as ‘convinced’ and ‘for compelling reasons’ and ‘clearly of opinion that the earlier decision was erroneous’ that the mere fact that a later Court, particularly a majority of the members of a later Court, might prefer a different conclusion is not in itself sufficient to justify overruling the earlier decision. Even if the later Court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases the maxim communis error facit jus applies …” (Emphasis in original)
48. Though it is true that the Court will be more reluctant to depart from a previous decision where the earlier decision was that of a court of five or, even more exceptionally, seven members, it is clear that even where the earlier decision was that of a court of three, as in Dolny , it should not be over ruled merely because a later Court inclines to a different conclusion (per Keane C.J. in D.H. v. Judge Groarke and Ors [2002] 3 IR 522 (” Groarke “) at p. 530). In Groarke , the Chief Justice affirmed that the Court will not lightly depart from its previous decisions:
“I am, accordingly, satisfied that the applicant in the present case has fallen well short of the high threshold which must be reached before the court departs from one of its previous decisions. No doubt, it would be possible to take a different view from that arrived at by the court in that case, but it most certainly cannot be said that the decision was ‘clearly wrong’ or that there are ‘compelling reasons’ for treating it as one of those exceptional cases in which the court will depart from the generally applicable principle of stare decisis .”
Needless to say, it is the DPP’s view that Mr Brown cannot satisfy said threshold in respect of the Dolny decision.
49. One of the first questions that arises, therefore, is whether it must be shown by the appellant that Dolny is “clearly wrong”, or alternatively, perhaps, whether he can establish that it should be confined to the EAW/extradition context, or that the passages in relation to sections 2 and 3 were obiter only and therefore not binding in the usual manner. If that is so, this Court may begin its consideration of the relevant statutory provisions afresh. Though there may be some other limited circumstances in which a judgment of this Court is not afforded the usual precedential weight, Mr Brown has not argued, for example, that the decision in Dolny was made per incuriam .
50. First, it must be recalled that the trial judge in the within case did not consider Dolny to be binding on him, although he considered it highly persuasive and not capable of being disregarded lightly. The reasons for this view were that (i) the relevant dicta of Peart J. did not form part of the ratio of the decision and (ii) that case could be distinguished as it was an EAW case where the burden of proof was on the balance of probabilities. To these factors the appellant adds the fact that the case did not include any detailed discussion on the relevant canons of construction available when interpreting a criminal statute. It must also be noted that, although Mahon J. cited and relied upon Dolny in his judgment for the Court of Appeal in this case, there is no indication therein that he considered it to be binding upon him; if it had been, that would have been the end of the matter so far as that court’s analysis was concerned.
51. It bears emphasising the relevant issue in Dolny was that of “correspondence” for the purposes of a European Arrest Warrant. Particular rules have developed for the purposes of establishing correspondence pursuant to section 5 of the 2003 Act. In particular, it is clear from decided judgments that the warrant need not set out the totality of matters that would require to be proved by the DPP on a prosecution in this jurisdiction. For example, in Minister for Justice, Equality and Law Reform v. Hahui [2008] IEHC 259, the respondent’s surrender was sought in relation to offences allegedly equivalent to robbery contrary to section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and assault contrary to section 2 of the 1997 Act (in respect of which lack of consent is undoubtedly a requirement). Nothing in the warrant indicated the element of dishonesty required to make out a robbery charge in this jurisdiction, nor did it allege a lack of consent for the purposes of the assault charge. Nonetheless, Peart J. was satisfied that correspondence was made out in respect of both charges:
“Without reading words into the contents of the offence as stated in the warrant, this Court is nevertheless entitled to adopt a realistic approach to the establishment of correspondence and look at all the circumstances of the offence has contained in the warrant. It is quite clear that the respondent was convicted on facts which include the striking of the victim with an implement referred to as a contusive tool, knocking him to the ground, and taking from him a leather handbag containing a large amount of money. On that set of facts, it is fanciful to suggest that this may have occurred with the consent of the victim. These circumstances themselves, clear from the warrant, demonstrate a lack of consent and the dishonest intent of the respondent. In my view there is no room for argument that the absence of any reference to dishonesty or lack of consent is fatal to the issue of correspondence, given the circumstances of the crime. There have been cases before this Court where on the facts of the warrant, the possibility of consent and/or lack of dishonesty, was open. But this is not such a case. In my view the position is clear from the contents of the warrant. In these circumstances, I am satisfied that the offence corresponds to an offence or offences in this jurisdiction of the purposes of section 5 of the Act.”
He therefore ordered the surrender of the respondent to Romania. The learned judge delivered judgment in that case several months before his judgment in Dolny .
52. A similar matter arose in Minister for Justice, Equality and Law Reform v. Zukauskas [2009] IEHC 341, again before Peart J. Here the respondent’s surrender was sought for intentionally punching a victim at least twice in the face, resulting in bruising and a broken jaw. The offence was alleged to correspond with the offences under sections 2 and 3 of the 1997 Act. Again the warrant was silent as to lack of consent. Peart J. stated as follows:
“It is clear that it is appropriate that the warrant should not be parsed and analysed as if it was an indictment, and that a common-sense approach should be adopted in the search for the reasonable interpretation referred to by Geoghegan J. in Myles v. Sreenan [1999] 4 IR 294. Such an approach forces the conclusion that the facts as disclosed in the warrant in the present case and as set forth in detail above show correspondence with an offence of assault and an offence causing harm in this State by reference to the ordinary or popular meaning to be given to words such as ‘intentionally punched at least twice … at the face and once at the head causing him to suffer bruises of soft tissue at the face and broken left mandibular ramus’, and ‘he intentionally injured the victim’.
Matters such as the question of the victim not having consented to the infliction of these injuries, or that there was no lawful excuse, may well be matters which the prosecution may prove in some way, or may be inferred from the facts, or may be dealt with by way of any defence put forward by the respondent at his trial, but the mere fact that it is not covered by a specific statement in a European arrest warrant that there was no consent cannot be a sufficient impediment to a finding of correspondence when the facts as known from the warrant are such as appear in the present case.”
53. Thus on this approach correspondence does not necessarily require the warrant to specify every matter that would require to be proved by the prosecution if the accused were on trial for the corresponding offence in this jurisdiction. This view on the correspondence issue, was accepted only in a broad sense by Fennelly J. in Attorney General v. Dyer [2004] IESC 1, whose overall approach it must be said was more strict than that of Peart J. in Zukauskas . Nonetheless, this less formalistic approach seems to have found general favour in the EAW context (see also, for example, Minister for Justice, Equality and Law Reform v. Sas [2010] IESC 16).
54. On this approach to correspondence, it can be seen that it was not truly necessary for the High Court to settle the point raised in Dolny: whether or not the warrant recited a lack of consent was simply immaterial to the making of the surrender order. Accordingly, despite the clarity of the views expressed by Peart J. in his judgment in that case, there is certainly a strong argument to be made that they can be considered obiter. The subsequent endorsement of that decision by the Supreme Court adds nothing to this point. So considered this court can thus view the position afresh and do so based on the submissions of the parties. The conclusion is therefore: Dolny is not binding on this or on any court: as such it does not call for any assessment via the principle of stare decisis.
Background: the pre-1997 law on assault.
55. Before addressing the issue of the correct interpretation of sections 2 and 3 of the 1997 Act, it may be informative to set out what the law was in respect of offences against the person prior to the passing of that piece of legislation, and how and why a change came about. It is true that an issue arises in this case as to whether this legislative history has any role to play in the proper construction of the new sections, or whether instead the 1997 Act effectively washes away all that came before (save where expressly stated or obviously intended by the Act or where interpretative principles positively demand); even if the latter be correct as I firmly believe, the historical background is always available and sometimes informative in an exercise such as this. That being so, a short journey through the old statutory and common law offences may help at least to contextualise the present provisions. A fuller history of the legal position in Ireland up to 1994 is contained in Chapter 1 of the Law Reform Commission’s 1994 Report on Non-Fatal Offences Against the Person (LRC 45-1994). The following paragraphs do not purport to be an exhaustive account of same but rather provide a brief explanation of the situation as it was prior to the enactment of the 1997 Act.
56. The law on assault prior to 1997 was governed by a mixture of the common law and the Offences Against the Person Act 1861 (“the 1861 Act”). An overwhelming majority of the provisions of the 1861 Act have by now been repealed, though a handful remain live on the statute book. Writing in the Criminal Law Review in 1991, when the Act remained substantially in force in both Ireland and England, Professor J.C. Smith wrote that:
“[The 1861] Act is a rag-bag of offences brought together from a wide variety of sources with no attempt, as the draftsman frankly acknowledged, to introduce consistency as to substance or as to form. It may have been a great step forward in 1861 but its limitations were known then and it is deplorable that so much of it remains the law.” (Prof. J.C. Smith, ” Case Commentary on R. v Parmenter (Philip Mark) (No.1) [1991] 2 W.L.R. 408″, Crim. L.R. 1991, Jan, 41-43 at p. 43)
Looking at the overall scheme of the Act, it is easy to see why it was described in that way. It contained provisions relating to homicide offences (sections 1-10), attempts to murder (sections 11-15), a specific offence of letters threatening to murder (section 16), acts causing or tending to cause danger to life or bodily harm (sections 17-35), assaults (sections 36-47), rape, abduction and defilement of women (sections 48-55), and further offences such as child-stealing, bigamy, attempts to procure abortion, concealing the birth of a child and “unnatural offences” (e.g. bigamy and sodomy). A rag-bag, indeed.
57. It is immediately apparent that most of those sections could have no relevance to the within proceedings. Even within the sections headed “Acts causing or tending to cause Danger to Life or Bodily Harm” and “Assaults”, many of the sections therein are of no apparent significance for present purposes. In the former category, many of the offences were tied to the use of a specific substance (e.g. chloroform, poison or gunpowder) or otherwise covered a very narrow and definite form of conduct (e.g. not providing servants or apprentices with food, clothing or lodging, setting spring guns with intent to inflict grievous bodily harm on a trespasser, or placing wood or stone on railway lines). Even within the part on “assaults”, again a number of the sections were rather specialised in that they created specific assault offences in respect of certain defined classes of complainants; thus there were specific offences of assaulting a clergyman, or magistrate, or peace officer, or seaman. Section 39 governed assaults with intent to obstruct the sale of grain, flour, meal, malt, or potatoes, or their free passage.
58. What are of interest to us are the more general assault or assault-type provisions which may loosely be considered as the precursors to sections 2 to 4 of the 1997 Act. The relevant provisions are sections 18, 20, 42 and 47 of the 1861 Act. Sections 42 and 47 contained the penalties for assault and battery both as summary and indictable offences. They provided as follows:
“Persons committing any common assault or battery may be imprisoned or compelled by two magistrates to pay fine and costs not exceeding 5l.
42. Where any person shall unlawfully assault or beat any other person, two justices of the peace, upon complaint by or on behalf of the party aggrieved, may hear and determine such offence, and the offender shall, upon conviction thereof before them, at the discretion of the justices, either be committed to the common gaol or house of correction, there to be imprisoned, with or without hard labour, for any term not exceeding two months, or else shall forfeit and pay such fine as shall appear to them to be meet, not exceeding, together with costs (if ordered), the sum of five pounds; and if such fine as shall be so awarded, together with the costs (if ordered), shall not be paid, either immediately after the conviction or within such period as the said justices shall at the time of the conviction appoint, they may commit the offender to the common gaol or house of correction, there to be imprisoned, with or without hard labour, for any term not exceeding two months, unless such fine and costs be sooner paid.”
“Assault occasioning bodily harm. Common assault.
47. Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable . . . to be kept in penal servitude … ; and whosoever shall be convicted upon an indictment for a common assault shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding one year, with or without hard labour.”
(See para. 63 infra for the updated sanctions under both sections)
59. However, the above sections could not be read in isolation, for the offences of assault and battery were defined by the common law. Broadly speaking, an assault was committed where the victim apprehended the infliction of force; a battery was where there was in fact a direct application of force, or some times a delayed or indirect action may also suffice ( R. v. Clarence (1888) 22 QBD 23 at 42). The mental element for each was intention or recklessness. The common law offences of assault and battery were abolished by section 28 of the 1997 Act. Even before that time, however, there could be a certain looseness of language on occasions, with the old legislation and case law often using the term “common assault” when manifestly it was a battery at issue, or indeed using “assault” to cover both offences. Sections 42 and 47 together envisaged common assault being triable either summarily or on indictment.
60. Moreover, as can be seen above, section 47 additionally created the offence of “assault occasioning actual bodily harm”. The section 47 offence was a “compound” offence requiring proof of (i) common assault, and (ii) the aggravating element of actual bodily harm. As appears from section 47, this was an indictable-only offence. Though there was some debate over whether it was necessary for the accused to have foreseen the harm caused, the House of Lords ultimately concluded in R v. Savage; R v. Parmenter [1992] 1 AC 699, [1991] 3 WLR 914 that the prosecution is not obliged to prove that the accused intended to cause some actual bodily harm or was reckless as to whether such harm would be caused; the harm element, therefore, is one of strict liability. The point was never definitively settled in Irish law.
61. Sections 18 and 20 contained more serious “assault-like” offences involving the infliction of grievous bodily harm, though it is important to note that the word “assault” appears nowhere in the sections. Those sections provided as follows:
“Shooting or attempting to shoot, or wounding, with intent to do grievous bodily harm, or to resist apprehension.
18. Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, or shoot at any person, or, by drawing a trigger or in any other manner attempt to discharge any kind of loaded arms at any person, with intent, in any of the cases aforesaid, to maim, disfigure, or disable any person, or to do some other grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable … to be kept in penal servitude for life …”
“Inflicting bodily injury, with or without weapon.
20. Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour, and being convicted thereof shall be liable … to be kept in penal servitude …”
62. As can be seen, section 18 created some twenty-four separate offences, forbidding as it did any and every combination of one of four acts with any one of six intentions. Each was punishable by life imprisonment. Section 18 never required proof of common assault in order to prove the offence. Though it was originally believed that the section 20 offence did require proof of common assault, the House of Lords settled on the opposite view in R v. Wilson [1984] AC 242. Unlike section 47, both offences required subjective foresight by the accused of harm being caused. In respect of the section 20 offence, the prosecution was required to prove either that the accused intended or that he actually foresaw that his act might cause physical harm to some person, albeit it was only harm of a minor character ( R v. Mowatt [1968] 1 QB 421). However, for a conviction under section 18, it had to be proved that the accused had, at a minimum, virtually certain foresight of causing grievous bodily harm. As with ss. 42 and 47, both ss. 18 and 20 were likewise repealed by the 1997 Act.
63. The resulting contours of assault, by virtue of both the common law and the 1861 Act (as amended) were therefore:-
(A) (i) Assault and Battery: frequently conjoined as common assault (ss. 42 & 47);
(ii) On summary prosecution not exceeding six months imprisonment and/or a fine not exceeding £50, (see s.11 Courts of Justice Act, 1951) .
On indictment: not exceeding one year with or without hard labour.
(B) (i) Assault causing actual bodily harm (s.47):
(ii) On indictment not exceeding 5 years (See s.2 of the Penal Servitude Act 1891 etc)
(C) (i) Assault causing grievous bodily harm by shooting, wounding or otherwise (ss. 18 and 20):
(ii) Up to penal servitude for life.
Background: The pre-1997 law on consent to harm.
64. Just as the provisions setting out the main offences under the 1861 Act gave rise to much debate in the case law, so too was the law in relation to consent to bodily injury far from straightforward. At the lowest level of offending, the position ultimately became relatively simple, although at the beginning of our analysis, not without some linguistic uncertainty. Consent, it was said, was a defence to a charge of assault or battery (“common assault”). However statements like this one by Hawkins J. in R v. Coney (1882) 8 QBD 534 (” Coney “), might be thought as elevating consent to a much greater degree: he said : “[a]s a general proposition it is undoubtedly true that there can be no assault unless the act charged as such be done without the consent of the person alleged to be assaulted, for want of consent is an essential element in every assault, and that which is done by consent is no assault at all” (p. 553). If intended as a starting point for an analysis to follow it is unobjectionable: in fact it bears remarkable similarity to that of Lord Lane in the Attorney General’s Reference (No. 6 of 1980) [1981] QB 717 if otherwise however such could only be accepted at the of generality, and even then requires some considerable adjustment.
65. Subject to some important exceptions discussed below, it was no defence to a charge of assault causing actual bodily harm, or indeed the more serious offence involving the infliction of grievous bodily harm, to say that the victim had consented. Charleton, McDermott and Bolger, in their work, Criminal Law (Tottel Publishing, Dublin, 1999), explain at para. 9.16 that the reason for this was one of public policy: “it is in the interest of society at large that an individual is not always free to consent to certain harmful acts.” There are numerous illustrations of this in the case law. For example, in Coney , Cave J. referred to the fact that there was “abundant authority for saying that no consent can render that innocent which is in fact dangerous”, a reference to bodily harm (p. 547).
66. R v. Coney was a case in which the defendants had been charged with two counts of assault (Mathew J. and Ors as “aiding and abetting”: Cave J. and Ors as “assault”: both offences were of “common assault”) through their attendance at a prize fight. As part of their defence they argued that there had been no assault, as the prize fighters had consented to the context and to any injuries they may have sustained. The defence was rejected by the Court. Whilst all judges held that prize fighting was illegal, that those who attended were aiding and abetting the event and were therefore guilty of assault, and that consent as between the contestants was no defence, the rationale for this outcome differed greatly in each of the judgments delivered. It is therefore a rather thankless task to try and extract some coherent basis to explain the rule or more significantly the admitted exceptions to it.
67. Many of the eleven judges, at least five in number, relied on a rather narrow policy objection which today, given the array of public order offences on the statute books and a number of vigilant enforcing agencies, carries far less force than previously: in particular conduct giving rise to or tending to cause a breach of the peace featured heavily and routinely was relied upon as a ground for rejecting the consent argument.
68. The basis advanced by those judges for the latter view point had a context and ran thus: In the early part of the nineteenth century prize fighting was unlawful despite consent. This declaration of illegality, however (though) frequently repeated, often reiterated and habitually sanctioned, saw no fall off in its popularity: so enforcement at a secondary level became the norm. As such conduct was seen as giving rise to or tending to cause a breach of the peace, it was criminal per se . Those who attended, even purely as curious bystanders, were guilty of unlawful conduct even where the perpetrators willingly consented. It was via this route that Coney , Gilliam and Tully were charged with assault. Those directly involved, Burke and Mitchell, fought each other in a ring, surrounded by ropes on private land before a crowd of upwards of one hundred people: the participants were also charged. As was quite common at the time other charges of a public order nature, such as riot, unlawful assembly and holding a disorderly exhibition were also levelled, but all, save those of assault were ultimately dropped before trial. So conduct involving a breach of the peace played a key role in the judgments of those that I have mentioned. The remainder of the judges relied variously on the degree of force and injury that might be caused: the dangerous nature of the proceedings and the injurious effect of the activity from a public perspective. From an overall viewpoint however the reasoning, it must be said, was as diverse and as multiple as were the number of judges who deliberated in the case.
69. Be that as it may whilst the judgment of Cave J. has at least in some quarters been subsequently treated as representative, it is however, just as difficult to discern a principle of law basis for his decision, as it is with the others. The most relevant passage appears to be the following:
“The true view is, I think, that a blow struck in anger, or which is likely or intended to do corporal hurt, is an assault, where that a blow struck in sport, and not likely, nor intended to cause bodily harm is not an assault, and that, an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial.”. (p. 539)
70. Another of the judges, Stephen J. explained the law in this way:
“The principle as to consent seems to me to be this: When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults.” (p. 549)
Even then in a later passage the learned judge, and jurist seems to have suggested that where the consenting recipient had not been exposed to ‘serious danger’ his or her willing participation was a defence. However, in his famous publication ( Digest of the Criminal Law , both pre and post Coney, 3rd Ed. 1883 pp. 141/142) he queried whether one could consent to his being put “in danger of death or bodily harm…”: and again further in the same text he suggested, that short of harm amounting to “maim” one could consent: all a bit uncertain it must be said.
71. Incidentally, “maiming” was defined as “. . . such a hurt of any part of a man’s body whereby he is rendered less able, in fighting, either to defend himself or to annoy his adversary” . . . . (Hawkins’ Pleas of the Crown (1Hawk P.C.) (8th Ed. 1824). (CH 15: Russell on Crime 12th Ed. 1964 at 652 and 653). The reason why such was unlawful was because it weakened the military control of the realm in that the King was deprived of the services of able bodied citizens. As pointed out by Lord Mustill in R. v. Brown , maiming seemed to have disappeared in 1803 and certainly there is no record of an individual having been so charged for the last two hundred years. There is no reason to believe that the situation is any different in Ireland. So the term is moribund: curiously however see s. 143 of the Defence Act, 1954.
72. As a result of the differing views so expressed and noting their historical setting and their antiquity of origin, the main point for me about Coney , is that at best, it can only be regarded as saying that the law can impose some limit on the defence of consent. Even then, I hesitate greatly to describe it as an authoritative precedent even on this point.
73. In R. v. Donovan [1934] 2 KB 498 (” Donovan “), the accused was convicted of indecent assault and common assault upon a seventeen year old girl whom he had beaten with her consent. It was not in dispute that he had caned her for his own sexual gratification. His complaint on appeal was that the chairman of the Surrey Quarter Sessions had misdirected the jury in summing up and in the reply which he gave to a question from them. His argument in this regard was accepted and is not of interest to us. Where the judgment of the Court of Criminal Appeal, given by Swift J. is of importance is where it dealt with a submission from the Crown that it was unnecessary for the prosecution to prove the absence of consent. On that issue the learned judge summed up his view on this point:
“If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can license another to commit a crime. So far as the criminal law is concerned, therefore, where the act charged is in itself unlawful, it can never be necessary to prove absence of consent on the part of the person wronged in order to obtain the conviction of the wrongdoer. There are, however, many acts in themselves harmless and lawful which become unlawful only if they are done without the consent of the person affected. What is, in one case, an innocent act of familiarity or affection, may, in another, be an assault, for no other reason than that, in the one case there is consent, and in the other consent is absent. As a general rule, although it is a rule to which there are well established exceptions, it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and when such an act is proved, consent is immaterial.” (p. 507)
Applying this principle to the facts, the learned judge continued:
“In the present case it was not in dispute that the motive of the appellant was to gratify his own perverted desires … Always supposing, therefore, that the blows which he struck were likely or intended to do bodily harm, we are of opinion that he was doing an unlawful act, no evidence having been given of facts which would bring the case within any of the exceptions to the general rule. In our view, on the evidence given at the trial, the jury should have been directed that, if they were satisfied that the blows struck by the prisoner were likely or intended to do bodily harm to the prosecutrix, they ought to convict him, and that it was only if they were not so satisfied, that it became necessary to consider the further question whether the prosecution had negatived consent. For this purpose we think that ‘bodily harm’ has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling.” (p. 509)
Nonetheless, the accused’s conviction was quashed on the basis that the Court could not be certain that the jury, if properly instructed, would have found that he had intended to cause and inflict blows likely to cause bodily harm to the prosecutrix.
74. I have to confess to not understanding either passage as quoted. With regard to the first extract it seems obvious that if an act is criminal without consent, then consent cannot be a defence to it. (” Consent and Public Policy ” 1962 Crim. L.R. 74, 154 and 156 – Glanville Williams). Yet this proposition has been doubted elsewhere ( R. v. Brown , Mustill J. at 112). In the second passage I do not follow why the jury should have been asked about the likelihood or intention to do bodily harm, and if satisfied, that conviction should follow. Two charges only were preferred: consent was an integral element of and a complete defence to both. Even if the doctor’s evidence showed bodily harm, Mr. Donovan was not charged under either the 20 or 47 of the 1861 Act. Therefore, I think that the chairman was correct: the only question was one of consent. Be that as it may, the case is considered an authority that consent is not relevant to any physical inflection beyond common assault.
75. The judgment in Attorney General’s Reference (No. 6 of 1980) [1981] QB 715 is another illustration of this general position: however its approach and analysis signified a substantial departure from both Coney and Donovan . In this case two persons had engaged in a consensual fist fight in a public street resulting in bodily harm being caused to the victim. The jury were directed that the accused might not be guilty of assault if the victim agreed to fight, and he used only reasonable force. The accused was acquitted. The Attorney General referred a question of law to the Court of Appeal, namely, “where two persons fight (other than in the course of sport) in a public place can it be a defence for (1) of those persons to a charge of assault arising out of the fight that the other consented to fight?” It answered as follows.
“[I]t is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason . … So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent.” (emphasis added) (p. 719)
76. The Court identified, the starting point of Swift J. in Donovan as being that consent is irrelevant if the act complained of is unlawful in itself, which it will be if it involves the infliction of bodily harm. This it rejected: as it did the same view point that would make an act, even if consensual, an assault if it occurred in public, on the grounds that it constituted a breach of the peace and therefore was unlawful in itself. This is a direct rejection of Coney . It went on to describe these dicta as reflective of the conditions of the time in which they were spoken. In effect, the historical approach had its day: it was time for a new start.
77. So the judgment substituted its own approach for the diverse views based in Coney and stood down the start point enunciated in Donovan . Instead, from its point of view, consent as a general proposition, was a good defence (or an element in the offence) but at some point in the spectrum of the intentional infliction of harm, disregarding the established exceptions, it was for the good of all that enough was enough. So on public policy grounds actual bodily harm and beyond was not rendered harmless by consent.
78. Three further points should be noted: firstly, public policy was positioned by judges, not by the legislature: secondly the absence of a distinction between public and private acts is too sharp for me and I do not accept the generality of how it is put and finally the reference in the passage quoted to “no good reason”, can easily be equated with “lawful excuse” or “lawful justification”: such must therefore be regarded, at least at common law, as an aspect separate and distinct from consent.
79. Finally perhaps the most well known of the cases in this area also featured as lead defendant a man named Brown ( R. v. Brown & Ors . [1994] 1 AC 212). The case concerned a prosecution of a group of sadomasochists who willingly and enthusiastically participated in the commission of acts of violence against each other for the sexual pleasure it engendered in the giving and receiving of pain. The conduct engaged in, involved genital torture, degradation and humiliation: in fact this general description spares the reader from the more specific details of the engaged activity (Lord Templeman, page 83 and Lord Jauncey, page 92). They were charged under s. 20 (grievous bodily harm) and s. 47 (actual bodily harm) of the 1861 Act. As the law stood each was therefore guilty of an offence under either or both sections unless the participants’ consent was such that no offence was committed or was effective to constitute an defence. The trial judge ruled that the prosecution did not have to prove lack of consent by the recipients. By a majority of three to two, the House of Lords dismissed the appeal. Each member of the majority delivered a separate judgment, and each in approach differed significantly one from the other. Whilst I do not propose to analyse them at great length, some discussion is essential.
80. Lord Templeman acknowledged at page 234 that although the authorities do not establish that consent to the intentional infliction of bodily harm is a defence to a charge under the 1861 Act, they do establish “that the courts had accepted that consent is a defence to the infliction of bodily harm in the course of some lawful activities”. The question therefore was whether the defence should be extended to the infliction of bodily harm in the course of sadomasochistic encounters, the answer to which in his view could only be arrived at by reference to policy and public considerations. Being so viewed and approached in this manner the majority were not convinced that the law should be so extended. Arguments based on personal autonomy found no favour with the court. They likewise rejected an argument to the effect that consent should be a defence to the lesser charge in s. 47 but not to the more serious s. 20 offence. As stated by Lord Jauncey of Tullichettle:-
“In my view the line properly falls to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by s. 47 of the Offences Against the Person Act 1861, with the result that consent of the victim is no answer to anyone charged with the latter offence or with a contravention of s. 20 unless the circumstances fall within one of the well known exceptions such as organised sporting contests and games, parental chastisement or reasonable surgery. There is nothing in ss. 20 and 47 of the Act of 1861 to suggest that consent is either an essential ingredient of the offence or a defence thereto…I would therefore dispose of these appeals on the basis that the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer.” (pp. 244 – 245)
81. However, whilst this position may be relatively straightforward, these passages alone do not present a full picture of the law. As mentioned above, and as alluded to in several of the extracts just quoted, there existed various exceptions where consent was a valid defence to bodily harm. In truth, it is difficult to reconcile each of the various categories of conduct in respect of which this was so, or to identify a common thread which ties them all together. Activities in respect of which consent could be a defence to the infliction of actual bodily harm included, inter alia , surgical procedures, body adornment (tattooing, piercing, cosmetic surgery, and even branding – see R v. Alan Wilson [1997] QB 47), boxing, contact sports, rough horseplay, “dangerous exhibitions” and more. Previously reasonable chastisement of children by teachers and parents was also considered an exception, though thankfully that position has since been altered by statute (see s. 24 of the 1997 Act and the inserted s. 24A by the Children First Act 2015).
82. It is beyond this judgment to attempt an exhaustive explanation of the rationale which supported each of these exceptions, which generally were identified on a case-by-case basis. In some situations, such as surgery and necessary medical intervention, the policy reasons why consent, provided the treatment accords with good practice and was carried out competently, should provide a defence are so obvious as to not require restatement. In the case of child correction, despite what one might think of it, it at least had at the time a lawful basis, and therefore is not a true exception at all. On other occasions the line could be far more difficult to discern. I hope I do no disservice to the decided cases when I say that at times it seems that a deal of legal and/or logical gymnastics was required to differentiate that in respect of which consent was either an ingredient or a defence, from that in respect of which it was not. As stated by Lord Mustill in his highly impressive dissent in R v. Brown , in which he analysed at least ten various exceptions:
“I intend no disrespect to the valuable judgment of McInerney J. in Pallante v. Stadiums Pty. Ltd. (No. 1) [1976] V.R. 331 when I say that the heroic efforts of that learned judge to arrive at an intellectually satisfying account of the apparent immunity of professional boxing from criminal process have convinced me that the task is impossible. It is in my judgment best to regard this as another special situation which for the time being stands outside the ordinary law of violence because society chooses to tolerate it.”
83. Picking up on boxing as an example, it seems that the reasons most commonly cited in support of its lawful status are the fact that it is properly regulated; that the combatants are properly trained; that it has clear rules of engagement and that the safety of the fighters and probity of the combat is overseen by a referee; and that medical assistance will be on hand, if required. It is these factors that differentiate it from prize-fighting, street-fighting and the like. In such circumstances, with the risks minimised insofar as it is possible to do so, the law will tolerate the deliberate infliction of personal injury. With respect I do not find those reasons compelling. Such a sport is not engaged in for recreation or personal improvement: it is for the money and the attendant glory that fame and success bring. So causing a brain injury, rendering one’s opponent unconscious, damaging a vital organ or fracturing this or that bone, even the risk of death itself, are all overlooked. So on what legal basis is it tolerated? Social value seems intuitively objectionable. The factors mentioned as justification seem to offer little else and certainly do not permit the deduction of a general theory that can carry through to the other exceptions. Perhaps Lord Mustill is right: he simply posits that boxing is by now so well-entrenched in our sporting and cultural psyche as to occupy an anomalous position in law.
84. It is not necessary to wade any further into these exceptions at this point. The old law on non-fatal offences against the person, though not being entirely washed away, was reformed by the 1997 Act, and it is the provisions of that statute with which we are presently concerned. As the question for the Court relates to the interpretation of sections 2 and 3 thereof, it is to that matter that I will turn momentarily. However, what first must be examined is the report of the Law Reform Commission (L.R.C.), on Non-Fatal Offences against the Person.
1994 L.R.C. Report:
85. This, then, was the backdrop against which the LRC was asked to review the law, leading ultimately to its 1994 Report: the fact that R. v. Brown predated its publication takes nothing from the content. As that report had an undoubted influence on the statutory enactment which followed in 1997, it is worth looking briefly at the Commission’s suggestions for reform. The LRC recommended, inter alia , that sections 18, 20, 42 and 47 of the 1861 Act should be repealed (para. 9.44). It was proposed instead that there should be a new structure for non-fatal offences of violence from the less serious up to the most serious. The Commission proposed the abolition of the common law offences of assault and battery, to be replaced by a single statutory offence of assault. The definition of same set out at para. 9.52 of the Report is virtually identical to that contained in section 2 of the 1997 Act, save that subparagraph (1)(a) opens with the additional words “causes physical hurt, or” before continuing on. It was recommended that this offence should be summary only and should be punishable by a maximum penalty of six months imprisonment and/or a fine of medium gravity. As will be appreciated, the finished section 2 very much reflected this proposal.
86. The Commission went on to recommend the creation of two further offences “for more serious assaults”. They were to read as follows:
“A person who intentionally or recklessly assaults another causing him harm should be guilty of an offence and should be liable on conviction or indictment to be imprisoned for 5 years or to a fine of £5,000 or both such fine and imprisonment or on summary conviction to imprisonment for one year and/or a fine of (the maximum available for a summary offence.
A person who intentionally or recklessly assaults another causing him serious harm should be guilty of an offence and should liable to be imprisoned for life or to pay a maximum fine of £100,000 or to both such fine and imprisonment.” (para. 9.63)
87. The LRC proposed a definition of “serious harm” which is very similar to that replicated in the Act (para. 9.66). It expressly declined to propose a definition for “harm”, as it was of the view that the law was operating satisfactorily without such a definition, albeit that the words “actual” and “bodily” were superfluous. The Commission did observe that if a definition of harm was deemed necessary, the English Draft code defined “personal harm” as “harm to body or mind including pain and unconsciousness” (para. 9.65).
88. The essence of the scheme of “assault” proposed by the LRC was ultimately adopted by the Oireachtas, though not without some changes of note. However, its proposal to abolish the distinction between assault and battery and create new offences was fully recognised as was the suggested repeal of ss. 18, 20, 42 and 47 of the 1861 Act. Furthermore, the new structure which it envisaged and the pillars to support the same were put in place. Sections 2, 3 and 4 made provision for assaults of ascending aggravation or severity: s. 2, save for an incidental difference reflected the Commission’s view: ss. 3 and 4 are virtually the same. The definition of “serious harm” in the Act likewise and whilst the Commission did not think it necessary to define “harm”, nonetheless its proposed definition was adopted verbatim . [Thus therefore the 1997 Act could not be described as simply a qualifying piece of legislation: it was much more: it was the vehicle of passage from the Victorian times to modern society. Its provisions must be viewed against this landscape. If this be correct, the current law in this area of personal physical invasion is to be found in the 1997 Act and unless by obvious incorporation, not external to it.]
89. Some may question the direct relevance of this legislative history on the proper interpretation of sections 2 and 3 of the 1997 Act, an issue which is discussed a little later in this judgment (paras. 125-131, infra) . First however a word on the construction of the relevant sections is desirable.
