S67 Director of Public Prosecutions v Brown [2018] IESC 67 (21 December 2018)

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Cite as: [2018] IESC 67

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Judgment
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
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:
McKechnie J.
Status:
Approved
Result:
Appeal dismissed
Details:
Judgment also by McKechnie J.
Judgments by
Link to Judgment
Concurring
Dissenting
Dunne J.
MacMenamin J., O'Malley Iseult J.
Dunne J.
O'Malley Iseult J.
O'Malley Iseult J.
McKechnie J.
Finlay Geoghegan J.



THE SUPREME COURT
[Appeal No. 46/2017]

[Court of Appeal Record No. 273/2015]


McKechnie J.
MacMenamin J.
Dunne J.
O'Malley J.
Finlay Geoghegan J.
      Between /

THE DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor/Respondent
-and-


GERARD BROWN
Accused/Appellant


JUDGMENT of Ms. Justice Dunne delivered the 21st day of December2018

Introduction
1. The accused/appellant, Gerard Brown, was tried at Portlaoise Circuit Criminal Court in respect of one count on indictment, namely "that on the 20/05/2014 at Midlands Prison Dublin Road Portlaoise in the County of Laois, in the said District of Portlaoise he did assault one Stephen Cooper causing him harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997". Following a three day trial, Mr. Brown was found guilty by unanimous verdict on the 6th November, 2015 of the offence of assault causing harm and was sentenced to three years imprisonment consecutive to his current sentence.

2. Mr. Cooper (hereinafter referred to as "the injured party"), previously a member of An Garda Síochana, gave evidence that he was a prisoner in the Midlands Prison on the 20th May, 2014, having been convicted of offences contrary to s. 15 of the Misuse of Drugs Act, 1977 (as amended), fraud, and perverting the course of justice.

3. The injured party (who was on protection in prison) gave evidence that on the morning of the 20th May, 2014, he was being escorted to the prison gym by a prison officer at approximately 10am. The injured party gave evidence that he was attacked by Mr. Brown on the 20th May, 2014 in the Midlands Prison whereby Mr. Brown struck him two to three times on the top of the head causing him injury.

4. The injured party formally identified the accused from a photograph during the trial process. During cross-examination it was put to the injured party that he asked Mr. Brown to attack him in order to facilitate a transfer to another prison. The injured party expressly denied that he asked Mr. Brown to attack him and denied that he consented to the assault.

5. In his evidence, Mr. Brown accepted that he was a prisoner with a number of previous convictions and that he had hit the injured party on the top of the head with a mug in a sock. He gave evidence that he had a cordial rapport with the injured party and spoke to the injured party regularly through the bars on their respective landings. He gave evidence that the injured party informed him that he was refused a transfer to Shelton Abbey open prison. Mr. Brown gave evidence that he said to the injured party that the only way he was going to get out of Portlaoise Prison place was "if there is a serious threat on you, a serious threat on your life or if you are seriously assaulted".

6. Mr. Brown gave evidence that he spoke to the injured party and alleged that the injured party suggested that he pretend to attack him when he was going to the gym. Mr. Brown gave evidence that the injured party stated "Don't hold back" in terms of the assault and "Just make sure there is blood". In return the injured party stated that he would give Mr. Brown sensitive documentation and information together with €1,000 in cash.

7. At the close of the prosecution case, counsel on behalf of Mr. Brown made an application that the trial judge should allow the defence of consent go to the jury, arguing that insofar as s. 3 of the Non-Fatal Offences Against the Person Act 1997 (the Act of 1997) builds on s. 2 of the said Act, the criteria under s. 2 must be satisfied in order for the crime of "assault causing harm" to be established pursuant to section 3. Counsel for the DPP argued that s. 3 of the Act of 1997 is a standalone offence in which the element of consent was not relevant and that to conclude otherwise would be contrary to public policy. Following the submissions, the learned trial judge refused to allow the defence of consent to go to the jury.

8. The learned trial judge ruled that ss. 2 and 3 of the Act of 1997 are standalone offences. He further ruled that if the definition of assault in s. 2 was to be carried over to s. 3, this would have been clearly provided for in the statute. He further ruled that the injured party could not have consented to the imposition of an injury on him by the applicant on the grounds of public policy and furthermore, that on the grounds of public policy, the courts could not permit the defence of consent to apply as to do so would enforce the purported agreement between Mr. Brown and the injured party. Finally he indicated that he was satisfied that the term "assault" as used in s. 3 of the Act of 1997 derives from the definition which it enjoyed at the time that the Act of 1997 was enacted.

9. Mr. Brown then appealed against his conviction to the Court of Appeal on a number of grounds, namely:

The Court of Appeal rejected the appeal against conviction brought by Mr. Brown and an application was thereafter made for leave to appeal to this Court on the basis that the judgment of the Court of Appeal raised a number of issues of general public importance. Leave to appeal to this Court was granted to Mr. Brown in respect of the following issues:
      "(1) The interpretation of s. 2 and s. 3 of the Non-Fatal Offences Against the Person Act 1997.

      (2) Whether the concept of consent as provided for in s. 2(1)(a)(b) of the Non-Fatal Offences Against the Person Act 1997 is removed from s. 3(1) of the same Act.

      (3) The interpretation and scope of 'assault' as defined in s. 2 of the Non-Offences Against the Person Act 1997.

      (4) Whether s. 2 and s. 3 of the Non-Fatal Offences Against the Person Act 1997 are separate or distinct offences.

      (5) To what extent can the courts dictate public policy contrary to the express intentions of the legislature."


The statutory provisions
10. Given that ss. 2 and 3 of the Act of 1997 are central to the issues arising in this case it would be prudent to set out those provisions at this stage:
      "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."

By way of contrast to ss. 2 and 3 it may also be useful to refer briefly to the provisions of

s. 4 of the Act of 1997 which provides as follows:

      "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."

The judgment of the Court of Appeal
11. The critical findings of the judgment of the Court of Appeal (Mahon J.) are to be found at para. 36 of the judgment onwards where it is stated:
      "36. Section 2 of the act of 1997 specifically creates an offence of assault occurring without the consent of the other . Section 3 contains no such provision. The drafting of these related sections, (to the extent that they both refer to assault), creates confusion as is evident from this and other cases and might have been the subject of more careful drafting. It is nevertheless appropriate that the offences described in ss. 2 and 3, respectively, should be treated as separate and distinct offences, as indeed should the offence described in s. 4. . . .

      38. Proof of an absence of consent is therefore not a necessary ingredient in a s. 3 assault. Consent may however provide a defence to a s. 3 assault charge in limited circumstances such as, for example, legitimate sporting activity and necessary and appropriate medical treatment.

      39. An assault causing harm committed in circumstances where the purpose and/or intention of the assault is itself unlawful and/or contrary to public policy can 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 Act of 1997. In this Court's view, the ruling of the learned trial judge in this case 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 ruling of the trial judge
12. As can be seen from the passage referred to above from the judgment of the Court of Appeal at the heart of this case is the issue of consent. Following the conclusion of the evidence in the course of the trial submissions were made on behalf of Mr. Brown in relation to the interpretation of ss. 2 and 3 of the Act of 1997 and whether or not lack of consent was a necessary proof for an offence charged under s. 3 of the Act. The question of public policy was also referred to in the context of the issue of consent. The ruling of the trial judge on these issues dictated the manner in which the trial judge charged the jury and consequently the trial judge's ruling on these issues was central to the appeal before the Court of Appeal. His comments to the jury in the course of his charge are also of relevance. For that reason, it would be helpful at this stage to refer in some detail to the ruling of the trial judge made on foot of the submissions made to him in relation to the interpretation of ss. 2 and 3 of the Act of 1997 and on the issue of consent. The learned trial judge stated as follows:
      "Sections 2 and 3 are standalone offences in the Non Fatal Offences against the Person Act, Statute. If it was intended that the definition of assault in s. 2 was to be carried over to s. 3, then the Statute would have clearly provided for this. Section 2 defines for the first time in a Statute the offence of assault simpliciter. It does nothing else. If the Statute was intended to define assault in all its forms then this would have been covered in the interpretation section of the Statute. It doesn't do this. I am satisfied that the term 'assault' as used in s. 3 derives from the definition, which it enjoyed in law at the time that the Non Fatal Offences against the Person Act was enacted. This definition is informed by precedent case law.

      Both Mr. Hennessy and Mr. Fennelly have done considerable research into this area, they are both to be commended for their efforts, which have been of considerable assistance to the Court. Mr. Hennessy has cogently argued that the dicta of Peart J. in Donnelly , (sic) which was approved by the Supreme Court, is not binding in this Court as it did not form part of the ratio decidendi of the Donnelly decision and that the Donnelly decision can be distinguished from the present case as it involved the issue of a European Arrest Warrant where the burden of proof is the balance of probabilities. I agree that this Court is not bound by Peart J.'s dicta , nevertheless it is highly persuasive and cannot be disregarded lightly. The English case law, which Mr. Fennelly has referred to, and which is primarily R. v. Brown , a House of Lords decision delivered on the 11th March 1993, provides a very useful analysis of the case law in this area and ultimately concludes that the defence of consent to an assault charge cannot, on grounds of public policy be used where the victim has suffered bodily injury and there is no other purpose, such as sport or surgery served by the infliction of the injury. In the present case, if one were to accept the accused's version of events, he inflicted on Stephen Cooper pursuant to an agreement with Mr. Cooper for which he was to receive confidential documents and the sum of €1,000 cash. According to the accused, the purpose of the assault was to assist Mr. Cooper in getting a transfer out of the Portlaoise Prison. I am satisfied that in the circumstances of the present case Mr. Cooper, on the grounds of public policy could not have consented to the imposition of an injury on him by the accused, which resulted in Mr. Cooper having to get twelve stitches to his head.

      I am further satisfied that, on grounds of public policy, the courts could not permit the defence of consent to apply in this case as to do so would be to enforce the purported agreement between the accused and Stephen Cooper. This agreement, in my view, is illegal and could not be enforced on grounds of public policy as it endeavours to use force as a means to force the prison authorities to transfer Mr. Cooper from the Portlaoise Prison. To allow enforcement or recognition of such an agreement would be to undermine the proper governance of the prison and would therefore be contrary to public policy and not in the public interest. Mr. Hennessy has argued that to take the issue of consent from the jury would be to deny the accused of his constitutional right to a trial by his peers. I do not agree with this contention. The accused has been afforded a jury trial and he has chosen to accept that he inflicted the bodily injury on Mr. Cooper. He has sought to justify his actions on the grounds that Mr. Cooper consented to the infliction of such injury. I am absolutely satisfied, for the reasons outlined already, that in the circumstances of the current case the defence of consent is not available to the accused. . . ."

13. The reference to the case of Donnelly in the ruling of the learned trial judge is in fact a reference to the decision in the case of Minister for Justice v. Dolny
[2008] IEHC 326 which was then the subject of an appeal to the Supreme Court in 2009, Minister for Justice v. Dolny [2009] IESC 48.

14. The jury was subsequently charged by the learned trial judge in accordance with his ruling.

A Brief Outline of the Submissions
15. The submissions on behalf of Mr. Brown centre on the construction of ss. 2 and 3 of the Act of 1997. It is argued that the phrase "without the consent of another" used in s. 2 is unequivocal. Insofar as s. 3 uses the term "assault", it must be interpreted as having the same meaning as in s. 2 and, that as an assault under s. 2 of the Act of 1997 specifically provides that it must take place "without the consent of another", it is contended that an assault under s. 3, that is to say an assault causing harm, necessarily must have the same meaning as an assault under section 2. Accordingly it is argued that absence of consent is a necessary ingredient of the offence of "assault causing harm" contrary to s. 3 of the Act of 1997.

16. Counsel on behalf of Mr. Brown further contended that the provisions of s. 22 of the Act of 1997 (which preserved defences available under the common law or statute) referred to in the judgment of the Court of Appeal had no relevance to the question of construction of s. 3 of the Act of 1997.

17. Finally, submissions were made as to the role of public policy in relation to the interpretation of the legislation. Both the trial court and the Court of Appeal relied on the concept of public policy in interpreting the provisions of the Act of 1997. In that context it was argued on behalf of Mr. Brown that the approach to the question of public policy by the trial court and the Court of Appeal was at odds with the public policy behind the legislation discernible from parliamentary debate in relation to the introduction of the legislation. For that reason, it was submitted that it would have been appropriate in this case notwithstanding the general approach of the courts to the question of parliamentary debates being used as a tool in aid of interpretation that the defence should have been invited to make submissions on the issue of public policy by reference to the parliamentary debate in respect of the legislation.

18. The final argument made on behalf of Mr. Brown involved the decision of this Court in the case of Minister for Justice v. Dolny [2008] IEHC 326 and [2009] IESC 48. That was a decision made in respect of a European Arrest Warrant concerning the doctrine of equivalence. It was submitted on behalf of Mr. Brown that the decision of the Court in that case was wrong and should be re-visited.

19. Counsel on behalf of the DPP focused on the interpretation of the High Court and the Supreme Court in the case of Dolny . It was contended that for this Court to now come to a view that Dolny should be departed from, it would be necessary for Mr. Brown to meet a high threshold in establishing that the decision in Dolny is "clearly wrong" and that there are "compelling reasons" to depart from it. Accordingly, it was submitted on behalf of the DPP that "assault" in s. 3 of the Act of 1997 means an act by a person done intentionally or recklessly.

20. Insofar as it was sought to refer to and rely on parliamentary debate, together with ministerial statements when introducing legislation, the DPP relied on the decision of this Court in the case of Crilly v. Farrington [2001] 3 IR 251.

21. The point was also made that there is a presumption against radical amendments and that the interpretation of ss. 2 and 3 of the Act of 1997 as contended for by Mr. Brown would represent a radical amendment to the law concerning consent to the infliction of injury upon oneself. If that was what was in fact intended by the legislation, it was submitted that this could only have been achieved through language of greater clarity and certainty.

22. Finally on the issue of public policy, it is contended on behalf of the DPP that assault as defined preserves a public policy remit for the courts which has been historically exercised on a case by case basis to determine on which side of the dividing line certain matters fall in the context of, for example, contact sports, medical treatment/examination, diverse expressions of intimacy, tattooing/body piercing, prizefighting, sado-masochistic acts, etc. Accordingly, even if this Court was of the view that the decision in the case of Dolny was incorrect it was submitted that this Court should find that the courts retain a public policy remit which ensures that "consent" does not become a device to render legal that which is demonstrably contrary to public policy.

Discussion and decision
23. Prior to the enactment of the Act of 1997 assault was a common law offence for which the penalty was specified in the Offences Against the Person Act 1861 (the Act of 1861). The Act of 1861 contained a range of penalties depending on the seriousness of the form of assault concerned. As Charleton, McDermott and Bolger wrote in their work Criminal Law about the Act of 1861, "This Act is cast in outdated language which now contrasts with the modern formulation of the 1997 Act". They referred to the traditional distinction that existed between assault and battery and at para. 9.03 of Criminal Law they wrote:

      "The parameters of these two separate crimes are explained by East:

        'An assault is any attempt to offer with force and violence to do a corporal hurt to another, whether from malice or wantonness; as by striking at him, or even by holding up one's fist at him in a threatening or insulting manner, or with such other circumstances as denote at the time an intention, coupled with a present ability of using actual violence against his person; as by pointing a weapon at him within the reach of it. Where the injury is actually inflicted, it amounts to a battery, (which includes an assault;) and this, however small it may be; as by spitting in a man's face, or in any way touching him in anger without any lawful occasion. But if the occasion were merely accidental and undesigned, or if it were lawful . . . it is no assault or battery in the law'."
24. It was pointed out by the authors at para. 9.05 that the word ‘battery' has fallen out of use: "An assault that occurs by creating the apprehension of immediate physical violence in the victim is now usually referred to as 'psychic assault'." They pointed out that the distinction was no longer valid. The Act of 1997 was an attempt to codify the law in this area. Charleton et al . went on to observe in relation to the Act of 1861 at para. 9.14:
      "The elements of the offence are of great importance as a host of offences are built upon the proof of the commission of an assault. The structure of these offences divides them into basic assaults aggravated either by the harm thereby done, the nature of the intent of the accused, the status of the victim, or the circumstances of commission. There is no rationality to the disparate collection of offences set out in the Offences Against the Person Act 1861, either in the elements by which they are defined or in the range of sentences which they may attract. Some offences are obsolete. Many more are cast in the language of a former age. The offences share the fact that they are built upon the base of the crime of assault. Assault is thus available as an alternative verdict where the circumstances of aggravation or its accompanying mental state are not proven."
25. Before leaving Criminal Law by Charleton et al. I propose to refer to two further passages at paras. 9.15 and 9.16 respectively in which the learned authors discuss the issue of consent as a defence. It is said:
      "The absence of consent is an element of some crimes. As such the proof of the absence of consent is an external element which must be proved, as with every other element, beyond reasonable doubt by the prosecution. Rape and indecent assault require that the victim did not consent to the sexual activity of which she complains. Usually, the only issue at a trial on these offences is whether the victim consented or not. Where the victim is under a particular age, or under a particular infirmity, the law has for policy reasons removed consent as an element of such crimes altogether. We consider this further in the context of sexual offences in Chapter 8.

      Consent may be a defence to a charge of assault. A victim cannot consent to an act which has as its purpose, or which will have the effect of probably causing to him or her bodily harm. The reason is one of public policy; it is in the interest of society at large that an individual is not always free to consent to certain harmful acts. A similar policy underpins the law forbidding the consumption of dangerous drugs. Sometimes this common good will be apparent and other times there is only a very thin line between conduct to which an individual may consent and conduct which will give rise to a criminal liability regardless of the victim's consent. In K, the Court of Appeal of Saskatchewan held that violent and dangerous conduct is excluded from the scope of an implied consent, even where there is express consent, because in law an assault cannot be consented to where actual bodily harm is intended. On the basis of this and some Australian precedents, it would seem that the dividing line may be between assault occasioning actual bodily harm and assault occasioning grievous bodily harm or unlawful wounding. It is manslaughter to kill a person by an assault in which the accused intends to hurt the victim or to cause him more than trivial harm. It would thus appear the policy of the law to make non-trivial assaults unlawful. This would appear to be so despite consent. If two men wish to fight it should be done under the controlled circumstances of sport."

26. It might be thought that those observations have no relevance following the updating of the law in relation to assault but it is in this regard that the provisions of s. 22 of the Act of 1997 have some bearing. It provides as follows:
      "(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."

27. I will discuss the relevance of this section further in the course of this judgment. For the moment, it is sufficient to note that for the purpose of what was known as common assault, absence of consent was an element of the offence and was therefore required to be proved by the prosecution. In cases involving more serious assaults the absence of consent was not required to be proved by the prosecution because it was contrary to public policy to permit a victim of an assault causing harm to consent to same, save that in certain circumstances, consent may be a defence to an offence such as in the case of surgery or sporting activity.

28. It is now necessary to examine the role of consent in relation to the provisions of ss. 2 and 3 of the Act of 1997. It was contended on behalf of Mr. Brown that the phrase "without the consent of another" governs both s. 2(1)(a) and (b) of that section. Clearly, the absence of consent is an essential element in the proof of an offence contrary to s. 2 of the Act of 1997. It is then contended that the term "assault" as used in s. 3 must be read as having the same meaning as in s. 2 of the Act and that, accordingly, the absence of consent is an essential element of the offence of "assault causing harm" as defined in s. 3 of the Act of 1997. Reference was made in the course of submissions to Mason v. Leavy [1952] I.R. 40 in which Murnaghan J. stated:

      "Where a statute such as the Rent Restrictions Act, 1946, defines its own terms and makes what has been called its own dictionary, a Court should not depart from the definitions given by the statute and the meanings assigned to the words used in the statute."
Reference was also made to Bennion on Statutory Interpretation (6th Ed., p. 1034) where it is stated:
      "It is presumed that a word or phase is not to be taken as having different meanings within the same instrument, unless this fact is made clear. Where therefore the context makes it clear that the term has a particular meaning in one place, it will be taken to have that meaning elsewhere."
Essentially, it is contended that having repealed ss. 42 and 47 of the Act of 1861, the only statutory definition of "assault" in this jurisdiction is that contained in s. 2 of the Act of 1997 and that "assault" in s. 3 must be interpreted as having the same meaning. For that reason, counsel on behalf of Mr. Brown contends that in giving the judgment of the Court of Appeal, Mahon J. was wrong to have said at para. 36:
      "The drafting of these related sections, (to the extent that they both refer to assault), creates confusion as is evident from this and other cases and might have been the subject of more careful drafting. It is nevertheless appropriate that the offences described in ss. 2 and 3, respectively, should be treated as separate and distinct offences, as indeed should the offence described in s. 4."
29. It was accepted that the offence created by s. 4 of the 1997 Act was clearly a separate and distinct offence and is "a standalone offence" in that it has deliberately omitted the word "assault" from the section and thus has removed the issue of consent from the offence of "causing serious harm" as provided for in s. 4 of the 1997 Act. Criticism was also made of a further statement to be found at para. 21 of the judgment of the Court of Appeal where it was stated of s. 3 of the Act of 1997 as follows:
      "It does not go on to expressly incorporate or repeat the detailed explanatory provisions of s. 2, and, more importantly, it does not expressly state that the commission of the offence involves a lack of consent on the part of the victim."
30. In the course of argument, it was submitted on behalf of Mr. Brown that the Act of 1997 introduced a gradation of offences having regard to the level of injury inflicted: hence the Act provides different sanctions accordingly. It was then argued that there was a clear distinction between ss. 2 and 3 on the one hand and s. 4 on the other hand which involves the infliction of serious harm given that s. 4 does not use the word "assault". This difference, it was argued, showed that the absence of consent was part of the actus reus of assault under ss. 2 and 3 and that the policy of the legislation, as could be seen from the way in which the sections were laid out, was that solely for an act causing serious harm absence of consent was removed from the actus reus of the offence. In other words, it was contended that consent was irrelevant to the causing of harm contrary to section 4. In essence this distinction marked the line of public policy as to when consent should be or, as the case may be, should not be an ingredient of the relevant offence. Counsel on behalf of Mr. Brown referred to the Canons of Construction and to a number of authorities referred to previously in support of their submissions. There was also discussion as to the question of public policy and the role of parliamentary debate in considering public policy which led to the reference to the well known decision in the case of Crilly v. Farrington [2001] 3 IR 251.

31. Counsel on behalf of the DPP took a different view as to the interpretation of ss. 2 and 3 of the Act of 1997. Reliance was placed to a significant degree on the decision of the High Court and subsequently by this Court in the case of Minister for Justice v. Dolny referred to previously.

32. Dolny is a decision that arose in the context of a European Arrest Warrant. As was mentioned previously, it played a part in the ruling of the trial judge which is at the heart of the issue in this case. Further, the decision in Dolny was considered in the judgment of the Court of Appeal in this case. The issue considered in that case was the question of correspondence. Mr. Dolny was sought by the Republic of Poland to serve a sentence of imprisonment following his conviction in that country for an offence. The offence was described in the European Arrest Warrant as follows:

      "On 20th June 2004 in . . ., acting together and in collaboration with . . ., he beat . . . by hitting him on the face and head with his fists, thereby causing injury to his body in the form of a contused wound in the left suborbital area and a contused wound in the area of the right superciliary ridge - thus exposing him to the direct danger of sustaining grievous detriment to his health."
The question then arose as to whether the offence involved in that case was one which corresponded to an offence under the law of this State in accordance with the provisions of s. 5 of the European Arrest Warrant Act 2003, as amended (the Act of 2003). At p. 5 of his judgment Peart J. having looked at the provisions of ss. 2 and 3 of the Act of 1997 considered an argument that lack of consent was a necessary proof for an offence under s. 3 of the Act of 1997, as it was for an offence under s. 2 of the said Act. Peart J. commented:
      "In my view, this submission is wrong. The offences created respectively by s. 2 and s. 3 of the 1997 Act, are distinct and different offences. An assault under s. 2 requires for its commission that the person assaulted did not consent to being assaulted, as well as that the assault be inflicted without lawful excuse and intentionally or recklessly. The section is clear in that regard. But the separate and distinct offence of 'assault causing harm' in s.3, contains no such requirements. It is a separate offence, and it is not the case that s. 2 is intended to define the concept of 'assault' for all purposes of the Act. There is no definition of assault contained in s. 1 of the 1997 Act, or elsewhere therein.

      Section 3 provides for a freestanding offence of 'assault causing harm', as opposed to a simple assault. In order to be guilty of this offence a person must have carried out an assault and must have caused 'harm' as defined in s.1 of the 1997 Act. In such an offence it is not part of the offence that it occurs without the consent of the victim. That is clear from the plain meaning of the words used in the section. In s.3, the word 'assault' is not used as a term of art by reference to the provisions of s. 2, or by reference to any statutory definition of that word. The Concise Oxford Dictionary definition of 'assault' is 'a violent physical or verbal attack'. That is the meaning to be given to the word 'assault' for the purpose of the s.3 offence.

