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1. 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.

2. 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. The Applicant was, and continues to be, represented by Denis O’Sullivan, Solicitor. On 7th November, 1997 the Applicant received a letter dated 4th November, 1997 from Sergeant T. McKenna, Anglesea Street Garda Station, Cork as follows:-

3. Meanwhile on the 6th November, 1997 Ms Mary Cashman, clerical officer, of Anglesea Street Garda Station contacted Ms Georgina Phelan, a Solicitor in the office of Mr. Denis O’Sullivan, by telephone and informed her that the prosecution would be seeking an adjournment, mentioning the pending appeal before the Supreme Court of the High Court judgment in the case of Devanney -v- Judge Shields and The DPP which had cast doubt inter alia on the validity of the proceedings against the Applicant. Ms Cashman has sworn an Affidavit saying that Ms Phelan did not in any way take exception to the proposed course of action or express any objection to the proposed adjournment. Ms Cashman does not say that she informed Ms Phelan on that occasion that the Gardai had contacted the Applicant direct. In an Affidavit sworn on 12th April, 1999 Ms Phelan states that she has no specific recollection of Ms Cashman’s telephone call but accepts that it is likely that Ms Cashman did contact her. She avers that at the time she was a recently qualified Solicitor and that she was not acting for the Applicant. Ms Phelan avers that when she received Ms Cashman’s telephone call she should have brought the matter to Mr. Denis O’Sullivan’s attention but that she did not do so.

4. On 10th November, 1997 application was made to Barr J. in the High Court for leave to apply for Judicial Review against the Respondent seeking an Order for Prohibition against the continuation of the prosecution against him. A number of grounds were set out which I shall detail below. In his Affidavit sworn on the 8th November, 1997 grounding the initial application to Barr J the Applicant avers that when he received the letter dated 4th November, 1997 from Sergeant McKenna he believed that the Respondent had gone to a judge and had obtained an Order postponing the trial without reference to his views on the matter and without his Solicitor being present. He says that the letter shows an attitude on the part of the Respondent that he was not entitled to make an application in the District Court in the matter and that it appeared that the Respondent was satisfied that he had a predetermined decision of the Courts on the issue of how the matter should be disposed of on the date upon which it had been listed for trial.

5. On 17th February, 1998 the Respondent filed a Statement of Grounds of Opposition in which the application is comprehensively opposed. A week later Affidavits were sworn by Sergeant Thomas McKenna and Ms Mary Cashman. I have already referred to the content of Ms Cashman’s Affidavit. In his Affidavit Sergeant McKenna refers to his letter dated 4th November, 1999 and states:-

6. He refers also to the considerable degree of confusion in the District Courts in Cork and, he believed, throughout the State. This arose in part from the judgment of the High Court in Devanney -v- Judge Shields and The Director of Public Prosecutions as a result of which a doubt existed as to the validity of the appointment of most, if not all, District Court Clerks. In addition he was aware of the fact that a Judicial Review had been commenced before the High Court in which the provisions of Section 28 of the Non Fatal Offences Against the Person Act, 1997 were to be considered. As a result of this confused situation and in accordance with instructions which he received he “set about informing those whose cases were due to come before the Cork District Court in the immediate future that an application would be made to adjourn such cases.”

7. In March 1998 the Applicant sought an Order for Discovery and on 28th March, 1998 McCracken J. made a limited Order for Discovery of documents in the following two categories:-

8. On 17th April, 1998 Sergeant McKenna swore an Affidavit of Discovery in which he claimed privilege in respect of certain documents. The Applicant challenged this claim of privilege and after a comprehensive hearing before O’Sullivan J. the learned judge in a detailed written judgment on the 13th April, 1999 held that certain portions of the relevant documents should be disclosed. No reference to the content of these documents was made at the hearing before me.

9. The substantive Judicial Review proceedings came on for hearing before this Court in the last week of July, 1999 and were fully and comprehensively argued by Dr. White, Senior Counsel on behalf of the Applicant and by Mr. McDonagh on behalf of the Respondent.

10. The grounds upon which the Applicant seeks an Order of Prohibition, as permitted by the Order of Barr J. of 10th November, 1999, are set out in the original Statement grounding the application for Judicial Review as follows:-

11. It is, of course, clear, following the judgment of the Supreme Court in the Devanney -v- Shields case, that there is no longer any substance in the ground set out at paragraph (ii). This was fully accepted by Dr. White.

12. The grounds set out at paragraph (i) arises from the abolition of the common law offence of assault by Section 28 of the Non Fatal Offences Against the Person Act, 1997.

