Supreme Court dismisses appeal where consent to assault was given for an unlawful purpose, negating its legal validity.

THE SUPREME COURT

[Supreme Court Record No. S:AP:IE:2017:000046]

McKechnie J.

MacMenamin J.

Dunne J.

O'Malley J.

Finlay Geoghegan J.

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/RESPONDENT

AND

GERARD BROWN

ACCUSED/APPELLANT

JUDGMENT of Ms. Justice Dunne delivered the 21st day of December2018

Introduction

1. The accused/appellant, Gerard Brown, was tried at Portlaoise Circuit Criminal Court in respect of one count on indictment, namely

"that on the 20/05/2014 at Midlands Prison Dublin Road Portlaoise in the County of Laois, in the said District of Portlaoise he did

assault one Stephen Cooper causing him harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997". Following a

three day trial, Mr. Brown was found guilty by unanimous verdict on the 6th November, 2015 of the offence of assault causing harm

and was sentenced to three years imprisonment consecutive to his current sentence.

2. Mr. Cooper (hereinafter referred to as “the injured party”), previously a member of An Garda Síochána, gave evidence that he was

a prisoner in the Midlands Prison on the 20th May, 2014, having been convicted of offences contrary to s. 15 of the Misuse of Drugs

Act, 1977 (as amended), fraud, and perverting the course of justice.

3. The injured party (who was on protection in prison) gave evidence that on the morning of the 20th May, 2014, he was being

escorted to the prison gym by a prison officer at approximately 10am. The injured party gave evidence that he was attacked by Mr.

Brown on the 20th May, 2014 in the Midlands Prison whereby Mr. Brown struck him two to three times on the top of the head causing

him injury.

4. The injured party formally identified the accused from a photograph during the trial process. During cross-examination it was put to

the injured party that he asked Mr. Brown to attack him in order to facilitate a transfer to another prison. The injured party expressly

denied that he asked Mr. Brown to attack him and denied that he consented to the assault.

5. In his evidence, Mr. Brown accepted that he was a prisoner with a number of previous convictions and that he had hit the injured

party on the top of the head with a mug in a sock. He gave evidence that he had a cordial rapport with the injured party and spoke

to the injured party regularly through the bars on their respective landings. He gave evidence that the injured party informed him that

he was refused a transfer to Shelton Abbey open prison. Mr. Brown gave evidence that he said to the injured party that the only way

he was going to get out of Portlaoise Prison place was "if there is a serious threat on you, a serious threat on your life or if you are

seriously assaulted".

6. Mr. Brown gave evidence that he spoke to the injured party and alleged that the injured party suggested that he pretend to attack

him when he was going to the gym. Mr. Brown gave evidence that the injured party stated "Don't hold back" in terms of the assault

and "Just make sure there is blood". In return the injured party stated that he would give Mr. Brown sensitive documentation and

information together with €1,000 in cash.

7. At the close of the prosecution case, counsel on behalf of Mr. Brown made an application that the trial judge should allow the

defence of consent go to the jury, arguing that insofar as s. 3 of the Non-Fatal Offences Against the Person Act 1997 (the Act of

1997) builds on s. 2 of the said Act, the criteria under s. 2 must be satisfied in order for the crime of "assault causing harm" to be

established pursuant to section 3. Counsel for the DPP argued that s. 3 of the Act of 1997 is a standalone offence in which the

element of consent was not relevant and that to conclude otherwise would be contrary to public policy. Following the submissions,

the learned trial judge refused to allow the defence of consent to go to the jury.

8. The learned trial judge ruled that ss. 2 and 3 of the Act of 1997 are standalone offences. He further ruled that if the definition of

assault in s. 2 was to be carried over to s. 3, this would have been clearly provided for in the statute. He further ruled that the

injured party could not have consented to the imposition of an injury on him by the applicant on the grounds of public policy and

furthermore, that on the grounds of public policy, the courts could not permit the defence of consent to apply as to do so would

enforce the purported agreement between Mr. Brown and the injured party. Finally he indicated that he was satisfied that the term

"assault" as used in s. 3 of the Act of 1997 derives from the definition which it enjoyed at the time that the Act of 1997 was enacted.

9. Mr. Brown then appealed against his conviction to the Court of Appeal on a number of grounds, namely:

"(i) The learned trial judge erred and misdirected the jury in law with regard to the interpretation of s. 2 and s. 3 of the

Non Fatal Offences against the Persons Act 1997, in particular, the learned trial judge erred in distinguishing 'assault' for

the purpose of a s. 3 offence from 'assault' as defined by s. 2 of the Non Fatal Offences against the Persons Act 1997;

(ii) the learned trial judge erred and misdirected the jury in law by interpreting s. 3 of the Non Fatal Offences against the

Persons Act 1997 - so as to remove the concept of consent therefrom, and in so doing, the learned trial judge conducted

the trial of the accused other than in due course of law in breach of Art. 38.1 of Bunreacht na hÉireann and in breach of

obligations under Art. 6 of the European Convention on Human Rights;

(iii) the learned trial judge erred in law in holding that an agreement or consent to the physical application of force, was

vitiated or removed as an element of the offence to be established by the prosecution, for reasons that it was contrary

to public policy, for a dishonest purpose, tainted by unlawfulness and incapable of enforcement, whilst expressly

acknowledging its applicability or the existence of the defence in other circumstances;

(iv) The learned trial judge erred in law in refusing an application on behalf of the appellant for an accomplice warning to

be given to the jury."

The Court of Appeal rejected the appeal against conviction brought by Mr. Brown and an application was thereafter made for leave to

appeal to this Court on the basis that the judgment of the Court of Appeal raised a number of issues of general public importance.

Leave to appeal to this Court was granted to Mr. Brown in respect of the following issues:

"(1) The interpretation of s. 2 and s. 3 of the Non-Fatal Offences Against the Person Act 1997.

(2) Whether the concept of consent as provided for in s. 2(1)(a)(b) of the Non-Fatal Offences Against the Person Act

1997 is removed from s. 3(1) of the same Act.

(3) The interpretation and scope of 'assault' as defined in s. 2 of the Non-Offences Against the Person Act 1997.

(4) Whether s. 2 and s. 3 of the Non-Fatal Offences Against the Person Act 1997 are separate or distinct offences.

(5) To what extent can the courts dictate public policy contrary to the express intentions of the legislature."

The statutory provisions

10. Given that ss. 2 and 3 of the Act of 1997 are central to the issues arising in this case it would be prudent to set out those

provisions at this stage:

"2. (1) A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly -

(a) directly or indirectly applies force to or causes an impact on the body of another, or

(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected

to any such force or impact, without the consent of the other.

(2) In subsection (1)(a), 'force' includes -

(a) application of heat, light, electric current, noise or any other form of energy, and

(b) application of matter in solid liquid or gaseous form.

(3) No such offence is committed if the force or impact, not being intended or likely to cause injury, is in the

circumstances such as is generally acceptable in the ordinary conduct of daily life and the defendant does not know

or believe that it is in fact unacceptable to the other person.

(4) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding

£1,500 or to imprisonment for a term not exceeding 6 months or to both.

3. (1) A person who assaults another causing him or her harm shall be guilty of an offence.