      I note in passing that the offence 'assault causing serious harm' under s.4 of the 1997 Act, again includes a mental element, namely, that the offence occurs where 'a person intentionally or recklessly causes serious harm to another'.

      The requirement that the assault be without the consent of the victim, or that there be any mental element is distinctly absent from the express provisions of the s.3 offence of assault causing harm. In my view the facts as outlined in the warrant and which resulted in the conviction of the [appellant] in Poland, come within the words used in s.3 of the 1997 Act in order to create that offence, and in these circumstances, correspondence in accordance with s.5 of the Act, and I am satisfied also that the minimum gravity requirement is satisfied also, since the offence is punishable by a fine, or by a sentence of imprisonment of up to five years imprisonment, or both."

33. The Supreme Court upheld the decision of the High Court on the issue of correspondence. There was no detailed consideration of the provisions of ss. 2 or 3 in the course of the judgment of this Court.

34. Given the reliance by the DPP on the Dolny decision in arguing that consent is not an element of the offence assault causing harm contrary to s. 3 of the Act of 1997, it was contended that this Court should not depart from that decision. It was pointed out that the circumstances in which this Court will depart from a previous decision are very exceptional. (See, for example, D.H. v. Groarke and The Director of Public Prosecutions [2002] 3 IR 522).

35. By contrast counsel on behalf of Mr. Brown urged on this Court the view that the decision in Dolny was arrived at in error having regard, inter alia , to the principles of statutory interpretation and that the decision should be re-visited by this Court.

36. As stated previously, the issue in Dolny arose in the context of a consideration of whether the Polish offence of which Mr. Dolny had been convicted corresponded with an Irish offence as required by s. 5 of the Act of 2003. It was contended on behalf of Mr. Dolny that the warrant did not indicate that what was alleged to have been done by Mr. Dolny was done "without the consent of the victim" and that therefore there was no correspondence between the offence in Poland with the offence of assault causing harm contrary to s. 3 of the Act of 1997. Peart J. in his judgment had observed that:

      "The offences created respectively by s. 2 and s. 3 of the 1997 Act, are distinct and different offences."
37. There is no difficulty in accepting the proposition that ss. 2 and 3 of the Act of 1997 create separate and distinct offences. Clearly they must do so as the penalty for an offence contrary to s. 2 is much less than the penalty for an offence under s. 3 of the Act of 1997. A s. 3 assault involves causing harm unlike a s. 2 assault. Leaving aside those somewhat trite observations, is there any other basis for distinguishing assault as understood and defined in s. 2 from assault in the context of section 3? It is at this point, however, that I have concern as to the view that the provisions of s. 3 of the Act create a "freestanding offence" of "assault causing harm" which is completely distinct from the concept of assault within the meaning of s. 2 of the Act. The Act of 1997 in its interpretation section does not provide a single definition of the word "assault". Such a definition is to be found in s. 2 of the Act. Section 20 of the Interpretation Act of 2005 provides:
      "Where an enactment contains a definition or other interpretation provision, the provision shall be read as being applicable except in so far as the contrary intention appears in -

        (a) the enactment itself, or

        (b) the Act under which the enactment is made."

In the case of The State (McGroddy) v. Carr [1975] I.R. 275 at p. 285 it was stated by Henchy J. that:
      ". . . when expressions are repeated in the same instrument, and more especially in a particular part of the same instrument, they should be given a common force and effect unless the context requires otherwise."
38. Given those principles of interpretation, it seems to me to be difficult to see any basis as to how the word "assault" as used in s. 2 of the Act of 1997 could have a different meaning or interpretation in s. 3 of the Act. It is difficult to understand or accept the approach of the High Court in resorting to an examination of a dictionary definition of "assault" in order to ascribe a different meaning to the word "assault" as used in s. 3 of the Act of 1997. To that extent I disagree with the conclusion of the learned trial judge in the Dolny case to the effect that the meaning to be given to the word "assault" for the purpose of a s. 3 offence is "a violent physical or verbal attack". I therefore conclude that the word "assault" as used in s. 3 has the same meaning as "assault" in section 2.

39. The fact that I have come to the conclusion that the word "assault" as defined in s. 2 of the Act must have the same meaning in s. 3 of the Act does not resolve the issues in this case. The next task is to examine the provisions of ss. 2 and 3 of the Act of 1997 more closely with a view to ascertaining precisely the definition of assault to be found in section 2. It seems to me that s. 2 of the Act of 1997 does two things. It sets out the ingredients of the offence of assault that have to be established by the prosecution before someone can be convicted of the offence of assault. Thus, the act involved is one done "without lawful excuse, intentionally or recklessly" and "without the consent of another". The second function of s. 2 is to explain what must be done to constitute an assault. An assault is when a person "directly or indirectly applies force to or causes an impact on the body of another, or causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact". That is the definition of assault. Of course, the offence of assault is not committed unless the other elements referred to above are present, including the absence of consent. Section 2(2) provides a definition of "force" as used in s. 2(1) as previously set out. It would also be helpful to bear in mind the provisions of s. 2(3) which to some extent reinforces my view as to the interpretation of section 2(1). It provides:

      "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."
40. Actual force or impact, or in the alternative, the belief that one is likely to be immediately subjected to such force or impact is necessary for there to be an assault. The other elements referred to in s. 2(1) are necessary to constitute the offence of assault and relate to the intention in which the accused subjects the other to "force or impact" or the circumstances in which this occurs.

41. What then of section 3? The first point to note is that s. 3(1), which makes assault causing harm an offence, is terse in its description of the offence. It does not give any definition of what is meant by the word "assault" and as I have already said I see no reason for concluding that it means anything different to "assault" as used in section 2(1). "Harm" is defined in s.1 of the Act of 1997 as follows: ""harm" means harm to body or mind and includes pain and unconsciousness". Charleton et al . in Criminal Law made the following observation about consent (para. 9.87):

      "Since the requirement of an absence of consent of the victim is not included as an element of the offence of assault causing harm, as defined by s 3, it becomes strongly arguable that a person may consent to assaults up to a level where those physically or psychically harm him or her. Harm, in this context, it is submitted, must mean more than trivial or trifling annoyance or pain".
42. Whereas the absence of consent is referred to expressly as an element of the offence to be found in s. 2 of the Act, the absence of consent is not expressly referred to as an element of the offence in relation to section 3.

43. In the course of their submissions, counsel on behalf of Mr. Brown made reference to McAuley & McCutcheon in Criminal Liability (2000) where the authors at p. 532 observed:

      "The extent to which the Non-Fatal Offences Against the Person Act 1997 has modified the common law on consensual force has yet to be determined. Section 2 expressly makes lack of consent part of the actus reus of assault and this definition must be carried into section 3 which provides the offence of assault causing harm."
44. It is interesting in this context to look at what the authors in that work went on to say and I propose to refer to a passage from the book at some length. They said:
      "Thus it seems to follow that consent of the complainant will absolve an accused of liability for the offences of assault and assault causing harm. 'Harm' is defined in section 1 as meaning: ‘harm to body or mind and includes pain and unconsciousness'. This definition broadly corresponds with ‘actual bodily harm' under the 1861 Act and it accommodates the recent recognition that psychological harm can amount to bodily harm. But if consent is a defence to assault causing harm it would follow that the threshold has been increased beyond that tolerated by the common law rule. Consent is not a definitional element of the offence of causing serious harm under section 4 and this would now appear to be the new threshold. However, the magnitude of the potential change is evident when the definition of serious harm is considered. That is defined, in section 1, as ‘injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ'. This is a more restrictive definition than that attributed to ‘grievous bodily harm' and thus the threshold would appear to be set at life threatening injuries or maiming. This, of course, would easily accommodate the force inflicted in R v. Brown .

      It must be questioned whether that was the intention of the Oireachtas when it enacted the 1997 Act. A liberalisation of the law might well have been contemplated but it is debatable whether it was intended that the old law be replaced by so high a threshold. Nevertheless as a matter of literal interpretation this conclusion seems inevitable. Doubt, however, is thrown on this interpretation by section 22 which states that "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'. While consent relates to the definitional element of the offences of assault and assault causing harm, rather than being a defence in the strict sense, there is evidence that it was contemplated that section 22 would preserve the law of consent. The explanatory memorandum accompanying the Bill expresses the view that section 22 ensures the continuance of 'The common law rules under which bodily harm caused with consent in the course of sports, dangerous exhibitions or medical treatments will apply to exempt the actor from criminal liability'. But these cases were exceptions that the common law recognised and they pre-suppose the applicability of the general rule that sets the lower threshold. If this still is the law, as the explanatory memorandum suggests, it cannot be reconciled with the literal interpretation of sections 2, 3 and 4. Thus the courts will be called upon to resolve a dilemma that should have been anticipated and solved at the legislative stage."

45. Reference was made in the course of that passage to the decision of the House of Lords in the case of R. v. Brown [1993] 2 All ER 75. That was a case which involved a group of homosexual men who engaged in consensual sadomasochistic activities. It appears that no long-lasting injuries were inflicted. "Actual bodily harm" and "wounds" were inflicted but the argument was made that the consent of the participants was such that the defendants could not be guilty of an assault occasioning actual bodily harm or unlawful wounding in respect of acts carried out in private with the consent of the victims. The majority in that case concluded that the convictions should be upheld. They took the view that consent is not a defence where the force involved was intended or calculated to inflict actual bodily harm. Lord Templeman in the course of his opinion at p. 78 stated:
      "When no actual bodily harm is caused, the consent of the person affected precludes him from complaining. There can be no conviction for the summary offence of common assault if the victim has consented to the assault. Even when violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating. Surgery involves intentional violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity. Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear piercing and violent sports including boxing are lawful activities."
In the same case Lord Jauncey stated at p. 90 of the judgment:
      "In my view the line properly falls to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by s. 47 of the 1861 Act, with the result that consent of the victim is no answer to anyone charged with the latter offence or with a contravention of s. 20 unless the circumstances fall within one of the well known exceptions such as organised sporting contests and games, parental chastisement or reasonable surgery."
46. That decision makes clear that the position at common law was such that as a general proposition, consent was not a defence to the offence of assault occasioning actual bodily harm created by s. 47 of the Act of 1861. Nevertheless, at common law there were recognised certain exceptions to that general rule.

47. Quite clearly, McAuley and McCutcheon in the passage referred to above have identified some of the difficulties with the interpretation of ss. 2 and 3 of the Act of 1997. As the authors recognised, the effect of the interpretation which is contended for by counsel on behalf of Mr. Brown in this case, namely that consent is a "definitional element" of the offence of assault causing harm, is at odds with the possibility of relying on consent as a defence to a charge pursuant to s. 3 of the Act and cannot be reconciled with the provisions of s. 22 of the Act. Given that the common law always recognised certain circumstances which permitted a defence of consent to be relied on, could it be that the legislature on the one hand intended to make absence of consent an ingredient of the offence of assault under s. 3 whilst at the same time providing that consent would be a defence to a charge of assault under section 3? As the word "assault" in ss. 2 and 3 must have the same meaning, it seems to me that the use of the word "assault" in s. 3 imports the elements of the offence as set out in s. 2 of the Act of 1997. This is undoubtedly a departure from the common law position as is clear from the passages cited from R. v. Brown referred to above and does mean that the threshold in relation to consent has changed from the common law position where it was possible to consent to common assault but not possible to consent to any form of assault above that level save as provided for in the well-known exceptions such as medical treatment or sporting activities referred to previously. I am thus reinforced in my view that the decision in Dolny to the effect that "it is not part of the offence that it occurs without the consent of the victim" cannot be correct. Bearing in mind that this conclusion as to the interpretation of s. 3 is a change in the common law position that pertained until the Act of 1997, it would have been preferable if this had been clearly and expressly spelt out in the legislation. Be that as it may, I am satisfied that absence of consent is an ingredient of the offence of assault causing harm contrary to s. 3 of the Act of 1997. I am of the view that s.22 of the Act of 1997 cannot have had the effect of re-importing the defence of consent into the provisions of ss. 2 and 3, given that absence of consent is an element of the offence under each section. That is not to say that s. 22 of the Act of 1997 is of no practical effect. It appears to me to ensure that consent may be a defence to an offence under s. 4, by reference to the long established common law exceptions.

48. This brings me to the issue of public policy. There was some debate on the issue of public policy but that turned on the extent to which public policy could be discerned by the courts in circumstances where the public policy asserted by the courts was said to be at variance from that articulated in the Oireachtas during the debate on the Bill. That raised the issue as to introduction of Dail debates to support the contentions of Mr. Brown as to public policy. That aspect of the debate as to public policy is no longer relevant as I accept the contention on behalf of Mr. Brown as to the interpretation of the Act of 1997.

49. It will be recalled that a further ingredient of the offence of assault is that the act concerned is committed "without lawful excuse". A consideration of what may or may not be a lawful excuse will give rise to a consideration of public policy. Given that the absence of consent is a necessary ingredient of the offence of assault causing harm, could consent to an assault in furtherance of an unlawful purpose ever be taken into consideration in deciding whether someone is guilty or not of the offence contrary to s. 3 of the Act of 1997? It is necessary to bear in mind the evidence as to the nature of the assault in question and the fact that it is alleged to have occurred in circumstances where Mr. Brown alleges that he was requested by the injured party to assault him for the purpose of trying to facilitate his early release from prison in exchange for a sum of money together with information and documents. This was denied by the injured party.

50. Section 22 of the Act of 1997 must also be considered in this context. It expressly provides that "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". The common law defence of consent was not available in every circumstance as is clear from the case law. In this context, the passages cited above from R. v. Brown illustrate the point. In parenthesis, it might be observed that activities of a sado-masochistic nature, such as those at issue in R. v. Brown , between consenting adults in private, provided they did not go beyond the level of causing harm, could now be viewed in a different light in this jurisdiction by reason of changes to the Constitution together with the changes brought about by the Act of 1997.

51. Further, it has long been recognised that consent is recognised as a defence in the case of surgery. As Charleton et al . explained at paras. 9.23 and 9.24:

      "There is a clear common good in performing surgical procedures where the benefit of the medical treatment outweighs any burdens that may be caused to, or risks undergone by, the patient. This is so even though almost any surgical procedure will cause at least grievous bodily harm. Consent to such a procedure will render it lawful where it is carried out by a suitably qualified person and for a legitimate medical purpose. A surgeon will, further, have no intent to do harm, or will not be reckless that such harm will result, and so such element of individual assault charges will be missing. A reckless state of mind is incompatible with a public benefit. More difficult questions arise where a person is unable to consent, but this will frequently constitute a case of necessity.

      Where a person is able to consent to medical treatment but chooses not to, any forcible application of that treatment will clearly constitute an assault."

52. Likewise, the position has been recognised in relation to sporting activity that consent may be a defence. Thus Charleton et al . commented at para. 9.26:
      "It is generally accepted that once participants in sporting activities keep within the parameters of lawful behaviour acceptable within the context of that sport, they are taken to consent to the risks inherent in those activities. Consent is a question of degree depending upon the circumstances."
53. It may be observed that the situations in which the law traditionally recognised a defence of consent to assault causing harm were those which, in general, reflected the benefits of the activity involved for society in general. Where harm was caused it could be consented to provided it came within one of the exceptions recognised at common law. The threshold for consent may have moved by reason of the changes brought about by the Act of 1997 but one element of the offence which remains is, that as part of the actus reus of the offence, it must be established that what occurred was something done "without lawful excuse". This imports into the offence of assault and assault causing harm a consideration of the circumstances in which the offence is alleged to have occurred.

54. In the course of the discussion on the subject of consent McAuley and McCutcheon refer to a Canadian case, R. v. Jobidon [1991] 66 CCC (3D) 454, a decision of the Supreme Court of Canada where the "fair fight" defence was rejected. That case concerned a situation where the accused had been charged with manslaughter, through the offence of assault, following a fist fight which started in a bar. Ultimately the parties went outside the bar and continued to fight in the parking lot. Unfortunately, the victim was struck in the head and ultimately died. At trial, the accused was found not guilty of manslaughter as the trial judge held that the victim's consent to a "fair fight" negated assault. The Court of Appeal set aside the acquittal and substituted a guilty verdict and the matter was then appealed to the Supreme Court of Canada which rejected the appeal. The issue before the Court was whether absence of consent is an element which must be proved by the Crown in all cases of assault under s. 265 of the Criminal Code or whether there were criminal law limitations which restrict or negate the legal effectiveness of consent in certain types of cases. Section 265(1)(a) of the Canadian Criminal Code provides that an assault occurs when "[w]ithout the consent of another person, he applies force intentionally to that other person, directly or indirectly". It was further provided that the section concerned applies to "all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault". Thus, absence of consent was a necessary ingredient in the charge before the Court. It was argued in that case that it was not in the public interest that people should engage in street brawls or fist fights and thus on public policy grounds, it was the view of the prosecution that the word "consent" in s. 265 of the Criminal Code should be read in light of the common law, which limits its applicability as a defence to assault. The prosecution noted that fist fighting is without social value and has been outlawed in other common law jurisdictions. The Supreme Court of Canada in that case embarked on a considerable analysis of the law in relation to assault both in Canada and in the courts of the United Kingdom. Ultimately the Court, in the judgment of Gonthier J. at pp. 39 to 47, stated:

      "How, and to what extent is consent limited? The law's willingness to vitiate consent on policy grounds is significantly limited. Common law cases restrict the extent to which consent may be nullified; as do the relevant policy considerations. The unique situation under examination in this case, a weaponless fist fight between two adults, provides another important boundary.

      The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. (This test entails that a minor's apparent consent to an adult's intentional application of force in a fight would also be negated). This is the extent of the limit which the common law requires in the factual circumstances of this appeal. It may be that further limitations will be found to apply in other circumstances. But such limits, if any, are better developed on a case by case basis, so that the unique features of the situation may exert a rational influence on the extent of the limit and on the justification for it.

      Stated in this way the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game. Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile….

      There is also nothing in the preceding formulation which would prevent a person from consenting to medical treatment or appropriate surgical interventions. Nor, for example, would it necessarily nullify consent between stuntmen who agree in advance to perform risky sparring or daredevil activities in the creation of a socially valuable cultural product. A charge of assault would be barred if the Crown failed to prove absence of consent in these situations, in so far as the activities have a positive social value and the intent of the actors is to produce a social benefit for the good of the people involved, and often for a wider group of people as well. This is a far cry from the situation presented in this appeal, where Jobidon's sole objective was to strike the deceased as hard as he physically could, until his opponent either gave up or retreated. Fist fights are worlds apart from these other forms of conduct.

      Finally, the preceding formulation avoids nullification of consent to intentional applications of force which cause only minor hurt or trivial bodily harm. The bodily harm contemplated by the test is essentially equivalent to that contemplated by the definition found in s. 267(2) of the Code, dealing with the offence of assault causing bodily harm. The section defines bodily harm as 'any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature'."

55. That case is significant in making it clear that apart from the statutory provisions, the common law had set limits on the types of harmful actions to which one can validly consent. Just as s. 22 in our jurisdiction preserves the common law rules in relation to defences or providing lawful authority, justification or excuse for an act or omission, the Canadian Criminal Code also provided that common law principles continued to apply to the extent that they were not inconsistent with the Code or other Act of Parliament. While that decision focussed on the definition of "bodily harm" contained in the Criminal Code, it is a useful reminder of the role that common law principles may have to play in any given case.

56. Finally, in this context, it would be useful to refer to the decision in the case of R. v Donovan [1934] 2 K.B. 498 in which Swift J. made the following observation at p. 507:

      "If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can license another to commit a crime. So far as the criminal law is concerned, therefore, where the act charged is in itself unlawful, it can never be necessary to prove absence of consent on the part of the person wronged in order to obtain the conviction of the wrongdoer."
Thus, it is apparent that in some instances the circumstances in which an assault causing harm is committed may vitiate the consent given to the infliction of harm. It clearly cannot be the case that one could consent to an assault causing harm in furtherance of a criminal act. For example, if two parties engage in a staged road traffic collision thereby causing injury for the purpose of enabling one of the parties to claim damages for personal injuries, if the party causing the collision was subsequently prosecuted for assault causing harm, how could that person be allowed to rely on consent to say that he/she should not be convicted. Likewise, if an individual asked another person to injure them so that, once injured, the individual concerned could claim a social welfare benefit in respect of the injury inflicted, could consent prevent a successful prosecution against the person inflicting the injury? It seems to me that the answer to these questions can be found by looking at the circumstances and the purpose of the act for which the consent was given. The nature of the alleged agreement in this case does not come within any of the recognised exceptions which would have permitted a defence of consent to be relied on under the 1861 Act. The agreement between the parties as alleged is one intended to deceive the prison authorities into a situation where the alleged victim would be, potentially, the beneficiary of an early release from prison. In exchange, Mr. Brown was to receive a sum of money, sensitive information and documentation. Under no circumstances could this ever have been a lawful purpose. The disclosure of such material by a former member of the Gardaí could not have been lawful. In circumstances such as these, consent quite simply could not be relied on as a defence to a charge of assault causing harm. It seems to me that the alleged consent in this case could not be relied on by Mr. Brown to negate the absence of consent in respect of a charge contrary to s. 3 of the Act of 1997. In short, consent to an assault causing harm for an unlawful purpose is no consent.

57. This situation is not without parallel. It was recognised at common law that consent in respect of an unlawful activity could not be given. See in this context R. v. Coney [1882] 8 QBD 534, a case about prize fighting where the Court of Criminal Appeal concluded that whilst one could consent to assault, one could not give an effectual consent to conduct which amounts to a breach of the peace. Thus, the illegal aspect of the conduct involved meant that one could not give an effectual consent. (See Boxing, The Common Law and the Non-Fatal Offences against the Person Act 1997 [2002] 12 I.C.J.L.15 by Brian Foley). In the area of some sexual offences, absence of consent is an ingredient of the offence concerned. For example, in certain situations, having regard to the age of the person against whom it is alleged an offence has been convicted, the law recognises that individuals under a certain age do not have the capacity to consent. (See for example s. 2 of the Criminal Law (Sexual Offences) Act 2006, as amended which provides at s. 2(1): "A person who engages in a sexual act with a child who is under the age of 15 years shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment". Section 2(6) provides: "It shall not be a defence to proceedings for an offence under this section for the defendant to prove that the child against whom the offence is alleged to have been committed consented to the sexual act of which the offence consisted."). In such circumstances, the Oireachtas has chosen to specifically provide that consent shall not be a defence to such an offence. Equally, it is recognised that certain complainants simply do not have the capacity to consent. McAuley and McCutcheon observe at p. 513 ( op.cit ) as follows:

      "A complainant who is incapable of consenting by reason of some personal characteristic lacks capacity. This could be due to a transient factor, such as intoxication, sleep or concussion. These factors cause little difficulty since it is obvious that any complainant who falls into one of those states is incapable of consenting. By the same token, it is clear that some individuals are incapable of consenting because of their youth, immaturity or mental incompetence."
58. It is understandable therefore that in the case of a charge of rape involving a minor of say ten years of age, even though the absence of consent is an ingredient of the offence of rape, the law recognises that a child of that age does not have the capacity to consent. Indeed, this is reflected in the offences created in the Criminal Law (Sexual Offences) Act 2006, as amended, to which I have already referred.

59. The Act of 1997 has modernised and updated the law in relation to non fatal offences against the person. Some offences under the Act of 1861 have disappeared, eg. placing a man trap contrary to s. 31 of the Act of 1861. New offences have been introduced , e.g. those in relation to the use of syringes (see s. 6 of the Act of 1997). The Act of 1997 has changed the law by introducing the absence of consent as an ingredient to the offence of assault causing harm. However, the fact that the law has changed to that extent does not mean that the Oireachtas has provided that in all cases that an act which has the effect of hurting or causing harm to someone can be committed as long as there is consent. That was never the law. It was always a crime to hurt someone but the law recognised that in certain circumstances which have been discussed above, such as in the case of surgery or sporting activity, consent would be a defence or alternatively, in certain circumstances the absence of consent was an element of the offence required to be established by the prosecution. If the Oireachtas had intended to introduce a radical change in the law to the effect that consent would render lawful the infliction of harm on someone no matter what the circumstances, one would expect to have seen that clearly stated in the legislation. There were exceptions provided in the law for particular situations in which one could consent to the harm being inflicted. Outside those exceptions, the infliction of harm was unlawful. That which is unlawful cannot be made lawful simply by the presence of consent without regard to the circumstances in which the consent is given. Equally, to be effective, a consent must be a valid consent. For example, a consent obtained by fraud is no consent. While the obligation on the prosecution under s. 3 is to establish the absence of consent, a consent to an act which would be unlawful is not a consent. In this case, the consent is one which cannot be recognised in law because the consent, if given, was given for an unlawful purpose and it would be contrary to public policy to allow an accused to rely on a consent which is in furtherance of an unlawful purpose. Such a consent would never have been recognised at common law. Notwithstanding the changes brought about by s. 3 of the Act of 1997, a consent given for an unlawful purpose could not excuse what would otherwise have been an unlawful act.

