IESC 67 · Supreme Court

THE SUPREME COURT

[Supreme Court Appeal No: 46/2017]

McKechnie J.

MacMenamin J.

Dunne J.

O’Malley J.

Finlay Geoghegan J.

BETWEEN:

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

GERARD BROWN

APPELLANT

JUDGMENT of Ms. Justice Iseult O’Malley delivered the 21st of December 2018

1. I agree with Dunne J. that the appeal should be dismissed and wish only to add a few observations in respect of certain

suggestions made by McKechnie J.

2. It may be helpful to stress the matters on which all the members of the Court are in agreement. We accept that the appellant’s

analysis of the relationship between s. 2 and s. 3 of the Non-Fatal Offences Against the Person Act 1997 (hereafter “the Act of

1997”) is correct, and that the absence of consent is an ingredient of a charge under s. 3. The dicta to the contrary in Minister for

Justice, Equality and Law Reform v Dolny [2009] IESC.48, [13] are, accordingly, to be seen as incorrect. Further, it is accepted that

the impact of this provision is that an individual may give effective consent to an assault that causes harm up to the threshold for an

offence under s. 4. It may well be that cases such as R. v Brown [1994] 1 A.C. 212 would be decided differently here under the Act

of 1997, especially since considerations of privacy and autonomy would be involved. The point at which the members of the Court

differ is on the question whether consent may be vitiated, or rendered legally ineffective, by circumstances such as the presence of

an ulterior unlawful objective. That, and not the previous common law rule that rendered consent irrelevant in the case of actual

bodily harm, is the public policy issue to be determined here.

3. I think that it is also helpful to bear in mind the provisions of s. 18 of the Act of 1997. This section enumerates five sets of

circumstances in which the use of subjectively reasonable force will not constitute an offence. In brief summary, they are: the

protection of oneself or another; the protection of property; and the prevention of crime or a breach of the peace. It has not been

argued in this case, and I do not wish to be taken as holding, that this provision is entirely exhaustive of the circumstances in which

force may lawfully be used but it is, in the first instance, an indication of the policy of the legislature on the issue. Its relevance also

lies in the fact that it gives central importance to the subjective motivation of the person using the force.

4. The assessment of the lawfulness or criminality of the use of violence has always involved an assessment of the purpose of the

action and motivation of the actor, in the circumstances as they pertained at the relevant time. Self-defence is one example – the

court considers the factual circumstances, the perception of those circumstances by the accused and the intentions of the accused

in doing what he or she did. Depending on the outcome of that assessment, the accused may be entitled to a full acquittal on a

charge of assault or homicide. Alternatively, he or she may succeed in reducing a charge of murder to manslaughter. It is clear,

therefore, that a defined act of violence can only be described as lawful or unlawful by reference to the facts of the case and the

motivation of the accused.

5. The argument put forward by the appellant, which has found favour with McKechnie J. and Finlay Geoghegan J., is that an accused

cannot be convicted of the offence under s. 3 if there was consent on the part of the alleged victim, and that the purpose of the

consent is irrelevant. Should this argument be accepted, it would have very significant consequences for the operation of other

important statutory provisions that have the objective of controlling violence against the person. The question of the lawfulness of

consensual fighting in public has been raised, and McKechnie J. suggests that the provisions of ss. 14, 15 and 16 of the Criminal

Justice (Public Order) Act 1994 as amended (hereafter “the Act of 1994”) are available “in principle”. I respectfully disagree.

6. The offences of riot (s.14), violent disorder (s.15) and affray (s.16) are statutory offences, designed to replace the common law

offences of riot, rout and affray. They are all predicated upon the use, or threatened use, of “unlawful” violence to an extent that

would cause a (real or hypothetical) person of reasonable firmness, present at the scene, to fear for his or another person’s safety.

All can be committed in a public or a private place. The differences between the three offences are that riot requires a minimum of

twelve persons using or threatening unlawful violence for a common purpose; violent disorder requires a minimum of three persons

using or threatening unlawful violence, who need not be acting either in concert or against each other; and affray arises where two

or more persons use or threaten violence towards each other and the violence so used or threatened on the part of any accused

person is unlawful.

7. Consider a straightforward example of two men who fight each other outside a public house. They are charged with affray, and

both raise the defence that each agreed to fight the other. If that consent means that a charge of assault cannot be made out, in

the event that physical harm was actually caused by violence, in what sense could it be “unlawful” to have used that violence? The

fact that fear was occasioned to bystanders would be irrelevant unless the element of unlawfulness could be established. How could

it be proved, unless it could be said that the unlawfulness lay in the intentions of the participants to hurt each other as best as they

could? Similar considerations could arise in relation to violent disorder and to riot.

8. It is true that the participants might be found guilty of engaging in threatening, abusive or insulting behaviour in a public place (s.6

of the Act of 1994), depending on the location of the incident. That is a summary offence with a maximum sentence of three months.

It seems to me that the distress and fear caused to customers and staff in restaurants, bars and other places of evening

entertainment, or to the residents of a street, when an outbreak of violence takes place, would scarcely be met by reliance on this

measure.

9. McKechnie J. also refers to the offence of endangerment, created by s. 13 of the Act of 1997. Endangerment is the intentional or

reckless engaging in conduct which creates a substantial risk of death or serious harm to another. It requires, therefore, an action

that creates a risk of very significant harm and, on the face of it, is not suitable for deployment in what could be considered “normal”

assault cases. It carries a maximum sentence of seven years, and is accordingly a more serious offence than assault under s.3 of the

Act of 1997. In DPP v Cagney and McGrath [2007] IESC 46, this Court expressed a clear view that it is undesirable to charge

endangerment where the facts give rise to a more specific charge such as assault.

10. The issue here is whether the Oireachtas had intended, by amending the law as to consent in less serious assaults, to create a

situation where the use of force is legitimised in all cases by consent on the part of the alleged victim. If it did, it would have the

potential effect of legitimising consensual fighting to a surprising extent. In my view express language would have been used if that

was the intended result.