Twenty-seven years ago, the House of Lords handed down a seminal judgment in the case of R. v Brown. The case recognised that, depending on the circumstances in which they are committed, assaults can be lawful or unlawful. Lawful assaults including injuries sustained in contact sport, reasonable surgeries and parental chastisement are permitted, as they constitute good reason. There are overriding public policy concerns that immunise such assaults from the intervention of the criminal law. It follows that the defence of consent can only be raised where the activity in question constitutes good reason, it is legal, and the degree of harm inflicted does not involve actual bodily harm or more serious harm. The general exceptions that the common law courts have developed over the years are exhaustive, as the discussion below demonstrates. What can be garnered from the discussion on the judgments of the Irish Supreme Court in DPP v Brown and the Court of Appeal of England and Wales in R. v BM,3 is that the courts in Ireland, and in England and Wales are reluctant to create more exceptions. As a matter of public policy, the courts are of the view that it is up to the executive to establish special categories of exceptions.
This article examines the cases of R. v BM and DPP v Brown. In both cases, the respective courts referred to R. v Brown, and although of persuasive authority in Ireland, this case remains good law in both jurisdictions. Although societal norms have evolved over the last 27 years, the courts have adopted a paternalistic approach to the defence of consent in cases where the victim is considered vulnerable. Parallels between the two cases will be drawn. To put the recent cases in context, the article begins with a discussion of R. v Brown.