Supreme Court allows appeal holding consent is a valid defence to assault causing harm under section 3 of the 1997 Act.

THE SUPREME COURT

[Appeal No. 46/2017]

[Court of Appeal Record No. 273/2015]

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 Mr. Justice William M. McKechnie delivered on the 21st day of December, 2018

Introduction

1. The central issue arising on this appeal can be simply stated: is a lack of consent a necessary element of a charge of assault

causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997 (“the 1997 Act”)?

2. On the 20th May, 2014, Mr Gerard Brown assaulted one Stephen Cooper at Midlands Prison, Dublin Road, Portlaoise, with the result

that Mr Cooper suffered a serious head injury requiring a number of stitches. Both men were prisoners in the prison at the time. Mr

Brown was charged with assault causing harm, contrary to section 3 of the 1997 Act. At trial, it was not disputed that such assault

had occurred or that Mr Brown was the assailant. Rather, the defence put forward on his behalf was one of consent: he said that Mr

Cooper had requested Mr Brown to attack him in order to orchestrate Mr Cooper’s transfer to another prison. Following legal

submissions on the matter, the trial judge refused to allow this defence to go to the jury, holding that consent cannot constitute a

defence to a charge under section 3 of the 1997 Act. Mr Brown was duly convicted by a jury at Portlaoise Circuit Criminal Court and

was sentenced to three years of imprisonment, consecutive to his current sentence. His conviction was upheld by the Court of

Appeal ([2016] IECA 405), which affirmed that consent is not a defence to a charge under section 3. He now appeals that judgment

to this Court.

3. The manner in which the appeal was argued on Mr Brown’s behalf essentially boils the matter down to one of statutory

interpretation. The Court has also been presented with arguments as to the extent to which it is necessary to grapple with public

policy in construing sections 2 and 3 of the 1997 Act, and to a lesser extent the appeal raises an issue as to whether it is appropriate

to have regard to ministerial pronouncements or Dáil debates when assessing said public policy concerns. From the perspective of the

Director of Public Prosecutions, Mr Brown’s case requires the Court to depart from its own decision in The Minister for Justice, Equality

and Law Reform v. Damian Dolny [2009] IESC 48, and the DPP questions whether the requirements for doing so have been satisfied.

Relevant Statutory Provisions

4. Fundamentally, this case concerns the interpretation of sections 2 and 3 of the 1997 Act. It may therefore be helpful to set out

these provisions in full at the outset. Section 2 provides as follows:

“2. Assault

(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

[€2,500] or to imprisonment for a term not exceeding 6 months or to both.”

5. Section 3 creates a more serious offence. It states that:

“3. Assault causing harm

(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 [€2,500] 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.”

Harm is defined in section 1 as meaning “harm to body or mind and includes pain and unconsciousness”.

6. Some discussion was also directed to section 4 of the 1997 Act. It creates another offence, sometimes said to be an “assault-

type” offence and often colloquially referred to as “assault causing serious harm”, although it should be noted that the word “assault”

appears nowhere within the section (a point of no little significance to the appellant). Further discussion of this section can be

deferred until later. For present purposes, a recital of its terms will suffice:

“4. Causing serious harm

(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.”

Serious harm is defined in section 1 as meaning “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”.

7. Attention should be drawn also to section 22 of the 1997 Act, which is in the following terms:

“22. General defences, etc.

(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.”

Finally, some reference will also be made to the statutory provisions mentioned in this section.

Background

8. A little bit more information about the factual background to this case may help to contextualise what follows. As stated above,

the victim of the assault was one Stephen Cooper. Both he and Mr Brown (“the accused” or “the appellant”) were prisoners in the

Midlands Prison at the time. The assault occurred on the 20th May, 2014. Mr Cooper was previously a member of An Garda Síochána

but was serving a sentence for offences contrary to section 15 of the Misuse of Drugs Act 1977, fraud and perverting the course of

justice. As a former garda, he received special protection within the prison.

9. At approximately 10am on the morning in question, as Mr Cooper was being escorted to the prison gym by a prison officer, he was

attacked by the accused: Mr Brown struck the victim over the head two or three times with a mug concealed inside a sock. Mr

Cooper required twelve stitches to the head as a result of this assault. The incident was captured on CCTV and was witnessed by a

prison officer.

Trial

10. Both the victim and the accused gave evidence at trial. No issue was taken with the arrest, detention or identity of the accused.

Mr Brown admitted that he had attacked Mr Cooper as above described. His sole defence was one of consent: he claimed that the

victim had consented to being assaulted, having requested the accused to assault him in order to facilitate his transfer to another

prison. The alleged plan was to convince the prison authorities that Mr Cooper was not safe inside the prison and so the attack was

contrived in order to achieve his transfer to elsewhere. The accused alleged that the victim had instructed him not to hold back and

to “just make sure there is blood” in order to make the assault look genuine. He said that in return Mr Cooper had agreed to give him

€1,000 in cash, in addition to certain documentation and information. For his part, Mr Cooper maintained that there had been no such

agreement: he gave evidence at trial that he had not consented to being assaulted in the manner alleged, or at all.

11. The pivotal issue at trial was whether or not this defence could go to the jury. At the conclusion of the evidence, just prior to the

judge’s charges, counsel for both sides made submissions on this matter (and also on the matter of whether an accomplice warning

was needed on the facts of the case; this point is of no continuing relevance). The accused argued that consent was an essential

ingredient of assault, be it under section 2 or section 3 of the Act. He said that such sections must be read as one: section 2 defines

the ingredients of assault and that definition carries over to section 3. Thus he said that lack of consent was an element of the

offence under section 3 and that the jury ought to have been charged that if they believed that Mr Cooper had consented to being

assaulted, they must acquit. The DPP countered to the effect that the provisions of section 2 do not carry over to section 3: it was

said that the offences under the two sections are completely separate and unconnected. As such, lack of consent was not an

element of the section 3 offence, nor could consent be a defence to same.

12. The learned trial judge ruled against the accused on this issue. He held 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 section 2 was to be carried over to section 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 section 3

derives from the definition which was enjoyed in law at the time that the Non Fatal Against the Person Act was

enacted.”

He went on to state that:

“… According to the accused the purpose of the assault was to assist Mr. Cooper in getting a transfer out of

Portlaoise Prison. I am satisfied that in the circumstances of the present case Mr. Cooper on 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 the head … I am further satisfied that on the grounds of public policy that 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 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. This ruling was then reflected in the learned judge’s address to the jury. He advised the jury that consent is not a defence to a

charge under section 3 of the 1997 Act. His essential basis for so holding was based on dual public policy grounds: first, that the law

does not permit a person to consent to the infliction of the type of injury sustained by the victim; and, second, that the purported

agreement between the accused and the victim was unlawful because it involved the use of violence for the purpose of arranging the

transfer of a prisoner, and thus the agreement was unenforceable. The relevant part of the judge’s charge was as follows:

“In that respect, the accused has proffered the defence that he applied this force and caused the injury to Mr.

Cooper in pursuance of an agreement he had entered into with Mr. Cooper, under which Mr. Cooper was to give him

some confidential information that he had when he was a garda, together with a sum of €1,000. … But the law is

that infliction of force causing injury or harm is not a lawful defence and accordingly my direction to you is that you

do not need to concern yourselves with the issue of consent in this trial. Mr. Cooper could not consent to the

infliction of the type of injury he sustained. Our law states that, for public policy reasons, you cannot consent to

yourself being injured in that fashion. And, for that reason, you are not to concern yourselves with the issue of

consent. Consent is not a lawful defence to the charge of assault. And in this case, there is a double reason for

that because, even if you accept Mr. Brown’s evidence, the assault was perpetrated in pursuance of an agreement,

which was to ensure that Mr. Cooper would be moved from Portlaoise Prison, and that type of an agreement in my

view, is an unlawful agreement for public policy reasons because it involves the use of violence for the purpose of

arranging the transfer of a prisoner, and that is an attack on the governance of the prison and the maintenance of

peace in the prison, and as such any agreement that purports to involve the use of violence in that manner is

unlawful and could not be enforceable for public policy reasons. So what you need to be satisfied beyond all

reasonable doubt is that there was an application of force and that there was no lawful excuse for the application

of that force, and that it caused harm. If you are satisfied on all of those issues, beyond all reasonable doubt, then

you are entitled to convict …”

14. The essential basis of the accused’s defence having been withheld from the jury, a conviction inevitably followed. Thus on the 6th

November, 2015, Mr Brown was convicted, following a three-day trial, of the offence of assault causing harm by a unanimous decision

of the jury. As above noted, he was sentenced to three years of imprisonment, to begin following the lawful termination of the

sentence currently being served by him, with a release date therein of January, 2023.

Court of Appeal

15. Mr Brown appealed his conviction to the Court of Appeal. His submissions, and those of the DPP in response, were in essence the

same as those now made to this Court. They are dealt with in detail below (see paras. 29-39, infra). In summary, he argued that the

trial judge erred in his decision not to allow the defence of consent to go to the jury: he said that the criteria for committing a

section 3 assault are the same as those that apply to a section 2 assault, and that an absence of consent from the victim is

therefore necessary for the commission of an offence under section 3. The DPP maintained that sections 2 and 3 are discrete

offences, and that the trial judge had adopted a construction which correctly positioned consent solely within the confines of section

2 assault: a person may consent to the direct/indirect application of force to him or herself, but may not consent to the infliction of

harm as defined in the Act.

16. The judgment of the Court was delivered by Mahon J. (Sheehan and Edwards JJ. concurring) on the 21st December, 2016 ([2016]

IECA 405). The learned judge first addressed the question of whether sections 2 and 3 of the 1997 Act represent the creation of two

discrete and separate offences, so that nothing stated in section 2 applies in respect of section 3, and vice versa. He noted that

section 3 does not expressly incorporate or repeat the “detailed explanatory provisions” of section 2, and that it does not expressly

state that the commission of the offence involves a lack of consent on the part of the victim.

17. The learned judge held that a lack of consent is not an element of the offence under section 3, and in that regard made reference

to the explanatory memorandum accompanying the Bill. Notwithstanding this view however, he was satisfied (that) there are certain

particular circumstances in which consent can (nevertheless) provide a defence. Reference was made in this regard to section 22 of

the 1997 Act and the explanatory memorandum which accompanied the Act, as well as to a range of judicial decisions from this and

from other jurisdictions: R v. Donovan [1934] 2 KB 498, R v. Nazif [1987] 1 NZLR 122, R v. Wilson [1997] QB 47 and Attorney

General’s Reference (No. 6 of 1980) [1981] QB 715 were mentioned in this regard. Per these decisions, not all of which need be taken

as having expressly been endorsed, the circumstances in which the infliction of physical harm may be permissible include medical

treatment (and in particular invasive surgery, which invariably requires the use of force and involves the infliction of bodily harm),

properly conducted games and sport, dangerous exhibitions, tattooing and piercing, and rough and undisciplined horseplay.

18. The Court of Appeal also referred to the judgments of the High Court ([2008] IEHC 326) and this Court ([2009] IESC 48) in The

Minister for Justice, Equality and Law Reform v. Damian Dolny (“Dolny”), which was a European Arrest Warrant (“EAW”) case and is

addressed in more detail at para. 22 et seq., infra. For present purposes it is sufficient to say that Mr. Dolny resisted his surrender on

the grounds of lack of correspondence of offences, as part of which he argued that lack of consent is a necessary proof for an

offence under section 3 of the 1997 Act. For reasons addressed at greater length in a moment, Peart J. in the High Court rejected

this argument, holding that the offences under sections 2 and 3 are “distinct and different offences”, that the section 3 offence is a

“freestanding offence” that does not contain a requirement of a lack of consent, that section 2 is not intended to define “assault” for

all purposes of the Act, and that that term as used in section 3 should be given its ordinary, dictionary definition instead. This

approach was approved by this Court (Denham J., Kearns and Macken JJ. concurring) on appeal.

19. The Court of Appeal went on to refer to the judgment in R v. Brown [1994] 1 A.C. 212, where Lord Jauncey stated that “the

infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer.” Ultimately, Mahon J. held as

follows on the central issue:

“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 section 4.” (Emphasis in

original)

Having referred to the well-known principles of statutory construction as set out in Howard v. Commissioners of Public Works [1994]

1 I.R. 101, the Court, in dismissing the appeal, concluded as follows:

“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.”

20. In the circumstances, the Court considered it unnecessary to address a ground of appeal related to the trial judge’s alleged error

in refusing an application to give an accomplice warning to the jury. The refusal of that application is not a feature of this appeal.

Appeal to this Court

21. Mr Brown sought leave to appeal against the said judgment and order of the Court of Appeal. In recognition of the importance of

the issued raised, the DPP did not oppose the application, nor did she dispute the facts as set out by the appellant in his application.

By determination dated the 21st July, 2017 ([2017] IESC DET. 83), this Court granted leave to appeal in respect of the following

issues of general public importance:

(a) The interpretation of section 2 and section 3 of the 1997 Act.

(b) Whether the concept of consent as provided for in section 2(1)(a)(b) of the 1997 Act is removed from section

3(1) of the same Act.

(c) The interpretation and scope of ‘assault’ as defined in section 2 of the 1997 Act.

(d) Whether section 2 and section 3 of the 1997 Act are separate or distinct offences.

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

As can readily be appreciated, issues (a)-(d) above are, in essence, subtle variations on a single theme. Accordingly, they have for

the most part been treated collectively by the parties as one larger issue concerning the proper construction of sections 2 and 3 of

the 1997 Act. I have likewise followed this approach.

Dolny

22. Before moving to the arguments of the parties, it may be useful to give some background information, at this juncture, on the

decisions of the High Court and this Court in The Minister for Justice, Equality and Law Reform v. Damian Dolny ([2008] IEHC 326 and

[2009] IESC 48). This may help to contextualise the submissions that follow, as issues arise in this appeal (i) as to whether the

decision of this Court in Dolny has the status of a binding decision of this Court on the relationship between sections 2 and 3 of the

1997 Act and (ii), if so, whether the appellant can satisfy the high threshold which must be reached before this Court will depart from

one of its previous decisions.

23. The surrender of Mr Dolny was sought by a judicial authority in the Republic of Poland so that he could serve a sentence of

imprisonment imposed on him there for an offence that can be loosely be described as an assault. The particulars of that offence

were set out at paragraphs E and E2 of the European Arrest Warrant which was the subject of the application before the High Court.

The factual description set out in those paragraphs was as follows:

“On 20th June 2004 in Krzyz Wlkp., Wielkopolska district, acting together and in collaboration with Mr Rafal Berger

and Mr Tomasz Wyrwa, he beat Mr Andrzej Lnka 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 relevant legal provision was Article 158 § 1 of the Polish Penal Code, which provided that:

“Any person who takes part in a beating or battery which exposes the wronged person to a direct danger of losing

his/her life or which can result in consequences stated in Article 156 § 1 or in Article 157 § 1, is liable to a penalty

of up to 3 years’ deprivation of freedom.”

Article 156 § 1 referred to causing grievous bodily harm resulting in serious loss of eyesight, hearing, speech or the ability to

procreate, or the infliction of another serious disability, serious incurable or long lasting illness, illness which constitutes a real threat

to the person’s health, lasting mental illness, total or considerable disability to work in his/her profession or lasting disfigurement or

deformation of the body. Article 157 § 1 contained the offence of impairment of the functioning of a bodily organ or a disturbance of

health, other than that defined in Article 156 § 1.

24. Mr Dolny’s sentence was originally suspended for four years. However, during the probationary period following the offence, Mr

Dolny perpetrated a further offence – another beating contrary to Article 158 § 1 – following which the suspension was lifted by the

Polish courts. A warrant for the arrest of Mr Dolny was made on the 14th March, 2007; this in turn led to the issue of the European

Arrest Warrant, dated the 13th August, 2007, and endorsed by the High Court on the 27th February, 2008 following its transmission

to the Irish Central Authority. Mr Dolny was arrested, immediately brought before the High Court, and thereafter remanded on bail

from time to time pending the hearing of the application for his surrender pursuant to section 16 of the European Arrest Warrant Act

2003 (“the 2003 Act”).

25. Two objections to surrender were raised at the hearing of the application before Peart J.. The first, which is of no relevance to

this appeal, was Mr Dolny’s submission that the warrant failed to adequately specify the offence to which the warrant related, or the

nature and classification of the offence under the law of the issuing State. This ground of objection was dismissed by the learned

judge.

26. It is the second ground of objection which is of interest to us on this appeal. Mr Dolny argued that the offence for which he was

convicted on the 14th March, 2004, did not correspond to any offence under Irish law, as required by sections 5 and 38 of the 2003

Act. Counsel for the Minister contended that the offence above-described corresponded to the offence of assault causing harm

pursuant to section 3 of the 1997 Act. However, counsel on behalf of Mr Dolny submitted that the references within section 2 to

“without lawful excuse”, “intentionally or recklessly” and “without the consent of the person” must also be present for the purposes of

the section 3 offence, since they are necessary ingredients of the “assault” referred to in section 2. It was therefore argued that lack

of consent was a necessary proof for the section 3 offence, just as it is for section 2. He thus submitted that as there was nothing in

the description of the offence in the warrant to indicate a lack of consent, no correspondence was made out. However, this

submission did not find favour with Peart J.:

“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

section 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 section 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 section 3 offence.

I note in passing that the offence of ‘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 respondent 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 …”

Being satisfied that both points of objection must fail, Peart J. made an order pursuant to section 16 of the European Arrest Warrant

Act 2003 directing that Mr Dolny be surrendered to such persons duly authorised to receive him on behalf of the Republic of Poland.

27. Mr Dolny appealed that decision to this Court. The judgment of the Court was delivered by Denham J., as she then was (Kearns

and Macken JJ. concurring). The learned judge expressly affirmed the approach of the High Court to sections 2 and 3. Short of so

doing, the judgment does not contain any further engagement with the appellant’s submission that lack of consent is an element of

the offence under section 3. The argument concerning the lack of correspondence was addressed principally through the prism of

whether there was sufficiency of the particulars set out on the warrant. So viewed, the question was whether the acts alleged were

such that they would constitute an offence if committed in this jurisdiction. Based on the natural and ordinary meaning of the words

used, Denham J. was satisfied that the acts alleged – beating the named person by hitting him on the face and head with fists,

thereby causing injury to his body – described acts which would constitute an offence if committed in this jurisdiction. She therefore

affirmed the judgment and order of the High Court and dismissed the appeal.