60. I have had the advantage of reading the judgment of McKechnie J. in this matter in draft form and as he has pointed out in para. 144, we are in agreement up to a certain point on the interpretation of ss. 2 and 3 of the Act of 1997. We part company on the question of public policy and the extent to which the Act of 1997 has amended the law on consent. Can a person consent to all forms of assault causing harm or are there circumstances in which the Act of 1997 limits the consent to a consent which is lawful? As I have indicated above, a consent, in order to be valid, must be given freely for a lawful purpose. Otherwise, it is immaterial.

61. It is undoubtedly the case that the Act of 1997 was a long overdue exercise on the part of the Oireachtas to update the law given the complexity of the Act of 1861, not to mention the outdated nature of some of the offences contained therein as described previously. However, if the Act of 1997 was intended and understood to have effected the radical change described in the judgment of McKechnie J. so that consent to assault causing harm in all cases negates the commission of an offence, including those where the consent was given for an ulterior, unlawful purpose, it is undoubtedly the case that such a radical amendment to the law would have to have been spelt out clearly by the Oireachtas. In my view, that has not been done and for that reason I respectfully disagree with McKechnie J. on this aspect of his judgment and with the conclusion he has reached.

Conclusions
62. I would conclude as follows:

      1. Assault as used in s. 2 and s. 3 of the Act of 1997 has the same meaning.

      2. The concept of consent provided for in s. 2(1)(a)(b) of the Act of 1997 is not removed from s. 3(1) of the Act. Section 2 and s. 3 of the Act of 1997 are separate and distinct offences but insofar as they both use the word "assault", that word has the same meaning in both sections.

      3. The question as to whether or not courts can dictate public policy contrary to the express intentions of the legislature does not arise.

63. For the reasons set out above I cannot agree with the conclusion of the Court of Appeal to the effect that absence of consent is not a necessary ingredient in a s. 3 assault.

64. In this case, the learned trial judge did not allow the issue of consent to go to the jury. The basis of the ruling may have been erroneous but the nature of the consent in this case was such that it was unlawful and therefore, there was no effectual consent. Accordingly, the conviction can stand and I would dismiss the appeal.








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 AC 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.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 21st day of December, 2018


Introduction
1. The central issue arising on this appeal can be simply stated: is a lack of consent a necessary element of a charge of assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997 ("the 1997 Act")?

2. On the 20th May, 2014, Mr Gerard Brown assaulted one Stephen Cooper at Midlands Prison, Dublin Road, Portlaoise, with the result that Mr Cooper suffered a serious head injury requiring a number of stitches. Both men were prisoners in the prison at the time. Mr Brown was charged with assault causing harm, contrary to section 3 of the 1997 Act. At trial, it was not disputed that such assault had occurred or that Mr Brown was the assailant. Rather, the defence put forward on his behalf was one of consent: he said that Mr Cooper had requested Mr Brown to attack him in order to orchestrate Mr Cooper's transfer to another prison. Following legal submissions on the matter, the trial judge refused to allow this defence to go to the jury, holding that consent cannot constitute a defence to a charge under section 3 of the 1997 Act. Mr Brown was duly convicted by a jury at Portlaoise Circuit Criminal Court and was sentenced to three years of imprisonment, consecutive to his current sentence. His conviction was upheld by the Court of Appeal ([2016] IECA 405), which affirmed that consent is not a defence to a charge under section 3. He now appeals that judgment to this Court.

3. The manner in which the appeal was argued on Mr Brown's behalf essentially boils the matter down to one of statutory interpretation. The Court has also been presented with arguments as to the extent to which it is necessary to grapple with public policy in construing sections 2 and 3 of the 1997 Act, and to a lesser extent the appeal raises an issue as to whether it is appropriate to have regard to ministerial pronouncements or Dail debates when assessing said public policy concerns. From the perspective of the Director of Public Prosecutions, Mr Brown's case requires the Court to depart from its own decision in The Minister for Justice, Equality and Law Reform v. Damian Dolny [2009] IESC 48, and the DPP questions whether the requirements for doing so have been satisfied.


Relevant Statutory Provisions
4. Fundamentally, this case concerns the interpretation of sections 2 and 3 of the 1997 Act. It may therefore be helpful to set out these provisions in full at the outset. Section 2 provides as follows:

        "2. Assault

        (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 [€2,500] or to imprisonment for a term not exceeding 6 months or to both."

5. Section 3 creates a more serious offence. It states that:
        "3. Assault causing harm

        (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 [€2,500] 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."

Harm is defined in section 1 as meaning "harm to body or mind and includes pain and unconsciousness".

6. Some discussion was also directed to section 4 of the 1997 Act. It creates another offence, sometimes said to be an "assault-type" offence and often colloquially referred to as "assault causing serious harm", although it should be noted that the word "assault" appears nowhere within the section (a point of no little significance to the appellant). Further discussion of this section can be deferred until later. For present purposes, a recital of its terms will suffice:

        "4. Causing serious harm

        (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."

Serious harm is defined in section 1 as meaning "injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ".

7. Attention should be drawn also to section 22 of the 1997 Act, which is in the following terms:

        "22. General defences, etc.

        (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."

Finally, some reference will also be made to the statutory provisions mentioned in this section.

Background
8. A little bit more information about the factual background to this case may help to contextualise what follows. As stated above, the victim of the assault was one Stephen Cooper. Both he and Mr Brown ("the accused" or "the appellant") were prisoners in the Midlands Prison at the time. The assault occurred on the 20th May, 2014. Mr Cooper was previously a member of An Garda Síochana but was serving a sentence for offences contrary to section 15 of the Misuse of Drugs Act 1977, fraud and perverting the course of justice. As a former garda, he received special protection within the prison.

9. At approximately 10am on the morning in question, as Mr Cooper was being escorted to the prison gym by a prison officer, he was attacked by the accused: Mr Brown struck the victim over the head two or three times with a mug concealed inside a sock. Mr Cooper required twelve stitches to the head as a result of this assault. The incident was captured on CCTV and was witnessed by a prison officer.

Trial

10. Both the victim and the accused gave evidence at trial. No issue was taken with the arrest, detention or identity of the accused. Mr Brown admitted that he had attacked Mr Cooper as above described. His sole defence was one of consent: he claimed that the victim had consented to being assaulted, having requested the accused to assault him in order to facilitate his transfer to another prison. The alleged plan was to convince the prison authorities that Mr Cooper was not safe inside the prison and so the attack was contrived in order to achieve his transfer to elsewhere. The accused alleged that the victim had instructed him not to hold back and to "just make sure there is blood" in order to make the assault look genuine. He said that in return Mr Cooper had agreed to give him €1,000 in cash, in addition to certain documentation and information. For his part, Mr Cooper maintained that there had been no such agreement: he gave evidence at trial that he had not consented to being assaulted in the manner alleged, or at all.

11. The pivotal issue at trial was whether or not this defence could go to the jury. At the conclusion of the evidence, just prior to the judge's charges, counsel for both sides made submissions on this matter (and also on the matter of whether an accomplice warning was needed on the facts of the case; this point is of no continuing relevance). The accused argued that consent was an essential ingredient of assault, be it under section 2 or section 3 of the Act. He said that such sections must be read as one: section 2 defines the ingredients of assault and that definition carries over to section 3. Thus he said that lack of consent was an element of the offence under section 3 and that the jury ought to have been charged that if they believed that Mr Cooper had consented to being assaulted, they must acquit. The DPP countered to the effect that the provisions of section 2 do not carry over to section 3: it was said that the offences under the two sections are completely separate and unconnected. As such, lack of consent was not an element of the section 3 offence, nor could consent be a defence to same.

12. The learned trial judge ruled against the accused on this issue. He held as follows:

        "Sections 2 and 3 are standalone offences in the Non Fatal Offences Against the Person Act statute. If it was intended that the definition of assault in section 2 was to be carried over to section 3, then the statute would have clearly provided for this. Section 2 defines for the first time in a statute the offence of assault simpliciter. It does nothing else. If the statute was intended to define assault in all its forms then this would have been covered in the interpretation section of the statute. It doesn't do this. I am satisfied that the term ‘assault' as used in section 3 derives from the definition which was enjoyed in law at the time that the Non Fatal Against the Person Act was enacted."
He went on to state that:
        "… According to the accused the purpose of the assault was to assist Mr. Cooper in getting a transfer out of Portlaoise Prison. I am satisfied that in the circumstances of the present case Mr. Cooper on grounds of public policy could not have consented to the imposition of an injury on him by the accused, which resulted in Mr. Cooper having to get twelve stitches to the head … I am further satisfied that on the grounds of public policy that the courts could not permit the defence of consent to apply in this case as to do so would be to enforce the purported agreement between the accused and Stephen Cooper. This agreement, in my view, is illegal and could not be enforced on grounds of public policy as it endeavours to use force as a means to force the prison authorities to transfer Mr. Cooper from the Portlaoise prison. To allow enforcement or recognition of such an agreement would be to undermine the proper governance of the prison and would therefore be contrary to public policy and not in the public interest. Mr Hennessy has argued that to take the issue of consent from the jury would be to deny the accused of his constitutional right to a trial by his peers. I do not agree with this contention. The accused has been afforded a jury trial and he has chosen to accept that he inflicted the bodily injury on Mr Cooper. He has sought to justify his actions on grounds that Mr Cooper consented to the infliction of such injury. I am absolutely satisfied, for the reasons outlined already, that in the circumstances of the current case the defence of consent is not available to the accused."
13. This ruling was then reflected in the learned judge's address to the jury. He advised the jury that consent is not a defence to a charge under section 3 of the 1997 Act. His essential basis for so holding was based on dual public policy grounds: first, that the law does not permit a person to consent to the infliction of the type of injury sustained by the victim; and, second, that the purported agreement between the accused and the victim was unlawful because it involved the use of violence for the purpose of arranging the transfer of a prisoner, and thus the agreement was unenforceable. The relevant part of the judge's charge was as follows:
        "In that respect, the accused has proffered the defence that he applied this force and caused the injury to Mr. Cooper in pursuance of an agreement he had entered into with Mr. Cooper, under which Mr. Cooper was to give him some confidential information that he had when he was a garda, together with a sum of €1,000. … But the law is that infliction of force causing injury or harm is not a lawful defence and accordingly my direction to you is that you do not need to concern yourselves with the issue of consent in this trial. Mr. Cooper could not consent to the infliction of the type of injury he sustained. Our law states that, for public policy reasons, you cannot consent to yourself being injured in that fashion. And, for that reason, you are not to concern yourselves with the issue of consent. Consent is not a lawful defence to the charge of assault. And in this case, there is a double reason for that because, even if you accept Mr. Brown's evidence, the assault was perpetrated in pursuance of an agreement, which was to ensure that Mr. Cooper would be moved from Portlaoise Prison, and that type of an agreement in my view, is an unlawful agreement for public policy reasons because it involves the use of violence for the purpose of arranging the transfer of a prisoner, and that is an attack on the governance of the prison and the maintenance of peace in the prison, and as such any agreement that purports to involve the use of violence in that manner is unlawful and could not be enforceable for public policy reasons. So what you need to be satisfied beyond all reasonable doubt is that there was an application of force and that there was no lawful excuse for the application of that force, and that it caused harm. If you are satisfied on all of those issues, beyond all reasonable doubt, then you are entitled to convict …"

14. The essential basis of the accused's defence having been withheld from the jury, a conviction inevitably followed. Thus on the 6th November, 2015, Mr Brown was convicted, following a three-day trial, of the offence of assault causing harm by a unanimous decision of the jury. As above noted, he was sentenced to three years of imprisonment, to begin following the lawful termination of the sentence currently being served by him, with a release date therein of January, 2023.

Court of Appeal

15. Mr Brown appealed his conviction to the Court of Appeal. His submissions, and those of the DPP in response, were in essence the same as those now made to this Court. They are dealt with in detail below (see paras. 29-39, infra ). In summary, he argued that the trial judge erred in his decision not to allow the defence of consent to go to the jury: he said that the criteria for committing a section 3 assault are the same as those that apply to a section 2 assault, and that an absence of consent from the victim is therefore necessary for the commission of an offence under section 3. The DPP maintained that sections 2 and 3 are discrete offences, and that the trial judge had adopted a construction which correctly positioned consent solely within the confines of section 2 assault: a person may consent to the direct/indirect application of force to him or herself, but may not consent to the infliction of harm as defined in the Act.

16. The judgment of the Court was delivered by Mahon J. (Sheehan and Edwards JJ. concurring) on the 21st December, 2016 ([2016] IECA 405). The learned judge first addressed the question of whether sections 2 and 3 of the 1997 Act represent the creation of two discrete and separate offences, so that nothing stated in section 2 applies in respect of section 3, and vice versa. He noted that section 3 does not expressly incorporate or repeat the "detailed explanatory provisions" of section 2, and that it does not expressly state that the commission of the offence involves a lack of consent on the part of the victim.

17. The learned judge held that a lack of consent is not an element of the offence under section 3, and in that regard made reference to the explanatory memorandum accompanying the Bill. Notwithstanding this view however, he was satisfied (that) there are certain particular circumstances in which consent can (nevertheless) provide a defence. Reference was made in this regard to section 22 of the 1997 Act and the explanatory memorandum which accompanied the Act, as well as to a range of judicial decisions from this and from other jurisdictions: R v. Donovan [1934] 2 KB 498, R v. Nazif [1987] 1 NZLR 122, R v. Wilson [1997] QB 47 and Attorney General's Reference (No. 6 of 1980) [1981] QB 715 were mentioned in this regard. Per these decisions, not all of which need be taken as having expressly been endorsed, the circumstances in which the infliction of physical harm may be permissible include medical treatment (and in particular invasive surgery, which invariably requires the use of force and involves the infliction of bodily harm), properly conducted games and sport, dangerous exhibitions, tattooing and piercing, and rough and undisciplined horseplay.

18. The Court of Appeal also referred to the judgments of the High Court ([2008] IEHC 326) and this Court ([2009] IESC 48) in The Minister for Justice, Equality and Law Reform v. Damian Dolny ("Dolny") , which was a European Arrest Warrant ("EAW") case and is addressed in more detail at para. 22 et seq., infra . For present purposes it is sufficient to say that Mr. Dolny resisted his surrender on the grounds of lack of correspondence of offences, as part of which he argued that lack of consent is a necessary proof for an offence under section 3 of the 1997 Act. For reasons addressed at greater length in a moment, Peart J. in the High Court rejected this argument, holding that the offences under sections 2 and 3 are "distinct and different offences", that the section 3 offence is a "freestanding offence" that does not contain a requirement of a lack of consent, that section 2 is not intended to define "assault" for all purposes of the Act, and that that term as used in section 3 should be given its ordinary, dictionary definition instead. This approach was approved by this Court (Denham J., Kearns and Macken JJ. concurring) on appeal.

19. The Court of Appeal went on to refer to the judgment in R v. Brown [1994] 1 AC 212, where Lord Jauncey stated that "the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer." Ultimately, Mahon J. held as follows on the central issue:

        "36. Section 2 of the Act of 1997 specifically creates an offence of assault occurring without the consent of the other . Section 3 contains no such provision. The drafting of these related sections, (to the extent that they both refer to assault), creates confusion as is evident from this and other cases and might have been the subject of more careful drafting. It is nevertheless appropriate that the offences described in ss. 2 and 3, respectively, should be treated as separate and distinct offences, as indeed should the offence described in section 4." (Emphasis in original)
Having referred to the well-known principles of statutory construction as set out in Howard v. Commissioners of Public Works [1994] 1 I.R. 101, the Court, in dismissing the appeal, concluded as follows:
        "38. Proof of an absence of consent is therefore not a necessary ingredient in a s. 3 assault. Consent may however provide a defence to a s. 3 assault charge in limited circumstances such as, for example, legitimate sporting activity and necessary and appropriate medical treatment.

        39. An assault causing harm committed in circumstances where the purpose and / or intention of the assault is itself unlawful and / or contrary to public policy can 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 Act of 1997. In this Court's view, the ruling of the learned trial judge in this case 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."

20. In the circumstances, the Court considered it unnecessary to address a ground of appeal related to the trial judge's alleged error in refusing an application to give an accomplice warning to the jury. The refusal of that application is not a feature of this appeal.

Appeal to this Court
21. Mr Brown sought leave to appeal against the said judgment and order of the Court of Appeal. In recognition of the importance of the issued raised, the DPP did not oppose the application, nor did she dispute the facts as set out by the appellant in his application. By determination dated the 21st July, 2017 ([2017] IESC DET. 83), this Court granted leave to appeal in respect of the following issues of general public importance:

        (a) The interpretation of section 2 and section 3 of the 1997 Act.

        (b) Whether the concept of consent as provided for in section 2(1)(a)(b) of the 1997 Act is removed from section 3(1) of the same Act.

        (c) The interpretation and scope of ‘assault' as defined in section 2 of the 1997 Act.

        (d) Whether section 2 and section 3 of the 1997 Act are separate or distinct offences.

        (e) To what extent can the courts dictate public policy contrary to the express intentions of the legislature.

As can readily be appreciated, issues (a)-(d) above are, in essence, subtle variations on a single theme. Accordingly, they have for the most part been treated collectively by the parties as one larger issue concerning the proper construction of sections 2 and 3 of the 1997 Act. I have likewise followed this approach.

Dolny

22. Before moving to the arguments of the parties, it may be useful to give some background information, at this juncture, on the decisions of the High Court and this Court in The Minister for Justice, Equality and Law Reform v. Damian Dolny ([2008] IEHC 326 and [2009] IESC 48). This may help to contextualise the submissions that follow, as issues arise in this appeal (i) as to whether the decision of this Court in Dolny has the status of a binding decision of this Court on the relationship between sections 2 and 3 of the 1997 Act and (ii), if so, whether the appellant can satisfy the high threshold which must be reached before this Court will depart from one of its previous decisions.

23. The surrender of Mr Dolny was sought by a judicial authority in the Republic of Poland so that he could serve a sentence of imprisonment imposed on him there for an offence that can be loosely be described as an assault. The particulars of that offence were set out at paragraphs E and E2 of the European Arrest Warrant which was the subject of the application before the High Court. The factual description set out in those paragraphs was as follows:

        "On 20th June 2004 in Krzyz Wlkp., Wielkopolska district, acting together and in collaboration with Mr Rafal Berger and Mr Tomasz Wyrwa, he beat Mr Andrzej Lnka by hitting him on the face and head with his fists, thereby causing injury to his body in the form of a contused wound in the left suborbital area and a contused wound in the area of the right superciliary ridge - thus exposing him to the direct danger of sustaining grievous detriment to his health."
The relevant legal provision was Article 158 § 1 of the Polish Penal Code, which provided that:
        "Any person who takes part in a beating or battery which exposes the wronged person to a direct danger of losing his/her life or which can result in consequences stated in Article 156 § 1 or in Article 157 § 1, is liable to a penalty of up to 3 years' deprivation of freedom."
Article 156 § 1 referred to causing grievous bodily harm resulting in serious loss of eyesight, hearing, speech or the ability to procreate, or the infliction of another serious disability, serious incurable or long lasting illness, illness which constitutes a real threat to the person's health, lasting mental illness, total or considerable disability to work in his/her profession or lasting disfigurement or deformation of the body. Article 157 § 1 contained the offence of impairment of the functioning of a bodily organ or a disturbance of health, other than that defined in Article 156 § 1.

24. Mr Dolny's sentence was originally suspended for four years. However, during the probationary period following the offence, Mr Dolny perpetrated a further offence - another beating contrary to Article 158 § 1 - following which the suspension was lifted by the Polish courts. A warrant for the arrest of Mr Dolny was made on the 14th March, 2007; this in turn led to the issue of the European Arrest Warrant, dated the 13th August, 2007, and endorsed by the High Court on the 27th February, 2008 following its transmission to the Irish Central Authority. Mr Dolny was arrested, immediately brought before the High Court, and thereafter remanded on bail from time to time pending the hearing of the application for his surrender pursuant to section 16 of the European Arrest Warrant Act 2003 ("the 2003 Act").

25. Two objections to surrender were raised at the hearing of the application before Peart J.. The first, which is of no relevance to this appeal, was Mr Dolny's submission that the warrant failed to adequately specify the offence to which the warrant related, or the nature and classification of the offence under the law of the issuing State. This ground of objection was dismissed by the learned judge.

26. It is the second ground of objection which is of interest to us on this appeal. Mr Dolny argued that the offence for which he was convicted on the 14th March, 2004, did not correspond to any offence under Irish law, as required by sections 5 and 38 of the 2003 Act. Counsel for the Minister contended that the offence above-described corresponded to the offence of assault causing harm pursuant to section 3 of the 1997 Act. However, counsel on behalf of Mr Dolny submitted that the references within section 2 to "without lawful excuse", "intentionally or recklessly" and "without the consent of the person" must also be present for the purposes of the section 3 offence, since they are necessary ingredients of the "assault" referred to in section 2. It was therefore argued that lack of consent was a necessary proof for the section 3 offence, just as it is for section 2. He thus submitted that as there was nothing in the description of the offence in the warrant to indicate a lack of consent, no correspondence was made out. However, this submission did not find favour with Peart J.:

        "In my view, this submission is wrong. The offences created respectively by s. 2 and s. 3 of the 1997 Act, are distinct and different offences. An assault under s. 2 requires for its commission that the person assaulted did not consent to being assaulted, as well as that the assault be inflicted without lawful excuse and intentionally or recklessly. The section is clear in that regard. But the separate and distinct offence of ‘assault causing harm' in s. 3, contains no such requirements. It is a separate offence, and it is not the case that s. 2 is intended to define the concept of ‘assault' for all purposes of the Act. There is no definition of assault contained in s. 1 of the 1997 Act, or elsewhere therein.

        Section 3 provides for a freestanding offence of ‘assault causing harm', as opposed to a simple assault. In order to be guilty of this offence, a person must have carried out an assault and must have caused 'harm' as defined in section 1 of the 1997 Act. In such an offence, it is not part of the offence that it occurs without the consent of the victim. That is clear from the plain meaning of the words used in the section. In section 3, the word ‘assault' is not used as a term of art by reference to the provisions of s. 2, or by reference to any statutory definition of that word. The Concise Oxford Dictionary definition of ‘assault' is ‘a violent physical or verbal attack'. That is the meaning to be given to the word ‘assault' for the purpose of the section 3 offence.

        I note in passing that the offence of ‘assault causing serious harm' under s. 4 of the 1997 Act, again includes a mental element, namely, that the offence occurs where ‘a person intentionally or recklessly causes serious harm to another'.

        The requirement that the assault be without the consent of the victim, or that there be any mental element, is distinctly absent from the express provisions of the s. 3 offence of assault causing harm. In my view, the facts as outlined in the warrant and which resulted in the conviction of the respondent in Poland, come within the words used in s. 3 of the 1997 Act, in order to create that offence, and in these circumstances, correspondence in accordance with s. 5 of the Act …"

Being satisfied that both points of objection must fail, Peart J. made an order pursuant to section 16 of the European Arrest Warrant Act 2003 directing that Mr Dolny be surrendered to such persons duly authorised to receive him on behalf of the Republic of Poland.

27. Mr Dolny appealed that decision to this Court. The judgment of the Court was delivered by Denham J., as she then was (Kearns and Macken JJ. concurring). The learned judge expressly affirmed the approach of the High Court to sections 2 and 3. Short of so doing, the judgment does not contain any further engagement with the appellant's submission that lack of consent is an element of the offence under section 3. The argument concerning the lack of correspondence was addressed principally through the prism of whether there was sufficiency of the particulars set out on the warrant. So viewed, the question was whether the acts alleged were such that they would constitute an offence if committed in this jurisdiction. Based on the natural and ordinary meaning of the words used, Denham J. was satisfied that the acts alleged - beating the named person by hitting him on the face and head with fists, thereby causing injury to his body - described acts which would constitute an offence if committed in this jurisdiction. She therefore affirmed the judgment and order of the High Court and dismissed the appeal.

28. The precise status of the judgments in Dolny is addressed below (para. 46 et seq: infra ) Before moving on to the operative part of this judgment, it is necessary first to set out the arguments made by the parties.

Submissions
Submissions of the Appellant

29. As was the case in the courts below, the appellant contends that there is no distinguishing "assault" for the purposes of section 2 from "assault" for the purposes of section 3. The latter builds on the former and therefore the criteria under section 2 must be satisfied in order for the crime of "assault causing harm" to be satisfied. Lack of consent is unquestionably an express element of section 2; by using the term "assault" in section 3, that term must be read as defined in the same legislation, that is, in section 2. Thus absence of consent is an essential element of the offence of "assault causing harm" under section 3. As a result, the learned trial judge and the Court of Appeal erred in law in their interpretation of those sections and the trial judge erred his charge to jury when he stated that consent is not a defence under section 3.