13. The Non Fatal Offences Against the Person Act, 1997 (“the 1997 Act”) at Section 2 established a statutory offence of assault. Section 28(1) of the Act provided:-

14. The 1997 Act was passed on the 19th May, 1997 and came into effect on the 19th August, 1997. The Act contained no specific or explicit provision to deal with prosecutions pending at the time of the abolition of the offences, with proceedings already before the Courts, or, indeed, with the situation where an offence had been committed before the 19th August, 1997 but no prosecution had yet been instituted.

15. This omission first arose for consideration before the Special Criminal Court in the case of DPP -v- Joseph Kavanagh (unreported Barr J. 29th October, 1997). It was subsequently considered by me in this Court in the case of Nessan Quinlivan -v- The Governor of Portlaoise Prison and Ors [1998] 2 IR 113 and again by O’Higgins J. in Mullins -v- District Judge William Harnett and Ors [1998] 2 ILRM 304. Since the hearing of the instant Judicial Review proceedings it has again been considered by O’Donovan J. in his recent judgment in the case of Padraig Grealis -v- The Director of Public Prosecutions and Ors (unreported 18th October, 1999). For convenience in the remainder of this judgment I shall refer to these four cases as “ Kavanagh”, “ Quinlivan”, “ Mullins” and “ Grealis”.

16. In all of these cases the Court held that Section 21 of the Interpretation Act, 1937 operated as a saver in regard to the abolition of statutory offences but was of no effect where the abolition of common law offences was concerned. The conclusions reached in these cases as to the interpretation of the Non Fatal Offences Against the Person Act, 1997 and its effect differ. There is as yet no judgment by the Supreme Court on the question. Such a judgment would provide a desirable and much needed authority.

17. In the meantime, following on the judgment of the Special Criminal Court in Kavanagh, the Oireachtas on the 4th November, 1997 enacted the Interpretation (Amendment) Act, 1997. In my judgment in Quinlivan I gave full consideration, in the light of the submissions made to me, to the interpretation of Section 28 of the Non Fatal Offences Against the Person Act, 1997 and its effect. However, because Mr. Quinlivan’s proceedings under Article 40.4.2 of the Constitution had been instituted prior to 4th November, 1997, I did not in that case consider the effect of the Interpretation (Amendment) Act, 1997. Neither were the terms of that Act considered by the learned O’Higgins J. in Mullins. Counsel for the Applicant and the Respondent in the instant case made comprehensive submissions both in regard to the Non Fatal Offences Against the Person Act, 1997 and in regard to the Interpretation (Amendment) Act, 1997. Dr. White on behalf of the Applicant found himself in the somewhat invidious position of arguing, in effect, that I should overturn my own decision in Quinlivan. However, he expressed himself as having no difficulty with my hearing the case, since he had a number of submissions to make and authorities to open which were not opened to the Court in Quinlivan. I hope that in the circumstances I succeeded in hearing the matter with an open mind.

18. In concluding his argument Dr. White helpfully listed a number of elements in his submission on behalf of the Applicant. These may be summarised as follows:-

19. Mr. McDonagh on behalf of the Applicant vigorously opposed the submissions of Dr. White on all these issues. He submitted that the Respondent was in no sense bound by a concession made virtually on the spur of the moment and without full argument in the Kavanagh case. He asserted that the judgment of O’Higgins J. in regard to statutory interpretation, and in particular the learned Judge’s reliance on “purposive” and “common sense” canons of interpretation was correct and should be regarded as persuasive. He submitted also that the decision in Quinlivan was correct. As far as the United States Supreme Court decisions opened to the Court by Dr. White were concerned, he pointed out that United States v. Chambers (291 US 205), a 1934 case, were all “prohibition” cases where the Twenty-first Amendment of the United States Constitution, which had repealed the Eighteenth Amendment, had removed the entire constitutional basis for the prohibition on the sale of alcohol and for offences against that prohibition. This was an entirely different situation from the replacement by statute of a previous similar common law offence. As far as the English decisions were concerned, he submitted that they were the product of a 19th Century common law environment. They were not binding on this Court and in the constitutional and statutory environment of the present day were not of persuasive value.

20. Mr. McDonagh rejected the suggestion that the prosecution of the Applicant offended against the concept of equality before the law. While the prosecution against Mr. Kavanagh had abated, those against Mr. Quinlivan and Mr. Mullins had continued. The concept of equality before the law should lead to the conclusion that all those who were alleged to have committed the offence of assault, whether before or after 19th August 1997, should equally be proceeded against and equally provided with a fair trial before the Courts. As far as the ordinary citizen was concerned, to create a situation where a number of alleged offenders could not be prosecuted either under the common law or under the new statute, as claimed by the Applicant, would be unfair and unequal.

