The Supreme Court has overturned the conviction of a man for assaulting a garda outside the Bridewell Garda station in Cork eight years ago.
The five-judge court yesterday unanimously allowed an appeal by Michael Cummins against a High Court decision refusing to quash his conviction.
In her judgment, with which the four other Supreme Court judges agreed, Ms Justice Catherine McGuinness upheld Mr Cummins's argument that he could not have been convicted of assault contrary to common law on the date of his conviction, in May 1998, because the offence had been abolished with effect from August 19th, 1997.
The abolition of the offence was effected by the provisions of Section 28 of the Non-Fatal Offences Against the Person Act, 1997, which provided for the creation of three new statutory offences - assault, assault causing harm and assault causing serious harm.
The judge noted the date of Mr Cummins's alleged offence was January 6th, 1997, and a District Court summons was issued against him on January 28th, 1997. He was tried on May 19th, 1998, pleaded not guilty but was convicted and fined £50.
He unsuccessfully appealed the conviction and fine to the Circuit Court.
Ms Justice McGuinness said that while the 1997 Act created new offences of assault, there were no transitional provisions in relation to 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 those provisions of the Act which abolished those offences.
While the Oireachtas had enacted the Interpretation Amendment Act (IAA), 1997, in an effort to remedy the situation, the Supreme Court had found in an earlier case, the Grealis case, that the IAA applied only prospectively to criminal proceedings initiated after the coming into force of that Act.
Once the offence of assault with which Mr Cummins was charged no longer existed, the prosecution against him could not continue.
This was the situation that applied from August 19th, 1997, onwards. The IAA came into effect on November 4th, 1997.
To permit a prosecution existing or pending on that date to be validated would involve applying the IAA retrospectively which would be in breach of due process and fundamental constitutional principles.