30. Mr Brown suggests that the Court of Appeal has taken a very simplistic view of the relevant sections and has adopted an interpretation of the section which is unnecessary when the wording of the section has been legally defined by the legislator. He points to the fact that the word "assault" is not used in section 4 of the 1997 Act and says that it is a mistake to describe the offence created by that section as "an assault type offence" - section 4 is manifestly a separate and distinct offence. Moreover, the appellant submits that section 22 of the 1997 Act has no relevance to the within case and the issues before the court, although it must be said that there was much discussion on that section at the hearing of the appeal, particularly in the context of the tragic death of mixed martial artist Joao Carvalho in a contest at the National Boxing Stadium in April, 2016. Mr Brown says that he is not relying on a common law defence or on a statutory defence such as that contained in section 18 of the Act; instead, he relies on the plain meaning of the phrase "without the consent of the other" and the legal meaning of "assault" as defined in section 2, in circumstances where the burden is on the prosecution to prove every element of the offence. He also submits that the judgment of the Court of Appeal leaves utterly uncertain the requisite intention to establish an offence under section 3. He submits that under the approach taken by the courts below, the intention specified for section 2 assault is presumably likewise not imported into section 3.

31. The appellant refers to the Law Reform Commission's 1994 Report on Non-Fatal Offences Against the Person (LRC 45-1994), where the Commission proposed, inter alia , a scheme of assault and causing injury under which a person could consent to being touched or hurt (para. 9.130). He also refers to the drafting of sections 2 and 3 of the 1997 Act, stating that the legislator chose the word "assault" for a reason when drafting section 3. Mr Brown cites the case of Mason v. Leavy [1952] I.R. 40, where it was stated by Murnaghan J. that "[w]here a statute … defines its own terms and makes what has been called its own dictionary, a Court should not depart from the definitions given by the statute". To the same effect, Bennion on Statutory Interpretation (6th Ed., LexisNexis, London, 2013) states that "[i]t is presumed that a word or phrase is not to be taken as having different meanings within the same instrument unless this fact is made clear." The appellant says that the sections are clear and unambiguous, and that the reference in both to "assault" is a deliberate, conscious and logical step by the legislator. Since the adoption of the 1997 Act, the word "assault" is by definition a legal term with an acquired legal meaning as provided for in section 2. The authors McAuley and McCutcheon reach a similar conclusion at p. 532 of their book Criminal Liability (2000, Round Hall), stating that "Section 2 expressly makes lack of consent part of the actus reus of assault and this definition must be carried into section 3".

32. Mr Brown submits that the approach adopted by the trial judge and the Court of Appeal is overly deferential to the legislator, subjectively conservative, and fails to strictly construe a penal statute. It is said that this interpretive technique runs counter to any existing rule of construction concerning internal consistency in a document such as this. The appellants submits that the purposive approach adopted by the courts below is illogical and appears to have been adopted in support of the courts' view on what is or is not acceptable as a matter of public policy, as opposed to correctly interpreting the legislation according to well-established principles of interpretation.

33. Furthermore, he says that sections 2, 3 and 4 self-evidently follow a schematic approach to injuries perpetrated by violence, and that such scheme provides considerable assistance in respect of the wording used and the appropriate meaning to apply to each section. Sections 2-4 reflect a general gradation in the level of injury inflicted. It is submitted that it is evident from the intentional omission of the word "assault" from section 4 that it is solely for an act causing serious harm that an absence of consent is removed as an element of the actus reus. In other words, it is clear from the scheme of the Act that it is only in section 4 that consent is irrelevant. This was a deliberate choice by the legislature. It is for the legislature to set the bar as to what may or may not lawfully be consented to, and it is not for this Court to come to another conclusion if it dislikes where the line has been drawn.

34. The appellant points out that the Oireachtas did not qualify or confine the meaning of assault to section 2 through the use of any legislative "restricting phrases" such as "for the purposes of this section" or "in this section" (see Liston v. G. O'C and A. O'C [1996] 1 I.R. 501 and In re James Application for Judicial Review [2005] NIQB 38); thus, section 3 must be read by reference to section 2. This is said also to be in accordance with section 20 of the Interpretation Act 2005.

35. Mr Brown also refers to several well-known canons of construction. An Act of parliament should be construed according to the intention expressed in the Act itself; if the words used are precise and unambiguous, it is necessary to do no more than give them their ordinary and natural meaning ( Howard v. Commissioner of Public Works [1994] 1 I.R. 101). A word in a statute must be given its natural meaning in the context in which it occurs ( Dunnes Stores v. Director of Consumer Affairs [2005] IEHC 242. Reference has also been made, to similar effect, to the cases of McGrath v. McDermott [1988] I.R. 258 and Inspector of Taxes v. Kiernan [1981 I.R. 117. Moreover, per People (AG) v. Kennedy [1946] I.R. 517, "the same words used in different parts of a statute … should be given the same meaning"; this decision was followed in Meagher v. Minister for Social Protection [2015] IESC 4. Various English authorities in support of this rule have also been cited. Further principles are referred to also: judges must be careful when interpreting legislation not to do so in a way that they cast themselves in the role of legislators ( L O'S v. Minister for Health and Children [2017] IECA 7), and where the legislature enacts through clear and unequivocal language something that is capable of only one meaning, it must be given that meaning however harsh or contrary to common sense the result may be ( DPP v. Corcoran [1995] 2 I.R. 259).

36. Similarly, the appellant refers to the requirement to interpret penal statutes strictly (see. e.g. DPP v. Somers [1999] 1 I.R. 115 and DPP v. Moorehouse [2006] 1 IR 421). Applying these decisions, "assault" must be given its legal meaning in the context in which it occurs, that is, the specified legal definition provided by the Oireachtas in section 2. He says that the reasoning of the trial judge ( i.e . that if it was intended to define "assault" for the purposes of the statute as a whole it would have been defined in the ‘interpretation' section of the statute) was simplistic and overly deferential to the legislator. Rather he says that the sections are inextricably linked by the word "assault" which is defined in section 2 and does not therefore need to be repeated.

37. Mr Brown draws a comparison with the offences of "burglary" and "aggravated burglary", as set out in sections 12(1) and 13(1), respectively, of the Criminal Justice (Theft and Fraud Offences) Act 2001. There the legislature did not set out the definition of "burglary" again in section 13(1), but the word must be taken to have the same meaning for each section. He says that the constituent elements of burglary as defined in section 12 must be present in order for the offence under section 13 to be made out. It is submitted that sections 2 and 3 of the 1997 Act were intended to be read in a similar manner.

38. The appellant also adverts to the fact that he invited the Court of Appeal to have regard to the executive expressions of intent to the Oireachtas at the introduction of the Bill. This offer was declined but the appellant maintains that such parliamentary debate is instructive in respect of what is and what is not contrary to public policy for the purpose of an assault causing harm and whether the defence of consent applies. Mr Brown submits that as the Court of Appeal did not seek submissions on the issue of parliamentary debate, nor did it direct queries to either side on the issue of public policy, that court effectively reserved onto itself an inconsistent, indeed diametrically opposite, view of public policy to that stated by the then Minister for Justice, Nora Owen T.D., in her address to the Dail on the relevant sections of the 1997 Act (see para. 136, infra ). Thus he submits that though he is reluctant to ask this court to consider the use of parliamentary debate in the interpretation of a statute, the same is necessary due to the view of public policy taken by the courts below. By deriving a view of public policy based on its own view of same, it is submitted that the Court of Appeal is straying close to legislating. Thus although Mr. Brown submits in the first instance that it should be unnecessary to consider public policy in interpreting the Act, as the Act is clear, but should any ambiguity remain then it ought to be permissible for the Court to resolve same by reference to parliamentary debate. In so submitting he does not seek to have the Court revisit the decision in Crilly v. Farrington [2001] 3 IR 251, in which it was stated that great caution must be exercised in seeking to use parliamentary debates as an interpretive aid; rather he submits that where the meaning of a statute remains utterly ambiguous, it would be preferable for the judiciary to have regard to the pronouncement of policy in the introduction of legislation by the Minister rather than taking it upon themselves to presume upon a policy which contradicts that expressed by the Minister.

39. Finally, Mr Brown submits that the decision in Dolny should be revisited. He says that the context of that decision was very different from the within case: it was an EAW case; sections 2 and 3 were considered under the doctrine of equivalence while the High Court was exercising civil jurisdiction; there was no detailed discussion of the competing techniques of interpretation or canons of construction; and the respondent was not on trial and facing the threat of a criminal conviction carrying a five-year prison sentence. The trial judge in the within case accepted that Dolny was not binding but nonetheless found it highly persuasive. The appellant submits that Dolny was decided in error having regard to the rules of statutory interpretation and the authorities referred to above and the absence of any restrictive or qualifying phrases in sections 2 and 3 of the 1997 Act. In this regard Mr Brown also refers to an academic paper by Dr. Catherine O'Sullivan, who criticised the judgments in Dolny on a number of grounds (O'Sullivan, "The Importance of Correct Statutory Interpretation Technique: the case of Minister for Justice, Equality and Law Reform v Dolny " 45(1) The Irish Jurist 146-164 (2010)).

Submissions of the Respondent

40. In her written submissions, the DPP relies on the decisions of the High Court and Supreme Court in Dolny , adopting the reasoning set out therein. She submits that although Dolny arose in a different context, this does not detract from or diminish its status as a binding decision of this Court on the relationship between sections 2 and 3 of the 1997 Act. That relationship was directly in issue in Dolny and the Court's view on same must be treated as the ratio of that decision. The DPP submits that although it is well-established that this Court is not rigidly bound by its previous decisions (see, e.g. Attorney General v. Ryan's Car Hire Ltd [1965] I.R. 642), it is equally well-established that the circumstances in which it will depart from a previous decision are very exceptional (see, e.g. D.H. v. Groarke and the Director of Public Prosecutions [2002] 3 IR 522). Per D.H., the decision in question must be "clearly wrong", or there must be "compelling reasons" for treating it as one of those exceptional cases in which the Court will depart from its previous decision. This is a high threshold, and merely establishing that a different view could be formed on the question is not enough.

41. The respondent's view in relation to Dolny is subject to the caveat that she does not believe that the decision itself is authority for the proposition that she is not required to prove intent or recklessness in relation to the first part of the offence under section 3 of the 1997 Act (para. 121 infra ). That case concerned the question of consent, not mens rea . She submits that an "assault" for the purposes of section 3 can be committed intentionally or recklessly ( R v. Vanna [1976] QB 421, as cited with approval in People (DPP) v. Murray [1977] I.R. 360).

42. The DPP also makes submissions in relation to Crilly v. Farrington [2001] 3 IR 251. She refers to the judgment of Murray J., as he then was, where at pp. 294-295 the learned judge referred to the fact that the Constitution does not assign or recognise any special role for the initiators or promoters of a bill. She further notes that this Court has previously interpreted sections 2 and 3 of the 1997 Act without embarking on an analysis of the parliamentary contributions concerning these provisions. The respondent refers also to the presumption against radical amendments, submitting that if Mr. Brown's interpretation of the Act is correct then this would represent a radical change to the law concerning consent to the infliction of injury upon oneself; if the same had been intended, it would have been achieved through language of greater clarity and certainty.

43. Moreover, the DPP submits that even if this Court is to adopt the appellant's construction of the sections, the presence or absence of consent alone is not dispositive of the legality of the appellant's conduct. She points out that in order for an offence under section 2 to be made out, there must be (i) an absence of "lawful excuse"; (ii) intention/recklessness; and (iii) an absence of consent. Absence of lawful excuse and absence of consent are separate, independent ingredients. Thus she says that consent cannot, of itself, constitute lawful excuse, thereby validating what would otherwise be assault. Here, other than the pursuit of an agreement to circumvent prison management, no "excuse" was contended for in evidence. Such excuse would demonstrably not be lawful. The 1997 Act does not define the phrase "lawful excuse"; it is submitted that it falls to the courts to determine whether, in a given instance, the facts disclose an excuse that is lawful. In effect, the crux of this argument was that one can only consent to conduct that is already lawful.

44. The respondent goes on to refer to a number of cases in which the courts have held, on the basis of public policy, that the consent is immaterial in respect of the infliction of bodily harm (see, for example, Attorney General's Reference (No.6 of 1980) [1981] 3 WLR. 125; [1981] QB 715, regarding fighting in the street; R v. Coney [1882] 8 QBD 534, concerning prize-fighting; R v. Donovan [1934] 2 KB 498, in respect of caning for the purposes of sexual gratification; and R v. Brown [1994] 1 AC 212, regarding certain consensual sadomasochistic homosexual acts). The decision in Brown ultimately ended up before the European Court of Human Rights, where it was upheld ( Laskey, Jaggard and Brown v. United Kingdom , App. Nos. 21627/93, 21628/93, and 21974/93, judgment of the 19th February, 1997). The DPP therefore submits that assault, as defined, preserves a public policy remit for the courts, which they have historically exercised on a case-by-case basis to determine which side of the dividing line matters such as different contact sports, medical treatments, tattooing/piercing etc. lie on.

45. Finally, the respondent submits that if the appellant is correct, the "defence" of consent exists for any assault not otherwise penalised under the 1997 Act which falls short of causing serious harm under section 4. Thus all of the old common law would be swept away and people would be free to lawfully "settle" issues on the street, provided that they did not cause serious harm, as statutorily defined. It is moreover submitted that the phrase "without lawful excuse" in section 2(1) would be a redundant term, somehow annulled or subsumed into "consent", if the appellant's interpretation is favoured. Thus the DPP invites the Court to uphold the decision in Dolny, but, if of the view that such decision was wrongly decided, it is submitted that the courts retain a public policy remit which ensures that consent does not become a device to render legal conduct that is demonstrably contrary to public policy.


Decision
The starting point - Dolny:

46. It is said by the DPP that Dolny is a binding decision of this Court on the proper interpretation of sections 2 and 3 of the 1997 Act. She thus submits that, in addition to any other barriers facing the appellant, he must also navigate the test according to which this Court will depart from its own established jurisprudence.

47. It is well-established that, although not bound per se by the principle of stare decisis , this Court will refuse to follow one of its previous decisions only if satisfied that it is "clearly wrong" (see Attorney General v. Ryan's Car Hire Ltd [1965] I.R. 642), and for a more recent consideration of this review jurisdiction The People (DPP) v. J.C. [2017] 1I.R. 417 at p. 664 et seq ). Perhaps the classic statement of the balance to be struck is that of Henchy J. in Mogul of Ireland v. Tipperary (North Riding) County Council [1976] 1 I.R. 260 at pp. 272-273:

        "A decision of the full Supreme Court (be it the pre-1961 or the post-1961 Court), given in a fully-argued case and on a consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion. Of course, if possible, error should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability, and predictability should yield to the demands of justice. However, a balance has to be struck between rigidity and vacillation, and to achieve that balance the later Court must, at the least, be clearly of opinion that the earlier decision was erroneous. In Attorney General v. Ryan's Car Hire Ltd . the judgment of the Court gave examples of what it called exceptional cases, the decisions in which might be overruled if a later Court thought them to be clearly wrong. While it was made clear that the examples given were not intended to close the category of exceptional cases, it is implicit from the use in that judgment of expressions such as ‘convinced' and ‘for compelling reasons' and ‘clearly of opinion that the earlier decision was erroneous' that the mere fact that a later Court, particularly a majority of the members of a later Court, might prefer a different conclusion is not in itself sufficient to justify overruling the earlier decision. Even if the later Court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases the maxim communis error facit jus applies …" (Emphasis in original)
48. Though it is true that the Court will be more reluctant to depart from a previous decision where the earlier decision was that of a court of five or, even more exceptionally, seven members, it is clear that even where the earlier decision was that of a court of three, as in Dolny , it should not be over ruled merely because a later Court inclines to a different conclusion (per Keane C.J. in D.H. v. Judge Groarke and Ors [2002] 3 IR 522 (" Groarke ") at p. 530). In Groarke , the Chief Justice affirmed that the Court will not lightly depart from its previous decisions:
        "I am, accordingly, satisfied that the applicant in the present case has fallen well short of the high threshold which must be reached before the court departs from one of its previous decisions. No doubt, it would be possible to take a different view from that arrived at by the court in that case, but it most certainly cannot be said that the decision was ‘clearly wrong' or that there are ‘compelling reasons' for treating it as one of those exceptional cases in which the court will depart from the generally applicable principle of stare decisis ."
Needless to say, it is the DPP's view that Mr Brown cannot satisfy said threshold in respect of the Dolny decision.

49. One of the first questions that arises, therefore, is whether it must be shown by the appellant that Dolny is "clearly wrong", or alternatively, perhaps, whether he can establish that it should be confined to the EAW/extradition context, or that the passages in relation to sections 2 and 3 were obiter only and therefore not binding in the usual manner. If that is so, this Court may begin its consideration of the relevant statutory provisions afresh. Though there may be some other limited circumstances in which a judgment of this Court is not afforded the usual precedential weight, Mr Brown has not argued, for example, that the decision in Dolny was made per incuriam .

50. First, it must be recalled that the trial judge in the within case did not consider Dolny to be binding on him, although he considered it highly persuasive and not capable of being disregarded lightly. The reasons for this view were that (i) the relevant dicta of Peart J. did not form part of the ratio of the decision and (ii) that case could be distinguished as it was an EAW case where the burden of proof was on the balance of probabilities. To these factors the appellant adds the fact that the case did not include any detailed discussion on the relevant canons of construction available when interpreting a criminal statute. It must also be noted that, although Mahon J. cited and relied upon Dolny in his judgment for the Court of Appeal in this case, there is no indication therein that he considered it to be binding upon him; if it had been, that would have been the end of the matter so far as that court's analysis was concerned.

51. It bears emphasising the relevant issue in Dolny was that of "correspondence" for the purposes of a European Arrest Warrant. Particular rules have developed for the purposes of establishing correspondence pursuant to section 5 of the 2003 Act. In particular, it is clear from decided judgments that the warrant need not set out the totality of matters that would require to be proved by the DPP on a prosecution in this jurisdiction. For example, in Minister for Justice, Equality and Law Reform v. Hahui [2008] IEHC 259, the respondent's surrender was sought in relation to offences allegedly equivalent to robbery contrary to section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and assault contrary to section 2 of the 1997 Act (in respect of which lack of consent is undoubtedly a requirement). Nothing in the warrant indicated the element of dishonesty required to make out a robbery charge in this jurisdiction, nor did it allege a lack of consent for the purposes of the assault charge. Nonetheless, Peart J. was satisfied that correspondence was made out in respect of both charges:

        "Without reading words into the contents of the offence as stated in the warrant, this Court is nevertheless entitled to adopt a realistic approach to the establishment of correspondence and look at all the circumstances of the offence has contained in the warrant. It is quite clear that the respondent was convicted on facts which include the striking of the victim with an implement referred to as a contusive tool, knocking him to the ground, and taking from him a leather handbag containing a large amount of money. On that set of facts, it is fanciful to suggest that this may have occurred with the consent of the victim. These circumstances themselves, clear from the warrant, demonstrate a lack of consent and the dishonest intent of the respondent. In my view there is no room for argument that the absence of any reference to dishonesty or lack of consent is fatal to the issue of correspondence, given the circumstances of the crime. There have been cases before this Court where on the facts of the warrant, the possibility of consent and/or lack of dishonesty, was open. But this is not such a case. In my view the position is clear from the contents of the warrant. In these circumstances, I am satisfied that the offence corresponds to an offence or offences in this jurisdiction of the purposes of section 5 of the Act."
He therefore ordered the surrender of the respondent to Romania. The learned judge delivered judgment in that case several months before his judgment in Dolny .

52. A similar matter arose in Minister for Justice, Equality and Law Reform v. Zukauskas [2009] IEHC 341, again before Peart J. Here the respondent's surrender was sought for intentionally punching a victim at least twice in the face, resulting in bruising and a broken jaw. The offence was alleged to correspond with the offences under sections 2 and 3 of the 1997 Act. Again the warrant was silent as to lack of consent. Peart J. stated as follows:

        "It is clear that it is appropriate that the warrant should not be parsed and analysed as if it was an indictment, and that a common-sense approach should be adopted in the search for the reasonable interpretation referred to by Geoghegan J. in Myles v. Sreenan [1999] 4 IR 294. Such an approach forces the conclusion that the facts as disclosed in the warrant in the present case and as set forth in detail above show correspondence with an offence of assault and an offence causing harm in this State by reference to the ordinary or popular meaning to be given to words such as ‘intentionally punched at least twice … at the face and once at the head causing him to suffer bruises of soft tissue at the face and broken left mandibular ramus', and ‘he intentionally injured the victim'.

        Matters such as the question of the victim not having consented to the infliction of these injuries, or that there was no lawful excuse, may well be matters which the prosecution may prove in some way, or may be inferred from the facts, or may be dealt with by way of any defence put forward by the respondent at his trial, but the mere fact that it is not covered by a specific statement in a European arrest warrant that there was no consent cannot be a sufficient impediment to a finding of correspondence when the facts as known from the warrant are such as appear in the present case."

53. Thus on this approach correspondence does not necessarily require the warrant to specify every matter that would require to be proved by the prosecution if the accused were on trial for the corresponding offence in this jurisdiction. This view on the correspondence issue, was accepted only in a broad sense by Fennelly J. in Attorney General v. Dyer [2004] IESC 1, whose overall approach it must be said was more strict than that of Peart J. in Zukauskas . Nonetheless, this less formalistic approach seems to have found general favour in the EAW context (see also, for example, Minister for Justice, Equality and Law Reform v. Sas [2010] IESC 16).

54. On this approach to correspondence, it can be seen that it was not truly necessary for the High Court to settle the point raised in Dolny: whether or not the warrant recited a lack of consent was simply immaterial to the making of the surrender order. Accordingly, despite the clarity of the views expressed by Peart J. in his judgment in that case, there is certainly a strong argument to be made that they can be considered obiter. The subsequent endorsement of that decision by the Supreme Court adds nothing to this point. So considered this court can thus view the position afresh and do so based on the submissions of the parties. The conclusion is therefore: Dolny is not binding on this or on any court: as such it does not call for any assessment via the principle of stare decisis.

Background: the pre-1997 law on assault.

55. Before addressing the issue of the correct interpretation of sections 2 and 3 of the 1997 Act, it may be informative to set out what the law was in respect of offences against the person prior to the passing of that piece of legislation, and how and why a change came about. It is true that an issue arises in this case as to whether this legislative history has any role to play in the proper construction of the new sections, or whether instead the 1997 Act effectively washes away all that came before (save where expressly stated or obviously intended by the Act or where interpretative principles positively demand); even if the latter be correct as I firmly believe, the historical background is always available and sometimes informative in an exercise such as this. That being so, a short journey through the old statutory and common law offences may help at least to contextualise the present provisions. A fuller history of the legal position in Ireland up to 1994 is contained in Chapter 1 of the Law Reform Commission's 1994 Report on Non-Fatal Offences Against the Person (LRC 45-1994). The following paragraphs do not purport to be an exhaustive account of same but rather provide a brief explanation of the situation as it was prior to the enactment of the 1997 Act.

56. The law on assault prior to 1997 was governed by a mixture of the common law and the Offences Against the Person Act 1861 ("the 1861 Act"). An overwhelming majority of the provisions of the 1861 Act have by now been repealed, though a handful remain live on the statute book. Writing in the Criminal Law Review in 1991, when the Act remained substantially in force in both Ireland and England, Professor J.C. Smith wrote that:

        "[The 1861] Act is a rag-bag of offences brought together from a wide variety of sources with no attempt, as the draftsman frankly acknowledged, to introduce consistency as to substance or as to form. It may have been a great step forward in 1861 but its limitations were known then and it is deplorable that so much of it remains the law." (Prof. J.C. Smith, " Case Commentary on R. v Parmenter (Philip Mark) (No.1) [1991] 2 W.L.R. 408", Crim. L.R. 1991, Jan, 41-43 at p. 43)
Looking at the overall scheme of the Act, it is easy to see why it was described in that way. It contained provisions relating to homicide offences (sections 1-10), attempts to murder (sections 11-15), a specific offence of letters threatening to murder (section 16), acts causing or tending to cause danger to life or bodily harm (sections 17-35), assaults (sections 36-47), rape, abduction and defilement of women (sections 48-55), and further offences such as child-stealing, bigamy, attempts to procure abortion, concealing the birth of a child and "unnatural offences" (e.g. bigamy and sodomy). A rag-bag, indeed.

57. It is immediately apparent that most of those sections could have no relevance to the within proceedings. Even within the sections headed "Acts causing or tending to cause Danger to Life or Bodily Harm" and "Assaults", many of the sections therein are of no apparent significance for present purposes. In the former category, many of the offences were tied to the use of a specific substance (e.g. chloroform, poison or gunpowder) or otherwise covered a very narrow and definite form of conduct (e.g. not providing servants or apprentices with food, clothing or lodging, setting spring guns with intent to inflict grievous bodily harm on a trespasser, or placing wood or stone on railway lines). Even within the part on "assaults", again a number of the sections were rather specialised in that they created specific assault offences in respect of certain defined classes of complainants; thus there were specific offences of assaulting a clergyman, or magistrate, or peace officer, or seaman. Section 39 governed assaults with intent to obstruct the sale of grain, flour, meal, malt, or potatoes, or their free passage.