(2) A person guilty of an offence under this section shall be liable -

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not

exceeding £1,500 or to both, or

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or to

both."

By way of contrast to ss. 2 and 3 it may also be useful to refer briefly to the provisions of

s. 4 of the Act of 1997 which provides as follows:

"4. (1) A person who intentionally or recklessly causes serious harm to another shall be guilty of an offence.

(2) A person guilty of an offence under this section shall be liable on conviction

on indictment to a fine or to imprisonment for life or to both."

The judgment of the Court of Appeal

11. The critical findings of the judgment of the Court of Appeal (Mahon J.) are to be found at para. 36 of the judgment onwards

where it is stated:

"36. Section 2 of the act of 1997 specifically creates an offence of assault occurring without the consent of the other.

Section 3 contains no such provision. The drafting of these related sections, (to the extent that they both refer to

assault), creates confusion as is evident from this and other cases and might have been the subject of more careful

drafting. It is nevertheless appropriate that the offences described in ss. 2 and 3, respectively, should be treated as

separate and distinct offences, as indeed should the offence described in s. 4. . . .

38. Proof of an absence of consent is therefore not a necessary ingredient in a s. 3 assault. Consent may however

provide a defence to a s. 3 assault charge in limited circumstances such as, for example, legitimate sporting activity and

necessary and appropriate medical treatment.

39. An assault causing harm committed in circumstances where the purpose and/or intention of the assault is itself

unlawful and/or contrary to public policy can never be rendered lawful on the basis that the victim invited the assault or

consented to being assaulted. Consent in those circumstances would not serve to undermine the criminalisation of such

conduct under s. 3 of the Act of 1997. In this Court’s view, the ruling of the learned trial judge in this case was correct,

as was his charge to the jury to the effect that the very serious attack on Mr. Cooper by the appellant was not

excusable on the basis that it had been consented to, if indeed there was any such consent."

The ruling of the trial judge

12. As can be seen from the passage referred to above from the judgment of the Court of Appeal at the heart of this case is the

issue of consent. Following the conclusion of the evidence in the course of the trial submissions were made on behalf of Mr. Brown in

relation to the interpretation of ss. 2 and 3 of the Act of 1997 and whether or not lack of consent was a necessary proof for an

offence charged under s. 3 of the Act. The question of public policy was also referred to in the context of the issue of consent. The

ruling of the trial judge on these issues dictated the manner in which the trial judge charged the jury and consequently the trial

judge's ruling on these issues was central to the appeal before the Court of Appeal. His comments to the jury in the course of his

charge are also of relevance. For that reason, it would be helpful at this stage to refer in some detail to the ruling of the trial judge

made on foot of the submissions made to him in relation to the interpretation of ss. 2 and 3 of the Act of 1997 and on the issue of

consent. The learned trial judge stated as follows:

"Sections 2 and 3 are standalone offences in the Non Fatal Offences against the Person Act, Statute. If it was intended

that the definition of assault in s. 2 was to be carried over to s. 3, then the Statute would have clearly provided for this.

Section 2 defines for the first time in a Statute the offence of assault simpliciter. It does nothing else. If the Statute was

intended to define assault in all its forms then this would have been covered in the interpretation section of the Statute.

It doesn’t do this. I am satisfied that the term 'assault' as used in s. 3 derives from the definition, which it enjoyed in law

at the time that the Non Fatal Offences against the Person Act was enacted. This definition is informed by precedent

case law.

Both Mr. Hennessy and Mr. Fennelly have done considerable research into this area, they are both to be commended for

their efforts, which have been of considerable assistance to the Court. Mr. Hennessy has cogently argued that the dicta

of Peart J. in Donnelly, (sic) which was approved by the Supreme Court, is not binding in this Court as it did not form part

of the ratio decidendi of the Donnelly decision and that the Donnelly decision can be distinguished from the present case

as it involved the issue of a European Arrest Warrant where the burden of proof is the balance of probabilities. I agree

that this Court is not bound by Peart J.'s dicta, nevertheless it is highly persuasive and cannot be disregarded lightly. The

English case law, which Mr. Fennelly has referred to, and which is primarily R. v. Brown, a House of Lords decision

delivered on the 11th March 1993, provides a very useful analysis of the case law in this area and ultimately concludes

that the defence of consent to an assault charge cannot, on grounds of public policy be used where the victim has

suffered bodily injury and there is no other purpose, such as sport or surgery served by the infliction of the injury. In the

present case, if one were to accept the accused's version of events, he inflicted on Stephen Cooper pursuant to an

agreement with Mr. Cooper for which he was to receive confidential documents and the sum of €1,000 cash. According to

the accused, the purpose of the assault was to assist Mr. Cooper in getting a transfer out of the Portlaoise Prison. I am

satisfied that in the circumstances of the present case Mr. Cooper, on the grounds of public policy could not have

consented to the imposition of an injury on him by the accused, which resulted in Mr. Cooper having to get twelve

stitches to his head.

I am further satisfied that, on grounds of public policy, the courts could not permit the defence of consent to apply in this

case as to do so would be to enforce the purported agreement between the accused and Stephen Cooper. This

agreement, in my view, is illegal and could not be enforced on grounds of public policy as it endeavours to use force as a

means to force the prison authorities to transfer Mr. Cooper from the Portlaoise Prison. To allow enforcement or

recognition of such an agreement would be to undermine the proper governance of the prison and would therefore be

contrary to public policy and not in the public interest. Mr. Hennessy has argued that to take the issue of consent from

the jury would be to deny the accused of his constitutional right to a trial by his peers. I do not agree with this

contention. The accused has been afforded a jury trial and he has chosen to accept that he inflicted the bodily injury on

Mr. Cooper. He has sought to justify his actions on the grounds that Mr. Cooper consented to the infliction of such injury.

I am absolutely satisfied, for the reasons outlined already, that in the circumstances of the current case the defence of

consent is not available to the accused. . . ."

13. The reference to the case of Donnelly in the ruling of the learned trial judge is in fact a reference to the decision in the case of

Minister for Justice v. Dolny [2008] IEHC 326 which was then the subject of an appeal to the Supreme Court in 2009, Minister for

Justice v. Dolny [2009] IESC 48.

14. The jury was subsequently charged by the learned trial judge in accordance with his ruling.

A Brief Outline of the Submissions

15. The submissions on behalf of Mr. Brown centre on the construction of ss. 2 and 3 of the Act of 1997. It is argued that the phrase

"without the consent of another" used in s. 2 is unequivocal. Insofar as s. 3 uses the term "assault", it must be interpreted as having

the same meaning as in s. 2 and, that as an assault under s. 2 of the Act of 1997 specifically provides that it must take place

"without the consent of another", it is contended that an assault under s. 3, that is to say an assault causing harm, necessarily must

have the same meaning as an assault under section 2. Accordingly it is argued that absence of consent is a necessary ingredient of

the offence of "assault causing harm" contrary to s. 3 of the Act of 1997.

16. Counsel on behalf of Mr. Brown further contended that the provisions of s. 22 of the Act of 1997 (which preserved defences

available under the common law or statute) referred to in the judgment of the Court of Appeal had no relevance to the question of

construction of s. 3 of the Act of 1997.