28. The precise status of the judgments in Dolny is addressed below (para. 46 et seq: infra) Before moving on to the operative part

of this judgment, it is necessary first to set out the arguments made by the parties.

Submissions

Submissions of the Appellant

29. As was the case in the courts below, the appellant contends that there is no distinguishing “assault” for the purposes of section 2

from “assault” for the purposes of section 3. The latter builds on the former and therefore the criteria under section 2 must be

satisfied in order for the crime of “assault causing harm” to be satisfied. Lack of consent is unquestionably an express element of

section 2; by using the term “assault” in section 3, that term must be read as defined in the same legislation, that is, in section 2.

Thus absence of consent is an essential element of the offence of “assault causing harm” under section 3. As a result, the learned

trial judge and the Court of Appeal erred in law in their interpretation of those sections and the trial judge erred his charge to jury

when he stated that consent is not a defence under section 3.

30. Mr Brown suggests that the Court of Appeal has taken a very simplistic view of the relevant sections and has adopted an

interpretation of the section which is unnecessary when the wording of the section has been legally defined by the legislator. He

points to the fact that the word “assault” is not used in section 4 of the 1997 Act and says that it is a mistake to describe the

offence created by that section as “an assault type offence” – section 4 is manifestly a separate and distinct offence. Moreover, the

appellant submits that section 22 of the 1997 Act has no relevance to the within case and the issues before the court, although it

must be said that there was much discussion on that section at the hearing of the appeal, particularly in the context of the tragic

death of mixed martial artist Joao Carvalho in a contest at the National Boxing Stadium in April, 2016. Mr Brown says that he is not

relying on a common law defence or on a statutory defence such as that contained in section 18 of the Act; instead, he relies on the

plain meaning of the phrase “without the consent of the other” and the legal meaning of “assault” as defined in section 2, in

circumstances where the burden is on the prosecution to prove every element of the offence. He also submits that the judgment of

the Court of Appeal leaves utterly uncertain the requisite intention to establish an offence under section 3. He submits that under the

approach taken by the courts below, the intention specified for section 2 assault is presumably likewise not imported into section 3.

31. The appellant refers to the Law Reform Commission’s 1994 Report on Non-Fatal Offences Against the Person (LRC 45-1994), where

the Commission proposed, inter alia, a scheme of assault and causing injury under which a person could consent to being touched or

hurt (para. 9.130). He also refers to the drafting of sections 2 and 3 of the 1997 Act, stating that the legislator chose the word

“assault” for a reason when drafting section 3. Mr Brown cites the case of Mason v. Leavy [1952] I.R. 40, where it was stated by

Murnaghan J. that “[w]here a statute … 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”. To the same effect, Bennion on Statutory Interpretation (6th Ed., LexisNexis,

London, 2013) states that “[i]t is presumed that a word or phrase is not to be taken as having different meanings within the same

instrument unless this fact is made clear.” The appellant says that the sections are clear and unambiguous, and that the reference in

both to “assault” is a deliberate, conscious and logical step by the legislator. Since the adoption of the 1997 Act, the word “assault”

is by definition a legal term with an acquired legal meaning as provided for in section 2. The authors McAuley and McCutcheon reach a

similar conclusion at p. 532 of their book Criminal Liability (2000, Round Hall), stating that “Section 2 expressly makes lack of consent

part of the actus reus of assault and this definition must be carried into section 3”.

32. Mr Brown submits that the approach adopted by the trial judge and the Court of Appeal is overly deferential to the legislator,

subjectively conservative, and fails to strictly construe a penal statute. It is said that this interpretive technique runs counter to any

existing rule of construction concerning internal consistency in a document such as this. The appellants submits that the purposive

approach adopted by the courts below is illogical and appears to have been adopted in support of the courts’ view on what is or is

not acceptable as a matter of public policy, as opposed to correctly interpreting the legislation according to well-established

principles of interpretation.

33. Furthermore, he says that sections 2, 3 and 4 self-evidently follow a schematic approach to injuries perpetrated by violence, and

that such scheme provides considerable assistance in respect of the wording used and the appropriate meaning to apply to each

section. Sections 2-4 reflect a general gradation in the level of injury inflicted. It is submitted that it is evident from the intentional

omission of the word “assault” from section 4 that it is solely for an act causing serious harm that an absence of consent is removed

as an element of the actus reus. In other words, it is clear from the scheme of the Act that it is only in section 4 that consent is

irrelevant. This was a deliberate choice by the legislature. It is for the legislature to set the bar as to what may or may not lawfully

be consented to, and it is not for this Court to come to another conclusion if it dislikes where the line has been drawn.

34. The appellant points out that the Oireachtas did not qualify or confine the meaning of assault to section 2 through the use of any

legislative “restricting phrases” such as “for the purposes of this section” or “in this section” (see Liston v. G. O’C and A. O’C [1996] 1

I.R. 501 and In re James Application for Judicial Review [2005] NIQB 38); thus, section 3 must be read by reference to section 2. This

is said also to be in accordance with section 20 of the Interpretation Act 2005.

35. Mr Brown also refers to several well-known canons of construction. An Act of parliament should be construed according to the

intention expressed in the Act itself; if the words used are precise and unambiguous, it is necessary to do no more than give them

their ordinary and natural meaning (Howard v. Commissioner of Public Works [1994] 1 I.R. 101). A word in a statute must be given its

natural meaning in the context in which it occurs (Dunnes Stores v. Director of Consumer Affairs [2005] IEHC 242. Reference has also

been made, to similar effect, to the cases of McGrath v. McDermott [1988] I.R. 258 and Inspector of Taxes v. Kiernan [1981 I.R.

117. Moreover, per People (AG) v. Kennedy [1946] I.R. 517, “the same words used in different parts of a statute … should be given

the same meaning”; this decision was followed in Meagher v. Minister for Social Protection [2015] IESC 4. Various English authorities

in support of this rule have also been cited. Further principles are referred to also: judges must be careful when interpreting legislation

not to do so in a way that they cast themselves in the role of legislators (L O’S v. Minister for Health and Children [2017] IECA 7),

and where the legislature enacts through clear and unequivocal language something that is capable of only one meaning, it must be

given that meaning however harsh or contrary to common sense the result may be (DPP v. Corcoran [1995] 2 I.R. 259).

36. Similarly, the appellant refers to the requirement to interpret penal statutes strictly (see. e.g. DPP v. Somers [1999] 1 I.R. 115

and DPP v. Moorehouse [2006] 1 I.R. 421). Applying these decisions, “assault” must be given its legal meaning in the context in which

it occurs, that is, the specified legal definition provided by the Oireachtas in section 2. He says that the reasoning of the trial judge

(i.e. that if it was intended to define “assault” for the purposes of the statute as a whole it would have been defined in the

‘interpretation’ section of the statute) was simplistic and overly deferential to the legislator. Rather he says that the sections are

inextricably linked by the word “assault” which is defined in section 2 and does not therefore need to be repeated.

37. Mr Brown draws a comparison with the offences of “burglary” and “aggravated burglary”, as set out in sections 12(1) and 13(1),

respectively, of the Criminal Justice (Theft and Fraud Offences) Act 2001. There the legislature did not set out the definition of

“burglary” again in section 13(1), but the word must be taken to have the same meaning for each section. He says that the

constituent elements of burglary as defined in section 12 must be present in order for the offence under section 13 to be made out. It

is submitted that sections 2 and 3 of the 1997 Act were intended to be read in a similar manner.

38. The appellant also adverts to the fact that he invited the Court of Appeal to have regard to the executive expressions of intent

to the Oireachtas at the introduction of the Bill. This offer was declined but the appellant maintains that such parliamentary debate is

instructive in respect of what is and what is not contrary to public policy for the purpose of an assault causing harm and whether the

defence of consent applies. Mr Brown submits that as the Court of Appeal did not seek submissions on the issue of parliamentary

debate, nor did it direct queries to either side on the issue of public policy, that court effectively reserved onto itself an inconsistent,

indeed diametrically opposite, view of public policy to that stated by the then Minister for Justice, Nora Owen T.D., in her address to

the Dáil on the relevant sections of the 1997 Act (see para. 136, infra). Thus he submits that though he is reluctant to ask this court

to consider the use of parliamentary debate in the interpretation of a statute, the same is necessary due to the view of public policy

taken by the courts below. By deriving a view of public policy based on its own view of same, it is submitted that the Court of Appeal

is straying close to legislating. Thus although Mr. Brown submits in the first instance that it should be unnecessary to consider public

policy in interpreting the Act, as the Act is clear, but should any ambiguity remain then it ought to be permissible for the Court to

resolve same by reference to parliamentary debate. In so submitting he does not seek to have the Court revisit the decision in Crilly

v. Farrington [2001] 3 I.R. 251, in which it was stated that great caution must be exercised in seeking to use parliamentary debates

as an interpretive aid; rather he submits that where the meaning of a statute remains utterly ambiguous, it would be preferable for

the judiciary to have regard to the pronouncement of policy in the introduction of legislation by the Minister rather than taking it upon

themselves to presume upon a policy which contradicts that expressed by the Minister.

39. Finally, Mr Brown submits that the decision in Dolny should be revisited. He says that the context of that decision was very

different from the within case: it was an EAW case; sections 2 and 3 were considered under the doctrine of equivalence while the

High Court was exercising civil jurisdiction; there was no detailed discussion of the competing techniques of interpretation or canons

of construction; and the respondent was not on trial and facing the threat of a criminal conviction carrying a five-year prison

sentence. The trial judge in the within case accepted that Dolny was not binding but nonetheless found it highly persuasive. The

appellant submits that Dolny was decided in error having regard to the rules of statutory interpretation and the authorities referred to

above and the absence of any restrictive or qualifying phrases in sections 2 and 3 of the 1997 Act. In this regard Mr Brown also refers

to an academic paper by Dr. Catherine O’Sullivan, who criticised the judgments in Dolny on a number of grounds (O’Sullivan, “The

Importance of Correct Statutory Interpretation Technique: the case of Minister for Justice, Equality and Law Reform v Dolny” 45(1)

The Irish Jurist 146-164 (2010)).

Submissions of the Respondent

40. In her written submissions, the DPP relies on the decisions of the High Court and Supreme Court in Dolny, adopting the reasoning

set out therein. She submits that although Dolny arose in a different context, this does not detract from or diminish its status as a

binding decision of this Court on the relationship between sections 2 and 3 of the 1997 Act. That relationship was directly in issue in

Dolny and the Court’s view on same must be treated as the ratio of that decision. The DPP submits that although it is well-established

that this Court is not rigidly bound by its previous decisions (see, e.g. Attorney General v. Ryan’s Car Hire Ltd [1965] I.R. 642), it is

equally well-established that the circumstances in which it will depart from a previous decision are very exceptional (see, e.g. D.H. v.

Groarke and the Director of Public Prosecutions [2002] 3 I.R. 522). Per D.H., the decision in question must be “clearly wrong”, or

there must be “compelling reasons” for treating it as one of those exceptional cases in which the Court will depart from its previous

decision. This is a high threshold, and merely establishing that a different view could be formed on the question is not enough.

41. The respondent’s view in relation to Dolny is subject to the caveat that she does not believe that the decision itself is authority

for the proposition that she is not required to prove intent or recklessness in relation to the first part of the offence under section 3

of the 1997 Act (para. 121 infra). That case concerned the question of consent, not mens rea. She submits that an “assault” for the

purposes of section 3 can be committed intentionally or recklessly (R v. Vanna [1976] QB 421, as cited with approval in People (DPP)

v. Murray [1977] I.R. 360).

42. The DPP also makes submissions in relation to Crilly v. Farrington [2001] 3 I.R. 251. She refers to the judgment of Murray J., as

he then was, where at pp. 294-295 the learned judge referred to the fact that the Constitution does not assign or recognise any

special role for the initiators or promoters of a bill. She further notes that this Court has previously interpreted sections 2 and 3 of the

1997 Act without embarking on an analysis of the parliamentary contributions concerning these provisions. The respondent refers also

to the presumption against radical amendments, submitting that if Mr. Brown’s interpretation of the Act is correct then this would

represent a radical change to the law concerning consent to the infliction of injury upon oneself; if the same had been intended, it

would have been achieved through language of greater clarity and certainty.

43. Moreover, the DPP submits that even if this Court is to adopt the appellant’s construction of the sections, the presence or

absence of consent alone is not dispositive of the legality of the appellant’s conduct. She points out that in order for an offence

under section 2 to be made out, there must be (i) an absence of “lawful excuse”; (ii) intention/recklessness; and (iii) an absence of

consent. Absence of lawful excuse and absence of consent are separate, independent ingredients. Thus she says that consent

cannot, of itself, constitute lawful excuse, thereby validating what would otherwise be assault. Here, other than the pursuit of an

agreement to circumvent prison management, no “excuse” was contended for in evidence. Such excuse would demonstrably not be

lawful. The 1997 Act does not define the phrase “lawful excuse”; it is submitted that it falls to the courts to determine whether, in a

given instance, the facts disclose an excuse that is lawful. In effect, the crux of this argument was that one can only consent to

conduct that is already lawful.

44. The respondent goes on to refer to a number of cases in which the courts have held, on the basis of public policy, that the

consent is immaterial in respect of the infliction of bodily harm (see, for example, Attorney General’s Reference (No.6 of 1980) [1981]

3 WLR. 125; [1981] Q.B. 715, regarding fighting in the street; R v. Coney [1882] 8 QBD 534, concerning prize-fighting; R v. Donovan

[1934] 2 KB 498, in respect of caning for the purposes of sexual gratification; and R v. Brown [1994] 1 AC 212, regarding certain

consensual sadomasochistic homosexual acts). The decision in Brown ultimately ended up before the European Court of Human Rights,

where it was upheld (Laskey, Jaggard and Brown v. United Kingdom, App. Nos. 21627/93, 21628/93, and 21974/93, judgment of the

19th February, 1997). The DPP therefore submits that assault, as defined, preserves a public policy remit for the courts, which they

have historically exercised on a case-by-case basis to determine which side of the dividing line matters such as different contact

sports, medical treatments, tattooing/piercing etc. lie on.

45. Finally, the respondent submits that if the appellant is correct, the “defence” of consent exists for any assault not otherwise

penalised under the 1997 Act which falls short of causing serious harm under section 4. Thus all of the old common law would be

swept away and people would be free to lawfully “settle” issues on the street, provided that they did not cause serious harm, as

statutorily defined. It is moreover submitted that the phrase “without lawful excuse” in section 2(1) would be a redundant term,

somehow annulled or subsumed into “consent”, if the appellant’s interpretation is favoured. Thus the DPP invites the Court to uphold

the decision in Dolny, but, if of the view that such decision was wrongly decided, it is submitted that the courts retain a public policy

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

Decision

The starting point – Dolny:

46. It is said by the DPP that Dolny is a binding decision of this Court on the proper interpretation of sections 2 and 3 of the 1997

Act. She thus submits that, in addition to any other barriers facing the appellant, he must also navigate the test according to which

this Court will depart from its own established jurisprudence.

47. It is well-established that, although not bound per se by the principle of stare decisis, this Court will refuse to follow one of its

previous decisions only if satisfied that it is “clearly wrong” (see Attorney General v. Ryan’s Car Hire Ltd [1965] I.R. 642), and for a

more recent consideration of this review jurisdiction The People (DPP) v. J.C. [2017] 1I.R. 417 at p. 664 et seq). Perhaps the classic

statement of the balance to be struck is that of Henchy J. in Mogul of Ireland v. Tipperary (North Riding) County Council [1976] 1

I.R. 260 at pp. 272-273:

“A decision of the full Supreme Court (be it the pre-1961 or the post-1961 Court), given in a fully-argued case and

on a consideration of all the relevant materials, should not normally be overruled merely because a later Court

inclines to a different conclusion. Of course, if possible, error should not be reinforced by repetition or affirmation,

and the desirability of achieving certainty, stability, and predictability should yield to the demands of justice.

However, a balance has to be struck between rigidity and vacillation, and to achieve that balance the later Court

must, at the least, be clearly of opinion that the earlier decision was erroneous. In Attorney General v. Ryan’s Car

Hire Ltd. the judgment of the Court gave examples of what it called exceptional cases, the decisions in which might

be overruled if a later Court thought them to be clearly wrong. While it was made clear that the examples given

were not intended to close the category of exceptional cases, it is implicit from the use in that judgment of

expressions such as ‘convinced’ and ‘for compelling reasons’ and ‘clearly of opinion that the earlier decision was

erroneous’ that the mere fact that a later Court, particularly a majority of the members of a later Court, might

prefer a different conclusion is not in itself sufficient to justify overruling the earlier decision. Even if the later Court

is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if

it has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its

correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In

such cases the maxim communis error facit jus applies …” (Emphasis in original)

48. Though it is true that the Court will be more reluctant to depart from a previous decision where the earlier decision was that of a

court of five or, even more exceptionally, seven members, it is clear that even where the earlier decision was that of a court of three,

as in Dolny, it should not be over ruled merely because a later Court inclines to a different conclusion (per Keane C.J. in D.H. v. Judge

Groarke and Ors [2002] 3 I.R. 522 (“Groarke”) at p. 530). In Groarke, the Chief Justice affirmed that the Court will not lightly depart

from its previous decisions:

“I am, accordingly, satisfied that the applicant in the present case has fallen well short of the high threshold which

must be reached before the court departs from one of its previous decisions. No doubt, it would be possible to take

a different view from that arrived at by the court in that case, but it most certainly cannot be said that the

decision was ‘clearly wrong’ or that there are ‘compelling reasons’ for treating it as one of those exceptional cases

in which the court will depart from the generally applicable principle of stare decisis.”

Needless to say, it is the DPP’s view that Mr Brown cannot satisfy said threshold in respect of the Dolny decision.

49. One of the first questions that arises, therefore, is whether it must be shown by the appellant that Dolny is “clearly wrong”, or

alternatively, perhaps, whether he can establish that it should be confined to the EAW/extradition context, or that the passages in

relation to sections 2 and 3 were obiter only and therefore not binding in the usual manner. If that is so, this Court may begin its

consideration of the relevant statutory provisions afresh. Though there may be some other limited circumstances in which a judgment

of this Court is not afforded the usual precedential weight, Mr Brown has not argued, for example, that the decision in Dolny was

made per incuriam.

