The Court of Appeal dismissed Gerard Brown’s appeal against his conviction for assault causing harm, holding that the victim’s consent was not a necessary element of the offence and could not excuse the attack alleged in this case.
Brown was convicted after a three-day trial at Portlaoise Circuit Criminal Court on 6 November 2015. He was sentenced to three years in prison, consecutive to a sentence he was already serving. The appeal judgment, delivered by Mr Justice Mahon on 21 December 2016, records that the assault took place in Midlands Prison.
The judgment says Brown admitted striking fellow prisoner Stephen Cooper on the head two or three times with a mug concealed in a sock. Cooper suffered a serious head injury that required stitches. The incident was recorded on CCTV and witnessed by a prison officer.
Brown’s defence was that Cooper had asked him to stage an attack to help secure a transfer from prison. Brown said Cooper had agreed to provide information and documents, as well as €1,000. Cooper denied agreeing to be assaulted.
At trial, the judge ruled that consent did not need to be considered by the jury. The Court of Appeal examined whether the consent requirement in section 2 of the Non-Fatal Offences against the Person Act 1997 also applied to the separate offence of assault causing harm under section 3. It concluded that it did not: absence of consent is not a required element of a section 3 offence.
The court said consent can provide a defence in limited circumstances, including legitimate sporting activity and necessary, appropriate medical treatment. But it held that an assault intended to serve an unlawful purpose or to undermine prison governance could not be made lawful by the victim’s invitation or consent. It found the trial judge’s ruling and jury direction correct.
Because it upheld that ruling, the Court of Appeal said it was unnecessary to consider Brown’s separate ground concerning the refusal to give the jury an accomplice warning. The appeal against conviction was dismissed; the judgment did not reconsider the conviction or sentence on other grounds.