Consent and section 3 assault

Lockstep · 14-04-2011 08:07AM #1

Doing some reading on the Non Fatal OFfences Against The Person Act.

Was wondering whether or not consent can be used as a defence against s.3 assault causing harm. It's definetly a defence against s.2 assault, whereas it's not a defence against s.4 (assault causing serious harm)

Anyone able to underline the role of consent in s.3 assault?

MagicSean · 14-04-2011 08:13AM

Section 4 is not an assault. It is simply Causing Serious Harm. I can't see why consent would not be a defence to section 3 although it would be much harder to prove. Section 3 still relies in the statement of the injured party.

Lockstep · 14-04-2011 08:24AM

Yeah, was thinking along the lines of cases like R v Brown where even though the participants were consenting, the courts still came down upon them.

Would you reckon that if R v Brown came about today, the defendants would be acquitted?

source · 14-04-2011 08:49AM

Section 2 assault can be something as simple as gently laying your hand on a person. this is why consent comes into it.

Section 3 & 4, deal with actual assaults, where there are real visible or life threatening injuries. Consent isn't an issue with this type of assault as no person of sound mind will give consent to a person to harm them.

MagicSean · 14-04-2011 08:58AM

foinse wrote: »

Section 2 assault can be something as simple as gently laying your hand on a person. this is why consent comes into it.

Section 3 & 4, deal with actual assaults, where there are real visible or life threatening injuries. Consent isn't an issue with this type of assault as no person of sound mind will give consent to a person to harm them.

If that is the case then section 3 would be simply causing harm. As it stands it is reliant on the definition of an assault under section 2 which specifically states it must be without consent. If a person was considered of unsound mind because they allow someone to hurt them then piercings and tattoos would be illegal, as would S&M. I would doubt a case like the Brown one would see a court room again and if it did then it would be overturned.

14-04-2011 09:03AM

Well R v Brown does provide an interesting example of a situation where multiple people consented to what was on one view a very serious assault. Note the contrast with R v Wilson [1997] 1 QB 47.

Lockstep · 14-04-2011 09:10AM

IIRC, Wilson involved branding which was held to be no more danger than tattooing, plus it was between a husband and wife (marital privacy was mentioned)

Still trying to work out if s.3 allows the defense of consent.

NoQuarter · 14-04-2011 09:10AM

No section 3 provides a free standing offence of assault, its not part of the offence that it occurs without the consent of the victim.

There is authority in Minister for Justive, Equality and Law Reform v. Dolny.

I agree that rown would be overturned nowadays.

NoQuarter · 14-04-2011 09:15AM

Lockstep wrote: »

IIRC, Wilson involved branding which was held to be no more danger than tattooing, plus it was between a husband and wife (marital privacy was mentioned)

Still trying to work out if s.3 allows the defense of consent.

No there is no defense of consent by my reading of the law.

MagicSean · 14-04-2011 09:35AM

NoQuarter wrote: »

No there is no defense of consent by my reading of the law.

The only definition of assault is given by section 2 and specifically includes the lackof consent as an ingredient to the crime of assault. If consent is not intended be a factor in section 3 assault then it needs to ammended to reflect this.

NoQuarter · 14-04-2011 09:47AM

k_mac wrote: »

The only definition of assault is given by section 2 and specifically includes the lackof consent as an ingredient to the crime of assault. If consent is not intended be a factor in section 3 assault then it needs to ammended to reflect this.

Agreed.

But in this case the courts, as they tend to do on occasion, have opted that the lack of the term consent means that it must have been purposely left out by the legislator.

It seems logical to use the definition provided in s.2 but its not the case!

Lockstep · 14-04-2011 10:22AM

Hmm, so assault causing harm is *not* covered by consent then?

MagicSean · 14-04-2011 10:44AM

NoQuarter wrote: »

Agreed.

But in this case the courts, as they tend to do on occasion, have opted that the lack of the term consent means that it must have been purposely left out by the legislator.

It seems logical to use the definition provided in s.2 but its not the case!

But there is no other definition of the word assault. If they wished it to be different to section 2 it should have been worded in the same way as section 4.

Lockstep wrote: »

Hmm, so assault causing harm is *not* covered by consent then?

Not according to caselaw but I would think it could be overturned. How far up the court system did the Brown case go?

Lockstep · 14-04-2011 11:11AM

Brown went to the ECHR in 1997 who upheld the verdict. It's a weird case but Hanly says he thinks it would be covered by consent if it went before an Irish court but it's a hard one to call.

HEaring some conflicting claims on it.

NoQuarter · 14-04-2011 12:14PM

k_mac wrote: »

But there is no other definition of the word assault. If they wished it to be different to section 2 it should have been worded in the same way as section 4.

There is the dictionary definition, which says nothing about consent.