50. First, it must be recalled that the trial judge in the within case did not consider Dolny to be binding on him, although he

considered it highly persuasive and not capable of being disregarded lightly. The reasons for this view were that (i) the relevant dicta

of Peart J. did not form part of the ratio of the decision and (ii) that case could be distinguished as it was an EAW case where the

burden of proof was on the balance of probabilities. To these factors the appellant adds the fact that the case did not include any

detailed discussion on the relevant canons of construction available when interpreting a criminal statute. It must also be noted that,

although Mahon J. cited and relied upon Dolny in his judgment for the Court of Appeal in this case, there is no indication therein that

he considered it to be binding upon him; if it had been, that would have been the end of the matter so far as that court’s analysis

was concerned.

51. It bears emphasising the relevant issue in Dolny was that of “correspondence” for the purposes of a European Arrest Warrant.

Particular rules have developed for the purposes of establishing correspondence pursuant to section 5 of the 2003 Act. In particular,

it is clear from decided judgments that the warrant need not set out the totality of matters that would require to be proved by the

DPP on a prosecution in this jurisdiction. For example, in Minister for Justice, Equality and Law Reform v. Hahui [2008] IEHC 259, the

respondent’s surrender was sought in relation to offences allegedly equivalent to robbery contrary to section 14 of the Criminal

Justice (Theft and Fraud Offences) Act 2001 and assault contrary to section 2 of the 1997 Act (in respect of which lack of consent is

undoubtedly a requirement). Nothing in the warrant indicated the element of dishonesty required to make out a robbery charge in this

jurisdiction, nor did it allege a lack of consent for the purposes of the assault charge. Nonetheless, Peart J. was satisfied that

correspondence was made out in respect of both charges:

“Without reading words into the contents of the offence as stated in the warrant, this Court is nevertheless

entitled to adopt a realistic approach to the establishment of correspondence and look at all the circumstances of

the offence has contained in the warrant. It is quite clear that the respondent was convicted on facts which

include the striking of the victim with an implement referred to as a contusive tool, knocking him to the ground, and

taking from him a leather handbag containing a large amount of money. On that set of facts, it is fanciful to suggest

that this may have occurred with the consent of the victim. These circumstances themselves, clear from the

warrant, demonstrate a lack of consent and the dishonest intent of the respondent. In my view there is no room for

argument that the absence of any reference to dishonesty or lack of consent is fatal to the issue of

correspondence, given the circumstances of the crime. There have been cases before this Court where on the facts

of the warrant, the possibility of consent and/or lack of dishonesty, was open. But this is not such a case. In my

view the position is clear from the contents of the warrant. In these circumstances, I am satisfied that the offence

corresponds to an offence or offences in this jurisdiction of the purposes of section 5 of the Act.”

He therefore ordered the surrender of the respondent to Romania. The learned judge delivered judgment in that case several months

before his judgment in Dolny.

52. A similar matter arose in Minister for Justice, Equality and Law Reform v. Zukauskas [2009] IEHC 341, again before Peart J. Here

the respondent’s surrender was sought for intentionally punching a victim at least twice in the face, resulting in bruising and a broken

jaw. The offence was alleged to correspond with the offences under sections 2 and 3 of the 1997 Act. Again the warrant was silent

as to lack of consent. Peart J. stated as follows:

“It is clear that it is appropriate that the warrant should not be parsed and analysed as if it was an indictment, and

that a common-sense approach should be adopted in the search for the reasonable interpretation referred to by

Geoghegan J. in Myles v. Sreenan [1999] 4 I.R. 294. Such an approach forces the conclusion that the facts as

disclosed in the warrant in the present case and as set forth in detail above show correspondence with an offence

of assault and an offence causing harm in this State by reference to the ordinary or popular meaning to be given to

words such as ‘intentionally punched at least twice … at the face and once at the head causing him to suffer

bruises of soft tissue at the face and broken left mandibular ramus’, and ‘he intentionally injured the victim’.

Matters such as the question of the victim not having consented to the infliction of these injuries, or that there

was no lawful excuse, may well be matters which the prosecution may prove in some way, or may be inferred from

the facts, or may be dealt with by way of any defence put forward by the respondent at his trial, but the mere fact

that it is not covered by a specific statement in a European arrest warrant that there was no consent cannot be a

sufficient impediment to a finding of correspondence when the facts as known from the warrant are such as appear

in the present case.”

53. Thus on this approach correspondence does not necessarily require the warrant to specify every matter that would require to be

proved by the prosecution if the accused were on trial for the corresponding offence in this jurisdiction. This view on the

correspondence issue, was accepted only in a broad sense by Fennelly J. in Attorney General v. Dyer [2004] IESC 1, whose overall

approach it must be said was more strict than that of Peart J. in Zukauskas. Nonetheless, this less formalistic approach seems to

have found general favour in the EAW context (see also, for example, Minister for Justice, Equality and Law Reform v. Sas [2010]

IESC 16).

54. On this approach to correspondence, it can be seen that it was not truly necessary for the High Court to settle the point raised in

Dolny: whether or not the warrant recited a lack of consent was simply immaterial to the making of the surrender order. Accordingly,

despite the clarity of the views expressed by Peart J. in his judgment in that case, there is certainly a strong argument to be made

that they can be considered obiter. The subsequent endorsement of that decision by the Supreme Court adds nothing to this point.

So considered this court can thus view the position afresh and do so based on the submissions of the parties. The conclusion is

therefore: Dolny is not binding on this or on any court: as such it does not call for any assessment via the principle of stare decisis.

Background: the pre-1997 law on assault.

55. Before addressing the issue of the correct interpretation of sections 2 and 3 of the 1997 Act, it may be informative to set out

what the law was in respect of offences against the person prior to the passing of that piece of legislation, and how and why a

change came about. It is true that an issue arises in this case as to whether this legislative history has any role to play in the proper

construction of the new sections, or whether instead the 1997 Act effectively washes away all that came before (save where

expressly stated or obviously intended by the Act or where interpretative principles positively demand); even if the latter be correct

as I firmly believe, the historical background is always available and sometimes informative in an exercise such as this. That being so,

a short journey through the old statutory and common law offences may help at least to contextualise the present provisions. A fuller

history of the legal position in Ireland up to 1994 is contained in Chapter 1 of the Law Reform Commission’s 1994 Report on Non-Fatal

Offences Against the Person (LRC 45-1994). The following paragraphs do not purport to be an exhaustive account of same but rather

provide a brief explanation of the situation as it was prior to the enactment of the 1997 Act.

56. The law on assault prior to 1997 was governed by a mixture of the common law and the Offences Against the Person Act 1861

(“the 1861 Act”). An overwhelming majority of the provisions of the 1861 Act have by now been repealed, though a handful remain

live on the statute book. Writing in the Criminal Law Review in 1991, when the Act remained substantially in force in both Ireland and

England, Professor J.C. Smith wrote that:

“[The 1861] Act is a rag-bag of offences brought together from a wide variety of sources with no attempt, as the

draftsman frankly acknowledged, to introduce consistency as to substance or as to form. It may have been a great

step forward in 1861 but its limitations were known then and it is deplorable that so much of it remains the law.”

(Prof. J.C. Smith, “Case Commentary on R. v Parmenter (Philip Mark) (No.1) [1991] 2 W.L.R. 408”, Crim. L.R. 1991,

Jan, 41-43 at p. 43)

Looking at the overall scheme of the Act, it is easy to see why it was described in that way. It contained provisions relating to

homicide offences (sections 1-10), attempts to murder (sections 11-15), a specific offence of letters threatening to murder (section

16), acts causing or tending to cause danger to life or bodily harm (sections 17-35), assaults (sections 36-47), rape, abduction and

defilement of women (sections 48-55), and further offences such as child-stealing, bigamy, attempts to procure abortion, concealing

the birth of a child and “unnatural offences” (e.g. bigamy and sodomy). A rag-bag, indeed.

57. It is immediately apparent that most of those sections could have no relevance to the within proceedings. Even within the

sections headed “Acts causing or tending to cause Danger to Life or Bodily Harm” and “Assaults”, many of the sections therein are of

no apparent significance for present purposes. In the former category, many of the offences were tied to the use of a specific

substance (e.g. chloroform, poison or gunpowder) or otherwise covered a very narrow and definite form of conduct (e.g. not providing

servants or apprentices with food, clothing or lodging, setting spring guns with intent to inflict grievous bodily harm on a trespasser,

or placing wood or stone on railway lines). Even within the part on “assaults”, again a number of the sections were rather specialised

in that they created specific assault offences in respect of certain defined classes of complainants; thus there were specific offences

of assaulting a clergyman, or magistrate, or peace officer, or seaman. Section 39 governed assaults with intent to obstruct the sale

of grain, flour, meal, malt, or potatoes, or their free passage.

58. What are of interest to us are the more general assault or assault-type provisions which may loosely be considered as the

precursors to sections 2 to 4 of the 1997 Act. The relevant provisions are sections 18, 20, 42 and 47 of the 1861 Act. Sections 42

and 47 contained the penalties for assault and battery both as summary and indictable offences. They provided as follows:

“Persons committing any common assault or battery may be imprisoned or compelled by two magistrates to pay fine

and costs not exceeding 5l.

42. Where any person shall unlawfully assault or beat any other person, two justices of the peace, upon complaint

by or on behalf of the party aggrieved, may hear and determine such offence, and the offender shall, upon

conviction thereof before them, at the discretion of the justices, either be committed to the common gaol or house

of correction, there to be imprisoned, with or without hard labour, for any term not exceeding two months, or else

shall forfeit and pay such fine as shall appear to them to be meet, not exceeding, together with costs (if ordered),

the sum of five pounds; and if such fine as shall be so awarded, together with the costs (if ordered), shall not be

paid, either immediately after the conviction or within such period as the said justices shall at the time of the

conviction appoint, they may commit the offender to the common gaol or house of correction, there to be

imprisoned, with or without hard labour, for any term not exceeding two months, unless such fine and costs be

sooner paid.”

“Assault occasioning bodily harm. Common assault.

47. Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable . .

. to be kept in penal servitude … ; and whosoever shall be convicted upon an indictment for a common assault shall

be liable, at the discretion of the court, to be imprisoned for any term not exceeding one year, with or without hard

labour.”

(See para. 63 infra for the updated sanctions under both sections)

59. However, the above sections could not be read in isolation, for the offences of assault and battery were defined by the common

law. Broadly speaking, an assault was committed where the victim apprehended the infliction of force; a battery was where there was

in fact a direct application of force, or some times a delayed or indirect action may also suffice (R. v. Clarence (1888) 22 QBD 23 at

42). The mental element for each was intention or recklessness. The common law offences of assault and battery were abolished by

section 28 of the 1997 Act. Even before that time, however, there could be a certain looseness of language on occasions, with the

old legislation and case law often using the term “common assault” when manifestly it was a battery at issue, or indeed using

“assault” to cover both offences. Sections 42 and 47 together envisaged common assault being triable either summarily or on

indictment.

60. Moreover, as can be seen above, section 47 additionally created the offence of “assault occasioning actual bodily harm”. The

section 47 offence was a “compound” offence requiring proof of (i) common assault, and (ii) the aggravating element of actual bodily

harm. As appears from section 47, this was an indictable-only offence. Though there was some debate over whether it was necessary

for the accused to have foreseen the harm caused, the House of Lords ultimately concluded in R v. Savage; R v. Parmenter [1992] 1

AC 699, [1991] 3 WLR 914 that the prosecution is not obliged to prove that the accused intended to cause some actual bodily harm

or was reckless as to whether such harm would be caused; the harm element, therefore, is one of strict liability. The point was never

definitively settled in Irish law.

61. Sections 18 and 20 contained more serious “assault-like” offences involving the infliction of grievous bodily harm, though it is

important to note that the word “assault” appears nowhere in the sections. Those sections provided as follows:

“Shooting or attempting to shoot, or wounding, with intent to do grievous bodily harm, or to resist apprehension.

18. Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm

to any person, or shoot at any person, or, by drawing a trigger or in any other manner attempt to discharge any

kind of loaded arms at any person, with intent, in any of the cases aforesaid, to maim, disfigure, or disable any

person, or to do some other grievous bodily harm to any person, or with intent to resist or prevent the lawful

apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable … to be

kept in penal servitude for life …”

“Inflicting bodily injury, with or without weapon.

20. Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person,

either with or without any weapon or instrument, shall be guilty of a misdemeanour, and being convicted thereof

shall be liable … to be kept in penal servitude …”

62. As can be seen, section 18 created some twenty-four separate offences, forbidding as it did any and every combination of one of

four acts with any one of six intentions. Each was punishable by life imprisonment. Section 18 never required proof of common assault

in order to prove the offence. Though it was originally believed that the section 20 offence did require proof of common assault, the

House of Lords settled on the opposite view in R v. Wilson [1984] AC 242. Unlike section 47, both offences required subjective

foresight by the accused of harm being caused. In respect of the section 20 offence, the prosecution was required to prove either

that the accused intended or that he actually foresaw that his act might cause physical harm to some person, albeit it was only harm

of a minor character (R v. Mowatt [1968] 1 QB 421). However, for a conviction under section 18, it had to be proved that the

accused had, at a minimum, virtually certain foresight of causing grievous bodily harm. As with ss. 42 and 47, both ss. 18 and 20 were

likewise repealed by the 1997 Act.

63. The resulting contours of assault, by virtue of both the common law and the 1861 Act (as amended) were therefore:-

(A) (i) Assault and Battery: frequently conjoined as common assault (ss. 42 & 47);

(ii) On summary prosecution not exceeding six months imprisonment and/or a fine not exceeding £50, (see s.11

Courts of Justice Act, 1951) .

On indictment: not exceeding one year with or without hard labour.

(B) (i) Assault causing actual bodily harm (s.47):

(ii) On indictment not exceeding 5 years (See s.2 of the Penal Servitude Act 1891 etc)

(C) (i) Assault causing grievous bodily harm by shooting, wounding or otherwise (ss. 18 and 20):

(ii) Up to penal servitude for life.

Background: The pre-1997 law on consent to harm.

64. Just as the provisions setting out the main offences under the 1861 Act gave rise to much debate in the case law, so too was

the law in relation to consent to bodily injury far from straightforward. At the lowest level of offending, the position ultimately became

relatively simple, although at the beginning of our analysis, not without some linguistic uncertainty. Consent, it was said, was a

defence to a charge of assault or battery (“common assault”). However statements like this one by Hawkins J. in R v. Coney (1882) 8

QBD 534 (“Coney”), might be thought as elevating consent to a much greater degree: he said : “[a]s a general proposition it is

undoubtedly true that there can be no assault unless the act charged as such be done without the consent of the person alleged to

be assaulted, for want of consent is an essential element in every assault, and that which is done by consent is no assault at all” (p.

553). If intended as a starting point for an analysis to follow it is unobjectionable: in fact it bears remarkable similarity to that of Lord

Lane in the Attorney General’s Reference (No. 6 of 1980) [1981] QB 717 if otherwise however such could only be accepted at the of

generality, and even then requires some considerable adjustment.

65. Subject to some important exceptions discussed below, it was no defence to a charge of assault causing actual bodily harm, or

indeed the more serious offence involving the infliction of grievous bodily harm, to say that the victim had consented. Charleton,

McDermott and Bolger, in their work, Criminal Law (Tottel Publishing, Dublin, 1999), explain at para. 9.16 that the reason for this was

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.”

There are numerous illustrations of this in the case law. For example, in Coney, Cave J. referred to the fact that there was “abundant

authority for saying that no consent can render that innocent which is in fact dangerous”, a reference to bodily harm (p. 547).

66. R v. Coney was a case in which the defendants had been charged with two counts of assault (Mathew J. and Ors as “aiding and

abetting”: Cave J. and Ors as “assault”: both offences were of “common assault”) through their attendance at a prize fight. As part

of their defence they argued that there had been no assault, as the prize fighters had consented to the context and to any injuries

they may have sustained. The defence was rejected by the Court. Whilst all judges held that prize fighting was illegal, that those who

attended were aiding and abetting the event and were therefore guilty of assault, and that consent as between the contestants was

no defence, the rationale for this outcome differed greatly in each of the judgments delivered. It is therefore a rather thankless task

to try and extract some coherent basis to explain the rule or more significantly the admitted exceptions to it.

67. Many of the eleven judges, at least five in number, relied on a rather narrow policy objection which today, given the array of

public order offences on the statute books and a number of vigilant enforcing agencies, carries far less force than previously: in

particular conduct giving rise to or tending to cause a breach of the peace featured heavily and routinely was relied upon as a ground

for rejecting the consent argument.

68. The basis advanced by those judges for the latter view point had a context and ran thus: In the early part of the nineteenth

century prize fighting was unlawful despite consent. This declaration of illegality, however (though) frequently repeated, often

reiterated and habitually sanctioned, saw no fall off in its popularity: so enforcement at a secondary level became the norm. As such

conduct was seen as giving rise to or tending to cause a breach of the peace, it was criminal per se. Those who attended, even

purely as curious bystanders, were guilty of unlawful conduct even where the perpetrators willingly consented. It was via this route

that Coney, Gilliam and Tully were charged with assault. Those directly involved, Burke and Mitchell, fought each other in a ring,

surrounded by ropes on private land before a crowd of upwards of one hundred people: the participants were also charged. As was

quite common at the time other charges of a public order nature, such as riot, unlawful assembly and holding a disorderly exhibition

were also levelled, but all, save those of assault were ultimately dropped before trial. So conduct involving a breach of the peace

played a key role in the judgments of those that I have mentioned. The remainder of the judges relied variously on the degree of

force and injury that might be caused: the dangerous nature of the proceedings and the injurious effect of the activity from a public

perspective. From an overall viewpoint however the reasoning, it must be said, was as diverse and as multiple as were the number of

judges who deliberated in the case.

69. Be that as it may whilst the judgment of Cave J. has at least in some quarters been subsequently treated as representative, it is

however, just as difficult to discern a principle of law basis for his decision, as it is with the others. The most relevant passage

appears to be the following:

“The true view is, I think, that a blow struck in anger, or which is likely or intended to do corporal hurt, is an

assault, where that a blow struck in sport, and not likely, nor intended to cause bodily harm is not an assault, and

that, an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial.”. (p.

539)

70. Another of the judges, Stephen J. explained the law in this way:

“The principle as to consent seems to me to be this: When one person is indicted for inflicting personal injury upon

another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the

injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well

as to the person injured. But the injuries given and received in prize-fights are injurious to the public, both because

it is against the public interest that the lives and the health of the combatants should be endangered by blows, and

because prize-fights are disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the

parties to the blows which they mutually receive does not prevent those blows from being assaults.” (p. 549)

Even then in a later passage the learned judge, and jurist seems to have suggested that where the consenting recipient had not been

exposed to ‘serious danger’ his or her willing participation was a defence. However, in his famous publication (Digest of the Criminal

Law, both pre and post Coney, 3rd Ed. 1883 pp. 141/142) he queried whether one could consent to his being put “in danger of death

or bodily harm…”: and again further in the same text he suggested, that short of harm amounting to “maim” one could consent: all a

bit uncertain it must be said.