21. In regard to the Interpretation (Amendment) Act, 1997, Counsel for the Respondent submitted that retrospective legislation was not in itself unconstitutional, provided that it did not offend against Article 15.5 of the Constitution. Article 15.5 provides:-

22. The offence of assault alleged to have been committed by the Applicant on the 3rd February, 1997 was most certainly an “infringement of the law” at that date, and no question arose of retrospective penalisation of the Applicant.

23. Mr. McDonagh referred the Court to the terms of the Courts (No. 2) Act, 1988 and the judgment of the Supreme Court in Shelly v. District Justice Mahon [1990] 1 IR 36. Section 1(3) of that Act was framed in terms very similar to those of Section 1(4) of the 1997 Act. The subsection was not criticised or rejected by the Supreme Court, but was operated in accordance with its own terms. In that case there was on the evidence a conflict with the constitutional rights of the applicant, Mr. Shelly. In the instant case no constitutional right of the Applicant was properly identified as being under attack. The legislature may have passed the Interpretation (Amendment) Act, 1997 in an abundance of caution, given the subsequent judgments of this Court in Quinlivan and Mullins, but the Respondent’s case was that the Act had been passed before the commencement of the instant Judicial Review proceedings and the Act could therefore be relied upon in the context of the prosecution of the Applicant.

24. This submission by Counsel for the Respondent was, of course, made prior to the decision of O’Donovan J. in Grealis and I will consider this aspect of the matter later.

25. As regards the final ground on which the Applicant relied, Mr. McDonagh accepted that the letter sent to the Applicant by Sergeant McKenna was wrongly worded, but said that the Respondent was not making an underhand attempt to go behind the back of the Applicant’s Solicitor. This was clearly shown by Ms Cashman’s telephone call to Ms Phelan at Mr. O’Sullivan’s office. In any case, the Applicant sought leave to issue his Judicial Review proceedings on the 10th November so that no application for adjournment was made in the District Court by the Respondent on the 11th November, 1999. There was no question of the Applicant being denied access to the Courts or of his being deprived of a trial in due course of law.

26. The question as to whether the State was bound by the concession made in Kavanagh arose as a preliminary issue in Quinlivan and was fully argued before me in that case. In my judgment in that case I dealt with this issue at pages 121-123 of the report as follows:-

27. Dr. White in his submissions to this Court was extremely critical of the whole concept of the community’s right to have criminal offences prosecuted, or the community’s interest in the prosecution of crime which he described as “a political statement rather than a principle of law”, and stigmatised as dangerous. The principle of the community’s right to have offences prosecuted has been asserted on a number of occasions by the Supreme Court and as such is binding as a concept on this Court. This right must be balanced against an accused person’s right to a fair trial, which is a superior right in a hierarchy of constitutional rights. In D. v. DPP at page 474, Denham J. in the Supreme Court stated:-

28. In the instant case, there is no suggestion that the Applicant will not receive a fair trial in the District Court. It seems to me, therefore, that the views which I expressed in Quinlivan are equally applicable to the instant case.

29. I accept, as does the Respondent, that the saving clause at Section 21 of the Interpretation Act, 1937 has no bearing on the instant case; it applies to statutory offences only. I also accept that it is the normal legislative practice in England to include saving clauses which cover common law offences. Dr. White opened a number of these clauses to the Court, for example the Theft Act, 1968, Section 32(1) which provides:-

30. Other examples include the Criminal Law Act, 1977, Section 5, the Forgery and Counterfeiting Act, 1981, Section 13, and the Criminal Attempts Act, 1981.

31. I accept that the inclusion of such clauses is better and clearer drafting practice and I share the view of Barr J. in the Special Criminal Court that it is surprising and unfortunate that the draftsman did not see fit to include an explicit saving clause in the 1997 Act and thus clarify the matter for all concerned.