Approach to Statutory Interpretation:
90. As the many excellent specialist textbooks on the topic will suggest, statutory interpretation, though in many respects it may be thought of as the bread and butter of a judge’s work, is often a complex undertaking. Various different techniques and methods are open to the interpreter; depending on which is utilised, the meaning ascribed to a word or section may change quite dramatically. It is obviously far beyond the scope of this judgment to attempt a thorough recital of all of the principles at play. In setting out the admittedly broad overview that follows, I endeavour only to state some of the more uncontroversial aspects of the task, as can be derived from the case law. It will also be necessary, of course, to hone in on those rules and maxims which are most contentious in this case.
91. Though it is trite to say it, it bears repeating at the outset that the objective of statutory interpretation is to ascertain the will or intention of the legislature. While on the High Court bench, I expressed that aim as follows in the case of Kelly v. Minister for the Environment [2002] 4 IR 191:
“When a court is asked to interpret or construe a statute, its stated objective is and must be to discover ‘the intention of the legislature’. The ultimate aim of every primary approach to the interpretation of legislation is to identify the will of parliament. This obligation equally applies even when it is necessary to invoke any of the secondary aids to interpretation.”
Mine may not be the definitive statement of the principle, but I believe it captures its essence. There have been many other judicial pronouncements to like effect (see, for example, the judgment of Kelly J., as he then was, in Macks Bakeries Ltd v. O’Connor [2003] 2 IR 396 at p. 400: “[t]he object of all statutory interpretation is to discern the intention of the legislature”).
92. “Ascertaining the intention of the legislature” may be somewhat of a misleading or even a confusing description, for what is meant by it in this jurisdiction is a purely objective task: what matters is not what was subjectively in the minds of those who passed the legislation, but rather what intention can be gathered from an interpretation of the words used in the Act ( People (Attorney General) v. Dwyer [1972] I.R. 416). As stated by Henchy J. in DPP v. Flanagan [1979] I.R. 265, “the province of the Courts in interpreting a statute is not to divine what intention parliament had when passing the particular statute but, by the application of the relevant canons of interpretation, to ascertain what intention is evinced by the actual statutory words used” (p. 282). It is assumed, in this process, that the legislature is fully aware of and proficient in the use and application of all relevant law, language and grammar, and the interpretive criteria used by the courts (see further Dodd, Statutory Interpretation in Ireland (Tottel Publishing , Dublin, 2008), Chapter 2).
93. As a consequence of the above, the first and most important port of call must be the words of the statute itself. To this end there have developed various canons, maxims, principles, presumptions and rules of interpretation which are utilised by the judiciary when interpreting legislation. As above noted, on occasions one might reach two different results when viewing the same provision through the prism of each of two distinct interpretive criteria; judges have considerable discretion both as to which criteria to apply in a given case and how much weight to attribute to them. As the primary submission of the appellant on this appeal is that the courts below have misapplied several important canons of construction in this case, this is a point that I will return to momentarily.
94. The primary route by which the intention of the legislature is ascertained is by ascribing to the words used in the statute their ordinary and natural meaning. Thus it is this “literal approach” which is first in line when it comes to statutory interpretation. It stands to reason that in construing the text chosen by the legislator, the first consideration is to give the words used their natural meaning. Provided that they are clear and unambiguous, the judge’s role is at an end, and the words should be given their plain meaning.
95. Of course, the task of ascribing ordinary meaning is not as simple as it first appears. What is meant by the “ordinary” or “natural” meaning of a word may differ depending on whether one consults a dictionary or the man on the street. Words may have legal meanings but also “ordinary” meanings. The natural meaning of a word can also vary greatly depending on the context in which it appears. “Context” in this regard may require the one interpreting the legislation to consider the immediate context of the sentence within which the word is used; the other sub-sections of the provision in question; other sections within the relevant Part of the Act; the Act as a whole; any legislative antecedents to the statute/the legislative history of the Act, including on occasion Law Reform Commission or other reports; and perhaps even the mischief which the Act sought to remedy. With each avenue of remove, the natural meaning of the word may, or may not, begin to shift. As eloquently put by Black J. in People (Attorney General) v. Kennedy [1946] I.R. 517 (” People (AG) v. Kennedy “):
“A small section of a picture, if looked at close-up, may indicate something quite clearly; but when one stands back and views the whole canvas, the close-up view of the small section is often found to have given a wholly wrong view of what it really represented.
If one could pick out a single word or phrase and, finding it perfectly clear in itself, refuse to check its apparent meaning in the light thrown upon it by the context or by other provisions, the result would be to render the principle of ejusdem generis and noscitur a sociis utterly meaningless; for this principle requires frequently that a word or phrase or even a whole provision which, standing alone, has a clear meaning must be given a quite different meaning when viewed in the light of its context.” (p. 536)
96. If ambiguity should remain, and the literal approach results in uncertainty, then it will be necessary to have regard to the purposive approach. Such an interpretive technique permits the Court to go beyond the pure text of the statute and to consider the intended objective of the Oireachtas and the reason for the statute’s enactment. In most cases, the same meaning will be arrived at using the purposive method as it would by using the literal approach; thus the former can function as a useful cross-check for the latter. Occasionally it may be necessary to depart from the literal approach where to apply it would defeat the clear object and purpose of the legislation: see section 5 of the Interpretation Act 2005 and Irish Life and Permanent plc v. Dunne [2016] 1 IR 92 at pp. 106-107). In my judgment in C.M. v. Minister for Health and Children [2017] IESC 76, I queried whether, given the modern tendency to treat matters such as legislative history, overall context, the long title and preamble of the Act etc. all as part of the literal approach, there still remains a clear, definitive and easily understood demarcation line between that approach and the purposive method (see paras. 55 to 59 of that judgment). This is certainly not a question that I will attempt to answer in this judgment; perhaps it is simply that these approaches have elided somewhat as the overall practice of statutory construction continues to evolve.
97. In any event, it is clear that, as part of the literal approach, the task for the judge is to construe the words used by reference to the Act as a whole, rather than in isolation. As put by Lord Bingham of Cornhill in R (Quintavalle) v. Secretary of State for Health [2003] 2 AC 687:
“8. The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. … The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”
Lord Millett put it similarly: “[i]n construing a statute the task of the court is to ascertain the intention of Parliament as expressed in the words it has chosen. The Parliamentary intention is to be derived from the terms of the Act as a whole read in its context” (para. 38).
98. The same interpretive approach is utilised in this jurisdiction: the law reports abound with judges making reference to the need to interpret Acts of the Oireachtas a whole. In her judgment in C.K. v. Northern Area Health Authority [2003] 2 IR 544, McGuinness J. noted that it is well settled law “that the individual sections of a statute should be interpreted in the context of the statute as a whole” or indeed in the context of a number of statutes which are to be construed together, where that is so provided by the Oireachtas (p. 559). To similar effect, in Crilly v. T. & J. Farrington Ltd . [2001] 3 IR 251, Murray J., as he then was, observed that regard should be had to the statute as a whole:
“Manifestly, however, what the courts in this country have always sought to ascertain is the objective intent or will of the legislature. This is evident for example from the rule of construction according to which when the meaning of the statute is clear and definite and open to one interpretation only in the context of the statute as a whole, that is the meaning to be attributed to it …” (p. 295)
Such approach was recently adopted by Clarke C.J. (with whom MacMenamin J., Dunne J., O’Malley J. concurred) and O’Donnell J., dissenting, in their judgments in J .G.H. v. Residential Institutions Review Committee [2017] IESC 69 (see paras. 5.13 to 5.16 of the judgment of Clarke C.J. and paras. 4, 6 and 30 of the judgment of O’Donnell J.)
99. Accordingly, that is the approach which must be utilised in the construction of the relevant statutory provisions. The question is what is the ordinary and natural meaning of the words used in the context in which they appear, that context including, inter alia, the scheme of the 1997 Act as a whole.
100. Finally, in this introductory context, before turning to the sections at issue I should say a brief word about the specific principles which apply when interpreting a criminal statute. In Mullins v. Harnett [1998] 4 IR 426, which itself involved an interpretation of the 1997 Act, O’Higgins C.J. set out seven applicable principles and canons of construction. The latter two such canons were ‘the principle against doubtful penalisation’ and what the learned Chief Justice referred to as the “so-called” ‘principle of strict construction of penal statues’. These two principles, which apply to penal statutes, were said to be in addition to, and not in substitution for, other canons of construction. The former principle provides that nobody should suffer a detriment by the application of a doubtful law. As to the principle of strict construction, the Chief Justice quoted the following passages from Maxwell on the Interpretation of Statutes (12th ed., 1969 at pp. 239-240):
“The strict construction of a penal statute seems to manifest itself in four ways: in the requirement of 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”. (p. 434 of the report)
However, he then went on to refer to Bennion on Statutory Interpretation (2nd Ed., 1992), where it was stated at p. 382 that “[t]he true principle has never been that ‘a penal statute must be construed strictly'(though it is often stated in such terms). The correct formulation is that a penal statute must be construed with due regard to the principle against doubtful penalisation, along with all other relevant criteria”. He moreover quoted further from Maxwell (p. 246) to the effect that the rule of strict construction applies only where there is ambiguity in the statute which all of the other canons of interpretation fail to solve, in which case the benefit of the doubt should be given to the subject rather than the legislature which failed to properly explain itself. He endorsed the view that, absent ambiguity, the construction of a penal statute differs little from that of any other.
101. Nonetheless, this obligation to strictly construe criminal and penal statutes has often been restated by the courts: see, for example, the judgment of Kearns J. (as he then was) for the majority of this Court in DPP v. Moorehouse [2006] 1 IR 421 at p. 443; the judgments of Denham J. (as she then was) and Finnegan J. in DPP v. McDonagh [2009] 1 IR 767 at pp. 779 and 790, respectively, and the recent judgment of O’Malley J. in DPP v. Avadenei [2017] IESC 77. That the provisions in question in this case are criminal is beyond doubt. Accordingly, this principle of strict construction is one which must be borne in mind when interpreting same.
The Proper Construction of and the Relationship between Sections 2 and 3 of the 1997 Act:
102. Turning, then, to the proper construction of sections 2 and 3. As has been made clear above, the prevailing interpretation remains that of Peart J. in Dolny , which was endorsed without fresh consideration by the Supreme Court on appeal and by the Court of Appeal in this case. In his view, the sections create separate and distinct offences. No definition of “assault” is given in section 1 of the 1997 Act; for Peart J., the word is not used in section 3 as a term of art by reference to section 2 or any other statutory definition of the word. Accordingly, he gave the word its dictionary meaning of “a violent physical or verbal attack.”
a. The scheme of the 1997 Act
103. With the greatest of respect, I am not convinced that this was the proper approach to take to the interpretation of the section. Perhaps if one were to read section 3 divorced from its immediate surrounds, the necessity to import a definition for “assault” from an external source would seem more pressing. However, given the scheme of the sections 2 to 4 of the 1997 Act, there is a strong argument to be made that the starting point should not be to read section 3 in isolation. Although not appearing in a self-contained “Part” of the Act, it nonetheless appears to me that there is rather more of a relationship between the sections than the judgments in Dolny suggest. Even without reference to the wider context entailing the legislative history, there appears to be an undeniable relationship of gradation between the three sections. This is clear, first, in the degree of damage which is addressed by each offence – mere application of force or causing of impact (or apprehension of same) in section 2; “harm” in section 3; and “serious harm” in section 4. Second, this gradation is apparent from the mode of trial appropriated to each layer: from summary trial only under section 2, to the hybrid mode of trial for the mid-tier offence in section 3 which can be tried either summarily or on indictment at the election of the prosecutor, up to the section 4 offence which is indictable only. Finally, this scale of offending is also apparent from the applicable penalties, ranging from a maximum of six months imprisonment and/or a €2,500 fine for assault, to up to 12 months imprisonment and/or a €2,500 fine for assault causing harm (tried summarily) or an unlimited fine and/or 5 years imprisonment for assault causing harm (tried on indictment), with the maximum penalty for causing serious harm being an unlimited fine and/or life imprisonment. In each of these respects, the sections appear to deal sequentially with ever greater harm (used in the non-technical sense) caused by one person to another.
104. Approached in this way, it seems unlikely that the Oireachtas could have intended that both section 2 and section 4, containing the least serious and most serious offences, respectively, should have a prescribed mens rea (in each case, intention or recklessness), but that the intermediate level offence in section 3 should be one of absolute liability, as it would appear to be, from Dolny and the Court of Appeal’s decision in this case. The same would not be a totally implausible outcome, and if the words of the statute compelled such a conclusion then the Court would have to accept that view, but it is, I think, a sufficiently improbable one as to throw doubt on whether that is the proper construction of section 3. This point is returned to at paras. 121-124 infra .
105. Moreover, despite the fact that section 4 is often colloquially referred to as “assault causing serious harm”, and indeed despite the fact that section 4 offences are typically assault-type incidents, it is clear that the word “assault” appears nowhere in the section. It refers simply to the intentional or reckless causing of serious harm; that is all. The deliberate omission of the word “assault” from that section must be juxtaposed against its inclusion in section 3. In my view, the general scheme of these three sections, without anything else, heavily suggests that section 3 is a “compound” crime, meaning that the prosecution must prove the elements of an “assault” as defined in section 2, with the additional requirement to prove “harm” as defined in section 1. Such, it seems to me, is the most natural meaning to ascribe to the word “assault” in section 3 within the context of these provisions as a whole.
b. Giving the same word the same meaning
106. It is true, as stated by Peart J. in Dolny and the trial judge in the within case, that the word “assault” is not defined in section 1, the interpretation section of the 1997 Act. Section 1(1) contains ten definitions of terms that appear in later provisions of the Act. Of course, if “assault” was therein defined, the issue before the Court simply would not arise. However, I do not believe that the fact that “assault” is not defined in section 1 is as of such decisive importance as has previously been held. At least as significant, in my view, is the fact that section 2 does not contain a restricting phrase which limits the definition of assault therein as being “for the purposes of this section” or “in this section” (see, for example, the judgment of Keane J. in Liam Liston v G. O’C. and A. O’C . [1996] 1 I.R. 501 at p. 515). Such phrases are used on no fewer than nine occasions in the 1997 Act (see sections 7(6), 9(2), 10(2), 12(2), 14(2), 15(2), 18(3), 23(2) and 25(2)). Viewed in such light, there is some weight to be attached to the omission of such words from section 2.
107. In the absence of any such restricting words in that section, one would have thought it logical that the default presumption is that the same word should be given the same meaning when it is used in different parts of the enactment, unless the context should dictate otherwise. As stated by Henchy J. in State (McGroddy) v. Carr [1975] I.R. 275, it is a “fundamental rule of interpretation that when expressions are repeated in the same instrument, and more especially in a particular part of the same instrument, they should be given a common force and effect unless the context requires otherwise” (pp. 285-286). I can find nothing in the context of the relevant sections, or the Act as a whole, which would indicate anything to the contrary in this instance. Indeed, the basis for applying such a rule of construction seems particularly strong in respect of the sections in question, where the word to which the same meaning is sought to be ascribed is contained in the section immediately following the one in which it is statutorily defined (ss. 12 and 13 of the Criminal Justice (Theft & Fraud Offences) Act 2001). In such circumstances one might almost require an express statement of contrary meaning before standing down the definition only just given in the preceding section.
108. Indeed this well-established principle of construction has deep roots in the jurisprudence of this Court. Black J., in People (AG) v. Kennedy [1946] I.R. 517, stated as follows:
“[T]he same words in different parts of a statute, and a fortiori in different parts of the same section, should be given the same meaning. In The Queen v. The Poor Law Commissioners, in the Matter of the Holburn Union 6 A. & E. 56, at p. 68, Lord Denman C.J. said:—‘We disclaim altogether the assumption of any right to assign different meanings to the same words in an Act of Parliament on the general ground of a supposed intention in the Act.’ In Courtauld v. Legh L. R. 4 Ex. 126, at p. 130, Cleasby B. said:—‘It is a sound rule of construction to give the same meaning to the same words occurring in different parts of an Act of Parliament. . . .’ In Spence v. Metropolitan Board of Works 22 Ch D. 142, at p. 149, Chitty J. said:—‘I take it also as a general rule in construing statutes that the same words must be prima facie construed in the same sense in the different parts of the statute’; and in Thames Conservators v. Smeed [1897] 2 Q. B. 334, at p. 346, it was said:—‘Many instances occur of a departure from the cardinal rule that the same word should always be employed to mean the same thing.'” (p. 537)
The learned judge could see no reason for departing from this ‘cardinal rule’ in construing the provision at issue in that case, section 29 of the Courts of Justice Act 1924:
“In s. 29 I find the vital word ‘appeal’ used four times. The first time it is used it expressly refers to an appeal to the Court of Criminal Appeal. The second, third, and fourth times it is used it expressly refers to an appeal to the Supreme Court. Hence, its meaning when first used is different from its meaning when used secondly, in respect of the Court to which the appeal is to lie because the section expressly says so. But, the position is otherwise in respect of the party who may appeal. There is nothing in the section or elsewhere in the Act which expressly or impliedly shows that the word ‘appeal,’ as first used in s. 29, is to have a different meaning from what it has when used secondly, in respect of the party to whom the right is given. Therefore, on the principle of construction stated, it must be given the same meaning in this respect in each case. Now, where the word ‘appeal’ is first used it unquestionably means an appeal by the convicted person only. This is made clear by reading ss. 29, 31 and 63 together. Hence, in accordance with the principle of construction stated, it should be inferred that the Legislature intended it to be likewise limited to the convicted person wherever else it is used in the same section, unless this limitation is expressly or impliedly excluded by some other words of the Act, and there are no such words anywhere in the Act.”
109. Applying this principle of construction, which now has an express statutory basis (s. 20 of the Interpretation Act 2005), the presumptive starting point must be, as stated, that the word “assault” as appears in section 3 must be assigned the same meaning as is given to the term “assault” in the preceding section. Nothing in the internal or external context of the 1997 Act suggests any reason why this should not be so.
110. As has been acknowledged by the other courts which have looked these sections, the drafting thereof could unquestionably have been clearer. However, it appears to me that the proper construction of sections 2 and 3 is that the latter builds upon the former, and that section 3 is a compound offence. I have reached the view that the correct interpretation of the sections is that the term “assault” as contained in section 3 must be given the meaning assigned to that word in section 2.
c. The use of dictionaries
111. I do not therefore believe that it was necessary to import a definition of “assault” from an external source, as was done in Dolny . Dictionaries can undoubtedly act as aids to interpretation. As acknowledged above, a dictionary is an obvious source for the “ordinary” meaning of a word. However, dictionaries are not authoritative repositories for the interpretation of words contained in a legislative enactment. The definition of a word may vary as between dictionaries, or editions of the same dictionary – though perhaps of limited significance in daily life, even a subtle change may have important ramifications when read into a statute. More importantly, dictionaries cannot supply the context – I use that word in its broadest sense – which is so necessary for the proper construction of an Act of the Oireachtas. That this is so is reflected by the judicial pronouncements in this jurisdiction warning against over-reliance on dictionary definitions in statutory interpretation (see, for example, the judgment of Henchy J. in Inspector of Taxes v. Kiernan [1981] I.R. 117 at p. 122 and the judgment of Keane C.J. in Sinnott v. The Minister for Education [2001] 2 IR 545 at p. 637). With that said, it is undoubtedly the case that the use of dictionaries in statutory interpretation is somewhat inconsistent, and one would not have to look too far to find influential judgments which have done just that (see, for example, the judgment of Ó Dalaigh C.J. in Rahill v. Brady [1971] I.R. 69 at pp. 82-83).
112. If it is not uncommon that the dictionary definition of a word will have some influence over the meaning that said word is ascribed in a statute, the judgment of Barrington J. in Keane v. An Bord Pleanala (No. 3) [1997] 1 I.R. 184 at pp. 232-235 provides an interesting illustration of the reverse situation that can occur whereby the legal definition given to an everyday word in a statute may cause changes to the ordinary and natural uses of such term in day-to-day life, which can in turn impact upon the dictionary definition of that word. The word at issue there was “beacon”, and the learned judge charts how the definition of that term set out in the third edition of the Shorter Oxford Dictionary (1972) was different to that contained in the eighth edition of the Concise Oxford Dictionary of Current English (1990), with that change being attributed by Barrington J. to an order made by the Secretary of State under the Merchant Shipping Act 1979 during the intervening period.
113. O’Sullivan (para. 39, supra ) argues that as the dictionary definition utilised by Peart J. in Dolny is “clearly” based on the common law offences of assault and battery, and as those common law offences have ceased to exist by virtue of section 28 of the 1997 Act, the dictionary definition can only be of continuing relevance to the extent that it relates to those former offences which have now been repealed. In her view, it is untenable to suggest that the term has an ordinary meaning independent of its legal meaning. Accordingly, that dictionary definition is of lesser authority than the legal definition of the word which, arguably, is to be found in section 2. Although there is much force to this point, it is difficult to be certain as to precisely how the interplay between the old common law offences, the new statutory provisions, and the dictionary definition of those terms might work in practice. I would not want to hazard a guess as to how one could influence the meaning of the other, though there is certainly a clear similarity between the dictionary definition and the old common law offences.
114. On this note, however, I would caution strongly against the use of dictionary definitions for words that have legislatively prescribed legal definitions unless the context makes it clear that the same is appropriate. Murnaghan J. must surely be correct when he said “where a statute such as…defining its own terms and makes what has been called its own dictionary, a court should not depart from the definitions…and meanings assigned…” to the statutory definition. ( Mason v. Heavy [1952] I.R. 40 at 47).
115. Particular caution is required where the term in question has an everyday meaning but is also a criminal offence. The Concise Oxford Dictionary (10th Ed., 2001) give the following definitions for these well-known offences: murder is “the unlawful premeditated killing of one person by another”; manslaughter is “the crime of killing a human being without malice aforethought, or otherwise in circumstances not amounting to murder”; rape is “(of a man) force (another person) to have sexual intercourse with him against their will”; burglary is “illegal entry into a building with intent to commit a crime such as theft”; and theft itself is “the action or crime of stealing”.
116. Of course there could be no question of a judge ascribing the dictionary meaning to any of these terms rather than their well-established, and in some cases statutorily defined, legal definitions. The statutes governing their application leave no possible room for doubt as to what definition is to be applied, whereas on one reading at least the same is not true in respect of section 3 of the 1997 Act. I am therefore aware that at some level I am not comparing like with like. My point, rather, is that the dictionary definition of a term which happens also to be a criminal offence will frequently fall well short of the standards of precision and completeness that one would expect to find in a statute criminalising such conduct. Such dictionary definitions are also likely to lack the degree of clarity and certainty that the criminal law demands. For example, the definition of murder is wholly misleading and inaccurate in a legal sense; the definition of manslaughter has clearly been heavily influenced by the legal definition of murder; and the definition of theft is incomplete in several respects. The above definitions are also (understandably) silent on mens rea . Thus it can be seen that a dictionary definition providing the ordinary meaning of a word will often be a poor surrogate for a statutory definition of an offence. The criminal law in respect of the above offences would have developed markedly differently if they were interpreted according to the dictionary definitions set out above. To take as a practical illustration an example provided by the appellant, it cannot be that the crime of aggravated burglary under section 13 of the Criminal Justice (Theft and Fraud Offences) Act 2001 could be construed by reference to the dictionary definition of burglary with the aggravating factor of proximate possession of a firearm or imitation firearm, any weapon of offence or any explosive; rather it must surely be the case that the definition of burglary is sourced from the preceding section, which defines the crime of burglary.
117. That is not to say that recourse to a dictionary may not sometimes be necessary. What is relevant for present purposes is that the scheme of sections 2-4 of the 1997 Act is itself suggestive of section 3 “building upon” section 2, which as of the date of its enactment has contained the statutory definition of the offence of assault. Given that the task for the Court is to interpret the same word in the same statute, appearing in the very next section, it does not seem to me that the dictionary definition of the term, with all of the flaws as above described, should have been resorted to unless there was no alternative.
d. Words that have a legal meaning
118. All of this is perhaps part of a more general point, which is that where a word is a legal term or has an acquired legal meaning, the legal meaning should be applied unless context dictates otherwise (see Dodd, Statutory Interpretation in Ireland (Tottel Publishing, Dublin, 2008) at para. [5.54]). Though sometimes described as an exception to the literal approach, I would not consider this principle to be a deviation therefrom so much as an appreciation that the ordinary and natural meaning to be ascribed to such a word in the context of statutory construction is its legal meaning, rather than its everyday one. This principle of interpretation has perhaps been deployed more in the interpretation of terms which have acquired a defined legal meaning through their use in statutes over time, rather than in the immediately preceding section of the same enactment, as we see in this case. However, although “assault” is an everyday word familiar to all who speak the English language, it is, first and foremost, a legal term: it is both an offence and a tort. Accordingly, it seems to me that where the term is used in the context of a statute imposing criminal liability for the commission of certain conduct, it is more appropriate to use its legal meaning rather than its everyday meaning as derived from the dictionary. This would be so even if there was no definition set out in section 2; however, as there is such a definition given in the statute itself, I believe that the proper approach to the construction of the 1997 Act is to import that definition into section 3.
119. As an aside, it is true, of course, that the term “assault” is also used in other criminal statutes (see, for example, sections 18 and 19 of the Criminal Justice (Public Order) Act 1994). The above interpretation of section 3 of the 1997 Act should not be taken to foreclose on the possibility of the word “assault” carrying a different meaning when used elsewhere. It is primarily the scheme of sections 2 to 4 of the 1997 Act which compels me to the conclusion that I have reached. The same term appearing in other statutes must of course be interpreted according to its ordinary and natural meaning in the context of such enactment as a whole, bearing in mind also factors such as the legislative history of the statute and the mischief which it was intended to remedy.
120. There are, additionally, some further considerations which support the view that I have reached on the construction of sections 2 and 3. Though the following would not be decisive in and of themselves, I feel that such matters bolster my conclusion on the proper construction of the relevant statutory provisions.
e. Mens Rea
121. As above noted, section 3 is silent on its face as to the mens rea for assault causing harm. The interpretation taken in Dolny and affirmed by the Court of Appeal in the within case has the result, in the view of some critics of the Dolny decision, that the section 3 offence is one of absolute liability, i.e. that no mens rea is required for the offence. On that reading, it has been suggested, by reference to the second judgment of this Court in C.C. v. Ireland [2006] 4 IR 1, that the constitutionality of the section may be doubted. Perhaps this explains the respondent’s acknowledgement, or even concession, that Dolny is not authority for the proposition that the prosecution is not required to prove intent or reckless in relation to the “assault” element of “assault causing harm”; indeed, the DPP submits that an “assault” for the purposes of that section must be done intentionally or recklessly. So for the prosecution, Dolny is in fact accepted and in part rejected.
122. It is certainly the case that, in the absence of any express mens rea being identified in a given section, the courts may on occasion read mens rea into the provision in question. Per Dodd, Statutory Interpretation in Ireland (Tottel Publishing, Dublin, 2008):
“[T]here are categories of interpretive doubt, where the court has, by established jurisprudence, the jurisdiction to read in matters. These are so well established that they form part of the interpretive jurisdiction and the legislature can be taken to be aware of them and legislate in light of them. While not exhaustive, examples include the reading on of: (i) mens rea; (ii) … The reading in of mens rea into enactments is perhaps the best known of these examples. There is a presumption that mens rea is required before a person can be held guilty of a criminal offence. Thus where a criminal provision omits wording indicating the mens rea element of an offence, it will be read in, in most cases. The presumption is almost irresistible where the offence is ‘truly criminal’ in character … It may be constitutionally impermissible for the legislature to create strict liability offences for certain offences, considering the criminal nature of the offences and the penalty attached.” (para. [12.24])
123. There is no doubt that section 3 of the 1997 Act is truly criminal in character. No constitutional challenge has been taken to that section; if it were, and if section 3 was decided to be an offence totally separate from section 2 such that the mental element in the latter could not be read into the former, the presumption of constitutionality which attaches to Acts of the Oireachtas may have the effect that a mens rea would require to be read into section 3. However, I mention the point not to throw doubt on the constitutionality of the section, but rather to highlight the oddity of the position if sections 2 and 4 are taken to require intention or recklessness, but the intermediate offence in section 3 is read as one of absolute liability. Consequently, I am of the view that the omission of any mental element from section 3 bolsters the argument that that provision is intended to “build upon” the definition of assault set out in section 2. On that reading, any fears concerning absolute liability and the constitutionality of the section simply fall away; the mens rea would be recklessness or intention, the same being imported from section 2 together with the requirement of a lack of consent. While the omission of mens rea from section 3 does not compel the conclusion that assault causing harm is a compound offence building upon section 2, I take the view that it is certainly indicative of same. This interpretation, it seems to me, is consistent with the plain meaning of the words used and the intention of the legislature.
124. In interpreting the section as I have, I do not intend to foreclose on the possibility that a mens rea may be required for the “causing harm” element of the offence also; no such issue arises on the facts of this case (see para. [9.92] of Charleton, McDermott and Bolger, Criminal Law (Tottel Publishing, Dublin, 1999)).
f. Reinforcement of this Conclusion
125. In truth, the combination of the matters discussed above is sufficient, in my view, to establish the proper construction of the section. Applying the relevant principles of interpretation, I consider that the true meaning of section 3 is plain and unambiguous. In such circumstances I do not think it is truly necessary to go further and have regard to additional considerations, as the case can be disposed of on the basis of the first principles of statutory interpretation. However, in the event that any ambiguity is thought to remain, I believe that the legislative history of the sections in question puts the matter beyond doubt. To recap most briefly…
126. The relevant statutory provisions have been set out above (paras. 4-7, supra ), as has the legislative history behind their enactment (paras. 55-64, supra ). The Explanatory Memorandum which accompanied the Bill which became the 1997 Act stated that section 2 was intended to replace the common law offences of assault and battery and that sections 3 and 4 were intended to be replacements for sections 18, 20 and 47 of the 1861 Act.
127. As has been seen, section 2 of the Act effectively implemented verbatim the LRC’s proposal for a new statutory offence of assault. The LRC thereafter proposed two new “assault” offences where harm and serious harm are caused to the victim (see para. 64 , supra ). On the LRC’s scheme it was clear beyond doubt that each such offence was an “assault” offence, and the Report is highly suggestive of a connection linking each of the three offences, i.e. that all are “assaults” as defined by the Commission, with the penalty increasing in line with the harm caused.
128. Section 4 replaced the more serious offences contained in sections 18 and 20 of the 1861 Act, in respect of which it will be recalled that proof of “assault” was not necessary to make out a charge under either section. Although the Oireachtas followed the outline of the simplified scheme laid out by the Commission, adopting some suggestions virtually verbatim, it dropped the word “assault” from section 4 and declined to make the “causing serious harm” offence an assault offence. In this respect, at least, it remains somewhat reflective of the prevailing position pre-1997, rather than the LRC’s recommendation.
129. The section 3 offence replaced section 47 of the 1861 Act, “assault occasioning actual bodily harm”. That this is so is evident from a comparison of the wording of the relevant sections: “[w]hosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable [to imprisonment] …”, in the old provision, and “[a] person who assaults another causing him or her harm shall be guilty of an offence”, in the new. Similarly, the annotations to the 1997 Act by Ivana Bacik (June 1998) indicate that section 3 was intended to replace section 47. Both offences carried a maximum penalty of five years’ imprisonment. The major difference, of course, is that section 3 is triable either-way, whereas section 47 was indictable only.
130. It has been observed above (para. 60, supra ) that the statutory precursor to section 3, section 47 of the 1861 Act, was a compound offence in that it required proof of both common assault and of harm. Given the apparent statutory intention to replace section 47 with section 3, there is a strong case to be made that it, too, was intended to be a compound offence building on section 2, and all the more so in circumstances where the 1997 Act itself sets out the definition of “assault”, rather than relying on the common law.
131. Now it is true, of course, that outside of certain circumstances above described, consent was not a defence to assault occasioning actual bodily harm; the “cut-off” for consent was common assault. The LRC, however, recommended that consent would be a defence to assault and assault causing harm, but not so in respect of its more serious proposed offence of assault causing serious harm in certain limited circumstances. While it is clear that the Oireachtas did not follow the Commission’s recommendations to the letter, the general scheme adopted thereby, read in light of this legislative history, is supportive of the interpretation that the legislature enacted section 3 with the intention of replacing section 47, but taking account of the recommendation that the threshold for consent should be moved such that one could now consent to “harm”. This is not an inexorable conclusion that flows from the drafting history. Even if it were, it could not compel me to reach such a conclusion if the actual wording of the statute was clearly to the contrary. However, I have concluded from a literal interpretation that the proper construction of the provisions is that section 3 builds upon section 2, and in my view the legislative history fortifies the view which I have otherwise reached.
g. Reaction to Dolny
132. It must be noted in passing that the interpretation of section 3 favoured in Dolny was at odds with what seems to have been the widely shared view of the section amongst criminal law academics, who in their analysis have been somewhat critical of the judgments delivered in that case.
133. Before Dolny, it was assumed that section 3 builds on section 2. For example, the annotation to section 3 of the 1997 Act by Ivana Bacik (June 1998) provides that “[g]iven that the section 3 offence is based upon the section 2 definition of assault, it would seem probable that the principles outlined above as to lawful excuse, consent and section 2(3) common intercourse would also apply to a charge of assault causing harm.” Similarly, the annotation to section 2 states as follows:
“However, section 2(1) does at least clarify that the absence of consent is now an element of the actus reus of assault. But, later in the Act, section 22 preserves the defences available at common law, and according to the Explanatory Memorandum which accompanied the Bill, this includes the common law rules on consent, for example in relation to sporting activities or medical treatment. Thus, it appears that while the absence of consent is an essential element of the actus reus , the presence of consent may also be a defence to a charge of assault, and so the common law rules established in Brown would continue to apply; however, since lack of consent is also an element of the offence of section 3 assault causing harm … the consent threshold would now appear to be ‘serious harm’, rather than ‘actual bodily harm’.”
134. Similarly, it would seem that the decision ran counter to the assumptions of many of the leading criminal law textbook writers. Hanly, in the second edition of his book An Introduction to Criminal Law (Gill & Macmillan, Dublin, 2006) stated that “section 3 requires proof of an assault that causes harm. Consequently, the prosecution must prove all the elements of assault as defined in section 2, and show that the assault caused harm” (p. 255). Likewise, McIntyre and McMullan also assumed that the definition of assault in section 2 carried over to section 3 ( Criminal Law , 2nd Ed. (Dublin, Thomson Round Hall, 2005) at p. 131). Quinn was of the view that the wording of section 3(1) “indicates that it is an assault under section 2, with the addition that harm is caused.” He noted that the mens rea was therefore the same as that for section 2 and did not appear to require an intention to cause resultant harm ( Criminal Law in Ireland (3rd Ed., Irish Law Publishing, Bray, 1998) at p. 84). The description of the section 3 offence in Charleton, McDermott and Bolger, Criminal Law (Tottel Publishing, Dublin, 1999) at paras. 9.91 to 9.92 focuses on the mens rea required for the offence; however, the text suggests that the only distinctions between the offences are the level of harm caused and the penalty. They moreover state that “the offence in s 3 is defined in terms of assault with an aggravating factor”, which again suggests that the section 3 offence builds upon that set out in section 2.
