The Supreme Court dismissed Gerard Brown’s appeal, with Justice Iseult O’Malley agreeing with Justice Dunne’s judgment and adding observations on consent and the possible consequences for other offences involving violence.
In her judgment dated 21 December 2018, Justice O’Malley said all members of the court agreed that the absence of consent is an ingredient of an offence under section 3 of the Non-Fatal Offences Against the Person Act 1997. She said the contrary comments in an earlier case, Minister for Justice, Equality and Law Reform v Dolny, were incorrect.
She also said the Act allows a person to consent effectively to an assault causing harm up to the threshold for an offence under section 4. The judges differed, however, on whether circumstances such as an ulterior unlawful objective could make consent legally ineffective. Justice O’Malley described that as the public policy issue before the court.
Her observations focused on the implications of treating the purpose of consent as irrelevant. She said that approach could affect offences under the Criminal Justice (Public Order) Act 1994, including affray, violent disorder and riot, which require unlawful violence. She posed the example of two people who agree to fight outside a public house: if consent meant an assault charge could not be established, she questioned how the violence could be shown to be unlawful for an affray charge.
Justice O’Malley said a public-order offence of threatening, abusive or insulting behaviour might apply depending on where an incident occurred, but questioned whether that offence would adequately address fear and distress caused by violence in places such as bars or on residential streets. She also discussed endangerment under the 1997 Act, saying it requires a substantial risk of death or serious harm and is not suited to ordinary assault cases.
She concluded that if the Oireachtas intended consent to legitimise force in all cases, including consensual fighting, it would have used express language. The source contains Justice O’Malley’s separate observations and does not set out the full reasoning in Justice Dunne’s judgment or the appeal’s underlying facts.