17. Finally, submissions were made as to the role of public policy in relation to the interpretation of the legislation. Both the trial court

and the Court of Appeal relied on the concept of public policy in interpreting the provisions of the Act of 1997. In that context it was

argued on behalf of Mr. Brown that the approach to the question of public policy by the trial court and the Court of Appeal was at

odds with the public policy behind the legislation discernible from parliamentary debate in relation to the introduction of the legislation.

For that reason, it was submitted that it would have been appropriate in this case notwithstanding the general approach of the

courts to the question of parliamentary debates being used as a tool in aid of interpretation that the defence should have been

invited to make submissions on the issue of public policy by reference to the parliamentary debate in respect of the legislation.

18. The final argument made on behalf of Mr. Brown involved the decision of this Court in the case of Minister for Justice v. Dolny

[2008] IEHC 326 and [2009] IESC 48. That was a decision made in respect of a European Arrest Warrant concerning the doctrine of

equivalence. It was submitted on behalf of Mr. Brown that the decision of the Court in that case was wrong and should be re-visited.

19. Counsel on behalf of the DPP focused on the interpretation of the High Court and the Supreme Court in the case of Dolny. It was

contended that for this Court to now come to a view that Dolny should be departed from, it would be necessary for Mr. Brown to

meet a high threshold in establishing that the decision in Dolny is "clearly wrong" and that there are "compelling reasons" to depart

from it. Accordingly, it was submitted on behalf of the DPP that "assault" in s. 3 of the Act of 1997 means an act by a person done

intentionally or recklessly.

20. Insofar as it was sought to refer to and rely on parliamentary debate, together with ministerial statements when introducing

legislation, the DPP relied on the decision of this Court in the case of Crilly v. Farrington [2001] 3 I.R. 251.

21. The point was also made that there is a presumption against radical amendments and that the interpretation of ss. 2 and 3 of the

Act of 1997 as contended for by Mr. Brown would represent a radical amendment to the law concerning consent to the infliction of

injury upon oneself. If that was what was in fact intended by the legislation, it was submitted that this could only have been

achieved through language of greater clarity and certainty.

22. Finally on the issue of public policy, it is contended on behalf of the DPP that assault as defined preserves a public policy remit for

the courts which has been historically exercised on a case by case basis to determine on which side of the dividing line certain

matters fall in the context of, for example, contact sports, medical treatment/examination, diverse expressions of intimacy,

tattooing/body piercing, prizefighting, sado-masochistic acts, etc. Accordingly, even if this Court was of the view that the decision in

the case of Dolny was incorrect it was submitted that this Court should find that the courts retain a public policy remit which ensures

that "consent" does not become a device to render legal that which is demonstrably contrary to public policy.

Discussion and decision

23. Prior to the enactment of the Act of 1997 assault was a common law offence for which the penalty was specified in the Offences

Against the Person Act 1861 (the Act of 1861). The Act of 1861 contained a range of penalties depending on the seriousness of the

form of assault concerned. As Charleton, McDermott and Bolger wrote in their work Criminal Law about the Act of 1861, "This Act is

cast in outdated language which now contrasts with the modern formulation of the 1997 Act". They referred to the traditional

distinction that existed between assault and battery and at para. 9.03 of Criminal Law they wrote:

"The parameters of these two separate crimes are explained by East:

'An assault is any attempt to offer with force and violence to do a corporal hurt to another, whether from malice or

wantonness; as by striking at him, or even by holding up one's fist at him in a threatening or insulting manner, or

with such other circumstances as denote at the time an intention, coupled with a present ability of using actual

violence against his person; as by pointing a weapon at him within the reach of it. Where the injury is actually

inflicted, it amounts to a battery, (which includes an assault;) and this, however small it may be; as by spitting in a

man's face, or in any way touching him in anger without any lawful occasion. But if the occasion were merely

accidental and undesigned, or if it were lawful . . . it is no assault or battery in the law'."

24. It was pointed out by the authors at para. 9.05 that the word ‘battery’ has fallen out of use: "An assault that occurs by creating

the apprehension of immediate physical violence in the victim is now usually referred to as 'psychic assault'." They pointed out that

the distinction was no longer valid. The Act of 1997 was an attempt to codify the law in this area. Charleton et al. went on to

observe in relation to the Act of 1861 at para. 9.14:

"The elements of the offence are of great importance as a host of offences are built upon the proof of the commission of

an assault. The structure of these offences divides them into basic assaults aggravated either by the harm thereby done,

the nature of the intent of the accused, the status of the victim, or the circumstances of commission. There is no

rationality to the disparate collection of offences set out in the Offences Against the Person Act 1861, either in the

elements by which they are defined or in the range of sentences which they may attract. Some offences are obsolete.

Many more are cast in the language of a former age. The offences share the fact that they are built upon the base of the

crime of assault. Assault is thus available as an alternative verdict where the circumstances of aggravation or its

accompanying mental state are not proven."

25. Before leaving Criminal Law by Charleton et al. I propose to refer to two further passages at paras. 9.15 and 9.16 respectively in

which the learned authors discuss the issue of consent as a defence. It is said:

"The absence of consent is an element of some crimes. As such the proof of the absence of consent is an external

element which must be proved, as with every other element, beyond reasonable doubt by the prosecution. Rape and

indecent assault require that the victim did not consent to the sexual activity of which she complains. Usually, the only

issue at a trial on these offences is whether the victim consented or not. Where the victim is under a particular age, or

under a particular infirmity, the law has for policy reasons removed consent as an element of such crimes altogether. We

consider this further in the context of sexual offences in Chapter 8.

Consent may be a defence to a charge of assault. A victim cannot consent to an act which has as its purpose, or which

will have the effect of probably causing to him or her bodily harm. The reason is one of public policy; it is in the interest

of society at large that an individual is not always free to consent to certain harmful acts. A similar policy underpins the

law forbidding the consumption of dangerous drugs. Sometimes this common good will be apparent and other times there

is only a very thin line between conduct to which an individual may consent and conduct which will give rise to a criminal

liability regardless of the victim's consent. In K, the Court of Appeal of Saskatchewan held that violent and dangerous

conduct is excluded from the scope of an implied consent, even where there is express consent, because in law an

assault cannot be consented to where actual bodily harm is intended. On the basis of this and some Australian

precedents, it would seem that the dividing line may be between assault occasioning actual bodily harm and assault

occasioning grievous bodily harm or unlawful wounding. It is manslaughter to kill a person by an assault in which the

accused intends to hurt the victim or to cause him more than trivial harm. It would thus appear the policy of the law to

make non-trivial assaults unlawful. This would appear to be so despite consent. If two men wish to fight it should be done

under the controlled circumstances of sport."

26. It might be thought that those observations have no relevance following the updating of the law in relation to assault but it is in

this regard that the provisions of s. 22 of the Act of 1997 have some bearing. It provides as follows:

"(1) The provisions of this Act have effect subject to any enactment or rule of law providing a defence, or providing

lawful authority, justification or excuse for an act or omission.

(2) Notwithstanding subsection (1) any defence available under the common law in respect of the use of force within the

meaning of section 18 or 19, or an act immediately preparatory to the use of force, for the purposes mentioned in section

18 (1) or 19(1) is hereby abolished."

