DPP v Brown

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 21 December 2016
• Neutral Citation: [2016] IECA 405
• Court: Court of Appeal (Ireland)
• Docket Number: Record No.: 273/15
• Date: 21 December 2016

[2016] IECA 405

THE COURT OF APPEAL

Mahon J.

Sheehan J.

Mahon J.

Edwards J.

Record No.: 273/15

Between/

The Director of Public Prosecutions

Respondent

- and –

Gerard Brown

Appellant

Conviction – Assault causing harm – Consent – Appellant seeking to appeal against conviction – Whether trial judge erred in deciding not to allow the defence of consent to go to the jury

Facts: The appellant, Mr Brown, and the victim, Mr Cooper, were both prisoners in the Midlands Prison on 20th May 2015. As Mr Cooper was being escorted to the prison gym, he was assaulted by the appellant when forcefully struck on the head two or three times with a mug concealed inside a sock. Mr Cooper suffered a serious head injury requiring a number of stitches. The incident was captured on CCTV and was witnessed by a prison officer. The appellant admitted that he attacked Mr Cooper in the manner described. He claimed however that Mr Cooper had consented to being assaulted, having requested the appellant to attack him for the purposes of facilitating or orchestrating Mr Cooper’s early release from prison on the basis that the prison authorities would consider that his safety inside the prison was at serious risk. The appellant alleged that Mr Cooper agreed in return to provide him with certain documentation and information, as well as €1,000 in cash. For his part, Mr Cooper gave evidence at the appellant’s trial that he had not consented to being assaulted in the manner described, or at all. He insisted that he had no agreement with the appellant, as claimed by him. The appellant was convicted on one count of assault causing harm contrary to s. 3 of the Non Fatal Offences against the Person Act 1997 at Portlaoise Circuit Criminal Court on 6th November 2015 following a three day trial. The appellant was sentenced to three years imprisonment consecutive to the lawful termination of the sentence then being served by him. The appellant appealed to the Court of Appeal against his conviction arguing that the trial judge erred in his decision not to allow the defence of consent to go to the jury. The appellant maintained that the criteria for the commission of a s. 3 assault is the same criteria as applies to a s. 2 assault. The respondent, the DPP, maintained that ss. 2 and 3 each define discreet offences, and that the criteria identified in the legislation as constituting the former offence does not apply to the latter offence.

Held by the Court that an assault causing harm committed in circumstances where the purpose and/or intention of the assault was itself unlawful and/or contrary to public policy could 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 1997 Act. The Court held that the ruling of the trial judge 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.

The Court held that the appeal against conviction should be dismissed.

Appeal dismissed.

Judgment of the Court delivered on the 21st day of December 2016 by Mr. Justice Mahon

1 This is an appeal by the appellant against his conviction on one count of assault causing harm contrary to s. 3 of the Non Fatal Offences against the Person Act 1997 at Portlaoise Circuit Criminal Court on 6th November 2015 following a three day trial. The appellant was sentenced to three years imprisonment consecutive to the lawful termination of a sentence then being served by him.

2 The victim of the assault was one Stephen Cooper. Mr. Cooper and the appellant were both prisoners in the Midlands Prison on 20th May 2014. Mr. Cooper was previously a member of An Garda Síochána, but was serving a sentence for offences contrary to s. 15 of the Misuse of Drugs Act 1977 (as amended), fraud and perverting the course of justice. As a former member of An Garda Síochána, Mr. Cooper was afforded special protection within the prison. On 20th May 2015, as Mr. Cooper was being escorted to the prison gym, he was assaulted by the appellant when forcefully struck on the head two or three times with a mug concealed inside a sock. Mr. Cooper suffered a serious head injury requiring a number of stitches. The incident was captured on CCTV and was witnessed by a prison officer.

3 The appellant admitted that he attacked Mr. Cooper in the manner described. He claimed however that Mr. Cooper had consented to being assaulted, having requested the appellant to attack him for the purposes of facilitating or orchestrating Mr. Cooper's early release from prison on the basis that the prison authorities would consider that his safety inside the prison was at serious risk. The appellant maintained that Mr. Cooper instructed him not to ‘hold back’ and to ‘just make sure there is blood’ in order to make the attack look convincing and genuine. He alleged that Mr. Cooper agreed in return, to provide him with certain documentation and information, as well as €1,000 in cash.

4 For his part, Mr. Cooper gave evidence at the appellant's trial that he had not consented to being assaulted in the manner described, or at all. He insisted that he had no agreement with the appellant, as claimed by him.

Appeal grounds

5 The following grounds of appeal are promoted on behalf of the appellant:-

(i) The learned trial judge erred and misdirected the jury in law with regard to the interpretation of s. 2 and s. 3 of the Non Fatal Offences against the Persons Act 1997, in particular, the learned trial judge erred in distinguishing ‘assault’ for the purpose of a s. 3 offence from ‘assault’ as defined by s. 2 of the Non Fatal Offences against the Persons Act 1997;

(ii) the learned trial judge erred and misdirected the jury in law by interpreting s. 3 of the Non Fatal Offences against the Persons Act 1997 - so as to remove the concept of consent therefrom, and in so doing, the learned trial judge conducted the trial of the accused other than in due course of law in breach of Art. 38.1 of Bunreacht na hÉireann and in breach of obligations under Art. 6 of the European Convention on Human Rights;

(iii) the learned trial judge erred in law in holding that an agreement or consent to the physical application of force, was vitiated or removed as an element of the offence to be established by the prosecution, for reasons that it was contrary to public policy, for a dishonest purpose, tainted by unlawfulness and incapable of enforcement, whilst expressly acknowledging its applicability or the existence of the defence in other circumstances;

(iv) The learned trial judge erred in law in refusing an application on behalf of the appellant for an accomplice warning to be given to the jury.

Non Fatal Offences against the Persons Act 1997

6 The relevant provisions of the Non Fatal Offences against the Persons Act 1997 are:-

2(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 £1,500 or to imprisonment for a term not exceeding 6 months or to both.

3(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 £1,500 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.

4(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.

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 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.

28(1) The following common law offences are hereby abolished:-

(a) assault and battery,

(b) assault occasioning actual bodily harm,

(c) kidnapping, and

(d) false imprisonment.

7 The Act of 1997 does not define “assault”; other than what is provided in s. 2 of the Act.

Submissions made to the Trial Judge

8 At the conclusion of the evidence, including the evidence of the appellant himself, and immediately prior to the jury being charged, submissions were made on behalf of the appellant and the respondent in relation to two issues. The first related to the interpretation of ss. 2 and 3 of the Act of 1997, and whether or not lack of consent is a necessary proof for an...