71. Incidentally, “maiming” was defined as ". . . such a hurt of any part of a man's body whereby he is rendered less able, in fighting,

either to defend himself or to annoy his adversary" . . . . (Hawkins' Pleas of the Crown (1Hawk P.C.) (8th Ed. 1824). (CH 15: Russell

on Crime 12th Ed. 1964 at 652 and 653). The reason why such was unlawful was because it weakened the military control of the

realm in that the King was deprived of the services of able bodied citizens. As pointed out by Lord Mustill in R. v. Brown, maiming

seemed to have disappeared in 1803 and certainly there is no record of an individual having been so charged for the last two hundred

years. There is no reason to believe that the situation is any different in Ireland. So the term is moribund: curiously however see s.

143 of the Defence Act, 1954.

72. As a result of the differing views so expressed and noting their historical setting and their antiquity of origin, the main point for me

about Coney, is that at best, it can only be regarded as saying that the law can impose some limit on the defence of consent. Even

then, I hesitate greatly to describe it as an authoritative precedent even on this point.

73. In R. v. Donovan [1934] 2 KB 498 (“Donovan”), the accused was convicted of indecent assault and common assault upon a

seventeen year old girl whom he had beaten with her consent. It was not in dispute that he had caned her for his own sexual

gratification. His complaint on appeal was that the chairman of the Surrey Quarter Sessions had misdirected the jury in summing up

and in the reply which he gave to a question from them. His argument in this regard was accepted and is not of interest to us. Where

the judgment of the Court of Criminal Appeal, given by Swift J. is of importance is where it dealt with a submission from the Crown

that it was unnecessary for the prosecution to prove the absence of consent. On that issue the learned judge summed up his view on

this point:

“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. There are, however, many acts in themselves harmless and lawful which become unlawful only if they

are done without the consent of the person affected. What is, in one case, an innocent act of familiarity or

affection, may, in another, be an assault, for no other reason than that, in the one case there is consent, and in

the other consent is absent. As a general rule, although it is a rule to which there are well established exceptions, it

is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a

probable consequence, and when such an act is proved, consent is immaterial.” (p. 507)

Applying this principle to the facts, the learned judge continued:

“In the present case it was not in dispute that the motive of the appellant was to gratify his own perverted desires

… Always supposing, therefore, that the blows which he struck were likely or intended to do bodily harm, we are of

opinion that he was doing an unlawful act, no evidence having been given of facts which would bring the case

within any of the exceptions to the general rule. In our view, on the evidence given at the trial, the jury should

have been directed that, if they were satisfied that the blows struck by the prisoner were likely or intended to do

bodily harm to the prosecutrix, they ought to convict him, and that it was only if they were not so satisfied, that it

became necessary to consider the further question whether the prosecution had negatived consent. For this

purpose we think that ‘bodily harm’ has its ordinary meaning and includes any hurt or injury calculated to interfere

with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be

more than merely transient and trifling.” (p. 509)

Nonetheless, the accused’s conviction was quashed on the basis that the Court could not be certain that the jury, if properly

instructed, would have found that he had intended to cause and inflict blows likely to cause bodily harm to the prosecutrix.

74. I have to confess to not understanding either passage as quoted. With regard to the first extract it seems obvious that if an act

is criminal without consent, then consent cannot be a defence to it. ("Consent and Public Policy" 1962 Crim. L.R. 74, 154 and 156 -

Glanville Williams). Yet this proposition has been doubted elsewhere (R. v. Brown, Mustill J. at 112). In the second passage I do not

follow why the jury should have been asked about the likelihood or intention to do bodily harm, and if satisfied, that conviction should

follow. Two charges only were preferred: consent was an integral element of and a complete defence to both. Even if the doctor's

evidence showed bodily harm, Mr. Donovan was not charged under either the 20 or 47 of the 1861 Act. Therefore, I think that the

chairman was correct: the only question was one of consent. Be that as it may, the case is considered an authority that consent is

not relevant to any physical inflection beyond common assault.

75. The judgment in Attorney General’s Reference (No. 6 of 1980) [1981] QB 715 is another illustration of this general position:

however its approach and analysis signified a substantial departure from both Coney and Donovan. In this case two persons had

engaged in a consensual fist fight in a public street resulting in bodily harm being caused to the victim. The jury were directed that

the accused might not be guilty of assault if the victim agreed to fight, and he used only reasonable force. The accused was

acquitted. The Attorney General referred a question of law to the Court of Appeal, namely, “where two persons fight (other than in

the course of sport) in a public place can it be a defence for (1) of those persons to a charge of assault arising out of the fight that

the other consented to fight?” It answered as follows.

“[I]t is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for

no good reason. … So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an

assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of

consent.” (emphasis added) (p. 719)

76. The Court identified, the starting point of Swift J. in Donovan as being that consent is irrelevant if the act complained of is

unlawful in itself, which it will be if it involves the infliction of bodily harm. This it rejected: as it did the same view point that would

make an act, even if consensual, an assault if it occurred in public, on the grounds that it constituted a breach of the peace and

therefore was unlawful in itself. This is a direct rejection of Coney. It went on to describe these dicta as reflective of the conditions

of the time in which they were spoken. In effect, the historical approach had its day: it was time for a new start.

77. So the judgment substituted its own approach for the diverse views based in Coney and stood down the start point enunciated in

Donovan. Instead, from its point of view, consent as a general proposition, was a good defence (or an element in the offence) but at

some point in the spectrum of the intentional infliction of harm, disregarding the established exceptions, it was for the good of all that

enough was enough. So on public policy grounds actual bodily harm and beyond was not rendered harmless by consent.

78. Three further points should be noted: firstly, public policy was positioned by judges, not by the legislature: secondly the absence

of a distinction between public and private acts is too sharp for me and I do not accept the generality of how it is put and finally the

reference in the passage quoted to "no good reason", can easily be equated with "lawful excuse" or "lawful justification": such must

therefore be regarded, at least at common law, as an aspect separate and distinct from consent.

79. Finally perhaps the most well known of the cases in this area also featured as lead defendant a man named Brown (R. v. Brown &

Ors. [1994] 1 AC 212). The case concerned a prosecution of a group of sadomasochists who willingly and enthusiastically participated

in the commission of acts of violence against each other for the sexual pleasure it engendered in the giving and receiving of pain. The

conduct engaged in, involved genital torture, degradation and humiliation: in fact this general description spares the reader from the

more specific details of the engaged activity (Lord Templeman, page 83 and Lord Jauncey, page 92). They were charged under s. 20

(grievous bodily harm) and s. 47 (actual bodily harm) of the 1861 Act. As the law stood each was therefore guilty of an offence under

either or both sections unless the participants' consent was such that no offence was committed or was effective to constitute an

defence. The trial judge ruled that the prosecution did not have to prove lack of consent by the recipients. By a majority of three to

two, the House of Lords dismissed the appeal. Each member of the majority delivered a separate judgment, and each in approach

differed significantly one from the other. Whilst I do not propose to analyse them at great length, some discussion is essential.

80. Lord Templeman acknowledged at page 234 that although the authorities do not establish that consent to the intentional infliction

of bodily harm is a defence to a charge under the 1861 Act, they do establish "that the courts had accepted that consent is a

defence to the infliction of bodily harm in the course of some lawful activities”. The question therefore was whether the defence

should be extended to the infliction of bodily harm in the course of sadomasochistic encounters, the answer to which in his view could

only be arrived at by reference to policy and public considerations. Being so viewed and approached in this manner the majority were

not convinced that the law should be so extended. Arguments based on personal autonomy found no favour with the court. They

likewise rejected an argument to the effect that consent should be a defence to the lesser charge in s. 47 but not to the more

serious s. 20 offence. As stated by Lord Jauncey of Tullichettle:-

“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 Offences Against the Person Act 1861, 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. There is nothing in ss. 20 and 47 of the Act of 1861 to

suggest that consent is either an essential ingredient of the offence or a defence thereto…I would therefore

dispose of these appeals on the basis that the infliction of actual or more serious bodily harm is an unlawful activity

to which consent is no answer.” (pp. 244 – 245)

81. However, whilst this position may be relatively straightforward, these passages alone do not present a full picture of the law. As

mentioned above, and as alluded to in several of the extracts just quoted, there existed various exceptions where consent was a

valid defence to bodily harm. In truth, it is difficult to reconcile each of the various categories of conduct in respect of which this was

so, or to identify a common thread which ties them all together. Activities in respect of which consent could be a defence to the

infliction of actual bodily harm included, inter alia, surgical procedures, body adornment (tattooing, piercing, cosmetic surgery, and

even branding – see R v. Alan Wilson [1997] QB 47), boxing, contact sports, rough horseplay, “dangerous exhibitions” and more.

Previously reasonable chastisement of children by teachers and parents was also considered an exception, though thankfully that

position has since been altered by statute (see s. 24 of the 1997 Act and the inserted s. 24A by the Children First Act 2015).

82. It is beyond this judgment to attempt an exhaustive explanation of the rationale which supported each of these exceptions, which

generally were identified on a case-by-case basis. In some situations, such as surgery and necessary medical intervention, the policy

reasons why consent, provided the treatment accords with good practice and was carried out competently, should provide a defence

are so obvious as to not require restatement. In the case of child correction, despite what one might think of it, it at least had at the

time a lawful basis, and therefore is not a true exception at all. On other occasions the line could be far more difficult to discern. I

hope I do no disservice to the decided cases when I say that at times it seems that a deal of legal and/or logical gymnastics was

required to differentiate that in respect of which consent was either an ingredient or a defence, from that in respect of which it was

not. As stated by Lord Mustill in his highly impressive dissent in R v. Brown, in which he analysed at least ten various exceptions:

“I intend no disrespect to the valuable judgment of McInerney J. in Pallante v. Stadiums Pty. Ltd. (No. 1) [1976]

V.R. 331 when I say that the heroic efforts of that learned judge to arrive at an intellectually satisfying account of

the apparent immunity of professional boxing from criminal process have convinced me that the task is impossible. It

is in my judgment best to regard this as another special situation which for the time being stands outside the

ordinary law of violence because society chooses to tolerate it.”

83. Picking up on boxing as an example, it seems that the reasons most commonly cited in support of its lawful status are the fact

that it is properly regulated; that the combatants are properly trained; that it has clear rules of engagement and that the safety of

the fighters and probity of the combat is overseen by a referee; and that medical assistance will be on hand, if required. It is these

factors that differentiate it from prize-fighting, street-fighting and the like. In such circumstances, with the risks minimised insofar as

it is possible to do so, the law will tolerate the deliberate infliction of personal injury. With respect I do not find those reasons

compelling. Such a sport is not engaged in for recreation or personal improvement: it is for the money and the attendant glory that

fame and success bring. So causing a brain injury, rendering one’s opponent unconscious, damaging a vital organ or fracturing this or

that bone, even the risk of death itself, are all overlooked. So on what legal basis is it tolerated? Social value seems intuitively

objectionable. The factors mentioned as justification seem to offer little else and certainly do not permit the deduction of a general

theory that can carry through to the other exceptions. Perhaps Lord Mustill is right: he simply posits that boxing is by now so well-

entrenched in our sporting and cultural psyche as to occupy an anomalous position in law.

84. It is not necessary to wade any further into these exceptions at this point. The old law on non-fatal offences against the person,

though not being entirely washed away, was reformed by the 1997 Act, and it is the provisions of that statute with which we are

presently concerned. As the question for the Court relates to the interpretation of sections 2 and 3 thereof, it is to that matter that I

will turn momentarily. However, what first must be examined is the report of the Law Reform Commission (L.R.C.), on Non-Fatal

Offences against the Person.

1994 L.R.C. Report:

85. This, then, was the backdrop against which the LRC was asked to review the law, leading ultimately to its 1994 Report: the fact

that R. v. Brown predated its publication takes nothing from the content. As that report had an undoubted influence on the statutory

enactment which followed in 1997, it is worth looking briefly at the Commission’s suggestions for reform. The LRC recommended, inter

alia, that sections 18, 20, 42 and 47 of the 1861 Act should be repealed (para. 9.44). It was proposed instead that there should be a

new structure for non-fatal offences of violence from the less serious up to the most serious. The Commission proposed the abolition

of the common law offences of assault and battery, to be replaced by a single statutory offence of assault. The definition of same

set out at para. 9.52 of the Report is virtually identical to that contained in section 2 of the 1997 Act, save that subparagraph (1)(a)

opens with the additional words “causes physical hurt, or” before continuing on. It was recommended that this offence should be

summary only and should be punishable by a maximum penalty of six months imprisonment and/or a fine of medium gravity. As will be

appreciated, the finished section 2 very much reflected this proposal.

86. The Commission went on to recommend the creation of two further offences “for more serious assaults”. They were to read as

follows:

“A person who intentionally or recklessly assaults another causing him harm should be guilty of an offence and

should be liable on conviction or indictment to be imprisoned for 5 years or to a fine of £5,000 or both such fine and

imprisonment or on summary conviction to imprisonment for one year and/or a fine of (the maximum available for a

summary offence.

A person who intentionally or recklessly assaults another causing him serious harm should be guilty of an offence

and should liable to be imprisoned for life or to pay a maximum fine of £100,000 or to both such fine and

imprisonment.” (para. 9.63)

87. The LRC proposed a definition of “serious harm” which is very similar to that replicated in the Act (para. 9.66). It expressly

declined to propose a definition for “harm”, as it was of the view that the law was operating satisfactorily without such a definition,

albeit that the words “actual” and “bodily” were superfluous. The Commission did observe that if a definition of harm was deemed

necessary, the English Draft code defined “personal harm” as “harm to body or mind including pain and unconsciousness” (para. 9.65).

88. The essence of the scheme of “assault” proposed by the LRC was ultimately adopted by the Oireachtas, though not without some

changes of note. However, its proposal to abolish the distinction between assault and battery and create new offences was fully

recognised as was the suggested repeal of ss. 18, 20, 42 and 47 of the 1861 Act. Furthermore, the new structure which it envisaged

and the pillars to support the same were put in place. Sections 2, 3 and 4 made provision for assaults of ascending aggravation or

severity: s. 2, save for an incidental difference reflected the Commission’s view: ss. 3 and 4 are virtually the same. The definition of

“serious harm” in the Act likewise and whilst the Commission did not think it necessary to define “harm”, nonetheless its proposed

definition was adopted verbatim. [Thus therefore the 1997 Act could not be described as simply a qualifying piece of legislation: it

was much more: it was the vehicle of passage from the Victorian times to modern society. Its provisions must be viewed against this

landscape. If this be correct, the current law in this area of personal physical invasion is to be found in the 1997 Act and unless by

obvious incorporation, not external to it.]

89. Some may question the direct relevance of this legislative history on the proper interpretation of sections 2 and 3 of the 1997

Act, an issue which is discussed a little later in this judgment (paras. 125-131, infra). First however a word on the construction of the

relevant sections is desirable.

Approach to Statutory Interpretation:

90. As the many excellent specialist textbooks on the topic will suggest, statutory interpretation, though in many respects it may be

thought of as the bread and butter of a judge’s work, is often a complex undertaking. Various different techniques and methods are

open to the interpreter; depending on which is utilised, the meaning ascribed to a word or section may change quite dramatically. It is

obviously far beyond the scope of this judgment to attempt a thorough recital of all of the principles at play. In setting out the

admittedly broad overview that follows, I endeavour only to state some of the more uncontroversial aspects of the task, as can be

derived from the case law. It will also be necessary, of course, to hone in on those rules and maxims which are most contentious in

this case.

91. Though it is trite to say it, it bears repeating at the outset that the objective of statutory interpretation is to ascertain the will or

intention of the legislature. While on the High Court bench, I expressed that aim as follows in the case of Kelly v. Minister for the

Environment [2002] 4 I.R. 191:

“When a court is asked to interpret or construe a statute, its stated objective is and must be to discover ‘the

intention of the legislature’. The ultimate aim of every primary approach to the interpretation of legislation is to

identify the will of parliament. This obligation equally applies even when it is necessary to invoke any of the

secondary aids to interpretation.”

Mine may not be the definitive statement of the principle, but I believe it captures its essence. There have been many other judicial

pronouncements to like effect (see, for example, the judgment of Kelly J., as he then was, in Macks Bakeries Ltd v. O’Connor [2003] 2

I.R. 396 at p. 400: “[t]he object of all statutory interpretation is to discern the intention of the legislature”).

92. “Ascertaining the intention of the legislature” may be somewhat of a misleading or even a confusing description, for what is meant

by it in this jurisdiction is a purely objective task: what matters is not what was subjectively in the minds of those who passed the

legislation, but rather what intention can be gathered from an interpretation of the words used in the Act (People (Attorney General)

v. Dwyer [1972] I.R. 416). As stated by Henchy J. in DPP v. Flanagan [1979] I.R. 265, “the province of the Courts in interpreting a

statute is not to divine what intention parliament had when passing the particular statute but, by the application of the relevant

canons of interpretation, to ascertain what intention is evinced by the actual statutory words used” (p. 282). It is assumed, in this

process, that the legislature is fully aware of and proficient in the use and application of all relevant law, language and grammar, and

the interpretive criteria used by the courts (see further Dodd, Statutory Interpretation in Ireland (Tottel Publishing, Dublin, 2008),

Chapter 2).

93. As a consequence of the above, the first and most important port of call must be the words of the statute itself. To this end

there have developed various canons, maxims, principles, presumptions and rules of interpretation which are utilised by the judiciary

when interpreting legislation. As above noted, on occasions one might reach two different results when viewing the same provision

through the prism of each of two distinct interpretive criteria; judges have considerable discretion both as to which criteria to apply in

a given case and how much weight to attribute to them. As the primary submission of the appellant on this appeal is that the courts

below have misapplied several important canons of construction in this case, this is a point that I will return to momentarily.

94. The primary route by which the intention of the legislature is ascertained is by ascribing to the words used in the statute their

ordinary and natural meaning. Thus it is this “literal approach” which is first in line when it comes to statutory interpretation. It stands

to reason that in construing the text chosen by the legislator, the first consideration is to give the words used their natural meaning.

Provided that they are clear and unambiguous, the judge’s role is at an end, and the words should be given their plain meaning.