27. I will discuss the relevance of this section further in the course of this judgment. For the moment, it is sufficient to note that for

the purpose of what was known as common assault, absence of consent was an element of the offence and was therefore required

to be proved by the prosecution. In cases involving more serious assaults the absence of consent was not required to be proved by

the prosecution because it was contrary to public policy to permit a victim of an assault causing harm to consent to same, save that

in certain circumstances, consent may be a defence to an offence such as in the case of surgery or sporting activity.

28. It is now necessary to examine the role of consent in relation to the provisions of ss. 2 and 3 of the Act of 1997. It was

contended on behalf of Mr. Brown that the phrase "without the consent of another" governs both s. 2(1)(a) and (b) of that section.

Clearly, the absence of consent is an essential element in the proof of an offence contrary to s. 2 of the Act of 1997. It is then

contended that the term "assault" as used in s. 3 must be read as having the same meaning as in s. 2 of the Act and that,

accordingly, the absence of consent is an essential element of the offence of "assault causing harm" as defined in s. 3 of the Act of

1997. Reference was made in the course of submissions to Mason v. Leavy [1952] I.R. 40 in which Murnaghan J. stated:

"Where a statute such as the Rent Restrictions Act, 1946, defines its own terms and makes what has been called its own

dictionary, a Court should not depart from the definitions given by the statute and the meanings assigned to the words

used in the statute."

Reference was also made to Bennion on Statutory Interpretation (6th Ed., p. 1034) where it is stated:

"It is presumed that a word or phase is not to be taken as having different meanings within the same instrument, unless

this fact is made clear. Where therefore the context makes it clear that the term has a particular meaning in one place, it

will be taken to have that meaning elsewhere."

Essentially, it is contended that having repealed ss. 42 and 47 of the Act of 1861, the only statutory definition of "assault" in this

jurisdiction is that contained in s. 2 of the Act of 1997 and that "assault" in s. 3 must be interpreted as having the same meaning. For

that reason, counsel on behalf of Mr. Brown contends that in giving the judgment of the Court of Appeal, Mahon J. was wrong to

have said at para. 36:

"The drafting of these related sections, (to the extent that they both refer to assault), creates confusion as is evident

from this and other cases and might have been the subject of more careful drafting. It is nevertheless appropriate that

the offences described in ss. 2 and 3, respectively, should be treated as separate and distinct offences, as indeed should

the offence described in s. 4."

29. It was accepted that the offence created by s. 4 of the 1997 Act was clearly a separate and distinct offence and is "a

standalone offence" in that it has deliberately omitted the word "assault" from the section and thus has removed the issue of consent

from the offence of "causing serious harm" as provided for in s. 4 of the 1997 Act. Criticism was also made of a further statement to

be found at para. 21 of the judgment of the Court of Appeal where it was stated of s. 3 of the Act of 1997 as follows:

"It does not go on to expressly incorporate or repeat the detailed explanatory provisions of s. 2, and, more importantly, it

does not expressly state that the commission of the offence involves a lack of consent on the part of the victim."

30. In the course of argument, it was submitted on behalf of Mr. Brown that the Act of 1997 introduced a gradation of offences

having regard to the level of injury inflicted: hence the Act provides different sanctions accordingly. It was then argued that there

was a clear distinction between ss. 2 and 3 on the one hand and s. 4 on the other hand which involves the infliction of serious harm

given that s. 4 does not use the word "assault". This difference, it was argued, showed that the absence of consent was part of the

actus reus of assault under ss. 2 and 3 and that the policy of the legislation, as could be seen from the way in which the sections

were laid out, was that solely for an act causing serious harm absence of consent was removed from the actus reus of the offence.

In other words, it was contended that consent was irrelevant to the causing of harm contrary to section 4. In essence this

distinction marked the line of public policy as to when consent should be or, as the case may be, should not be an ingredient of the

relevant offence. Counsel on behalf of Mr. Brown referred to the Canons of Construction and to a number of authorities referred to

previously in support of their submissions. There was also discussion as to the question of public policy and the role of parliamentary

debate in considering public policy which led to the reference to the well known decision in the case of Crilly v. Farrington [2001] 3

I.R. 251.

31. Counsel on behalf of the DPP took a different view as to the interpretation of ss. 2 and 3 of the Act of 1997. Reliance was placed

to a significant degree on the decision of the High Court and subsequently by this Court in the case of Minister for Justice v. Dolny

referred to previously.

32. Dolny is a decision that arose in the context of a European Arrest Warrant. As was mentioned previously, it played a part in the

ruling of the trial judge which is at the heart of the issue in this case. Further, the decision in Dolny was considered in the judgment

of the Court of Appeal in this case. The issue considered in that case was the question of correspondence. Mr. Dolny was sought by

the Republic of Poland to serve a sentence of imprisonment following his conviction in that country for an offence. The offence was

described in the European Arrest Warrant as follows:

"On 20th June 2004 in . . ., acting together and in collaboration with . . ., he beat . . . by hitting him on the face and

head with his fists, thereby causing injury to his body in the form of a contused wound in the left suborbital area and a

contused wound in the area of the right superciliary ridge - thus exposing him to the direct danger of sustaining grievous

detriment to his health."

The question then arose as to whether the offence involved in that case was one which corresponded to an offence under the law of

this State in accordance with the provisions of s. 5 of the European Arrest Warrant Act 2003, as amended (the Act of 2003). At p. 5

of his judgment Peart J. having looked at the provisions of ss. 2 and 3 of the Act of 1997 considered an argument that lack of

consent was a necessary proof for an offence under s. 3 of the Act of 1997, as it was for an offence under s. 2 of the said Act.

Peart J. commented:

"In my view, this submission is wrong. The offences created respectively by s. 2 and s. 3 of the 1997 Act, are distinct

and different offences. An assault under s. 2 requires for its commission that the person assaulted did not consent to

being assaulted, as well as that the assault be inflicted without lawful excuse and intentionally or recklessly. The section

is clear in that regard. But the separate and distinct offence of 'assault causing harm' in s.3, contains no such

requirements. It is a separate offence, and it is not the case that s. 2 is intended to define the concept of 'assault' for all

purposes of the Act. There is no definition of assault contained in s. 1 of the 1997 Act, or elsewhere therein.

Section 3 provides for a freestanding offence of 'assault causing harm', as opposed to a simple assault. In order to be

guilty of this offence a person must have carried out an assault and must have caused 'harm' as defined in s.1 of the

1997 Act. In such an offence it is not part of the offence that it occurs without the consent of the victim. That is clear

from the plain meaning of the words used in the section. In s.3, the word 'assault' is not used as a term of art by

reference to the provisions of s. 2, or by reference to any statutory definition of that word. The Concise Oxford

Dictionary definition of 'assault' is 'a violent physical or verbal attack'. That is the meaning to be given to the word

'assault' for the purpose of the s.3 offence.

I note in passing that the offence 'assault causing serious harm' under s.4 of the 1997 Act, again includes a mental

element, namely, that the offence occurs where 'a person intentionally or recklessly causes serious harm to another'.