135. McAuley and McCutcheon, writing in 2000, found the section to be more equivocal ( Criminal Liability (Round Hall, Dublin, 2000) at p. 532-533). In their view the correct statutory construction of the sections in question is in line with that advocated by Mr Brown, though they were less clear that the legislature intended to effect such a sizeable change to the existing common law relating to consent to the infliction of injury. The authors noted that the extent to which the 1997 Act has modified the common law on consensual force had yet to be determined, but went on to observe that “Section 2 expressly makes lack of consent part of the actus reus of assault and this definition must be carried into section 3 which provides the offence of assault causing harm”. Thus, in their view, consent would absolve an accused of liability for an offence under section 3. They took the view that the new “threshold” of injury to which one cannot consent would appear, since the 1997 Act, to be “serious harm” under section 4; given the definition of “serious harm” in section 1, this was, in their view, a change of some magnitude when compared to the pre-1997 common law position. The authors continued as follows:
“It must be questioned whether that was the intention of the Oireachtas when it enacted the 1997 Act. A liberalisation of the law might have been contemplated but it is debatable whether it was intended that the old law be replaced by so high a threshold. Nevertheless as a matter of literal interpretation this conclusion seems inevitable.” (p. 533)
However, they then expressed the view that section 22 of the 1997 Act throws some doubt on this interpretation, as the explanatory memorandum accompanying the bill provided that that section was intended to preserve the old common law in relation to consent, which of course does not extend so far the 1997 Act does on the appellant’s interpretation of it. Thus, if section 22 is to be read as the explanatory memorandum suggests, the authors anticipated a conflict between that provision and the literal interpretation of sections 2, 3 and 4.
136. The judgments in Dolny have, moreover, attracted academic criticism since they were delivered. In the third edition of his book ( An Introduction to Irish Criminal Law (Gill & Macmillan, Dublin, 2006)), Hanly observes that the effect of Dolny is that consent is not a defence to a charge under section 3, nor is mens rea a requirement under that section. The latter outcome, in his view, sits uneasily with the decision of this Court in C.C. v. Ireland [2006] 4 IR 1. He also opines that it is odd that mens rea is a requirement of the less serious assault offence under section 2 and the more serious offence under section 4, but not the intermediate offence in section 3. McIntyre, McMullan and Ó Toghda ( Criminal Law (Round Hall, Dublin, 2012)) state that it had been presumed that assault causing harm was an aggravated form of assault under section 2, but that Dolny has led to “confusion” on the matter. Those authors suggest that Dolny should be seen in the context of extradition law and should not be viewed as changing the substantive criminal law on assault (pp. 171-172).
137. O’Malley refers to Dolny in the context of a discussion on consent in his work Sexual Offences (2nd Ed., Round Hall, Dublin, 2013 at para. 4-14). He notes, first, that the case arose in the EAW context and that the sole question for the High Court was that of correspondence of offences. More significantly, however, he observes that the High Court’s view that the absence of consent is not an essential ingredient of the offence under section 3 “is open to question”. The stated reason for this is that “assault” is defined in section 2, where it is expressed to include an absence of consent, and section 3 “merely states that assault causing harm is an offence without giving any indication that ‘assault’ is to be interpreted any differently in this section than in s.2”. He also notes that the High Court misquoted section 4 as creating an offence of “assault causing serious harm”, whereas the section makes no reference to the word “assault”.
138. Undoubtedly the most forthright criticism of Dolny, however, is that contained in an article by Professor Catherine O’Sullivan in The Irish Jurist (see para. 39, supra, for the full citation). That article has been relied upon by Mr Brown. In her rather trenchant critique of the decision and its consequences, Prof. O’Sullivan argues that, if permitted to stand, Dolny would have the consequence of supplanting a legislative definition of a term with a judicial one and would significantly increase the ambit of section 3 to the detriment of future accused persons by making it an absolute liability offence. The premise of her article is that the decision fails to adhere to proper statutory interpretation technique and, as such, that it lacks precedential value.
139. Of course, the fact that Dolny has come in for criticism from academic quarters does not of itself mean that that decision was wrong. If I agreed with the reasoning and outcome of that judgment I would not hesitate to follow it; judges and commentators not infrequently find themselves on opposite sides of an interpretation. Moreover, the fact that the conclusion which I have reached is shared by each of the authors mentioned above does not by any stretch suggest that this judgment is therefore forever above critique. “Whether an interpretation is shared by academics” is not a canon of interpretation, and for good reason: the role of academia in critiquing and developing the law, though of undoubted importance, is markedly distinct from the judicial function. On balance, however, it is at least reassuring at some level that the view which I have reached is shared by so many academic experts in this field of the law.
140. Finally, I should briefly address a few additional arguments which are said to throw into doubt the correctness of the interpretation reached. First, it was argued that the fact that the word used in section 3 takes the verb form “assaults”, rather than a formulation such as “[a] person who commits an assault upon another causing him or her harm shall be guilty of an offence”, suggests that the definition contained in section 2 should not carry over to section 3. Undoubtedly the section could have been better drafted; had the section been drafted in the latter way, that would perhaps have provided a clearer indication that section 3 builds upon section 2. Nonetheless, given the overall scheme of sections 2 to 4, and the legislative history of section 3 (including both the LRC Report which informed the 1997 Act and fact that its common law precursor was a compound offence), such cannot displace my view that the proper construction of the section as drafted is that the definition of assault in section 2 carries over to the word “assaults” in section 3.
141. Another issue canvassed was whether, if section 3 builds upon section 2, it must follow that section 3 must also be read subject to the proviso in section 2(3) which reflects the old “common intercourse” defence and provides a statutory basis on which trivial everyday contact is considered not to be an assault. Per that section, the manner of force or impact which is not “intended or likely to cause injury” and is “acceptable in the ordinary conduct of daily life”, and is not known by the defendant to be unacceptable to the other person, does not constitute an assault. While it would follow on my above analysis that section 3 must be read subject to section 2(3) also, it is difficult to imagine circumstances in which a person charged under section 3 could avail of this proviso. It is an element of the section 3 offence that the person caused harm; the everyday-life exception under section 2(3) is intended to cover matters such as jostling in a crowd or good-naturedly slapping someone’s back at a party. It is not part of the implied social contract between members of society that there is a permission to cause harm to one another. Causing harm to another is by definition “likely to cause injury” and will not be “generally acceptable in the ordinary conduct of daily life”. Accordingly, although the genuine consent of the victim will have to be negatived when prosecuting a section 3 charge, I do not see that it would be open to an accused to rely on section 2(3) for the purposes of implying consent to a person to whom they had caused harm.
h. Conclusion on the interpretation issue
142. Ultimately, I have reached the conclusion that the term “assault” as appears in section 3 of the 1997 Act should be construed according to the meaning given to that word in section 2 of the Act. I have formed this view primarily and if necessary would have done so solely, on the basis of the ordinary meaning of the words used as they appear within the scheme of the Act, including the apparent gradation of sections 2-4, the deliberate omission of any mens rea from section 3 and the omission of the word “assault” from section 4 in approaching the statute as I have, I have applied the principle that the same words should be afforded the same meaning in a statutory enactment unless context dictates otherwise. Although I do not strictly consider it necessary to have regard to any other interpretive criteria in construing the section, I believe that, on balance, the legislative history of the 1997 Act supports the interpretation that I have reached. It seems to me that on a close reading of Dolny that decision can fairly be confined to the EAW context (see paras. 46-54 , supra ). However, even if that was not so, I am satisfied, for the reasons just articulated, that the interpretation given to the sections in that judgment was “clearly wrong” within the meaning of this Court’s jurisprudence in any event. Accordingly, even should the interpretation of sections 2 and 3 therein be considered part of the ratio of the judgment, I consider that the Court should not follow it in this case.
143. Given this conclusion on the specific issue involved, and applying, simply, first principles, one would be forgiven for asking why from the appellant’s point of view this is not sufficient to dispose of the appeal. As the absence of consent is a definitional aspect of s. 2, and now also of s. 3 of the 1997 Act, a view shared by each of my colleagues, and if the law was so understood at the time of trial, it would seem inevitable that the ruling of the learned trial judge in refusing to let the issue go to the jury, was legally incorrect. However, the majority of this Court take the view that this does not follow and support the basis offered by Dunne J., for her conclusion. It is therefore necessary to consider the reasons advanced by her for so deciding.
Point of Departure:
144. Although the analysis is different, both Dunne J. and I agree that the word “assault” as used in section 2 has the same meaning as “assault” in section 3, save for the degree of harm which is not presently relevant, and accordingly that absence of consent is an ingredient of the offence of assault causing harm. (paras. 38, 39, 41, 47, 48 and 53 of her judgment). This is particularly important as it must follow from this legislative interpretation that the point on the spectrum, in the intentional infliction of harm at which consent is a defence, has moved. At para. 53, Dunne J. confirms this: she says:-
“The threshold for consent may have moved by reason of the changes brought about by the Act of 1997, but one element of the offence…”
Therefore, it is common case that post 1997 the new bar is assault causing harm, that is a s. 3 assault. That shift however, as significant as it is, is not conclusive as to outcome from my colleagues’ point of view. Why this is so is of importance.
145. In the relevant sections of the judgment, various references of a general nature are made to public policy, to s. 22 of the 1997 Act, to the common law position on consent, to Coney and Donovan as well as Jobidon , upon which much reliance is placed. However, it seems to me that the “without lawful excuse” aspect of s. 2 plays a key role in the decision of Dunne J. The learned judge takes the view that such aspect attracts policy considerations so that the circumstances in which an assault takes place is highly important. In this particular case the nature of the agreement or its purpose is to the forefront.
146. It is I think therefore correct to say that a critical reason for nullifying what might appear to have been the logical follow through on importing the word “assault” from s. 2 into s. 3, is that the appellant’s actions were undertaken for an unlawful purpose or as otherwise put, as part of an unlawful agreement. So based, the question is then posed: “…given that the absence of consent is a necessary ingredient of the offence of assault causing harm, could consent to an assault in furtherance of an unlawful purpose ever be taken into consideration in deciding whether someone is guilty or not of an offence contrary to s. 3 of the Act of 1997.” (para. 49). This question is even further condensed in para. 56 where it is said “in short, consent to an assault causing harm for an unlawful purpose is no consent”.
147. The learned judge next observes that the situations in which the law has recognised a defence of consent to assault causing harm, such as surgery and sporting activity, are those of general benefit to society. It is then stated that the agreement in this case does not fall within any of the recognised exceptions at common law, a point I obviously agree with, and that it could not have any lawful purpose. That being so, the appellant in her view, for reasons of public policy, could not rely on consent as a defence to the s. 3 charge.
148. Finally, Dunne J. was satisfied that the Oireachtas never intended such a dramatic change in the law that would see consent as a defence in all cases of causing harm, irrespective of the circumstances (emphasis from the judgment). The legislature would have had to be much clearer to achieve that outcome. Having referred to the common law and to the established exceptions, she continued:-
“Outside those exceptions, the infliction of harm was unlawful. That which is unlawful cannot be made lawful simply by the presence of consent without regard to the circumstances in which the consent is given. While the obligation on the prosecution under s. 3 is to establish the absence of consent, a consent to an act which would be unlawful is not a consent. In this case, the consent is one which cannot be recognised in law because the consent, if given, was given for an unlawful purpose and it would be contrary to public policy to allow an accused to rely on a consent which is in furtherance of an unlawful purpose.”
Accordingly, having outlined her response to the certified questions, she concluded that the appeal should be dismissed and the conviction upheld.
149. With the greatest of respect, I cannot agree with this reasoning or result: accordingly, I will endeavour to explain why my conclusion is different by reference to the following matters.
Assault and Consent: The Rule and the Exceptions.
150. At common law there emerged what might be described as a rule and what undoubtedly were described as exceptions to it, in the context of which we speak. The basic norm was that the absence of consent was an essential proof to a common assault but not to actual bodily harm (s. 47 of the 1861 Act), or grievous bodily harm (ss. 18 and 20 of the same Act) (“The Rule”). The exceptions were developed on an ad hoc basis (“The Exceptions”). The justification in support of the rule was variously stated: that in support of the permitted exceptions likewise: the rationale for both altered considerably over time and the distinction became blurred, with the court adjusting its position to meet the prevailing mischief, either actual or perceived. Despite the randomness of approach however, the difference between the rule and the exception must be maintained.
151. Take Coney : as above demonstrated the main theme of the judgments in criminalising prize fighting and in denying it special exemption related to public order concerns. If such could have been effectively controlled, in particular the prevention of civil disturbance by some other means, one wonders as to outcome (paras. 64 – 72 supra ). R. v. Donovan , although stating that Coney was of “great value” to its judgment, approached the matter from an entirely different perspective. Once the underlying act was intrinsically unlawful, or as put was malum in se , no degree of consent could nullify that badge of illegality (paras. 73 and 74 above). The further references in both cases spoke rather indiscriminately as to the raison d’être, eg . the intention or likelihood to cause bodily harm or the hostility of the blow struck: in which situations the rule prevailed . Foster’s Crown Law (3rd Ed. at 25a) which was cited with approval in R. v. Donovan suggested that where bodily harm was not the motive or was incidental only to an otherwise lawful activity, such as sport, or where the activity in question offered strength and skill for personal or public defence, in time of need, consent was a full answer. So activities such as “cudges, foils or wrestling” were consent based as was rough and undisciplined sport or play.
152. However, the basis upon which Coney was decided, and the approach of Swift J. in R. v. Donovan , was rejected in the Attorney General’s reference. The impact which that decision had on both cases is evident from the judgment of the Lord Chief Justice itself, but is also clear from that of Lord Mustill in R. v. Brown where, when referring to what Lord Lane had said, he stated “No reliance was placed on the unsystematic old cases on sparring, or on R. v. Donovan, or even as I understand it on R. v. Cooney , except that showing that the public interest may demand a special response to a special situation. Indeed the protection of the public, which had been the principal ground for the recognition of prize fighting as a special category in R. v. Coney was explicitly discarded”. And so commencing in 1981 and following through to the House of Lords decision in R. v. Brown , a new horizon was open: its start point was that an act consented to, will not normally be an offence but that at some point in the spectrum of harm the court, via public interest will intervene and render such consent legally inoperable. The hostility of the act complained of and the promotion of manly diversions were discounted as a ground for either rule or exception. The sole foundation for establishing boundary was policy based. Whilst therefore neither the Reference nor the decision of R. v. Brown altered the end point of the rule greatly (para. 150 supra ), nonetheless from an analytical point of view those judgments are quite significant.
153. Whilst criticism has been levelled at both the approach and justification judicially offered in Coney and R. v. Donovan , what is clear is that the common law position as to where the dividing line should be, was unhesitantly based on and derived from policy considerations, as indeed it must be said were the consequential exceptions to it. That this continued is self evident from the Attorney General’s Reference and from R. v. Brown . It can thus I think clearly be said that the key pillar in this area, was public policy. Accordingly, as such concept is a moving reflection of society, both Coney and Donovan must be viewed from a generational perspective and in a context where societal order and disorder were much different from the present.
Public Policy: Judge led.
154. In any event, the real point which motivates this discussion is that the use of policy considerations, whatever they may have been, was judge led. The outcome of a case therefore, either upholding the rule or recognising or even adding to the exception list, reflected what the court thought of as being representative at the time. To so say is not to criticise: indeed, it must be acknowledged that once public interest is recognised as a “fluid concept”, this avenue of reflection has its attractions, as the following brief reference shows.
155. In a subset of this general context, in the area of sexual activity, this can be seen in practice. In R. v. Boyea [1992] (Crim. L.R. 574 and 575), Glidewell L.J. said:-
The level of vigour in sexual congress which was generally acceptable, and therefore the voluntary acceptance of risk of incurring some injury, was probably higher today than in 1934 and therefore the phrase “transient and trifling” had to be read in light of attitudes in 1992.”
Therefore, the phrase “transient and trifling” which of course was used in R. v. Donovan should be understood in light of the conditions currently prevailing, wherever that might be.
156. Both in R. v. Brown and in R. v. Wilson [1997] Q.B., the courts likewise picked up on this point. In the latter case, Russell L.J. remarked that consensual sexual activity, between husband and wife in the privacy of the matrimonial home, is normally not a matter that should be subject to criminal investigation, let alone criminal prosecution. The status of the actors or the location of their privacy, if intended to have specific effect, would not be so regarded today.
157. In any event as is evident, the statement was reflective of public opinion and directly fed into the court’s judgment. How one may ask was Mr. Donovan a criminal but Mr. Wilson not: caning was treated far worse than using a hot knife to brand “A.R.” on his wife’s buttocks? Given how the court viewed the charges, the degree of harm could not have been decisive, nor can it be explained simply in a sexual context. The answer is I think more broadly based: it is derived from changing attitudes, behaviour, conduct and values. As aptly put by Glidewell L.J., there is a world of difference between what society tolerated seventy or eighty years ago and what is within mainstream boundaries today. In the absence of legislation, the judges in their judgments so determined.
Public Policy: Legislative Intervention.
158. The Oireachtas involved itself in this area of law and did so against the backdrop of the Law Reform Report in which all relevant case law from many jurisdictions was discussed and analysed. The Commission suggested a new or fresh structural approach, involving substantial changes to deal with non-fatal offences against the person. In essence and in all material respects, its proposals were enacted. Virtually all of the old common law assault type offences as well as kidnapping and false imprisonment, together with the supporting provisions of the 1861 Act, were abolished or repealed (s. 28 and the Schedule to the 1997 Act). It was the first major reform in this disperse and incoherent area for a very long time.
159. It cannot thus be doubted but that the Oireachtas, as part of its constitutional legislative function was fully cognisant of policy considerations when considering the 1997 Act. It must be assumed that what in its view was the appropriate level of public interest was reflected in the resulting measure. As the unanimous view of this Court shows, the Oireachtas certainly did so in making the lack of consent an element in section 3. So just as the common law position was replaced by statutory enactment, so too was the judicial view of policy. That being so, it is very difficult to see how, in the same breath the Act would reintroduce public policy from a judicial perspective and do so in a manner capable of nullifying the shift evident from section 3: in effect, re-establishing the primacy of the old common law rule, which had been abolished. Despite how unlikely this would be, one must nonetheless ask whether it is so, how and in what way was it achieved, and finally, what possible justification could exist for this quite anomalous legislative move.
Section 2/1997: Lawful Excuse:
160. As referred to at para. 145 above, it is within this element of the assault definition that Dunne J. finds a basis to determine the instant case on public policy grounds. With great respect may I say that in my view the phrase, “without lawful excuse” does not bear the meaning and is not capable of being utilised in the manner suggested by my colleague. My reasons are as follows.
161. For a great number of years what was intended by the phrase in question has formed an integral part of many offences: some common law, some statute based, some a combination of both. One does not have to look beyond the immediate context. In ss. 18, 20 and 42 of the 1861 Act, to name but a small number of such occasions, the offences therein described are committed when a person “unlawfully and maliciously” carries out the act prohibited. The word “maliciously” simply conveys the necessary mens rea , that is the intentional doing of the act ( R. v. Mowlatt [1963] 3 AER 47 at 49). The word “unlawfully”, according to Lord Templeman in R. v. Brown means that the accused had no lawful excuse or justification (p. 78): this was said in the specific context of s. 20 of the 1861 Act, but no doubt must have the same meaning throughout: for Lord Jauncey it meant “without good reason” (p. 89). In Fagan v. Commissioner of Metropolitan Police [1967] 1 QB 439, the court described common assault as the “intended use of unlawful force to another person without his consent” (p. 444) “or any other lawful excuse”, a phrase added by Lord Lane in the A.G. Reference. Much the same is stated in para. 147 of L.R.C. Report, As in R. v. Mowlatt and in Wilson v. Pringle [1986] 3 WLR 1 at p. 9, self defence was also given as an example of justified force.
162. In my view this is the meaning of the words “lawful excuse”, which meaning derives almost exclusively from the common law definition of assault. They have no wider signification than referring to situations where the use of force by an accused person was considered justified in law and therefore was regarded as non-criminal, or as sometimes put, was a full defence to an assault charge, even one of the utmost gravity. There were well established judicial rules regarding each example of this type of defence, but if and where statute directly intervened, the question thereafter solely became one of construction. Policy matters, apart from interpretive rules, played no part. I therefore cannot see how this phrase can be used as a route by which the generality of the s. 3 change can be so significantly curtailed.
Section 22/1997 Act: Lawful Justification.
163. A provision which is also relied upon as justifying the rejection of consent where the purpose of the act is unlawful, is s. 22 of the 1997 Act. As part of the argument it is suggested that the phrase “without the consent of the other” must be read as a requirement additional to the phrase “without lawful excuse”. I respectfully disagree. Because of its brevity may I be forgiven for quoting it again:-
“22.- (1) The provisions of this Act have effect subject to any enactment or rule of law providing a defence, or providing lawful authority, justification or excuse for an act or omission.
(2) Notwithstanding subsection (1) any defence available under the common law in respect of the use of force within the meaning of section 18 and 19, or an act immediately preparatory to the use of force, for the purposes mentioned in section 18(1) or 19(1) is hereby abolish.”
For the moment may I concentrate on the “lawful authority, justification or excuse” aspects of subs (1), which for convenience I will collectively term “lawful justification”.
164. The first observation which I make is that, at least for present purposes, no differentiation is required between any of the “nouns” used. There may be situations where context provides a distinction: not so in this case. Secondly, if this be so, why should not the words used be given the same meaning as “lawful excuse” now part of s. 3, subject only to the Act providing otherwise. For my part I know of no reason why not. Presumptively therefore, but subject to the caveat as entered, I believe that they should: accordingly, unless indicated, reference to either phrase should be regarded as applying to both.
165. Picking up therefore on what is said at para. 161 above, it seems to me that in trying to understand the words in issue, concepts well known to the common law such as self defence, or defence of others, or defence of one’s property or where otherwise lawful defence of another’s property, provocation (in a limited way), the prevention of crime, effecting an arrest as a common informer, assisting a member of An Garda Síochana to both arrest and maintain the arrest, immediately come to mind, as providing a lawful justification for what otherwise would undoubtedly be an assault, or in the case of provocation one of greater magnitude. Many of the instances given, which are not exhaustive of what previously existed, are now governed by ss. 18 and 19 of the 1997 Act, which provide for the justifiable use of force in protecting a person, property, preventing crime etc, and the justifiable use of force in effecting an arrest, respectively.
166. This view of the similarity between lawful excuse and “lawful justification” as the term is used, is shared by the textbook writers. Éamonn O’Moore, Non-Fatal Offence Against the Person: Law and Practice (Clarus Press, Dublin, 2018), notes at paragraph [2.104] that “lawful excuse” is broadly stated and could include, but not be limited to, the lawful exercising of police powers or the justifiable use of force, as detailed in ss 18 and 19″. Similarly, Charleton, Bolger and McDermott express the view at paragraph [9.86] of Criminal Law that “[t]he words ‘without lawful excuse’ should be read in conjunction with s 18 of the 1997 Act which codifies the occasions when force may be used justifiably”. Ivana Bacik was of a similar view in her annotations to the 1997 Act:
“The words ‘without lawful excuse’, although taken from the common law definition of assault, must now be read in the light of section 18, which provides that the use of force by a person, to the extent that is reasonable in the circumstances, may be justifiable in a number of instances, in particular where they are seeking to protect themselves or a member of their family from injury or assault; or to protect their property.”
Accordingly, I am satisfied that the above accurately sets out the meaning of the phrases in question and also, accurately represents the current relationship between those aspects of s. 2 and s. 22 of the 1997 act.
167. In none of these or other similar circumstances is there any question of a third party’s consent being involved: an intruder with the aim of theft or an assailant intending to disfigure are quite unlikely to acquiesce to being physically harmed in the protection of property or defence of one’s self: it would thus be entirely illogical if the use of justified force was not, without more, a defence to any resulting assault charge. It would seem even more extraordinary if in addition non-consent also had to be established. Such an approach I believe is incompatible with first principles. So whilst both consent and justification are related, they must be regarded as separate and distinct for present purposes.
168. As it happens the Law Reform Commission has commented on this (para. 1.108): it states that the issue of consent is a broader concept than the individual instances of lawful justification which I have just mentioned. It does not suggest in that passage or elsewhere that justification on its own cannot render harmless the force used. Rather it confirms that at common law a particular aspect of consent was the founding basis for the most widely used exception of all, regarding the inviolability of the person. This arose in the context of people going about their everyday business and applied to common intercourse occurring in “the ordinary conduct of daily life”: this topic is well discussed in Collins v. Wilcock [1984] 3 A.E.R. 374. That exception is now to be found in s. 2(3) of the 1997 Act (para. 141 supra ). It is therefore clear in my view that the true meaning of the words in discussion is that as described herein.
Section 22/1997 Act: Defences at Common Law.
169. There is however a second aspect of s. 22 of the 1997 Act which needs to be addressed. By its terms the provisions of the Act are subject “to any defence” which previously might have been available under any enactment or rule of law. Undoubtedly the common law’s position on assault/consent is of course a rule of law and therefore on its face appears to have been preserved. The question however arises as to what effect this provision has on the consent element of an assault causing harm, the section 3 offence?
170. On a narrow basis one could suggest that s. 22 has no effect because of this Court’s interpretation of the offence causing harm, where the absence of consent is now an essential element of the D.P.P. proofs. As the section refers to a ‘defence’, it could be said to have no application, particularly so as the word “defence” is directly coupled “with lawful authority, justifying an excuse”. Although a viable argument, I am not satisfied to rest my conclusion on this basis. I do so more fundamentally by considering the legislative intention in enacting s. 3, and when such is viewed in the context of the Act as a whole, the provisions of s. 22 cannot in my view supplant the consequences of such an enactment.
171. In this context may I comment in passing on para. 22 of the judgment under appeal where the court, having referred to the Explanatory Memorandum to the 1997 Act went on to say “this section [s. 22] already contemplates the continuance of the common law rule that consent cannot be a defence to the infliction of serious harm save in very particular circumstances”. May I respectfully suggest that this is not so, and results from a conflation of the rule with the exceptions. The Memo speaks solely of the activities involved in sport, dangerous exhibitions and medical treatment, all exceptions. As such it offers no basis for the conclusion arrived at by the court. Furthermore, and in any event, its overall view, as encapsulated in para. 39, was of course highly influenced by its attraction to Dolny , which is no longer the law.
172. As previously outlined a lack of consent was neither an element of nor a defence to an assault causing actual bodily harm, subject only to certain recognised exceptions as above discussed (paras. 81-82, supra ). The effect of the 1997 Act is to make lack of consent part of the actus reus of such offence, and thus must be proved by the prosecution at trial.
173. As I read the old case law, the reason that consent used not be a defence generally to causing actual bodily harm was policy dictated: no one should harm another “for no good reason”. Whether or not consent could be a defence depended both on the level of harm caused and on the circumstances in which it was inflicted. Exceptions – “good reasons”, in other words – were recognised on an ad hoc basis. Some, such as surgical intervention for the benefit of the patient, require little explanation: the valid social purpose of the operation will justify it even where the risk of harm was significantly above what the common law would otherwise recognise. The same can probably be said for the exception for sporting activities at least in general, even if the benefits to society regarding some events must be highly doubted (para. 83 supra ). On other occasions the line between what could and could not be consented to was less obvious: compare the circumstances of Mr. Donovan with those of Mr. Alan Wilson. Although the former was charged with common assault it appears, that the court treated it as one causing actual bodily harm, the same as that faced by Mr. Wilson. It seems that the key distinguishing factor between the outcome in both cases was the courts’ assessment of the degree of harm involved (para. 157 supra ). This is significant for our purposes
174. As I read the judgment of Dunne J., it preserves the prevailing position whereby one can only consent to that which is lawful; thus if the conduct falls within an existing (or yet-to-be-recognised) exception, one can consent to that, but if it does not – as in this case – the consent is immaterial. Therefore it appears that the change of substance is that the section makes lack of consent an element of the offence to be proved by the prosecution, rather than being a defence to be raised by an accused; it effects no change, however, to the level of harm that can be consented to.
175. In my view, the shift by the Oireachtas, which undoubtedly was deliberate, can only have been intended to alter the law more fundamentally: this in my view has been achieved through making lack of consent an element of the offence. As I see it, the proper construction of section 3, both based on its plain terms and as informed by its legislative history, and particularly the LRC Report which preceded the 1997 Act, is that it effected a notable change in the law regarding the degree of harm that a person can consent, in all circumstances, to having inflicted upon them.
176. Again as noted earlier in this judgment, one could not consent to the infliction of harm beyond a certain threshold, which threshold has now been moved by the 1997 Act. It is therefore difficult to see why the notion of valid consent under section 3 should be referenced solely to the established exceptions under the old law, when the threshold was lower. As I read it, the plain meaning of the section is that it is for the prosecution to prove a lack of consent in every case (provided that the injury does not rise to the level of “serious harm”, which would move it into section 4, where lack of consent is not an element of the crime, nor is consent a defence). Of course any consent must be freely given, by a person of age and with the capacity to consent, and must also be fully informed. Factors such as intoxication, duress or vitiation by fraud may also have a bearing on any consent given; such are by no means an exhaustive list of the matters which may be relevant. Consent will be a factual matter to be determined in each case by the jury. Subject to such general requirements for valid consent, however, in my view the proper construction of the 1997 Act is that it has changed the law such that one can now consent to assault causing harm; put differently, it is always for the prosecution to prove lack of consent, including in circumstances that do not fall within an exception recognised under the pre-1997 law. Thus the line at which consent becomes immaterial has been moved by the Act from “harm” to “serious harm”. Though some commentators have observed that such is a high threshold for consent purposes and question whether that was the true intention of the Oireachtas, nonetheless, like me, they accept that it is the obvious consequence of the section 3 definition. At page 533 of their work the authors state, “Nevertheless as a matter of literal interpretation this conclusion seems inevitable.” ( Criminal Liability McAuley & McCutcheon. I respectfully agree.
177. If s. 22 can be utilised to negate the above conclusion, such in my view would run in direct contradiction to the essence of the shift achieved by the interaction between ss. 2 and 3 of the Act. It would be an interpretative absurdity to believe that the significance of the change by s. 3 would immediately be nullified by the preservation contained in s.22. I do not doubt that the section has the capacity of continuing the existing exemptions as embedded in the common law. I do not have to decide whether it would have any application to a set of circumstances not falling within or being analogous to those exceptions. Even the acceptance mentioned however must be subject to the Act. Sections 18 and 19 specifically abolish the common law defences of self defence of person, family member, or third party and property and also the use of force in effecting, or assisting in conducting a lawful arrest. In their place stand the sections which I have mentioned. So, the statutory defences simply supersede those previously available, at common law. Likewise, the adjustment created by section 3 cannot be abrogated by the old common law approach to exemptions, for to hold otherwise would amount to a form of “contra legem”.
178. It seems to me that if possible the Act must be given a reading of consistency between provisions so as to reflect the overall purpose, aims and objectives of the legislation. No novel rule of interpretation is required for this. It seems obvious that the relevant part of s. 22 must be read as applying only where it is not otherwise inconsistent with the 1997 Act, at least with its key provisions. Therefore, whilst the common law exceptions continue to apply, they cannot foreclose on new situations which otherwise the legislature has provided for: this evidently in the context of ss. 2 and 3 of the 1997 Act,
179. Accordingly, I respectfully disagree that either the phrase “lawful excuse” or s. 22 affords any legal justification for the views held by the majority of this Court.
Unlawful Purpose: Unlawful Agreement.
180. Another suggestion hinted at if not directly advanced against the suggested consequences of the section 3 change, is that the same would facilitate frauds of one kind or another. I do not see how this could be the case. Take a staged road traffic accident where an injury is suffered with the intention of defrauding an insurance company or where a joint enterprise is engaged in with a similar intention regarding, say, the Department of Social Welfare. That the underlying conduct – infliction of injury – may lawfully be consented to would not in any way legitimise the follow on attempts of obtaining money by false pretences, fraud or deception. All such activity would attract the same criminal sanctions and civil protections as they presently would I therefore do not see this as offering countervailing reason for the conclusion as above reached.
Public Order/Street Fighting.
181. A further argument is that the interpretation of section 3 which I have adopted would mean that one could consent to “settling the score” outside the pub after an argument, or to manifestly undesirable conduct, such as street-fighting provided serious harm is not caused. The provisions of sections 14 (“Riot”), 15 (“Violent disorder”) and 16 (“Affray”) of the Criminal Justice (Public Order) Act 1994 would undoubtedly be available to the DPP in such circumstances. Whilst I acknowledge some uncertainty as to the meaning of “unlawful violence” I would be surprised if in principle such offences were not applicable in respect of organised street-fighting or other such unlawful conduct. One may add to this list, Disorderly Conduct, Endangerment and Public Nuisance. Furthermore it goes without saying that the use of any type of weapon would recharacterise the conduct in question. In addition, it may also well be that local by-laws could be useful. If all of these potential avenues are ineffective then such is an unintended and unwelcome consequence of the manner in which section 3 of the 1997 Act was drafted, and one which would surely require legislative intervention to correct. However, it is not necessary to go further with this analysis at this point: it is better to await individual issues as they may arise on a case by case basis.
182. In this context, I briefly mention the judgment of O’Malley J., whose principal point is that the unlawfulness of purpose plays a central role on the interpretive issue: added to that, is her rejection of my suggestion that “in principle” the offences last mentioned would be available in the context of public order/street fighting. The first point so made has been dealt with, at some length, elsewhere in this judgment. The second point, if I may respectfully say seems like interpretation by effect and consequence rather than result by interpretation. Such is not the view which I take of the required exercise demanded by this issue in the context in which it arises. Furthermore, this very same suggestion has been made by the Law Reform Commission in its published Report. Accordingly, I respectfully reject the criticism offered.
Jobidon v Her Majesty The Queen [1991] 2 SCR 714
183. The decision of the Canadian Supreme Court in Jobidon , though not referenced in the submissions or argued before us has been relied upon as providing support for the views of the majority of this Court. That was a case where the accused person was charged with manslaughter arising out of a consensual fist fight on a public street. The defence was one of consent. On such a basis the trial judge held that the consent of the unfortunate victim to a “fair fight” negated the assault aspect of the charge and thus Mr Jobidon was not guilty of manslaughter. The Court of Appeal disagreed and substituted a verdict of guilt: the appeal against the conviction was dismissed by the Supreme Court.
