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1. The Applicant complains that his detention is unlawful and this is my judgment on his complaint, having conducted an inquiry under Article 40, sub-article (2) of the Constitution. The Applicant at the hearing before me was represented by Mr. Giblin, Senior Counsel. The Applicant is detained under two warrants, the first of which (dated the 1st October, 1997) recites the offence of which the Applicant has been convicted as wounding with intent contrary to Section 18 of the Offences Against The Person Act, 1861. He was sentenced to eight years imprisonment from the 1st of October, 1997.

2. The second warrant is dated the 23rd of March, 2000 and indicates on its face that the Applicant was convicted of two counts, namely wounding with intent as aforesaid and also a count of assault occasioning actual bodily harm contrary to Section 47 of the Offences Against The Person Act, 1861.

3. It is accepted by Mr. Giblin S.C. that if the Applicant is currently lawfully detained under the first of these two warrants, then the court should not order his release even if his detention under the second is not lawful. Accordingly I now turn to consider the submissions made in relation to the warrant of the 1st of October, 1997. The point made by Mr. Giblin is that Section 18 of the 1861 Act did not itself create an offence but merely provided for a scheme of punishment for existing common law offences. This is similar, he submits, to Section 47 of the same act, in respect of which section the Supreme Court in Grealis v. DPP (unreported judgment delivered 31st of May, 2001) held that it did not create an offence of assault occasioning actual bodily harm.

4. It is further accepted by Counsel that if, contrary to the foregoing submission, Section 18 of the 1861 Act did create a new statutory offence then - notwithstanding its abolition pursuant to Section 28(1) of the Non-fatal Offences Against The Person Act, 1997 - the conviction of the Applicant recorded in the said warrant is good, the relevant proceedings having being saved by Section 21(1) of the Interpretation Act, 1937 which operates to save prosecutions for statutory offences as distinct from common law offences.

5. It follows that if Section 18 of the 1861 Act itself created an offence, the Applicant’s detention under the warrant of the 1st of October, 1997 is lawful but it is otherwise if it did not.

6. I turn therefore to consider the provisions of Section 18 of the 1861 Act. This section provides

7. In my view the appearance of the phrase “... shall be guilty of felony ...” clearly means that the section itself creates the offences which it describes. This is in sharp contrast to the language employed in Section 47 which where relevant provides as follows

8. Clearly in Section 47, as has been authoritatively found by the Supreme Court in the Grealis case referred to, there is no creation of an offence; it merely identifies penalty. There is nothing in the judgments in Grealis which even suggests that the same applies to Section 18. If anything the observations in these judgments are to the contrary. The same applies to the judgment of O’Hanlon J. in Doolan v. Director of Public Prosecutions (1992) Volume 2 I.R. 399, pp 403 - 4, where it is clear that his observations do not apply “in cases where new felonies or misdemeanours were created by statute”.

9. There being nothing, therefore, in the authorities to which I have been referred which would alter my own interpretation of Section 18, I hold that this section clearly creates the offences identified therein. In these circumstances it is clear the Applicant’s detention is lawful and I accordingly refuse his application.