58. What are of interest to us are the more general assault or assault-type provisions which may loosely be considered as the precursors to sections 2 to 4 of the 1997 Act. The relevant provisions are sections 18, 20, 42 and 47 of the 1861 Act. Sections 42 and 47 contained the penalties for assault and battery both as summary and indictable offences. They provided as follows:

        "Persons committing any common assault or battery may be imprisoned or compelled by two magistrates to pay fine and costs not exceeding 5l.

        42. Where any person shall unlawfully assault or beat any other person, two justices of the peace, upon complaint by or on behalf of the party aggrieved, may hear and determine such offence, and the offender shall, upon conviction thereof before them, at the discretion of the justices, either be committed to the common gaol or house of correction, there to be imprisoned, with or without hard labour, for any term not exceeding two months, or else shall forfeit and pay such fine as shall appear to them to be meet, not exceeding, together with costs (if ordered), the sum of five pounds; and if such fine as shall be so awarded, together with the costs (if ordered), shall not be paid, either immediately after the conviction or within such period as the said justices shall at the time of the conviction appoint, they may commit the offender to the common gaol or house of correction, there to be imprisoned, with or without hard labour, for any term not exceeding two months, unless such fine and costs be sooner paid."

        "Assault occasioning bodily harm. Common assault.

        47. Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable . . . to be kept in penal servitude … ; and whosoever shall be convicted upon an indictment for a common assault shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding one year, with or without hard labour."

(See para. 63 infra for the updated sanctions under both sections)

59. However, the above sections could not be read in isolation, for the offences of assault and battery were defined by the common law. Broadly speaking, an assault was committed where the victim apprehended the infliction of force; a battery was where there was in fact a direct application of force, or some times a delayed or indirect action may also suffice ( R. v. Clarence (1888) 22 QBD 23 at 42). The mental element for each was intention or recklessness. The common law offences of assault and battery were abolished by section 28 of the 1997 Act. Even before that time, however, there could be a certain looseness of language on occasions, with the old legislation and case law often using the term "common assault" when manifestly it was a battery at issue, or indeed using "assault" to cover both offences. Sections 42 and 47 together envisaged common assault being triable either summarily or on indictment.

60. Moreover, as can be seen above, section 47 additionally created the offence of "assault occasioning actual bodily harm". The section 47 offence was a "compound" offence requiring proof of (i) common assault, and (ii) the aggravating element of actual bodily harm. As appears from section 47, this was an indictable-only offence. Though there was some debate over whether it was necessary for the accused to have foreseen the harm caused, the House of Lords ultimately concluded in R v. Savage; R v. Parmenter [1992] 1 AC 699, [1991] 3 WLR 914 that the prosecution is not obliged to prove that the accused intended to cause some actual bodily harm or was reckless as to whether such harm would be caused; the harm element, therefore, is one of strict liability. The point was never definitively settled in Irish law.

61. Sections 18 and 20 contained more serious "assault-like" offences involving the infliction of grievous bodily harm, though it is important to note that the word "assault" appears nowhere in the sections. Those sections provided as follows:

        "Shooting or attempting to shoot, or wounding, with intent to do grievous bodily harm, or to resist apprehension.

        18. Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, or shoot at any person, or, by drawing a trigger or in any other manner attempt to discharge any kind of loaded arms at any person, with intent, in any of the cases aforesaid, to maim, disfigure, or disable any person, or to do some other grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable … to be kept in penal servitude for life …"

        "Inflicting bodily injury, with or without weapon.

        20. Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour, and being convicted thereof shall be liable … to be kept in penal servitude …"

62. As can be seen, section 18 created some twenty-four separate offences, forbidding as it did any and every combination of one of four acts with any one of six intentions. Each was punishable by life imprisonment. Section 18 never required proof of common assault in order to prove the offence. Though it was originally believed that the section 20 offence did require proof of common assault, the House of Lords settled on the opposite view in R v. Wilson [1984] AC 242. Unlike section 47, both offences required subjective foresight by the accused of harm being caused. In respect of the section 20 offence, the prosecution was required to prove either that the accused intended or that he actually foresaw that his act might cause physical harm to some person, albeit it was only harm of a minor character ( R v. Mowatt [1968] 1 QB 421). However, for a conviction under section 18, it had to be proved that the accused had, at a minimum, virtually certain foresight of causing grievous bodily harm. As with ss. 42 and 47, both ss. 18 and 20 were likewise repealed by the 1997 Act.

63. The resulting contours of assault, by virtue of both the common law and the 1861 Act (as amended) were therefore:-

        (A) (i) Assault and Battery: frequently conjoined as common assault (ss. 42 & 47);

        (ii) On summary prosecution not exceeding six months imprisonment and/or a fine not exceeding £50, (see s.11 Courts of Justice Act, 1951) .

On indictment: not exceeding one year with or without hard labour.
        (B) (i) Assault causing actual bodily harm (s.47):

        (ii) On indictment not exceeding 5 years (See s.2 of the Penal Servitude Act 1891 etc)

        (C) (i) Assault causing grievous bodily harm by shooting, wounding or otherwise (ss. 18 and 20):

        (ii) Up to penal servitude for life.

Background: The pre-1997 law on consent to harm.

64. Just as the provisions setting out the main offences under the 1861 Act gave rise to much debate in the case law, so too was the law in relation to consent to bodily injury far from straightforward. At the lowest level of offending, the position ultimately became relatively simple, although at the beginning of our analysis, not without some linguistic uncertainty. Consent, it was said, was a defence to a charge of assault or battery ("common assault"). However statements like this one by Hawkins J. in R v. Coney (1882) 8 QBD 534 (" Coney "), might be thought as elevating consent to a much greater degree: he said : "[a]s a general proposition it is undoubtedly true that there can be no assault unless the act charged as such be done without the consent of the person alleged to be assaulted, for want of consent is an essential element in every assault, and that which is done by consent is no assault at all" (p. 553). If intended as a starting point for an analysis to follow it is unobjectionable: in fact it bears remarkable similarity to that of Lord Lane in the Attorney General's Reference (No. 6 of 1980) [1981] QB 717 if otherwise however such could only be accepted at the of generality, and even then requires some considerable adjustment.

65. Subject to some important exceptions discussed below, it was no defence to a charge of assault causing actual bodily harm, or indeed the more serious offence involving the infliction of grievous bodily harm, to say that the victim had consented. Charleton, McDermott and Bolger, in their work, Criminal Law (Tottel Publishing, Dublin, 1999), explain at para. 9.16 that the reason for this was one of public policy: "it is in the interest of society at large that an individual is not always free to consent to certain harmful acts." There are numerous illustrations of this in the case law. For example, in Coney , Cave J. referred to the fact that there was "abundant authority for saying that no consent can render that innocent which is in fact dangerous", a reference to bodily harm (p. 547).

66. R v. Coney was a case in which the defendants had been charged with two counts of assault (Mathew J. and Ors as "aiding and abetting": Cave J. and Ors as "assault": both offences were of "common assault") through their attendance at a prize fight. As part of their defence they argued that there had been no assault, as the prize fighters had consented to the context and to any injuries they may have sustained. The defence was rejected by the Court. Whilst all judges held that prize fighting was illegal, that those who attended were aiding and abetting the event and were therefore guilty of assault, and that consent as between the contestants was no defence, the rationale for this outcome differed greatly in each of the judgments delivered. It is therefore a rather thankless task to try and extract some coherent basis to explain the rule or more significantly the admitted exceptions to it.

67. Many of the eleven judges, at least five in number, relied on a rather narrow policy objection which today, given the array of public order offences on the statute books and a number of vigilant enforcing agencies, carries far less force than previously: in particular conduct giving rise to or tending to cause a breach of the peace featured heavily and routinely was relied upon as a ground for rejecting the consent argument.

68. The basis advanced by those judges for the latter view point had a context and ran thus: In the early part of the nineteenth century prize fighting was unlawful despite consent. This declaration of illegality, however (though) frequently repeated, often reiterated and habitually sanctioned, saw no fall off in its popularity: so enforcement at a secondary level became the norm. As such conduct was seen as giving rise to or tending to cause a breach of the peace, it was criminal per se . Those who attended, even purely as curious bystanders, were guilty of unlawful conduct even where the perpetrators willingly consented. It was via this route that Coney , Gilliam and Tully were charged with assault. Those directly involved, Burke and Mitchell, fought each other in a ring, surrounded by ropes on private land before a crowd of upwards of one hundred people: the participants were also charged. As was quite common at the time other charges of a public order nature, such as riot, unlawful assembly and holding a disorderly exhibition were also levelled, but all, save those of assault were ultimately dropped before trial. So conduct involving a breach of the peace played a key role in the judgments of those that I have mentioned. The remainder of the judges relied variously on the degree of force and injury that might be caused: the dangerous nature of the proceedings and the injurious effect of the activity from a public perspective. From an overall viewpoint however the reasoning, it must be said, was as diverse and as multiple as were the number of judges who deliberated in the case.

69. Be that as it may whilst the judgment of Cave J. has at least in some quarters been subsequently treated as representative, it is however, just as difficult to discern a principle of law basis for his decision, as it is with the others. The most relevant passage appears to be the following:

        "The true view is, I think, that a blow struck in anger, or which is likely or intended to do corporal hurt, is an assault, where that a blow struck in sport, and not likely, nor intended to cause bodily harm is not an assault, and that, an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial.". (p. 539)
70. Another of the judges, Stephen J. explained the law in this way:
        "The principle as to consent seems to me to be this: When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults." (p. 549)
Even then in a later passage the learned judge, and jurist seems to have suggested that where the consenting recipient had not been exposed to ‘serious danger' his or her willing participation was a defence. However, in his famous publication ( Digest of the Criminal Law , both pre and post Coney, 3rd Ed. 1883 pp. 141/142) he queried whether one could consent to his being put "in danger of death or bodily harm…": and again further in the same text he suggested, that short of harm amounting to "maim" one could consent: all a bit uncertain it must be said.

71. Incidentally, "maiming" was defined as ". . . such a hurt of any part of a man's body whereby he is rendered less able, in fighting, either to defend himself or to annoy his adversary" . . . . (Hawkins' Pleas of the Crown (1Hawk P.C.) (8th Ed. 1824). (CH 15: Russell on Crime 12th Ed. 1964 at 652 and 653). The reason why such was unlawful was because it weakened the military control of the realm in that the King was deprived of the services of able bodied citizens. As pointed out by Lord Mustill in R. v. Brown , maiming seemed to have disappeared in 1803 and certainly there is no record of an individual having been so charged for the last two hundred years. There is no reason to believe that the situation is any different in Ireland. So the term is moribund: curiously however see s. 143 of the Defence Act, 1954.

72. As a result of the differing views so expressed and noting their historical setting and their antiquity of origin, the main point for me about Coney , is that at best, it can only be regarded as saying that the law can impose some limit on the defence of consent. Even then, I hesitate greatly to describe it as an authoritative precedent even on this point.

73. In R. v. Donovan [1934] 2 KB 498 (" Donovan "), the accused was convicted of indecent assault and common assault upon a seventeen year old girl whom he had beaten with her consent. It was not in dispute that he had caned her for his own sexual gratification. His complaint on appeal was that the chairman of the Surrey Quarter Sessions had misdirected the jury in summing up and in the reply which he gave to a question from them. His argument in this regard was accepted and is not of interest to us. Where the judgment of the Court of Criminal Appeal, given by Swift J. is of importance is where it dealt with a submission from the Crown that it was unnecessary for the prosecution to prove the absence of consent. On that issue the learned judge summed up his view on this point:

        "If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can license another to commit a crime. So far as the criminal law is concerned, therefore, where the act charged is in itself unlawful, it can never be necessary to prove absence of consent on the part of the person wronged in order to obtain the conviction of the wrongdoer. There are, however, many acts in themselves harmless and lawful which become unlawful only if they are done without the consent of the person affected. What is, in one case, an innocent act of familiarity or affection, may, in another, be an assault, for no other reason than that, in the one case there is consent, and in the other consent is absent. As a general rule, although it is a rule to which there are well established exceptions, it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and when such an act is proved, consent is immaterial." (p. 507)
Applying this principle to the facts, the learned judge continued:
        "In the present case it was not in dispute that the motive of the appellant was to gratify his own perverted desires … Always supposing, therefore, that the blows which he struck were likely or intended to do bodily harm, we are of opinion that he was doing an unlawful act, no evidence having been given of facts which would bring the case within any of the exceptions to the general rule. In our view, on the evidence given at the trial, the jury should have been directed that, if they were satisfied that the blows struck by the prisoner were likely or intended to do bodily harm to the prosecutrix, they ought to convict him, and that it was only if they were not so satisfied, that it became necessary to consider the further question whether the prosecution had negatived consent. For this purpose we think that ‘bodily harm' has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling." (p. 509)
Nonetheless, the accused's conviction was quashed on the basis that the Court could not be certain that the jury, if properly instructed, would have found that he had intended to cause and inflict blows likely to cause bodily harm to the prosecutrix.

74. I have to confess to not understanding either passage as quoted. With regard to the first extract it seems obvious that if an act is criminal without consent, then consent cannot be a defence to it. (" Consent and Public Policy " 1962 Crim. L.R. 74, 154 and 156 - Glanville Williams). Yet this proposition has been doubted elsewhere ( R. v. Brown , Mustill J. at 112). In the second passage I do not follow why the jury should have been asked about the likelihood or intention to do bodily harm, and if satisfied, that conviction should follow. Two charges only were preferred: consent was an integral element of and a complete defence to both. Even if the doctor's evidence showed bodily harm, Mr. Donovan was not charged under either the 20 or 47 of the 1861 Act. Therefore, I think that the chairman was correct: the only question was one of consent. Be that as it may, the case is considered an authority that consent is not relevant to any physical inflection beyond common assault.

75. The judgment in Attorney General's Reference (No. 6 of 1980) [1981] QB 715 is another illustration of this general position: however its approach and analysis signified a substantial departure from both Coney and Donovan . In this case two persons had engaged in a consensual fist fight in a public street resulting in bodily harm being caused to the victim. The jury were directed that the accused might not be guilty of assault if the victim agreed to fight, and he used only reasonable force. The accused was acquitted. The Attorney General referred a question of law to the Court of Appeal, namely, "where two persons fight (other than in the course of sport) in a public place can it be a defence for (1) of those persons to a charge of assault arising out of the fight that the other consented to fight?" It answered as follows.

        "[I]t is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason . … So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent." (emphasis added) (p. 719)
76. The Court identified, the starting point of Swift J. in Donovan as being that consent is irrelevant if the act complained of is unlawful in itself, which it will be if it involves the infliction of bodily harm. This it rejected: as it did the same view point that would make an act, even if consensual, an assault if it occurred in public, on the grounds that it constituted a breach of the peace and therefore was unlawful in itself. This is a direct rejection of Coney . It went on to describe these dicta as reflective of the conditions of the time in which they were spoken. In effect, the historical approach had its day: it was time for a new start.

77. So the judgment substituted its own approach for the diverse views based in Coney and stood down the start point enunciated in Donovan . Instead, from its point of view, consent as a general proposition, was a good defence (or an element in the offence) but at some point in the spectrum of the intentional infliction of harm, disregarding the established exceptions, it was for the good of all that enough was enough. So on public policy grounds actual bodily harm and beyond was not rendered harmless by consent.

78. Three further points should be noted: firstly, public policy was positioned by judges, not by the legislature: secondly the absence of a distinction between public and private acts is too sharp for me and I do not accept the generality of how it is put and finally the reference in the passage quoted to "no good reason", can easily be equated with "lawful excuse" or "lawful justification": such must therefore be regarded, at least at common law, as an aspect separate and distinct from consent.

79. Finally perhaps the most well known of the cases in this area also featured as lead defendant a man named Brown ( R. v. Brown & Ors . [1994] 1 AC 212). The case concerned a prosecution of a group of sadomasochists who willingly and enthusiastically participated in the commission of acts of violence against each other for the sexual pleasure it engendered in the giving and receiving of pain. The conduct engaged in, involved genital torture, degradation and humiliation: in fact this general description spares the reader from the more specific details of the engaged activity (Lord Templeman, page 83 and Lord Jauncey, page 92). They were charged under s. 20 (grievous bodily harm) and s. 47 (actual bodily harm) of the 1861 Act. As the law stood each was therefore guilty of an offence under either or both sections unless the participants' consent was such that no offence was committed or was effective to constitute an defence. The trial judge ruled that the prosecution did not have to prove lack of consent by the recipients. By a majority of three to two, the House of Lords dismissed the appeal. Each member of the majority delivered a separate judgment, and each in approach differed significantly one from the other. Whilst I do not propose to analyse them at great length, some discussion is essential.

80. Lord Templeman acknowledged at page 234 that although the authorities do not establish that consent to the intentional infliction of bodily harm is a defence to a charge under the 1861 Act, they do establish "that the courts had accepted that consent is a defence to the infliction of bodily harm in the course of some lawful activities". The question therefore was whether the defence should be extended to the infliction of bodily harm in the course of sadomasochistic encounters, the answer to which in his view could only be arrived at by reference to policy and public considerations. Being so viewed and approached in this manner the majority were not convinced that the law should be so extended. Arguments based on personal autonomy found no favour with the court. They likewise rejected an argument to the effect that consent should be a defence to the lesser charge in s. 47 but not to the more serious s. 20 offence. As stated by Lord Jauncey of Tullichettle:-

        "In my view the line properly falls to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by s. 47 of the Offences Against the Person Act 1861, with the result that consent of the victim is no answer to anyone charged with the latter offence or with a contravention of s. 20 unless the circumstances fall within one of the well known exceptions such as organised sporting contests and games, parental chastisement or reasonable surgery. There is nothing in ss. 20 and 47 of the Act of 1861 to suggest that consent is either an essential ingredient of the offence or a defence thereto…I would therefore dispose of these appeals on the basis that the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer." (pp. 244 - 245)
81. However, whilst this position may be relatively straightforward, these passages alone do not present a full picture of the law. As mentioned above, and as alluded to in several of the extracts just quoted, there existed various exceptions where consent was a valid defence to bodily harm. In truth, it is difficult to reconcile each of the various categories of conduct in respect of which this was so, or to identify a common thread which ties them all together. Activities in respect of which consent could be a defence to the infliction of actual bodily harm included, inter alia , surgical procedures, body adornment (tattooing, piercing, cosmetic surgery, and even branding - see R v. Alan Wilson [1997] QB 47), boxing, contact sports, rough horseplay, "dangerous exhibitions" and more. Previously reasonable chastisement of children by teachers and parents was also considered an exception, though thankfully that position has since been altered by statute (see s. 24 of the 1997 Act and the inserted s. 24A by the Children First Act 2015).

82. It is beyond this judgment to attempt an exhaustive explanation of the rationale which supported each of these exceptions, which generally were identified on a case-by-case basis. In some situations, such as surgery and necessary medical intervention, the policy reasons why consent, provided the treatment accords with good practice and was carried out competently, should provide a defence are so obvious as to not require restatement. In the case of child correction, despite what one might think of it, it at least had at the time a lawful basis, and therefore is not a true exception at all. On other occasions the line could be far more difficult to discern. I hope I do no disservice to the decided cases when I say that at times it seems that a deal of legal and/or logical gymnastics was required to differentiate that in respect of which consent was either an ingredient or a defence, from that in respect of which it was not. As stated by Lord Mustill in his highly impressive dissent in R v. Brown , in which he analysed at least ten various exceptions:

        "I intend no disrespect to the valuable judgment of McInerney J. in Pallante v. Stadiums Pty. Ltd. (No. 1) [1976] V.R. 331 when I say that the heroic efforts of that learned judge to arrive at an intellectually satisfying account of the apparent immunity of professional boxing from criminal process have convinced me that the task is impossible. It is in my judgment best to regard this as another special situation which for the time being stands outside the ordinary law of violence because society chooses to tolerate it."
83. Picking up on boxing as an example, it seems that the reasons most commonly cited in support of its lawful status are the fact that it is properly regulated; that the combatants are properly trained; that it has clear rules of engagement and that the safety of the fighters and probity of the combat is overseen by a referee; and that medical assistance will be on hand, if required. It is these factors that differentiate it from prize-fighting, street-fighting and the like. In such circumstances, with the risks minimised insofar as it is possible to do so, the law will tolerate the deliberate infliction of personal injury. With respect I do not find those reasons compelling. Such a sport is not engaged in for recreation or personal improvement: it is for the money and the attendant glory that fame and success bring. So causing a brain injury, rendering one's opponent unconscious, damaging a vital organ or fracturing this or that bone, even the risk of death itself, are all overlooked. So on what legal basis is it tolerated? Social value seems intuitively objectionable. The factors mentioned as justification seem to offer little else and certainly do not permit the deduction of a general theory that can carry through to the other exceptions. Perhaps Lord Mustill is right: he simply posits that boxing is by now so well-entrenched in our sporting and cultural psyche as to occupy an anomalous position in law.

84. It is not necessary to wade any further into these exceptions at this point. The old law on non-fatal offences against the person, though not being entirely washed away, was reformed by the 1997 Act, and it is the provisions of that statute with which we are presently concerned. As the question for the Court relates to the interpretation of sections 2 and 3 thereof, it is to that matter that I will turn momentarily. However, what first must be examined is the report of the Law Reform Commission (L.R.C.), on Non-Fatal Offences against the Person.

1994 L.R.C. Report:

85. This, then, was the backdrop against which the LRC was asked to review the law, leading ultimately to its 1994 Report: the fact that R. v. Brown predated its publication takes nothing from the content. As that report had an undoubted influence on the statutory enactment which followed in 1997, it is worth looking briefly at the Commission's suggestions for reform. The LRC recommended, inter alia , that sections 18, 20, 42 and 47 of the 1861 Act should be repealed (para. 9.44). It was proposed instead that there should be a new structure for non-fatal offences of violence from the less serious up to the most serious. The Commission proposed the abolition of the common law offences of assault and battery, to be replaced by a single statutory offence of assault. The definition of same set out at para. 9.52 of the Report is virtually identical to that contained in section 2 of the 1997 Act, save that subparagraph (1)(a) opens with the additional words "causes physical hurt, or" before continuing on. It was recommended that this offence should be summary only and should be punishable by a maximum penalty of six months imprisonment and/or a fine of medium gravity. As will be appreciated, the finished section 2 very much reflected this proposal.

86. The Commission went on to recommend the creation of two further offences "for more serious assaults". They were to read as follows:

        "A person who intentionally or recklessly assaults another causing him harm should be guilty of an offence and should be liable on conviction or indictment to be imprisoned for 5 years or to a fine of £5,000 or both such fine and imprisonment or on summary conviction to imprisonment for one year and/or a fine of (the maximum available for a summary offence.

        A person who intentionally or recklessly assaults another causing him serious harm should be guilty of an offence and should liable to be imprisoned for life or to pay a maximum fine of £100,000 or to both such fine and imprisonment." (para. 9.63)

87. The LRC proposed a definition of "serious harm" which is very similar to that replicated in the Act (para. 9.66). It expressly declined to propose a definition for "harm", as it was of the view that the law was operating satisfactorily without such a definition, albeit that the words "actual" and "bodily" were superfluous. The Commission did observe that if a definition of harm was deemed necessary, the English Draft code defined "personal harm" as "harm to body or mind including pain and unconsciousness" (para. 9.65).

88. The essence of the scheme of "assault" proposed by the LRC was ultimately adopted by the Oireachtas, though not without some changes of note. However, its proposal to abolish the distinction between assault and battery and create new offences was fully recognised as was the suggested repeal of ss. 18, 20, 42 and 47 of the 1861 Act. Furthermore, the new structure which it envisaged and the pillars to support the same were put in place. Sections 2, 3 and 4 made provision for assaults of ascending aggravation or severity: s. 2, save for an incidental difference reflected the Commission's view: ss. 3 and 4 are virtually the same. The definition of "serious harm" in the Act likewise and whilst the Commission did not think it necessary to define "harm", nonetheless its proposed definition was adopted verbatim . [Thus therefore the 1997 Act could not be described as simply a qualifying piece of legislation: it was much more: it was the vehicle of passage from the Victorian times to modern society. Its provisions must be viewed against this landscape. If this be correct, the current law in this area of personal physical invasion is to be found in the 1997 Act and unless by obvious incorporation, not external to it.]

89. Some may question the direct relevance of this legislative history on the proper interpretation of sections 2 and 3 of the 1997 Act, an issue which is discussed a little later in this judgment (paras. 125-131, infra) . First however a word on the construction of the relevant sections is desirable.

Approach to Statutory Interpretation:

90. As the many excellent specialist textbooks on the topic will suggest, statutory interpretation, though in many respects it may be thought of as the bread and butter of a judge's work, is often a complex undertaking. Various different techniques and methods are open to the interpreter; depending on which is utilised, the meaning ascribed to a word or section may change quite dramatically. It is obviously far beyond the scope of this judgment to attempt a thorough recital of all of the principles at play. In setting out the admittedly broad overview that follows, I endeavour only to state some of the more uncontroversial aspects of the task, as can be derived from the case law. It will also be necessary, of course, to hone in on those rules and maxims which are most contentious in this case.