184. The section of the judgment of Gonthier J, speaking for the majority, which is most relied upon include the following, “The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl…”. I immediately confess to some uncertainty as to the true meaning of this passage.
185. I readily appreciate what “serious harm” entails: it is largely the equivalent of the s. 4 offence in this jurisdiction. Consent is therefore immaterial to such charge, this I understand. But I am less certain about what immediately follows, that is the reference to “non-trivial bodily harm”. At first glance both phrases do not appear to sit comfortably side by side. Non-trivial bodily harm is some distance from serious harm. From this passage therefore it is somewhat uncertain as to precisely what the learned judge had in mind. However it must be acknowledged that from an overall reading of his decision the most likely intention was that any force greater than common assault was beyond the reach of consent. I therefore acknowledge that this is probable conclusion which has been reached.
186. In Canada all criminal offences are included in the Criminal Code, the first of which was passed in 1893. It is section 265 of the 1985 Code which was directly in play in Jobidon.
187. The main reasoning of the majority for the conclusion reached was their view that the provisions of this section deliberately avoided defining “the situations or forms of conduct or eventual consequences which the law will recognise as being valid objects of consent for the purpose of the offence”. As such this task was left to the court, untrammelled in any way by the legislature.
188. In conducting the resulting exercise, the court approached the issue purely by way of domestic interpretive rules which from my reading of the judgment are not at all readily transferrable to this jurisdiction. If for no reason other than this, a cautionary approach must be adopted in respect of that decision having significant precedential value in this jurisdiction.
189. In addition however Article 8 of the Code provided that the criminal law of England continued in force save where it was inconsistent with any Canadian statutory provision. Given what s. 265 did not cover the court extensively followed English jurisprudence in this area, in particular the Attorney General’s Reference. With that approach and in the belief that s.265 neither covered the issue in question or altered the common law’s position on assault/consent, it determined the appeal in the manner above stated.
190. The situation in this jurisdiction is critically different: s. 3 has altered the threshold of consent and has departed from the common law and the cases which established the position adopted by it. I therefore do not accept that one can readily import Jobidon into this jurisdiction: Instead I believe that domestic legislation must take precedence which in my view has the consequences previously stated. I therefore do not believe that Jobidon is as authorities as what is suggested.
An Aside.
191. As an aside, for it is not truly an issue before this Court, I do not see that there was any basis to keep the issue of consent from the jury on any grounds related to the purported enforcement of an unlawful agreement; though the same is a valid basis not to enforce a contract at the suit of one of the parties, I do not see that that rule of law has any role to play in the circumstances of this case.
192. In conclusion, therefore, it follows from my view of the proper interpretation of section 3 that it was for the prosecution to prove that Mr Cooper did not consent to the attack by Mr Brown. I would accordingly hold that the trial judge erred in not allowing the issue of consent to go to the jury.
Residual Matters
193. Given the conclusion which I have reached in relation to the interpretation of sections 2 and 3 of the 1997 Act and the consequences of same for the appellant, it is not necessary to address his submissions concerning parliamentary debate and public policy. It is clear that the thrust of his submissions in this regard was that in interpreting the statute the courts below had applied a view of public policy which was diametrically at odds with that expressed by Minister Nora Owen when introducing sections 2, 3 and 4 of the 1997 Act in the Dail. The Court’s attention has been drawn to the following remarks by the then Minister:
“The first substantive section of the Bill before the House is section 2. This section replaces the common law offences of assault and battery usually referred to as ‘common assault’ with the new offence of assault which combines, in one offence, the element of inflicting personal violence as in ‘battery’ and the element of causing another to apprehend the immediate infliction of personal violence in ‘assault’. This offence will cover most minor assaults and I am providing that the penalty on summary conviction will be a fine not exceeding £1,500 or imprisonment for up to six months or both.
Section 3 deals with the more serious offence of assault causing harm. This new offence replaces the offence of assault causing actual bodily harm contained in section 47 of the 1861 Act. I am providing a maximum penalty of five years for this offence, which is the same as the existing penalty. Under the present law, consent cannot be a defence to a charge of causing actual bodily harm. The Law Reform Commission recommended that such a rule is no longer appropriate and I have accepted that view. Since section 3 is framed by reference to an assault and consent is a defence to simple assault, it will also be a defence where actual bodily harm is caused. We are not talking here of cases of serious harm which are covered by the next section.
Section 4 creates the offence of causing serious harm, which will replace the offences of wounding or causing or inflicting grievous bodily harm in sections 18 and 20 of the 1861 Act. Consent will not be a defence to a charge of causing serious harm but section 22 provides that existing common law defences will continue to apply. Accordingly, the common law rules under which bodily harm arising in the course of sports, dangerous exhibitions or medical treatments will apply, where appropriate, to exempt the action from criminal liability. I have provided that a person convicted of this offence on indictment will be liable to life imprisonment.”
194. It is said that the interpretation of the courts below runs counter to the policy expressed in these remarks. Evidently I have come to a different view on the construction of the sections than did the learned trial judge and Mahon J. I refer to the above extract of the Minister’s speech merely to flag that it was drawn to the Court’s attention by the appellant. However, I have not had regard to same when interpreting the provisions in question. It is true that the certain common law jurisdictions have relaxed the rule according to which reference to parliamentary debates as an interpretive aid is not permitted. However, the law in this jurisdiction remains as stated in Crilly v. T & J Farrington Ltd . [2001] 3 IR 251. Though the issue did not fall for determination in that case, Denham J., Murray J., McGuinness J. and Fennelly J. each stressed caution in modifying the rule regarding the admissibility of words spoken in parliamentary debates as an aid in construing statutes. Various cogent reasons were given for same, and it is not necessary to retread that ground here. This is a point which may arise again in the future, but, based on the conclusions I have reached earlier in this judgment, I do not think that it is appropriate to go against that default view in this case. The views expressed by the Minister are simply not a relevant matter in construing the 1997 Act.
195. As it transpires, in my view the proper meaning to be attributed to the provisions in question corresponds to the intention expressed by the Minister. This could undoubtedly have been made clear. Had the first principles of statutory interpretation compelled me to a different conclusion, the fact of the Minister having declared otherwise would not have altered my view. Although I am not required to decide it in this case, I should say that I do not find any force in the appellant’s argument that courts cannot form their own view of public policy, distinct from that expressed by the Executive. Courts are frequently called upon to do same and the ascertainment of public policy is by no means the exclusive preserve of any one branch of government. Such remarks are, of course, no more than obiter .
Conclusion
196. For the reasons above articulated, I would allow the appeal.
Quinlivan v. Governor of Portlaoise Prison (No.2)
[1998] 1 I.L.R.M. 294
Barron J
The applicant was arrested at common law on 16 October 1996 upon a charge of false imprisonment on 25 August 1996 of one Michael Lyons at Greenhill Road, Garryowen in the city of Limerick. Following upon the issue of a certificate by the Director of Public Prosecutions pursuant to the provisions of s. 47(2) of the Offences Against the State Act 1939 the applicant was brought before the Special Criminal Court for the purpose of being charged with the said offence. At a purported sitting of that court on 16 October 1996 the applicant was remanded in custody until 13 November 1996. Following upon the making of that order the applicant was held in custody in Portlaoise Prison.
It was subsequently ascertained that one of the judges sitting on the court had previously tendered his resignation to the government; that it had been accepted; and that such acceptance had been promulgated in Iris Oifigiuil on 6 August 1996. The legal effect of this circumstance was that there was no valid court sitting on 16 October 1996 and accordingly no valid warrant for the remand in custody of the applicant. His imprisonment accordingly in Portlaoise Prison was unlawful. When the state of affairs was finally appreciated a direction was given by the Minister for Justice to the respondent to release the applicant.
At approximately midnight on the night of 6/7 November the applicant together with a number of other persons who were then unlawfully detained in Portlaoise Prison for the same reason were informed that they were being released from the prison. The method of release adopted was to take them individually through the main gate of the prison where they were then met by a number of members of An Garda Síochána each of whom had been instructed by their superior officers to effect an arrest of one or other of those being released. In the event the applicant was arrested outside the main gate of the prison and together with others was brought before a properly constituted Special Criminal Court and remanded in custody by that court.
It is submitted on behalf of the applicant that he is now in unlawful custody. On his behalf it is submitted that he was not released by the respondent in the circumstances which have been outlined since there were three further locked *298 gates on prison ground through which he would have had to pass before reaching the public street. It is further submitted that accordingly the further arrest was unlawful and that, even if it was not unlawful, because there was a valid release of the applicant by the respondent nevertheless by reason of the delay in taking the steps which were taken there was an abuse of process and the arrest was unlawful.
So far as these issues raise questions of fact they have already been decided and in my opinion properly decided by the trial judge as follows. When the governor became aware that the warrant under which the applicant was being held was invalid, he took immediate steps to arrange for his release. When arrested by the gardaí, the applicant was no longer in the custody of the respondent.
These findings of fact dispose in effect of the issues so raised since factually the answers are as follows. He was released by the respondent before he was arrested by the gardaí. Therefore the question predicated on the failure to release him does not arise. Finally, since there was no delay as found by the learned trial judge, the arrest cannot have been tainted upon this ground.
Nevertheless further issues were argued and these must be addressed. It was submitted that the Special Criminal Court had no jurisdiction because the accused was not lawfully brought before it because he had been arrested unlawfully; and that, accordingly, the principle that a court of trial has jurisdiction to try an accused notwithstanding the manner in which he or she is brought before it has no application.
It was also submitted that once a person is in unlawful custody (a) it is impossible to legalise his detention and (b) the detainee must be released and allowed sufficient liberty to enable him to avoid a subsequent arrest should he choose to exercise this right; if not so released, a lawful arrest cannot be made.
These were essentially the issues of law that were raised in People v. Colm O’Shea (1981) 2 Frewen 57. They were not answered in that case since it was held that the particular arrest was lawful.
It is also submitted that the circumstances in which the applicant found himself on 7 November 1996 arose from a concerted plan entered into between the authorities to ensure that the gardaí would be in a position to arrest the applicant when he left the prison.
In large measure the applicant’s case is based upon the decision of this Court in State (Trimbole) v. Governor of Mountjoy Prison [1985] IR 550; [1985] ILRM 465. The essential facts in that case were as follows. The prosecutor was at liberty. He was arrested under the provisions of s. 30 of the Offences Against the State Act 1939. There was no lawful basis for such arrest. The purpose of the arrest was to ensure that the prosecutor did not escape the consequences of a lawful request for his extradition to the Commonwealth of Australia. Such request could not lawfully have been made at the time of the purported arrest *299 under s. 30. However, extradition procedures with the Commonwealth of Australia were put in place the following day and it then became possible to arrest the prosecutor pursuant to warrants received from the Australian authorities. Meanwhile the prosecutor’s arrest was challenged and an order of the High Court was made for the immediate release of the prosecutor. At the same time a valid warrant for the arrest of the prosecutor had been obtained from the District Court as a result of the extradition procedures having been made applicable to the Commonwealth of Australia. Accordingly on his release, the prosecutor was again arrested. This arrest was again challenged in the courts. It was held that the first arrest was a conscious and deliberate violation of the constitutional rights of the prosecutor and that since the second arrest was possible only because of such violation, it had to be treated as unlawful also.
The principles upon which the challenge was decided are set out by Finlay CJ at pp. 573/484 where he says:
I am satisfied that from these decisions certain general principles can be deduced. They are:
The courts have not only an inherent jurisdiction but a positive duty: (i) to protect persons against the invasion of their constitutional rights; (ii) if invasion has occurred, to restore as far as possible the person so damaged to the position in which he would be if his rights had not been invaded; and (iii) to ensure as far as possible that persons acting on behalf of the executive who consciously and deliberately violate the constitutional right of citizens do not for themselves or their superiors obtain the planned results of that invasion.
It is only because he was at liberty before such violation of his constitutional rights that he had to be restored to that position.
What occurred in Trimbole’s case was that there was in effect a wrongful taking of the prosecutor so that when warrants were received for his extradition he would be in a place where they could be executed. The facts were not unlike those in R. v. Horseferry Road Magistrate’s Court, ex p. Bennett [1994] 1 AC 42 where the prosecutor was unlawfully brought from South Africa to England in order to answer criminal charges in England. In both cases, the gross abuse of executive power was rightly condemned.
That is not the case here. There was no concerted plan on the part of the authorities constituting a conscious and deliberate violation of the applicant’s constitutional rights. The arrest of the applicant on 7 November 1996 cannot be made unlawful on this ground.
The final question which arises is whether a valid arrest can follow upon a release from unlawful custody.
In In re Singer (No. 2) (1964) 98 ILTR 112 the prosecutor had been in custody *300 in Mountjoy Prison when he obtained an order of habeas corpus. He was released from the authority of the prison governor by being brought outside the main gate of the prison, where he was then arrested by An Garda Síochána. Even though the place of arrest was on prison property it was held by this Court that such arrest was valid.
A clearer understanding of arrest is to be found in the judgment of Davitt P in In re Ó Laighléis [1960] IR 93. The prosecutor in that case had been in lawful custody. While in such lawful custody he was rearrested and it was submitted on his behalf that such rearrest was unlawful. At p. 108 Davitt P said:
Does it make any difference to this view that the applicant was then in another lawful and subsisting custody? The fallacy in contending that it does lies in regarding an arrest as essentially the determination of a pre-existing liberty. This is not, in our view, an essential or necessary feature of an arrest. The essence is the restraint from liberty as from the moment of arrest, that is, the subsequent or future restraint. It is irrelevant, therefore, to the true nature of an arrest whether the person arrested was then at liberty or not. It is true that an attempted arrest of this nature may not be successful if the existing custodian insists on continuing his own custody. This did not however happen in the present case.
There is a similar fallacy in the submissions made on behalf of the applicant that there can be no proper release from custody when the person released passes into the custody of another consequent upon a lawful arrest by such other person. This was not accepted in Singer’s case where the release was from an unlawful custody as is the case here. Nor was it accepted in the Ó Laighléis case as appears from the passage to which I have referred. What may be relevant is whether the arrest is tainted by something which had already occurred as in Trimbole’s case. What has to be considered is not the fact of the subsequent arrest but the circumstances which enabled the subsequent arrest to take place. In the present case there is nothing in the circumstances as found by the learned trial judge which could in any way invalidate the arrest by An Garda Síochána outside the main gate of Portlaoise Prison in the early hours of 7 November 1996.
He was in apparent legal custody until it was discovered that owing to administrative error a warrant under which he was detained was invalid. In such circumstances there was a positive duty upon the authorities to remedy the situation.
This positive duty was performed by the prompt release of the applicant by the respondent followed by his immediate arrest by the gardaí so that he might be brought before a properly constituted Special Criminal Court for such court to make such order as it considered proper.
It is significant that the challenge against this procedure is that there was no release because the applicant was not brought to the public street before he was *301 rearrested. The law would surely be an ass if it denied the right of the gardaí to arrest a person on private property where the person arrested had no chance of escaping arrest, in favour of permitting his arrest on the public street where he would have had the same lack of chance of escaping. But the submissions on behalf of the applicant do not stop there. It is accepted that such irregularity would have been permissible if it was necessary to ensure the arrest of the applicant. But because the irregularity could have been avoided by bringing him to the public street in the circumstances indicated, the arrest was unlawful. I cannot accede to a submission based upon such a premise.
The position in which the applicant would have found himself but for the invalid order of the Special Criminal Court on 16 October 1996 was that he would have been in the lawful custody of An Garda Síochána until such time as his case could have been dealt with by a properly constituted court. He appeared to have passed out of such custody, but once the administrative error was discovered, there was an obligation to ensure that he was returned to such custody so that he could be brought before a lawfully constituted Special Criminal Court. In the result not only was it the positive duty of the respondent to release the applicant but at the same time it was his duty to see that he was restored to the custody of the gardaí.
It follows that the applicant was lawfully brought before the Special Criminal Court on 7 November 1996 and that following the order of that court he is now in lawful custody. The question whether that court would have had jurisdiction even if the applicant’s arrest on 7 November 1996 was unlawful does not arise.
I would dismiss the appeal and affirm the order of the High Court.
People v. Kavanagh
[1997] IEHC 164 (29th October, 1997)
THE SPECIAL CRIMINAL COURT
Barr J.
Smyth J.
Reilly J.
THE PEOPLE
-v-
JOSEPH KAVANAGH
Judgment of the Court delivered by Mr. Justice Barr on the 29th day of October, 1997
COUNTS 1, 2 AND 3 IN THE INDICTMENT
1. Mr. White, counsel for the accused, has raised an issue of law regarding counts 1, 2 and 3 in the Indictment. They relate to respectively the false imprisonment of James Lacey, Joan Lacey and Suzanne Lacey which are stated to be “contrary to Common Law and as provided for by Section 11 of the Criminal Law Act, 1976” (the 1976 Act). It is submitted that the offence charge is one at common law only and that Section 11 deals with penalty and does not create a statutory offence. The significance of this is that a statutory offence of false imprisonment has been created by Section 15 of the Non-Fatal Offences Against the Person Act, 1997 (the 1997 Act), which also abolishes the prior common law offence. There is no provision in that Act or in the Interpretation Acts saving prosecution of such offences at common law allegedly committed prior to the date when the 1997 Act came into force (19th August of this year) and which come to trial after that date. Mr. O’Higgins, counsel for the prosecution, accepts that such a lacuna exists, but he submits that Section 11 of the 1976 Act creates a statutory offence of false imprisonment which has not been abolished by the 1997 Act. Mr. White concedes that if there is a statutory offence of false imprisonment created by Section 11 in addition to that at common law, then the accused may be prosecuted and tried for the statutory offence therein created after the 1997 Act came into operation.
Section 11 of the 1976 Act is in the following terms:-
“11(1) The offences of kidnapping and false imprisonment and an offence under Section 10 of the Criminal Law (Jurisdiction) Act, 1976 shall be felonies.
(2) A person guilty of kidnapping or guilty of false imprisonment shall be liable on conviction on indictment to imprisonment for life.”
2. In the opinion of the Court the foregoing provision does not create a statutory offence. What it does is to categorise the common law offences of kidnapping and false imprisonment as being felonies and it provides also the maximum penalty which may be imposed on a person guilty of such offences. Section 11 is not a provision similar to Section 47 of the Offences Against the Person Act, 1861 which does create a statutory offence in addition to a similar offence at common law – see the judgment of O’Dalaigh C.J. in The State (O) -v- O’Brien [1971] I.R. 42 at pp.50 and 51. It follows, therefore, that Mr. White’s submission is well-founded that it is not possible for the Court to consider counts 1, 2 and 3 in the Indictment as the offences charged have been abolished by the 1997 Act.
3. The court regards it as surprising and most unfortunate that those having responsibility for the drafting and enactment of the 1997 Act should have made an obvious error of such a serious nature.
COUNTS 5, 6 AND 7
4. The remaining counts in the Indictment charge the accused with respectively robbery at the National Irish Bank, College Green, Dublin on 2nd November, 1993; the related offence of demanding with menaces and possession of a firearm at Blackrock, Dublin on the same date with intent to commit the indictable offence of false imprisonment.
5. Having considered the evidence, the court is satisfied beyond reasonable doubt as to the following matters:-
6. Mr. James Lacey was, in November, 1993 the chief executive of the National Irish Bank, a “high street” bank, which has its principal place of business in College Green and its administrative headquarters at Wilton Place, Dublin. Mr. Lacey then resided with his wife and children in a dwellinghouse at Blackrock, County Dublin.
7. At or about 1.30 a.m. on the morning of the 2nd November, 1993, Mr. Lacey and his wife arrived home by car from a business engagement in the midlands. They had employed a baby-sitter, a young lady called Tanya Waters, to mind their children, Suzanne aged 14 years; Robert aged 13 years; Louise aged 10 years and Sarah Jane aged 6 years. On their arrival at the house, Mr. and Mrs. Lacey were apprehended by an armed gang which appears to have comprised about seven men. Mr. Lacey was struck on the head with a firearm. He, his wife and Ms. Waters were forced to lie down on the drawing-room floor. He was handcuffed. The children were woken and brought downstairs. Later, by direction of the gang, they were brought back to their bedrooms by Ms. Waters, dressed and brought downstairs again. Soon afterwards the children, Mrs. Lacey and Ms. Waters were taken to another living-room on the ground floor where they were tied up with sheets and photographed by a polaroid camera which was then destroyed. Meanwhile, Mr. Lacey was forced to remain in the drawing-room. He did not see his children or the baby-sitter again that night. Mrs. Lacey was told by one of the gang that she would be brought to where her husband was being held and that she was to inform him that he must do everything he was told by the gang and that his son, Robert, had been shot in the hand – by inference as a warning about what the gang would do if Mr. Lacey did not carry out their instructions. She did as she was told. In fact Robert had not been shot. Mrs. Lacey, Ms. Waters and the children were taken away by the gang when they left the house at about 6.00 a.m.. They were brought to a secluded stable at Blackhorse Avenue where they were gagged, tied up and threatened that they would be knee-capped if anything went wrong. They were found by garda officers late in the evening of 2nd November.
8. While the family were being detained in their home, Mr. Lacey was told by one of the gang that they would be bringing a man to the house and that he (Lacey) was to accompany this man in a van to the National Irish Bank, College Green, in the morning. It was intimated to him that the gang was aware that there was a “secret room” in the bank which was full of cash. This money was to be loaded into the van. It was further intimated that the gang was aware of certain details about himself; the manager at College Green, Mr. Keenan, and another member of the staff, Mr. Boner. This included information about their families and where they lived.
9. A man was brought into the room where Mr. Lacey was being detained and was put lying on the floor beside him. He was hooded and his feet were tied; he was unshaven and filthy. Soon after his arrival, the man’s hood was removed. Mr. Lacey was told that this was the person who would accompany him to the bank. At that stage the man was taken upstairs by members of the gang and he reappeared shortly afterwards cleaned up and clad in Mr. Lacey’s clothes. This man was the accused. While the latter was upstairs Mrs. Lacey was brought into the room where her husband was detained. She had a pillowcase over her face. She lifted it up and informed him that she was being taken away. At or about that time and before the accused returned to the room, Mr. Lacey was handed by a gang member polaroid photos of his wife, Ms. Waters and each of the children. He was told that if he wanted to see them again alive he was to follow the instructions he had been given.
10. When the accused returned to the room he sat beside Mr. Lacey. He, the accused, was given further instructions relating to the robbery. He was given a pair of red coloured spectacles which he was told to wear as an indication that events were going according to plan. The leader of the gang told Mr. Lacey that the accused would drive the van to the bank and park next door to the loading-bay in St. Andrew Street. He was told that they were not to leave home before 10.00 a.m. and to arrive at the bank by 11.00 a.m.. The operation there was to conclude at 1.00 o’clock. It was to be carried out as quickly as possible and Mr. Lacey was to remove “walkie-talkies” from the security men.
11. After the gang had gone, Mr. Lacey queried the accused as to his identity and where he had come from. He responded that the gang had told him not to say who he was and he indicated only that his first name was “Joe”. He also stated that he had been kidnapped and held for two weeks prior to that time. He said that he had been brought to the Lacey house by members of the gang; that they were dangerous people and that their instructions must be followed. He said that he also had instructions not to tell Mr. Lacey where they were to collect the van and was not to release him until 7.00 a.m.. At or about 8.00 a.m. he did so and Mr. Lacey then made tea for both of them. In course of a further conversation, the accused showed Mr. Lacey polaroid pictures of his sons and mother-in-law. He said that they were being held captive by the gang and that he feared for their safety. He said that he had been told by the gang that his family would be killed if he did not do what he was told. He stated that he had also been informed that one of his sons has been shot in the hand. He then reiterated that “these men are deadly serious”. Sometime later the accused told Mr. Lacey that the van was parked at Merrion Church opposite St. Vincent’s Hospital. He then explained that he had been apprehended by the gang at a health club in Crumlin; held in awful circumstances and he again stated his belief that the gang were holding his children.
12. Having left the house at 10.00 a.m. in Mr. Lacey’s car, he drove the accused to the car park in front of Merrion Church where the latter pointed out a green van which was discreetly parked near a wall. The keys were on the driver’s seat as arranged by the gang. They got into the van and the accused told Mr. Lacey that he was not a very good driver and that he hoped he would be able to drive the vehicle. They drove out of the car park and turned right for the city. Mr. Lacey considered that the accused drove quite well except for a failure to change gears. He drove in a high gear.
13. On arrival at the bank, Mr. Lacey and the accused went to the private office of a witness, Mr. Eugene Keenan, the senior manager, and met him there. Mr. Lacey told the latter what had happened; that his wife and children had been taken away by the gang; that the accused was in the same situation as to his family and that the gang wanted all the cash which was stored in the bank. Both men showed Mr. Keenan polaroid photographs of their respective children which had been given to them by the gang. The accused reminded Mr. Lacey in Mr. Keenan’s presence that he had promised to fill the van with money and that he should not go back on his word or his children would be injured. The accused informed Mr. Keenan that the gang knew that cash was kept in a “secret room” downstairs. He told the manager that the gang knew about him and he furnished biographical information including the name of the witness’s wife; that he drove a Volvo car and that he was particularly close to his daughter. He also referred to Mr. Dermot Boner, another bank official, and stated that the Keenans and the Boners lived in the same locality and had holidayed together in the previous year. All of that information was true.
14. There was in fact a cash centre in the vault of the bank. Mr. Lacey told Mr. Keenan that they would have to give all the money in the bank, meaning what was in the cash centre. A sum of £233,000 in cash was brought to Mr. Keenan’s office. The accused’s reaction was that the amount was not enough. He again reminded Mr. Lacey of his promise and that he must keep his word. As a result of this a further £10,000 in notes was added. The entire was put into three plastic sacks which Mr. Keenan and the accused carried down to the loading-bay where the van was and they put them into the back of the vehicle. Mr. Keenan regarded the demeanour of the accused while in the bank as being quite relaxed. Mr. Lacey stated in evidence that before they set out from his house to collect the van, he got the impression that the accused was “extremely nervous”. At about 9.40 a.m. he became anxious to get the money at the bank. Mr. Lacey then told him that he, the accused, would have to follow the letter of instruction which they had been given by the gang. He stated that he was not suspicious of the accused at any stage.
15. When the sacks were loaded into the van, the accused drove it out of the loading-bay and turned right. He left the premises at about 1.00 p.m.. Subsequently, he informed the police that he had instructions to follow a motorcyclist who would be wearing a helmet and a multi-coloured top. He carried out his instruction and, following the motorcyclist, finally arrived at a lane-way off Maxwell Road via a circuitous route. At that point he handed over the van to the motorcyclist who inspected the sacks of money and the accused was allowed to leave the scene on foot. Subsequently, on 9th/10th December, 1993 he furnished D Garda Coppinger and D Sergeant Melody with information regarding his activities on the day of the robbery from the time when he took possession of the van at Merrion Church. The accused had several interviews with officers on the team who were investigating the robbery and the kidnapping of the Lacey family. The information furnished by the accused to Garda Coppinger and Sergeant Melody was recorded in writing in question and answer form. It contains the following passage. At the conclusion of the interview the entire note was read over to the accused and he was invited to sign the document. He refused to do so but agreed that the content was correct:-
“M.C. You remember the green hiace you drove with Mr. Lacey on 2/11/93?
J.J. Yeah.
M.C. Do (sic) you see this van prior to 2/11/93?
J.J. No.
M.C. Where was it parked when you collected it with Mr. Lacey?
J.J. At the Church opposite St. Vincent’s Hospital.
M.C. How did you know which van it was?
J.J. I was told that it was a green hiace and that the keys would be on the seat.
M.C. You drove the van that night?
J.J. Yeah, Mr. Lacey got into the passenger seat.
M.C. Did Mr. Lacey leave his own car there?
J.J. Yeah.
M.C. Where exactly was the van parked in the car park?
J.J. It was parked against the wall at the side.
M.C. Which side?
J.J. I’m not sure.
M.C. Will you show us if we take you there?
J.J. Yeah, alright.
M.C. Where did you go to after that?
J.J. To the bank.
M.C. What way did you go to the bank?
J.J. I drove into town and I approached the bank down Suffolk Street.
M.C. Where did you park?
J.J. Near the pedestrian crossing outside the bank.
M.C. Was it you who reversed the van into the bank when Mr. Lacey suggested
this?
J.J. Yeah.
M.C. How many black plastic bags was the money in?
J.J. Two.
M.C. How did you know that there was money in the bags?
J.J. I checked to make sure.
M.C. Did you suggest to Mr. Lacey that there wasn’t enough money in them?
J.J. No, I didn’t.
M.C. Weren’t your instructions to fill the van with money?
J.J. Yeah, but he told me that was all the money in the bank.
M.C. Did you know how much money was in the bags?
J.J. I wasn’t told. I was just told to fill it.
M.C. Where were the bags put in the van?
J.J. In the back.
M.C. What happened then?
J.J. I drove the van away.
M.C. Tell us what direction you went then?
J.J. I can’t tell you, I’ll be shot if I tell you anymore.
M.C. Who told you, you would be shot, the kidnappers? I am asking you now to tell us all you know. What direction did you go after leaving the bank?
J.J. I drove to a point.
M.C. Where was this point?
J.J. I can’t tell you.
M.C. Did you cross the liffey?
J.J. No.
M.C. It must have been on the Southside then?
J.J. Yeah, O.K.
M.C. How long did it take you to get to this point?
J.J. A half an hour to three quarters.
M.C. Was this part of your instructions?
J.J. Yeah.
M.C. Who did you meet there?
J.J. A person.
M.C. Was it a male or female?
J.J. Male.
M.C. How did you know this person that you were supposed to meet? Did you have a password or some form of identification?
J.J. My instructions were that he would be wearing a multi-coloured top.
M.C. Was he masked or wearing a balaclava.
J.J. No.
M.C. Would you know this person again?
J.J. No.
M.C. Why? You saw his face.
J.J. No, he was wearing a motorcycle helmet, red in colour with a visor.
M.C. I thought you said he wasn’t wearing a mask or balaclava?
J.J. He was wearing a helmet.
M.C. Was he young or old?
J.J. I don’t know.
M.C. Was he tall or small?
J.J. Average.
M.C. Was he fat or slim?
J.J. Well built.
M.C. Did he have any transport with him?
J.J. Yeah, he had a motorcycle.
M.C. What type of motorcycle was it?
J.J. A 250 cc. I don’t remember the make.
M.C. Was it new or old?
J.J. It was an old bike.
M.C. Can you remember anything about the registration number?
J.J. No.
M.C. Was it Dublin?
J.J. I don’t know.
M.C. What did you do when you met him?
J.J. I left the van.
M.C. Did he check to make sure that the money was all there?
J.J. Yeah, he did.
M.C. Was this person on his own?
J.J. Yeah.
M.C. Was this person going to drive the van or take the money away on the motorcycle?
J.J. I don’t know.
M.C. You are from the South City you would know where this location was?
J.J. I do, but I can’t tell you.
M.C. How did you know the way to the location?
J.J. I followed the man on the bike from the bank.
M.C. I thought you said you met this man at a point?
J.J. No, I followed him from the bank.
M.C. Are you talking about the man with the multi-coloured top?
J.J. Yeah.
M.C. Are you now saying that this man was on a motorcycle outside the bank?
J.J. Yeah.
M.C. And did you follow him?
J.J. Yeah.
M.C. Was this part of your instructions to look for this man outside the bank?
J.J. Yeah, it was.
M.C. Tell us where you went?
J.J. We went to a lane-way off Upper Rathmines Road.
M.C. Do you know the name of this place?
J.J. No.
M.C. Will you show us?
J.J. Yeah, okay.
M.C. What route did you travel?
J.J. I’ll show you the route we took.
M.C. Tell us generally where you went.
J.J. We went up towards St. Stephen’s Green turned right towards Wexford Street, went into Camden Street and up towards the canal. We turned left at the canal and went into Ringsend. We turned back there and drove up the canal. We turned off the canal near Rathmines Road and went up Mount Pleasant Avenue into Rathmines. We turned left in Rathmines and went into Maxwell Road and went into the lane-way there. I was told to park the van by the man on the motorcycle.
M.C. What did you do then?
J.J. He checked the money first and then moved me away.
M.C. Where did you go then?
J.J. I walked to Garrett Sheehan’s office off Francis Street.
M.C. What time did you get there?
J.J. It was 3.00 p.m.
M.C. How long did it take you to walk there?
J.J. About half to three quarters of an hour.
M.C. Tell us the route you took?
J.J. I walked down Rathmines Road into Leinster Road onto Harolds Cross Road. I then sat in a park opposite Flanagan’s Pub for a while.
M.C. Where did you go then?
J.J. I went into the Lantern Pub to think.
M.C. Did you have a drink?
J.J. Yeah, I had two pots of tea and some soup.
M.C. Did you talk to anyone?
J.J. Only the bar lady.
M.C. Did you know her?
J.J. No.
M.C. Can you describe her?
J.J. She was in her fifties and had grey/blond hair. There was another old man there as well.
M.C. How long did you stay in this pub?
J.J. I can’t remember.
M.C. Did you meet anyone or speak to anyone on the journey to the Lantern Pub?
J.J. No.
M.C. Did you notice anything unusual?
J.J. Only that I saw a motorcycle policeman near the entrance to the greyhound stadium at Harolds Cross Road.
M.C. What was he doing?
J.J. He had a car stopped.
M.C. Why didn’t you go over and tell him what had happened.
J.J. I was going to but I was afraid for my children.
M.C. You know where Rathmines Garda Station is?
J.J. Yeah.
M.C. Why didn’t you go in there and report what was happening?
J.J. I was afraid.
M.C. When you left the Lantern Pub where did you go?
J.J. I walked down to Patrick Street and walked through a lane-way then over to Garrett Sheehan’s office.
M.C. Did you speak to Garrett Sheehan?
J.J. No, I spoke to Bob Eagar.
M.C. What did you tell him?
J.J. I told him what had happened.
M.C. What did he say for you to do?
J.J. He gave me £5 and told me to go to the Liberty Bell Pub across from his office and to come back at 6.00 p.m.
M.C. Did you speak to anyone there?
J.J. Only the barman.
M.C. When you were in the bank in St. Andrew Street why didn’t you telephone your family to see if they were in fact kidnapped?
J.J. I don’t know.
M.C. When did you make contact with your family to see if they were alright?
J.J. I telephoned my brother Paul after 6.00 p.m. from either Garrett Sheehan’s office or the Liberty Bell Pub.
M.C. What did Paul say to you?
J.J. He told me that my kids were fine.
M.C. Where does Paul live?
J.J. I don’t know. Somewhere in Tallaght.
