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Where any act, whether of commission or omission, constitutes an offence under
two or more statutes or under a statute and at common law, the offender shall,
unless the contraryintention appears, be liable to be prosecuted and punished under
either or any of those statutes or at common law, but shall not be liable to be
punished twice for the same offence.
This section presupposed the existence of similar statutory offences under different
enactments and the co-existence of both statutory and common lawoffences in respect of
the same offence. Moreover, Section 26(1) of the Interpretation Act 2005 provides that
where a statutory repeal is made, the enactment thus repealed shall continue in force until
the substituted provisions come into operation. This latter provision could be called in
support of the proposition that if a common law offence, rule of law or power of the
courts to suspend a sentence is not repealed, abrogated or abolished by an enactment
which seeks to deal with the issue, then such offence, rule of law or such power is to
remain in full force alongside the new statutory provisions, but all times subject to the
presumption of constitutionality.
This is precisely what happened to the old common law offences of riot, unlawful
assembly and affray which were expressly abolished under the Criminal Justice (Public
Order) Act 1994 and which were then replaced by statutory equivalents (Sections 14, 15
and 16 Criminal Justice (Public Order) Act 1994). However, as noted, a different fate
befell the offence of breach of the peace which was not abolished by Section 6 and now
endures alongside section 6, thus giving rise to a duality, perhaps not intended by the
Oireachtas. 158 Although measures to reformulate certain common lawoffences have been
achieved in legislation, this writer contends that the exercise does not proceed on the basis
of excluding a number of common law offences which, as demonstrated, still survive
unless expressly abolished by the subsequent legislation. This may lead to certain
confusion where there is an expectation that legislation which aims at modernising the law
in relation to certain offences and regulating these in a codified manner, would not like a
glacier leave behind deposits of the common law, but would sweep all before it and replace
the legal landscape thereafter with a statutorybased regime.
158 Such dualitydoes not invalidate either offence but in this case acertain overlappingor interchangeabilitydoes occur.
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