Limiting Consent in Criminal Law: DPP v Brown [2018] IESC 67

Abstract

The Irish Supreme Court in DPP v Brown (Brown) recognised the absence of consent as part of the ‘assault causing harm’ offence in section 3 of the Non-Fatal Offences Against the Person Act 1997 (the 1997 Act). This corrected a decade-old mistaken view of ‘assault’ in section 3 meaning something different from ‘assault’ in section 2 of the 1997 Act. The Supreme Court in Brown split three-two, however, on whether an unlawful purpose or motivation for the activity in question invalidates consent in respect of the section 3 offence. This article will show the minority’s analysis to be more robust than the majority’s. In particular, the article highlights a remarkable feature of the Brown majority holding – that it effectively jettisons what it recognises as an element of an offence (that is, the absence of consent) by upholding a conviction where that element was not proven at trial. The article considers Brown’s implications, and observes the substantial challenge the case demonstrates for criminal law to reflect and limit the power of consent. Noting the complex role of consent in criminal law serves to qualify the available liberal and legality-based critiques of the Supreme Court majority approach in Brown.

Keywords: consent, legal theory, assault, offence, defence, vitiation, criminal law, criminal law theory, Irish Supreme Court

JEL Classification: K14