M.C. Do you know his telephone number?
J.J. Yeah, it’s 510950.
M.C. Why didn’t you go to the police then?
J.J. Garrett Sheehan told me not to go near them and to come back to his office between 9.00 a.m. and 9.30 a.m. on the following day.
M.C. Where did you go then?
J.J. Paul collected me and brought me to my sister Lilly’s house in Tallaght.
M.C. Whats the address?
J.J. 17, Cushlawn Park.
M.C. Who stays there?
J.J. She lives with Noel McGrath and my two kids stay there.
M.C. How long did you stay there?
J.J. Until the following morning.
M.C. Did anyone contact you there?
J.J. Yeah, Garrett Sheehan rang at around 10.30 p.m.. I was in bed.”
16. On the following morning the accused returned to Mr. Sheehan’s office by appointment and was brought by him to Terenure Garda Station for the purpose of making a formal statement as to his part in the robbery at the National Irish Bank on 2nd November, 1993 and related matters together with his explanation for taking part in what had happened. The accused’s statement was dictated by him and recorded by D Garda O’Brien in the presence of D Inspector McKenna and Mr. Sheehan. The latter intimated that his client would not provide any supplementary information. It appears that this was on the advice of Mr. Sheehan. The statement is in the following terms:-
“On 15th October 1993 between 8.00 p.m. and 9.00 p.m. I was in Crumlin Shopping Centre leisure swimming pool. I was having a shower and I heard my name ‘Joe Kavanagh’ getting called. I answered ‘yes’. I looked out of the shower and I saw a man wearing a baseball cap. He said your son is after being in a bad car accident. I immediately left the shower and got dressed. I went out to the main entrance. The man with the baseball cap was leaving the entrance door. I followed him out the door and into the car park. He walked to the side door of a van and he opened the passenger door. As I approached he opened the side door and he said ‘come on quick we’ll give you a lift’. I was just about to get into the back of the van when I noticed a man sitting in the back of the van. I hesitated and then I got a push from behind. I was forced into the van onto the floor of it. I looked behind me while I struggled on the floor. It was a hesitant struggle more than a violent struggle. As I looked around I saw that there was a handgun pointed at my neck. I was told to stay quiet or I would be shot. My hands were pulled behind my back and handcuffs were put on my hands. A hood was put over my head. I was driven for about an hour to an hour and a half. I was made get out of the van and walk for some distance, about 20 or 30 yards to a building. I was put into a room. I was left there by myself. I was left there for about 14 to 16 hours. After that someone brought me tea and sandwiches. The handcuffs were taken off to allow me to have the tea and sandwiches and then put back on, this time with my hands in front of me. I was made lie on a mattress on the floor in the room. In the room there was also a sleeping bag and two blankets. I was left in the room for about a day and then two people came to the room and told me that they had my children. They told me that if I tried to do anything that they would shoot me. They each carried a handgun. They said that they wanted me to drive a van and that I wouldn’t get hurt if I did what I was told. I told them that I would do anything once they left my children alone. After I said this they removed the handcuffs. I was kept in this room for approximately ten to fourteen days. Then they came in, about four of them, and they put handcuffs on me with my hands behind my back. They put a hood over my head and they brought me out of the room. They brought me out through one room into another and then out into the air. I was put into what I think was a van. They put me lying down on the floor and I was driven for two hours or more. Then the van stopped and the engine was turned off. There was some talking in the van but I couldn’t really hear what they were saying. After about six or seven hours the van was started back up again and it was driven for about ten minutes. I was taken out of the van again and told to ‘come with us’. I was made walk for about fifteen to twenty yards. I was brought in to a place and told to sit down. When they pushed me down on the floor they opened the handcuffs. They removed the hood from my head. They introduced me to a man named ‘Jim’. They said you’ll be driving this man into a bank. They said this man has agreed to give you everything in the bank. They said if I did that neither myself or my children would be hurt. They said to the man that neither himself or his children would be hurt if he carried out the instructions. I told them that I would do what I was told and the other man said that he would do what he was told. At this stage one of the men stared at me for a while, touched me on the chin and said ‘we’re going to take that beard off you’. He turned to the other man and asked him if he had any clothes to fit me. I was brought out of the room and upstairs to a bathroom. I was given a razor and ordered to shave. I was given another razor because the first one wasn’t taking the stubble off. I was given some clothes which included a suit, shirt and tie and some shoes. I was told to put them on me. I was then brought to another room. I was made sit on a bed. One of the men pointed a gun at me and told me I was to go into the bank with the man downstairs, and that the man was going to fill up the van. I was told to collect the van across the road from St. Vincent’s Hospital. He said I wasn’t to tell the man until ten o’clock where the van was to be collected, and that I wasn’t to tell him any of the other instructions I had been given. He said that if I did tell him I would be shot. They then brought me downstairs and they said that they knew all my movements and that to do what I was told and that if I didn’t do what I was told I would be shot. They put me sitting down beside this other man and they said to this man ‘Jim’ that they were after giving me my instructions and that I wasn’t to let him know until ten o’clock. The man then handed me a pair of glasses and told me to wear them at all times and that if from when I leave the house if anything went wrong I was to take off my glasses meaning that if Jim didn’t do what he was told. At ten o’clock I told Jim that I was to collect the van at the church grounds near St. Vincent’s Hospital. Myself and Jim left the house and went to St. Vincent’s Hospital in Jim’s car. I sat in the front passenger seat. He went to the church grounds and he parked his car beside a green van. It was like a hiace or something like that. The keys were on the front seat of the van. The key was broken in the ignition. I put the other half of the key into the ignition and it started. It was very noisy. Jim showed me the way to the bank and where to park. I drove the van and Jim was in the front passenger seat. I parked outside of the bank. We went into the bank. Jim spoke to a few people and he asked was the manager there. We went upstairs and the manager brought us into a room and sat us down. Jim asked the manager for the security man. He told the manager what had happened and what his instructions were. Jim then had a discussion with the manager and the security man after which another man was called in. Jim told them that they knew everything about the bank and that he was to give them all the money in the bank and that he was to fill up the van. They brought in some money and Jim told them to get the van in off the road that it looked out of the way the way it was parked. We then went downstairs and I reversed the van into some gates. Jim was saying to the manager that they knew everything about his wife and his daughter and that they’d have to comply with everything he was telling them. Myself and Jim showed the manager pictures of our families and Jim told him that I was in the same predicament as him. Jim asked me would I take the money and drive it because they said Jim had agreed to fill up the van, but I was hesitant, because they said if the van wasn’t full that they would shoot me. Jim said to me ‘Will you drive the van to them, we’ll have a drink after it, the two of us are in the same boat’. The manager asked me if I was going left or right when I left the bank and I said that my instructions were not to tell anyone before I left the bank and after I left the bank or they would come after me and shoot me. I’d like to end my statement at this as I am in fear of my life. There are probably things that I cannot recollect that I said in the bank and what they told me in the house. I have heard this statement read over to me and it is correct. I now hand over a pair of glasses and some photographs. These are the glasses I was made to wear and the photographs of my children and mother-in-law that I was given by these men.”
17. The statement was duly signed by the accused and witnessed by D Garda O’Brien and D Inspector McKenna.
18. An incident took place on 18th January, 1994 where the accused lives at Priestfield Cottages, South Circular Road. He sustained a gunshot wound to his left leg involving the fleshy part of the calf muscle. There was a small entry wound about a quarter of an inch diameter and an exit wound which was a little larger. He was brought to St. James’s Hospital and detained, though not seriously injured. Several national newspapers were contacted by someone as a result of which the accused was interviewed by journalists, including Mr. Brendan Farrelly of the Evening Herald. The accused told the latter that he had been shot by the gang as a punishment for not filling up the van with money as instructed.
THE ISSUE
19. The net issue for determination by the court is the credibility of the accused’s explanation that he was coerced into participation in the robbery at the bank and that he, like Mr. Lacey, was an innocent victim who was forced to play his part in the robbery through fear for his own life and for the safety of his family who he believed had been kidnapped by the gang and one of whom he understood had been shot and wounded as an earnest of the reality of the threats which had been made to him. If the accused’s explanation creates a reasonable doubt that it might be true, then he is entitled to an acquittal of the offences charged, even if the court has serious reservations about the veracity of his story.
20. In order to determine whether the accused’s explanation of coercion is credible or not, it is necessary to look at the entire of the evidence and, if there are flaws in the accused’s story, whether collectively they give the lie to his allegation of coercion and establish beyond reasonable doubt that his part in the robbery and related matters was as a volunteer in collaboration with the members of the kidnap gang.
CONCLUSIONS
21. There are six elements which have been established to the satisfaction of the court and which, taken in the round, lead to only one reasonable conclusion, i.e., that the accused’s role in the robbery and related events was that of a volunteer; that his alleged kidnapping never took place and that he never had any cause for concern about the safety of his sons and mother-in-law as at all material times he was aware that they had not been kidnapped or harmed as alleged.
1. Although many times the accused expressed fear for the safety of his sons; fears about the viciousness of the gang and an apparent belief that one of his sons had been shot and wounded by the gang as a token of their intentions if he failed to carry out their instructions, he did not take any steps to ascertain the whereabouts of and the safety of his children for in or about five hours after his part in the robbery had ended, though he had ample opportunity so to do during the afternoon of 2nd November, the day of the robbery.
2. Knowing that his two sons resided with his mother-in-law at her home in Crumlin (and not with his sister, Lilly, as he told D Garda Coppinger and D Sergeant Melody) and believing that all three had been kidnapped as indicated by the photographs given to him by the gang, and probably knowing also that Mrs. Bolger had a telephone at home; if he believed that they had been kidnapped the obvious step which must have been apparent to the accused would be to telephone the home of his mother-in-law or immediately call to the house and, if necessary, make enquiries from neighbours. He did not do so but ultimately after 6.00 p.m. phoned his brother, Paul, who resides in Tallaght. There was no evidence as to how the latter might have known anything about the safety of Mrs. Bolger or the children. She resides with them at an address in Crumlin which is several miles from Tallaght.
22. Mr. White has argued that his client, who did not give evidence, may have been affected by shock resulting from what he alleges had been done to him by the gang. This is not borne out by the facts. The court notes that the accused was sufficiently well orientated to realise immediately on being allowed to go free by the motorcyclist that he should consult his solicitor, Mr. Sheehan. On his way to the office of the latter the accused also took time to review his situation while sitting in a park; then while having refreshment at the Lantern bar and subsequently at the Liberty Bell bar while waiting for Mr. Sheehan. It is suggested that he may not have wished to contact Mrs. Bolger because of the fraught relationship between them. Even if they were on bad terms at that time, his alleged great anxiety for his sons probably would have transcended any such reluctance – particularly as the accused believed that one of his boys had been already shot as a warning and that Mrs. Bolger also had been kidnapped. The court notes that neither Mr. Eagar or Mr. Sheehan have been called to give evidence about the accused and whether either considered that he was in a state of shock when he called to their office on 2nd November. Furthermore, it was not suggested to Mr. Lacey or to Mr. Keenan that the accused was suffering from shock. His own observations and performance in the bank establish that he was in control of his faculties and was capable of rational behaviour. There is nothing to indicate any change in that situation from the time when the accused’s part in the robbery had come to an end.
3. The accused told Mr. Lacey that he, the accused, was not a good driver and that he hoped that he would be able to drive the van. While driving to the bank he did not properly use the gears. However, in an interview with D Guards McLoughlin and Campbell on 9th December, 1993, he was asked “Would you consider yourself a good driver?”. He replied “Yes I would”. The court is satisfied that having been selected by the gang to play the pivotal role of van driver which was crucial to the success of the robbery, they would have satisfied themselves about his capacity as a driver. A poor performance by him in that regard could have ruined the whole operation. Such a risk is not consistent with the apparent sophistication of the crimes and the expertise shown by the gang in having them carried out. The court is satisfied that in the belief that it would assist the credibility of his story, the accused attempted to deceive Mr. Lacey regarding his capacity as a driver.
4. The detailed biographical information furnished by the accused to Mr. Keenan while in the bank and which he contends he had received from the gang at the Lacey home when being given instructions about his part in the bank robbery, is, in the view of the court, too extensive to have been retained in such detail on the basis of one hearing and in conjunction with instructions about the robbery which were of much more immediate importance. The court is satisfied that the accused would not have assimilated and retained so much information in the alleged prevailing circumstances and, even if he had done so, that he would have retailed all of it to Mr. Keenan.
5. The court is satisfied that there is only one credible explanation for the conduct of the gang in supplying Mr. Lacey with photographs of his wife, children and the baby-sitter. Mr. Lacey knew that they had been kidnapped by the gang and the photographs added nothing to his state of knowledge. Furthermore, having regard to his status in the bank, he did not require any corroborative evidence to satisfy Mr. Keenan and other bank officials that what he had told them about the kidnapping of his family was true. The court believes that the Lacey family were photographed in an attempt by the gang to underline the apparent similarity between the accused’s situation and that of Mr. Lacey, i.e., that both were coerced to do what they did because their respective families were held captive by the gang and were in danger of being shot if the victims failed to carry out their instructions. In this regard it is also of interest that Mr. Lacey’s son and one of the accused’s children were alleged by the gang to have been shot in the hand as a warning. It is noteworthy that there is contradictory evidence about when and where the accused was shown by the gang the photographs of his sons and mother-in-law.
6. The court is satisfied that the accused’s explanation for being shot in the leg at his home on 18th January, 1994 is wholly unbelievable. However vicious the gang might be, they could not reasonably blame the accused if the bank robbery netted less cash than they anticipated. If they had any grievance it would have been against Mr. Lacey and there is no evidence that they sought to harm him or his family or any bank official or related person after the robbery. Furthermore, even if the gang had a grievance against the accused, they would not have waited for six weeks to seek retribution against him. The court is satisfied that the accused organised the gunshot wound on 18th January and that it had nothing to do with the Lacey kidnapping and the robbery at the National Irish Bank but was intended by him to bolster his story about coercion in that regard.
23. Taking into account all of the foregoing factors collectively, the court is satisfied beyond reasonable doubt that the accused’s part in the bank robbery and related matters was as a voluntary collaborator with the others who perpetrated the crimes in question; that he was a member of the gang and that he was not coerced into participation in their activities as he has alleged. Accordingly, the court finds the accused guilty on counts 5, 6 and 7 in the Indictment.
The State (Clancy) v. Wine
Finlay P.
[1980] IR 228
H.C.
Finlay P.
12th February 1979
These are two applications to make absolute, notwithstanding cause shown, two separate conditional orders of certiorari which were granted by the High Court. The facts in each case are similar and, by agreement, both cases were argued together before me. Both will be ruled by this judgment. The conditional orders were granted by Mr. Justice D’Arcy in each case in relation to the conviction of each prosecutor upon a summary charge of assault contrary to common law and the imposition of a sentence of five months imprisonment pursuant to that conviction.
The conditional orders were granted upon the grounds set out in paragraph 4 of the affidavit of each prosecutor. Those grounds were:
A. That the respondent failed to satisfy himself properly upon inquiry, or at all, that the facts grounding the charge constituted a minor offence.
B. That the respondent had no jurisdiction to hear the charge.
C. That the respondent failed to put the prosecutor on his election as to where he wished to have the case tried.
D. That, if the respondent had jurisdiction to hear the case, he failed to exercise in a proper and judicial manner his discretion as to whether to accept such jurisdiction.
Upon the matter coming first for hearing before me, counsel on behalf of the prosecutors contended that, on the evidence which was adduced before the learned respondent, it was not proper for the respondent to have reached a conclusion other than that the offence was not a minor offence, or was not an offence fit to be tried summarily. Although that appeared to be outside the grounds set out in the original affidavits upon which the conditional orders of certiorari were granted, in the interests of justice I permitted the prosecutors to file a further affidavit. The prosecutor Clancy filed a further affidavit which dealt exclusively with the injuries alleged to have been sustained by the injured party and their consequences upon him; by consent this affidavit was adopted as part of his proceedings by the other prosecutor.
The learned respondent showed cause but did not file any affidavit. The facts are as follows. Each of the prosecutors appeared before the respondent after they had been served with a summons which alleged that they had unlawfully assaulted Peter Wynn contrary to common law. The matter was heard before the respondent on the 24th November, the 14th December and the 22nd December, 1977. It is agreed that at no time did the respondent inform either of the prosecutors that the charge was one that could be dealt with on indictment nor were either of the prosecutors asked in which venue they wished to be tried. Furthermore, the respondent, prior to embarking upon the hearing of the case, did not conduct any inquiry as to the nature of the allegations made against either of the prosecutors nor did he inquire into the nature of the injuries alleged to have been inflicted on the injured party. On the 22nd December, 1977, the respondent convicted each of the prosecutors and imposed on each of them a sentence of five months imprisonment.
At the summary trial of the offences the injured party gave evidence against the two prosecutors. The injured party stated that, as a result of the injuries suffered by him in the alleged assault, he had been in hospital for a period of ten days and that he was still receiving medical attention at the date of the trial. This witness also alleged that he had a continuing injury to one of his eyes, and that the injured eye had been damaged to an extent which was not yet ascertained. He said that he had been advised that this injury would lead to a material lessening of the usefulness of the eye and that it might lead to total loss of sight. The injured party also complained that, as a result of his injuries, he had been unable to work from the date of the incident up to the hearing of the trial.
The apparent jurisdiction of the respondent to hear and try this offence as a summary offence is contained in the provisions of s. 42 of the Offences Against the Person Act, 1861, as amended by s. 11 of the Criminal Justice Act, 1951.
Section 42 of the Act of 1861 provides:
“Where any person shall unlawfully assault or beat any other person, two justices of the peace, upon complaint by or on behalf of the party aggrieved, may hear and determine such offence, and the offender shall, upon conviction thereof before them, at the discretion of the justices, either be committed to the common gaol or house of correction, there to be imprisoned with or without hard labour for any term not exceeding two months, or else shall forfeit and pay such fine as shall appear to them to be meet, not exceeding, together with costs (if ordered), the sum of five pounds.”
Section 11 of the Criminal Justice Act, 1951, provides:
“(1) In this section references to common assault and battery are to offences under section 42 of the Offences Against the Person Act, 1861.
(2) A person convicted of common assault or battery shall be liable to a fine not exceeding fifty pounds or, at the discretion of the Court, imprisonment for a term not exceeding six months.
(3) Common assault and battery may be summarily prosecuted on complaint made by or on behalf of the aggrieved person or otherwise . . .”
In a judgment delivered by me on the 29th November, 1976, in The Attorney General (O’Connor) v. O’Reilly 7 , I decided that there were two methods of prosecuting an offence of assault contrary to common law. The first method is a summary prosecution pursuant to s. 42 of the Act of 1861, as amended by s. 11 of the Act of 1951, which provides for a maximum penalty of six months imprisonment or a fine not exceeding £50 upon conviction. The second method of prosecuting for that offence is upon indictment pursuant to s. 47 of the Act of 1861, in which case the maximum penalty is imprisonment for any term not exceeding one year. In O’Reilly’s Case 7 I also held that the choice of the method of prosecution was a matter to be decided by the complainant or the prosecution, and that the accused person did not have the right to choose between summary prosecution and prosecution upon
indictment. In that case it was not contended that the defendant had a constitutional right to a trial by jury, nor did any point arise in regard to the effect of the provisions of s. 46 of the Act of 1861.
In so far as one of the grounds for granting of conditional orders of certiorari in these cases was the failure of the respondent to offer to the accused an election between summary trial and trial upon indictment before a jury, I am satisfied that the decision I made in O’Reilly’s Case 7 is correct and that I should follow it as there was no appeal from it.
However, in the present case the prosecutors rely on s. 46 of the Act of 1861, which states: “Provided, that in case the justices shall find the assault or battery complained of to have been accompanied by any attempt to commit felony, or shall be of opinion that the same is, from any other circumstance, a fit subject for a prosecution by indictment, they shall abstain from any adjudication thereupon, and shall deal with the case in all respects in the same manner as if they had no authority finally to hear and determine the same . . .” Arising from the terms of that section, the prosecutors contend, first, that the respondent, prior to entering upon an adjudication of the charge made against each prosecutor, should have entered into an inquiry as to whether the assault or battery complained of was accompanied by any attempt to commit felony or as to whether he was of opinion that the same was from any other circumstances a fit subject for a prosecution by indictment, and that he should have announced a decision on that issue before commencing to hear the charge. Secondly, the prosecutors contend that if such an inquiry had been carried out by the respondent then, having regard to the evidence of the injured party, there could have been only one result to such an inquiry, i.e., that by reason of the extent of the injuries suffered by the injured party the charges were fit to be tried by indictment and, therefore, that by virtue of the provisions of s. 46 of the Act of 1861 the respondent was debarred from finally adjudicating upon them.
I will deal with each of these contentions separately. Considerable reliance was placed by the prosecutors upon the decision of Mr. Justice Butler in The State (Nevin) v. Tormey .1 I agree with the conclusions reached in that judgment and with the decisions there made. I would be prepared to follow it were it not for the fact that I do not think it determines the issue which arises in this case. The main part of the judgment in The State (Nevin) v.Tormey 1 , and the material part for present purposes, consists of a consideration of the procedure which must be adopted by a District Justice pursuant to the provisions of s. 2, sub-s. 2 (a), of the Criminal Justice Act,1951, before he has jurisdiction to try summarily a person charged with a”scheduled offence.” Section 2, sub-s. 2 (a), of the Act of 1951 states: “The District Court may try summarily a person charged with a scheduled offence if(i) the Court is of opinion that the facts proved or alleged constitute a minor offence fit to be so tried, and (ii) the accused, on being informed by the Court of his right to be tried with a jury, does not object to being tried summarily.”
The facts of Nevin’s Case 1 were that the District Justice first inquired of the accused whether he objected to being tried summarily and, having informed the accused of his right to be tried by a jury, ascertained from the accused that he did not wish to be tried with a jury and did not object to being tried summarily. The District justice then entered upon the investigation of the charges made against the accused. In his affidavit the District Justice stated that up to that time he had no knowledge of the facts. He further stated that, if he had been satisfied in the course of the evidence adduced before him that the offence was not one fit to be tried summarily, he would have abstained from adjudicating upon it. He stated that, having heard all the evidence, he had been satisfied that it was such a minor offence.
Mr. Justice Butler held that compliance with both branches of s. 2, sub-s. 2 (a), of the Act of 1951 was a necessary preliminary to the entry by a District Justice upon the adjudication by way of summary trial of a person charged with a scheduled offence under the Act of 1951. Having so decided, he concluded that at the commencement of the adjudication in that particular case there had been no jurisdiction in the District justice to try the accused summarily since only one of the two branches of s. 2, sub-s. 2 (a), had been complied with. He held that the absence of jurisdiction vitiated the entire proceedings. Mr. Justice Butler then formulated the appropriate procedure, under which the District Justice hears a short summary of the allegations made against the accused and then, on that basis, forms an opinion as to whether the facts alleged constitute a minor offence fit to be tried summarily.
In my view, the combined provisions of ss. 42 and 46 of the Offences Against the Person Act, 1861, are essentially and fundamentally different from the provisions of s. 2 of the Act of 1951 which I have just quoted. Section 42 of the Act of 1861 gives an unrestricted right to a District Justice to hear a complaint by way of summary trial of assault contrary to common law. Section 46 restricts that right but it does so in a limited fashion. If a District Justice either finds that the assault or battery has been accompanied by any attempt to commit a felony or from any other circumstances is of opinion that the assault or battery is a fit subject for a prosecution by indictment, then certain consequences follow. In my view, it is of significance that in relation to the attempt to commit a felony what is required is a finding by the District Justice that that was involved in the assault or battery complained of. In my opinion, such a finding must involve prima facie the hearing of evidence. Therefore, a procedure which requires the prior hearing of the facts alleged, as outlined in the judgment of Mr. Justice Butler and warranted by the terms of s. 2 of the Act of 1951, is not appropriate in the context of s. 46 of the Act of 1861. Prima facie, this question of a finding by the District Justice that the assault or battery involves an attempt to commit a felony would seem to indicate an intention that he should enter upon the hearing of sworn evidence in the case, and that the provisions of s. 46 of the Act of 1861 should only come into operation (in suitable circumstances) during the currency of that hearing. If the District justice does find that the assault or battery has been accompanied by an attempt to commit a felony, or if he is of opinion that from any other circumstances it is a fit subject for a prosecution by indictment, the words of s. 46 are: “. . . they shall abstain from any adjudication thereupon, and shall deal with the case in all respects in the same manner as if they had no authority finally to hear and determine the same.” It is of considerable significance that the Justices were inhibited by s. 46 of the Act of 1861 from adjudicating on the case: they were not prevented from entering upon a hearing of it. Where s. 46 applies they are expressly directed to deal with the case as if they had no authority finally to hear and determine it. Both these phases are entirely consistent with the concept of a District justice entering upon a hearing of the summary charge and hearing all or part of the evidence adduced by the prosecution and then, if s. 46 is applicable, abstaining only from adjudication or from a final determination; but they are quite inconsistent with the concept of a separate prior investigation of the facts alleged or evidence tendered prior to entering upon a hearing of the summary charge.
Therefore, I conclude that s. 46 of the Act of 1861, when read in conjunction with s. 42 of that Act, does not impose upon a District Justice an obligation to enter into a preliminary inquiry but merely imposes upon him the obligation to abstain from adjudicating upon a charge to which s. 42 applies if, during the currency of the hearing of that charge, he should make the finding or reach the opinion mentioned in s. 46 of the Act of 1861.
With regard to the second submission I am satisfied that the position is as follows. There is no apparent assistance to be derived from the terms of the Act of 1861, nor from any decided case to which counsel have been able to refer me, as to the standard by which or the considerations upon which a District Justice is to form the opinion as to whether an assault or battery is a fit subject for a prosecution by indictment. It was not submitted that there were any facts before the learned respondent upon which he should have found that the assault or battery was accompanied by any attempt to commit a felony, and so the prosecutors rely on the latter part of the section alone. Interpreting the provisions of s. 46 of the Act of 1861 in accordance with the constitutional rights of a person charged with a criminal offence, it would seem clear that its purpose must be to prevent a District Justice from dealing with an offence which might not be considered to be a minor offence and from thus depriving an accused of his right to trial with a jury. This interpretation seems to me to be justified notwithstanding the fact that the Act of 1861 was passed by the parliament of the United Kingdom and was carried into our law merely by virtue of the provisions of Article 50 of the Constitution. Section 42 of the Act of 1861, which imposed the original statutory penalties, has been expressly acknowledged and amended by virtue of the provisions of a post-constitution statute, that is to say, the Act of 1951.
Having regard to the decision of the Supreme Court in Conroy v. The Attorney General 3 , I am satisfied that the test which a District Justice should apply in relation to the terms of s. 46 of the Act of 1861 is whether the assault and battery complained of appears to him to be a minor offence. The dominant or most important test to be applied by him is the appropriate punishment which should be imposed for it. In the instant cases, the learned respondent imposed sentences of imprisonment which were less than the maximum which he was entitled to impose; in each case he imposed a sentence of five months imprisonment while the maximum sentence was six months. Therefore, his view of the nature of the offence, and of the conduct of the prosecutors, must have been that it was deserving of a punishment which, having regard to the decision in Conroy v. The Attorney General 3 , cannot be said to be such as to make it fall within the category of a non-minor offence. However, it was urged on me that the extent and the nature of the injuries sustained by the injured party were such that it was not possible for the respondent to have made a judicial decision that the offence charged constituted a minor offence. I would accept the principle accepted by Mr. Justice Kenny in Conroy v. The Attorney General 3 that, according to the natural moral law, it is the nature and quality of an act and not its consequences which bring it within or without the category of a moral culpable act. Therefore, I reject the general submission that an assault which causes a significant injury is, for that reason, a morally reprehensible act which could not constitute a minor offence. It is quite easy to conceive of examples where an offence of assault contrary to common law might be substantially excused, from the moral point of view, by reason of provocation or other circumstances, even though the assault caused serious bodily injury because of the particular physical condition of the injured party or the unintended consequences of a blow. The causing of such bodily injury is not a constituent part of the offence of assault which is tried under s. 42 of the Act of 1861, as amended, and so the existence of such injury in a particular case does not seem to me to raise an inevitable conclusion that it is one fit to be tried by indictment.
There do not appear to have been any other circumstances proved before the learned respondent which would force him to the conclusion that this was a case fit to be tried by indictment and one in which he must abstain from final adjudication. Therefore, I must deem and interpret his decision to proceed with the hearing, to proceed to a conviction and to impose a sentence which is less than the maximum available under s. 42 of the Act of 1861 (as amended) as constituting a decision on his part that he was not inhibited by the provisions of s. 46 of that Act, or as constituting an opinion formed by him on the evidence that this was not an assault and battery which was fit to be tried upon indictment. Having so interpreted the decision of the learned respondent, I am satisfied that the cause shown must be allowed and that the conditional orders of certiorari must be discharged.
Grealis and Corbett v. Director of Public Prosecutions
[2002] 1 I.L.R.M. 241
Grealis v. D.P.P. [2001] IESC 50; [2002] 1 ILRM 241 (31st May, 2001)
THE SUPREME COURT
JUDGMENT delivered the 31st day of May 2001 by Keane C.J.
Introduction
The factual background to these two cases is as follows. In the first (hereafter “Grealis”), three summonses were issued by the District Court against the applicant, the first two dated the 11th September 1997 and the third dated the 12th September 1997. The first recited a complaint that the applicant did
“assault one Margaret Sweeney contrary to common law”
on the 4th May 1997 at Hotel Westport, Westport, Co. Mayo. The second was in identical terms, the name of the person allegedly assaulted in that instance being Francis Sweeney. In the third, the complaint recited was that the applicant
“on the 11th May 1997 at Mulranny, Co. Mayo in the (district court area of Newport) did unlawfully assault one Christopher McGinty, of Dooriel, Ballycroy, Westport, Co. Mayo thereby occasioning him actual bodily harm … contrary to s. 47 Offences Against the Person Act, 1861.”
In the second case (hereafter “Corbett”), a summons was issued on the 6th August 1997 alleging that the applicant on the 3rd February 1997 at William Street, Cork
“did assault one Brian Cashman, contrary to common law and
s. 47 of the Offences Against the Person Act, 1861 as amended by s. 10 Criminal Justice (Public Order) Act, 1994.”
On the 19th May 1997 the Non-Fatal Offences against the Person Act 1997 (hereafter “the 1997 Act” ) was enacted by the Oireachtas. Section 28(1) provided that:
“The following common law offences are hereby abolished –
(a) assault and battery,
(b) assault occasioning actual bodily harm,
(c) kidnapping,
(d) false imprisonment.”
This provision came into force on the 19th August 1997. In both Grealis and Corbett, accordingly, it was not in force on the dates on which the alleged offences were committed. It was not in force at the date the summons was issued in Corbett, but was in force on the dates when the three summonses in Grealis were issued.
The 1997 Act provided for the creation inter alia of three new statutory offences, i.e. “assault”, “assault causing harm” and “causing serious harm” . There were, however, no transitional provisions in respect of any common law offences of assault and battery or assault occasioning actual bodily harm alleged to have been committed, but not prosecuted to conviction, prior to the coming into force of s. 28(1) of the 1997 Act.
On the 29th October 1997, in the case of The People .v. Joseph Kavanagh , in which the defendant had been charged inter alia with the common law offence of false imprisonment (also abolished by s. 28(1) of the 1997 Act), the Special Criminal Court held that, in the absence of any transitional provisions in the 1997 Act, it could not consider the charges in question. On the 4th November, 1997, the Oireachtas enacted the Interpretation (Amendment) Act, 1997, (hereafter “the 1997 Interpretation Act” ), s. 1 of which contains detailed provisions as to the operation of statutes abolishing common law offences.
The Proceedings
On the 15th June 1998, in Grealis, leave was given to the applicant by the High Court to apply by way of judicial review for an order prohibiting the first-named respondent (hereafter “the DPP” ) from taking any further steps in the prosecution against him on foot of the three summonses. Leave was given in respect of the first two summonses on the ground that at the time when they were issued the common law offences to which they related had been abolished by operation of law. In the case of the third summons, it was given on the ground that the offence of assault occasioning actual bodily harm was a common law offence which had also been abolished at the time the summons was issued.
In the case of Corbett, on the 10th November 1997 the applicant was also given leave by the High Court to apply for judicial review by way of prohibition prohibiting the respondent from taking any further steps in the prosecution on foot of the summons in that case. Leave was given on three grounds, only one of which was pursued in the High Court and again in this court, i.e. that the continuance of the prosecution was not in accordance with law, following the abolition of the common law offence with which the applicant had been charged.
In Grealis, the High Court, by an order of the 18th January 1999, gave the applicant liberty to amend the proceedings so as to seek a declaration that the 1997 Interpretation Act was unconstitutional and Ireland and the Attorney General were by the same order joined in the proceedings. In Corbett the Attorney General was also made a notice party to the proceedings and it would appear that an argument was advanced to the effect that the 1997 Interpretation Act was unconstitutional, although it would seem that there was no order giving leave to the applicant to amend the grounds on which he had originally been given leave.
1. Statements of opposition having been filed by the DPP and the Attorney General in both cases, the hearing of the motion claiming the relevant relief came on first in Grealis and was heard by O’Donovan J. In a reserved judgment, he accepted the submission on behalf of the applicant that, in the absence of any transitional provisions in the 1997 Act, the applicant could not be convicted of the common law offences with which he was charged, they having been abolished by that Act. It was conceded on behalf of the DPP that s. 21 of the Interpretation Act, 1937 (hereafter “the 1937 Act” ) dealing with the effect of the repeal of offences could not be availed of by him, so far as the common law offences were concerned, since it applied only to statutory offences. O’Donovan J. pointed out that this was also in accordance with the views expressed in two earlier High Court decisions, Quinlivan .v. The Governor of Portlaoise Prison and Others (1998) 2 IR 113 and Mullins .v. Harnett (1998) 2 ILRM 304. However, he was also satisfied that the offence with which the applicant was charged in the third summons was a statutory offence and not a common law offence, having regard to the observations of
2. Ó Dálaigh C.J. in The State (at the prosecution of O.) .v. Eveleen O’Brien (1971) IR 42 and that, accordingly, the prosecution could be maintained in respect of that summons by virtue of the provisions of the Interpretation Act 1937.
3. The learned High Court judge then went on to consider the provisions of the 1997 Interpretation Act and concluded that it was invalid having regard to the provisions of the Constitution, since it entrusted to judges of the District Court the determination of its constitutionality contrary to the provisions of Article 34.3.2, allowed for the unequal treatment of citizens contrary to the provisions of Article 40.1 and constituted an interference with judicial processes in being. He accordingly granted the relief sought in respect of the first two summonses.
