Is consent ever a defence to assault?

Fights amongst prison inmates are hardly rare. But when Gerard Brown was convicted of assaulting fellow prisoner and former garda Stephen Cooper, the outcome hit the headlines. Michelle-Thérèse Stevenson investigates.

The above case found its way to the Supreme Court in DPP v. Brown [2018] IESC 67. One of the main issues was that of consent and, specifically, whether this can be raised as a defence to the offence of assault causing harm. This article examines the findings.

By most standards, Brown is an unusual case. Although the injured party categorically denied that he had consented to the assault, the appellant claimed that his fellow prisoner had actually asked to be assaulted. The underlying reasoning for this, according to Mr. Brown’s evidence, was so that Mr. Cooper could then be transferred from Portlaoise to an open prison because he had been “seriously assaulted”.

This case spotlights a challenge for the criminal law: where do the limits of consensual force lie? Although personal autonomy has long been recognised as a fundamental principle, the courts have historically tended to rule that a person cannot consent to the infliction of harm on the grounds of public policy. In Brown, the specific question before the Supreme Court was whether consent can be used as a defence to assault causing harm contrary to Section 3 of the Non-Fatal Offences against the Person Act, 1997 (‘the 1997 Act’)? Central to answering this is the interpretation of the interplay between sections 2 and 3 of the 1997 Act.

There are three categories of assault offences set out in the 1997 Act that range in seriousness. First in the hierarchy is section 2 which provides for the offence of assault, tried summarily. Second is section 3 which sets out the law on assault causing harm while the third, in section 4, provides for assault offences which cause serious harm.

What is notable is that section 2 is unequivocal, providing for lack of consent to be part of the actus reus (the act) of assault. But section 3 is much more opaque. Although lack of consent is not explicitly set out within this section, for a number of years following the enactment of the 1997 Act, it was assumed that section 2 must be carried into section 3.

Here lies the conundrum for the courts: if section 3 builds on section 2 of the 1997 Act, then it must follow that the consent threshold in Ireland is raised to a level beyond that tolerated by the common law rule that a person cannot consent to the infliction of harm. Although there are some exceptions to the rule—certain sports and surgery, for example—the leading authority is the English case of (coincidentally) the same name, R. v. Brown [1993] 2 All ER 75. In this case, a group of consenting men engaged in sadomasochistic activities.

Nevertheless, the House of Lords found that the men’s behaviour was unlawful regardless of consent.
The issue of whether the 1997 Act had been liberalised to such an extent, and by such a high threshold, went before the Irish courts in Minister for Justice v. Dolny [2008] IEHC 326. In this European arrest warrant case, Peart J. concluded that section 3 provides for a “freestanding” offence of assault causing harm and that the requirement that the assault be without the consent of the victim is “distinctly absent” from the section 3 offence.

Ten years later, the subject was revisited yet again in Ireland in Brown when the Supreme Court examined whether the consent provided for in section 2 of the 1997 Act is removed from section 3. Rejecting the reasoning in Dolny and dismissing the appeal, all of the judges agreed that section 3 should be read in the light of section 2 of the 1997 Act. Nevertheless, Dunne J., for the majority, held that absence of lawful excuse came into play; in other words, the supposed basis for the consent in this case negated lawful excuse. Stated otherwise, a person cannot consent to force where there is no lawful excuse.

But in his dissenting judgment, McKechnie J. argued that section 3 introduced a “notable change” in terms of the degree of harm that a person can consent to having inflicted upon themselves. He also said that the line at which “consent becomes immaterial has been moved by the [1997] Act from ‘harm’ to ‘serious harm’”. That being the case, a fundamental question remains open; was such a high threshold the legislative intention of the Oireachtas? The debate will doubtless continue.

Dr. Michelle-Thérèse Stevenson is a Researcher, School of Law, University of Limerick

For full and in-depth coverage, see the current printed edition of Garda Review.

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