91. Though it is trite to say it, it bears repeating at the outset that the objective of statutory interpretation is to ascertain the will or intention of the legislature. While on the High Court bench, I expressed that aim as follows in the case of Kelly v. Minister for the Environment [2002] 4 IR 191:

        "When a court is asked to interpret or construe a statute, its stated objective is and must be to discover ‘the intention of the legislature'. The ultimate aim of every primary approach to the interpretation of legislation is to identify the will of parliament. This obligation equally applies even when it is necessary to invoke any of the secondary aids to interpretation."
Mine may not be the definitive statement of the principle, but I believe it captures its essence. There have been many other judicial pronouncements to like effect (see, for example, the judgment of Kelly J., as he then was, in Macks Bakeries Ltd v. O'Connor [2003] 2 IR 396 at p. 400: "[t]he object of all statutory interpretation is to discern the intention of the legislature").

92. "Ascertaining the intention of the legislature" may be somewhat of a misleading or even a confusing description, for what is meant by it in this jurisdiction is a purely objective task: what matters is not what was subjectively in the minds of those who passed the legislation, but rather what intention can be gathered from an interpretation of the words used in the Act ( People (Attorney General) v. Dwyer [1972] I.R. 416). As stated by Henchy J. in DPP v. Flanagan [1979] I.R. 265, "the province of the Courts in interpreting a statute is not to divine what intention parliament had when passing the particular statute but, by the application of the relevant canons of interpretation, to ascertain what intention is evinced by the actual statutory words used" (p. 282). It is assumed, in this process, that the legislature is fully aware of and proficient in the use and application of all relevant law, language and grammar, and the interpretive criteria used by the courts (see further Dodd, Statutory Interpretation in Ireland (Tottel Publishing , Dublin, 2008), Chapter 2).

93. As a consequence of the above, the first and most important port of call must be the words of the statute itself. To this end there have developed various canons, maxims, principles, presumptions and rules of interpretation which are utilised by the judiciary when interpreting legislation. As above noted, on occasions one might reach two different results when viewing the same provision through the prism of each of two distinct interpretive criteria; judges have considerable discretion both as to which criteria to apply in a given case and how much weight to attribute to them. As the primary submission of the appellant on this appeal is that the courts below have misapplied several important canons of construction in this case, this is a point that I will return to momentarily.

94. The primary route by which the intention of the legislature is ascertained is by ascribing to the words used in the statute their ordinary and natural meaning. Thus it is this "literal approach" which is first in line when it comes to statutory interpretation. It stands to reason that in construing the text chosen by the legislator, the first consideration is to give the words used their natural meaning. Provided that they are clear and unambiguous, the judge's role is at an end, and the words should be given their plain meaning.

95. Of course, the task of ascribing ordinary meaning is not as simple as it first appears. What is meant by the "ordinary" or "natural" meaning of a word may differ depending on whether one consults a dictionary or the man on the street. Words may have legal meanings but also "ordinary" meanings. The natural meaning of a word can also vary greatly depending on the context in which it appears. "Context" in this regard may require the one interpreting the legislation to consider the immediate context of the sentence within which the word is used; the other sub-sections of the provision in question; other sections within the relevant Part of the Act; the Act as a whole; any legislative antecedents to the statute/the legislative history of the Act, including on occasion Law Reform Commission or other reports; and perhaps even the mischief which the Act sought to remedy. With each avenue of remove, the natural meaning of the word may, or may not, begin to shift. As eloquently put by Black J. in People (Attorney General) v. Kennedy [1946] I.R. 517 (" People (AG) v. Kennedy "):

        "A small section of a picture, if looked at close-up, may indicate something quite clearly; but when one stands back and views the whole canvas, the close-up view of the small section is often found to have given a wholly wrong view of what it really represented.

        If one could pick out a single word or phrase and, finding it perfectly clear in itself, refuse to check its apparent meaning in the light thrown upon it by the context or by other provisions, the result would be to render the principle of ejusdem generis and noscitur a sociis utterly meaningless; for this principle requires frequently that a word or phrase or even a whole provision which, standing alone, has a clear meaning must be given a quite different meaning when viewed in the light of its context." (p. 536)

96. If ambiguity should remain, and the literal approach results in uncertainty, then it will be necessary to have regard to the purposive approach. Such an interpretive technique permits the Court to go beyond the pure text of the statute and to consider the intended objective of the Oireachtas and the reason for the statute's enactment. In most cases, the same meaning will be arrived at using the purposive method as it would by using the literal approach; thus the former can function as a useful cross-check for the latter. Occasionally it may be necessary to depart from the literal approach where to apply it would defeat the clear object and purpose of the legislation: see section 5 of the Interpretation Act 2005 and Irish Life and Permanent plc v. Dunne [2016] 1 IR 92 at pp. 106-107). In my judgment in C.M. v. Minister for Health and Children [2017] IESC 76, I queried whether, given the modern tendency to treat matters such as legislative history, overall context, the long title and preamble of the Act etc. all as part of the literal approach, there still remains a clear, definitive and easily understood demarcation line between that approach and the purposive method (see paras. 55 to 59 of that judgment). This is certainly not a question that I will attempt to answer in this judgment; perhaps it is simply that these approaches have elided somewhat as the overall practice of statutory construction continues to evolve.

97. In any event, it is clear that, as part of the literal approach, the task for the judge is to construe the words used by reference to the Act as a whole, rather than in isolation. As put by Lord Bingham of Cornhill in R (Quintavalle) v. Secretary of State for Health [2003] 2 AC 687:

        "8. The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. … The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment."
Lord Millett put it similarly: "[i]n construing a statute the task of the court is to ascertain the intention of Parliament as expressed in the words it has chosen. The Parliamentary intention is to be derived from the terms of the Act as a whole read in its context" (para. 38).

98. The same interpretive approach is utilised in this jurisdiction: the law reports abound with judges making reference to the need to interpret Acts of the Oireachtas a whole. In her judgment in C.K. v. Northern Area Health Authority [2003] 2 IR 544, McGuinness J. noted that it is well settled law "that the individual sections of a statute should be interpreted in the context of the statute as a whole" or indeed in the context of a number of statutes which are to be construed together, where that is so provided by the Oireachtas (p. 559). To similar effect, in Crilly v. T. & J. Farrington Ltd . [2001] 3 IR 251, Murray J., as he then was, observed that regard should be had to the statute as a whole:

        "Manifestly, however, what the courts in this country have always sought to ascertain is the objective intent or will of the legislature. This is evident for example from the rule of construction according to which when the meaning of the statute is clear and definite and open to one interpretation only in the context of the statute as a whole, that is the meaning to be attributed to it …" (p. 295)
Such approach was recently adopted by Clarke C.J. (with whom MacMenamin J., Dunne J., O'Malley J. concurred) and O'Donnell J., dissenting, in their judgments in J .G.H. v. Residential Institutions Review Committee [2017] IESC 69 (see paras. 5.13 to 5.16 of the judgment of Clarke C.J. and paras. 4, 6 and 30 of the judgment of O'Donnell J.)

99. Accordingly, that is the approach which must be utilised in the construction of the relevant statutory provisions. The question is what is the ordinary and natural meaning of the words used in the context in which they appear, that context including, inter alia, the scheme of the 1997 Act as a whole.

100. Finally, in this introductory context, before turning to the sections at issue I should say a brief word about the specific principles which apply when interpreting a criminal statute. In Mullins v. Harnett [1998] 4 IR 426, which itself involved an interpretation of the 1997 Act, O'Higgins C.J. set out seven applicable principles and canons of construction. The latter two such canons were ‘the principle against doubtful penalisation' and what the learned Chief Justice referred to as the "so-called" ‘principle of strict construction of penal statues'. These two principles, which apply to penal statutes, were said to be in addition to, and not in substitution for, other canons of construction. The former principle provides that nobody should suffer a detriment by the application of a doubtful law. As to the principle of strict construction, the Chief Justice quoted the following passages from Maxwell on the Interpretation of Statutes (12th ed., 1969 at pp. 239-240):

        "The strict construction of a penal statute seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly the words setting out elements of an offence; in requiring the fulfilment of the letter of the statutory conditions precedent to the infliction of punishment; and in insisting on a strict observance of technical provisions concerning criminal procedure and jurisdiction". (p. 434 of the report)
However, he then went on to refer to Bennion on Statutory Interpretation (2nd Ed., 1992), where it was stated at p. 382 that "[t]he true principle has never been that ‘a penal statute must be construed strictly'(though it is often stated in such terms). The correct formulation is that a penal statute must be construed with due regard to the principle against doubtful penalisation, along with all other relevant criteria". He moreover quoted further from Maxwell (p. 246) to the effect that the rule of strict construction applies only where there is ambiguity in the statute which all of the other canons of interpretation fail to solve, in which case the benefit of the doubt should be given to the subject rather than the legislature which failed to properly explain itself. He endorsed the view that, absent ambiguity, the construction of a penal statute differs little from that of any other.

101. Nonetheless, this obligation to strictly construe criminal and penal statutes has often been restated by the courts: see, for example, the judgment of Kearns J. (as he then was) for the majority of this Court in DPP v. Moorehouse [2006] 1 IR 421 at p. 443; the judgments of Denham J. (as she then was) and Finnegan J. in DPP v. McDonagh [2009] 1 IR 767 at pp. 779 and 790, respectively, and the recent judgment of O'Malley J. in DPP v. Avadenei [2017] IESC 77. That the provisions in question in this case are criminal is beyond doubt. Accordingly, this principle of strict construction is one which must be borne in mind when interpreting same.

The Proper Construction of and the Relationship between Sections 2 and 3 of the 1997 Act:

102. Turning, then, to the proper construction of sections 2 and 3. As has been made clear above, the prevailing interpretation remains that of Peart J. in Dolny , which was endorsed without fresh consideration by the Supreme Court on appeal and by the Court of Appeal in this case. In his view, the sections create separate and distinct offences. No definition of "assault" is given in section 1 of the 1997 Act; for Peart J., the word is not used in section 3 as a term of art by reference to section 2 or any other statutory definition of the word. Accordingly, he gave the word its dictionary meaning of "a violent physical or verbal attack."

a. The scheme of the 1997 Act

103. With the greatest of respect, I am not convinced that this was the proper approach to take to the interpretation of the section. Perhaps if one were to read section 3 divorced from its immediate surrounds, the necessity to import a definition for "assault" from an external source would seem more pressing. However, given the scheme of the sections 2 to 4 of the 1997 Act, there is a strong argument to be made that the starting point should not be to read section 3 in isolation. Although not appearing in a self-contained "Part" of the Act, it nonetheless appears to me that there is rather more of a relationship between the sections than the judgments in Dolny suggest. Even without reference to the wider context entailing the legislative history, there appears to be an undeniable relationship of gradation between the three sections. This is clear, first, in the degree of damage which is addressed by each offence - mere application of force or causing of impact (or apprehension of same) in section 2; "harm" in section 3; and "serious harm" in section 4. Second, this gradation is apparent from the mode of trial appropriated to each layer: from summary trial only under section 2, to the hybrid mode of trial for the mid-tier offence in section 3 which can be tried either summarily or on indictment at the election of the prosecutor, up to the section 4 offence which is indictable only. Finally, this scale of offending is also apparent from the applicable penalties, ranging from a maximum of six months imprisonment and/or a €2,500 fine for assault, to up to 12 months imprisonment and/or a €2,500 fine for assault causing harm (tried summarily) or an unlimited fine and/or 5 years imprisonment for assault causing harm (tried on indictment), with the maximum penalty for causing serious harm being an unlimited fine and/or life imprisonment. In each of these respects, the sections appear to deal sequentially with ever greater harm (used in the non-technical sense) caused by one person to another.

104. Approached in this way, it seems unlikely that the Oireachtas could have intended that both section 2 and section 4, containing the least serious and most serious offences, respectively, should have a prescribed mens rea (in each case, intention or recklessness), but that the intermediate level offence in section 3 should be one of absolute liability, as it would appear to be, from Dolny and the Court of Appeal's decision in this case. The same would not be a totally implausible outcome, and if the words of the statute compelled such a conclusion then the Court would have to accept that view, but it is, I think, a sufficiently improbable one as to throw doubt on whether that is the proper construction of section 3. This point is returned to at paras. 121-124 infra .

105. Moreover, despite the fact that section 4 is often colloquially referred to as "assault causing serious harm", and indeed despite the fact that section 4 offences are typically assault-type incidents, it is clear that the word "assault" appears nowhere in the section. It refers simply to the intentional or reckless causing of serious harm; that is all. The deliberate omission of the word "assault" from that section must be juxtaposed against its inclusion in section 3. In my view, the general scheme of these three sections, without anything else, heavily suggests that section 3 is a "compound" crime, meaning that the prosecution must prove the elements of an "assault" as defined in section 2, with the additional requirement to prove "harm" as defined in section 1. Such, it seems to me, is the most natural meaning to ascribe to the word "assault" in section 3 within the context of these provisions as a whole.

b. Giving the same word the same meaning

106. It is true, as stated by Peart J. in Dolny and the trial judge in the within case, that the word "assault" is not defined in section 1, the interpretation section of the 1997 Act. Section 1(1) contains ten definitions of terms that appear in later provisions of the Act. Of course, if "assault" was therein defined, the issue before the Court simply would not arise. However, I do not believe that the fact that "assault" is not defined in section 1 is as of such decisive importance as has previously been held. At least as significant, in my view, is the fact that section 2 does not contain a restricting phrase which limits the definition of assault therein as being "for the purposes of this section" or "in this section" (see, for example, the judgment of Keane J. in Liam Liston v G. O'C. and A. O'C . [1996] 1 I.R. 501 at p. 515). Such phrases are used on no fewer than nine occasions in the 1997 Act (see sections 7(6), 9(2), 10(2), 12(2), 14(2), 15(2), 18(3), 23(2) and 25(2)). Viewed in such light, there is some weight to be attached to the omission of such words from section 2.

107. In the absence of any such restricting words in that section, one would have thought it logical that the default presumption is that the same word should be given the same meaning when it is used in different parts of the enactment, unless the context should dictate otherwise. As stated by Henchy J. in State (McGroddy) v. Carr [1975] I.R. 275, it is a "fundamental rule of interpretation that when expressions are repeated in the same instrument, and more especially in a particular part of the same instrument, they should be given a common force and effect unless the context requires otherwise" (pp. 285-286). I can find nothing in the context of the relevant sections, or the Act as a whole, which would indicate anything to the contrary in this instance. Indeed, the basis for applying such a rule of construction seems particularly strong in respect of the sections in question, where the word to which the same meaning is sought to be ascribed is contained in the section immediately following the one in which it is statutorily defined (ss. 12 and 13 of the Criminal Justice (Theft & Fraud Offences) Act 2001). In such circumstances one might almost require an express statement of contrary meaning before standing down the definition only just given in the preceding section.

108. Indeed this well-established principle of construction has deep roots in the jurisprudence of this Court. Black J., in People (AG) v. Kennedy [1946] I.R. 517, stated as follows:

        "[T]he same words in different parts of a statute, and a fortiori in different parts of the same section, should be given the same meaning. In The Queen v. The Poor Law Commissioners, in the Matter of the Holburn Union 6 A. & E. 56, at p. 68, Lord Denman C.J. said:—‘We disclaim altogether the assumption of any right to assign different meanings to the same words in an Act of Parliament on the general ground of a supposed intention in the Act.' In Courtauld v. Legh L. R. 4 Ex. 126, at p. 130, Cleasby B. said:—‘It is a sound rule of construction to give the same meaning to the same words occurring in different parts of an Act of Parliament. . . .' In Spence v. Metropolitan Board of Works 22 Ch D. 142, at p. 149, Chitty J. said:—‘I take it also as a general rule in construing statutes that the same words must be prima facie construed in the same sense in the different parts of the statute'; and in Thames Conservators v. Smeed [1897] 2 Q. B. 334, at p. 346, it was said:—‘Many instances occur of a departure from the cardinal rule that the same word should always be employed to mean the same thing.'" (p. 537)
The learned judge could see no reason for departing from this ‘cardinal rule' in construing the provision at issue in that case, section 29 of the Courts of Justice Act 1924:
        "In s. 29 I find the vital word ‘appeal' used four times. The first time it is used it expressly refers to an appeal to the Court of Criminal Appeal. The second, third, and fourth times it is used it expressly refers to an appeal to the Supreme Court. Hence, its meaning when first used is different from its meaning when used secondly, in respect of the Court to which the appeal is to lie because the section expressly says so. But, the position is otherwise in respect of the party who may appeal. There is nothing in the section or elsewhere in the Act which expressly or impliedly shows that the word ‘appeal,' as first used in s. 29, is to have a different meaning from what it has when used secondly, in respect of the party to whom the right is given. Therefore, on the principle of construction stated, it must be given the same meaning in this respect in each case. Now, where the word ‘appeal' is first used it unquestionably means an appeal by the convicted person only. This is made clear by reading ss. 29, 31 and 63 together. Hence, in accordance with the principle of construction stated, it should be inferred that the Legislature intended it to be likewise limited to the convicted person wherever else it is used in the same section, unless this limitation is expressly or impliedly excluded by some other words of the Act, and there are no such words anywhere in the Act."
109. Applying this principle of construction, which now has an express statutory basis (s. 20 of the Interpretation Act 2005), the presumptive starting point must be, as stated, that the word "assault" as appears in section 3 must be assigned the same meaning as is given to the term "assault" in the preceding section. Nothing in the internal or external context of the 1997 Act suggests any reason why this should not be so.

110. As has been acknowledged by the other courts which have looked these sections, the drafting thereof could unquestionably have been clearer. However, it appears to me that the proper construction of sections 2 and 3 is that the latter builds upon the former, and that section 3 is a compound offence. I have reached the view that the correct interpretation of the sections is that the term "assault" as contained in section 3 must be given the meaning assigned to that word in section 2.

c. The use of dictionaries

111. I do not therefore believe that it was necessary to import a definition of "assault" from an external source, as was done in Dolny . Dictionaries can undoubtedly act as aids to interpretation. As acknowledged above, a dictionary is an obvious source for the "ordinary" meaning of a word. However, dictionaries are not authoritative repositories for the interpretation of words contained in a legislative enactment. The definition of a word may vary as between dictionaries, or editions of the same dictionary - though perhaps of limited significance in daily life, even a subtle change may have important ramifications when read into a statute. More importantly, dictionaries cannot supply the context - I use that word in its broadest sense - which is so necessary for the proper construction of an Act of the Oireachtas. That this is so is reflected by the judicial pronouncements in this jurisdiction warning against over-reliance on dictionary definitions in statutory interpretation (see, for example, the judgment of Henchy J. in Inspector of Taxes v. Kiernan [1981] I.R. 117 at p. 122 and the judgment of Keane C.J. in Sinnott v. The Minister for Education [2001] 2 IR 545 at p. 637). With that said, it is undoubtedly the case that the use of dictionaries in statutory interpretation is somewhat inconsistent, and one would not have to look too far to find influential judgments which have done just that (see, for example, the judgment of Ó Dalaigh C.J. in Rahill v. Brady [1971] I.R. 69 at pp. 82-83).

112. If it is not uncommon that the dictionary definition of a word will have some influence over the meaning that said word is ascribed in a statute, the judgment of Barrington J. in Keane v. An Bord Pleanala (No. 3) [1997] 1 I.R. 184 at pp. 232-235 provides an interesting illustration of the reverse situation that can occur whereby the legal definition given to an everyday word in a statute may cause changes to the ordinary and natural uses of such term in day-to-day life, which can in turn impact upon the dictionary definition of that word. The word at issue there was "beacon", and the learned judge charts how the definition of that term set out in the third edition of the Shorter Oxford Dictionary (1972) was different to that contained in the eighth edition of the Concise Oxford Dictionary of Current English (1990), with that change being attributed by Barrington J. to an order made by the Secretary of State under the Merchant Shipping Act 1979 during the intervening period.

113. O'Sullivan (para. 39, supra ) argues that as the dictionary definition utilised by Peart J. in Dolny is "clearly" based on the common law offences of assault and battery, and as those common law offences have ceased to exist by virtue of section 28 of the 1997 Act, the dictionary definition can only be of continuing relevance to the extent that it relates to those former offences which have now been repealed. In her view, it is untenable to suggest that the term has an ordinary meaning independent of its legal meaning. Accordingly, that dictionary definition is of lesser authority than the legal definition of the word which, arguably, is to be found in section 2. Although there is much force to this point, it is difficult to be certain as to precisely how the interplay between the old common law offences, the new statutory provisions, and the dictionary definition of those terms might work in practice. I would not want to hazard a guess as to how one could influence the meaning of the other, though there is certainly a clear similarity between the dictionary definition and the old common law offences.

114. On this note, however, I would caution strongly against the use of dictionary definitions for words that have legislatively prescribed legal definitions unless the context makes it clear that the same is appropriate. Murnaghan J. must surely be correct when he said "where a statute such as…defining its own terms and makes what has been called its own dictionary, a court should not depart from the definitions…and meanings assigned…" to the statutory definition. ( Mason v. Heavy [1952] I.R. 40 at 47).

115. Particular caution is required where the term in question has an everyday meaning but is also a criminal offence. The Concise Oxford Dictionary (10th Ed., 2001) give the following definitions for these well-known offences: murder is "the unlawful premeditated killing of one person by another"; manslaughter is "the crime of killing a human being without malice aforethought, or otherwise in circumstances not amounting to murder"; rape is "(of a man) force (another person) to have sexual intercourse with him against their will"; burglary is "illegal entry into a building with intent to commit a crime such as theft"; and theft itself is "the action or crime of stealing".

116. Of course there could be no question of a judge ascribing the dictionary meaning to any of these terms rather than their well-established, and in some cases statutorily defined, legal definitions. The statutes governing their application leave no possible room for doubt as to what definition is to be applied, whereas on one reading at least the same is not true in respect of section 3 of the 1997 Act. I am therefore aware that at some level I am not comparing like with like. My point, rather, is that the dictionary definition of a term which happens also to be a criminal offence will frequently fall well short of the standards of precision and completeness that one would expect to find in a statute criminalising such conduct. Such dictionary definitions are also likely to lack the degree of clarity and certainty that the criminal law demands. For example, the definition of murder is wholly misleading and inaccurate in a legal sense; the definition of manslaughter has clearly been heavily influenced by the legal definition of murder; and the definition of theft is incomplete in several respects. The above definitions are also (understandably) silent on mens rea . Thus it can be seen that a dictionary definition providing the ordinary meaning of a word will often be a poor surrogate for a statutory definition of an offence. The criminal law in respect of the above offences would have developed markedly differently if they were interpreted according to the dictionary definitions set out above. To take as a practical illustration an example provided by the appellant, it cannot be that the crime of aggravated burglary under section 13 of the Criminal Justice (Theft and Fraud Offences) Act 2001 could be construed by reference to the dictionary definition of burglary with the aggravating factor of proximate possession of a firearm or imitation firearm, any weapon of offence or any explosive; rather it must surely be the case that the definition of burglary is sourced from the preceding section, which defines the crime of burglary.

117. That is not to say that recourse to a dictionary may not sometimes be necessary. What is relevant for present purposes is that the scheme of sections 2-4 of the 1997 Act is itself suggestive of section 3 "building upon" section 2, which as of the date of its enactment has contained the statutory definition of the offence of assault. Given that the task for the Court is to interpret the same word in the same statute, appearing in the very next section, it does not seem to me that the dictionary definition of the term, with all of the flaws as above described, should have been resorted to unless there was no alternative.

d. Words that have a legal meaning

118. All of this is perhaps part of a more general point, which is that where a word is a legal term or has an acquired legal meaning, the legal meaning should be applied unless context dictates otherwise (see Dodd, Statutory Interpretation in Ireland (Tottel Publishing, Dublin, 2008) at para. [5.54]). Though sometimes described as an exception to the literal approach, I would not consider this principle to be a deviation therefrom so much as an appreciation that the ordinary and natural meaning to be ascribed to such a word in the context of statutory construction is its legal meaning, rather than its everyday one. This principle of interpretation has perhaps been deployed more in the interpretation of terms which have acquired a defined legal meaning through their use in statutes over time, rather than in the immediately preceding section of the same enactment, as we see in this case. However, although "assault" is an everyday word familiar to all who speak the English language, it is, first and foremost, a legal term: it is both an offence and a tort. Accordingly, it seems to me that where the term is used in the context of a statute imposing criminal liability for the commission of certain conduct, it is more appropriate to use its legal meaning rather than its everyday meaning as derived from the dictionary. This would be so even if there was no definition set out in section 2; however, as there is such a definition given in the statute itself, I believe that the proper approach to the construction of the 1997 Act is to import that definition into section 3.

119. As an aside, it is true, of course, that the term "assault" is also used in other criminal statutes (see, for example, sections 18 and 19 of the Criminal Justice (Public Order) Act 1994). The above interpretation of section 3 of the 1997 Act should not be taken to foreclose on the possibility of the word "assault" carrying a different meaning when used elsewhere. It is primarily the scheme of sections 2 to 4 of the 1997 Act which compels me to the conclusion that I have reached. The same term appearing in other statutes must of course be interpreted according to its ordinary and natural meaning in the context of such enactment as a whole, bearing in mind also factors such as the legislative history of the statute and the mischief which it was intended to remedy.

