In its decision in DPP v Brown [2018] IESC 67, handed down just before Christmas, the Irish Supreme Court addressed the vexed question of when the “victim’s” consent to the application of harm can constitute a defence for the person charged with the offence of assault causing harm (broadly, the equivalent of the English offence of assault occasioning actual bodily harm). By a three to two majority, the Court decided that the consent of the victim could not constitute a defence where the harm was inflicted for an unlawful purpose.
As every first-year law student will know, where a person has consented to being subjected to a simple assault or battery by another person, his or her consent will provide a complete defence to the charge of assault or battery. If, however, the assault or battery results in harm that is more than transient or trifling, the consent of the person concerned will not normally provide a defence.
Critically, the common, law has recognised certain exceptions for harms suffered in the course of certain activities. These are generally considered to include: regulated contact sports, reasonable surgical operations, ear/body-piercing, tattooing, ritual circumcision, horseplay and dangerous exhibitions, among others. These have been justified on public policy grounds largely on the basis that the activities in question confer benefits on society in general. By way of contrast, settling a dispute by a consensual fist-fight is not considered to have any social utility sufficient to avoid criminal liability for the resultant harm. Similarly, in R v BM (2018) the English Court of Appeal held that consent did not provide a defence for certain body modifications (removal of the visible ear, removal of the nipple and division of the tongue) carried out by a trained (but not medically qualified or regulated) tattooist and body piercer.
Whether the exceptions extend to the inclusion of pain inflicted in private by consenting adults for their mutual pleasure has been the subject of some conflict. In the 1934 English case of Donovan it was held that the defence of consent was not applicable in respect of the caning of a teenage girl on the buttocks by and for the sexual pleasure of the accused. Similarly, in the controversial 1994 English case of Brown, the House of Lords decided by a majority that the defence of consent was not applicable in respect of sado-masochistic acts inflicted by a group of men on each other in private for their mutual pleasure. The freedom to engage in such activities was not considered to have any socially beneficial value. In 1996, however, the English Court of Appeal held that consent was available as a defence to a man who branded his initials on the buttocks of his wife in the course of private consensual sexual activity. In the instant Brown case, the Irish Supreme Court had to revisit some of the public policy issues underlying this vexed area of the law.
The Irish Brown case arose from an incident in prison where the accused prisoner hit the victim (a fellow prisoner) on the head with an improvised weapon, thereby causing a significant injury requiring 12 stitches. The accused claimed that the assault was carried out pursuant to an arrangement with (and the consent of) the victim with the aim of advancing the victim’s application to be moved to another prison. Although not relevant to the legal issue before the Court, it is worth saying that the victim denied giving any such consent or being party to any such arrangement. He was a former member of the Garda Síochána (the Irish police) who had been convicted and sentenced to a term of imprisonment for drug-related offences. The question for the Court was whether, as a matter of law, an accused could rely on the victim’s consent as a defence to a charge of assault causing harm in such circumstances.
In Irish law, the old offences of assault, assault occasioning actual bodily harm and wounding/grievous bodily harm, as provided for by common law and the Offences against the Person Act 1861, were replaced and reformulated by sections 2, 3 and 4 of the Non-fatal Offences against the Person Act, 1997. The latter provisions reflect a gradation of seriousness. Section 2 provides for the offence of assault at the lowest level of seriousness. It concerns the application of force to, or causing an impact on, the body of another (or causing another to apprehend the immediate application of such force or impact). It is considered to be the equivalent of the old common law offences of assault and battery.
Section 3 creates the offence of assault causing harm, where harm is defined as causing harm to body or mind and includes pain and unconsciousness. It is considered to be the equivalent of the old offence of assault occasioning actual body harm in section 47 of the 1861 Act. As such, it includes injury and pain associated with cuts and bruises falling short of permanent harm. Section 4 creates the offence of causing serious harm, where serious harm is defined as injury creating a substantial risk of death, or which causes serious disfigurement or substantial loss or impairment of the mobility of the body or a bodily part or organ. It equates broadly with the old wounding and grievous body harm offences in the 1861 Act.