32. It is clear that owing to the judgment of the Special Criminal Court in Kavanagh, the prosecution of Mr. Kavanagh for one of the common law offences abolished by the 1997 Act did not proceed. It was otherwise as regards the Quinlivan and Mullins cases. I cannot accept Dr. White’s submission that to permit the prosecution against the Applicant to continue in the instant case would be a breach of his constitutional right to equality before the law because of the different treatment of Mr. Kavanagh. It seems to me that were I to hold that such prosecutions could not proceed, it would have the effect, as argued by Counsel for the Respondent, of creating a particular class of persons who were alleged to have prior to 19th August, 1997 committed one or other of the common law offences abolished by the 1997 Act but who either could not be charged with that offence, could not be tried for that offence, could not be convicted or acquitted of the offence or, if convicted, could not suffer any penalty. Thus those who were innocent of the alleged offence would be unable to re-establish their good name by acquittal while the guilty would go unpunished. This situation would arise solely because of the date on which the alleged offence was committed. This, it seems to me, is a clear example of inequality before the law. If the prosecution against the Applicant in the District Court proceeds, he will have the same rights and the same protection before the District Court as all those tried for the common law offence of assault before the coming into effect of the 1997 Act and, indeed, as all those who will in the future be tried for the statutory offence of assault established by Section 2 of the 1997 Act. I conclude that the continuation of the prosecution of the Applicant will not contravene his constitutional right to equality before the law.

33. Since the hearing of the instant case, the learned O’Donovan J. in his judgment in Grealis delivered the 18th October, 1999 has held that the provisions of the Interpretation (Amendment) Act, 1997 are repugnant to the provisions of Bunreacht na hÉireann. At page 13 of his judgment, the learned Judge sets out his reasons as follows:-

34. I have been informed that the judgment of O’Donovan J. is at present under appeal.

35. In the instant case, as outlined above, Counsel on both sides made very full arguments in regard to the Act in question. While I must without question treat the judgment of the learned O’Donovan J. with the greatest respect, it is not binding upon me and it seems to me right that I should deal with the arguments of Counsel and consider the provisions of the Act.

36. The Act, which is brief, provides as follows:-

37. The present prosecution of the Applicant would fall within the terms of Section 1(1)(c) and/or Section 1(2), since the Non Fatal Against the Person Act, 1997 expresses no “contrary intention”.

38. Section 1(3) is expressed as applying to offences abolished before the passing of the Act and is therefore retrospective in its effect and purports to govern prosecutions such as that of the Applicant.

39. 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.

40. 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 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 .

41. The Courts (No. 2) Act, 1988 was considered in some detail by the Supreme Court in the case of Shelly v. District Justice Mahon [1990] 1 IR 36. The Act was passed on account of a difficulty which had arisen due to an error concerning the age of District Justice Mahon. At the time of his appointment, he had inadvertently misinformed the Department of Justice as to the date of his birth and in the records of the Department his age was entered as one year less than his true age. When he reached the age of sixty-five, no application for a warrant continuing him in office was made by him before his sixty-fifth birthday. In the mistaken belief that he would attain the age of sixty-five in the following year, a warrant purporting to continue him in office was made for that year and for each of the four subsequent years. Upon discovery of the error in respect of his age, the Courts (No. 2) Act, 1988 was enacted. The purpose of this Act was to enable the making of warrants retrospectively and to provide for the validation of certain acts which had been carried out by District Justice Mahon between the age of sixty-five and sixty-six. Section 1(3) of the 1988 Act provided:-

42. The applicant, Mr. Shelly, was, prior to the date of the passing of the 1988 Act and during the period when the District Justice was purportedly continued in office by a warrant made under the Act of 1949, convicted by the District Justice of an offence under the Road Traffic Acts. He applied by way of Judicial Review for an Order of Certiorari. It was held both by the High Court and the Supreme Court that the purported conviction of the applicant was a nullity. The applicant had not been convicted of an offence by any constitutionally competent Court.

43. While the facts of Shelly v. District Justice Mahon are very different from those in the instant case, it will be seen that the wording of Section 1(3) of the Courts (No. 2) Act, 1988 closely resembles the wording of Section 1(4) of the Interpretation (Amendment) Act, 1997.

44. In his judgment in the High Court, Blayney J., in interpreting the provisions of the 1988 Act stated (at page 40):-

45. In the Supreme Court the majority upheld not only Blayney J’s decision but also his interpretation of Section 1(3) of the Act. Walsh J. (at page 44) stated:-

46. Griffin J. (at page 48) put the matter even more clearly, stating:-

47. McCarthy J. (at page 51) remarks that:-

48. Hederman J. agreed with the judgment of Walsh J.

49. In the instant case Senior Counsel for the Applicant submitted to this Court that Section 1(4) of the Interpretation (Amendment) Act, 1997 had the effect of permitting Judges of the District Court to determine the constitutionality or otherwise of the Act. 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 Bunreacht na hÉireann. It appears that a similar submission was made to O’Donovan J. in Grealis and that he accepted that this was the case.

