Consent to Assault

Question 1

R v Donovan

Answer 1

Swift J - Criminal act not rendered lawful by consent as no person can licence another to commit a crime
General rule with exceptions - ‘It is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and when such an act is proved, consent is immaterial.’

Question 2

R v Brown (HoL)

Answer 2

• Lord Templeman - Incidental violence and violence for the indulgence of cruelty; society entitled to protect itself against a cult of violence
• Lord Slynn (dissenting) - Legislature decision

Question 3

DPP v Browne

Answer 3

• Can consent but PP

Question 4

R v Wilson

Answer 4

Lord Russell = ‘Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution.’

Question 5

Laskey and others v United Kingdom

Answer 5

ECHR = ‘The determination of the level of harm that should be tolerated by the law in situations where the victim consents is in the first instance a matter for the State concerned since what is at stake is related, on the one hand, to public health considerations and to the general deterrent effect of the criminal law, and, on the other, to the personal autonomy of the individual.’

Question 6

R v Emmett

Answer 6

Brown was followed and Wilson was distinguished.

Question 7

R v BM [2018] EWCA Crim 560

Answer 7

• ‘General interest of society in limiting the approbation of the law for significant violence, albeit inflicted with consent…Protect from themselves those who have consented, most particularly because they may be vulnerable or even mentally unwell …’ – Shifting more towards a paternalistic approach.
• ‘Moreover, serious injury, even if consented to, brings with it risk of unwanted injury, disease or even death and may impose on society as a whole substantial cost.
• Yet there is a need to reflect the general values of society which have long accepted tattooing and piercing (not just of ears) as acceptable, along with such things as ritual circumcision, sports and the other sub-categories identified in the cases.’

Question 8

Child and Family Agency v AA [2018] IEHC 112

Answer 8

• HC = Failing to disclose HIV status was not necessarily reckless;
• However, failing to take antiretroviral drugs as prescribed could be considered reckless.

Question 9

UK case law on criminalising HIV infections:

Answer 9

● R v Dica [2004] EWCA Crim 1103
● R v Konzani [2005] EWCA Crim 706

Question 10

R v Barnes [2004] EWCA Crim 3246

Answer 10

Convicted for assault for bad tackle in a football match