If you agree to being assaulted, where do you stand under the law?

When is an assault not an assault? It’s generally accepted that a two footed tackle in a football match doesn’t count as assault.

Similarly, if you were unconscious and in need of emergency surgery it is high unlikely a surgeon would be charged with assault, even if they almost killed you, for performing a procedure.

But what if you asked someone to assault you? Or to make it more complex, what if you asked someone to assault you in prison so you could give the impression that you were under threat and should get moved to another facility.

That's the question the Supreme Court will tackle later this year after it agreed this month to hear an appeal in the case of Director of Public Prosecution and Gerard Browne.

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The background to the case is as bizarre as the legal question it raises. In 2014, former garda Stephen Cooper was jailed for three years for a string of offences.

In one incident Cooper’s friend was collecting LSD for him at Electric Picnic and was stopped by gardaí. Cooper convinced another friend to claim ownership of the drug. He was also convicted of possession of cocaine and of attempting to get a woman to make a false statement accusing another man of car theft.

In 2014, Cooper was jailed for three years and because he had been a garda he was due to spend much of his sentence in protective isolation in the Midlands Prison.

Nineteen days into his sentence Cooper was being escorted to the gym when he was attacked and beaten by another prisoner, Gerard Browne, using a sock containing a mug.

Browne stood trial for assault causing harm in October 2015. At first the case appeared clear-cut. He had admitted attacking Cooper and there were several witnesses.

Attack

However, his excuse for the attack was unusual. Browne told his trial he got on well with Cooper and that one day the ex-garda confided in him that he had been refused a transfer to Shelton Abbey, an open prison in Co Wicklow.

Browne said he told Cooper the only way he could get out of the Midlands was “if there is a serious threat on you . . . or if you are seriously assaulted”.

He said Cooper formulated a plan that Browne should attack him. He allegedly told Browne “don’t hold back” and “just make sure there is blood”. In return, Browne would receive €1,000 as well as sensitive documents and information.

But the judge refused to allow this defence to go to the jury and Browne was duly convicted and sentenced to another three years in prison. An appeal was launched but also failed.

Browne’s last chance was the Supreme Court. Since the 2013 referendum establishing the Court of Appeal, the Supreme Court does not generally hear appeals from lower courts.

However, it will make an exception if the case involves a legal point of general public interest and this month it decided Browne’s appeal was such a case.

Browne’s lawyers argue that he was charged with assault causing harm otherwise known as Section 3 assault. This is a more serious version of common assault, or Section 2 assault.

His case turns on a single line in the legislation dealing with common assault; that it must occur “without the consent of the other.” Therefore if an accused can show the victim gave permission for them to be attacked, the offence of assault does not apply.

The consent clause is missing from the section dealing with assault causing harm, which is what Browne was charged with. However, according to court documents, the defence will argue that Section 3 is based on Section 2 and therefore the consent clause is implied.

As part of its strategy the defence is relying on the Dáil debate which occurred before the 1997 Act was passed. During the debate the then minister for justice Nora Owen stated unambiguously that consent is a factor in assault causing harm.

Reluctant

The courts have always been reluctant to rely on parliamentary debate to help them interpret the law and the Court of Appeal in Browne’s case was no different. It is understood his defence will ask the Supreme Court to rely on the debates in considering their appeal.

Legal sources with knowledge of the case, said it will be the first of its kind and will serve as a test case in future litigation. It could have implications for sports like boxing or Mixed Martial Arts which often involve actions which in any other forum would be classed as assault causing harm.

Common law, the set of legal principles that have emerged over time and are not written down in statute, usually protects assailants in such circumstances.

“In common law, a person who has volunteered to engage in a sport consents to harm being caused to them in that context. So if you shoulder someone in a football match or drag someone to the ground in a rugby match or even hit them in a boxing match, common law principles have developed to the extent where general consent is assumed,” barrister Tony McGillicuddy said.

The DPP has brought prosecutions in the past for excessive violence in sporting situations, such as serious off the ball assaults.

It is unclear if the principle of common law consent applies to unsanctioned sporting events such as bare knuckle boxing or if it applies to assaults which take place for illegal purposes such as insurance fraud. This will be one of the questions the Supreme Court will be asked to consider.

Common law is silent when it comes to another form of violence, consensual sadomasochism.

“There are people who have a sexual bent that we might find not very understandable, and they inflict pain on each other. When does that become unlawful?” another barrister said.

If the Supreme Court sides with Browne it would not necessarily mean acquittal. It is likely he would face a retrial in which the jury would have to consider if they believed Cooper asked to be assaulted.