4. A statement of opposition having also been filed in Corbett, the motion seeking the relevant relief came on for hearing before McGuinness J. The learned trial judge rejected a submission advanced on behalf of the applicant that the DPP was bound in the instant case by a concession said to have been made on his behalf by counsel in The People .v. Kavanagh , i.e. that a prosecution could not be maintained in respect of common law offences abolished by the 1997 Act, adhering to the view she had formed to the same effect in Quinlivan .v. The Governor of Portlaoise Prison and Others . While her judgment does not contain any express finding on the issue, it must, I think, be inferred that she took the same view as O’Donovan J. as to the consequences of the absence of any transitional provisions in the 1997 Act, since she went on to consider the constitutionality of the 1997 Interpretation Act. (It should be pointed out, in this context, that arguments were addressed to the learned High Court judge in this case which do not appear to have been advanced in Quinlivan.) She was, however, satisfied that the 1997 Interpretation Act was not unconstitutional and that the effect of it was to enable the prosecution in the instant case to proceed. She accordingly refused to grant the applicant the relief sought.
In Grealis, an appeal has now been brought to this court on behalf of the DPP and the Attorney General against the judgment and order of O’Donovan J. The applicant has brought a cross appeal in respect of the finding of the learned High Court judge that the alleged offence to which the third summons relates was a statutory offence and that, accordingly, the prosecution could proceed by virtue of the provisions of the Interpretation Act 1937. In Corbett, the applicant has appealed from the judgment and order of McGuinness J. refusing the relief sought.
In Grealis, the claim on behalf of the applicant that the provisions of the 1997 Interpretation Act were invalid having regard to the provisions of the Constitution was not pursued in this court. While it was not formally abandoned in Corbett, it was not pressed in the oral arguments to any serious extent.
Submissions of the parties
5. In this court, broadly similar arguments in respect of the two appeals were advanced in Grealis and Corbett. It is, accordingly, convenient to deal with them together.
6. It was submitted on behalf of the applicants that it was a settled rule of the common law that, in the absence of any saving transitional provisions in the statute under consideration, the effect of the abolition of an offence by statute was that it ceased to exist for all purposes, save in cases which had been prosecuted to finality prior to the enactment of the relevant legislation. Were it otherwise, it was said, a person could be charged with, and convicted of, an offence unknown to the common law. They referred in this connection to a number of English and American authorities, viz, Miller’s case (1764) 1 WI.P.l 450; R. .v. MacKenzie (1820), Russ and Ry 429; Kay .v. Goodwin (1830)
6 Bing. 576; R. .v. Swann (1849) 4 Cox CC 108; The General Pickney ( Yeaton .v. USA ) 9 US 281 (1809); Commonwealth .v. Cooley (1830) HF & H 36; United States .v. Tynen , 11 Wall 88; Massey .v. United States , 291 US 608. While these were cases of statutory offences and it had been possible in England and Ireland, since the enactment of the various Interpretation Acts, to rely on the general saving provisions contained in those Acts, they did not apply to common law offences. It was urged that no distinction in principle existed between such offences and statutory offences. Accordingly, the absence of transitional provisions in the 1997 Act was, it was submitted, fatal.
As to the 1997 Interpretation Act, it was submitted that subsection (4) of s. 1 of that Act made it clear that it could not be construed in such a fashion as to conflict with the constitutional rights of any persons. Hence, it was said, the Act was clearly not intended to apply to any criminal proceedings in being at the date of its enactment, since that would infringe the constitutional rights of the defendants in those proceedings and would be an impermissible invasion of the judicial domain, in contravention of the decision of the former Supreme Court in Buckley and Others .v. Attorney General (1950) IR 67 (hereafter “the Sinn Féin Funds case” ).
In the Corbett case, Dr. White S.C. on behalf of the applicant further submitted that, in any event, the DPP was bound by the concession claimed to have been made on his behalf in The People .v. Kavanagh , i.e. that no prosecution could be maintained in respect of offences abolished by the 1997 Act in the absence of transitional provisions.
In Grealis, Mr. Gerard Hogan S.C. on behalf of the DPP and the Attorney General, submitted that, applying normal canons of construction, it could not have been the intention of the Oireachtas to have abolished the common law offence of assault in such a manner as to confer immunity from prosecution on persons who had committed assaults prior to the coming into operation of the 1997 Act. He said that the 1997 Act was clearly prospective in its operation and that it was not intended to affect the legal status of offences alleged to have taken place prior to the coming into force of the relevant provision. He further submitted that the Oireachtas could not have constitutionally created the immunity claimed on behalf of the applicant, having regard to the express obligation imposed on the State and its organs by Article 40.3.2 ° of the Constitution to protect as best it might the life and person of the citizen, which necessitated the existence of a substantial criminal law in respect of acts of assault. He further urged that, to the extent that the 1997 Act was ambiguous in failing to make any provision for what was to happen in the case of offences alleged to have been committed before it came into force, the “double construction” rule explained in East Donegal Co-operative Livestock Marts Ltd. .v. Attorney General (1970) IR 317 should be applied so as to ensure that the Act was interpreted in a constitutional manner which recognised the obligations of the State under Article 40.3.2 °.
7. Mr. Hogan said that, in the result, the DPP did not have to rely on the provisions of the 1997 Interpretation Act. He submitted that, in any event, the Act did no more than codify the existing common law in relation to the abolition of offences. He conceded, however, that it would be difficult for the DPP to rely on the 1997 Interpretation Act, if that arose, having regard to the decision in the Sinn Féin Funds case .
8. On behalf of the DPP and the Attorney General in Grealis, Mr. Maurice Gaffney, S.C. made submissions to the same effect as those advanced by
Mr. Hogan in Corbett. He also relied on certain maxims of statutory interpretation and constitutional rules of construction referred to in the judgments in Quinlivan and Mullins .v. Harnett .
9. He further submitted that the provisions in the 1997 Interpretation Act preserving the constitutional rights of persons which might otherwise be infringed by its provisions meant no more than that the courts, in giving effect to the 1997 Act in allowing the prosecution in Grealis to proceed, must uphold any constitutional rights of the applicant if they came under threat: it did not have the consequence of rendering the further prosecution of the offences unconstitutional, as contended for on behalf of the applicant.
10. As to the cross appeal in Grealis, Mr. Counihan S.C. on behalf of the applicant submitted that the learned trial judge was in error in treating the offence in the third summons as a statutory offence. He said that the observations of Ó Dálaigh C.J. in The State (O.) .v. Eveleen O’Brien were obiter, were erroneous in point of law and should not be followed. He submitted that the only effect of s. 47 of the Offences Against the Person Act, 1861 (hereafter “the 1861 Act” ) was to provide for a particular penalty where the common law offence of assault gave rise to the consequence of occasioning actual bodily harm. He relied in this context on the judgment of Egan J. speaking for this court in DPP .v. E.F. (unreported: judgments delivered 24th February 1994).
11. Replying on behalf of the DPP, Miss Adrienne Egan submitted that the law had been correctly stated by Ó Dálaigh C.J. in The State (O.) .v. Eveleen O’Brien : both the actus reus and mens rea of the offence of assault occasioning actual bodily harm were different from the actus reus and mens rea which had to be established in the common law offence of assault.
The statutory framework
Section 47 of the 1861 Act provides that:
“Whosoever shall be convicted upon an Indictment of any Assault occasioning actual bodily Harm, shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for the Term of Three Years, or to be imprisoned for any Term not exceeding Two Years, without or without ( sic) Hard Labour; and whosoever shall be convicted upon an Indictment for a common Assault shall be liable, at the Discretion of the Court, to be imprisoned for any Term not exceeding One Year, with or without Hard Labour.”
12. I have already set out the provisions of s. 28(1) of the 1997 Act. It should also be noted that, by virtue of s. 31 of that act and the Schedule, s. 47, together with a number of other sections in the 1861 Act, was repealed.
Section 21(1) of the Interpretation Act 1937 provides that:-
“Where an Act of the Oireachtas repeals the whole or a portion of a previous statute, then, unless the contrary intention appears, such repeal shall not …
(b) affect the previous operation of the statute or portion of a statute so repealed or anything duly done or suffered thereunder, or
(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under the statute or portion of a statute so repealed, or
(d) affect any penalty, forfeiture, or punishment incurred in respect of any offence against or contravention of the statute or portion of a 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.”
13. These provisions replicated almost verbatim the corresponding provisions in s. 38 (1) of the Interpretation Act, 1889, which were repealed by the 1937 Act.
14. Section 1 of the 1997 Interpretation Act provides as follows:-
“Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law, then unless the contrary intention appears, such abolition, abrogation or repeal shall not –
(a) affect the previous operation of the law in relation to the offence so abolished, abrogated or repealed or any other offence or anything duly done or suffered thereunder,
(b) affect any penalty, forfeiture or punishment incurred in respect of any such offence so abolished, abrogated or repealed or any other offence which was committed before such abolition, abrogation or repeal, or
(c) prejudice or affect any proceedings pending at the time of such abolition, abrogation or repeal in respect of any such offence or any other offence.
(2) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law then, unless the contrary intention appears, any proceedings in respect of any such offence or any other offence committed before such abolition, abrogation or repeal of any such offence at common law may be instituted, continued or enforced and any penalty, forfeiture or punishment in respect of any such offence at common law or any other offence may be imposed and carried out as if such offence at common law had not been abolished, abrogated or otherwise repealed.
(3) This section applies to an offence which is an offence at common law, abolished, abrogated or otherwise repealed before or after the passing of this Act.
(4) If, because of any or all of its provisions, this section would, but for the provisions of this subsection, conflict with the constitutional rights of any person, the provisions of this section shall be subject to such limitations as are necessary to secure that they do not so conflict, but shall otherwise be of full force and effect.”
Conclusions
15. Where parliament by legislation abolishes a criminal offence and says that, in effect, the conduct which it was there to restrain will henceforth be lawful, it would seem a matter of common sense that no court could convict a person of such an offence. How, it might well be asked, could any court have power to inflict punishment on a person who had done nothing wrong?
16. Fortunately, the law as evolved in judicial decisions frequently, if not invariably, does accord with common sense and so it is in the present case. As long ago as 1764, an English court said in Miller’s case :-
“Even offences committed against the clause (while in force) could not have been now punished, without a special clause to allow it; and therefore, a clause is inserted in the repealing statute for that purpose.”
17. But that case recognised, as common sense would also have suggested, that it is perfectly competent for the legislature to provide in the repealing statute that it is not to affect crimes alleged to have been committed before it was enacted.
18. As Tindal C.J. put it in the later case of Kay .v. Goodwin in 1830:-
“I take the effect of repealing a statute to be, to obliterate it as completely from the records of the parliament as if it had never passed; and, it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law.”
19. The same view of the law was expressed in even more trenchant language by Rolfe B. in R. .v. Swann , where he said:-
“I think it perfectly clear that, when a statute is repealed simpliciter, you cannot afterwards proceed against a person for anything done under it. I desired to have handed up to me Sir Robert Peel’s Acts, and I find a vast number of statutes, constituting certain offences, were by them repealed, and new acts substituted; in all of them I see that the Acts are repealed from a certain day except as to offences committed before their repeal, and which are to be dealt with as though their repeal had not taken place. I presume that was only done because the legislature thought such a provision necessary … Some of those offences were capital ones by the old law, but the punishment of death was repealed by the 6 Geo. 4, c 16, and if the principle now contended for had been upheld, a man might have been hanged at a time when a statute was in force which declared that such a punishment should not be awarded. It might be by mistake that the new Act did not contain such a provision as I have mentioned, but it very positively repeals all that has gone before, and it is much safer to adhere to what the legislature enact than to speculate on what it intended.”
20. The law was stated in similarly emphatic terms by the Supreme Court of the United States in The General Pickney and in United States .v. James Tynen , where it was laid down, without any qualification, that there could be no legal conviction, unless the law creating the offence was in existence at the time.
21. Following the enactment of the Interpretation Act, 1889, it was possible for courts to convict in respect of offences allegedly committed prior to the enactment of the repealing statute, even in the absence of saving or transitional provisions, but the legislation in question applied only to statutory offences. The United States Supreme Court made it clear in United States .v. Chambers (291 US 217), that where the repealing statute contained no such saving or transitional provisions and the Act of Congress corresponding to the Interpretation Act was not applicable, the law remained as stated in the earlier decisions.
Chambers arose out of the repeal in 1933 of the 18th Amendment to the Constitution which introduced prohibition. As a result of the repeal, the National Prohibition Act, which gave effect to the 18th Amendment, ceased to be of any effect. A prosecution was instituted in June 1933 in North Carolina against two persons for conspiring to violate the National Prohibition Act and for possessing and transporting intoxicating liquor contrary to the Act. The case did not come on for trial until December 6th, 1933, i.e. the day after the repeal of the Prohibition Amendment became effective. Congress had enacted a general provision corresponding to s. 21 of the Interpretation Act, 1889, but the Supreme Court held that this could have no effect where an Act, such as the National Prohibition Act, was rendered inoperative, not because an Act of the Congress had repealed an earlier Act, but because of a subsequent amendment of the Constitution. Chief Justice Hughes, delivering the unanimous opinion of the court, recalled the words of Chief Justice Marshall in the General Pickney :
“It has long been settled on general principles that, after the expiration or appeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force, unless some special provision be made for that purpose by statute.”
22. It was held that, in the absence of any such special provision, the prosecution in that case could not be maintained.
23. This formidable body of authority, it is said on behalf of the DPP, applies only to the repeal of statutory offences. No logical or principled distinction was drawn, however, between the application of this well settled rule of law to statutory offences and to common law offences and, with good reason, since it is clear that there is no such distinction. Common sense, as well as authority, leads one inexorably to the conclusion that, where a common law offence is repealed by statute, in the absence of any saving provision it ceases to exist for all purposes and no prosecution can be maintained in respect of it after the repealing statute has taken effect.
24. Faced with this difficulty, counsel on behalf of the DPP in both Grealis and Corbett have sought to rely on various principles of statutory interpretation and on the provisions of the Constitution.
25. The first line of argument takes as its starting point the fact that the 1997 Act did more than repeal the existing common law offences of assault and assault occasioning actual bodily harm. (I shall assume for the moment that, contrary to the argument advanced on behalf of the DPP in the cross appeal in Grealis, the latter offence is properly so described.) It replaced them with three new offences framed in such a way as to remove features of the old common law which might seem anomalous or inappropriate to contemporary sensibilities.
26. The argument advanced on behalf of the DPP in both cases was in essence that, given that the repealed common law offences were simply being replaced by modernised versions of the same offences, it cannot have been the intention of parliament that persons who had allegedly committed the common law offences before the enactment of the 1997 Act should be given immunity against prosecution, there being, as it was said, no rational basis for such an immunity to be afforded them. The first maxim of interpretation deployed in favour of that argument was the statement of the law in Bennion on Statutory Interpretation , Third Edition, at p. 233 as follows:
“Where an Act contains substantive, amending or repealing enactments, it commonly also includes transitional provisions which regulate the coming into operation of those enactments and modify their effect during the period of transition. Where the Act fails to include such provisions expressly, the court is required to draw such inferences as to the intended transitional arrangements as, in the light of the interpretative criteria , it considers parliament to have intended.” [Emphasis added]
27. That statement of the law depends, of course, on what the applicable interpretative criteria are. The first of them relied on is what was described as the “public interest” principle. That is explained by the learned author at p. 606 as follows:
“It is the basic principle of legal policy that law should serve the public interest. The court when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislature intended to observe this principle. It should therefore strive to avoid adopting a construction which is in any way adverse to the public interest.”
28. The public interest identified in this case is, of course, that acts of violence committed against anyone should not, in general, go unpunished. That is also reflected, it is argued, in the provisions of Article 40 of the Constitution guaranteeing the personal rights of citizens.
29. The next principle referred to in Bennion which is relied on is what is described as “the common sense construction rule” and is explained as follows at p. 427:
“It is a rule of law … that when considering, in relation to the facts of the instant case, 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 to be used in construing the enactment.”
30. Common sense, it is said, would suggest that it cannot have been the intention of the Oireachtas to leave assaults, even in a limited category, unpunished.
In Quinlivan, McGuinness J. was not satisfied that the application of these canons of construction resolved the difficulty created by the omission of any saving or transitional provisions in the 1997 Act. In Mullins .v. Harnett , O’Higgins J. took a different view and was satisfied that they had the effect contended for on behalf of the prosecution in that case.
31. The application of the rules in question manifestly depends on the existence of what are called “opposing constructions” of the enactment in question. Works such as Bennion and Craies on Statute Law , Seventh Edition, are replete with examples of cases in which the courts have had to consider such opposing constructions. The language used in the statute may be ambiguous. The enactment may be capable of either a literal construction or a strained construction. In such cases, it may well be that the interpretative maxims in question can resolve the problem for the court.
32. Section 28(1) of the 1997 Act is, however, clear and unambiguous. The only construction of which it is capable is that the common law offences to which it applies are abolished from the coming into force of the section. They cease to exist in law with all the consequences that flow from their abolition spelled out in the many authorities to which I have referred. Counsel in the present case have been unable to put forward any construction of the provision in question which displaces the plain and unambiguous meaning of the words the draughtsman has used.
33. A further rule of construction advanced on behalf of the DPP was what is sometimes described as the presumption against retrospectivity. In Hamilton .v. Hamilton (1982) IR 466, O’Higgins C.J. cited the following general statement from the judgment of Wright J. in In re Athlumney (1898) 2 QB 547:-
“No rule of construction is more firmly established than this, that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.”
34. Again, that principle can have no application where, as here, the language used is capable of one interpretation only. In the same case, Henchy J. referred to the general principle that the rights of the parties should be decided according to the law as it existed when the action was begun
“unless the new statute shows a clear intention to vary such rights.”
35. Again, that rule can have no application where, as here, the wording of the statute permits of only one construction. In any event, the cases in which that maxim have been applied appear generally to have been cases in which the rights of parties in civil law are under consideration. No authority, other than the constitutional cases to which I shall shortly turn, was cited to us for the proposition that the principle applied also in criminal cases.
In Quinlivan, McGuinness J. held that to interpret s. 28(1) of the 1997 Act as applying to offences allegedly committed before it came into operation would represent an impermissible interference in the judicial process and would violate the principle of the separation of powers embodied in the Constitution, contrary to the decisions of the Sinn Féin Funds case , in Maher .v. Attorney General (1973) IR 140 and Costello .v. The Director of Public Prosecutions (1984) IR 436. In addition, as we have seen, Mr. Hogan urged that the construction contended for on behalf of the applicants would result in the State being in breach of its obligations under Article 40.
36. McGuinness J. expressed her conclusion as follows:
“Where two constructions or interpretations of the relevant statutory provisions are open, the court must adopt that which is not in conflict with the Constitution … The (1997 Act) does not contain any provision dealing with pending cases, but neither does it state specifically that the abolition of the common law offence of false imprisonment is to have the effect of bringing to an abrupt end all prosecutions for that offence now before the courts.”
Again, the “double construction” rule invoked in that passage can have no application in the present case. It would appear that, in that case, the attention of the learned High Court judge was not drawn to the clear line of authority to which I have already referred that, in the absence of any saving provisions, there can be no room for doubt or ambiguity as to the meaning and effect of a provision such as s. 28 (1) of the 1997 Act. The same considerations apply to the arguments based on Article 40 of the Constitution.
37. The applicants will, accordingly, be entitled to succeed, unless the DPP can rely on the 1997 Interpretation Act. If that Act is valid having regard to the provisions of the Constitution and if it did not contain subsection (4), it would unquestionably put an end to the difficulties experienced by the DPP in these two cases. The wording of s. 1(1)(c) and subsection (2) is clear and comprehensive and they apply by virtue of subsection (3) to common law offences abolished before or after their enactment.
38. Subsection (4) has been inserted in the section as a form of constitutional safety net to ward off a possible finding of unconstitutionality. It is in virtually identical terms to provisions in earlier legislation also enacted by the Oireachtas in response to difficulties arising in some cases, as here, from judicial decisions.
39. In the case of the Courts (No. 2) Act, 1988, the difficulty arose, not as a result of a judicial decision, but because of the belated discovery that a District Justice had been sitting at a stage when he had passed the retirement age. The legislation provided for the validation of acts performed by him during that time, but s. 1(3) provided:-
“If, because of any validation expressed to have been effected by subsection (2) of this section, that subsection would, but for this subsection, conflict with a constitutional right of any person, the validation shall be subject to such limitation as is necessary to secure that it does not so conflict but shall be otherwise of full force and effect.”
40. The High Court and this court (by a majority) held in Shelley .v. District Justice Mahon and Anor. (1990) IR 36 that the purported conviction of the applicant in that case by the District Justice was a nullity and that any purported retrospective validation would conflict with his constitutional right to be tried on a criminal charge in due course of law by a judge duly appointed under the Constitution.
41. Rejecting a submission on behalf of the respondents that the subsection could be construed as surplusage, Griffin J. said
“In construing a statute, it is permissible to reject words or phrases as surplusage if it is necessary to do so to give a sensible meaning to a section. That however is very far removed from treating one of three subsections as surplusage. It is not in my view a permissible approach to the construction of a statute to explain the presence of a subsection by an argument or submission that it is surplusage. In my opinion, the construction of subsections 2 and 3 is clear and the intention of the Oireachtas, as expressed in the words used, is also clear. Subsection (2)(a) is a blanket provision designed to cover every order made by the respondent subsequent to the date of his retirement on the 4th January 1984. It is however obvious that if that subsection stood alone it would be bound to trench on constitutional rights of at least some of the persons against whom such orders were made, in which event Article 15.4 of the Constitution [guaranteeing the right of persons to be tried on criminal charges in due course of law by a judge appointed under the Constitution] would have been breached and the subsection would be invalid. The Oireachtas was, however, alive to this danger and subsection 3 was accordingly enacted for the purpose of qualifying subsection 2(a) … If the purported validation conflicts with a constitutional right of any person, it would be ineffective to such an extent as is necessary to ensure that it does not conflict with that right.”
42. If the argument advanced on behalf of the DPP in Grealis in this case is well founded, then the subsection with which we are concerned would be truly surplusage. A judge at any level is obliged to uphold the constitutional rights of persons who may be prosecuted in reliance on the provisions of the 1997 Interpretation Act and, if that was all that the subsection was intended to ensure, it was wholly unnecessary. The conclusion is, in my view, irresistible that the Oireachtas, rightly or wrongly, were of the view that the operation of the 1997 Interpretation Act would, in some circumstances at least, infringe the constitutional rights of persons affected by its provisions, unless sub-s. (4) was inserted.
43. Given that the purpose of the Act was to validate prosecutions in respect of common law offences which could not otherwise be maintained because of the state of the law as found by the Special Criminal Court in The People .v. Kavanagh , the Oireachtas must have envisaged that the retrospective validation of prosecutions instituted before the coming into force of the 1997 Act would be a breach of the constitutional rights of defendants in such cases. It follows inevitably that subsection (4) must have been inserted so as to prevent the Act from taking effect in the case of such prosecutions.
44. A somewhat analogous situation arose in Pine Valley Developments .v. Minster for the Environment (1987) IR 23. In that case, a planning permission granted to the plaintiff developers by the Minister for Local Government (as he was then styled) on appeal had been found by this court (in an earlier decision reported at (1984) IR 407) to be ultra vires . That, of course, had the consequence that the many similar permissions granted by the Minister on appeal were also ultra vires , although in many cases buildings etc. had been erected in reliance on them. In those circumstances, s. 6 of the Local Government (Planning and Development) Act, 1982, was enacted so as to validate those permissions. However subsection (2) provided, in terms identical to the provision now under consideration, that it was not to conflict with the constitutional rights of any person. Lardner J., sitting as a member of this court, commented on the provisions as follows:
“In considering the effect of the provisions of section 6 subsections 1 and 2 of the Act of 1982, it is helpful to remember that the proceedings in the High Court and in the Supreme Court to which I have referred raised justiciable issues between the parties to those proceedings, one of whom is now one of the plaintiffs in the present proceedings. As was held in [the Sinn Féin Funds case] the effect of Articles 34 to 37 of the Constitution is to vest in the courts the exclusive right to determine issues of this nature. In instituting and defending the proceedings to which I have referred, the parties thereto were exercising a constitutional right and they were entitled to have the issues determined by the judicial organ of the State … No doubt it was apprehended that s. 6, subsection 1 of the Local Government (Planning and Development) Act, 1982 might operate to reverse retrospectively this court’s decision and that this might constitute an unwarrantable interference by the legislature in a decision of the courts. It seems probable that it was in these circumstances that s. 6, subsection 2 was enacted with a view to avoiding such interference …”
45. The 1997 Interpretation Act does not go so far as to reverse retrospectively any decision of the courts. In the absence of sub-s. (4), it might have been said to constitute an unjustifiable interference in litigation pending before the courts by, in effect, requiring the courts to decide the cases in question on a different legal basis. But it is unnecessary in this case to decide whether the effect of the Sinn Féin Funds case is to render such an interference (or the interference under consideration in Pine Valley ) impermissible. It is sufficient to say that subsection (4) must have been intended to preserve the constitutionality of the section as a whole by excluding prosecutions initiated before the commencement of the 1997 Interpretation Act from the ambit of the Act. Any other construction, such as that relied on on behalf of the DPP in Grealis, would render the provision otiose.
46. It remains to be said that I would have no hesitation in rejecting the submission advanced by Dr. White on behalf of the applicant in Corbett to the effect that the DPP was bound by the concession claimed to have been made on his behalf in The People .v. Kavanagh . The DPP is, save in exceptional circumstances, the only authority entrusted with the prosecution of indictable crime in this country and he necessarily discharges his functions by retaining counsel and solicitors to act on his behalf. The fact that counsel in a particular case may have made a concession, for whatever reason, which was erroneous in law, cannot have the effect of estopping the Director from canvassing the point in subsequent proceedings: to hold otherwise would be a recipe for ensuring the perpetuation of legal error and, it may well be, injustice.
47. The cross appeal in Grealis on behalf of the applicant remains to be considered. The question as to whether the offence described in s. 47 of the 1861 Act as “assault occasioning actual bodily harm” is a common law offence or a statutory offence was considered by Ó Dálaigh C.J. in The State (O.) .v. Eveleen O’Brien in a judgment with which Walsh J. and Fitzgerald J. agreed. In that case, a district justice had certified, pursuant to s. 207 (1) of the Mental Treatment Act, 1945, that a person detained in a district mental hospital was suitable for transfer to the Central Mental Hospital. The district justice could only so certify where inter alia the person was charged with an indictable offence. In that case, he had been charged with an assault occasioning actual bodily harm “contrary to s. 47 of the (1861) Act …” . It was argued on behalf of the prosecutor that the charge against him was bad because s. 47 of the 1861 Act did not create an offence but merely declared the penalty for an existing common law offence.
48. Ó Dálaigh C.J., having pointed out that assault was a common law misdemeanour and, as such, triable on indictment but had been triable summarily since the enactment of the Criminal Justice Act, 1951, said that it was proper to invoke the statute in describing the offence in the complaint, but that in any event the court was not concerned in that case with examining a conviction but simply with the question of whether an offence was charged and, if so, whether it was an indictable offence. As to whether it was appropriate to refer to the statute in the complaint, he said:-
“Archbold’s Practice in Criminal Cases, 26th Ed. (1922), deals with the offence as a statutory offence. There, at p. 929, the statement of offence is ‘assault contrary to s. 47 of the (1861 Act).’
The 36th Ed. (1966) on the other hand, at p. 978, para. 2637 treats it as a common law offence, and the statement of offence is simply ‘assault occasioning actual bodily harm’. But is this correct? Where, prior to the enactment of the (1861 Act), do we find any evidence of the existence of such an offence? Common assault, yes; but not ‘assault occasioning actual bodily harm.’ The latter offence is the common law offence with the addition of aggravating circumstances. I would describe the offence so created as a hybrid offence and, as a choice has to be made between stating the offence as a common law offence (i.e. without adding the words ‘contrary to s. 47 of the (1861 Act)’ or as a statutory offence simply (i.e. with the said addition), I consider that the view of the editor of the 1922 edition is preferable. The hybrid offence is a kind of statutory offence; it is not a common law offence. If it is to be assimilated into a category, then in my opinion it falls to be identified as a statutory offence. Therefore, I think it was proper to invoke the statute.”
49. Since, as the learned Chief Justice pointed out, the issue in that case was as to whether an offence was charged and, if so, whether it was an indictable offence, this passage must be regarded as obiter. It is, however, relied on by the DPP as correctly stating the law.
50. The 1861 Act contains eleven separate sections under the cross heading “assaults”. Some of these provide expressly for the creation of new offences. Thus, a person found guilty of assaulting and striking or wounding any magistrate is to be guilty of a misdemeanour. Some of the other sections, however, such as s. 47, do no more than provide for an increased penalty, depending on the circumstances of the assault. Thus, persons convicted of assaults of an aggravated nature on females or male children under the age of 14 are liable to increased penalties. It is possible to construe s. 47 as doing no more than providing that, where the common law misdemeanour of assault had as its consequence the infliction of actual bodily harm, the perpetrator was liable to an increased sentence.
51. So to read it, however, would in my view be to pay insufficient regard to the fact that the section introduces another ingredient which must be proved by the prosecution before the penalty prescribed by the section can be imposed. Where a person is prosecuted for an offence – in this case “assault occasioning actual bodily harm” – which requires the proof of two distinct ingredients, i.e. assault and bodily harm resulting from the assault, it cannot be said that they are being prosecuted for the offence of assault simpliciter.
52. That conclusion is confirmed, not merely by the passage from the judgment of Ó Dálaigh C.J. already cited, but also by the decision of this court in The People .v. Murray (1977) IR 416. One of the defendants in that case had shot dead an unarmed garda in plain clothes while they were fleeing from the scene of a bank robbery. They were prosecuted for the crime of “capital murder” and convicted in the Special Criminal Court. The Criminal Justice Act 1964 had abolished the death penalty in all save a limited category of cases, i.e. the murder of gardaí or prison officers in the course of their duties and of heads of state and ambassadors, these categories being described as “capital murder” .
53. An issue arose as to the nature of the mens rea which had to be proved by the prosecution before a conviction could be recorded: was it necessary for the prosecution to establish that the defendants knew that the victim was a garda or 1were recklessly indifferent as to whether he was or not or was it sufficient to establish that they intended to kill, or cause serious injury to, the victim, the mens rea required, also since the enactment of the 1964 Act, in cases of murder generally?
54. The defendants having been convicted in the Special Criminal Court of capital murder, an appeal was brought to the Court of Criminal Appeal. That court, in upholding the convictions, concluded that the mens rea which the prosecution had to prove was the same as in cases of murder generally. The court reached that conclusion because it was satisfied that the offence of capital murder of which the defendants had been found guilty was not a new offence created by the 1994 Act: the offence with which the defendants had been charged, and of which they had been found guilty, was the common law offence of murder. The effect of the 1994 Act was simply to provide that where, as in this case, the victim was a member of the Garda Síochána killed in the course of his duties, a person convicted of the crime was to be sentenced to death.
55. The Court of Criminal Appeal having certified that its decision involved a point of law of exceptional public importance, an appeal was brought to this court, which reversed the finding that the offence of capital murder was not a new offence. The judgments went on to consider the nature of the mens rea required in a case of capital murder and reached their conclusions on that difficult topic by a majority: they were, however, unanimous as to the first issue.
56. The judgments of Griffin J. and Kenny J. in that case make it clear that they were satisfied that the fact that that the prosecution had to prove, at the least, not merely that the defendants intended to kill, or cause serious injury to, the victim but also that the victim was a member of the Garda Síochána who had been killed in the course of his duties and that the charge had to be laid as one of “capital murder” and not of murder simpliciter demonstrated that the offence was a new offence created for the first time by the 1964 Act. It is true that Walsh J. and Henchy J., in the judgments which they delivered, also laid strong emphasis on the awesome consequences which flowed from a conviction of capital murder as distinct from murder simpliciter, but I do not read their judgments as depending crucially on that fact. The ratio of the decision was clearly that, following the enactment of the 1964 Act, there existed for the first time in our law a new offence described as “capital murder” the ingredients of which were significantly different from those which had to be proved in murder simpliciter.
57. These considerations also apply to the offence of “assault occasioning actual bodily harm” which appeared for the first time in the 1861 Act. I am satisfied that the law was correctly stated by Ó Dálaigh C.J. in The State (O.) .v. Eveleen O’Brien and that the cross appeal by the applicant should be dismissed.
58. It should be pointed out that counsel for the DPP also relied on what she said was the different nature of the mens rea which had to be established by the prosecution in the case of an assault occasioning actual bodily harm. The nature of the mens rea required in such cases is referred to in the judgment of the Court of Criminal Appeal in The DPP .v. McBride [(1996) 1 IR 426] but the judgment does not resolve the issue as to whether the mens rea is of a different nature from that required in cases of assault at common law. In England, there had been conflicting decisions on the point, but the law in that jurisdiction appears to have been put beyond doubt by the decision of the House of Lords in R. .v. Savage ; R. .v. Parmenter (1991) 4 All ER 698, which was not referred to in the arguments before us but which made it clear that, in order to establish the offence of assault occasioning actual bodily harm contrary to s. 47 of the 1861 Act, it was sufficient for the prosecution to show that the defendant committed an assault and that actual bodily harm was occasioned by it; the prosecution was not obliged to prove that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused. Since, however, the conclusion I have reached is not in any way dependent on the prosecution being required to establish a different degree of mens rea in cases of assault occasioning actual bodily harm, it is unnecessary to consider further whether R. .v. Savage ; R. .v. Parmenter should be followed in this jurisdiction.
59. I should also point out that my view that the offence of occasioning actual bodily harm is a statutory offence and not a common law offence is unaffected by the fact that the 1997 Act, as we have seen, describes it as a common law offence. That was an error of draughtsmanship in the 1997 Act which cannot have the effect of converting retrospectively what was always a statutory offence into a common law offence.
60. The intention of the Oireachtas in enacting the relevant provisions of the 1997 Act is not in doubt. They intended to replace inter alia the offence of assault occasioning actual bodily harm with two other offences, “assault causing harm” and “causing serious harm” . It was entirely immaterial in that context whether the offence they were replacing was properly described as a statutory offence or a common law offence. The fact that they erroneously chose to describe it as the latter (perhaps misled by the incorrect statement of the law in the Law Reform Commission report on Non-Fatal Offences Against the Person which in turn appears to have overlooked the decision of this court in The State (O.) .v. Eveleen O’Brien ) is nihil ad rem . As Lord Reid pointed out in Inland Revenue Commissioners .v. Dowdall O’Mahony & Company Ltd . (1952) AC 401:-
“There is a difference between parliament exhibiting an erroneous opinion as to the existing law and enacting that that law shall be changed.”