A significant feature of the definition of the basic assault offence in section 2 is the express inclusion of the requirement that the application (or threat) of force must be without the consent of the victim. This reflects the common law position in which consent is recognised as a complete defence to a charge of simple assault or battery. Accordingly, no offence is committed where two individuals engage in consensual physical interaction which results in nothing more than transient or trifling injury.
Significantly, for the purposes of the instant Brown case, the section 3 offence is expressed tersely to the effect that “[a] person who assaults another causing him or her harm shall be guilty of an offence”. No further clarification of the definition of “assault” is provided. The obvious assumption is that the definition of assault in section 3 is the same as the definition in the immediately preceding section 2; the essential difference between the two offences being that the former (more serious offence) must result in harm (such as pain or unconsciousness) to the body or mind of the recipient. If that is correct, however, it should also mean that, in a section 3 case, the prosecution would have to prove that the recipient of the harm did not consent to the assault. To put it another way, it would not be an offence to subject another person’s body or mind to pain or unconsciousness where that person consents to it.
Applying the ordinary canons of statutory construction, the Supreme Court in Brown had no difficulty in deciding unanimously that the word “assault” in section 3 bore the same meaning as in the basic assault offence defined in section 2. In doing so, the Court effectively overruled its own previous decision in Dolny where, to the surprise of many commentators, it had accepted that the two offences were entirely separate and unrelated, to the extent that “assault” in section 3 bore a different meaning to “assault” as defined in section 2. Arguably, the Dolny case could be distinguished as it concerned the execution of a European arrest warrant for the surrender of a defendant to Poland, as distinct from his prosecution for an offence under section 3.
On the face of it, an immediate consequence of the Supreme Court’s interpretation of the relationship between the section 2 and section 3 offences in Brown is that consent would now be a defence not just for low-level common assault or battery, but also for the more serious offence of assault causing harm. This would represent a significant change in the law on consent as a defence. In effect the threshold for consent was being raised so that a person causing pain to another person, with the latter’s consent, would not have to bring himself within one of the limited public policy exceptions to avoid criminal liability for the offence of assault causing harm. He would qualify for the consent defence directly as a matter of law. Consent would only lose its blanket defence status if the accused’s actions caused serious injury amounting to, for example, disfigurement or a substantial risk of death.
It would appear, therefore, that the relevance of the public policy exceptions had been pushed back and confined to a narrow range comprising the most serious assaults (the old 1861 Act offences of wounding and grievous bodily harm). For all the lesser assaults, including those involving harm that was less then serious (the old 1861 Act offence of assault occasioning actual bodily harm), the consent of the “victim” would always provide a complete defence.
All five judges acknowledged that the effect of their interpretation was to raise the established common law threshold for the application of consent as a defence. It might seem reasonable to suppose, therefore, that the consensual sado-masochistic activities of the defendants in the English Brown case would not now constitute an offence in Ireland. Equally, of course, it should mean an offence of assault causing harm would not be made out where non-serious injury was inflicted on one of two protagonists who had agreed to settle a personal dispute by a fist-fight. For the purposes of the instant Brown case, it should also mean that the charge of assault causing harm would fail if the prosecution could not prove that the injury was inflicted without the consent of the “victim”. The fact that it was inflicted for an unlawful purpose, or at least to subvert proper prison discipline, would be irrelevant. It was on this aspect that the majority and minority divided.
The minority judges faced the implications of their interpretation of section 3 head on. They accepted that raising the threshold for the consent defence to cover the infliction of pain meant that many activities which would previously have qualified as criminal assaults were effectively decriminalised where the “victim” was consenting. This could include the activities of the defendants in the English Brown case, consensual fist-fights and the consensual infliction of pain for an unlawful purpose separate from the assault itself. So long as they did not entail life threatening or permanent injuries, they should benefit from the consent defence. In the minority’s view, the public policy objective, as expressed through the legislation, was to remove these consensual activities from the reach of the criminal law offences against the person. Interestingly, it would appear from the parliamentary debates on the 1997 Bill that the minority’s interpretation was in accord with the public policy objectives behind the changes.
