Director of Public Prosecutions v Brown

Factual and Procedural Background

The Appellant, a prisoner, struck the Injured Party (also a prisoner) several times on the head with a mug concealed in a sock while both men were in The Hospital wing of a prison. The Injured Party required twelve stitches. After a three-day jury trial in The Circuit Criminal Court the Appellant was convicted of assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997 and received a three-year consecutive sentence.

At trial the Appellant admitted the assault but claimed the Injured Party had asked him to stage the attack so the Injured Party could be transferred to another prison, allegedly offering €1,000 and sensitive documents in return. The trial judge ruled that consent was not a defence to a charge under section 3 and refused to leave that issue to the jury.

The Court of Appeal dismissed the conviction appeal. The Supreme Court granted leave to appeal on five issues concerning the construction of sections 2 and 3 of the 1997 Act, the role of consent, the meaning of “assault”, the separateness of the two offences and the relevance of public-policy considerations.

Legal Issues Presented

1. Whether the statutory definition of “assault” in section 2 of the 1997 Act carries forward into section 3.
2. Whether lack of consent is an element of the offence of assault causing harm under section 3.
3. Whether sections 2 and 3 create separate and distinct offences or operate on a graduated continuum.
4. Whether and in what circumstances consent can be a defence to an assault causing harm.
5. The extent to which courts may invoke public-policy considerations to negate consent.

Arguments of the Parties

Appellant’s Arguments

• The phrase “without the consent of the other” in section 2 qualifies the term “assault” and therefore applies equally to section 3.
• Sections 2 and 3 form a graduated scheme; only section 4 deliberately omits “assault” to exclude consent.
• Public-policy objections relied on below conflict with legislative intent; if ambiguity exists the court should consider parliamentary debates.
• The interpretation adopted in Minister for Justice v. Dolny is wrong and should not be followed.

Prosecutor/Respondent’s Arguments

• Sections 2 and 3 create discrete offences; section 3 is a free-standing “assault causing harm” offence that omits consent as an ingredient.
• The Supreme Court in Dolny has already so held and that authority should not be departed from unless “clearly wrong”.
• Even if lack of consent is normally an ingredient, consent given for an unlawful purpose (here, to deceive prison authorities) is void on public-policy grounds.
• Section 22 preserves common-law limits on consent; lawful-excuse and public-policy considerations therefore still restrict the defence.

Table of Precedents Cited

Court’s Reasoning and Analysis

All judges agreed that:

• The word “assault” in section 3 must, as a matter of ordinary statutory construction, bear the same meaning assigned to it in section 2, so that absence of consent is an ingredient of assault causing harm.
• Section 3 therefore changed pre-1997 common law by moving the “consent threshold” from trivial touching to harm short of serious harm.

The majority (Judge Dunne, Judge O’Malley, and Judge Finlay Geoghegan) nevertheless dismissed the appeal because:

1. Section 2 also requires that the assault be committed “without lawful excuse”.
2. Any consent given for an unlawful or dishonest objective (here, to manipulate prison transfers and obtain money) is vitiated by public policy and cannot constitute a “lawful excuse”.
3. Section 22 preserves existing common-law rules that invalidate consent where bodily harm is inflicted for a criminal purpose.
4. Accordingly, even though consent is generally a relevant ingredient, on the facts the purported consent was null, so the trial judge’s refusal to leave it to the jury did not cause a miscarriage of justice.

The minority (Judge McKechnie, dissenting) held that:

• Once absence of consent became an element, it was for the prosecution to prove; the trial judge should have allowed the jury to consider the defence.
• Section 22 does not revive old common-law limits so as to cancel the legislative shift enacted in section 3.
• The appeal should therefore have been allowed and the conviction quashed.

Holding and Implications

APPEAL DISMISSED; CONVICTION AFFIRMED.

Implications:

• The Supreme Court confirms that lack of consent is ordinarily an element of assault causing harm under section 3.
• However, consent will be ineffective where it is given to further an unlawful or public-policy-offending objective; courts may still vitiate consent in such circumstances.
• The judgment reconciles the conflicting authority of Dolny but leaves open a narrowed space for consent-based defences in assault-causing-harm prosecutions.
• No new precedent was set on sentencing or procedural matters; direct effect is to uphold the Appellant’s conviction.