Forget about Brown, Brown was governed by s47 of the Offences Against the Persons Act 1861, the NFOAP Act 1997 replaced the "assault occasioning actual bodily harm" in Brown with "assault causing harm".

The High Court in 2008 (Minister for Justice, Equality and Law Reform v. Dolny) held that for the purposes of s.3, "assault" is NOT to be defined by reference to s.2 of the 1997 act.
The HC identified the criteria for assault under s.2, namely that an assaulted person did not consent, and held that proof of this is NOT required to secure a conviction for assault causing harm.

It cant get much clearer than that!

MagicSean · 14-04-2011 12:28PM

NoQuarter wrote: »

There is the dictionary definition, which says nothing about consent.

Forget about Brown, Brown was governed by s47 of the Offences Against the Persons Act 1861, the NFOAP Act 1997 replaced the "assault occasioning actual bodily harm" in Brown with "assault causing harm".

The High Court in 2008 (Minister for Justice, Equality and Law Reform v. Dolny) held that for the purposes of s.3, "assault" is NOT to be defined by reference to s.2 of the 1997 act.
The HC identified the criteria for assault under s.2, namely that an assaulted person did not consent, and held that proof of this is NOT required to secure a conviction for assault causing harm.

It cant get much clearer than that!

Proof of non-consent is not required to secure a conviction but does that necessarily imply that proof of consent would not be a defence?

NoQuarter · 14-04-2011 12:47PM

k_mac wrote: »

Proof of non-consent is not required to secure a conviction but does that necessarily imply that proof of consent would not be a defence?

As per the court, if consent had meant to be a possible defence, the legislature would have legislated for it. Obviously something has to give, perhaps on public policy grounds, or we couldnt have boxing or surgery etc!

Put it this way, if I was a barrister, the lack of consent provided in s.3 wouldnt stop me arguing it! But there is definitely no statutory basis for consent under s.3 as there is under s.2.

TheRevolution · 14-04-2011 01:50PM

Consent is no defence to assault causing harm.

In Minister for Justice v Dolny the accused was facing an extradition warrant to Poland for assault causing harm and tried to argue that as his victim consented to the harm the court should refuse such an extradition. However, the court stated that section 3 assault simply states "a person who assaults another causing harm shall be guilty of offence" and makes no mention of consent and subsequently extradited him.

johnnyskeleton · 14-04-2011 04:49PM

Did Denham J roll back from that position in the Supreme Court and simply find that, while approving the approach of Peart, on the facts alleged in the warrant it would be an offence in this jurisdiction?

Put another way, if Peart J.'s decision was to be applied across the board, then every surgery performed which cases harm within the meaning of the act (i.e. lacerations) would arguably be an assault to which there is no defence of consent. It would also render s.23 meaningless - http://www.irishstatutebook.ie/1997/en/act/pub/0026/sec0023.html#sec23 because clearly it applies to invasive surgeries.

The dictionary definition of assault is useless, because assault means different things in civil and criminal law.

All boxing matches and other violent sports would also be illegal if that reading was adopted, but clearly if two people consent to a fight knowing that one or both may be subjected to harm, then it would be illegal.

There is no provision for either of these two exceptional categories, so to read the section as having a meaning independent of section 2 is a serious departure from established law.

NoQuarter · 14-04-2011 09:53PM

I've pulled my info straight from the Kings Inn manual! I should hope its accurate as it was expensive

Lockstep · 15-04-2011 08:03AM

Thanks, appreciate it.

johnnyskeleton · 15-04-2011 11:20AM

NoQuarter wrote: »

I've pulled my info straight from the Kings Inn manual! I should hope its accurate as it was expensive

I'm not denying that is what Peart J said, and indeed his judgement appears to have been substantially approved in the Supreme Court.

However, to adopt a view that section 3 assault leaves the concept of "assault" up to a jury to determine based on their understanding of the word or based on a dictionary definition could cause trouble in criminal trials. The most sensible way around it is to say that while section 3 assault does not define assault, the definition in section 2 will give a jury strong guideance as to what it means. Otherwise, the offence would be too ill defined.

NoQuarter · 15-04-2011 01:29PM

johnnyskeleton wrote: »

I'm not denying that is what Peart J said, and indeed his judgement appears to have been substantially approved in the Supreme Court.

However, to adopt a view that section 3 assault leaves the concept of "assault" up to a jury to determine based on their understanding of the word or based on a dictionary definition could cause trouble in criminal trials. The most sensible way around it is to say that while section 3 assault does not define assault, the definition in section 2 will give a jury strong guideance as to what it means. Otherwise, the offence would be too ill defined.

I couldnt agree more but I still dont think the court had the same view, somehow!

Samuel T. Cogley · 22-01-2017 03:22PM

Resurrecting this as it's a clearer discussion on a point I've probably muddied in the 'Pressing Charges' thread.

Was there every any clarity brought to this?

Consent and section 3 assault

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