It does not follow, of course, that such consensual activities can never entail criminal wrongdoing. The minority judges noted that consensual injury inflicted for an unlawful purpose (separate from the injury itself) is likely to entail the commission of one or more non-assault offences. Settling a dispute through a consensual fist-fight, for example, could entail the commission of one or more public order and criminal damage offences. Similarly, the consensual infliction of injury as a pretext for making a fraudulent insurance claim could amount to one or more theft, fraud or insurance offences. In the instant case, the infliction of pain with a view to securing a prison transfer would likely amount to an offence against prison discipline. So, while the consensual nature of the injury should protect against criminal liability for assault causing harm in these cases, it will afford no protection against liability for other offences that may arise from the activities in question.
The majority judges, by way of contrast, baulked at the notion that causing harm for an unlawful purpose would no longer satisfy the offence of assault causing harm. They considered that if the legislature had intended such “a radical change in the law”, it would have expressed that intent more explicitly. The majority were of the view that the legislation did not go that far. They reasoned that consent could only be a defence to an assault offence where the consent itself was valid.
Unquestionably, a consent would not be valid for the purposes of a defence, if it was uninformed or forced, or was the consent of a child who was not old enough to give a lawful consent. The majority, however, went further. Pointing to the requirement that the act causing harm must be committed without lawful excuse, they said that “consideration of what may or may not constitute a lawful excuse will give rise to a consideration of public policy.” In determining what the public policy considerations were in this context, they reverted to the common law position that consent could only be a defence to the infliction of harm where the activities in question could be considered beneficial for society in general. There could be no lawful excuse for the infliction of consensual harm where the activities in question carried no such benefit for society at large. In other words, while the threshold for the level of harm that can be consented to has been raised, there has been no change to the public policy limitations on the circumstances in which the consensual harm can be inflicted. It remains the case that a person cannot consent to harm inflicted for an unlawful purpose or, presumably, even for a purpose that carried no social utility in general.
Aspects of the majority’s reasoning in support of their interpretation are open to question, and they do attract sharp criticism from the minority. It must also be said that the effect of the majority’s interpretation is effectively to deprive the consent element in the definition of the section 3 offence of much of its substance. In effect, the public policy constraints on the extent to which consenting adults can inflict personal harm on each other have been brought in by the backdoor. Raising the threshold level of harm to which they can consent will be of little consequence, if they still have to bring their actions within the exceptional circumstances recognised at common law. As seen in the English Brown case, this can have the effect of criminalising adults engaging in the consensual infliction of pain in private for mutual pleasure. Since the infliction of actual bodily harm in the circumstances of that case was considered to be without lawful excuse (as it did not come within the limited public policy exceptions recognised at common law), it is difficult to see how it could come within the limitations imposed by the majority on the application of consent as a defence to a section 3 offence.
It must be said that the majority were primarily concerned to avoid the prospects of consent being used a defence to the infliction of harm for an ulterior criminal purpose (i.e. for a purpose other than the infliction of the harm itself). However, by adopting the public policy exceptions as the divide between what can, and cannot, be consented to, they cast their net much wider than harm inflicted for an ulterior criminal purpose. Equally, they have not shed any further light on the parameters of the public policy exceptions or underlying principle that might unite them. While they did intimate that the English Brown decision might be decided differently in Ireland in view of Constitutional changes and the effects of the 1997 Act itself, they did not elaborate on how that might be so. Indeed, it is not immediately obvious how it could be so, given the majority’s retention of the common law public policy approach to the interpretation of section 3.
A further criticism of the majority’s decision is that it over-criminalises, or at least it fails to take the opportunity presented by the reformulation of the assault offences to push back against unnecessary criminalisation. Not only does it retain the threat of penalising the infliction of consensual pain between consenting adults in private in some circumstances, but it also retains assault offences unnecessarily to deal with situations in which the consensual harm is associated with an ulterior criminal purpose. As pointed out by the minority, other criminal offences (associated with the ulterior criminal purpose) are available to deal with such situations. There is no need to double up with the inclusion of assault offences, especially where the price for doing so is to defeat the legislature’s apparent attempt to roll back and clarify the scope of the assault offences. The majority judges’ dismissal of the alternative offences identified by the minority in this context is not persuasive.
I am indebted to Johanne Thompson, Senior Lecture in Law, for comments on an earlier draft of the above piece and the reference in it to R v BM (2018).
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