95. Of course, the task of ascribing ordinary meaning is not as simple as it first appears. What is meant by the “ordinary” or “natural”

meaning of a word may differ depending on whether one consults a dictionary or the man on the street. Words may have legal

meanings but also “ordinary” meanings. The natural meaning of a word can also vary greatly depending on the context in which it

appears. “Context” in this regard may require the one interpreting the legislation to consider the immediate context of the sentence

within which the word is used; the other sub-sections of the provision in question; other sections within the relevant Part of the Act;

the Act as a whole; any legislative antecedents to the statute/the legislative history of the Act, including on occasion Law Reform

Commission or other reports; and perhaps even the mischief which the Act sought to remedy. With each avenue of remove, the

natural meaning of the word may, or may not, begin to shift. As eloquently put by Black J. in People (Attorney General) v. Kennedy

[1946] I.R. 517 (“People (AG) v. Kennedy”):

“A small section of a picture, if looked at close-up, may indicate something quite clearly; but when one stands back

and views the whole canvas, the close-up view of the small section is often found to have given a wholly wrong

view of what it really represented.

If one could pick out a single word or phrase and, finding it perfectly clear in itself, refuse to check its apparent

meaning in the light thrown upon it by the context or by other provisions, the result would be to render the principle

of ejusdem generis and noscitur a sociis utterly meaningless; for this principle requires frequently that a word or

phrase or even a whole provision which, standing alone, has a clear meaning must be given a quite different

meaning when viewed in the light of its context.” (p. 536)

96. If ambiguity should remain, and the literal approach results in uncertainty, then it will be necessary to have regard to the

purposive approach. Such an interpretive technique permits the Court to go beyond the pure text of the statute and to consider the

intended objective of the Oireachtas and the reason for the statute’s enactment. In most cases, the same meaning will be arrived at

using the purposive method as it would by using the literal approach; thus the former can function as a useful cross-check for the

latter. Occasionally it may be necessary to depart from the literal approach where to apply it would defeat the clear object and

purpose of the legislation: see section 5 of the Interpretation Act 2005 and Irish Life and Permanent plc v. Dunne [2016] 1 I.R. 92 at

pp. 106-107). In my judgment in C.M. v. Minister for Health and Children [2017] IESC 76, I queried whether, given the modern

tendency to treat matters such as legislative history, overall context, the long title and preamble of the Act etc. all as part of the

literal approach, there still remains a clear, definitive and easily understood demarcation line between that approach and the

purposive method (see paras. 55 to 59 of that judgment). This is certainly not a question that I will attempt to answer in this

judgment; perhaps it is simply that these approaches have elided somewhat as the overall practice of statutory construction

continues to evolve.

97. In any event, it is clear that, as part of the literal approach, the task for the judge is to construe the words used by reference to

the Act as a whole, rather than in isolation. As put by Lord Bingham of Cornhill in R (Quintavalle) v. Secretary of State for Health

[2003] 2 AC 687:

“8. The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in

the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation

given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense

prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may

possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will,

because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which

Parliament intended to achieve when it enacted the statute. … The court’s task, within the permissible bounds of

interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the

context of the statute as a whole, and the statute as a whole should be read in the historical context of the

situation which led to its enactment.”

Lord Millett put it similarly: “[i]n construing a statute the task of the court is to ascertain the intention of Parliament as expressed in

the words it has chosen. The Parliamentary intention is to be derived from the terms of the Act as a whole read in its context” (para.

38).

98. The same interpretive approach is utilised in this jurisdiction: the law reports abound with judges making reference to the need to

interpret Acts of the Oireachtas a whole. In her judgment in C.K. v. Northern Area Health Authority [2003] 2 I.R. 544, McGuinness J.

noted that it is well settled law “that the individual sections of a statute should be interpreted in the context of the statute as a

whole” or indeed in the context of a number of statutes which are to be construed together, where that is so provided by the

Oireachtas (p. 559). To similar effect, in Crilly v. T. & J. Farrington Ltd. [2001] 3 I.R. 251, Murray J., as he then was, observed that

regard should be had to the statute as a whole:

"Manifestly, however, what the courts in this country have always sought to ascertain is the objective intent or will

of the legislature. This is evident for example from the rule of construction according to which when the meaning of

the statute is clear and definite and open to one interpretation only in the context of the statute as a whole, that

is the meaning to be attributed to it …” (p. 295)

Such approach was recently adopted by Clarke C.J. (with whom MacMenamin J., Dunne J., O'Malley J. concurred) and O’Donnell J.,

dissenting, in their judgments in J.G.H. v. Residential Institutions Review Committee [2017] I.E.S.C. 69 (see paras. 5.13 to 5.16 of the

judgment of Clarke C.J. and paras. 4, 6 and 30 of the judgment of O’Donnell J.)

99. Accordingly, that is the approach which must be utilised in the construction of the relevant statutory provisions. The question is

what is the ordinary and natural meaning of the words used in the context in which they appear, that context including, inter alia, the

scheme of the 1997 Act as a whole.

100. Finally, in this introductory context, before turning to the sections at issue I should say a brief word about the specific principles

which apply when interpreting a criminal statute. In Mullins v. Harnett [1998] 4 I.R. 426, which itself involved an interpretation of the

1997 Act, O’Higgins C.J. set out seven applicable principles and canons of construction. The latter two such canons were ‘the

principle against doubtful penalisation’ and what the learned Chief Justice referred to as the “so-called” ‘principle of strict construction

of penal statues’. These two principles, which apply to penal statutes, were said to be in addition to, and not in substitution for,

other canons of construction. The former principle provides that nobody should suffer a detriment by the application of a doubtful

law. As to the principle of strict construction, the Chief Justice quoted the following passages from Maxwell on the Interpretation of

Statutes (12th ed., 1969 at pp. 239-240):

“The strict construction of a penal statute seems to manifest itself in four ways: in the requirement of express

language for the creation of an offence; in interpreting strictly the words setting out elements of an offence; in

requiring the fulfilment of the letter of the statutory conditions precedent to the infliction of punishment; and in

insisting on a strict observance of technical provisions concerning criminal procedure and jurisdiction”. (p. 434 of

the report)

However, he then went on to refer to Bennion on Statutory Interpretation (2nd Ed., 1992), where it was stated at p. 382 that “[t]he

true principle has never been that ‘a penal statute must be construed strictly’(though it is often stated in such terms). The correct

formulation is that a penal statute must be construed with due regard to the principle against doubtful penalisation, along with all

other relevant criteria”. He moreover quoted further from Maxwell (p. 246) to the effect that the rule of strict construction applies

only where there is ambiguity in the statute which all of the other canons of interpretation fail to solve, in which case the benefit of

the doubt should be given to the subject rather than the legislature which failed to properly explain itself. He endorsed the view that,

absent ambiguity, the construction of a penal statute differs little from that of any other.

101. Nonetheless, this obligation to strictly construe criminal and penal statutes has often been restated by the courts: see, for

example, the judgment of Kearns J. (as he then was) for the majority of this Court in DPP v. Moorehouse [2006] 1 I.R. 421 at p. 443;

the judgments of Denham J. (as she then was) and Finnegan J. in DPP v. McDonagh [2009] 1 I.R. 767 at pp. 779 and 790,

respectively, and the recent judgment of O’Malley J. in DPP v. Avadenei [2017] IESC 77. That the provisions in question in this case

are criminal is beyond doubt. Accordingly, this principle of strict construction is one which must be borne in mind when interpreting

same.

The Proper Construction of and the Relationship between Sections 2 and 3 of the 1997 Act:

102. Turning, then, to the proper construction of sections 2 and 3. As has been made clear above, the prevailing interpretation

remains that of Peart J. in Dolny, which was endorsed without fresh consideration by the Supreme Court on appeal and by the Court

of Appeal in this case. In his view, the sections create separate and distinct offences. No definition of “assault” is given in section 1

of the 1997 Act; for Peart J., the word is not used in section 3 as a term of art by reference to section 2 or any other statutory

definition of the word. Accordingly, he gave the word its dictionary meaning of “a violent physical or verbal attack.”

a. The scheme of the 1997 Act

103. With the greatest of respect, I am not convinced that this was the proper approach to take to the interpretation of the section.

Perhaps if one were to read section 3 divorced from its immediate surrounds, the necessity to import a definition for “assault” from an

external source would seem more pressing. However, given the scheme of the sections 2 to 4 of the 1997 Act, there is a strong

argument to be made that the starting point should not be to read section 3 in isolation. Although not appearing in a self-contained

“Part” of the Act, it nonetheless appears to me that there is rather more of a relationship between the sections than the judgments in

Dolny suggest. Even without reference to the wider context entailing the legislative history, there appears to be an undeniable

relationship of gradation between the three sections. This is clear, first, in the degree of damage which is addressed by each offence

– mere application of force or causing of impact (or apprehension of same) in section 2; “harm” in section 3; and “serious harm” in

section 4. Second, this gradation is apparent from the mode of trial appropriated to each layer: from summary trial only under section

2, to the hybrid mode of trial for the mid-tier offence in section 3 which can be tried either summarily or on indictment at the election

of the prosecutor, up to the section 4 offence which is indictable only. Finally, this scale of offending is also apparent from the

applicable penalties, ranging from a maximum of six months imprisonment and/or a €2,500 fine for assault, to up to 12 months

imprisonment and/or a €2,500 fine for assault causing harm (tried summarily) or an unlimited fine and/or 5 years imprisonment for

assault causing harm (tried on indictment), with the maximum penalty for causing serious harm being an unlimited fine and/or life

imprisonment. In each of these respects, the sections appear to deal sequentially with ever greater harm (used in the non-technical

sense) caused by one person to another.

104. Approached in this way, it seems unlikely that the Oireachtas could have intended that both section 2 and section 4, containing

the least serious and most serious offences, respectively, should have a prescribed mens rea (in each case, intention or

recklessness), but that the intermediate level offence in section 3 should be one of absolute liability, as it would appear to be, from

Dolny and the Court of Appeal’s decision in this case. The same would not be a totally implausible outcome, and if the words of the

statute compelled such a conclusion then the Court would have to accept that view, but it is, I think, a sufficiently improbable one as

to throw doubt on whether that is the proper construction of section 3. This point is returned to at paras. 121-124 infra. 105.

Moreover, despite the fact that section 4 is often colloquially referred to as “assault causing serious harm”, and indeed despite the

fact that section 4 offences are typically assault-type incidents, it is clear that the word “assault” appears nowhere in the section. It

refers simply to the intentional or reckless causing of serious harm; that is all. The deliberate omission of the word “assault” from that

section must be juxtaposed against its inclusion in section 3. In my view, the general scheme of these three sections, without

anything else, heavily suggests that section 3 is a “compound” crime, meaning that the prosecution must prove the elements of an

“assault” as defined in section 2, with the additional requirement to prove “harm” as defined in section 1. Such, it seems to me, is the

most natural meaning to ascribe to the word “assault” in section 3 within the context of these provisions as a whole.

b. Giving the same word the same meaning

106. It is true, as stated by Peart J. in Dolny and the trial judge in the within case, that the word “assault” is not defined in section

1, the interpretation section of the 1997 Act. Section 1(1) contains ten definitions of terms that appear in later provisions of the Act.

Of course, if “assault” was therein defined, the issue before the Court simply would not arise. However, I do not believe that the fact

that “assault” is not defined in section 1 is as of such decisive importance as has previously been held. At least as significant, in my

view, is the fact that section 2 does not contain a restricting phrase which limits the definition of assault therein as being “for the

purposes of this section” or “in this section” (see, for example, the judgment of Keane J. in Liam Liston v G. O'C. and A. O'C. [1996] 1

I.R. 501 at p. 515). Such phrases are used on no fewer than nine occasions in the 1997 Act (see sections 7(6), 9(2), 10(2), 12(2),

14(2), 15(2), 18(3), 23(2) and 25(2)). Viewed in such light, there is some weight to be attached to the omission of such words from

section 2.

107. In the absence of any such restricting words in that section, one would have thought it logical that the default presumption is

that the same word should be given the same meaning when it is used in different parts of the enactment, unless the context should

dictate otherwise. As stated by Henchy J. in State (McGroddy) v. Carr [1975] I.R. 275, it is a “fundamental rule of interpretation 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” (pp. 285-286). I can find nothing in the context of the

relevant sections, or the Act as a whole, which would indicate anything to the contrary in this instance. Indeed, the basis for

applying such a rule of construction seems particularly strong in respect of the sections in question, where the word to which the

same meaning is sought to be ascribed is contained in the section immediately following the one in which it is statutorily defined (ss.

12 and 13 of the Criminal Justice (Theft & Fraud Offences) Act 2001). In such circumstances one might almost require an express

statement of contrary meaning before standing down the definition only just given in the preceding section.

108. Indeed this well-established principle of construction has deep roots in the jurisprudence of this Court. Black J., in People (AG) v.

Kennedy [1946] I.R. 517, stated as follows:

“[T]he same words in different parts of a statute, and a fortiori in different parts of the same section, should be

given the same meaning. In The Queen v. The Poor Law Commissioners, in the Matter of the Holburn Union 6 A. &

E. 56, at p. 68, Lord Denman C.J. said:—‘We disclaim altogether the assumption of any right to assign different

meanings to the same words in an Act of Parliament on the general ground of a supposed intention in the Act.’ In

Courtauld v. Legh L. R. 4 Ex. 126, at p. 130, Cleasby B. said:—‘It is a sound rule of construction to give the same

meaning to the same words occurring in different parts of an Act of Parliament. . . .’ In Spence v. Metropolitan

Board of Works 22 Ch D. 142, at p. 149, Chitty J. said:—‘I take it also as a general rule in construing statutes that

the same words must be prima facie construed in the same sense in the different parts of the statute’; and in

Thames Conservators v. Smeed [1897] 2 Q. B. 334, at p. 346, it was said:—‘Many instances occur of a departure

from the cardinal rule that the same word should always be employed to mean the same thing.’” (p. 537)

The learned judge could see no reason for departing from this ‘cardinal rule’ in construing the provision at issue in that case, section

29 of the Courts of Justice Act 1924:

“In s. 29 I find the vital word ‘appeal’ used four times. The first time it is used it expressly refers to an appeal to the

Court of Criminal Appeal. The second, third, and fourth times it is used it expressly refers to an appeal to the

Supreme Court. Hence, its meaning when first used is different from its meaning when used secondly, in respect of

the Court to which the appeal is to lie because the section expressly says so. But, the position is otherwise in

respect of the party who may appeal. There is nothing in the section or elsewhere in the Act which expressly or

impliedly shows that the word ‘appeal,’ as first used in s. 29, is to have a different meaning from what it has when

used secondly, in respect of the party to whom the right is given. Therefore, on the principle of construction

stated, it must be given the same meaning in this respect in each case. Now, where the word ‘appeal’ is first used it

unquestionably means an appeal by the convicted person only. This is made clear by reading ss. 29, 31 and 63

together. Hence, in accordance with the principle of construction stated, it should be inferred that the Legislature

intended it to be likewise limited to the convicted person wherever else it is used in the same section, unless this

limitation is expressly or impliedly excluded by some other words of the Act, and there are no such words anywhere

in the Act.”

109. Applying this principle of construction, which now has an express statutory basis (s. 20 of the Interpretation Act 2005), the

presumptive starting point must be, as stated, that the word “assault” as appears in section 3 must be assigned the same meaning as

is given to the term “assault” in the preceding section. Nothing in the internal or external context of the 1997 Act suggests any

reason why this should not be so.

110. As has been acknowledged by the other courts which have looked these sections, the drafting thereof could unquestionably

have been clearer. However, it appears to me that the proper construction of sections 2 and 3 is that the latter builds upon the

former, and that section 3 is a compound offence. I have reached the view that the correct interpretation of the sections is that the

term “assault” as contained in section 3 must be given the meaning assigned to that word in section 2.

c. The use of dictionaries

111. I do not therefore believe that it was necessary to import a definition of “assault” from an external source, as was done in Dolny.

Dictionaries can undoubtedly act as aids to interpretation. As acknowledged above, a dictionary is an obvious source for the

“ordinary” meaning of a word. However, dictionaries are not authoritative repositories for the interpretation of words contained in a

legislative enactment. The definition of a word may vary as between dictionaries, or editions of the same dictionary – though perhaps

of limited significance in daily life, even a subtle change may have important ramifications when read into a statute. More importantly,

dictionaries cannot supply the context – I use that word in its broadest sense – which is so necessary for the proper construction of

an Act of the Oireachtas. That this is so is reflected by the judicial pronouncements in this jurisdiction warning against over-reliance

on dictionary definitions in statutory interpretation (see, for example, the judgment of Henchy J. in Inspector of Taxes v. Kiernan

[1981] I.R. 117 at p. 122 and the judgment of Keane C.J. in Sinnott v. The Minister for Education [2001] 2 I.R. 545 at p. 637). With

that said, it is undoubtedly the case that the use of dictionaries in statutory interpretation is somewhat inconsistent, and one would

not have to look too far to find influential judgments which have done just that (see, for example, the judgment of Ó Dálaigh C.J. in

Rahill v. Brady [1971] I.R. 69 at pp. 82-83).

112. If it is not uncommon that the dictionary definition of a word will have some influence over the meaning that said word is

ascribed in a statute, the judgment of Barrington J. in Keane v. An Bord Pleanála (No. 3) [1997] 1 I.R. 184 at pp. 232-235 provides an

interesting illustration of the reverse situation that can occur whereby the legal definition given to an everyday word in a statute may

cause changes to the ordinary and natural uses of such term in day-to-day life, which can in turn impact upon the dictionary

definition of that word. The word at issue there was “beacon”, and the learned judge charts how the definition of that term set out in

the third edition of the Shorter Oxford Dictionary (1972) was different to that contained in the eighth edition of the Concise Oxford

Dictionary of Current English (1990), with that change being attributed by Barrington J. to an order made by the Secretary of State

under the Merchant Shipping Act 1979 during the intervening period.

113. O’Sullivan (para. 39, supra) argues that as the dictionary definition utilised by Peart J. in Dolny is “clearly” based on the common

law offences of assault and battery, and as those common law offences have ceased to exist by virtue of section 28 of the 1997 Act,

the dictionary definition can only be of continuing relevance to the extent that it relates to those former offences which have now

been repealed. In her view, it is untenable to suggest that the term has an ordinary meaning independent of its legal meaning.