120. There are, additionally, some further considerations which support the view that I have reached on the construction of sections 2 and 3. Though the following would not be decisive in and of themselves, I feel that such matters bolster my conclusion on the proper construction of the relevant statutory provisions.

e. Mens Rea

121. As above noted, section 3 is silent on its face as to the mens rea for assault causing harm. The interpretation taken in Dolny and affirmed by the Court of Appeal in the within case has the result, in the view of some critics of the Dolny decision, that the section 3 offence is one of absolute liability, i.e. that no mens rea is required for the offence. On that reading, it has been suggested, by reference to the second judgment of this Court in C.C. v. Ireland [2006] 4 IR 1, that the constitutionality of the section may be doubted. Perhaps this explains the respondent's acknowledgement, or even concession, that Dolny is not authority for the proposition that the prosecution is not required to prove intent or reckless in relation to the "assault" element of "assault causing harm"; indeed, the DPP submits that an "assault" for the purposes of that section must be done intentionally or recklessly. So for the prosecution, Dolny is in fact accepted and in part rejected.

122. It is certainly the case that, in the absence of any express mens rea being identified in a given section, the courts may on occasion read mens rea into the provision in question. Per Dodd, Statutory Interpretation in Ireland (Tottel Publishing, Dublin, 2008):

        "[T]here are categories of interpretive doubt, where the court has, by established jurisprudence, the jurisdiction to read in matters. These are so well established that they form part of the interpretive jurisdiction and the legislature can be taken to be aware of them and legislate in light of them. While not exhaustive, examples include the reading on of: (i) mens rea; (ii) … The reading in of mens rea into enactments is perhaps the best known of these examples. There is a presumption that mens rea is required before a person can be held guilty of a criminal offence. Thus where a criminal provision omits wording indicating the mens rea element of an offence, it will be read in, in most cases. The presumption is almost irresistible where the offence is ‘truly criminal' in character … It may be constitutionally impermissible for the legislature to create strict liability offences for certain offences, considering the criminal nature of the offences and the penalty attached." (para. [12.24])
123. There is no doubt that section 3 of the 1997 Act is truly criminal in character. No constitutional challenge has been taken to that section; if it were, and if section 3 was decided to be an offence totally separate from section 2 such that the mental element in the latter could not be read into the former, the presumption of constitutionality which attaches to Acts of the Oireachtas may have the effect that a mens rea would require to be read into section 3. However, I mention the point not to throw doubt on the constitutionality of the section, but rather to highlight the oddity of the position if sections 2 and 4 are taken to require intention or recklessness, but the intermediate offence in section 3 is read as one of absolute liability. Consequently, I am of the view that the omission of any mental element from section 3 bolsters the argument that that provision is intended to "build upon" the definition of assault set out in section 2. On that reading, any fears concerning absolute liability and the constitutionality of the section simply fall away; the mens rea would be recklessness or intention, the same being imported from section 2 together with the requirement of a lack of consent. While the omission of mens rea from section 3 does not compel the conclusion that assault causing harm is a compound offence building upon section 2, I take the view that it is certainly indicative of same. This interpretation, it seems to me, is consistent with the plain meaning of the words used and the intention of the legislature.

124. In interpreting the section as I have, I do not intend to foreclose on the possibility that a mens rea may be required for the "causing harm" element of the offence also; no such issue arises on the facts of this case (see para. [9.92] of Charleton, McDermott and Bolger, Criminal Law (Tottel Publishing, Dublin, 1999)).

f. Reinforcement of this Conclusion

125. In truth, the combination of the matters discussed above is sufficient, in my view, to establish the proper construction of the section. Applying the relevant principles of interpretation, I consider that the true meaning of section 3 is plain and unambiguous. In such circumstances I do not think it is truly necessary to go further and have regard to additional considerations, as the case can be disposed of on the basis of the first principles of statutory interpretation. However, in the event that any ambiguity is thought to remain, I believe that the legislative history of the sections in question puts the matter beyond doubt. To recap most briefly…

126. The relevant statutory provisions have been set out above (paras. 4-7, supra ), as has the legislative history behind their enactment (paras. 55-64, supra ). The Explanatory Memorandum which accompanied the Bill which became the 1997 Act stated that section 2 was intended to replace the common law offences of assault and battery and that sections 3 and 4 were intended to be replacements for sections 18, 20 and 47 of the 1861 Act.

127. As has been seen, section 2 of the Act effectively implemented verbatim the LRC's proposal for a new statutory offence of assault. The LRC thereafter proposed two new "assault" offences where harm and serious harm are caused to the victim (see para. 64 , supra ). On the LRC's scheme it was clear beyond doubt that each such offence was an "assault" offence, and the Report is highly suggestive of a connection linking each of the three offences, i.e. that all are "assaults" as defined by the Commission, with the penalty increasing in line with the harm caused.

128. Section 4 replaced the more serious offences contained in sections 18 and 20 of the 1861 Act, in respect of which it will be recalled that proof of "assault" was not necessary to make out a charge under either section. Although the Oireachtas followed the outline of the simplified scheme laid out by the Commission, adopting some suggestions virtually verbatim, it dropped the word "assault" from section 4 and declined to make the "causing serious harm" offence an assault offence. In this respect, at least, it remains somewhat reflective of the prevailing position pre-1997, rather than the LRC's recommendation.

129. The section 3 offence replaced section 47 of the 1861 Act, "assault occasioning actual bodily harm". That this is so is evident from a comparison of the wording of the relevant sections: "[w]hosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable [to imprisonment] …", in the old provision, and "[a] person who assaults another causing him or her harm shall be guilty of an offence", in the new. Similarly, the annotations to the 1997 Act by Ivana Bacik (June 1998) indicate that section 3 was intended to replace section 47. Both offences carried a maximum penalty of five years' imprisonment. The major difference, of course, is that section 3 is triable either-way, whereas section 47 was indictable only.

130. It has been observed above (para. 60, supra ) that the statutory precursor to section 3, section 47 of the 1861 Act, was a compound offence in that it required proof of both common assault and of harm. Given the apparent statutory intention to replace section 47 with section 3, there is a strong case to be made that it, too, was intended to be a compound offence building on section 2, and all the more so in circumstances where the 1997 Act itself sets out the definition of "assault", rather than relying on the common law.

131. Now it is true, of course, that outside of certain circumstances above described, consent was not a defence to assault occasioning actual bodily harm; the "cut-off" for consent was common assault. The LRC, however, recommended that consent would be a defence to assault and assault causing harm, but not so in respect of its more serious proposed offence of assault causing serious harm in certain limited circumstances. While it is clear that the Oireachtas did not follow the Commission's recommendations to the letter, the general scheme adopted thereby, read in light of this legislative history, is supportive of the interpretation that the legislature enacted section 3 with the intention of replacing section 47, but taking account of the recommendation that the threshold for consent should be moved such that one could now consent to "harm". This is not an inexorable conclusion that flows from the drafting history. Even if it were, it could not compel me to reach such a conclusion if the actual wording of the statute was clearly to the contrary. However, I have concluded from a literal interpretation that the proper construction of the provisions is that section 3 builds upon section 2, and in my view the legislative history fortifies the view which I have otherwise reached.

g. Reaction to Dolny

132. It must be noted in passing that the interpretation of section 3 favoured in Dolny was at odds with what seems to have been the widely shared view of the section amongst criminal law academics, who in their analysis have been somewhat critical of the judgments delivered in that case.

133. Before Dolny, it was assumed that section 3 builds on section 2. For example, the annotation to section 3 of the 1997 Act by Ivana Bacik (June 1998) provides that "[g]iven that the section 3 offence is based upon the section 2 definition of assault, it would seem probable that the principles outlined above as to lawful excuse, consent and section 2(3) common intercourse would also apply to a charge of assault causing harm." Similarly, the annotation to section 2 states as follows:

        "However, section 2(1) does at least clarify that the absence of consent is now an element of the actus reus of assault. But, later in the Act, section 22 preserves the defences available at common law, and according to the Explanatory Memorandum which accompanied the Bill, this includes the common law rules on consent, for example in relation to sporting activities or medical treatment. Thus, it appears that while the absence of consent is an essential element of the actus reus , the presence of consent may also be a defence to a charge of assault, and so the common law rules established in Brown would continue to apply; however, since lack of consent is also an element of the offence of section 3 assault causing harm … the consent threshold would now appear to be ‘serious harm', rather than ‘actual bodily harm'."
134. Similarly, it would seem that the decision ran counter to the assumptions of many of the leading criminal law textbook writers. Hanly, in the second edition of his book An Introduction to Criminal Law (Gill & Macmillan, Dublin, 2006) stated that "section 3 requires proof of an assault that causes harm. Consequently, the prosecution must prove all the elements of assault as defined in section 2, and show that the assault caused harm" (p. 255). Likewise, McIntyre and McMullan also assumed that the definition of assault in section 2 carried over to section 3 ( Criminal Law , 2nd Ed. (Dublin, Thomson Round Hall, 2005) at p. 131). Quinn was of the view that the wording of section 3(1) "indicates that it is an assault under section 2, with the addition that harm is caused." He noted that the mens rea was therefore the same as that for section 2 and did not appear to require an intention to cause resultant harm ( Criminal Law in Ireland (3rd Ed., Irish Law Publishing, Bray, 1998) at p. 84). The description of the section 3 offence in Charleton, McDermott and Bolger, Criminal Law (Tottel Publishing, Dublin, 1999) at paras. 9.91 to 9.92 focuses on the mens rea required for the offence; however, the text suggests that the only distinctions between the offences are the level of harm caused and the penalty. They moreover state that "the offence in s 3 is defined in terms of assault with an aggravating factor", which again suggests that the section 3 offence builds upon that set out in section 2.

135. McAuley and McCutcheon, writing in 2000, found the section to be more equivocal ( Criminal Liability (Round Hall, Dublin, 2000) at p. 532-533). In their view the correct statutory construction of the sections in question is in line with that advocated by Mr Brown, though they were less clear that the legislature intended to effect such a sizeable change to the existing common law relating to consent to the infliction of injury. The authors noted that the extent to which the 1997 Act has modified the common law on consensual force had yet to be determined, but went on to observe that "Section 2 expressly makes lack of consent part of the actus reus of assault and this definition must be carried into section 3 which provides the offence of assault causing harm". Thus, in their view, consent would absolve an accused of liability for an offence under section 3. They took the view that the new "threshold" of injury to which one cannot consent would appear, since the 1997 Act, to be "serious harm" under section 4; given the definition of "serious harm" in section 1, this was, in their view, a change of some magnitude when compared to the pre-1997 common law position. The authors continued as follows:

        "It must be questioned whether that was the intention of the Oireachtas when it enacted the 1997 Act. A liberalisation of the law might have been contemplated but it is debatable whether it was intended that the old law be replaced by so high a threshold. Nevertheless as a matter of literal interpretation this conclusion seems inevitable." (p. 533)
However, they then expressed the view that section 22 of the 1997 Act throws some doubt on this interpretation, as the explanatory memorandum accompanying the bill provided that that section was intended to preserve the old common law in relation to consent, which of course does not extend so far the 1997 Act does on the appellant's interpretation of it. Thus, if section 22 is to be read as the explanatory memorandum suggests, the authors anticipated a conflict between that provision and the literal interpretation of sections 2, 3 and 4.

136. The judgments in Dolny have, moreover, attracted academic criticism since they were delivered. In the third edition of his book ( An Introduction to Irish Criminal Law (Gill & Macmillan, Dublin, 2006)), Hanly observes that the effect of Dolny is that consent is not a defence to a charge under section 3, nor is mens rea a requirement under that section. The latter outcome, in his view, sits uneasily with the decision of this Court in C.C. v. Ireland [2006] 4 IR 1. He also opines that it is odd that mens rea is a requirement of the less serious assault offence under section 2 and the more serious offence under section 4, but not the intermediate offence in section 3. McIntyre, McMullan and Ó Toghda ( Criminal Law (Round Hall, Dublin, 2012)) state that it had been presumed that assault causing harm was an aggravated form of assault under section 2, but that Dolny has led to "confusion" on the matter. Those authors suggest that Dolny should be seen in the context of extradition law and should not be viewed as changing the substantive criminal law on assault (pp. 171-172).

137. O'Malley refers to Dolny in the context of a discussion on consent in his work Sexual Offences (2nd Ed., Round Hall, Dublin, 2013 at para. 4-14). He notes, first, that the case arose in the EAW context and that the sole question for the High Court was that of correspondence of offences. More significantly, however, he observes that the High Court's view that the absence of consent is not an essential ingredient of the offence under section 3 "is open to question". The stated reason for this is that "assault" is defined in section 2, where it is expressed to include an absence of consent, and section 3 "merely states that assault causing harm is an offence without giving any indication that ‘assault' is to be interpreted any differently in this section than in s.2". He also notes that the High Court misquoted section 4 as creating an offence of "assault causing serious harm", whereas the section makes no reference to the word "assault".

138. Undoubtedly the most forthright criticism of Dolny, however, is that contained in an article by Professor Catherine O'Sullivan in The Irish Jurist (see para. 39, supra, for the full citation). That article has been relied upon by Mr Brown. In her rather trenchant critique of the decision and its consequences, Prof. O'Sullivan argues that, if permitted to stand, Dolny would have the consequence of supplanting a legislative definition of a term with a judicial one and would significantly increase the ambit of section 3 to the detriment of future accused persons by making it an absolute liability offence. The premise of her article is that the decision fails to adhere to proper statutory interpretation technique and, as such, that it lacks precedential value.

139. Of course, the fact that Dolny has come in for criticism from academic quarters does not of itself mean that that decision was wrong. If I agreed with the reasoning and outcome of that judgment I would not hesitate to follow it; judges and commentators not infrequently find themselves on opposite sides of an interpretation. Moreover, the fact that the conclusion which I have reached is shared by each of the authors mentioned above does not by any stretch suggest that this judgment is therefore forever above critique. "Whether an interpretation is shared by academics" is not a canon of interpretation, and for good reason: the role of academia in critiquing and developing the law, though of undoubted importance, is markedly distinct from the judicial function. On balance, however, it is at least reassuring at some level that the view which I have reached is shared by so many academic experts in this field of the law.

140. Finally, I should briefly address a few additional arguments which are said to throw into doubt the correctness of the interpretation reached. First, it was argued that the fact that the word used in section 3 takes the verb form "assaults", rather than a formulation such as "[a] person who commits an assault upon another causing him or her harm shall be guilty of an offence", suggests that the definition contained in section 2 should not carry over to section 3. Undoubtedly the section could have been better drafted; had the section been drafted in the latter way, that would perhaps have provided a clearer indication that section 3 builds upon section 2. Nonetheless, given the overall scheme of sections 2 to 4, and the legislative history of section 3 (including both the LRC Report which informed the 1997 Act and fact that its common law precursor was a compound offence), such cannot displace my view that the proper construction of the section as drafted is that the definition of assault in section 2 carries over to the word "assaults" in section 3.

141. Another issue canvassed was whether, if section 3 builds upon section 2, it must follow that section 3 must also be read subject to the proviso in section 2(3) which reflects the old "common intercourse" defence and provides a statutory basis on which trivial everyday contact is considered not to be an assault. Per that section, the manner of force or impact which is not "intended or likely to cause injury" and is "acceptable in the ordinary conduct of daily life", and is not known by the defendant to be unacceptable to the other person, does not constitute an assault. While it would follow on my above analysis that section 3 must be read subject to section 2(3) also, it is difficult to imagine circumstances in which a person charged under section 3 could avail of this proviso. It is an element of the section 3 offence that the person caused harm; the everyday-life exception under section 2(3) is intended to cover matters such as jostling in a crowd or good-naturedly slapping someone's back at a party. It is not part of the implied social contract between members of society that there is a permission to cause harm to one another. Causing harm to another is by definition "likely to cause injury" and will not be "generally acceptable in the ordinary conduct of daily life". Accordingly, although the genuine consent of the victim will have to be negatived when prosecuting a section 3 charge, I do not see that it would be open to an accused to rely on section 2(3) for the purposes of implying consent to a person to whom they had caused harm.

h. Conclusion on the interpretation issue

142. Ultimately, I have reached the conclusion that the term "assault" as appears in section 3 of the 1997 Act should be construed according to the meaning given to that word in section 2 of the Act. I have formed this view primarily and if necessary would have done so solely, on the basis of the ordinary meaning of the words used as they appear within the scheme of the Act, including the apparent gradation of sections 2-4, the deliberate omission of any mens rea from section 3 and the omission of the word "assault" from section 4 in approaching the statute as I have, I have applied the principle that the same words should be afforded the same meaning in a statutory enactment unless context dictates otherwise. Although I do not strictly consider it necessary to have regard to any other interpretive criteria in construing the section, I believe that, on balance, the legislative history of the 1997 Act supports the interpretation that I have reached. It seems to me that on a close reading of Dolny that decision can fairly be confined to the EAW context (see paras. 46-54 , supra ). However, even if that was not so, I am satisfied, for the reasons just articulated, that the interpretation given to the sections in that judgment was "clearly wrong" within the meaning of this Court's jurisprudence in any event. Accordingly, even should the interpretation of sections 2 and 3 therein be considered part of the ratio of the judgment, I consider that the Court should not follow it in this case.

143. Given this conclusion on the specific issue involved, and applying, simply, first principles, one would be forgiven for asking why from the appellant's point of view this is not sufficient to dispose of the appeal. As the absence of consent is a definitional aspect of s. 2, and now also of s. 3 of the 1997 Act, a view shared by each of my colleagues, and if the law was so understood at the time of trial, it would seem inevitable that the ruling of the learned trial judge in refusing to let the issue go to the jury, was legally incorrect. However, the majority of this Court take the view that this does not follow and support the basis offered by Dunne J., for her conclusion. It is therefore necessary to consider the reasons advanced by her for so deciding.

Point of Departure:

144. Although the analysis is different, both Dunne J. and I agree that the word "assault" as used in section 2 has the same meaning as "assault" in section 3, save for the degree of harm which is not presently relevant, and accordingly that absence of consent is an ingredient of the offence of assault causing harm. (paras. 38, 39, 41, 47, 48 and 53 of her judgment). This is particularly important as it must follow from this legislative interpretation that the point on the spectrum, in the intentional infliction of harm at which consent is a defence, has moved. At para. 53, Dunne J. confirms this: she says:-

        "The threshold for consent may have moved by reason of the changes brought about by the Act of 1997, but one element of the offence…"
Therefore, it is common case that post 1997 the new bar is assault causing harm, that is a s. 3 assault. That shift however, as significant as it is, is not conclusive as to outcome from my colleagues' point of view. Why this is so is of importance.

145. In the relevant sections of the judgment, various references of a general nature are made to public policy, to s. 22 of the 1997 Act, to the common law position on consent, to Coney and Donovan as well as Jobidon , upon which much reliance is placed. However, it seems to me that the "without lawful excuse" aspect of s. 2 plays a key role in the decision of Dunne J. The learned judge takes the view that such aspect attracts policy considerations so that the circumstances in which an assault takes place is highly important. In this particular case the nature of the agreement or its purpose is to the forefront.

146. It is I think therefore correct to say that a critical reason for nullifying what might appear to have been the logical follow through on importing the word "assault" from s. 2 into s. 3, is that the appellant's actions were undertaken for an unlawful purpose or as otherwise put, as part of an unlawful agreement. So based, the question is then posed: "…given that the absence of consent is a necessary ingredient of the offence of assault causing harm, could consent to an assault in furtherance of an unlawful purpose ever be taken into consideration in deciding whether someone is guilty or not of an offence contrary to s. 3 of the Act of 1997." (para. 49). This question is even further condensed in para. 56 where it is said "in short, consent to an assault causing harm for an unlawful purpose is no consent".

147. The learned judge next observes that the situations in which the law has recognised a defence of consent to assault causing harm, such as surgery and sporting activity, are those of general benefit to society. It is then stated that the agreement in this case does not fall within any of the recognised exceptions at common law, a point I obviously agree with, and that it could not have any lawful purpose. That being so, the appellant in her view, for reasons of public policy, could not rely on consent as a defence to the s. 3 charge.

148. Finally, Dunne J. was satisfied that the Oireachtas never intended such a dramatic change in the law that would see consent as a defence in all cases of causing harm, irrespective of the circumstances (emphasis from the judgment). The legislature would have had to be much clearer to achieve that outcome. Having referred to the common law and to the established exceptions, she continued:-

        "Outside those exceptions, the infliction of harm was unlawful. That which is unlawful cannot be made lawful simply by the presence of consent without regard to the circumstances in which the consent is given. While the obligation on the prosecution under s. 3 is to establish the absence of consent, a consent to an act which would be unlawful is not a consent. In this case, the consent is one which cannot be recognised in law because the consent, if given, was given for an unlawful purpose and it would be contrary to public policy to allow an accused to rely on a consent which is in furtherance of an unlawful purpose."
Accordingly, having outlined her response to the certified questions, she concluded that the appeal should be dismissed and the conviction upheld.

149. With the greatest of respect, I cannot agree with this reasoning or result: accordingly, I will endeavour to explain why my conclusion is different by reference to the following matters.

Assault and Consent: The Rule and the Exceptions.

150. At common law there emerged what might be described as a rule and what undoubtedly were described as exceptions to it, in the context of which we speak. The basic norm was that the absence of consent was an essential proof to a common assault but not to actual bodily harm (s. 47 of the 1861 Act), or grievous bodily harm (ss. 18 and 20 of the same Act) ("The Rule"). The exceptions were developed on an ad hoc basis ("The Exceptions"). The justification in support of the rule was variously stated: that in support of the permitted exceptions likewise: the rationale for both altered considerably over time and the distinction became blurred, with the court adjusting its position to meet the prevailing mischief, either actual or perceived. Despite the randomness of approach however, the difference between the rule and the exception must be maintained.

151. Take Coney : as above demonstrated the main theme of the judgments in criminalising prize fighting and in denying it special exemption related to public order concerns. If such could have been effectively controlled, in particular the prevention of civil disturbance by some other means, one wonders as to outcome (paras. 64 - 72 supra ). R. v. Donovan , although stating that Coney was of "great value" to its judgment, approached the matter from an entirely different perspective. Once the underlying act was intrinsically unlawful, or as put was malum in se , no degree of consent could nullify that badge of illegality (paras. 73 and 74 above). The further references in both cases spoke rather indiscriminately as to the raison d'être, eg . the intention or likelihood to cause bodily harm or the hostility of the blow struck: in which situations the rule prevailed . Foster's Crown Law (3rd Ed. at 25a) which was cited with approval in R. v. Donovan suggested that where bodily harm was not the motive or was incidental only to an otherwise lawful activity, such as sport, or where the activity in question offered strength and skill for personal or public defence, in time of need, consent was a full answer. So activities such as "cudges, foils or wrestling" were consent based as was rough and undisciplined sport or play.

152. However, the basis upon which Coney was decided, and the approach of Swift J. in R. v. Donovan , was rejected in the Attorney General's reference. The impact which that decision had on both cases is evident from the judgment of the Lord Chief Justice itself, but is also clear from that of Lord Mustill in R. v. Brown where, when referring to what Lord Lane had said, he stated "No reliance was placed on the unsystematic old cases on sparring, or on R. v. Donovan, or even as I understand it on R. v. Cooney , except that showing that the public interest may demand a special response to a special situation. Indeed the protection of the public, which had been the principal ground for the recognition of prize fighting as a special category in R. v. Coney was explicitly discarded". And so commencing in 1981 and following through to the House of Lords decision in R. v. Brown , a new horizon was open: its start point was that an act consented to, will not normally be an offence but that at some point in the spectrum of harm the court, via public interest will intervene and render such consent legally inoperable. The hostility of the act complained of and the promotion of manly diversions were discounted as a ground for either rule or exception. The sole foundation for establishing boundary was policy based. Whilst therefore neither the Reference nor the decision of R. v. Brown altered the end point of the rule greatly (para. 150 supra ), nonetheless from an analytical point of view those judgments are quite significant.

153. Whilst criticism has been levelled at both the approach and justification judicially offered in Coney and R. v. Donovan , what is clear is that the common law position as to where the dividing line should be, was unhesitantly based on and derived from policy considerations, as indeed it must be said were the consequential exceptions to it. That this continued is self evident from the Attorney General's Reference and from R. v. Brown . It can thus I think clearly be said that the key pillar in this area, was public policy. Accordingly, as such concept is a moving reflection of society, both Coney and Donovan must be viewed from a generational perspective and in a context where societal order and disorder were much different from the present.

Public Policy: Judge led.

154. In any event, the real point which motivates this discussion is that the use of policy considerations, whatever they may have been, was judge led. The outcome of a case therefore, either upholding the rule or recognising or even adding to the exception list, reflected what the court thought of as being representative at the time. To so say is not to criticise: indeed, it must be acknowledged that once public interest is recognised as a "fluid concept", this avenue of reflection has its attractions, as the following brief reference shows.