The requirement that the assault be without the consent of the victim, or that there be any mental element is distinctly

absent from the express provisions of the s.3 offence of assault causing harm. In my view the facts as outlined in the

warrant and which resulted in the conviction of the [appellant] in Poland, come within the words used in s.3 of the 1997

Act in order to create that offence, and in these circumstances, correspondence in accordance with s.5 of the Act, and I

am satisfied also that the minimum gravity requirement is satisfied also, since the offence is punishable by a fine, or by a

sentence of imprisonment of up to five years imprisonment, or both."

33. The Supreme Court upheld the decision of the High Court on the issue of correspondence. There was no detailed consideration of

the provisions of ss. 2 or 3 in the course of the judgment of this Court.

34. Given the reliance by the DPP on the Dolny decision in arguing that consent is not an element of the offence assault causing harm

contrary to s. 3 of the Act of 1997, it was contended that this Court should not depart from that decision. It was pointed out that

the circumstances in which this Court will depart from a previous decision are very exceptional. (See, for example, D.H. v. Groarke

and The Director of Public Prosecutions [2002] 3 I.R. 522).

35. By contrast counsel on behalf of Mr. Brown urged on this Court the view that the decision in Dolny was arrived at in error having

regard, inter alia, to the principles of statutory interpretation and that the decision should be re-visited by this Court.

36. As stated previously, the issue in Dolny arose in the context of a consideration of whether the Polish offence of which Mr. Dolny

had been convicted corresponded with an Irish offence as required by s. 5 of the Act of 2003. It was contended on behalf of Mr.

Dolny that the warrant did not indicate that what was alleged to have been done by Mr. Dolny was done "without the consent of the

victim" and that therefore there was no correspondence between the offence in Poland with the offence of assault causing harm

contrary to s. 3 of the Act of 1997. Peart J. in his judgment had observed that:

"The offences created respectively by s. 2 and s. 3 of the 1997 Act, are distinct and different offences."

37. There is no difficulty in accepting the proposition that ss. 2 and 3 of the Act of 1997 create separate and distinct offences.

Clearly they must do so as the penalty for an offence contrary to s. 2 is much less than the penalty for an offence under s. 3 of the

Act of 1997. A s. 3 assault involves causing harm unlike a s. 2 assault. Leaving aside those somewhat trite observations, is there any

other basis for distinguishing assault as understood and defined in s. 2 from assault in the context of section 3? It is at this point,

however, that I have concern as to the view that the provisions of s. 3 of the Act create a "freestanding offence" of "assault causing

harm" which is completely distinct from the concept of assault within the meaning of s. 2 of the Act. The Act of 1997 in its

interpretation section does not provide a single definition of the word "assault". Such a definition is to be found in s. 2 of the Act.

Section 20 of the Interpretation Act of 2005 provides:

"Where an enactment contains a definition or other interpretation provision, the provision shall be read as being applicable

except in so far as the contrary intention appears in -

(a) the enactment itself, or

(b) the Act under which the enactment is made."

In the case of The State (McGroddy) v. Carr [1975] I.R. 275 at p. 285 it was stated by Henchy J. that:

". . . when expressions are repeated in the same instrument, and more especially in a particular part of the same

instrument, they should be given a common force and effect unless the context requires otherwise."

38. Given those principles of interpretation, it seems to me to be difficult to see any basis as to how the word "assault" as used in s.

2 of the Act of 1997 could have a different meaning or interpretation in s. 3 of the Act. It is difficult to understand or accept the

approach of the High Court in resorting to an examination of a dictionary definition of "assault" in order to ascribe a different meaning

to the word "assault" as used in s. 3 of the Act of 1997. To that extent I disagree with the conclusion of the learned trial judge in the

Dolny case to the effect that the meaning to be given to the word "assault" for the purpose of a s. 3 offence is "a violent physical or

verbal attack". I therefore conclude that the word "assault" as used in s. 3 has the same meaning as "assault" in section 2.

39. The fact that I have come to the conclusion that the word "assault" as defined in s. 2 of the Act must have the same meaning in

s. 3 of the Act does not resolve the issues in this case. The next task is to examine the provisions of ss. 2 and 3 of the Act of 1997

more closely with a view to ascertaining precisely the definition of assault to be found in section 2. It seems to me that s. 2 of the

Act of 1997 does two things. It sets out the ingredients of the offence of assault that have to be established by the prosecution

before someone can be convicted of the offence of assault. Thus, the act involved is one done "without lawful excuse, intentionally

or recklessly" and "without the consent of another". The second function of s. 2 is to explain what must be done to constitute an

assault. An assault is when a person "directly or indirectly applies force to or causes an impact on the body of another, or causes

another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact". That is

the definition of assault. Of course, the offence of assault is not committed unless the other elements referred to above are present,

including the absence of consent. Section 2(2) provides a definition of "force" as used in s. 2(1) as previously set out. It would also

be helpful to bear in mind the provisions of s. 2(3) which to some extent reinforces my view as to the interpretation of section 2(1).

It provides:

"No such offence is committed if the force or impact, not being intended or likely to cause injury, is in the circumstances

such as is generally acceptable in the ordinary conduct of daily life and the defendant does not know or believe that it is

in fact unacceptable to the other person."

40. Actual force or impact, or in the alternative, the belief that one is likely to be immediately subjected to such force or impact is

necessary for there to be an assault. The other elements referred to in s. 2(1) are necessary to constitute the offence of assault and

relate to the intention in which the accused subjects the other to "force or impact" or the circumstances in which this occurs.

41. What then of section 3? The first point to note is that s. 3(1), which makes assault causing harm an offence, is terse in its

description of the offence. It does not give any definition of what is meant by the word "assault" and as I have already said I see no

reason for concluding that it means anything different to "assault" as used in section 2(1). "Harm" is defined in s.1 of the Act of 1997

as follows: ""harm" means harm to body or mind and includes pain and unconsciousness". Charleton et al. in Criminal Law made the

following observation about consent (para. 9.87):

"Since the requirement of an absence of consent of the victim is not included as an element of the offence of assault

causing harm, as defined by s 3, it becomes strongly arguable that a person may consent to assaults up to a level where

those physically or psychically harm him or her. Harm, in this context, it is submitted, must mean more than trivial or

trifling annoyance or pain".

42. Whereas the absence of consent is referred to expressly as an element of the offence to be found in s. 2 of the Act, the absence

of consent is not expressly referred to as an element of the offence in relation to section 3.

43. In the course of their submissions, counsel on behalf of Mr. Brown made reference to McAuley & McCutcheon in Criminal Liability

(2000) where the authors at p. 532 observed:

"The extent to which the Non-Fatal Offences Against the Person Act 1997 has modified the common law on consensual

force has yet to be determined. Section 2 expressly makes lack of consent part of the actus reus of assault and this

definition must be carried into section 3 which provides the offence of assault causing harm."

44. It is interesting in this context to look at what the authors in that work went on to say and I propose to refer to a passage from

the book at some length. They said:

"Thus it seems to follow that consent of the complainant will absolve an accused of liability for the offences of assault

and assault causing harm. 'Harm' is defined in section 1 as meaning: ‘harm to body or mind and includes pain and

unconsciousness’. This definition broadly corresponds with ‘actual bodily harm’ under the 1861 Act and it accommodates

the recent recognition that psychological harm can amount to bodily harm. But if consent is a defence to assault causing

harm it would follow that the threshold has been increased beyond that tolerated by the common law rule. Consent is not

a definitional element of the offence of causing serious harm under section 4 and this would now appear to be the new

threshold. However, the magnitude of the potential change is evident when the definition of serious harm is considered.

