I move: "That the Bill be now read a Second Time."
The need for this Bill arises from a provision in the Non-Fatal Offences Against the Person Act, 1997 which was passed by the Oireachtas on 19 May 1997 and became law as regards the provision in question three months later.
Section 28 of that Act abolished the common law offences of assault, assault occasioning actual bodily harm, false imprisonment and kidnapping. In place of these common law offences the Act created new statutory offences which were largely identical with the offences repealed. Section 2 created an offence of assault in place of the common law offence of common assault, section 3 created an offence of causing harm to another to replace the old offence of assault occasioning actual bodily harm and section 15 created an offence of false imprisonment to replace the old offences of false imprisonment and kidnapping. For some years past, the practice has been to charge kidnapping as false imprisonment so that kidnapping as a separate offence had more or less become redundant.
The problem that has arisen is that claims have been made in a number of cases that the abolition of the common law offences by section 28 of the 1997 Act means that prosecutions cannot now be instituted in relation to these offences where they were committed prior to the enactment of the 1997 Act.
On 2 September 1997 a submission was made by a defence lawyer in an assault case in Kilkenny to the effect that the court had no power to hear the case as the alleged offence took place on 24 May 1997 — prior to the coming into effect of the 1997 Act — but the hearing was to take place after the "abolition" of the offence.
That case was adjourned to enable the Director of Public Prosecutions to make submissions. During that adjournment period the defendant, on 30 September, sought and obtained an injunction from Mr. Justice Moriarity in the High Court restraining the judge from hearing the case until the point had been decided by the High Court. That application is now before the High Court awaiting a hearing date.
On Wednesday last, 29 October, the Special Criminal Court decided that, as a result of the provisions of the Non-Fatal Offences Against the Person Act, 1997, it did not have jurisdiction to decide whether the accused in question was guilty or not guilty of the offence of false imprisonment. The accused was convicted of other offences for which he received a substantial prison term. The following day, Thursday, 30 October, Mr. Justice Morris, sitting in the High Court as a judge of the Central Criminal Court hearing a case of murder and false imprisonment, decided that the jury could consider the offence of false imprisonment. The accused was convicted. Mr. Justice Morris made it clear that he was not making a definitive judgment on the issue. That afternoon, Thursday, 30 October, Mr. Justice Carney in the High Court gave leave to an accused remanded in custody awaiting trial before the Special Criminal Court on a charge of false imprisonment to apply for a habeas corpus order. That application was returnable for last Friday, 31 October, when it was adjourned on consent to enable the Attorney General and the Director of Public Prosecutions to be made parties. On Friday, 31 October, Mrs. Justice Catherine McGuinness sitting as a judge of the Central Criminal Court hearing a case of attempted rape and false imprisonment, ruled that a charge of false imprisonment could not be considered by a jury. Like Mr. Justice Morris she made it clear that she was not giving a definitive judgment on the issue. Those decisions have introduced uncertainty into an important area of the law.
I do not believe that section 28 of the 1997 Act has the effect claimed in those cases. If the Legislature had intended that acts which were clearly criminal under the law as it then applied should not now be prosecuted if they were committed before section 28 came into effect, I suggest that the Legislature would have said so plainly. It seems the clear intention was that criminal behaviour occurring before the 1997 Act would continue to be prosecuted under the old law and that similar behaviour occurring after the 1997 Act would be prosecuted under the replacement offences provided by the Act, which offences, as I indicated, are largely identical to the offences abolished. I should mention that for some years past it has been the practice to abolish common law offences in the terms of section 28 and no questions were asked.
One way of dealing with the problem would have been to await the resolution of the matter by the superior courts and bring forward legislation only if that became necessary as a result of the judgment of the court. However, in view of the challenges that have been and continue to be mounted to section 28, there is an urgent need to bring certainty into the matter. Also, the large number of common assault cases standing adjourned in the District Court and the likelihood of more cases seeking adjournments and judicial review are threatening severe administrative problems. In all the circumstances, the Government has decided to bring forward this Bill urgently to rectify the matter.
The Bill takes the form of an amendment to the Interpretation Act, 1937. It is closely modelled on section 21 of that Act. It provides simply in section 1(2) that where a common law offence is abolished, abrogated or repealed by a statute, proceedings for the offence may be instituted, continued or maintained in respect of the offence as if the offence had not been abolished or repealed. The provision applies, that is subsection (3), whether the common law offence is abolished before or after the enactment of the Bill. The effect is that where these offences have been committed before the abolition of the common law offence proceedings can be instituted under the law as it applied at the relevant time and, where similar offences are committed after the abolition of the common law offence, proceedings will be taken under the new law now applying, in this case the provisions of the 1997 Act which I mentioned.
Subsection (1) of section 1 provides, in effect, that abolition of a common law offence will not affect anything done under the previous law and shall not affect pending proceedings. To avoid any implication that the legislation might be an unconstitutional interference in ongoing proceedings, subsection (4) provides that if the section would, but for subsection (4), conflict with the constitutional rights of any person, the section will be subject to such limitations as are necessary to secure that it does not so conflict but shall otherwise be of full force or effect.
Deputies will no doubt notice that section 1, in paragraphs (a) (b) and (c) of subsection (1) and in subsection (2), refers not alone to proceedings in respect of the abolished offences but to proceedings for any other offences as well. The reason for this is simple. It has been suggested there are other offences in which an abolished common law offence is an ingredient and the abolition of the common law offence might make difficulties for the prosecution of the other offence on the ground that one of the ingredients of that offence has been done away with. While I do not agree with that argument I thought it better to put the matter beyond doubt by ensuring the abolition of the common law offences will have no effect on any other offences.
As I mentioned, subsection (3) applies the section to common law offences abolished before the enactment of the Bill. Thus, it applies to the common law offences abolished by section 28 of the Non-Fatal Offences Against the Person Act, 1997. Deputies may wonder whether this makes the Bill objectionable on the grounds of retrospectivity. The important point here is that the Bill does not make acts criminal which were not criminal at the time they were committed — that would clearly be forbidden as retrospective legislation by Article 15.5 of the Constitution. The actions to which the Bill refers were all clearly criminal under the law at the time they were committed. What the Bill does is to enable prosecutions to be mounted in relation to clearly criminal actions, actions that if committed now are still criminal, having regard to the provisions of the 1997 Act. I am advised and agree that this is quite acceptable.
The Bill is a necessary measure to bring certainty into an important area of the criminal law and to avoid severe administrative problems developing in our courts. I hope that Deputies will agree that in the circumstances in which we find ourselves it is right and proper to proceed with expedition as the Government proposes. I commend the Bill to the House.