155. In a subset of this general context, in the area of sexual activity, this can be seen in practice. In R. v. Boyea [1992] (Crim. L.R. 574 and 575), Glidewell L.J. said:-

        The level of vigour in sexual congress which was generally acceptable, and therefore the voluntary acceptance of risk of incurring some injury, was probably higher today than in 1934 and therefore the phrase "transient and trifling" had to be read in light of attitudes in 1992."
Therefore, the phrase "transient and trifling" which of course was used in R. v. Donovan should be understood in light of the conditions currently prevailing, wherever that might be.

156. Both in R. v. Brown and in R. v. Wilson [1997] Q.B., the courts likewise picked up on this point. In the latter case, Russell L.J. remarked that consensual sexual activity, between husband and wife in the privacy of the matrimonial home, is normally not a matter that should be subject to criminal investigation, let alone criminal prosecution. The status of the actors or the location of their privacy, if intended to have specific effect, would not be so regarded today.

157. In any event as is evident, the statement was reflective of public opinion and directly fed into the court's judgment. How one may ask was Mr. Donovan a criminal but Mr. Wilson not: caning was treated far worse than using a hot knife to brand "A.R." on his wife's buttocks? Given how the court viewed the charges, the degree of harm could not have been decisive, nor can it be explained simply in a sexual context. The answer is I think more broadly based: it is derived from changing attitudes, behaviour, conduct and values. As aptly put by Glidewell L.J., there is a world of difference between what society tolerated seventy or eighty years ago and what is within mainstream boundaries today. In the absence of legislation, the judges in their judgments so determined.

Public Policy: Legislative Intervention.

158. The Oireachtas involved itself in this area of law and did so against the backdrop of the Law Reform Report in which all relevant case law from many jurisdictions was discussed and analysed. The Commission suggested a new or fresh structural approach, involving substantial changes to deal with non-fatal offences against the person. In essence and in all material respects, its proposals were enacted. Virtually all of the old common law assault type offences as well as kidnapping and false imprisonment, together with the supporting provisions of the 1861 Act, were abolished or repealed (s. 28 and the Schedule to the 1997 Act). It was the first major reform in this disperse and incoherent area for a very long time.

159. It cannot thus be doubted but that the Oireachtas, as part of its constitutional legislative function was fully cognisant of policy considerations when considering the 1997 Act. It must be assumed that what in its view was the appropriate level of public interest was reflected in the resulting measure. As the unanimous view of this Court shows, the Oireachtas certainly did so in making the lack of consent an element in section 3. So just as the common law position was replaced by statutory enactment, so too was the judicial view of policy. That being so, it is very difficult to see how, in the same breath the Act would reintroduce public policy from a judicial perspective and do so in a manner capable of nullifying the shift evident from section 3: in effect, re-establishing the primacy of the old common law rule, which had been abolished. Despite how unlikely this would be, one must nonetheless ask whether it is so, how and in what way was it achieved, and finally, what possible justification could exist for this quite anomalous legislative move.

Section 2/1997: Lawful Excuse:

160. As referred to at para. 145 above, it is within this element of the assault definition that Dunne J. finds a basis to determine the instant case on public policy grounds. With great respect may I say that in my view the phrase, "without lawful excuse" does not bear the meaning and is not capable of being utilised in the manner suggested by my colleague. My reasons are as follows.

161. For a great number of years what was intended by the phrase in question has formed an integral part of many offences: some common law, some statute based, some a combination of both. One does not have to look beyond the immediate context. In ss. 18, 20 and 42 of the 1861 Act, to name but a small number of such occasions, the offences therein described are committed when a person "unlawfully and maliciously" carries out the act prohibited. The word "maliciously" simply conveys the necessary mens rea , that is the intentional doing of the act ( R. v. Mowlatt [1963] 3 AER 47 at 49). The word "unlawfully", according to Lord Templeman in R. v. Brown means that the accused had no lawful excuse or justification (p. 78): this was said in the specific context of s. 20 of the 1861 Act, but no doubt must have the same meaning throughout: for Lord Jauncey it meant "without good reason" (p. 89). In Fagan v. Commissioner of Metropolitan Police [1967] 1 QB 439, the court described common assault as the "intended use of unlawful force to another person without his consent" (p. 444) "or any other lawful excuse", a phrase added by Lord Lane in the A.G. Reference. Much the same is stated in para. 147 of L.R.C. Report, As in R. v. Mowlatt and in Wilson v. Pringle [1986] 3 WLR 1 at p. 9, self defence was also given as an example of justified force.

162. In my view this is the meaning of the words "lawful excuse", which meaning derives almost exclusively from the common law definition of assault. They have no wider signification than referring to situations where the use of force by an accused person was considered justified in law and therefore was regarded as non-criminal, or as sometimes put, was a full defence to an assault charge, even one of the utmost gravity. There were well established judicial rules regarding each example of this type of defence, but if and where statute directly intervened, the question thereafter solely became one of construction. Policy matters, apart from interpretive rules, played no part. I therefore cannot see how this phrase can be used as a route by which the generality of the s. 3 change can be so significantly curtailed.

Section 22/1997 Act: Lawful Justification.

163. A provision which is also relied upon as justifying the rejection of consent where the purpose of the act is unlawful, is s. 22 of the 1997 Act. As part of the argument it is suggested that the phrase "without the consent of the other" must be read as a requirement additional to the phrase "without lawful excuse". I respectfully disagree. Because of its brevity may I be forgiven for quoting it again:-

        "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 and 19, or an act immediately preparatory to the use of force, for the purposes mentioned in section 18(1) or 19(1) is hereby abolish."

For the moment may I concentrate on the "lawful authority, justification or excuse" aspects of subs (1), which for convenience I will collectively term "lawful justification".

164. The first observation which I make is that, at least for present purposes, no differentiation is required between any of the "nouns" used. There may be situations where context provides a distinction: not so in this case. Secondly, if this be so, why should not the words used be given the same meaning as "lawful excuse" now part of s. 3, subject only to the Act providing otherwise. For my part I know of no reason why not. Presumptively therefore, but subject to the caveat as entered, I believe that they should: accordingly, unless indicated, reference to either phrase should be regarded as applying to both.

165. Picking up therefore on what is said at para. 161 above, it seems to me that in trying to understand the words in issue, concepts well known to the common law such as self defence, or defence of others, or defence of one's property or where otherwise lawful defence of another's property, provocation (in a limited way), the prevention of crime, effecting an arrest as a common informer, assisting a member of An Garda Síochana to both arrest and maintain the arrest, immediately come to mind, as providing a lawful justification for what otherwise would undoubtedly be an assault, or in the case of provocation one of greater magnitude. Many of the instances given, which are not exhaustive of what previously existed, are now governed by ss. 18 and 19 of the 1997 Act, which provide for the justifiable use of force in protecting a person, property, preventing crime etc, and the justifiable use of force in effecting an arrest, respectively.

166. This view of the similarity between lawful excuse and "lawful justification" as the term is used, is shared by the textbook writers. Éamonn O'Moore, Non-Fatal Offence Against the Person: Law and Practice (Clarus Press, Dublin, 2018), notes at paragraph [2.104] that "lawful excuse" is broadly stated and could include, but not be limited to, the lawful exercising of police powers or the justifiable use of force, as detailed in ss 18 and 19". Similarly, Charleton, Bolger and McDermott express the view at paragraph [9.86] of Criminal Law that "[t]he words ‘without lawful excuse' should be read in conjunction with s 18 of the 1997 Act which codifies the occasions when force may be used justifiably". Ivana Bacik was of a similar view in her annotations to the 1997 Act:

        "The words ‘without lawful excuse', although taken from the common law definition of assault, must now be read in the light of section 18, which provides that the use of force by a person, to the extent that is reasonable in the circumstances, may be justifiable in a number of instances, in particular where they are seeking to protect themselves or a member of their family from injury or assault; or to protect their property."
Accordingly, I am satisfied that the above accurately sets out the meaning of the phrases in question and also, accurately represents the current relationship between those aspects of s. 2 and s. 22 of the 1997 act.

167. In none of these or other similar circumstances is there any question of a third party's consent being involved: an intruder with the aim of theft or an assailant intending to disfigure are quite unlikely to acquiesce to being physically harmed in the protection of property or defence of one's self: it would thus be entirely illogical if the use of justified force was not, without more, a defence to any resulting assault charge. It would seem even more extraordinary if in addition non-consent also had to be established. Such an approach I believe is incompatible with first principles. So whilst both consent and justification are related, they must be regarded as separate and distinct for present purposes.

168. As it happens the Law Reform Commission has commented on this (para. 1.108): it states that the issue of consent is a broader concept than the individual instances of lawful justification which I have just mentioned. It does not suggest in that passage or elsewhere that justification on its own cannot render harmless the force used. Rather it confirms that at common law a particular aspect of consent was the founding basis for the most widely used exception of all, regarding the inviolability of the person. This arose in the context of people going about their everyday business and applied to common intercourse occurring in "the ordinary conduct of daily life": this topic is well discussed in Collins v. Wilcock [1984] 3 A.E.R. 374. That exception is now to be found in s. 2(3) of the 1997 Act (para. 141 supra ). It is therefore clear in my view that the true meaning of the words in discussion is that as described herein.

Section 22/1997 Act: Defences at Common Law.

169. There is however a second aspect of s. 22 of the 1997 Act which needs to be addressed. By its terms the provisions of the Act are subject "to any defence" which previously might have been available under any enactment or rule of law. Undoubtedly the common law's position on assault/consent is of course a rule of law and therefore on its face appears to have been preserved. The question however arises as to what effect this provision has on the consent element of an assault causing harm, the section 3 offence?

170. On a narrow basis one could suggest that s. 22 has no effect because of this Court's interpretation of the offence causing harm, where the absence of consent is now an essential element of the D.P.P. proofs. As the section refers to a ‘defence', it could be said to have no application, particularly so as the word "defence" is directly coupled "with lawful authority, justifying an excuse". Although a viable argument, I am not satisfied to rest my conclusion on this basis. I do so more fundamentally by considering the legislative intention in enacting s. 3, and when such is viewed in the context of the Act as a whole, the provisions of s. 22 cannot in my view supplant the consequences of such an enactment.

171. In this context may I comment in passing on para. 22 of the judgment under appeal where the court, having referred to the Explanatory Memorandum to the 1997 Act went on to say "this section [s. 22] already contemplates the continuance of the common law rule that consent cannot be a defence to the infliction of serious harm save in very particular circumstances". May I respectfully suggest that this is not so, and results from a conflation of the rule with the exceptions. The Memo speaks solely of the activities involved in sport, dangerous exhibitions and medical treatment, all exceptions. As such it offers no basis for the conclusion arrived at by the court. Furthermore, and in any event, its overall view, as encapsulated in para. 39, was of course highly influenced by its attraction to Dolny , which is no longer the law.

172. As previously outlined a lack of consent was neither an element of nor a defence to an assault causing actual bodily harm, subject only to certain recognised exceptions as above discussed (paras. 81-82, supra ). The effect of the 1997 Act is to make lack of consent part of the actus reus of such offence, and thus must be proved by the prosecution at trial.

173. As I read the old case law, the reason that consent used not be a defence generally to causing actual bodily harm was policy dictated: no one should harm another "for no good reason". Whether or not consent could be a defence depended both on the level of harm caused and on the circumstances in which it was inflicted. Exceptions - "good reasons", in other words - were recognised on an ad hoc basis. Some, such as surgical intervention for the benefit of the patient, require little explanation: the valid social purpose of the operation will justify it even where the risk of harm was significantly above what the common law would otherwise recognise. The same can probably be said for the exception for sporting activities at least in general, even if the benefits to society regarding some events must be highly doubted (para. 83 supra ). On other occasions the line between what could and could not be consented to was less obvious: compare the circumstances of Mr. Donovan with those of Mr. Alan Wilson. Although the former was charged with common assault it appears, that the court treated it as one causing actual bodily harm, the same as that faced by Mr. Wilson. It seems that the key distinguishing factor between the outcome in both cases was the courts' assessment of the degree of harm involved (para. 157 supra ). This is significant for our purposes

174. As I read the judgment of Dunne J., it preserves the prevailing position whereby one can only consent to that which is lawful; thus if the conduct falls within an existing (or yet-to-be-recognised) exception, one can consent to that, but if it does not - as in this case - the consent is immaterial. Therefore it appears that the change of substance is that the section makes lack of consent an element of the offence to be proved by the prosecution, rather than being a defence to be raised by an accused; it effects no change, however, to the level of harm that can be consented to.

175. In my view, the shift by the Oireachtas, which undoubtedly was deliberate, can only have been intended to alter the law more fundamentally: this in my view has been achieved through making lack of consent an element of the offence. As I see it, the proper construction of section 3, both based on its plain terms and as informed by its legislative history, and particularly the LRC Report which preceded the 1997 Act, is that it effected a notable change in the law regarding the degree of harm that a person can consent, in all circumstances, to having inflicted upon them.

176. Again as noted earlier in this judgment, one could not consent to the infliction of harm beyond a certain threshold, which threshold has now been moved by the 1997 Act. It is therefore difficult to see why the notion of valid consent under section 3 should be referenced solely to the established exceptions under the old law, when the threshold was lower. As I read it, the plain meaning of the section is that it is for the prosecution to prove a lack of consent in every case (provided that the injury does not rise to the level of "serious harm", which would move it into section 4, where lack of consent is not an element of the crime, nor is consent a defence). Of course any consent must be freely given, by a person of age and with the capacity to consent, and must also be fully informed. Factors such as intoxication, duress or vitiation by fraud may also have a bearing on any consent given; such are by no means an exhaustive list of the matters which may be relevant. Consent will be a factual matter to be determined in each case by the jury. Subject to such general requirements for valid consent, however, in my view the proper construction of the 1997 Act is that it has changed the law such that one can now consent to assault causing harm; put differently, it is always for the prosecution to prove lack of consent, including in circumstances that do not fall within an exception recognised under the pre-1997 law. Thus the line at which consent becomes immaterial has been moved by the Act from "harm" to "serious harm". Though some commentators have observed that such is a high threshold for consent purposes and question whether that was the true intention of the Oireachtas, nonetheless, like me, they accept that it is the obvious consequence of the section 3 definition. At page 533 of their work the authors state, "Nevertheless as a matter of literal interpretation this conclusion seems inevitable." ( Criminal Liability McAuley & McCutcheon. I respectfully agree.

177. If s. 22 can be utilised to negate the above conclusion, such in my view would run in direct contradiction to the essence of the shift achieved by the interaction between ss. 2 and 3 of the Act. It would be an interpretative absurdity to believe that the significance of the change by s. 3 would immediately be nullified by the preservation contained in s.22. I do not doubt that the section has the capacity of continuing the existing exemptions as embedded in the common law. I do not have to decide whether it would have any application to a set of circumstances not falling within or being analogous to those exceptions. Even the acceptance mentioned however must be subject to the Act. Sections 18 and 19 specifically abolish the common law defences of self defence of person, family member, or third party and property and also the use of force in effecting, or assisting in conducting a lawful arrest. In their place stand the sections which I have mentioned. So, the statutory defences simply supersede those previously available, at common law. Likewise, the adjustment created by section 3 cannot be abrogated by the old common law approach to exemptions, for to hold otherwise would amount to a form of "contra legem".

178. It seems to me that if possible the Act must be given a reading of consistency between provisions so as to reflect the overall purpose, aims and objectives of the legislation. No novel rule of interpretation is required for this. It seems obvious that the relevant part of s. 22 must be read as applying only where it is not otherwise inconsistent with the 1997 Act, at least with its key provisions. Therefore, whilst the common law exceptions continue to apply, they cannot foreclose on new situations which otherwise the legislature has provided for: this evidently in the context of ss. 2 and 3 of the 1997 Act,

179. Accordingly, I respectfully disagree that either the phrase "lawful excuse" or s. 22 affords any legal justification for the views held by the majority of this Court.

Unlawful Purpose: Unlawful Agreement.

180. Another suggestion hinted at if not directly advanced against the suggested consequences of the section 3 change, is that the same would facilitate frauds of one kind or another. I do not see how this could be the case. Take a staged road traffic accident where an injury is suffered with the intention of defrauding an insurance company or where a joint enterprise is engaged in with a similar intention regarding, say, the Department of Social Welfare. That the underlying conduct - infliction of injury - may lawfully be consented to would not in any way legitimise the follow on attempts of obtaining money by false pretences, fraud or deception. All such activity would attract the same criminal sanctions and civil protections as they presently would I therefore do not see this as offering countervailing reason for the conclusion as above reached.

Public Order/Street Fighting.

181. A further argument is that the interpretation of section 3 which I have adopted would mean that one could consent to "settling the score" outside the pub after an argument, or to manifestly undesirable conduct, such as street-fighting provided serious harm is not caused. The provisions of sections 14 ("Riot"), 15 ("Violent disorder") and 16 ("Affray") of the Criminal Justice (Public Order) Act 1994 would undoubtedly be available to the DPP in such circumstances. Whilst I acknowledge some uncertainty as to the meaning of "unlawful violence" I would be surprised if in principle such offences were not applicable in respect of organised street-fighting or other such unlawful conduct. One may add to this list, Disorderly Conduct, Endangerment and Public Nuisance. Furthermore it goes without saying that the use of any type of weapon would recharacterise the conduct in question. In addition, it may also well be that local by-laws could be useful. If all of these potential avenues are ineffective then such is an unintended and unwelcome consequence of the manner in which section 3 of the 1997 Act was drafted, and one which would surely require legislative intervention to correct. However, it is not necessary to go further with this analysis at this point: it is better to await individual issues as they may arise on a case by case basis.

182. In this context, I briefly mention the judgment of O'Malley J., whose principal point is that the unlawfulness of purpose plays a central role on the interpretive issue: added to that, is her rejection of my suggestion that "in principle" the offences last mentioned would be available in the context of public order/street fighting. The first point so made has been dealt with, at some length, elsewhere in this judgment. The second point, if I may respectfully say seems like interpretation by effect and consequence rather than result by interpretation. Such is not the view which I take of the required exercise demanded by this issue in the context in which it arises. Furthermore, this very same suggestion has been made by the Law Reform Commission in its published Report. Accordingly, I respectfully reject the criticism offered.

Jobidon v Her Majesty The Queen [1991] 2 SCR 714

183. The decision of the Canadian Supreme Court in Jobidon , though not referenced in the submissions or argued before us has been relied upon as providing support for the views of the majority of this Court. That was a case where the accused person was charged with manslaughter arising out of a consensual fist fight on a public street. The defence was one of consent. On such a basis the trial judge held that the consent of the unfortunate victim to a "fair fight" negated the assault aspect of the charge and thus Mr Jobidon was not guilty of manslaughter. The Court of Appeal disagreed and substituted a verdict of guilt: the appeal against the conviction was dismissed by the Supreme Court.

184. The section of the judgment of Gonthier J, speaking for the majority, which is most relied upon include the following, "The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl…". I immediately confess to some uncertainty as to the true meaning of this passage.

185. I readily appreciate what "serious harm" entails: it is largely the equivalent of the s. 4 offence in this jurisdiction. Consent is therefore immaterial to such charge, this I understand. But I am less certain about what immediately follows, that is the reference to "non-trivial bodily harm". At first glance both phrases do not appear to sit comfortably side by side. Non-trivial bodily harm is some distance from serious harm. From this passage therefore it is somewhat uncertain as to precisely what the learned judge had in mind. However it must be acknowledged that from an overall reading of his decision the most likely intention was that any force greater than common assault was beyond the reach of consent. I therefore acknowledge that this is probable conclusion which has been reached.

186. In Canada all criminal offences are included in the Criminal Code, the first of which was passed in 1893. It is section 265 of the 1985 Code which was directly in play in Jobidon.

187. The main reasoning of the majority for the conclusion reached was their view that the provisions of this section deliberately avoided defining "the situations or forms of conduct or eventual consequences which the law will recognise as being valid objects of consent for the purpose of the offence". As such this task was left to the court, untrammelled in any way by the legislature.

188. In conducting the resulting exercise, the court approached the issue purely by way of domestic interpretive rules which from my reading of the judgment are not at all readily transferrable to this jurisdiction. If for no reason other than this, a cautionary approach must be adopted in respect of that decision having significant precedential value in this jurisdiction.

189. In addition however Article 8 of the Code provided that the criminal law of England continued in force save where it was inconsistent with any Canadian statutory provision. Given what s. 265 did not cover the court extensively followed English jurisprudence in this area, in particular the Attorney General's Reference. With that approach and in the belief that s.265 neither covered the issue in question or altered the common law's position on assault/consent, it determined the appeal in the manner above stated.

190. The situation in this jurisdiction is critically different: s. 3 has altered the threshold of consent and has departed from the common law and the cases which established the position adopted by it. I therefore do not accept that one can readily import Jobidon into this jurisdiction: Instead I believe that domestic legislation must take precedence which in my view has the consequences previously stated. I therefore do not believe that Jobidon is as authorities as what is suggested.

An Aside.

191. As an aside, for it is not truly an issue before this Court, I do not see that there was any basis to keep the issue of consent from the jury on any grounds related to the purported enforcement of an unlawful agreement; though the same is a valid basis not to enforce a contract at the suit of one of the parties, I do not see that that rule of law has any role to play in the circumstances of this case.

192. In conclusion, therefore, it follows from my view of the proper interpretation of section 3 that it was for the prosecution to prove that Mr Cooper did not consent to the attack by Mr Brown. I would accordingly hold that the trial judge erred in not allowing the issue of consent to go to the jury.

Residual Matters
193. Given the conclusion which I have reached in relation to the interpretation of sections 2 and 3 of the 1997 Act and the consequences of same for the appellant, it is not necessary to address his submissions concerning parliamentary debate and public policy. It is clear that the thrust of his submissions in this regard was that in interpreting the statute the courts below had applied a view of public policy which was diametrically at odds with that expressed by Minister Nora Owen when introducing sections 2, 3 and 4 of the 1997 Act in the Dail. The Court's attention has been drawn to the following remarks by the then Minister:

        "The first substantive section of the Bill before the House is section 2. This section replaces the common law offences of assault and battery usually referred to as ‘common assault' with the new offence of assault which combines, in one offence, the element of inflicting personal violence as in ‘battery' and the element of causing another to apprehend the immediate infliction of personal violence in ‘assault'. This offence will cover most minor assaults and I am providing that the penalty on summary conviction will be a fine not exceeding £1,500 or imprisonment for up to six months or both.

        Section 3 deals with the more serious offence of assault causing harm. This new offence replaces the offence of assault causing actual bodily harm contained in section 47 of the 1861 Act. I am providing a maximum penalty of five years for this offence, which is the same as the existing penalty. Under the present law, consent cannot be a defence to a charge of causing actual bodily harm. The Law Reform Commission recommended that such a rule is no longer appropriate and I have accepted that view. Since section 3 is framed by reference to an assault and consent is a defence to simple assault, it will also be a defence where actual bodily harm is caused. We are not talking here of cases of serious harm which are covered by the next section.

        Section 4 creates the offence of causing serious harm, which will replace the offences of wounding or causing or inflicting grievous bodily harm in sections 18 and 20 of the 1861 Act. Consent will not be a defence to a charge of causing serious harm but section 22 provides that existing common law defences will continue to apply. Accordingly, the common law rules under which bodily harm arising in the course of sports, dangerous exhibitions or medical treatments will apply, where appropriate, to exempt the action from criminal liability. I have provided that a person convicted of this offence on indictment will be liable to life imprisonment."

194. It is said that the interpretation of the courts below runs counter to the policy expressed in these remarks. Evidently I have come to a different view on the construction of the sections than did the learned trial judge and Mahon J. I refer to the above extract of the Minister's speech merely to flag that it was drawn to the Court's attention by the appellant. However, I have not had regard to same when interpreting the provisions in question. It is true that the certain common law jurisdictions have relaxed the rule according to which reference to parliamentary debates as an interpretive aid is not permitted. However, the law in this jurisdiction remains as stated in Crilly v. T & J Farrington Ltd . [2001] 3 IR 251. Though the issue did not fall for determination in that case, Denham J., Murray J., McGuinness J. and Fennelly J. each stressed caution in modifying the rule regarding the admissibility of words spoken in parliamentary debates as an aid in construing statutes. Various cogent reasons were given for same, and it is not necessary to retread that ground here. This is a point which may arise again in the future, but, based on the conclusions I have reached earlier in this judgment, I do not think that it is appropriate to go against that default view in this case. The views expressed by the Minister are simply not a relevant matter in construing the 1997 Act.

195. As it transpires, in my view the proper meaning to be attributed to the provisions in question corresponds to the intention expressed by the Minister. This could undoubtedly have been made clear. Had the first principles of statutory interpretation compelled me to a different conclusion, the fact of the Minister having declared otherwise would not have altered my view. Although I am not required to decide it in this case, I should say that I do not find any force in the appellant's argument that courts cannot form their own view of public policy, distinct from that expressed by the Executive. Courts are frequently called upon to do same and the ascertainment of public policy is by no means the exclusive preserve of any one branch of government. Such remarks are, of course, no more than obiter .


Conclusion
196. For the reasons above articulated, I would allow the appeal.










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