That is defined, in section 1, as ‘injury which creates a substantial risk of death or which causes serious disfigurement or

substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or

organ’. This is a more restrictive definition than that attributed to ‘grievous bodily harm’ and thus the threshold would

appear to be set at life threatening injuries or maiming. This, of course, would easily accommodate the force inflicted in R

v. Brown.

It must be questioned whether that was the intention of the Oireachtas when it enacted the 1997 Act. A liberalisation of

the law might well have been contemplated but it is debatable whether it was intended that the old law be replaced by so

high a threshold. Nevertheless as a matter of literal interpretation this conclusion seems inevitable. Doubt, however, is

thrown on this interpretation by section 22 which states that "The provisions of this Act have effect subject to any

enactment or rule of law providing a defence, or providing lawful authority, justification or excuse for an act or omission'.

While consent relates to the definitional element of the offences of assault and assault causing harm, rather than being a

defence in the strict sense, there is evidence that it was contemplated that section 22 would preserve the law of

consent. The explanatory memorandum accompanying the Bill expresses the view that section 22 ensures the

continuance of 'The common law rules under which bodily harm caused with consent in the course of sports, dangerous

exhibitions or medical treatments will apply to exempt the actor from criminal liability'. But these cases were exceptions

that the common law recognised and they pre-suppose the applicability of the general rule that sets the lower threshold.

If this still is the law, as the explanatory memorandum suggests, it cannot be reconciled with the literal interpretation of

sections 2, 3 and 4. Thus the courts will be called upon to resolve a dilemma that should have been anticipated and

solved at the legislative stage."

45. Reference was made in the course of that passage to the decision of the House of Lords in the case of R. v. Brown [1993] 2 All

E.R. 75. That was a case which involved a group of homosexual men who engaged in consensual sadomasochistic activities. It

appears that no long-lasting injuries were inflicted. "Actual bodily harm" and "wounds" were inflicted but the argument was made that

the consent of the participants was such that the defendants could not be guilty of an assault occasioning actual bodily harm or

unlawful wounding in respect of acts carried out in private with the consent of the victims. The majority in that case concluded that

the convictions should be upheld. They took the view that consent is not a defence where the force involved was intended or

calculated to inflict actual bodily harm. Lord Templeman in the course of his opinion at p. 78 stated:

“When no actual bodily harm is caused, the consent of the person affected precludes him from complaining. There can be

no conviction for the summary offence of common assault if the victim has consented to the assault. Even when violence

is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be

acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating.

Surgery involves intentional violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity.

Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful

notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear

piercing and violent sports including boxing are lawful activities."

In the same case Lord Jauncey stated at p. 90 of the judgment:

"In my view the line properly falls to be drawn between assault at common law and the offence of assault occasioning

actual bodily harm created by s. 47 of the 1861 Act, with the result that consent of the victim is no answer to anyone

charged with the latter offence or with a contravention of s. 20 unless the circumstances fall within one of the well

known exceptions such as organised sporting contests and games, parental chastisement or reasonable surgery."

46. That decision makes clear that the position at common law was such that as a general proposition, consent was not a defence to

the offence of assault occasioning actual bodily harm created by s. 47 of the Act of 1861. Nevertheless, at common law there were

recognised certain exceptions to that general rule.

47. Quite clearly, McAuley and McCutcheon in the passage referred to above have identified some of the difficulties with the

interpretation of ss. 2 and 3 of the Act of 1997. As the authors recognised, the effect of the interpretation which is contended for by

counsel on behalf of Mr. Brown in this case, namely that consent is a "definitional element" of the offence of assault causing harm, is

at odds with the possibility of relying on consent as a defence to a charge pursuant to s. 3 of the Act and cannot be reconciled with

the provisions of s. 22 of the Act. Given that the common law always recognised certain circumstances which permitted a defence of

consent to be relied on, could it be that the legislature on the one hand intended to make absence of consent an ingredient of the

offence of assault under s. 3 whilst at the same time providing that consent would be a defence to a charge of assault under section

3? As the word “assault” in ss. 2 and 3 must have the same meaning, it seems to me that the use of the word “assault” in s. 3

imports the elements of the offence as set out in s. 2 of the Act of 1997. This is undoubtedly a departure from the common law

position as is clear from the passages cited from R. v. Brown referred to above and does mean that the threshold in relation to

consent has changed from the common law position where it was possible to consent to common assault but not possible to consent

to any form of assault above that level save as provided for in the well-known exceptions such as medical treatment or sporting

activities referred to previously. I am thus reinforced in my view that the decision in Dolny to the effect that “it is not part of the

offence that it occurs without the consent of the victim” cannot be correct. Bearing in mind that this conclusion as to the

interpretation of s. 3 is a change in the common law position that pertained until the Act of 1997, it would have been preferable if this

had been clearly and expressly spelt out in the legislation. Be that as it may, I am satisfied that absence of consent is an ingredient

of the offence of assault causing harm contrary to s. 3 of the Act of 1997. I am of the view that s.22 of the Act of 1997 cannot have

had the effect of re-importing the defence of consent into the provisions of ss. 2 and 3, given that absence of consent is an element

of the offence under each section. That is not to say that s. 22 of the Act of 1997 is of no practical effect. It appears to me to

ensure that consent may be a defence to an offence under s. 4, by reference to the long established common law exceptions.

48. This brings me to the issue of public policy. There was some debate on the issue of public policy but that turned on the extent to

which public policy could be discerned by the courts in circumstances where the public policy asserted by the courts was said to be

at variance from that articulated in the Oireachtas during the debate on the Bill. That raised the issue as to introduction of Dáil

debates to support the contentions of Mr. Brown as to public policy. That aspect of the debate as to public policy is no longer

relevant as I accept the contention on behalf of Mr. Brown as to the interpretation of the Act of 1997.

49. It will be recalled that a further ingredient of the offence of assault is that the act concerned is committed "without lawful

excuse". A consideration of what may or may not be a lawful excuse will give rise to a consideration of public policy. Given that the

absence of consent is a necessary ingredient of the offence of assault causing harm, could consent to an assault in furtherance of an

unlawful purpose ever be taken into consideration in deciding whether someone is guilty or not of the offence contrary to s. 3 of the

Act of 1997? It is necessary to bear in mind the evidence as to the nature of the assault in question and the fact that it is alleged to

have occurred in circumstances where Mr. Brown alleges that he was requested by the injured party to assault him for the purpose of

trying to facilitate his early release from prison in exchange for a sum of money together with information and documents. This was

denied by the injured party.

50. Section 22 of the Act of 1997 must also be considered in this context. It expressly provides that “the provisions of this Act have

effect subject to any enactment or rule of law providing a defence, or providing lawful authority, justification or excuse for an act or

omission”. The common law defence of consent was not available in every circumstance as is clear from the case law. In this context,

the passages cited above from R. v. Brown illustrate the point. In parenthesis, it might be observed that activities of a sado-

masochistic nature, such as those at issue in R. v. Brown, between consenting adults in private, provided they did not go beyond the

level of causing harm, could now be viewed in a different light in this jurisdiction by reason of changes to the Constitution together

with the changes brought about by the Act of 1997.

