Prisoner who claims ex-garda asked to be assaulted loses appeal
Gerard Brown says Stephen Cooper wanted to be attacked to secure transfer to open jail
The Midlands Prison in Portlaoise. Photograph: Bryan O’Brien
A prisoner who claimed another prisoner, a former garda, asked to be assaulted in an effort to be transferred to an open prison has lost his appeal over his conviction for causing harm.
Cooper had been convicted of offences contrary to section 15 of the Misuse of Drugs Act, fraud, and perverting the course of justice. He was on protection at the time and denied he asked Brown to assault him.
Brown accepted he hit Cooper on the top of the head, using a mug in a sock. He claimed the two were on cordial terms and he had told Cooper the only way he would get out of Portlaoise was if he was seriously assaulted or there was a serious threat to his life.
Brown claimed Cooper suggested Brown pretend to attack him while Cooper was being escorted to the gym and alleged Cooper had said “Don’t hold back” and “Just make sure there is blood.”
He claimed Cooper told him, in return, he would give Brown sensitive documents and information, plus €1,000 cash.
After the Court of Appeal rejected his appeal against conviction, the Supreme Court agred to hear a further appeal. That centred on interpretation of sections 2 and 3 of the Non Fatal Offences Against the Person Act 1997 relating to assaults, the offences of “assault” and “assault causing harm”, and whether the concept of consent as provided for in section 2.1 of the Act is removed from section 3.1 of the Act.
For the purpose of section 2, “assault” requires proof there was no consent. The appeal also addressed issues regarding interpretation and extent of “public policy” as an aid in interpreting a penal statute and the extent to which courts can dictate public policy contrary to the express intentions of the legislature.
The trial judge had ruled sections 2 and 3 are standalone offences and rejected defence arguments the definition of assault in section 2 is carried over to section 3.
He ruled Cooper could not have consented to being injured by Brown on grounds of public policy and the courts, on grounds of public policy, could not permit a defence of consent as that would enforce the purported agreement between Brown and Cooper.
The Court of Appeal had excluded the element of consent when interpreting the necessary ingredients for an assault within section 3 on the basis the public policy said to inform the legislation required that.
On Friday, three Supreme Court judges, Ms Justice Elizabeth Dunne, Mr Justice John MacMenamin and Ms Justcie Iseult O’Malley dismissed the appeal while Mr Justice William McKechnie and Ms Justice Mary Finlay Geoghegan dissented.
Giving the majority judgment, Ms Justice Dunne said the nature of the alleged consent in this case was such it was unlawful, therefore there was “no effectual consent”, the conviction stands and the appeal is dismissed.
She ruled that assault as used in section 2 and 3 has the same meaning and the concept of consent in section 2 is not removed from section 3.
Sections 2 and 3 are “separate and distinct” offences of assault but, insofar as both use the word assault, the word means the same in both, she said. The question whether or not courts can dictate public policy contrary to the express intention of the legislature does not arise, she ruled.
She disagreed with the Court of Appeal that absence of consent is not a necessary ingredient in a section 3 assault.
In the dissenting judgment, Mr Justice McKechnie considered section 3 effected a “notable change” in the degree of harm to which a person can consent, in all circumstances, to have inflicted upon them.
The prosecution must prove a lack of consent in every case, provided the injury does not amount to serious harm and the consent is freely given, he said. While not required to decide the issue in this case, he found “no force” in arguments that courts cannot form their own view of public policy, he added.