Accordingly, that dictionary definition is of lesser authority than the legal definition of the word which, arguably, is to be found in

section 2. Although there is much force to this point, it is difficult to be certain as to precisely how the interplay between the old

common law offences, the new statutory provisions, and the dictionary definition of those terms might work in practice. I would not

want to hazard a guess as to how one could influence the meaning of the other, though there is certainly a clear similarity between

the dictionary definition and the old common law offences.

114. On this note, however, I would caution strongly against the use of dictionary definitions for words that have legislatively

prescribed legal definitions unless the context makes it clear that the same is appropriate. Murnaghan J. must surely be correct when

he said “where a statute such as…defining its own terms and makes what has been called its own dictionary, a court should not

depart from the definitions…and meanings assigned…” to the statutory definition. (Mason v. Heavy [1952] I.R. 40 at 47).

115. Particular caution is required where the term in question has an everyday meaning but is also a criminal offence. The Concise

Oxford Dictionary (10th Ed., 2001) give the following definitions for these well-known offences: murder is “the unlawful premeditated

killing of one person by another”; manslaughter is “the crime of killing a human being without malice aforethought, or otherwise in

circumstances not amounting to murder”; rape is “(of a man) force (another person) to have sexual intercourse with him against their

will”; burglary is “illegal entry into a building with intent to commit a crime such as theft”; and theft itself is “the action or crime of

stealing”.

116. Of course there could be no question of a judge ascribing the dictionary meaning to any of these terms rather than their well-

established, and in some cases statutorily defined, legal definitions. The statutes governing their application leave no possible room

for doubt as to what definition is to be applied, whereas on one reading at least the same is not true in respect of section 3 of the

1997 Act. I am therefore aware that at some level I am not comparing like with like. My point, rather, is that the dictionary definition

of a term which happens also to be a criminal offence will frequently fall well short of the standards of precision and completeness

that one would expect to find in a statute criminalising such conduct. Such dictionary definitions are also likely to lack the degree of

clarity and certainty that the criminal law demands. For example, the definition of murder is wholly misleading and inaccurate in a legal

sense; the definition of manslaughter has clearly been heavily influenced by the legal definition of murder; and the definition of theft

is incomplete in several respects. The above definitions are also (understandably) silent on mens rea. Thus it can be seen that a

dictionary definition providing the ordinary meaning of a word will often be a poor surrogate for a statutory definition of an offence.

The criminal law in respect of the above offences would have developed markedly differently if they were interpreted according to the

dictionary definitions set out above. To take as a practical illustration an example provided by the appellant, it cannot be that the

crime of aggravated burglary under section 13 of the Criminal Justice (Theft and Fraud Offences) Act 2001 could be construed by

reference to the dictionary definition of burglary with the aggravating factor of proximate possession of a firearm or imitation firearm,

any weapon of offence or any explosive; rather it must surely be the case that the definition of burglary is sourced from the

preceding section, which defines the crime of burglary.

117. That is not to say that recourse to a dictionary may not sometimes be necessary. What is relevant for present purposes is that

the scheme of sections 2-4 of the 1997 Act is itself suggestive of section 3 “building upon” section 2, which as of the date of its

enactment has contained the statutory definition of the offence of assault. Given that the task for the Court is to interpret the same

word in the same statute, appearing in the very next section, it does not seem to me that the dictionary definition of the term, with

all of the flaws as above described, should have been resorted to unless there was no alternative.

d. Words that have a legal meaning

118. All of this is perhaps part of a more general point, which is that where a word is a legal term or has an acquired legal meaning,

the legal meaning should be applied unless context dictates otherwise (see Dodd, Statutory Interpretation in Ireland (Tottel

Publishing, Dublin, 2008) at para. [5.54]). Though sometimes described as an exception to the literal approach, I would not consider

this principle to be a deviation therefrom so much as an appreciation that the ordinary and natural meaning to be ascribed to such a

word in the context of statutory construction is its legal meaning, rather than its everyday one. This principle of interpretation has

perhaps been deployed more in the interpretation of terms which have acquired a defined legal meaning through their use in statutes

over time, rather than in the immediately preceding section of the same enactment, as we see in this case. However, although

“assault” is an everyday word familiar to all who speak the English language, it is, first and foremost, a legal term: it is both an

offence and a tort. Accordingly, it seems to me that where the term is used in the context of a statute imposing criminal liability for

the commission of certain conduct, it is more appropriate to use its legal meaning rather than its everyday meaning as derived from

the dictionary. This would be so even if there was no definition set out in section 2; however, as there is such a definition given in

the statute itself, I believe that the proper approach to the construction of the 1997 Act is to import that definition into section 3.

119. As an aside, it is true, of course, that the term “assault” is also used in other criminal statutes (see, for example, sections 18

and 19 of the Criminal Justice (Public Order) Act 1994). The above interpretation of section 3 of the 1997 Act should not be taken to

foreclose on the possibility of the word “assault” carrying a different meaning when used elsewhere. It is primarily the scheme of

sections 2 to 4 of the 1997 Act which compels me to the conclusion that I have reached. The same term appearing in other statutes

must of course be interpreted according to its ordinary and natural meaning in the context of such enactment as a whole, bearing in

mind also factors such as the legislative history of the statute and the mischief which it was intended to remedy.

120. There are, additionally, some further considerations which support the view that I have reached on the construction of sections

2 and 3. Though the following would not be decisive in and of themselves, I feel that such matters bolster my conclusion on the

proper construction of the relevant statutory provisions.

e. Mens Rea

121. As above noted, section 3 is silent on its face as to the mens rea for assault causing harm. The interpretation taken in Dolny

and affirmed by the Court of Appeal in the within case has the result, in the view of some critics of the Dolny decision, that the

section 3 offence is one of absolute liability, i.e. that no mens rea is required for the offence. On that reading, it has been suggested,

by reference to the second judgment of this Court in C.C. v. Ireland [2006] 4 I.R. 1, that the constitutionality of the section may be

doubted. Perhaps this explains the respondent’s acknowledgement, or even concession, that Dolny is not authority for the proposition

that the prosecution is not required to prove intent or reckless in relation to the “assault” element of “assault causing harm”; indeed,

the DPP submits that an “assault” for the purposes of that section must be done intentionally or recklessly. So for the prosecution,

Dolny is in fact accepted and in part rejected.

122. It is certainly the case that, in the absence of any express mens rea being identified in a given section, the courts may on

occasion read mens rea into the provision in question. Per Dodd, Statutory Interpretation in Ireland (Tottel Publishing, Dublin, 2008):

“[T]here are categories of interpretive doubt, where the court has, by established jurisprudence, the jurisdiction to

read in matters. These are so well established that they form part of the interpretive jurisdiction and the legislature

can be taken to be aware of them and legislate in light of them. While not exhaustive, examples include the reading

on of: (i) mens rea; (ii) … The reading in of mens rea into enactments is perhaps the best known of these

examples. There is a presumption that mens rea is required before a person can be held guilty of a criminal offence.

Thus where a criminal provision omits wording indicating the mens rea element of an offence, it will be read in, in

most cases. The presumption is almost irresistible where the offence is ‘truly criminal’ in character … It may be

constitutionally impermissible for the legislature to create strict liability offences for certain offences, considering

the criminal nature of the offences and the penalty attached.” (para. [12.24])

123. There is no doubt that section 3 of the 1997 Act is truly criminal in character. No constitutional challenge has been taken to

that section; if it were, and if section 3 was decided to be an offence totally separate from section 2 such that the mental element in

the latter could not be read into the former, the presumption of constitutionality which attaches to Acts of the Oireachtas may have

the effect that a mens rea would require to be read into section 3. However, I mention the point not to throw doubt on the

constitutionality of the section, but rather to highlight the oddity of the position if sections 2 and 4 are taken to require intention or

recklessness, but the intermediate offence in section 3 is read as one of absolute liability. Consequently, I am of the view that the

omission of any mental element from section 3 bolsters the argument that that provision is intended to “build upon” the definition of

assault set out in section 2. On that reading, any fears concerning absolute liability and the constitutionality of the section simply fall

away; the mens rea would be recklessness or intention, the same being imported from section 2 together with the requirement of a

lack of consent. While the omission of mens rea from section 3 does not compel the conclusion that assault causing harm is a

compound offence building upon section 2, I take the view that it is certainly indicative of same. This interpretation, it seems to me,

is consistent with the plain meaning of the words used and the intention of the legislature.

124. In interpreting the section as I have, I do not intend to foreclose on the possibility that a mens rea may be required for the

“causing harm” element of the offence also; no such issue arises on the facts of this case (see para. [9.92] of Charleton, McDermott

and Bolger, Criminal Law (Tottel Publishing, Dublin, 1999)).

f. Reinforcement of this Conclusion

125. In truth, the combination of the matters discussed above is sufficient, in my view, to establish the proper construction of the

section. Applying the relevant principles of interpretation, I consider that the true meaning of section 3 is plain and unambiguous. In

such circumstances I do not think it is truly necessary to go further and have regard to additional considerations, as the case can be

disposed of on the basis of the first principles of statutory interpretation. However, in the event that any ambiguity is thought to

remain, I believe that the legislative history of the sections in question puts the matter beyond doubt. To recap most briefly…

126. The relevant statutory provisions have been set out above (paras. 4-7, supra), as has the legislative history behind their

enactment (paras. 55-64, supra). The Explanatory Memorandum which accompanied the Bill which became the 1997 Act stated that

section 2 was intended to replace the common law offences of assault and battery and that sections 3 and 4 were intended to be

replacements for sections 18, 20 and 47 of the 1861 Act.

127. As has been seen, section 2 of the Act effectively implemented verbatim the LRC’s proposal for a new statutory offence of

assault. The LRC thereafter proposed two new “assault” offences where harm and serious harm are caused to the victim (see para.

64, supra). On the LRC’s scheme it was clear beyond doubt that each such offence was an “assault” offence, and the Report is highly

suggestive of a connection linking each of the three offences, i.e. that all are “assaults” as defined by the Commission, with the

penalty increasing in line with the harm caused.

128. Section 4 replaced the more serious offences contained in sections 18 and 20 of the 1861 Act, in respect of which it will be

recalled that proof of “assault” was not necessary to make out a charge under either section. Although the Oireachtas followed the

outline of the simplified scheme laid out by the Commission, adopting some suggestions virtually verbatim, it dropped the word

“assault” from section 4 and declined to make the “causing serious harm” offence an assault offence. In this respect, at least, it

remains somewhat reflective of the prevailing position pre-1997, rather than the LRC’s recommendation.

129. The section 3 offence replaced section 47 of the 1861 Act, “assault occasioning actual bodily harm”. That this is so is evident

from a comparison of the wording of the relevant sections: “[w]hosoever shall be convicted on indictment of any assault occasioning

actual bodily harm shall be liable [to imprisonment] …”, in the old provision, and “[a] person who assaults another causing him or her

harm shall be guilty of an offence”, in the new. Similarly, the annotations to the 1997 Act by Ivana Bacik (June 1998) indicate that

section 3 was intended to replace section 47. Both offences carried a maximum penalty of five years’ imprisonment. The major

difference, of course, is that section 3 is triable either-way, whereas section 47 was indictable only.

130. It has been observed above (para. 60, supra) that the statutory precursor to section 3, section 47 of the 1861 Act, was a

compound offence in that it required proof of both common assault and of harm. Given the apparent statutory intention to replace

section 47 with section 3, there is a strong case to be made that it, too, was intended to be a compound offence building on section

2, and all the more so in circumstances where the 1997 Act itself sets out the definition of “assault”, rather than relying on the

common law.

131. Now it is true, of course, that outside of certain circumstances above described, consent was not a defence to assault

occasioning actual bodily harm; the “cut-off” for consent was common assault. The LRC, however, recommended that consent would

be a defence to assault and assault causing harm, but not so in respect of its more serious proposed offence of assault causing

serious harm in certain limited circumstances. While it is clear that the Oireachtas did not follow the Commission’s recommendations to

the letter, the general scheme adopted thereby, read in light of this legislative history, is supportive of the interpretation that the

legislature enacted section 3 with the intention of replacing section 47, but taking account of the recommendation that the threshold

for consent should be moved such that one could now consent to “harm”. This is not an inexorable conclusion that flows from the

drafting history. Even if it were, it could not compel me to reach such a conclusion if the actual wording of the statute was clearly to

the contrary. However, I have concluded from a literal interpretation that the proper construction of the provisions is that section 3

builds upon section 2, and in my view the legislative history fortifies the view which I have otherwise reached.

g. Reaction to Dolny

132. It must be noted in passing that the interpretation of section 3 favoured in Dolny was at odds with what seems to have been

the widely shared view of the section amongst criminal law academics, who in their analysis have been somewhat critical of the

judgments delivered in that case.

133. Before Dolny, it was assumed that section 3 builds on section 2. For example, the annotation to section 3 of the 1997 Act by

Ivana Bacik (June 1998) provides that “[g]iven that the section 3 offence is based upon the section 2 definition of assault, it would

seem probable that the principles outlined above as to lawful excuse, consent and section 2(3) common intercourse would also apply

to a charge of assault causing harm.” Similarly, the annotation to section 2 states as follows:

“However, section 2(1) does at least clarify that the absence of consent is now an element of the actus reus of

assault. But, later in the Act, section 22 preserves the defences available at common law, and according to the

Explanatory Memorandum which accompanied the Bill, this includes the common law rules on consent, for example in

relation to sporting activities or medical treatment. Thus, it appears that while the absence of consent is an

essential element of the actus reus, the presence of consent may also be a defence to a charge of assault, and so

the common law rules established in Brown would continue to apply; however, since lack of consent is also an

element of the offence of section 3 assault causing harm … the consent threshold would now appear to be ‘serious

harm’, rather than ‘actual bodily harm’.”

134. Similarly, it would seem that the decision ran counter to the assumptions of many of the leading criminal law textbook writers.

Hanly, in the second edition of his book An Introduction to Criminal Law (Gill & Macmillan, Dublin, 2006) stated that “section 3 requires

proof of an assault that causes harm. Consequently, the prosecution must prove all the elements of assault as defined in section 2,

and show that the assault caused harm” (p. 255). Likewise, McIntyre and McMullan also assumed that the definition of assault in

section 2 carried over to section 3 (Criminal Law, 2nd Ed. (Dublin, Thomson Round Hall, 2005) at p. 131). Quinn was of the view that

the wording of section 3(1) “indicates that it is an assault under section 2, with the addition that harm is caused.” He noted that the

mens rea was therefore the same as that for section 2 and did not appear to require an intention to cause resultant harm (Criminal

Law in Ireland (3rd Ed., Irish Law Publishing, Bray, 1998) at p. 84). The description of the section 3 offence in Charleton, McDermott

and Bolger, Criminal Law (Tottel Publishing, Dublin, 1999) at paras. 9.91 to 9.92 focuses on the mens rea required for the offence;

however, the text suggests that the only distinctions between the offences are the level of harm caused and the penalty. They

moreover state that “the offence in s 3 is defined in terms of assault with an aggravating factor”, which again suggests that the

section 3 offence builds upon that set out in section 2.

135. McAuley and McCutcheon, writing in 2000, found the section to be more equivocal (Criminal Liability (Round Hall, Dublin, 2000) at

p. 532-533). In their view the correct statutory construction of the sections in question is in line with that advocated by Mr Brown,

though they were less clear that the legislature intended to effect such a sizeable change to the existing common law relating to

consent to the infliction of injury. The authors noted that the extent to which the 1997 Act has modified the common law on

consensual force had yet to be determined, but went on to observe that “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”. Thus, in

their view, consent would absolve an accused of liability for an offence under section 3. They took the view that the new “threshold”

of injury to which one cannot consent would appear, since the 1997 Act, to be “serious harm” under section 4; given the definition of

“serious harm” in section 1, this was, in their view, a change of some magnitude when compared to the pre-1997 common law

position. The authors continued as follows:

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

liberalisation of the law might 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.” (p. 533)

However, they then expressed the view that section 22 of the 1997 Act throws some doubt on this interpretation, as the explanatory

memorandum accompanying the bill provided that that section was intended to preserve the old common law in relation to consent,

which of course does not extend so far the 1997 Act does on the appellant’s interpretation of it. Thus, if section 22 is to be read as

the explanatory memorandum suggests, the authors anticipated a conflict between that provision and the literal interpretation of

sections 2, 3 and 4.

136. The judgments in Dolny have, moreover, attracted academic criticism since they were delivered. In the third edition of his book

(An Introduction to Irish Criminal Law (Gill & Macmillan, Dublin, 2006)), Hanly observes that the effect of Dolny is that consent is not

a defence to a charge under section 3, nor is mens rea a requirement under that section. The latter outcome, in his view, sits

uneasily with the decision of this Court in C.C. v. Ireland [2006] 4 I.R. 1. He also opines that it is odd that mens rea is a requirement

of the less serious assault offence under section 2 and the more serious offence under section 4, but not the intermediate offence in

section 3. McIntyre, McMullan and Ó Toghda (Criminal Law (Round Hall, Dublin, 2012)) state that it had been presumed that assault

causing harm was an aggravated form of assault under section 2, but that Dolny has led to “confusion” on the matter. Those authors

suggest that Dolny should be seen in the context of extradition law and should not be viewed as changing the substantive criminal

law on assault (pp. 171-172).

137. O’Malley refers to Dolny in the context of a discussion on consent in his work Sexual Offences (2nd Ed., Round Hall, Dublin, 2013

at para. 4–14). He notes, first, that the case arose in the EAW context and that the sole question for the High Court was that of

correspondence of offences. More significantly, however, he observes that the High Court’s view that the absence of consent is not

an essential ingredient of the offence under section 3 “is open to question”. The stated reason for this is that “assault” is defined in

section 2, where it is expressed to include an absence of consent, and section 3 “merely states that assault causing harm is an

offence without giving any indication that ‘assault’ is to be interpreted any differently in this section than in s.2”. He also notes that

the High Court misquoted section 4 as creating an offence of “assault causing serious harm”, whereas the section makes no reference

to the word “assault”.

138. Undoubtedly the most forthright criticism of Dolny, however, is that contained in an article by Professor Catherine O’Sullivan in

The Irish Jurist (see para. 39, supra, for the full citation). That article has been relied upon by Mr Brown. In her rather trenchant

critique of the decision and its consequences, Prof. O’Sullivan argues that, if permitted to stand, Dolny would have the consequence

of supplanting a legislative definition of a term with a judicial one and would significantly increase the ambit of section 3 to the

detriment of future accused persons by making it an absolute liability offence. The premise of her article is that the decision fails to

adhere to proper statutory interpretation technique and, as such, that it lacks precedential value.

