The Supreme Court dismissed Gerard Brown’s appeal against his conviction for assault causing harm, leaving his conviction in place. The judgment was delivered by Ms Justice Dunne on 21 December 2018. The court held that absence of consent is an ingredient of the offence under section 3 of the Non-Fatal Offences Against the Person Act 1997, but concluded that the alleged consent in this case was ineffective because it related to an unlawful purpose.
Brown was convicted by a jury in November 2015 after a trial at Portlaoise Circuit Criminal Court. The charge arose from an assault on Stephen Cooper at Midlands Prison on 20 May 2014. Brown was sentenced to three years’ imprisonment, consecutive to the sentence he was then serving.
Cooper told the trial that Brown struck him two or three times on the head while he was being escorted to the prison gym. Brown admitted striking Cooper with a mug in a sock but said Cooper had asked him to stage an attack to support a transfer from Portlaoise Prison. Brown said Cooper promised confidential documents and information and €1,000 in return. Cooper denied asking for or consenting to the assault.
The trial judge refused to let the consent issue go to the jury, ruling that the alleged arrangement could not be recognised on public policy grounds. The Court of Appeal upheld the conviction. The Supreme Court considered the interpretation of sections 2 and 3 of the 1997 Act, including whether absence of consent was required for assault causing harm.
Justice Dunne said “assault” has the same meaning in both sections and concluded that absence of consent is an ingredient of the section 3 offence. She disagreed with the Court of Appeal’s conclusion that it was not required. However, she said consent to an assault for an unlawful purpose is no consent in law. The alleged arrangement, if made, was intended to deceive prison authorities and could not provide an effective defence.
The judgment records that the trial judge’s basis for keeping consent from the jury may have been erroneous. Justice Dunne nevertheless concluded that the conviction could stand because the alleged consent was unlawful and ineffective. She would dismiss the appeal. The supplied judgment extract ends with her conclusion and does not state the disposition of the other justices’ views or provide a separate formal order.