61. Or, as Lord Radcliffe put it in the same case (at p. 426):-
“The beliefs or assumptions of those who frame acts of parliament cannot make the law.”
In Grealis, I would allow the appeal by the Attorney General against the finding of the learned High Court judge that the 1997 Interpretation Act was invalid having regard to the provisions of the Constitution. I would dismiss the appeal of the Director of Public Prosecutions against the order of the High Court granting the relief sought by way of prohibition, and would also dismiss the cross appeal by the applicant. In Corbett, I would allow the appeal of the applicant and substitute for the order of the High Court an order granting the relief by way of prohibition sought in respect of the summons on foot of which the prosecution was brought.
THE SUPREME COURT
Keane C.J.
Denham J.
Murphy J.
Murray J.
Hardiman J.
Record No. 262/99
BETWEEN/ PADRAIC GREALIS
APPLICANT/RESPONDENT
and
THE DIRECTOR OF PUBLIC PROSECUTIONS,
IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS/APPELLANTS
And Record No. 16/2000
EMMETT CORBETT
APPLICANT
and
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
and
THE ATTORNEY GENERAL
NOTICE PARTY
Judgment of Mrs. Justice Denham delivered on 31st day of May, 2001.
1. Issues
62. These cases were heard together. They raise similar fundamental issues. First, the question is whether common law offences abolished by the Non-Fatal Offences Against the Person Act, 1997 may be prosecuted after that Act came into effect. Secondly, whether the offence of occasioning actual bodily harm was a common law offence or a statutory offence. Upon these determinations consequences flow. Further, the place of the Interpretation (Amendment) Act, 1997 in relation to these prosecutions and its constitutionality fall to be decided.
2. The Facts in Grealis
63. On 4th day of May, 1997 an incident took place which it is alleged involved an assault by Padraic Grealis (hereinafter referred to as the first applicant) on Margaret Sweeney and Francis Sweeney. It is alleged also that on 11th May, 1997 an assault by the first applicant on Christopher McGinty took place. On 19th May, 1997 the Non-Fatal Offences Against the Person Act, 1997 became law, by which statute the common law offences of assault and battery and assault occasioning actual bodily harm were abolished on 19th August, 1997. On 11th September, 1997 proceedings in respect of the incident on 4th May, 1997 were commenced by way of summonses which referred to an assault on Margaret Sweeney and Francis Sweeney as being contrary to common law, subject to s.11(2) of the Criminal Justice Act, 1951 as amended by s.10(2) of the Criminal Justice Act, 1994. On 12th September, 1997 proceedings were commenced in respect of the incident on the 11th May, 1997, by way of summons which referred to an unlawful assault on Christopher McGinty, contrary to s. 47 of the Offences Against the Person Act, 1861. On 15th June, 1998 leave was granted by the High Court to seek an order of prohibition in respect of the said summonses issued. On 18th October, 1999 the High Court held that assault occasioning actual bodily harm was a statutory offence and that the provisions of s. 21 of the Interpretation Act, 1937 applied. The High Court also held, in relation to the offence of common assault, that in the absence of a statutory transitional clause in force at the time when the proceedings were commenced, the proceedings could not have been lawfully instituted in respect of an abolished offence. Further, the Court held that the Interpretation (Amendment) Act, 1997 which sought to insert a transitional clause retrospectively was unconstitutional. On 22nd November, 1999 the first applicant filed an appeal and on 23rd November, 1999 the Director of Public Prosecutions, Ireland and the Attorney General (hereinafter referred to as the respondents) filed an appeal.
3. The Summonses
1(a) In Grealis the summonses stated, of the first applicant:
(i) “WHEREAS a complaint has been made to me that you the said
defendant on the 4th day of May, 1997, at Hotel Westport, New Road, Westport Demesne, Westport, Co. Mayo within the court area and district aforesaid, did
64. Assault one Margaret Sweeney.
65. Contrary to Common Law. Penalty.
Subject to Section 11(2) of the Criminal Justice Act, 1951,
as amended by Section 10(2) of the Criminal Justice Act 1994.
66. THIS IS TO COMMAND YOU to appear as defendant on the hearing of the said complaint at the District Court at Courthouse, Westport, Co. Mayo,
in said court area and district, on 3rd day of October, 1997
at 11 o’clock, a.m. to answer the said complaint.
Dated this 11.9.97.”
(ii) “WHEREAS a complaint has been made to me that you the said defendant on
the 4th day of May, 1997, at Hotel Westport, New Road, Westport Demesne,
67. Westport, Co. Mayo within the court area and district aforesaid, did
68. Assault one Francis Sweeney.
69. Contrary to Common Law. Penalty
Subject to Section 11(2) of the Criminal Justice Act 1951,
as amended by Section 10(2) of the Criminal Justice Act 1994.
70. THIS IS TO COMMAND YOU to appear as defendant on the hearing of
the said complaint at the District Court at Courthouse, Westport, Co. Mayo
in said court area and district, on the 3rd day of October, 1997
at 11 o’clock, a.m., to answer the said complaint.
Dated this 11.9.97.”
(iii) “WHEREAS a complaint has been made to me that you the said defendant
on the 11th day of May, 1997, at Mulranny. Co. Mayo, within the court
area and district aforesaid, did on the 11th of May, 1997 at Mulranny, Co.
71. Mayo in the said District did unlawfully assault one Christopher McGinty of
72. Dooriel, Ballycroy, Westport, Co. Mayo thereby occasioning him actual
bodily harm.
Contrary to Section 47 Offences Against the Person Act, 1861.
73. THIS IS TO COMMAND YOU to appear as defendant on the hearing of the said complaint at the District Court at Newport in the said court area and
district, on the 17th day of October, 1997, at 11 o’clock, a.m., to answer
the said complaint.
Dated this 12.09.’97.”
4. Law
74. The relevant statutory law includes the Offences Against the Person Act, 1861; the Interpretation Act, 1937; the Non-Fatal Offences Against the Person Act, 1997; and the Interpretation (Amendment) Act, 1997.
The Non-Fatal Offences Against the Person Act, 1997.
75. The Non-Fatal Offences Against the Person Act, 1997 abolished certain common law offences and statutory offences. Section 28 states:
“28.-(1) The following common law offences are hereby abolished –
(a) assault and battery,
(b) assault occasioning actual bodily harm,
(c) kidnapping, and
(d) false imprisonment
(2) . . . ”
76. Section 31 states:
“31.- Each enactment specified in column (2) of the Schedule to this Act is hereby repealed to the extent specified in column (3) of that Schedule.”
77. The schedule sets out the extent of the repeal of the Offences Against the Person Act, 1861 which includes s. 47. Section 11 of the Criminal Justice Act, 1951 was also repealed. There were no saving or transitional arrangements in the Act of 1997 in relation to the abolition of the offences.
The Interpretation (Amendment) Act, 1997.
78. The Interpretation (Amendment) Act, 1997, states:
“1. – (1) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law, then unless the contrary intention appears, such abolition, abrogation or repeal shall not –
(a) affect the previous operation of the law in relation to the offence so
abolished, abrogated or repealed or any other offence or anything
duly done or suffered thereunder,
(b) affect any penalty, forfeiture or punishment incurred in respect of any
such offence so abolished, abrogated or repealed or any other offence
which was committed before such abolition, abrogation or repeal, or
(c) prejudice or affect any proceedings pending at the time of such abolition, abrogation or repeal in respect of any such offence or any other offence.
(2) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law, then unless the contrary intention appears, any proceedings in respect of any such offence or any other offence committed before such abolition, abrogation or repeal of any such offence at common law may be instituted, continued or enforced and any penalty, forfeiture or punishment in respect of any such offence at common law or any other offence may be imposed and carried out as if such offence at common law had not been abolished, abrogated or otherwise repealed.
(3) This section applies to an offence which is an offence at common law abolished, abrogated or otherwise repealed before or after the passing of this Act.
(4) If, because of any or all of its provisions, this section would, but for the provisions of this subsection, conflict with the constitutional rights of any person, the provisions of this section shall be subject to such limitations as are necessary to secure that they do not so conflict, but shall otherwise be of full force and effect.”
79. There have been a number of cases arising from the Non-Fatal Offences Against the Person Act, 1997. In The People v. Kavanagh (Unreported, Special Criminal Court, Barr J., 29th October, 1997) it was held that a charge of false imprisonment commenced prior to 19th August, 1997 could not proceed due to the effect of s. 28(1) of the Act of 1997. In Quinlivan v. Governor of Portlaoise Prison [1998] 2 IR 113, the High Court held that the abolition effected by s. 28(1) of the Act of 1997 did not apply in respect of charges of false imprisonment pending before the courts at the time of the abolition. The Interpretation (Amendment) Act 1997 was not relied upon by the State. In Mullins v Harnett [1998]
4 I.R. 426 the High Court held that the abolition effected by s. 28(1) did not apply in respect of charges of common assault pending before the courts at the time of the abolition. The Interpretation (Amendment) Act, 1997 was not relied upon by the State in that case either.
5. The High Court Judgment in Grealis
80. In the High Court, [2000] 1 ILRM 358, O’Donovan J. held that: (a) assault occasioning actual bodily harm is a statutory offence, s. 21 of the Interpretation Act, 1937 applies, and so the proceedings were valid; (b) in respect of the offence of common assault (because of the absence of transitional arrangements at the time the proceedings were commenced) the proceedings could not be lawfully instituted; and c) the Interpretation (Amendment) Act, 1997, in attempting to insert a transitional clause retrospectively, was unconstitutional.
81. The learned trial judge stated at p. 362 et seq. of the report:
“At the outset, it seems to me that the first issue which I must determine is whether or not the offence of assault contrary to s. 47 of the Offences Against the Person Act, 1861 alleged against the applicant in the said summons dated 12 September 1997 is, as submitted on behalf of the applicant, a common law offence and thereby included among the provisions of s. 28(1) of the Non-Fatal Offences Against the Person Act 1997 or whether, as submitted on behalf of the respondents, it is a statutory offence and, therefore, excluded from those provisions. In this connection, I think that I need look no further than to the judgment of the Supreme Court delivered in the case of State (O.) v. O’Brien [1971] I.R. 42 which is a binding authority and in which it was held that the offence of assault occasioning actual bodily harm is a statutory offence. Accordingly, I must conclude that the offence of assault contrary to s. 47 of the Offences Against the Person Act 1861 alleged against the applicant in the said summons dated 12 September 1997 does not come within the provisions of
s. 28(1) of the Non-Fatal Offences Against the Person Act 1997. That as it may be, however, it is equally clear, by virtue of the provisions of s. 31 of the said Act of 1997 and the schedule thereto, that the offence of assault occasioning actual bodily harm contrary to the provision of s. 47 of the Offences Against the Person Act 1861 was abolished with effect from 19 August 1997.
. . .
. . . , I am satisfied that, on 19 August 1997, there were no saving provisions in respect of the common law offences abolished by s. 28(1) of the Non-Fatal Offences Against the Person Act 1997 and, in particular, no saving provisions in respect of the offences of common assault alleged against the applicant in the said summonses dated 11 September 1997. However, the same considerations do not apply with regard to the offence of assault contrary to s. 47 of the Offences Against the Person Act 1861 which is alleged against the applicant in the said summons dated 12 September 1997. In that regard, notwithstanding the repeal of s. 47 of the Offences Against the Person Act 1861 by s. 31 of the Non-Fatal Offences Against the Person Act 1997 and the schedule to that Act, I am satisfied that the provisions of the Interpretation Act 1937 and, in particular, the provisions of s. 21(2) of that Act which provide ( inter alia ) . . .
. . .
enable the continuance of the prosecution of the applicant for the offence of assault contrary to s. 47 of the Offences Against the Person Act 1861 alleged in the said summons of 12 September 1997.”
82. In relation to the Interpretation (Amendment) Act, 1997, as a saving for the common law offence of assault, the learned trial judge held that it was repugnant to the Constitution because:
“(a) Section 1(4) purports to permit judges of the District Court to determine its constitutionality contrary to the provisions of Article 34.3.2 ° of Bunreacht na hÉireann,
(b) Section 1(4) purports to divest the authority of the legislature in favour of the courts contrary to the provisions of Article 15.2.1 ° and 2 ° of Bunreacht na hÉireann.
(c) Section 1(4) purports to permit inequality before the law for citizens of the State contrary to the provisions of Article 40(1) of Bunreacht na hÉireann and
(d) The Act, generally, purports to permit interference in a judicial process in being.
In the light of the foregoing, I am persuaded that the charges of common assault alleged against the applicant in the said summonses dated 11 of September 1997 can no longer be prosecuted. However, as I have already indicated, I am equally satisfied that the provisions of s. 21 of the Interpretation Act 1937 enable the continuance of the prosecution of the applicant for the offence of assault contrary to s. 47 of the Offences Against the Person Act 1861 alleged in the said summons of 12 September 1997. Nevertheless, in that regard, I cannot ignore the very persuasive and able submissions by junior counsel for the applicant, Mr. Comerford, with regard to the jurisdiction of the courts to enforce legislation which has been repealed and the several authorities to which he referred in support of the proposition that no such jurisdiction exists. While I would reject the submissions by counsel for the respondents that the authorities cited by Mr. Comerford are a relic of a bygone era and have no relevance today, I think that, in the context of this case, their relevance has been nullified by the saving provisions with regard to the prosecution of statutory offences which have been repealed which are contained in the Interpretation Act 1937. If it were not for those saving provisions, I think that there is considerable substance to the argument, based on the authorities to which Mr. Comerford referred, that the courts cannot enforce legislation which has been repealed.”
6. Appeals in Grealis Case
83. The respondents appealed against so much of the judgment as held that the charges of common assault alleged against the first applicant in the summonses dated 11th day of September, 1997 can no longer be prosecuted; and so much of the judgment as held that s.1 of the Interpretation (Amendment) Act, 1997 purported to create new law and that the said provision of the Interpretation (Amendment) Act, 1997 is repugnant to the Constitution. The respondents appealed also against the decision prohibiting the further prosecution of the offences of common assault alleged against the first applicant and the declaration that s.1 of the Interpretation (Amendment) Act, 1997 was repugnant to the Constitution.
84. The first applicant appealed against the judgment also and in particular from: (i) the determination that an offence described as the offence of assault occasioning actual bodily harm contrary to s. 47 of the Offences Against the Person Act, 1861 does not come within the terms of s. 28(1) of the Non-Fatal Offences Against the Person Act, 1997; and (ii) the determination that s. 21 of the Interpretation Act, 1937 applies in respect of the abolition of the offence described as the offence of assault occasioning actual bodily harm contrary to
s. 47 of the Offences Against the Person Act, 1861.
7. Submissions in Grealis Case
85. Mr. Gerard Hogan, S.C., counsel for the respondents, presented full oral and written submissions. The conclusions therefrom included the following submissions:
A. Section 47 of the Offences Against the Person Act, 1861 is a statutory offence
and, accordingly, its repeal is governed by the provisions of s. 21(1) of
the Interpretation Act, 1937.
86. B. In the absence of the appropriate transitional provisions in the Non-Fatal Offences Against the Person Act, 1997, the duty of the courts is to draw the appropriate inferences regarding the intention of the Oireachtas.
87. C. Having regard to the provisions of Article 15.5 and Article 40.3.2. of the
88. Constitution, it is in the highest degree improbable that the Oireachtas
intended to create a form of immunity in respect of offences committed prior
to the coming into force of s. 28 of the Non-Fatal Offences Against the Person Act, 1997. Instead, the appropriate inference is that the Act was intended to have prospective application only and not to affect in any way the prosecution of offences committed prior to August, 1997.
89. D. In these circumstances, it is not necessary to place any reliance on the
provisions of the Interpretation (Amendment) Act, 1997. In any event,
s. 1 of that Act does no more than codify in legislative form standard
common law principles regarding the effect of a repeal.
E. Section 1(3) does not purport to interfere with pending litigation in the manner
envisaged in Buckley and Others (Sinn Féin) v. Attorney General and
Another [1950] I.R. 67.
F. Section 1(4) is no more than a standard validation section which does not
purport to give District Judges the power to determine the validity of an Act
of the Oireachtas. Nor does s.1(4) vest the courts with legislative powers
or give them the power to act in a manner contrary to Article 40.1. In these
circumstances, the finding of unconstitutionality made by O’Donovan J.
should be set aside.
90. Mr. Michael Counihan, S.C., counsel for the first applicant, also presented full oral and written submissions. His concluding submissions were:-
(a) All of the offences charged upon the challenged summonses are common law offences.
(b) The effect of the abolition of the offences, in the absence of statutory provision to the contrary, is that no new proceedings can be commenced on foot of the abolished offences.
(c) Any operation of the Interpretation (Amendment) Act, 1997 to retrospectively apply a transitional provision is ineffective and the Act is unconstitutional.
8. Decision in Grealis
(a) Assault Summonses
91. The offence alleged on the summonses dated the 11th September, 1997 is a common law offence. Assault and battery are common law offences to which statutory penalties have been added. Reference to a particular section of the Offences Against the Person Act, 1861 may indicate jurisdiction and/or penalty.
Sections 36 to 47 of the Offences Against the Person Act, 1861 follow the heading “Assaults”. Several sections relate to assaults upon specific persons. Thus, s. 36 relates to assaulting a clergyman, s. 37 relates to assaulting a magistrate, and s. 40 relates to assaulting a seaman. Particular social issues are reflected: s. 39 relates to assaults with intent to obstruct the sale of grain and s. 41 relates to assaults arising from any unlawful combination or conspiracy to raise the rate of wages. Sections 36 to 47 of the Offences Against the Person Act, 1861 set out statutory penalties for common law offences of assault. Thus, e.g., if a seaman was assaulted the penalty is stated in s. 40:
“Whosoever shall unlawfully and with Force hinder or prevent any Seaman, Keelman, or Caster from working at or exercising his lawful Trade, Business, or Occupation, or shall beat or use any Violence to any such Person with Intent to hinder or prevent him from working at or exercising the same, shall, on Conviction thereof before Two Justices of the Peace, be liable to be imprisoned and kept to Hard Labour in the Common Gaol or House of Correction for any Term not exceeding Three Months: Provided that no Person who shall be punished for any such Offence by reason of this Section shall be punished for the same Offence by virtue of any other Law whatsoever.”
92. The social policy behind an assault arising from combinations echoes its time, prior to the development of modern trade union law. Thus s. 41 stated:-
“Whosoever, in pursuance of any unlawful Combination or Conspiracy to raise the Rate of Wages, or of any unlawful Combination or Conspiracy respecting any Trade, Business, or Manufacture, or respecting any Person concerned or employed therein, shall unlawfully assault any Person, shall be guilty of a Misdemeanour, and being convicted thereof shall be liable, at the Discretion of the Court, to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour.”
93. These sections provide procedures and penalties in relation to a variety of assaults at common law.
94. The single nature of the offence of assault was described by Edward Griew “Common Assault and the Statute Book”, [1983] Crim. L.R. 710 at p. 711 as:
“One offence
The definition of common assault does not depend on whether the assault in question is complained of “by or on behalf of the party aggrieved,” or on what court is trying the matter. Common assault is one and the same offence whether punishable under section 42 or section 47 of the 1861 Act.”
And at p. 713:
“The truth that sections 42, 43 and 47 provide different means of dealing with a single offence seems to become increasingly lost sight of during the twentieth century.”
95. The report of the Law Reform Commission ( Report on Non-Fatal Offences Against the Person, LRC-45, 1994) stated that assault and battery are common law crimes with penalties added by statute: see paragraph 1.26. It was recommended that the offences of assault and battery at common law be abolished and replaced by a statutory offence of assault.
96. The words of the statute are plain and unambiguous. The relevant words of the Non-Fatal Offences Against the Person Act, 1997 are to be found in s. 28(1):
“The following common law offences are hereby abolished –
(a) assault and battery,
. . . ”
97. The general principles on the interpretation of statutes were stated in Howard v. Commissioners of Public Works [1994] 1 I.R. 101. In that case at p. 151 of the report
98. Blayney J. stated:
“. . . the interpretation of the Act has to be approached in the light of the general principles to be applied in the interpretation of statutes.
‘The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law giver. “The tribunal that has to construe an Act of a legislature, or indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these words it is natural to enquire what is the subject matter with respect to which they are used and the object in view.” [ per Lord Blackburn in Direct United States Cable Co. v. Anglo American Telegraph Co . (1877) 2 App. Cas. 394].’ Craies on Statute Law (1971) (7th ed., 1971) at p. 65.”
Howard held that the words used in a statute best declare the intent of the Act and statutes should be construed according to the intention expressed in the legislation. I adopt this classic approach in construing the Act of 1997. Taking that approach, I am satisfied that the words of s. 28(1) of the Non-Fatal Offences Against the Person Act, 1997 are clear. The meaning is plain. There is no ambiguity. The offences of assault and battery are classified as a common law offences and are abolished. The words took effect from 19th August, 1997.
99. The alleged offence took place on 4th May, 1997. On 19th August, 1997 the provisions of the Non-Fatal Offences Against the Person Act, 1997 came into effect. The common law offences of assault and battery were abolished by s. 28(1). There are no transitional provisions in the Non-Fatal Offences Against the Person Act, 1997.
100. I would uphold the learned trial judge’s determination that on 19th day of August, 1997 there were no saving provisions in respect of the common law offences abolished by section 28(1) of the Non-Fatal Offences Against the Person Act, 1997 and, in particular, there were no saving provisions in respect of the offence of assault alleged against the first applicant.
101. As there were no transitional provisions enacted in the Act of 1997, no proceedings could be instituted after 19th August, 1997. This follows fundamental principle, long settled even when it was repeated clearly in 1809 by Marshall J. in Yeaton v. The United States 9 U.S.
(5 Cranch) 281 (1809) at p 283.
“. . . it has been long settled, on general principles, that after the expiration or repeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force, unless some special provision be made for that purpose by statute.”
102. This common law rule was restated in R v. Swan 4 Cox C.C. 108 (1849) by Rolf B.:
“I think it perfectly clear that, when a statute is repealed simpliciter, you cannot afterwards proceed against a person for anything done under it. I desired to have handed up to me Sir Robert Peel’s Acts, and I find a vast number of statutes, constituting certain offences, were by them ( sic) repealed, and new acts substituted; in all of them I see that the acts are repealed from a certain day except as to offences committed before the repeal, and which are to be dealt with as though the repeal had not taken place. I presume that was only done because the Legislature thought such a provision necessary. . . . Some of those offences were capital ones by the old law, but the punishment of death was repealed . . . if the principle now contended for had been upheld, a man might have been hanged at a time when a statute was in force which declared that such a punishment should not be awarded. It might be by mistake that the new act did not contain such a provision as I have mentioned, but it very positively repeals all that has gone before, and it is much safer to adhere to what the Legislature enacts than to speculate on what it intended. The defendant must be acquitted.”
103. This is an antique common law rule. The principle is compatible with the constitutional requirement of due process. Further, it is necessary under the separation of powers as the sole and exclusive power of making laws is given to the legislature. The common law rule was amended in relation to statutory offences in the Interpretation Act, 1937. No such amendment was made in relation to common law offences. The offence at common law of assault ceased to exist on 19th August, 1997. Consequently, there was no common law offence of assault when the summonses were issued. Nor were there any transitionary statutory provisions.
104. For the above reasons I am satisfied that: (a) assault is a common law offence; (b) it was expressly so provided in the Non-Fatal Offences Against the Person Act, 1997; (c) the common law offence was abolished by the Non-Fatal Offences Against the Person Act, 1997; (d) the common law offence of assault ceased to exist as of 19th August, 1997;
(e) proceedings in the cases in issue were not pending when the Act came into effect, so this issue does not arise; (f) there was no express transitional provision in the Non-Fatal Offences Against the Person Act, 1997 providing for proceedings after the offence was abolished;
(g) there are no words in the Non-Fatal Offences Against the Person Act, 1997 from which an intent to establish a transitional provision could be inferred; (h) it is not appropriate to seek or make a determination that if the Oireachtas had thought about it they would have introduced transitional provisions providing for the time of transition as the functions of the three organs of government are separate and one should not interfere with another; (i) the common law relating to times of transition is that relevant to statutes prior to the enactment of the Interpretation Act, 1937 and was described (albeit in relation to statutes) by Rolf B. in
R. v. Swan 4 Cox C.C. 108 (1849); (j) in the circumstances there was no common law offence of assault after 19th August, 1997 nor were there any transitional provisions in the Non-Fatal Offences Against the Person Act, 1997 or any other statute at that time; (k) it is a fundamental tenet of law, which is consistent with the Constitution of Ireland, 1937, that after the expiration of a law no penalty or punishment should be inflicted for a violation of that law (committed while it was in force) unless special provision is made by statute; (l) retrospective offences are, in general, anathema to the rule of law and due process.
105. It was submitted that the Interpretation (Amendment) Act, 1997 was effective to enable such proceedings. I will address this issue later in the judgment. Subject to analysis of the Interpretation (Amendment) Act, 1997, the respondents have no entitlement in law to proceed to prosecute the first applicant on foot of the two summonses alleging assault contrary to common law.
(b) Summons alleging assault occasioning actual bodily harm.
106. The first applicant was served with a summons dated 12th September, 1997 alleging that on the 11th May, 1997 he did unlawfully assault one Christopher McGinty thereby occasioning him actual bodily harm. It was stated to be contrary to s. 47 of the Offences Against the Person Act, 1861.
107. I am satisfied that this too is a common law offence. I arrive at this decision for a number of reasons.
108. First, it is described as a common law offence in the Non-Fatal Offences Against the Persons Act, 1997. The words are:
“28.- (1) The following common law offences are hereby abolished –
. . .
(b) assault occasioning actual bodily harm,
. . . ”
109. The words are clear and unambiguous.
110. Secondly, it was a common law offence of assault with penalties provided by statute. I reiterate the reasons, previously stated, in relation to the one offence at common law of assault and the provisions of ss. 36 to 47 of the Offences Against the Person Act, 1861 which related to penalties and matters of jurisdiction.
111. Thirdly, in the High Court reliance was placed upon the judgment of the Supreme Court in The State (O) v. O’Brien [1971] I.R. 42. The High Court considered that it was bound by that decision. However, I am satisfied that the case should be distinguished.
In The State v. O’Brien [1971] I.R. 42 the issue was whether an offence was an indictable offence. The court had to assess whether the offence in issue was indictable. Section 207,
sub-s. 1, of the Mental Treatment Act, 1945 enabled a District Justice to sit in a district mental hospital and to certify that a person who is detained in that hospital is suitable for transfer to the Central Mental Hospital, provided that such person is charged with an indictable offence and that there is evidence which, in the opinion of the Justice, constitutes prima facie evidence that such person has committed the offence and that he would be unfit to plead if placed on trial. While he was being detained in a district mental hospital, the prosecutor was charged with having assaulted a doctor, thereby occasioning him actual bodily harm. The statement of complaint against the prosecutor concluded with the words ‘contrary to s.47 Offences Against the Person Act, 1861, as amended by Criminal Justice Act, 1951.’ Having heard evidence the District Justice determined that the prosecutor had committed the offence charged and that he would be unfit to plead if put on trial. The prosecutor brought habeas corpus proceedings in the High Court unsuccessfully and appealed. The Supreme Court disallowed the appeal holding, inter alia, that the offence of “assault occasioning actual bodily harm” was an indictable offence and that it had been stated correctly in the complaint as being contrary to s. 47 of the Act of 1861, and that the reference to the Act of 1951 could be disregarded as surplusage. In giving his judgment O’Dalaigh C.J., with whom Walsh J. and Fitzgerald J. agreed, stated at p. 47 of the report:
“Assault is a common-law misdemeanour and, as such, is triable on indictment. The punishment on conviction upon an indictment for a common assault is imprisonment for any term not exceeding one year, with or without hard labour: see s. 47 of the Offences Against the Person Act, 1861. The same section, as originally enacted, also provided that ‘Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable, at the discretion of the court, to be kept in penal servitude for the term of three years, or to be imprisoned for any term not exceeding two years, with or without hard labour.’ Section 1 of the Penal Servitude Act, 1891, has had the effect, in the case of penal servitude, of amending s. 47 of the Act of 1861 by providing for a maximum sentence of 5 years and a minimum of three years. Since 1951 assault occasioning actual bodily harm may also be tried summarily: see s. 2 and item 5 of the first schedule of the Criminal Justice Act, 1951. However, the conditions stated in s. 2 of the Act of 1951 must be satisfied. In brief, these are that the District Court is of opinion that the facts proved or alleged constitute a minor offence, and that the accused, having been informed of his right to trial by jury, does not object to being tried summarily.”
112. In this passage O’Dalaigh C.J., having traced out the common law nature of the offence of assault, analyses the offence from the point of view of the issue in the case i.e. as to whether it was an indictable offence. He distinguishes the procedure under the Act of 1951 and describes how it may be an indictable offence. He then analyses the nature of the offence. In this analysis there is a discourse as to whether the offence is a common law or a statutory offence. This discussion is obiter dictum. It is not essential to the decision in the case. Even within the judgment different approaches are referred to. Thus at pp. 50-51 the learned Chief Justice states:
“The prosecutor’s second challenge to the validity of the District Justice’s order is that the offence (assault, occasioning actual bodily harm) is charged ‘contrary to section 47 of the Offences Against the Person Act, 1861, as amended by the Criminal Justice Act, 1951.’ The relevant portions of these two statutes have already been quoted. Section 47 is, it was submitted, merely a punishment section and, as we have seen, the only relevance of the Act of 1951 is that “assault occasioning actual bodily harm” is a scheduled offence under the Act and, therefore, capable of being tried summarily.
In my judgment the validity of the Justice’s certificate is unaffected by the reference to these two statutes. The offence charged was ‘assault occasioning actual bodily harm.’ This is an indictable offence. The patient, as s. 207 of the Act of 1945 requires, is shown to have been charged with an indictable offence. The addition of the words ‘contrary etc.’ do not alter the position that the offence is clearly stated and is indictable. The reference to the Act of 1951 had the effect of calling attention to the fact that the charge can now be disposed of summarily: it is mere surplusage. The need for reference to s. 47 of the Act of 1861 cannot be as readily disposed of. The section does advert to sentence. Therefore, it conveys useful information to the defendant – though attention might usefully have also been called to the amendment effected by the Penal Servitude Act, 1891. But does s. 47 do more than refer to sentence? Archbold’s Practice in Criminal Cases, 26th ed. (1922), deals with the offence as a statutory offence. There, at p. 929, the statement of offence is ‘assault, contrary to section 47 of the Offences Against the Person Act, 1861.’ The 36th edition (1966), on the other hand, at p. 978, para. 2637, treats it as a common-law offence, and the statement of offence is simply “assault occasioning actual bodily harm.” But is this correct? Where, prior to the enactment of the Act of 1861, do we find any evidence of the existence of such an offence? Common assault, yes; but not ‘assault occasioning actual bodily harm.’ The latter offence is the common-law offence with the addition of aggravating circumstances. I would describe the offence so created as a hybrid offence and, as a choice has to be made between stating the offence as a common-law offence (i.e., without adding the words ‘contrary to s. 47 of the Offences Against the Person Act, 1861’) or as a statutory offence simply ( i.e., with the said addition), I consider that the view of the editor of the 1922 edition is preferable. The hybrid offence is a kind of statutory offence; it is not a common-law offence. If it is to be assimilated into a category, then in my opinion it falls to be identified as a statutory offence. Therefore, I think it was proper to invoke the statute. In any event, it has to be borne in mind that we are not examining a conviction but are enquiring if an offence is charged and, if so, whether it is an indictable offence. I have no difficulty in answering both queries affirmatively. The prosecutor’s second ground fails.”
113. This analysis of the offence as a statutory offence is obiter dictum in a case where the ratio decidendi was that the offence was indictable. Thus, in essence the case was about an issue of jurisdiction. Sections of the Offences Against the Person Act, 1861, including s. 47, related to jurisdiction and penalties for the one offence, at common law, of assault.
114. Other case law confirms this approach. In Doolan v. Director of Public Prosecutions [1992]
2 I.R. 399, O’Hanlon J. stated at pp. 403-4:
“The offences of assault and battery certainly formed part of the common law from earliest times. In Blackstone’s Commentaries on the Laws of England (4th Book) (Ch. 15) dealing with offences against the person, the learned author at
p. 216 observes as follows:-
‘The inferior offences, or misdemeanours, that fall under this head, are assaults, batteries, wounding, false imprisonment, and kidnapping.
. . . With regard to the nature of the three first of these offences in general, . . . taken in a public light, as a breach of the king’s peace, an affront to his government, and a damage done to his subjects, they are also indictable and punishable with fines and imprisonment; or with other ignominious corporal penalties, where they are committed with any very atrocious design.’
115. Assault, in the strict sense, merely involved the threat to inflict unlawful force, however slight, on another person – making some movement which caused the other person to believe that such unlawful physical contact was imminent. A battery consists in the actual application of unlawful force; but the word ‘assault’ has been quite commonly used to include what should, more strictly, be called a ‘battery’.
116. As assaults, in the wider meaning of the term, can range from the almost imperceptible use of physical force, such as laying one’s hand on the arm of another in a hostile manner, to assault causing grievous bodily harm, it was though right to regulate by statute the penalties that could be imposed for different circumstances of assault, so that they could be seen to be proportionate to the seriousness of the offence.
117. It appears that what was involved, save in cases where new felonies or misdemeanours were created by statute, was the old common law misdemeanour of assault, (including in appropriate circumstances the features both of assault and battery, or of battery alone), with a statutory regulation of the penalties which could be imposed having regard to the nature of the assault which had taken place.
118. For this reason I find no fault with the course taken by the draftsmen of the Act of 1861, or of subsequent legislation dealing with the same topic, who did not consider it necessary in all cases to create new offences by statute in express terms, but merely spelt out the range of penalties applicable having regard to the circumstances surrounding the application of unlawful force by one person to another.”
119. This is an analysis which I adopt. Applying the analysis to this case, the offence in issue
is a common law offence for which there are specific penalties, having regard to the circumstances of the unlawful force applied by one person to another.
120. The Supreme Court analysed also the offence of indecent assault and its origins in Director of Public Prosecutions v. E.F. (Unreported, Supreme Court, 24th February, 1994). That case was a case stated from the Circuit Court where counsel for an accused man sought to quash the indictment on the ground, inter alia , that the offence alleged on the indictment, indecent assault, was no longer known to law by virtue of the provisions of the Criminal Law (Rape) (Amendment) Act, 1990.