50. With the greatest respect to the learned O’Donovan J., it does not appear to me that such an interpretation of subsection (4) of Section 1 of the Interpretation (Amendment) Act, 1997 is in accordance with the clear interpretation of the almost exactly similar “saving” subsection contained in the Courts (No. 2) Act, 1988 by both Blayney J. and the Supreme Court.

51. As in the case of the 1988 Act, and as so clearly expressed by Griffin J. in regard to that Act, in my opinion Section 1 subsections (1), (2) and (3) are “blanket provisions” covering prosecutions under the former common law offences. If those subsections stood alone, they might trench on constitutional rights of at least some of the persons affected and thus the Oireachtas enacted subsection (4) which provides that the provisions of the section as a whole “shall be subject to such limitations as are necessary to secure” that they do not conflict with such constitutional rights.

52. It is the task of the trial Judge to decide whether the operation of Section 1 subsections (1), (2) or (3) in fact conflicts with the constitutional rights of a particular accused person appearing before her or him. In the case of a summary trial, this will be the task of the relevant District Judge. This in no way permits or requires the trial Judge in either the District Court or the Circuit Court, as the case may be, to determine the constitutionality of the Act itself or of any of its sections.

53. There is, of course, no difficulty in a Judge of the District Court (or, a fortiori, of the Circuit Court) making a determination as to whether the constitutional rights of an accused person have been infringed. This is made abundantly clear in the judgment of Denham J. in the case of Coughlan v. District Justice Patwell [1992] ILRM 808. In that case, as set out in the head note, Denham J. held that the District Court, though a Court of limited jurisdiction, has a duty to act constitutionally and to administer justice so as to preserve the constitutional rights of individuals appearing before it. Where an individual alleged that his constitutional rights had been infringed in procedures adopted in bringing him before the District Court, then the District Justice must hear the accused’s allegations and submissions and take such steps as are considered appropriate. At page 813 the learned Judge stated:-

54. In the light of these considerations and despite my respect for the judgment of the learned O’Donovan J., it does not appear to me that the provisions of the Interpretation (Amendment) Act, 1997 and in particular Section 1(4) are repugnant to the provisions of Bunreacht na hÉireann.

55. 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.

56. Since I have held that the prosecution of the offence alleged against the Applicant is governed by the Interpretation (Amendment) Act, 1997 and that, in my view, the provisions of that Act do not offend against the Constitution, there is no need for this Court to reconsider here the question of the statutory interpretation of the Non Fatal Offences Against the Person Act, 1997 which has already been considered by this Court in Quinlivan and Mullins.

57. In his judgment in regard to privilege and discovery delivered on 13th April, 1999, the learned O’Sullivan J., in reference to the Applicant’s claim that the sending of Sergeant McKenna’s letter was an abuse of process, had this to say:-

58. I find myself in complete agreement with the learned O’Sullivan J. I accept that Sergeant McKenna should not have communicated with the Applicant when he had been represented by Solicitor when the matter was previously before the Court. I also accept that Sergeant McKenna’s letter was wrongly worded; he should of course have told the Applicant that an application for an adjournment would be made rather than stating that the case “would be adjourned on the 11th November”. However, to characterise this as a serious breach of the Applicant's right of access to the Courts seems to me to be excessive. Ms Cashman did inform the office of the Applicant’s Solicitor that an adjournment would be applied for; it was not her fault that her message was not conveyed to the Applicant’s Solicitor himself. The Applicant knew that he had his own Solicitor and there was nothing to prevent him from contacting Mr. O’Sullivan if he felt in any way concerned. It is clear that he did in fact do so. It should also be noted that Sergeant McKenna’s letter actually notifies the Applicant of the date, the Court number, the address of the Court and the time at which the matter will be dealt with in the District Court. This scarcely accords with an alleged desire to keep the Applicant out of Court and to prevent him from intervening in the matter.

59. In the event, the proposed adjournment was neither sought nor granted, since the Applicant brought his Judicial Review proceedings on the 10th November and the District Court proceedings have been stayed since that date.

60. I do not accept that the Applicant has been denied access to the Courts by the action of Sergeant McKenna, nor will the Sergeant’s action in any way prevent him from receiving a fair trial in due course of law.

61. For the reasons set out above, this Court refuses the Orders sought by the Applicant.

62. I should add that this Court does not accept that the actions of the Respondent and of the State in general in regard to the matters canvassed by Senior Counsel for the Applicant in his submissions were, as he repeatedly alleges, sinister or the manifestations of a concerted attempt to manipulate the law and thus to deny the Applicant his constitutional rights.