Title:	Director of Public Prosecutions -v- Brown
Neutral Citation:	[2018] IESC 67
Supreme Court Record Number:	46/17
Court of Appeal Record Number:	2015 273 COA
High Court Record Number:	N/A
Date of Delivery:	12/21/2018
Court:	Supreme Court
Composition of Court:	McKechnie J., MacMenamin J., Dunne J., O'Malley Iseult J., Finlay Geoghegan J.
Judgment by:	O'Malley Iseult J.
Status:	Approved
Result:	Appeal dismissed
Judgments by Link to Judgment Concurring Dissenting Dunne J. Link MacMenamin J., O'Malley Iseult J. McKechnie J., Finlay Geoghegan J. O'Malley Iseult J. Link McKechnie J. Link Finlay Geoghegan J.

McKechnie J.
MacMenamin J.
Dunne J.
O’Malley J.
Finlay Geoghegan J.

BETWEEN:

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

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

2. It may be helpful to stress the matters on which all the members of the Court are in agreement. We accept that the appellant’s analysis of the relationship between s. 2 and s. 3 of the Non-Fatal Offences Against the Person Act 1997 (hereafter “the Act of 1997”) is correct, and that the absence of consent is an ingredient of a charge under s. 3. The dicta to the contrary in Minister for Justice, Equality and Law Reform v Dolny [2009] IESC.48, [13] are, accordingly, to be seen as incorrect. Further, it is accepted that the impact of this provision is that an individual may give effective consent to an assault that causes harm up to the threshold for an offence under s. 4. It may well be that cases such as R. v Brown [1994] 1 A.C. 212 would be decided differently here under the Act of 1997, especially since considerations of privacy and autonomy would be involved. The point at which the members of the Court differ is on the question whether consent may be vitiated, or rendered legally ineffective, by circumstances such as the presence of an ulterior unlawful objective. That, and not the previous common law rule that rendered consent irrelevant in the case of actual bodily harm, is the public policy issue to be determined here.

3. I think that it is also helpful to bear in mind the provisions of s. 18 of the Act of 1997. This section enumerates five sets of circumstances in which the use of subjectively reasonable force will not constitute an offence. In brief summary, they are: the protection of oneself or another; the protection of property; and the prevention of crime or a breach of the peace. It has not been argued in this case, and I do not wish to be taken as holding, that this provision is entirely exhaustive of the circumstances in which force may lawfully be used but it is, in the first instance, an indication of the policy of the legislature on the issue. Its relevance also lies in the fact that it gives central importance to the subjective motivation of the person using the force.

4. The assessment of the lawfulness or criminality of the use of violence has always involved an assessment of the purpose of the action and motivation of the actor, in the circumstances as they pertained at the relevant time. Self-defence is one example – the court considers the factual circumstances, the perception of those circumstances by the accused and the intentions of the accused in doing what he or she did. Depending on the outcome of that assessment, the accused may be entitled to a full acquittal on a charge of assault or homicide. Alternatively, he or she may succeed in reducing a charge of murder to manslaughter. It is clear, therefore, that a defined act of violence can only be described as lawful or unlawful by reference to the facts of the case and the motivation of the accused.

5. The argument put forward by the appellant, which has found favour with McKechnie J. and Finlay Geoghegan J., is that an accused cannot be convicted of the offence under s. 3 if there was consent on the part of the alleged victim, and that the purpose of the consent is irrelevant. Should this argument be accepted, it would have very significant consequences for the operation of other important statutory provisions that have the objective of controlling violence against the person. The question of the lawfulness of consensual fighting in public has been raised, and McKechnie J. suggests that the provisions of ss. 14, 15 and 16 of the Criminal Justice (Public Order) Act 1994 as amended (hereafter “the Act of 1994”) are available “in principle”. I respectfully disagree.

6. The offences of riot (s.14), violent disorder (s.15) and affray (s.16) are statutory offences, designed to replace the common law offences of riot, rout and affray. They are all predicated upon the use, or threatened use, of “unlawful” violence to an extent that would cause a (real or hypothetical) person of reasonable firmness, present at the scene, to fear for his or another person’s safety. All can be committed in a public or a private place. The differences between the three offences are that riot requires a minimum of twelve persons using or threatening unlawful violence for a common purpose; violent disorder requires a minimum of three persons using or threatening unlawful violence, who need not be acting either in concert or against each other; and affray arises where two or more persons use or threaten violence towards each other and the violence so used or threatened on the part of any accused person is unlawful.

7. Consider a straightforward example of two men who fight each other outside a public house. They are charged with affray, and both raise the defence that each agreed to fight the other. If that consent means that a charge of assault cannot be made out, in the event that physical harm was actually caused by violence, in what sense could it be “unlawful” to have used that violence? The fact that fear was occasioned to bystanders would be irrelevant unless the element of unlawfulness could be established. How could it be proved, unless it could be said that the unlawfulness lay in the intentions of the participants to hurt each other as best as they could? Similar considerations could arise in relation to violent disorder and to riot.

8. It is true that the participants might be found guilty of engaging in threatening, abusive or insulting behaviour in a public place (s.6 of the Act of 1994), depending on the location of the incident. That is a summary offence with a maximum sentence of three months. It seems to me that the distress and fear caused to customers and staff in restaurants, bars and other places of evening entertainment, or to the residents of a street, when an outbreak of violence takes place, would scarcely be met by reliance on this measure.

9. McKechnie J. also refers to the offence of endangerment, created by s. 13 of the Act of 1997. Endangerment is the intentional or reckless engaging in conduct which creates a substantial risk of death or serious harm to another. It requires, therefore, an action that creates a risk of very significant harm and, on the face of it, is not suitable for deployment in what could be considered “normal” assault cases. It carries a maximum sentence of seven years, and is accordingly a more serious offence than assault under s.3 of the Act of 1997. In DPP v Cagney and McGrath [2007] IESC 46, this Court expressed a clear view that it is undesirable to charge endangerment where the facts give rise to a more specific charge such as assault.

10. The issue here is whether the Oireachtas had intended, by amending the law as to consent in less serious assaults, to create a situation where the use of force is legitimised in all cases by consent on the part of the alleged victim. If it did, it would have the potential effect of legitimising consensual fighting to a surprising extent. In my view express language would have been used if that was the intended result.