Egan J. stated:
“The offence of ‘indecent assault’ was never created by any statute although punishments for the offence have from time to time been laid down by various statutes. The only reference to indecent assault upon a female in the Offences Against the Person Act, 1861 is contained in s. 52 thereof which provided as follows:-
‘Whosoever shall be convicted of any indecent assault upon any female, or of any attempt to have carnal knowledge of any girl under twelve years of age, shall be liable at the discretion of the Court, to be imprisoned for any term not exceeding two years, with or without hard labour.’
121. This section was repealed by s. 6 of the Criminal Law (Amendment) Act, 1935 which provided that:-
‘Whosoever shall be convicted of any indecent assault upon any female shall be liable, in the case of a first conviction of any such offence, to imprisonment for any term not exceeding two years, and in the case of a second or any subsequent conviction of any such offence, to penal servitude for any term not exceeding five years nor less than three years or imprisonment for any term not exceeding two years.’
122. Another reference to indecent assault in this Act is contained in s. 14 which provided that it would not be a defence to a charge of indecent assault upon a person under the age of fifteen years to prove that such person consented to the act alleged to constitute such indecent assault. S. 15 made provision in certain circumstances for the summary trial of offences of indecent assault.
123. S. 6 of the 1935 Act was repealed by s. 10(2) of the Criminal Law (Rape) Act, 1981 which provides in s. 10(1) that ‘if a person is convicted on indictment of any indecent assault upon a female he shall be liable to imprisonment for a term not exceeding ten years.’
S. 10 of the 1981 Act was repealed by the Criminal Law (Rape) (Amendment) Act, 1990 which came into operation on the 21st January, 1991 and which provides in s. 2 as follows:-
2 (1) The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault.
(2) A person guilty of sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding five years.
(3) Sexual assault shall be a felony.
124. It is clear from the foregoing that the offence of indecent assault remains but as and from the 21st January, 1991 it became known as sexual assault. It still remains a common law offence for which punishment is provided by statute. In regard to indecent assaults which occurred prior to the 21st January, 1991 I see no possible objection to them being referred to in indictments as ‘indecent assaults’. An indictment in this regard should refer to the offence as ‘indecent assault contrary to common law’ and while there is no necessity to include the words ‘and as provided for by s. 10 of the Criminal Law (Rape) Act, 1981’, it might be helpful as pointing out where the punishment provision is to be found.”
125. I am satisfied, for the reasons stated, that the offence of assault occasioning actual bodily harm is the offence of assault for which the penalty is to be found in statute. The offence of assault occasioning actual bodily harm is the common law offence of assault, with a particular statutory penalty proportionate to the offence.
126. Consequently, for the reasons stated above, and previously in relation to the other summonses alleging assault, subject to analysis of the Interpretation (Amendment) Act, 1997, the respondents have no entitlement in law to proceed to prosecute the first applicant on foot of the summons alleging assault occasioning actual bodily harm.
(c) The Interpretation (Amendment) Act, 1997
127. The Interpretation (Amendment) Act, 1997 came into law on 4th November, 1997. It is an act to amend and extend the Interpretation Acts, 1937 and 1993. It applies to offences at common law and provides transitional arrangements where an offence has been abolished. Section 1(1) relates to a situation where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law. It provides inter alia that unless the contrary intention appears, such abolition shall not prejudice any proceedings pending at the time of such abolition.
In Quinlivan v. Governor of Portlaoise Prison [1998] 2 IR 113 the case in issue had been pending when the Non-Fatal Offences Against the Person Act, 1997 was passed. The State did not seek to rely upon the Interpretation (Amendment) Act, 1997 in that case.
In Mullins v. Harnett [1998] 4 IR 426 the charge was one of common assault which was pending at the time of the abolition of the offence by the Non-Fatal Offences Against the Person Act, 1997. The State did not rely upon the Interpretation (Amendment) Act, 1997.
128. In this case the proceedings were commenced after the abolition of the offence by the Non-Fatal Offences Against the Person Act, 1997 and prior to the commencement of the Interpretation (Amendment) Act, 1997. There being no transitional arrangements in the Non-Fatal Offences Against the Person Act, 1997, the query then is whether the prosecutions may be saved by the Interpretation (Amendment) Act, 1997.
129. It is a fundamental principle that the legislature should not interfere with proceedings: Buckley and Others (Sinn Féin) v. Attorney General and Another [1950] I.R. 67. There is a presumption that an act is not intended by the legislature to have a retrospective effect: Hamilton v. Hamilton [1982] I.R. 466.
Sections 1 and 2 of the Interpretation (Amendment) Act, 1997 provide for transitional arrangements to enable the operation of the law in relation to offences which have been abolished. It places common law offences which have been abolished in a similar position to statutory offences which have been abolished.
Section 1(3) provides that the section applies to an offence which is an offence at common law abolished, abrogated or otherwise repealed before or after the passing of the Act. Section 1(1) creates new law for offences at common law, i.e., it changes the common law and makes the law relating to offences at common law which have been abolished similar to that of statutory offences under the Interpretation Act, 1937. Thus, it specifically states that it has a retrospective effect.
Section 1(4) provides:
“If, because of any or all of its provisions, this section would, but for the provisions of this subsection, conflict with the constitutional rights of any person, the provisions of this section shall be subject to such limitations as are necessary to secure that they do not so conflict, but shall otherwise be of full force and effect.”
130. The wording in s. 1(4) of the Interpretation (Amendment) Act, 1997 is similar to s. 1(3) of Courts (No. 2) Act, 1988 which stated:
“If, because of any validation expressed to be effected by (subsection 2) of this section, that subsection would, but for this subsection, conflict with a constitutional right of any person, the validation shall be subject to such limitation as is necessary to secure that it does not so conflict but shall be otherwise of full force and effect.”
131. Of that section Blayney J. held, in Shelly v. District Justice Mahon [1990] 1 I.R. 36 at
pp. 40-41:
“It seems to me that sub-s. (3) of s. 1 of the Act of 1988 envisages that the matters validated by sub-s. (2)(a) would fall into two distinct categories, firstly, those the validation of which would not conflict with the constitutional rights of any person, and secondly, those the validation of which would so conflict. And the sub-section provides that in regard to the second category the validation effected by sub-s. (2)(a) ‘shall be subject to such limitation as is necessary to secure that it does not’ conflict with the constitutional rights of any person.
What is purported to be validated in the present case comes in my opinion within the second category I have just referred to. It is something the validation of which would conflict with the applicant’s constitutional rights”.
132. The order of the High Court was upheld by the Supreme Court. Of sub-s. (3) Griffin J. stated at p. 48 of the report:
“In my opinion, the construction of sub-ss. 2 and 3 is clear and the intention of the Oireachtas, as expressed in the words used, is also clear. Sub-section 2(a) is a blanket provision designed to cover every order made by the respondent subsequent to the date of his retirement on the 4th January, 1984. It is however obvious that if that sub-section stood alone it would be bound to trench on constitutional rights of at least some of the persons against whom such orders were made, in which event Article 15, s. 4 of the Constitution would have been breached and the sub-section would be invalid. The Oireachtas was, however, alive to this danger and subs-s. 3 was accordingly enacted for the purpose of qualifying sub-section 2(a). The effect of sub-s. 3 is that if any expressed validation conflicts with a constitutional right of any person ‘the validation shall be subject to such limitation as is necessary to secure that it does not so conflict.’ In other words, if the purported validation conflicts with a constitutional right of any person, it will be ineffective to such an extent as is necessary to ensure that it does not conflict with that right.”
133. I would interpret s. 1(4) of the Interpretation (Amendment) Act, 1997 in a similar manner.
Section 1(4) enables a court – a court of any jurisdiction – to protect the constitutional rights of an individual. The District Court remains at all times a court which must protect the individual constitutional rights of the person: Coughlan v. District Justice Patwell [1993]
1 I.R. 31. Such powers are not similar to the powers of the High and Supreme Court to determine the validity of a statute. Questions of the validity of any law having regard to the provisions of the Constitution are limited to the High Court and the Supreme Court by Article 34.3.2. of the Constitution of Ireland. However, the duty to protect the constitutional rights of the individual lies with all judges, including the District Judge.
134. Section 1 sub-ss. (1), (2) and (3) are blanket provisions covering prosecutions of prior common law offences. Section 1(4) protects individuals from the said law infringing their constitutional rights. Whether it is a sound method of drafting statutes or not, it is the method chosen by the legislature. Thus, the relevant court has a duty under s. 1(4) of the Interpretation (Amendment) Act, 1997 to determine whether the operation of s. 1 sub-s. (1), (2) or (3) conflicts with the constitutional rights of the individual before the court.
135. Before the summonses were issued in this case the offences were abolished under the Non-Fatal Offences Against the Person Act, 1997. The actions were an offence when they took place. However, after the offence was abolished by an Act which did not provide for any transitional arrangements, the first applicant was in a situation where he was not liable for his actions as being an offence. This situation continued until the purported change in the law effected by the Interpretation (Amendment) Act, 1997 on 4th November, 1997. That Act purported to retrospectively introduce law so as to reintroduce liability for the actions of the first applicant.
Section 1(4) of the Interpretation (Amendment) Act, 1997 protects the rights of the first applicant. A purported validation retrospectively of the law may be a breach of the Constitution. An application retrospectively of s. 1 of the Interpretation (Amendment) Act, 1997 would conflict with the first applicant’s constitutional right to be tried for an offence at law, in due process of law, in circumstances where the actions had ceased to be an offence and so remained at the time of the issuing of the summonses. A vacuum was created at which time the actions were no longer an offence under the law. A lacuna was left by the legislature. Any prosecution of the first applicant after the abolition of the offence and prior to the coming into effect of the Interpretation (Amendment) Act, 1997 was a nullity. A purported validation retrospectively of the new law would be a breach of the rule of law, due process and fundamental constitutional principles. The general validation would not apply to criminal proceedings such as these issued against the first applicant. Consequently, the respondents may not rely on s. 1 of the Interpretation (Amendment) Act, 1997. It is an Act which, in accordance with constitutional principles, applies prospectively.
9. Corbett Case
136. As the issues in this case were similar to those in Grealis the two cases were heard together. The applicant, Emmett Corbett, is hereinafter referred to as the second applicant. Full oral and written submissions on behalf of the second applicant were made by Mr. John P.M. White, S.C., Mr. Patrick T. Horgan, S.C. and Mrs. Barbara Seligman, B.L.. The Director of Public Prosecutions, represented by Mr. Maurice Gaffney, S.C. and Mr. Diarmuid Rossa Phelan, B.L., also submitted oral and written submissions.
137. The second applicant has appealed against a decision of the High Court given on 7th December, 1999. The basic facts were set out by McGuinness J. thus:
“In these Judicial Review proceedings the Applicant seeks an Order of Prohibition preventing the Respondent from taking any further steps in the prosecution of the Applicant before the District Court. The Applicant is charged with assault contrary to common law and Section 42 of the Offences Against the Person Act, 1861 as amended by Section 10 of the Criminal Justice (Public Order) Act, 1994. He asserts that he is not guilty of the alleged offence.
The prosecution arises out of an incident which is alleged to have taken place on the 3rd February, 1997, and is brought on foot of a summons issued on 24th June, 1997 and signed by Desmond Relihan, the Appropriate District Court Clerk for the Court Area of Cork City. The summons was served in August, 1997 and was returnable before the District Court on 1st September, 1997. On that date it was adjourned to the 11th November, 1997.”
138. The grounds upon which the second applicant seeks an order of prohibition, as permitted by the High Court (Barr J.) on 10th November, 1997, and as before this court, are:
“The continuance of the said prosecution is not, and was not, in accordance with law after the abolition of the said offence on 19th day of August, 1997, and was, and is, in violation of the Rule of Law and contrary to Article 34.1, Article 35.2, Article 38, Article 40.1 and Article 40.3 of the Constitution and contrary to Articles 5, 6, 13, 14 and 17 of the European Convention on Human Rights and Fundamental Freedoms and Article 3 of the Statute of the Council of Europe;
and … ”
139. The application was refused by the High Court on 7th December, 1999. McGuinness J. held that the prosecution of the second applicant would fall within the terms of s. 1(1)(c) and/or
s. 1(2) of the Interpretation Act, 1997 since the Non-Fatal Offences Against the Person Act, 1997 expresses no “contrary intention”. The learned trial judge stated:
“I accept the submission of Mr. McDonagh that retrospective legislation is not in itself repugnant to the Constitution, provided that it does not contravene the terms of Article 15.5 by declaring an act to be an infringement of the law which was not so at the date of its commission. I also accept that the offence alleged against the Applicant – common assault – was indeed ‘ an infringement of the law’ at the date of its alleged commission.
140. Other examples of retrospective, or validating, legislation include the Garda Siochana Act, 1979, the Local Government (Planning and Development) Act, 1982, Section 6, and to a more limited extent, the Mental Treatment (Detention in
141. Approved Institutions) Act, 1961. An even more striking example is the Marriages Act, 1972 which retrospectively validated marriages previously performed outside the jurisdiction in Lourdes, France.”
142. The High Court (McGuinness J.) referred to Shelly v. District Justice Mahon [1990] 1 I.R.
41and held:
“In the instant case, as I have previously set out, there is no question of unconstitutional retrospection under Article 15.5, and there is no breach of the Applicant’s right to equality before the law. There is nothing whatever to suggest that he will not receive a fair trial in the District Court. On the evidence before me, there is no reason to believe that any conflict with the constitutional rights of the Applicant will arise through the trial of the Applicant in regard to the alleged offence in the District Court. However, should such conflict arise, it is fully open to the trial judge in the District Court to take such steps as he or she considers proper.”
143. The second applicant was summonsed on 6th August, 1997 in the following terms:
“WHEREAS on the 6th day of August, 1997 an application was made to this office by (Garda P. Flynn on behalf of) the above-named Prosecutor for the issue of a summons to you, the above-named Accused, alleging that you, on the 3rd day of February, 1997, at William Street, Cork, within the Court Area and District aforesaid, did assault one Brian Cashman, contrary to common law and Section 42 of the Offences Against the Person Act, 1861 as amended by Section 10 Criminal Justice (Public Order) Act, 1994.
THIS IS TO NOTIFY YOU that you will be accused of the said offence(s) at a sitting of the District Court to be held at Court No. 1, Courthouse, Anglesea Street, Cork on the 1st day of September, 1997 at 10.30 a.m. AND TO REQUIRE YOU to appear at the said sitting to answer the said accusation(s).”
144. At the time of the actions alleged the common law offence of assault was extant. At the time the summons was issued it continued to be in existence. However, from 19th August, 1997 it was abolished. As of the 1st September when the second applicant was to be accused the alleged actions were no longer an offence. The Non-Fatal Offences Against the Person Act, 1997 had no saving provision for transitory arrangements permitting the prosecution of persons alleged to have committed abolished offences. The court did not have seisin of the case on 19th August, 1997.
145. For the reasons stated previously I am satisfied that the Interpretation (Amendment) Act, 1997 acts prospectively and thus has no application to the second applicant’s case. It does not save the prosecution retrospectively. Consequently, the applicable law is the Non-Fatal Offences Against the Person Act, 1997. As the offence was abolished under that Act the prosecution for the (abolished) offence may not proceed.
146. Counsel for the second applicant submitted also that the Director of Public Prosecutions was bound by the concessions made by counsel on behalf of the Director in The People v. Kavanagh (Unreported, Special Criminal Court, Barr J., 29th October, 1997). In this he was in error. The fact that the Director in one case, through counsel, takes a particular approach does not estop a different submission in another case. Law is a growing body and encompasses change and development. Indeed, in each of these two cases counsel on behalf of the State in each did not present identical arguments on all issues.
Conclusion
Common law offences abolished by the Act of 1997 ceased to exist and no proceedings in relation to such actions may be prosecuted in the absence of transitional arrangements.
For the reasons stated, the Interpretation (Amendment) Act, 1997 applies prospectively.
In Grealis, for the reasons stated, I would allow the appeal of the Attorney General against the finding that the Interpretation (Amendment) Act ,1997 was unconstitutional, subject to the determination that the Act applies prospectively. I would dismiss the appeal of the Director of Public Prosecutions against the order of the High Court granting prohibition of the prosecutions for assault. In relation to the offence alleging assault occasioning actual bodily harm, I would allow the appeal of the first applicant and order that the prosecution on foot of the third summons be prohibited.
In relation to Corbett, I would allow the appeal of the second applicant, who is entitled to an order prohibiting the prosecution.
THE SUPREME COURT
Keane C.J. 257 & 262/99
Denham J.
Murphy J.
Murray J.
Hardiman J.
Between;
PADRAIC GREALIS
Applicant
and
THE DIRECTOR OF PUBLIC PROSECUTIONS IRELAND
and THE ATTORNEY GENERAL
Respondents
Between:
EMETT CORBETT
Applicant
and
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
and
THE ATTORNEY GENERAL
Notice Party
JUDGMENT delivered the 31st day of May, 2001 by Hardiman J.
147. I agree with the judgment of the learned Chief Justice in these cases save in one respect. I have the misfortune to differ on the issue of whether assault occasioning actual bodily harm, as it existed prior to coming into effect of Sections 28 or 32 of the Non-Fatal Offences against the Person Act, 1997 was a statutory or a common law offence. This is the issue raised in Mr. Grealis’s cross appeal. The resolution of this issue will decide whether or not he can be further prosecuted on the charge contained in the Summons issued against him on the 12th September, 1997.
Sections 28 and 31 of the Non-Fatal Offences against the Person Act, 1997.
148. Section 28 provides as follows:
“The following common law offences are hereby abolished –
(a) Assault and battery,
(b) Assault occasioning actual bodily harm,
(c) Kidnapping,
(d) False imprisonment.
It is clear from this that the draftsman of the Act and, one must presume, the Oireachtas, regarded the offence of assault occasioning actual bodily harm as a common law offence. This was so despite high judicial support, albeit obiter, for the contrary view in a case which is discussed below. However, the point is of limited significance since the statutory description of the offence would hardly bind the Court if it were clearly to be established to be wrong in law. It is of no significance outside the immediate context of this case because if the offence is indeed a statutory one it can only be so by virtue of Section 47 of the Offences against the person Act, 1861. That provision is in any event repealed by Section 31 of the 1997 Act.
Assault and battery at common law.
The wrongs known as assault and battery have been recognised at common law from a very remote time and both civil and criminal remedies have been provided for them. In Sir William Blackstone’s Commentaries on the Law of England 6th Edition Dublin 1775 each is described separately, both as a crime and as a tort. By 1861, and probably much earlier in most usages, they had become largely assimilated under the name assault: see for example Section 47 of the 1861 Act, discussed below. However, somewhat confusingly, they also preserved a separate existence which is testified to in a small number of cases.
Blackstone Book III page 120 defined assault as “…… an attempt or offer to beat another without touching him”. As to battery he said that it is:-
“…… the unlawful beating of another. The least touching of another’s person, wilfully, or in anger, is a battery; for the law cannot the draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.”
149. From the same source it appears that aggravated forms of assault were not recognised at common law unless they reached the degree of wounding “which consists in giving another some dangerous hurt and is only an aggravated species of battery”, or mayhem “which is an injury still more atrocious, and consists in violently depriving another of the use of a member proper for his defence in fight. This is a battery, attended with this aggravating circumstance, that thereby the party injured is for ever disabled from making so good a defence against future external injuries as he otherwise might have done”.
150. It appears, therefore, that at common law any unlawful touching with consequences less serious than would amount to wounding or mayhem was described as battery. That term became assimilated over time, for most purposes, into the term “assault”, certainly by the middle of the 19th century. This assimilation is manifest even in statutory provisions, as appears below.
The 1861 Act.
151. It is important to consider Section 47 of the Offence against the Person Act, 1861 in its statutory context. Sections 36 – 47 are all under the general heading “Assaults”. Sections 36 – 41 provide penalties for assaults on specific persons or in specific circumstances or both. For example, assault on a Magistrate while he is preserving a wreck, or on a clergyman while he is going to or returning from the performance of his functions. They also provide in places for specific intents or a specific state of knowledge required for the offence to come within the Section.
152. Sections 43 – 46 relate to the exercise of summary jurisdiction. Thus, by Section 42, a summary jurisdiction is conferred on two justice of the peace to try a charge of assault or battery and a maximum sentence of two months is provided. Section 43 provides that two justices may inflict a penalty of up to six months imprisonment if the assault is on a woman or a boy under the age of 14. Section 44 provides that Magistrates who dismissed a charge in the exercise of this summary jurisdiction should issue a Certificate of Dismissal and the next section provides that such certificate is a bar to other proceedings arising out of the same incident. Section 46 provides the circumstances in which summary jurisdiction may be ousted.
153. After these provisions comes Section 47 which is of central importance in this case. So far as relevant it provided in its original form as follows:-
“Whosoever shall be convicted upon an Indictment of any Assault occasioning actual bodily Harm shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for the Term of three years…… and whosoever shall be convicted upon an Indictment for a common Assault shall be liable at the Discretion of the Court to be imprisoned for any Term not exceeding One Year……”
154. Remote though it now is, the 1861 Act was by no means the first statute to provide specific penalties for specific aggravated forms of assault. These earlier statutes no doubt reflect the concerns of their times; for example 37 Henry VIII Cap 6 relating to the felonious cutting of ears. The 1861 Act in turn reflects the concerns of mid-Victorian Britain with its specific emphasis on crimes against clergymen, magistrates in certain circumstances, seamen and assaults interfering with the supply of grain or in support of unlawful combinations. It goes on to provide a summary jurisdiction of a modest nature and for the circumstances in which this jurisdiction will be ousted. It then provides a general penalties for “any assault occasioning actual bodily harm” and for “a common assault” , in each case when prosecuted on indictment.
155. Speaking of these and other provisions of the 1861 Act Mr. Peter Charlton in his book Offences against the Person Dublin 1992 say at page 196:-
“The elements of the offence [of assault] are of great importance as a host of offences are built upon the proof of the commission of an assault. The structure of these offences divides them into basic assaults aggravated either by the harm done, the nature of the intent of the accused, the status of the victim, or the circumstances of commission”.
156. Speaking specifically of assault occasioning actual bodily harm he says, at page 206:-
“The aggravating factor of bodily harm takes the penalty for a simple assault, prosecuted on indictment, from one year to five years”.
157. This last figure reflects a subsequent amendment of the 1861 statute.
158. If Section 47 is considered in the broader context of the 1861 Act, it will be seen that outside the context of the Section on “assaults” other, more serious forms of offences against the person are created. Thus, Section 20 provides the offence of wounding in a more modern form than is found at common law: “whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person either with or without any weapon….. shall be guilty misdemeanour……”. Similarly Section 20 creates an aggravated offence of felonious wounding: “whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person…… within intent…… to maim disfigure or disable any person…… shall be guilty of felony and being convicted thereof shall be liable to be kept in penal servitude for life…..”.
159. All of these aspects of the statutory context of Section 47 seem to me to support the proposition that Sections 36 – 47 deal with the common law offence of assault and battery in various circumstances. Where specific new aggravated offences are created, they are created elsewhere in the Statute. The Act of 1861 was, as its title suggests, an act to consolidate and amend the law relating to offences against the person and it did so, inter alia, by creating aggravated offences which, in practice, superseded most of the common law and earlier statutory provisions. But none of this was done in the section on “assaults” and in my view the natural meaning of Section 47 provides that common assault prosecuted on indictment shall thereafter attract one sentence and an assault which occasions actual bodily harm, a greater sentence. The Section does not appear to me, in its own terms, to create a new offence of assault occasioning actual bodily harm anymore than it creates a new offence of assault. Certainly, it does not use the language in which other sections, such as those quoted above, create new offences.
The State (O) v. O’Brien.
160. This case, reported at [1971] IR 42, is however one where a contrary opinion is strongly expressed by O’Dálaigh C.J. and his learned colleagues. It is pointed out that assault occasioning actual bodily harm is variously treated as a common law or a statutory offence by the editors of different editions of Archbold. The learned Chief Justice concluded, on this point:-
“I would describe the offence so created as a hybrid offence and, as a choice has to be made between stating the offence as a common law offence…. or as a statutory offence simply…… I consider that the view of the editor of the 1922 edition is preferable. The hybrid offence is a kind of statutory offence; it is not a common law offence. If it is to be assimilated into a category, then in my opinion it falls to be identified as a statutory offence. Therefore I think it was proper to invoke the statute”.
161. I agree that this passage is obiter, for the reason stated by the Chief Justice in his judgment in this case. Counsel on both sides of O had submitted that the offence was a common law one. Counsel for the State contended:-
“Assault is an indictable common law offence; the effect of finding that an assault has occasioned actual bodily harm to the victim is merely to increase the penalty which can be imposed on a person convicted of such assault”.
162. Counsel for the Prosecutor expressed the same opinion in this way:-
“…….. Section 47 of the Offences against the Person Act, 1861 does not create an offence but merely declares the penalty for an existing common law offence….”.
163. It does not appear to me that a statute which penalises some action in different degrees by reference to its consequences thereby creates two different offences. For example, Section 53 of the Road Traffic Act, 1961 as amended in 1968 and 1984, provides as follows:-
“(1) A person shall not drive a vehicle in a public place in a manner (including speed) which having regard to all the circumstances of the case….. is dangerous to the public.
(2) A person who contravenes subsection (1) of this section shall be guilty of an offence and
(a) In case the contravention causes death of serious bodily harm to another person, he shall be liable on conviction on indictment to penal servitude for any term not exceeding five years or, at the discretion of the Court, to a fine not exceeding £3,000 or to both such penal servitude and such fine and
(b) In any other case, he shall be liable on summary conviction to a fine not exceeding £1,000 or, at the discretion of the Court to imprisonment for any term not exceeding six months or to both such fine and such imprisonment”.
164. The penalties for dangerous driving have since been altered, but that is not material to the present case.
165. It appears to me that Section 53, in more modern statutory language, creates a single offence while providing vastly different penalties depending on the consequence of the offence. But the different consequences and the different penalties do not take from the fact that there is one offence only. If there were two offences, a person acquitted of dangerous driving causing death could be later prosecuted for dangerous driving. But this cannot occur: see AG (Ward) v. Thornton [1964] IR 458 at 483. Equally, a person may be charged summarily with an offence contrary to Section 53(1) even though death or serious injury was caused by the alleged dangerous driving. See The People (AG) v. Wall, High Court unreported 9th June, 1969.
166. There is clearly a vast difference in the techniques of statutory drafting manifested in Section 47 of the 1861 Act as compared to the dangerous driving provision a century later. And there are other differences: the later section creates an offence and goes on to provide different modes of prosecution, and different penalties, depending on the consequences, while the earlier section merely refers to a common law offence, which is triable on indictment regardless of the consequences and provides different penalties depending on those consequences. There is in each case a single offence. In the case of assault, it is an offence at common law.
DPP v. Murray.
In DPP v. Murray [1977] IR 360 it was held that Section 1 of the Criminal Justice Act, 1964 had created a new statutory offence of capital murder which requires proof of mens rea in relation to each of its constituent elements. Counsel for the Prosecution had contended that capital murder was merely a type or species of common law murder. On this distinction there vitally depended the question of what had to be proved in the way of mens rea : if the lower test applicable to common law murder applied, the Defendants would have been exposed to the death penalty.
167. The Supreme Court, reversing the Court of Criminal Appeal, held that the offence of capital murder was a new offence.
168. Having considered the terms of the Criminal Justice Act, 1964, I have no doubt that the decision of the Supreme Court in Murray was correct. According to the long title of the Act of 1964, its object was “to amend the law as to the imposition of the death penalty and as to malice in the case of murder”. Section 1(1) provided as follows:-
“A person shall not be liable to suffer death for any offence other than-”
169. There followed a list of three offences or types of offences. It is clear, therefore, that the draftsman had proceeded on the basis that each of the matters which followed the initial words quoted was a separate offence. The first and third following matters were:-
“(a) Treason under the Treason Act, 1939.
(c) An offence by a person subject to military law under section 124, 125, 127 or 128 of the Defence Act, 1954”.
170. The second of the offences which followed the initiating words was:-
“(b) Capital murder, namely-”
171. There followed four types of murder of which the first was:-
“(i) Murder of a member of the Garda Síochána acting in the course of his duty”.
Section 3(1) of the Act provided that:-
“Where a person is accused of murder which is alleged to be capital murder, he shall be charged with capital murder in the indictment”.
172. Still more significantly, Section 3(2) provided:-
“A person indicted for capital murder may, if the evidence does not warrant conviction for capital murder but warrants a conviction for murder, be found not guilty of capital murder but guilty of murder…..”.
Section 3(3) provided that:-
“Capital murder shall be treated as a distinct offence from murder for the purposes of an appeal against conviction”.
173. Rather confusingly, Section 3(5) went on to provide that:-
“Subject to the foregoing subsections, capital murder shall not be treated as a distinct offence from murder for any purpose”.
Since DPP v. Murray was an appeal against conviction in which the Court of Criminal Appeal had certified that its decision involved a point of law of exceptional public importance, it appears to me that Section 3(3) of the 1964 Act imperatively required the Court to treat the offence of capital murder as distinct from the offence of murder. That is the plain, unambiguous and sole possible meaning of the subsection. The offence of capital murder was both created and defined by Section 3(1) of the Act, and was required to be so described in an indictment. The provision of a power both in the trial court and on appeal, to acquit of capital murder but convict of murder emphasises the separateness of the offences. In other words, the 1964 Act in my view expressly creates a new offence, committed in the four factual circumstances set out in the Act. It does not provide, as it might have, that a person convicted of murder shall be liable to suffer death if the victim is a member of the Garda Síochána acting in the course of his duty, or in the other circumstances mentioned, but otherwise shall be liable to penal servitude for life. It is not analogous in its draftsmanship either to Section 47 of the 1861 Act or to Section 53 of the 1961 Road Traffic Act, set out above. As Henchy J. said, at page 394 of the Report:-
“If the term ‘capital murder’ was not being used to denote a new offence, one might ask why it was introduced into the subsection (or indeed into the act) for the types of murder which are to carry the death penalty are sufficiently identified in the four types of murder set out”.
174. Walsh J., at page 380 of the Report said:-
“In my view, the whole context of the statute indicates the intention of the Oireachtas to create a new offence of capital murder. To my mind, the statutory requirement that it should be charged as such requires that it should be charged as a statutory offence in the indictment. One must also bear in mind that additional weight for the view that capital murder is a new offence is to be found in the statutory provision of the alternative verdict to it being a verdict of murder. The statute also provides that, for the purpose of an appeal against a conviction, capital murder shall be treated as a distinct offence from murder”.
175. At page 381, dealing with a submission based on Section 3(5) of the Act of 1964, the same learned judge suggested several reasons for that provision and went on:-
“I do not think, however, that it can be read as if it said that there was no such offence as capital murder and that the expression ‘capital murder’ is simply to be used in cases of murder where capital punishment may be imposed. If that had been the intention of the Oireachtas I think that the Statute would have been worded in a very different way”.
176. If the victim in the Murray case, Garda Michael Reynolds, had been murdered before the passage of the 1964 Act, his killers would have been sentenced to death regardless of whether he was a garda, or acting in the course of his duty. After the passage of the Act, a conviction for his murder would not have attracted the death penalty, which sentence would only be triggered by a conviction for the new offence of capital murder requiring both that he be a member of the Garda Síochána and be acting in the course of his duty. These additional elements reflect the fact that the offence was a new offence. This is to be distinguished from the situation where the same offence attracts different penalties depending on its consequences. This distinction, I believe, lies at the heart of the passage in the judgment of Griffin J. at page 408 of the Report, in numbered paragraphs 1,2,3.
177. Most fundamentally of all, Walsh J. in his introduction to this aspect of his judgment, at page 375 of the Report, summarised the State’s contention to the effect that there was no new offence and said:-
“If that be the correct construction then, in the event of the murder of a Civic Guard in the course of his duty by a person who was unaware that his victim was a Civic Guard and whose act (in that respect) was not intentional, the imposition of the death penalty would be entirely fortuitous and unrelated to the moral responsibility of those who wilfully kill the State’s officers of the law in the knowledge that the victims are such officer. Therefore, it becomes necessary to scrutinise carefully the Act of 1964 to see whether it was clearly the intention of the Oireachtas to enact such a rule which it would be difficult, if not impossible, to defend upon the grounds of either justice or expediency”.
178. The learned judge went on to expand his reference to expediency by pointing out that there could be no deterrent effect in the retention of capital punishment for the murder of a garda unless the death sentence would be available “only if the assailant is in a position to weigh up the consequences of his action before murdering a member of the Garda Síochána”.
In my view, Section 1 of the Act of 1964 is quite dissimilar to Section 47 of the Act, 1861 in virtually every respect. No consideration such as those mentioned by Walsh J. in the last two citations is relevant in construing the earlier section. Neither, for example, are such considerations relevant to the construction of Section 53 of the Road Traffic Act, 1961. The structure and draftsmanship of the Sections are entirely different. The Act of 1964 expressly creates a new offence which Section 47 does not. It is perfectly consistent, in my view, to accept the decision of the Supreme Court in Murray as correct without taking the view that it requires that Section 47 of the 1861 Act be construed as creating a new statutory offence. The distinction, at bottom, is between a new offence whose constituents are different to an existing one, and a single offence with different penalties depending on its consequences. I believe that Section 47 is in the latter category.
179. As is pointed out in the judgment of the learned Chief Justice, the House of Lords in R v. Savage ; R v. Parmenter [1991] 2 AER 225 held that to make out the offence contrary to Section 47 it was sufficient for the prosecution to show that the Defendant committed an assault and that actual bodily harm was occasioned by it; it was not obliged to prove that the Defendant intended to cause actual bodily harm or was reckless in that regard. It may be that the Section would have been open to constitutional attack on that ground and, if so attacked, no presumption of constitutionality would have been available to defend it, or arguably to mandate a different construction. But that possibility, which is now of academic interest only, has no relevance to the question of whether the section creates a new statutory offence or merely a different penalty for an existing common law offence depending on the consequences.
Matters not considered.
180. It may be desirable to point out that this judgment does not address the position of allegations of assault occasioning actual bodily harm which have taken place before the operation of the repealing provision of the Nonfatal Offences against the Person Act, 1997, in respect of which prosecution has instituted after the coming into operation of the Interpretation (Amendment) Act, 1997. Such a prosecution would not appear to be affected by the prohibition of retroactive penal legislation contained in Article 15.5 of the Constitution since assault occasioning actual bodily harm was a criminal offence at the material time. Whether the Interpretation (Amendment) Act, 1997 would operate to allow such a prosecution having regard to the repeal, and to the provisions of the Act intended to preserve the constitutional rights of persons, is something which will have to be decided in another case on whose facts the issue is properly raised.
Conclusion.
181. I agree with the orders envisaged in the last paragraph of the learned Chief Justice’s judgment save that I would extend the relief granted in Mr. Grealis’s case to the third summons against him as well as to the first and second.