139. Of course, the fact that Dolny has come in for criticism from academic quarters does not of itself mean that that decision was

wrong. If I agreed with the reasoning and outcome of that judgment I would not hesitate to follow it; judges and commentators not

infrequently find themselves on opposite sides of an interpretation. Moreover, the fact that the conclusion which I have reached is

shared by each of the authors mentioned above does not by any stretch suggest that this judgment is therefore forever above

critique. “Whether an interpretation is shared by academics” is not a canon of interpretation, and for good reason: the role of

academia in critiquing and developing the law, though of undoubted importance, is markedly distinct from the judicial function. On

balance, however, it is at least reassuring at some level that the view which I have reached is shared by so many academic experts

in this field of the law.

140. Finally, I should briefly address a few additional arguments which are said to throw into doubt the correctness of the

interpretation reached. First, it was argued that the fact that the word used in section 3 takes the verb form “assaults”, rather than

a formulation such as “[a] person who commits an assault upon another causing him or her harm shall be guilty of an offence”,

suggests that the definition contained in section 2 should not carry over to section 3. Undoubtedly the section could have been

better drafted; had the section been drafted in the latter way, that would perhaps have provided a clearer indication that section 3

builds upon section 2. Nonetheless, given the overall scheme of sections 2 to 4, and the legislative history of section 3 (including both

the LRC Report which informed the 1997 Act and fact that its common law precursor was a compound offence), such cannot displace

my view that the proper construction of the section as drafted is that the definition of assault in section 2 carries over to the word

“assaults” in section 3.

141. Another issue canvassed was whether, if section 3 builds upon section 2, it must follow that section 3 must also be read subject

to the proviso in section 2(3) which reflects the old “common intercourse” defence and provides a statutory basis on which trivial

everyday contact is considered not to be an assault. Per that section, the manner of force or impact which is not “intended or likely

to cause injury” and is “acceptable in the ordinary conduct of daily life”, and is not known by the defendant to be unacceptable to

the other person, does not constitute an assault. While it would follow on my above analysis that section 3 must be read subject to

section 2(3) also, it is difficult to imagine circumstances in which a person charged under section 3 could avail of this proviso. It is an

element of the section 3 offence that the person caused harm; the everyday-life exception under section 2(3) is intended to cover

matters such as jostling in a crowd or good-naturedly slapping someone’s back at a party. It is not part of the implied social contract

between members of society that there is a permission to cause harm to one another. Causing harm to another is by definition “likely

to cause injury” and will not be “generally acceptable in the ordinary conduct of daily life”. Accordingly, although the genuine consent

of the victim will have to be negatived when prosecuting a section 3 charge, I do not see that it would be open to an accused to rely

on section 2(3) for the purposes of implying consent to a person to whom they had caused harm.

h. Conclusion on the interpretation issue

142. Ultimately, I have reached the conclusion that the term “assault” as appears in section 3 of the 1997 Act should be construed

according to the meaning given to that word in section 2 of the Act. I have formed this view primarily and if necessary would have

done so solely, on the basis of the ordinary meaning of the words used as they appear within the scheme of the Act, including the

apparent gradation of sections 2-4, the deliberate omission of any mens rea from section 3 and the omission of the word “assault”

from section 4 in approaching the statute as I have, I have applied the principle that the same words should be afforded the same

meaning in a statutory enactment unless context dictates otherwise. Although I do not strictly consider it necessary to have regard

to any other interpretive criteria in construing the section, I believe that, on balance, the legislative history of the 1997 Act supports

the interpretation that I have reached. It seems to me that on a close reading of Dolny that decision can fairly be confined to the

EAW context (see paras. 46-54, supra). However, even if that was not so, I am satisfied, for the reasons just articulated, that the

interpretation given to the sections in that judgment was “clearly wrong” within the meaning of this Court’s jurisprudence in any

event. Accordingly, even should the interpretation of sections 2 and 3 therein be considered part of the ratio of the judgment, I

consider that the Court should not follow it in this case.

143. Given this conclusion on the specific issue involved, and applying, simply, first principles, one would be forgiven for asking why

from the appellant’s point of view this is not sufficient to dispose of the appeal. As the absence of consent is a definitional aspect of

s. 2, and now also of s. 3 of the 1997 Act, a view shared by each of my colleagues, and if the law was so understood at the time of

trial, it would seem inevitable that the ruling of the learned trial judge in refusing to let the issue go to the jury, was legally incorrect.

However, the majority of this Court take the view that this does not follow and support the basis offered by Dunne J., for her

conclusion. It is therefore necessary to consider the reasons advanced by her for so deciding.

Point of Departure:

144. Although the analysis is different, both Dunne J. and I agree that the word “assault” as used in section 2 has the same meaning

as “assault” in section 3, save for the degree of harm which is not presently relevant, and accordingly that absence of consent is an

ingredient of the offence of assault causing harm. (paras. 38, 39, 41, 47, 48 and 53 of her judgment). This is particularly important as

it must follow from this legislative interpretation that the point on the spectrum, in the intentional infliction of harm at which consent

is a defence, has moved. At para. 53, Dunne J. confirms this: she says:-

“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…”

Therefore, it is common case that post 1997 the new bar is assault causing harm, that is a s. 3 assault. That shift however, as

significant as it is, is not conclusive as to outcome from my colleagues’ point of view. Why this is so is of importance.

145. In the relevant sections of the judgment, various references of a general nature are made to public policy, to s. 22 of the 1997

Act, to the common law position on consent, to Coney and Donovan as well as Jobidon, upon which much reliance is placed. However,

it seems to me that the “without lawful excuse” aspect of s. 2 plays a key role in the decision of Dunne J. The learned judge takes

the view that such aspect attracts policy considerations so that the circumstances in which an assault takes place is highly

important. In this particular case the nature of the agreement or its purpose is to the forefront.

146. It is I think therefore correct to say that a critical reason for nullifying what might appear to have been the logical follow through

on importing the word “assault” from s. 2 into s. 3, is that the appellant’s actions were undertaken for an unlawful purpose or as

otherwise put, as part of an unlawful agreement. So based, the question is then posed: “…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 an offence contrary to s. 3 of the Act of 1997.” (para.

49). This question is even further condensed in para. 56 where it is said “in short, consent to an assault causing harm for an unlawful

purpose is no consent”.

147. The learned judge next observes that the situations in which the law has recognised a defence of consent to assault causing

harm, such as surgery and sporting activity, are those of general benefit to society. It is then stated that the agreement in this case

does not fall within any of the recognised exceptions at common law, a point I obviously agree with, and that it could not have any

lawful purpose. That being so, the appellant in her view, for reasons of public policy, could not rely on consent as a defence to the s.

3 charge.

148. Finally, Dunne J. was satisfied that the Oireachtas never intended such a dramatic change in the law that would see consent as

a defence in all cases of causing harm, irrespective of the circumstances (emphasis from the judgment). The legislature would have

had to be much clearer to achieve that outcome. Having referred to the common law and to the established exceptions, she

continued:-

“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. 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.”

Accordingly, having outlined her response to the certified questions, she concluded that the appeal should be dismissed and the

conviction upheld.

149. With the greatest of respect, I cannot agree with this reasoning or result: accordingly, I will endeavour to explain why my

conclusion is different by reference to the following matters.

Assault and Consent: The Rule and the Exceptions.

150. At common law there emerged what might be described as a rule and what undoubtedly were described as exceptions to it, in

the context of which we speak. The basic norm was that the absence of consent was an essential proof to a common assault but not

to actual bodily harm (s. 47 of the 1861 Act), or grievous bodily harm (ss. 18 and 20 of the same Act) (“The Rule”). The exceptions

were developed on an ad hoc basis (“The Exceptions”). The justification in support of the rule was variously stated: that in support of

the permitted exceptions likewise: the rationale for both altered considerably over time and the distinction became blurred, with the

court adjusting its position to meet the prevailing mischief, either actual or perceived. Despite the randomness of approach however,

the difference between the rule and the exception must be maintained.

151. Take Coney: as above demonstrated the main theme of the judgments in criminalising prize fighting and in denying it special

exemption related to public order concerns. If such could have been effectively controlled, in particular the prevention of civil

disturbance by some other means, one wonders as to outcome (paras. 64 – 72 supra). R. v. Donovan, although stating that Coney

was of “great value” to its judgment, approached the matter from an entirely different perspective. Once the underlying act was

intrinsically unlawful, or as put was malum in se, no degree of consent could nullify that badge of illegality (paras. 73 and 74 above).

The further references in both cases spoke rather indiscriminately as to the raison d’être, eg. the intention or likelihood to cause

bodily harm or the hostility of the blow struck: in which situations the rule prevailed. Foster’s Crown Law (3rd Ed. at 25a) which was

cited with approval in R. v. Donovan suggested that where bodily harm was not the motive or was incidental only to an otherwise

lawful activity, such as sport, or where the activity in question offered strength and skill for personal or public defence, in time of

need, consent was a full answer. So activities such as “cudges, foils or wrestling” were consent based as was rough and undisciplined

sport or play.

152. However, the basis upon which Coney was decided, and the approach of Swift J. in R. v. Donovan, was rejected in the Attorney

General’s reference. The impact which that decision had on both cases is evident from the judgment of the Lord Chief Justice itself,

but is also clear from that of Lord Mustill in R. v. Brown where, when referring to what Lord Lane had said, he stated “No reliance was

placed on the unsystematic old cases on sparring, or on R. v. Donovan, or even as I understand it on R. v. Cooney, except that

showing that the public interest may demand a special response to a special situation. Indeed the protection of the public, which had

been the principal ground for the recognition of prize fighting as a special category in R. v. Coney was explicitly discarded”. And so

commencing in 1981 and following through to the House of Lords decision in R. v. Brown, a new horizon was open: its start point was

that an act consented to, will not normally be an offence but that at some point in the spectrum of harm the court, via public

interest will intervene and render such consent legally inoperable. The hostility of the act complained of and the promotion of manly

diversions were discounted as a ground for either rule or exception. The sole foundation for establishing boundary was policy based.

Whilst therefore neither the Reference nor the decision of R. v. Brown altered the end point of the rule greatly (para. 150 supra),

nonetheless from an analytical point of view those judgments are quite significant.

153. Whilst criticism has been levelled at both the approach and justification judicially offered in Coney and R. v. Donovan, what is

clear is that the common law position as to where the dividing line should be, was unhesitantly based on and derived from policy

considerations, as indeed it must be said were the consequential exceptions to it. That this continued is self evident from the

Attorney General’s Reference and from R. v. Brown. It can thus I think clearly be said that the key pillar in this area, was public

policy. Accordingly, as such concept is a moving reflection of society, both Coney and Donovan must be viewed from a generational

perspective and in a context where societal order and disorder were much different from the present.

Public Policy: Judge led.

154. In any event, the real point which motivates this discussion is that the use of policy considerations, whatever they may have

been, was judge led. The outcome of a case therefore, either upholding the rule or recognising or even adding to the exception list,

reflected what the court thought of as being representative at the time. To so say is not to criticise: indeed, it must be

acknowledged that once public interest is recognised as a “fluid concept”, this avenue of reflection has its attractions, as the

following brief reference shows.

155. In a subset of this general context, in the area of sexual activity, this can be seen in practice. In R. v. Boyea [1992] (Crim. L.R.

574 and 575), Glidewell L.J. said:-

The level of vigour in sexual congress which was generally acceptable, and therefore the voluntary acceptance of

risk of incurring some injury, was probably higher today than in 1934 and therefore the phrase “transient and trifling”

had to be read in light of attitudes in 1992.”

Therefore, the phrase “transient and trifling” which of course was used in R. v. Donovan should be understood in light of the

conditions currently prevailing, wherever that might be.

156. Both in R. v. Brown and in R. v. Wilson [1997] Q.B., the courts likewise picked up on this point. In the latter case, Russell L.J.

remarked that consensual sexual activity, between husband and wife in the privacy of the matrimonial home, is normally not a matter

that should be subject to criminal investigation, let alone criminal prosecution. The status of the actors or the location of their

privacy, if intended to have specific effect, would not be so regarded today.

157. In any event as is evident, the statement was reflective of public opinion and directly fed into the court’s judgment. How one

may ask was Mr. Donovan a criminal but Mr. Wilson not: caning was treated far worse than using a hot knife to brand “A.R.” on his

wife’s buttocks? Given how the court viewed the charges, the degree of harm could not have been decisive, nor can it be explained

simply in a sexual context. The answer is I think more broadly based: it is derived from changing attitudes, behaviour, conduct and

values. As aptly put by Glidewell L.J., there is a world of difference between what society tolerated seventy or eighty years ago and

what is within mainstream boundaries today. In the absence of legislation, the judges in their judgments so determined.

Public Policy: Legislative Intervention.

158. The Oireachtas involved itself in this area of law and did so against the backdrop of the Law Reform Report in which all relevant

case law from many jurisdictions was discussed and analysed. The Commission suggested a new or fresh structural approach,

involving substantial changes to deal with non-fatal offences against the person. In essence and in all material respects, its proposals

were enacted. Virtually all of the old common law assault type offences as well as kidnapping and false imprisonment, together with

the supporting provisions of the 1861 Act, were abolished or repealed (s. 28 and the Schedule to the 1997 Act). It was the first major

reform in this disperse and incoherent area for a very long time.

159. It cannot thus be doubted but that the Oireachtas, as part of its constitutional legislative function was fully cognisant of policy

considerations when considering the 1997 Act. It must be assumed that what in its view was the appropriate level of public interest

was reflected in the resulting measure. As the unanimous view of this Court shows, the Oireachtas certainly did so in making the lack

of consent an element in section 3. So just as the common law position was replaced by statutory enactment, so too was the judicial

view of policy. That being so, it is very difficult to see how, in the same breath the Act would reintroduce public policy from a judicial

perspective and do so in a manner capable of nullifying the shift evident from section 3: in effect, re-establishing the primacy of the

old common law rule, which had been abolished. Despite how unlikely this would be, one must nonetheless ask whether it is so, how

and in what way was it achieved, and finally, what possible justification could exist for this quite anomalous legislative move.

Section 2/1997: Lawful Excuse:

160. As referred to at para. 145 above, it is within this element of the assault definition that Dunne J. finds a basis to determine the

instant case on public policy grounds. With great respect may I say that in my view the phrase, “without lawful excuse” does not

bear the meaning and is not capable of being utilised in the manner suggested by my colleague. My reasons are as follows.

161. For a great number of years what was intended by the phrase in question has formed an integral part of many offences: some

common law, some statute based, some a combination of both. One does not have to look beyond the immediate context. In ss. 18,

20 and 42 of the 1861 Act, to name but a small number of such occasions, the offences therein described are committed when a

person “unlawfully and maliciously” carries out the act prohibited. The word “maliciously” simply conveys the necessary mens rea,

that is the intentional doing of the act (R. v. Mowlatt [1963] 3 AER 47 at 49). The word “unlawfully”, according to Lord Templeman in

R. v. Brown means that the accused had no lawful excuse or justification (p. 78): this was said in the specific context of s. 20 of the

1861 Act, but no doubt must have the same meaning throughout: for Lord Jauncey it meant “without good reason” (p. 89). In Fagan

v. Commissioner of Metropolitan Police [1967] 1 QB 439, the court described common assault as the “intended use of unlawful force

to another person without his consent” (p. 444) “or any other lawful excuse”, a phrase added by Lord Lane in the A.G. Reference.

Much the same is stated in para. 147 of L.R.C. Report, As in R. v. Mowlatt and in Wilson v. Pringle [1986] 3 WLR 1 at p. 9, self

defence was also given as an example of justified force.

162. In my view this is the meaning of the words “lawful excuse”, which meaning derives almost exclusively from the common law

definition of assault. They have no wider signification than referring to situations where the use of force by an accused person was

considered justified in law and therefore was regarded as non-criminal, or as sometimes put, was a full defence to an assault charge,

even one of the utmost gravity. There were well established judicial rules regarding each example of this type of defence, but if and

where statute directly intervened, the question thereafter solely became one of construction. Policy matters, apart from interpretive

rules, played no part. I therefore cannot see how this phrase can be used as a route by which the generality of the s. 3 change can

be so significantly curtailed.

Section 22/1997 Act: Lawful Justification.

163. A provision which is also relied upon as justifying the rejection of consent where the purpose of the act is unlawful, is s. 22 of

the 1997 Act. As part of the argument it is suggested that the phrase “without the consent of the other” must be read as a

requirement additional to the phrase “without lawful excuse”. I respectfully disagree. Because of its brevity may I be forgiven for

quoting it again:-

“22.- (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 and 19, or an act immediately preparatory to the use of force, for the purposes

mentioned in section 18(1) or 19(1) is hereby abolish.”

For the moment may I concentrate on the “lawful authority, justification or excuse” aspects of subs (1), which for convenience I will

collectively term “lawful justification”.

164. The first observation which I make is that, at least for present purposes, no differentiation is required between any of the

“nouns” used. There may be situations where context provides a distinction: not so in this case. Secondly, if this be so, why should

not the words used be given the same meaning as “lawful excuse” now part of s. 3, subject only to the Act providing otherwise. For

my part I know of no reason why not. Presumptively therefore, but subject to the caveat as entered, I believe that they should:

accordingly, unless indicated, reference to either phrase should be regarded as applying to both.

165. Picking up therefore on what is said at para. 161 above, it seems to me that in trying to understand the words in issue,

concepts well known to the common law such as self defence, or defence of others, or defence of one’s property or where otherwise

lawful defence of another’s property, provocation (in a limited way), the prevention of crime, effecting an arrest as a common

informer, assisting a member of An Garda Síochána to both arrest and maintain the arrest, immediately come to mind, as providing a

lawful justification for what otherwise would undoubtedly be an assault, or in the case of provocation one of greater magnitude. Many

of the instances given, which are not exhaustive of what previously existed, are now governed by ss. 18 and 19 of the 1997 Act,

which provide for the justifiable use of force in protecting a person, property, preventing crime etc, and the justifiable use of force in

effecting an arrest, respectively.

166. This view of the similarity between lawful excuse and “lawful justification” as the term is used, is shared by the textbook writers.