51. Further, it has long been recognised that consent is recognised as a defence in the case of surgery. As Charleton et al. explained

at paras. 9.23 and 9.24:

“There is a clear common good in performing surgical procedures where the benefit of the medical treatment outweighs

any burdens that may be caused to, or risks undergone by, the patient. This is so even though almost any surgical

procedure will cause at least grievous bodily harm. Consent to such a procedure will render it lawful where it is carried out

by a suitably qualified person and for a legitimate medical purpose. A surgeon will, further, have no intent to do harm, or

will not be reckless that such harm will result, and so such element of individual assault charges will be missing. A reckless

state of mind is incompatible with a public benefit. More difficult questions arise where a person is unable to consent, but

this will frequently constitute a case of necessity.

Where a person is able to consent to medical treatment but chooses not to, any forcible application of that treatment will

clearly constitute an assault."

52. Likewise, the position has been recognised in relation to sporting activity that consent may be a defence. Thus Charleton et al.

commented at para. 9.26:

"It is generally accepted that once participants in sporting activities keep within the parameters of lawful behaviour

acceptable within the context of that sport, they are taken to consent to the risks inherent in those activities. Consent is

a question of degree depending upon the circumstances."

53. It may be observed that the situations in which the law traditionally recognised a defence of consent to assault causing harm

were those which, in general, reflected the benefits of the activity involved for society in general. Where harm was caused it could be

consented to provided it came within one of the exceptions recognised at common law. The threshold for consent may have moved

by reason of the changes brought about by the Act of 1997 but one element of the offence which remains is, that as part of the

actus reus of the offence, it must be established that what occurred was something done “without lawful excuse”. This imports into

the offence of assault and assault causing harm a consideration of the circumstances in which the offence is alleged to have

occurred.

54. In the course of the discussion on the subject of consent McAuley and McCutcheon refer to a Canadian case, R. v. Jobidon

[1991] 66 CCC (3D) 454, a decision of the Supreme Court of Canada where the "fair fight" defence was rejected. That case

concerned a situation where the accused had been charged with manslaughter, through the offence of assault, following a fist fight

which started in a bar. Ultimately the parties went outside the bar and continued to fight in the parking lot. Unfortunately, the victim

was struck in the head and ultimately died. At trial, the accused was found not guilty of manslaughter as the trial judge held that the

victim's consent to a "fair fight" negated assault. The Court of Appeal set aside the acquittal and substituted a guilty verdict and the

matter was then appealed to the Supreme Court of Canada which rejected the appeal. The issue before the Court was whether

absence of consent is an element which must be proved by the Crown in all cases of assault under s. 265 of the Criminal Code or

whether there were criminal law limitations which restrict or negate the legal effectiveness of consent in certain types of cases.

Section 265(1)(a) of the Canadian Criminal Code provides that an assault occurs when "[w]ithout the consent of another person, he

applies force intentionally to that other person, directly or indirectly". It was further provided that the section concerned applies to

"all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and

aggravated sexual assault". Thus, absence of consent was a necessary ingredient in the charge before the Court. It was argued in

that case that it was not in the public interest that people should engage in street brawls or fist fights and thus on public policy

grounds, it was the view of the prosecution that the word "consent" in s. 265 of the Criminal Code should be read in light of the

common law, which limits its applicability as a defence to assault. The prosecution noted that fist fighting is without social value and

has been outlawed in other common law jurisdictions. The Supreme Court of Canada in that case embarked on a considerable analysis

of the law in relation to assault both in Canada and in the courts of the United Kingdom. Ultimately the Court, in the judgment of

Gonthier J. at pp. 39 to 47, stated:

"How, and to what extent is consent limited? The law's willingness to vitiate consent on policy grounds is significantly

limited. Common law cases restrict the extent to which consent may be nullified; as do the relevant policy considerations.

The unique situation under examination in this case, a weaponless fist fight between two adults, provides another

important boundary.

The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between

adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight

or brawl. (This test entails that a minor's apparent consent to an adult's intentional application of force in a fight would

also be negated). This is the extent of the limit which the common law requires in the factual circumstances of this

appeal. It may be that further limitations will be found to apply in other circumstances. But such limits, if any, are better

developed on a case by case basis, so that the unique features of the situation may exert a rational influence on the

extent of the limit and on the justification for it.

Stated in this way the policy of the common law will not affect the validity or effectiveness of freely given consent to

participate in rough sporting activities, so long as the intentional applications of force to which one consents are within

the customary norms and rules of the game. Unlike fist fights, sporting activities and games usually have a significant

social value; they are worthwhile….

There is also nothing in the preceding formulation which would prevent a person from consenting to medical treatment or

appropriate surgical interventions. Nor, for example, would it necessarily nullify consent between stuntmen who agree in

advance to perform risky sparring or daredevil activities in the creation of a socially valuable cultural product. A charge of

assault would be barred if the Crown failed to prove absence of consent in these situations, in so far as the activities

have a positive social value and the intent of the actors is to produce a social benefit for the good of the people

involved, and often for a wider group of people as well. This is a far cry from the situation presented in this appeal, where

Jobidon's sole objective was to strike the deceased as hard as he physically could, until his opponent either gave up or

retreated. Fist fights are worlds apart from these other forms of conduct.

Finally, the preceding formulation avoids nullification of consent to intentional applications of force which cause only minor

hurt or trivial bodily harm. The bodily harm contemplated by the test is essentially equivalent to that contemplated by the

definition found in s. 267(2) of the Code, dealing with the offence of assault causing bodily harm. The section defines

bodily harm as 'any hurt or injury to the complainant that interferes with the health or comfort of the complainant and

that is more than merely transient or trifling in nature'."

55. That case is significant in making it clear that apart from the statutory provisions, the common law had set limits on the types of

harmful actions to which one can validly consent. Just as s. 22 in our jurisdiction preserves the common law rules in relation to

defences or providing lawful authority, justification or excuse for an act or omission, the Canadian Criminal Code also provided that

common law principles continued to apply to the extent that they were not inconsistent with the Code or other Act of Parliament.

While that decision focussed on the definition of "bodily harm" contained in the Criminal Code, it is a useful reminder of the role that

common law principles may have to play in any given case.

56. Finally, in this context, it would be useful to refer to the decision in the case of R. v Donovan [1934] 2 K.B. 498 in which Swift J.

made the following observation at p. 507:

“If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the

person to whose detriment it is done consents to it. No person can license another to commit a crime. So far as the

criminal law is concerned, therefore, where the act charged is in itself unlawful, it can never be necessary to prove

absence of consent on the part of the person wronged in order to obtain the conviction of the wrongdoer.”

