Grealis v. D.P.P. [2001] IESC 50; [2002] 1 ILRM 241 (31 May 2001)

Grealis v. D.P.P. [2001] IESC 50; [2002] 1 ILRM 241 (31 May 2001)

Where a common law offence is abolished by statute without transitional or saving provisions, prosecutions for that offence cannot be maintained after abolition. The 1997 Interpretation Act cannot retrospectively validate such prosecutions where proceedings were pending before its enactment, due to constitutional constraints. 'Assault occasioning actual bodily harm' under s.47 of the 1861 Act is a statutory, not common law, offence, and prosecutions for it may proceed under the Interpretation Act 1937.

Citation
[2001] IESC 50
Parties
Applicant/respondent: Padraic Grealis; Applicant: Emmett Corbett; Respondent/appellant: Director of Public Prosecutions; Respondent/appellant: Ireland; Respondent/appellant/notice Party: Attorney General
Jurisdiction
Ireland
Judgment Date
31 May 2001
Procedural Posture
Judicial Review (prohibition) / Constitutional Challenge / Supreme Court Appeal and Cross Appeal From High Court
Outcome
Appeal by Attorney General allowed in part; appeal by DPP dismissed; cross-appeal by Grealis dismissed; appeal by Corbett allowed; prohibition granted in both cases against prosecution for abolished common law offences.
Legal Topics
Abolition of Common Law Offences, Retrospective Legislation, Transitional Provisions, Statutory Offences Vs Common Law Offences, Separation of Powers, Interpretation of Saving Provisions
Criminal Law Constitutional Law Statutory Interpretation Abolition of Common Law Offences Retrospective Legislation Transitional Provisions Statutory Offences Vs Common Law Offences Separation of Powers +1 more

Case Brief

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Parties

Padraic Grealis

Applicant/respondent

Emmett Corbett

Applicant

Director of Public Prosecutions

Respondent/appellant

Ireland

Respondent/appellant

Attorney General

Respondent/appellant/notice Party

Procedural Posture

Judicial Review (prohibition) / Constitutional Challenge / Supreme Court Appeal and Cross Appeal From High Court

Legal Issues

  1. 1 Whether prosecutions may proceed for common law offences abolished by the Non-Fatal Offences Against the Person Act 1997 in the absence of transitional provisions.
  2. 2 Whether 'assault occasioning actual bodily harm' under s.47 of the Offences Against the Person Act 1861 is a statutory or common law offence.
  3. 3 Whether the Interpretation (Amendment) Act 1997 is constitutional and applies to pending prosecutions.

Ratio Decidendi

Where a common law offence is abolished by statute without transitional or saving provisions, prosecutions for that offence cannot be maintained after abolition. The 1997 Interpretation Act cannot retrospectively validate such prosecutions where proceedings were pending before its enactment, due to constitutional constraints. 'Assault occasioning actual bodily harm' under s.47 of the 1861 Act is a statutory, not common law, offence, and prosecutions for it may proceed under the Interpretation Act 1937.

Court Disposition

Appeal by Attorney General allowed in part; appeal by DPP dismissed; cross-appeal by Grealis dismissed; appeal by Corbett allowed; prohibition granted in both cases against prosecution for abolished common law offences.

Orders

  • Order granting prohibition against prosecution for common law assault in both Grealis and Corbett.
  • Order dismissing prohibition for statutory offence under s.47 of the 1861 Act in Grealis.