Éamonn O’Moore, Non-Fatal Offence Against the Person: Law and Practice (Clarus Press, Dublin, 2018), notes at paragraph [2.104]

that “lawful excuse” is broadly stated and could include, but not be limited to, the lawful exercising of police powers or the justifiable

use of force, as detailed in ss 18 and 19”. Similarly, Charleton, Bolger and McDermott express the view at paragraph [9.86] of Criminal

Law that “[t]he words ‘without lawful excuse’ should be read in conjunction with s 18 of the 1997 Act which codifies the occasions

when force may be used justifiably”. Ivana Bacik was of a similar view in her annotations to the 1997 Act:

“The words ‘without lawful excuse’, although taken from the common law definition of assault, must now be read in

the light of section 18, which provides that the use of force by a person, to the extent that is reasonable in the

circumstances, may be justifiable in a number of instances, in particular where they are seeking to protect

themselves or a member of their family from injury or assault; or to protect their property.”

Accordingly, I am satisfied that the above accurately sets out the meaning of the phrases in question and also, accurately represents

the current relationship between those aspects of s. 2 and s. 22 of the 1997 act.

167. In none of these or other similar circumstances is there any question of a third party’s consent being involved: an intruder with

the aim of theft or an assailant intending to disfigure are quite unlikely to acquiesce to being physically harmed in the protection of

property or defence of one’s self: it would thus be entirely illogical if the use of justified force was not, without more, a defence to

any resulting assault charge. It would seem even more extraordinary if in addition non-consent also had to be established. Such an

approach I believe is incompatible with first principles. So whilst both consent and justification are related, they must be regarded as

separate and distinct for present purposes.

168. As it happens the Law Reform Commission has commented on this (para. 1.108): it states that the issue of consent is a broader

concept than the individual instances of lawful justification which I have just mentioned. It does not suggest in that passage or

elsewhere that justification on its own cannot render harmless the force used. Rather it confirms that at common law a particular

aspect of consent was the founding basis for the most widely used exception of all, regarding the inviolability of the person. This

arose in the context of people going about their everyday business and applied to common intercourse occurring in “the ordinary

conduct of daily life”: this topic is well discussed in Collins v. Wilcock [1984] 3 A.E.R. 374. That exception is now to be found in s.

2(3) of the 1997 Act (para. 141 supra). It is therefore clear in my view that the true meaning of the words in discussion is that as

described herein.

Section 22/1997 Act: Defences at Common Law.

169. There is however a second aspect of s. 22 of the 1997 Act which needs to be addressed. By its terms the provisions of the Act

are subject “to any defence” which previously might have been available under any enactment or rule of law. Undoubtedly the

common law’s position on assault/consent is of course a rule of law and therefore on its face appears to have been preserved. The

question however arises as to what effect this provision has on the consent element of an assault causing harm, the section 3

offence?

170. On a narrow basis one could suggest that s. 22 has no effect because of this Court’s interpretation of the offence causing harm,

where the absence of consent is now an essential element of the D.P.P. proofs. As the section refers to a ‘defence’, it could be said

to have no application, particularly so as the word “defence” is directly coupled “with lawful authority, justifying an excuse”. Although

a viable argument, I am not satisfied to rest my conclusion on this basis. I do so more fundamentally by considering the legislative

intention in enacting s. 3, and when such is viewed in the context of the Act as a whole, the provisions of s. 22 cannot in my view

supplant the consequences of such an enactment.

171. In this context may I comment in passing on para. 22 of the judgment under appeal where the court, having referred to the

Explanatory Memorandum to the 1997 Act went on to say “this section [s. 22] already contemplates the continuance of the common

law rule that consent cannot be a defence to the infliction of serious harm save in very particular circumstances”. May I respectfully

suggest that this is not so, and results from a conflation of the rule with the exceptions. The Memo speaks solely of the activities

involved in sport, dangerous exhibitions and medical treatment, all exceptions. As such it offers no basis for the conclusion arrived at

by the court. Furthermore, and in any event, its overall view, as encapsulated in para. 39, was of course highly influenced by its

attraction to Dolny, which is no longer the law.

172. As previously outlined a lack of consent was neither an element of nor a defence to an assault causing actual bodily harm,

subject only to certain recognised exceptions as above discussed (paras. 81-82, supra). The effect of the 1997 Act is to make lack

of consent part of the actus reus of such offence, and thus must be proved by the prosecution at trial.

173. As I read the old case law, the reason that consent used not be a defence generally to causing actual bodily harm was policy

dictated: no one should harm another “for no good reason”. Whether or not consent could be a defence depended both on the level

of harm caused and on the circumstances in which it was inflicted. Exceptions – “good reasons”, in other words – were recognised on

an ad hoc basis. Some, such as surgical intervention for the benefit of the patient, require little explanation: the valid social purpose

of the operation will justify it even where the risk of harm was significantly above what the common law would otherwise recognise.

The same can probably be said for the exception for sporting activities at least in general, even if the benefits to society regarding

some events must be highly doubted (para. 83 supra). On other occasions the line between what could and could not be consented

to was less obvious: compare the circumstances of Mr. Donovan with those of Mr. Alan Wilson. Although the former was charged with

common assault it appears, that the court treated it as one causing actual bodily harm, the same as that faced by Mr. Wilson. It

seems that the key distinguishing factor between the outcome in both cases was the courts’ assessment of the degree of harm

involved (para. 157 supra). This is significant for our purposes

174. As I read the judgment of Dunne J., it preserves the prevailing position whereby one can only consent to that which is lawful;

thus if the conduct falls within an existing (or yet-to-be-recognised) exception, one can consent to that, but if it does not – as in

this case – the consent is immaterial. Therefore it appears that the change of substance is that the section makes lack of consent an

element of the offence to be proved by the prosecution, rather than being a defence to be raised by an accused; it effects no

change, however, to the level of harm that can be consented to.

175. In my view, the shift by the Oireachtas, which undoubtedly was deliberate, can only have been intended to alter the law more

fundamentally: this in my view has been achieved through making lack of consent an element of the offence. As I see it, the proper

construction of section 3, both based on its plain terms and as informed by its legislative history, and particularly the LRC Report

which preceded the 1997 Act, is that it effected a notable change in the law regarding the degree of harm that a person can

consent, in all circumstances, to having inflicted upon them.

176. Again as noted earlier in this judgment, one could not consent to the infliction of harm beyond a certain threshold, which

threshold has now been moved by the 1997 Act. It is therefore difficult to see why the notion of valid consent under section 3 should

be referenced solely to the established exceptions under the old law, when the threshold was lower. As I read it, the plain meaning of

the section is that it is for the prosecution to prove a lack of consent in every case (provided that the injury does not rise to the

level of “serious harm”, which would move it into section 4, where lack of consent is not an element of the crime, nor is consent a

defence). Of course any consent must be freely given, by a person of age and with the capacity to consent, and must also be fully

informed. Factors such as intoxication, duress or vitiation by fraud may also have a bearing on any consent given; such are by no

means an exhaustive list of the matters which may be relevant. Consent will be a factual matter to be determined in each case by

the jury. Subject to such general requirements for valid consent, however, in my view the proper construction of the 1997 Act is that

it has changed the law such that one can now consent to assault causing harm; put differently, it is always for the prosecution to

prove lack of consent, including in circumstances that do not fall within an exception recognised under the pre-1997 law. Thus the

line at which consent becomes immaterial has been moved by the Act from “harm” to “serious harm”. Though some commentators

have observed that such is a high threshold for consent purposes and question whether that was the true intention of the

Oireachtas, nonetheless, like me, they accept that it is the obvious consequence of the section 3 definition. At page 533 of their

work the authors state, “Nevertheless as a matter of literal interpretation this conclusion seems inevitable.” (Criminal Liability McAuley

& McCutcheon. I respectfully agree.

177. If s. 22 can be utilised to negate the above conclusion, such in my view would run in direct contradiction to the essence of the

shift achieved by the interaction between ss. 2 and 3 of the Act. It would be an interpretative absurdity to believe that the

significance of the change by s. 3 would immediately be nullified by the preservation contained in s.22. I do not doubt that the

section has the capacity of continuing the existing exemptions as embedded in the common law. I do not have to decide whether it

would have any application to a set of circumstances not falling within or being analogous to those exceptions. Even the acceptance

mentioned however must be subject to the Act. Sections 18 and 19 specifically abolish the common law defences of self defence of

person, family member, or third party and property and also the use of force in effecting, or assisting in conducting a lawful arrest. In

their place stand the sections which I have mentioned. So, the statutory defences simply supersede those previously available, at

common law. Likewise, the adjustment created by section 3 cannot be abrogated by the old common law approach to exemptions, for

to hold otherwise would amount to a form of “contra legem”.

178. It seems to me that if possible the Act must be given a reading of consistency between provisions so as to reflect the overall

purpose, aims and objectives of the legislation. No novel rule of interpretation is required for this. It seems obvious that the relevant

part of s. 22 must be read as applying only where it is not otherwise inconsistent with the 1997 Act, at least with its key provisions.

Therefore, whilst the common law exceptions continue to apply, they cannot foreclose on new situations which otherwise the

legislature has provided for: this evidently in the context of ss. 2 and 3 of the 1997 Act,

179. Accordingly, I respectfully disagree that either the phrase “lawful excuse” or s. 22 affords any legal justification for the views

held by the majority of this Court.

Unlawful Purpose: Unlawful Agreement.

180. Another suggestion hinted at if not directly advanced against the suggested consequences of the section 3 change, is that the

same would facilitate frauds of one kind or another. I do not see how this could be the case. Take a staged road traffic accident

where an injury is suffered with the intention of defrauding an insurance company or where a joint enterprise is engaged in with a

similar intention regarding, say, the Department of Social Welfare. That the underlying conduct – infliction of injury – may lawfully be

consented to would not in any way legitimise the follow on attempts of obtaining money by false pretences, fraud or deception. All

such activity would attract the same criminal sanctions and civil protections as they presently would I therefore do not see this as

offering countervailing reason for the conclusion as above reached.

Public Order/Street Fighting.

181. A further argument is that the interpretation of section 3 which I have adopted would mean that one could consent to “settling

the score” outside the pub after an argument, or to manifestly undesirable conduct, such as street-fighting provided serious harm is

not caused. The provisions of sections 14 (“Riot”), 15 (“Violent disorder”) and 16 (“Affray”) of the Criminal Justice (Public Order) Act

1994 would undoubtedly be available to the DPP in such circumstances. Whilst I acknowledge some uncertainty as to the meaning of

“unlawful violence” I would be surprised if in principle such offences were not applicable in respect of organised street-fighting or

other such unlawful conduct. One may add to this list, Disorderly Conduct, Endangerment and Public Nuisance. Furthermore it goes

without saying that the use of any type of weapon would recharacterise the conduct in question. In addition, it may also well be that

local by-laws could be useful. If all of these potential avenues are ineffective then such is an unintended and unwelcome

consequence of the manner in which section 3 of the 1997 Act was drafted, and one which would surely require legislative

intervention to correct. However, it is not necessary to go further with this analysis at this point: it is better to await individual

issues as they may arise on a case by case basis.

182. In this context, I briefly mention the judgment of O’Malley J., whose principal point is that the unlawfulness of purpose plays a

central role on the interpretive issue: added to that, is her rejection of my suggestion that “in principle” the offences last mentioned

would be available in the context of public order/street fighting. The first point so made has been dealt with, at some length,

elsewhere in this judgment. The second point, if I may respectfully say seems like interpretation by effect and consequence rather

than result by interpretation. Such is not the view which I take of the required exercise demanded by this issue in the context in

which it arises. Furthermore, this very same suggestion has been made by the Law Reform Commission in its published Report.

Accordingly, I respectfully reject the criticism offered.

Jobidon v Her Majesty The Queen [1991] 2 SCR 714

183. The decision of the Canadian Supreme Court in Jobidon, though not referenced in the submissions or argued before us has been

relied upon as providing support for the views of the majority of this Court. That was a case where the accused person was charged

with manslaughter arising out of a consensual fist fight on a public street. The defence was one of consent. On such a basis the trial

judge held that the consent of the unfortunate victim to a “fair fight” negated the assault aspect of the charge and thus Mr Jobidon

was not guilty of manslaughter. The Court of Appeal disagreed and substituted a verdict of guilt: the appeal against the conviction

was dismissed by the Supreme Court.

184. The section of the judgment of Gonthier J, speaking for the majority, which is most relied upon include the following, “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…”. I

immediately confess to some uncertainty as to the true meaning of this passage.

185. I readily appreciate what “serious harm” entails: it is largely the equivalent of the s. 4 offence in this jurisdiction. Consent is

therefore immaterial to such charge, this I understand. But I am less certain about what immediately follows, that is the reference to

“non-trivial bodily harm”. At first glance both phrases do not appear to sit comfortably side by side. Non-trivial bodily harm is some

distance from serious harm. From this passage therefore it is somewhat uncertain as to precisely what the learned judge had in mind.

However it must be acknowledged that from an overall reading of his decision the most likely intention was that any force greater

than common assault was beyond the reach of consent. I therefore acknowledge that this is probable conclusion which has been

reached.

186. In Canada all criminal offences are included in the Criminal Code, the first of which was passed in 1893. It is section 265 of the

1985 Code which was directly in play in Jobidon.

187. The main reasoning of the majority for the conclusion reached was their view that the provisions of this section deliberately

avoided defining “the situations or forms of conduct or eventual consequences which the law will recognise as being valid objects of

consent for the purpose of the offence”. As such this task was left to the court, untrammelled in any way by the legislature.

188. In conducting the resulting exercise, the court approached the issue purely by way of domestic interpretive rules which from my

reading of the judgment are not at all readily transferrable to this jurisdiction. If for no reason other than this, a cautionary approach

must be adopted in respect of that decision having significant precedential value in this jurisdiction.

189. In addition however Article 8 of the Code provided that the criminal law of England continued in force save where it was

inconsistent with any Canadian statutory provision. Given what s. 265 did not cover the court extensively followed English

jurisprudence in this area, in particular the Attorney General’s Reference. With that approach and in the belief that s.265 neither

covered the issue in question or altered the common law’s position on assault/consent, it determined the appeal in the manner above

stated.

190. The situation in this jurisdiction is critically different: s. 3 has altered the threshold of consent and has departed from the

common law and the cases which established the position adopted by it. I therefore do not accept that one can readily import

Jobidon into this jurisdiction: Instead I believe that domestic legislation must take precedence which in my view has the

consequences previously stated. I therefore do not believe that Jobidon is as authorities as what is suggested.

An Aside.

191. As an aside, for it is not truly an issue before this Court, I do not see that there was any basis to keep the issue of consent

from the jury on any grounds related to the purported enforcement of an unlawful agreement; though the same is a valid basis not to

enforce a contract at the suit of one of the parties, I do not see that that rule of law has any role to play in the circumstances of

this case.

192. In conclusion, therefore, it follows from my view of the proper interpretation of section 3 that it was for the prosecution to prove

that Mr Cooper did not consent to the attack by Mr Brown. I would accordingly hold that the trial judge erred in not allowing the issue

of consent to go to the jury.

Residual Matters

193. Given the conclusion which I have reached in relation to the interpretation of sections 2 and 3 of the 1997 Act and the

consequences of same for the appellant, it is not necessary to address his submissions concerning parliamentary debate and public

policy. It is clear that the thrust of his submissions in this regard was that in interpreting the statute the courts below had applied a

view of public policy which was diametrically at odds with that expressed by Minister Nora Owen when introducing sections 2, 3 and 4

of the 1997 Act in the Dáil. The Court’s attention has been drawn to the following remarks by the then Minister:

“The first substantive section of the Bill before the House is section 2. This section replaces the common law

offences of assault and battery usually referred to as ‘common assault’ with the new offence of assault which

combines, in one offence, the element of inflicting personal violence as in ‘battery’ and the element of causing

another to apprehend the immediate infliction of personal violence in ‘assault’. This offence will cover most minor

assaults and I am providing that the penalty on summary conviction will be a fine not exceeding £1,500 or

imprisonment for up to six months or both.

Section 3 deals with the more serious offence of assault causing harm. This new offence replaces the offence of

assault causing actual bodily harm contained in section 47 of the 1861 Act. I am providing a maximum penalty of

five years for this offence, which is the same as the existing penalty. Under the present law, consent cannot be a

defence to a charge of causing actual bodily harm. The Law Reform Commission recommended that such a rule is no

longer appropriate and I have accepted that view. Since section 3 is framed by reference to an assault and consent

is a defence to simple assault, it will also be a defence where actual bodily harm is caused. We are not talking here

of cases of serious harm which are covered by the next section.

Section 4 creates the offence of causing serious harm, which will replace the offences of wounding or causing or

inflicting grievous bodily harm in sections 18 and 20 of the 1861 Act. Consent will not be a defence to a charge of

causing serious harm but section 22 provides that existing common law defences will continue to apply. Accordingly,

the common law rules under which bodily harm arising in the course of sports, dangerous exhibitions or medical

treatments will apply, where appropriate, to exempt the action from criminal liability. I have provided that a person

convicted of this offence on indictment will be liable to life imprisonment.”

194. It is said that the interpretation of the courts below runs counter to the policy expressed in these remarks. Evidently I have

come to a different view on the construction of the sections than did the learned trial judge and Mahon J. I refer to the above

extract of the Minister’s speech merely to flag that it was drawn to the Court’s attention by the appellant. However, I have not had

regard to same when interpreting the provisions in question. It is true that the certain common law jurisdictions have relaxed the rule

according to which reference to parliamentary debates as an interpretive aid is not permitted. However, the law in this jurisdiction

remains as stated in Crilly v. T & J Farrington Ltd. [2001] 3 I.R. 251. Though the issue did not fall for determination in that case,

Denham J., Murray J., McGuinness J. and Fennelly J. each stressed caution in modifying the rule regarding the admissibility of words

spoken in parliamentary debates as an aid in construing statutes. Various cogent reasons were given for same, and it is not necessary

to retread that ground here. This is a point which may arise again in the future, but, based on the conclusions I have reached earlier

in this judgment, I do not think that it is appropriate to go against that default view in this case. The views expressed by the Minister

are simply not a relevant matter in construing the 1997 Act.

195. As it transpires, in my view the proper meaning to be attributed to the provisions in question corresponds to the intention

expressed by the Minister. This could undoubtedly have been made clear. Had the first principles of statutory interpretation compelled

me to a different conclusion, the fact of the Minister having declared otherwise would not have altered my view. Although I am not

required to decide it in this case, I should say that I do not find any force in the appellant’s argument that courts cannot form their

own view of public policy, distinct from that expressed by the Executive. Courts are frequently called upon to do same and the

ascertainment of public policy is by no means the exclusive preserve of any one branch of government. Such remarks are, of course,

no more than obiter.

Conclusion

196. For the reasons above articulated, I would allow the appeal.