Thus, it is apparent that in some instances the circumstances in which an assault causing harm is committed may vitiate the consent

given to the infliction of harm. It clearly cannot be the case that one could consent to an assault causing harm in furtherance of a

criminal act. For example, if two parties engage in a staged road traffic collision thereby causing injury for the purpose of enabling one

of the parties to claim damages for personal injuries, if the party causing the collision was subsequently prosecuted for assault

causing harm, how could that person be allowed to rely on consent to say that he/she should not be convicted. Likewise, if an

individual asked another person to injure them so that, once injured, the individual concerned could claim a social welfare benefit in

respect of the injury inflicted, could consent prevent a successful prosecution against the person inflicting the injury? It seems to me

that the answer to these questions can be found by looking at the circumstances and the purpose of the act for which the consent

was given. The nature of the alleged agreement in this case does not come within any of the recognised exceptions which would

have permitted a defence of consent to be relied on under the 1861 Act. The agreement between the parties as alleged is one

intended to deceive the prison authorities into a situation where the alleged victim would be, potentially, the beneficiary of an early

release from prison. In exchange, Mr. Brown was to receive a sum of money, sensitive information and documentation. Under no

circumstances could this ever have been a lawful purpose. The disclosure of such material by a former member of the Gardaí could not

have been lawful. In circumstances such as these, consent quite simply could not be relied on as a defence to a charge of assault

causing harm. It seems to me that the alleged consent in this case could not be relied on by Mr. Brown to negate the absence of

consent in respect of a charge contrary to s. 3 of the Act of 1997. In short, consent to an assault causing harm for an unlawful

purpose is no consent.

57. This situation is not without parallel. It was recognised at common law that consent in respect of an unlawful activity could not

be given. See in this context R. v. Coney [1882] 8 QBD 534, a case about prize fighting where the Court of Criminal Appeal concluded

that whilst one could consent to assault, one could not give an effectual consent to conduct which amounts to a breach of the

peace. Thus, the illegal aspect of the conduct involved meant that one could not give an effectual consent. (See Boxing, The

Common Law and the Non-Fatal Offences against the Person Act 1997 [2002] 12 I.C.J.L.15 by Brian Foley). In the area of some

sexual offences, absence of consent is an ingredient of the offence concerned. For example, in certain situations, having regard to

the age of the person against whom it is alleged an offence has been convicted, the law recognises that individuals under a certain

age do not have the capacity to consent. (See for example s. 2 of the Criminal Law (Sexual Offences) Act 2006, as amended which

provides at s. 2(1): "A person who engages in a sexual act with a child who is under the age of 15 years shall be guilty of an offence

and shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment". Section 2(6) provides: "It

shall not be a defence to proceedings for an offence under this section for the defendant to prove that the child against whom the

offence is alleged to have been committed consented to the sexual act of which the offence consisted."). In such circumstances, the

Oireachtas has chosen to specifically provide that consent shall not be a defence to such an offence. Equally, it is recognised that

certain complainants simply do not have the capacity to consent. McAuley and McCutcheon observe at p. 513 (op.cit) as follows:

"A complainant who is incapable of consenting by reason of some personal characteristic lacks capacity. This could be

due to a transient factor, such as intoxication, sleep or concussion. These factors cause little difficulty since it is obvious

that any complainant who falls into one of those states is incapable of consenting. By the same token, it is clear that

some individuals are incapable of consenting because of their youth, immaturity or mental incompetence."

58. It is understandable therefore that in the case of a charge of rape involving a minor of say ten years of age, even though the

absence of consent is an ingredient of the offence of rape, the law recognises that a child of that age does not have the capacity to

consent. Indeed, this is reflected in the offences created in the Criminal Law (Sexual Offences) Act 2006, as amended, to which I

have already referred.

59. The Act of 1997 has modernised and updated the law in relation to non fatal offences against the person. Some offences under

the Act of 1861 have disappeared, eg. placing a man trap contrary to s. 31 of the Act of 1861. New offences have been introduced,

e.g. those in relation to the use of syringes (see s. 6 of the Act of 1997). The Act of 1997 has changed the law by introducing the

absence of consent as an ingredient to the offence of assault causing harm. However, the fact that the law has changed to that

extent does not mean that the Oireachtas has provided that in all cases that an act which has the effect of hurting or causing harm

to someone can be committed as long as there is consent. That was never the law. It was always a crime to hurt someone but the

law recognised that in certain circumstances which have been discussed above, such as in the case of surgery or sporting activity,

consent would be a defence or alternatively, in certain circumstances the absence of consent was an element of the offence required

to be established by the prosecution. If the Oireachtas had intended to introduce a radical change in the law to the effect that

consent would render lawful the infliction of harm on someone no matter what the circumstances, one would expect to have seen

that clearly stated in the legislation. There were exceptions provided in the law for particular situations in which one could consent to

the harm being inflicted. Outside those exceptions, the infliction of harm was unlawful. That which is unlawful cannot be made lawful

simply by the presence of consent without regard to the circumstances in which the consent is given. Equally, to be effective, a

consent must be a valid consent. For example, a consent obtained by fraud is no consent. While the obligation on the prosecution

under s. 3 is to establish the absence of consent, a consent to an act which would be unlawful is not a consent. In this case, the

consent is one which cannot be recognised in law because the consent, if given, was given for an unlawful purpose and it would be

contrary to public policy to allow an accused to rely on a consent which is in furtherance of an unlawful purpose. Such a consent

would never have been recognised at common law. Notwithstanding the changes brought about by s. 3 of the Act of 1997, a consent

given for an unlawful purpose could not excuse what would otherwise have been an unlawful act.

60. I have had the advantage of reading the judgment of McKechnie J. in this matter in draft form and as he has pointed out in para.

144, we are in agreement up to a certain point on the interpretation of ss. 2 and 3 of the Act of 1997. We part company on the

question of public policy and the extent to which the Act of 1997 has amended the law on consent. Can a person consent to all forms

of assault causing harm or are there circumstances in which the Act of 1997 limits the consent to a consent which is lawful? As I

have indicated above, a consent, in order to be valid, must be given freely for a lawful purpose. Otherwise, it is immaterial.

61. It is undoubtedly the case that the Act of 1997 was a long overdue exercise on the part of the Oireachtas to update the law

given the complexity of the Act of 1861, not to mention the outdated nature of some of the offences contained therein as described

previously. However, if the Act of 1997 was intended and understood to have effected the radical change described in the judgment

of McKechnie J. so that consent to assault causing harm in all cases negates the commission of an offence, including those where the

consent was given for an ulterior, unlawful purpose, it is undoubtedly the case that such a radical amendment to the law would have

to have been spelt out clearly by the Oireachtas. In my view, that has not been done and for that reason I respectfully disagree with

McKechnie J. on this aspect of his judgment and with the conclusion he has reached.

Conclusions

62. I would conclude as follows:

1. Assault as used in s. 2 and s. 3 of the Act of 1997 has the same meaning.

2. The concept of consent provided for in s. 2(1)(a)(b) of the Act of 1997 is not removed from s. 3(1) of the Act. Section

2 and s. 3 of the Act of 1997 are separate and distinct offences but insofar as they both use the word "assault", that

word has the same meaning in both sections.

3. The question as to whether or not courts can dictate public policy contrary to the express intentions of the legislature

does not arise.

63. For the reasons set out above I cannot agree with the conclusion of the Court of Appeal to the effect that absence of consent is

not a necessary ingredient in a s. 3 assault.

64. In this case, the learned trial judge did not allow the issue of consent to go to the jury. The basis of the ruling may have been

erroneous but the nature of the consent in this case was such that it was unlawful and therefore, there was no effectual consent.

Accordingly, the conviction can stand and I would dismiss the appeal.