Defences: Consent

Question 1

What is the defence of consent?

Answer 1

The defence of consent is a general defence but mostly used for non-fatal offences. It can be a defence to all non-fatal offences but not to murder. Where consent is allowed then it must be real consent. The victim has to understand what they are consenting to. This is particularly relevant for children and people with mental disabilities.

Question 2

Burrell V Harmer 1967?

Answer 2

The defendant tattooed two boys aged 12 and 13. Their arms became inflamed and painful and the defendant was convicted of ABH. He tried to argue that they had consented but the Divisional Court held there was no consent as they did not understand the nature of the act. They would not have understood the level of pain involved.

Question 3

In what situation is consent not true?

Answer 3

When obtained by fraud; this can occur where the victim is deceived as to;

• the identity of the person.
• the nature and quality of the defendant’s act.

Question 4

R V Richardson 1998?

Answer 4

Richardson was a dentist who was suspended from practice but carried on treating her patients. She was convicted of ABH as the prosecution argued that the patients would not have consented had they known she was not supposed to practice. The Court of Appeal allowed her appeal, she had not informed them she was no longer qualified but she had not deceived them in any other way. The Court of Appeal said that patients consented to treatment by her and it was irrelevant that they might or would not have consented if they knew the truth.

Question 5

R V Tabassum 2000?

Answer 5

Tabassum examined the breasts of several women telling them it was part of his medical research. In fact he was doing it for his own enjoyment. He argued that they had consented. The Court of Appeal upheld his convictions under the Sexual Offences Act 2003 as the women were only consenting for medical purposes they had been deceived as to the ‘quality’ of the act so they were not really consenting.

Question 6

R V Dica 2004?

Answer 6

The court rules that consenting to sex did not mean automatic consent to any incidental risk of injury or infection. The defendant knew he was HIV positive and had sex with two women who were unaware of that. The victims had consented to sex but they would not have done had they known f the risk of infection. He was convicted of Section 20 GBH. This ruling was followed in the similar case of R V Konzani 2005. In Yaser 2008 the defendant pleaded guilty to GBH for recklessly transmitting Hep B.

Question 7

What type of consent has developed recently?

Answer 7

The doctrine of informed consent.

Question 8

What is the scope of consent?

Answer 8

The courts have set limits on a persons right to harm themselves. The courts try to balance between the seriousness of the harm consented to and the social usefulness, if any, of the activities involved. We all impliedly consent to assault and battery, everyday life would be difficult otherwise. We all impliedly consent to jostling in the street, on the tube etc.

Question 9

Collins V Wilcock 1984?

Answer 9

It was said that most physical contacts of ordinary life are not actionable because they are impliedly consented to. More serious injuries, from ABH upwards, cannot be consented to unless the situation falls into one of the accepted public policy exceptions recognised by the law.

Question 10

Exceptions - when may consent to more serious injury?

Answer 10

• contact sports
• horseplay
• tattooing and branding
• sexual activity
• surgery
• haircuts

Question 11

How does a victim consent to more serious injury in contact sports?

Answer 11

In sports such as boxing, football and rugby the defendant consents to the risk of injury but within the rules of the game.

Question 12

Attorney-General Reference No 6 of 1980?

Answer 12

Licensed boxing under the Queensbury rules if allowed, the victim consents to the risk of injury but bare-knuckle fighting is not allowed.

Question 13

R V Billinghurst 1978?

Answer 13

The defendant punched an opponent in the face in an off the ball incident during a rugby match and fractured his jaw. It was held that the victim had not consented and the defendant was convicted of Section 20 GBH.

Question 14

R V Barnes 2004?

Answer 14

Where the defendant was convicted of Section 20 GBH following a ‘late unnecessary, reckless and high crashing tackle’. The Court of Appeal allowed his appeal and it was ruled that prosecution should be bought against a player only if his conduct was ‘sufficiently grave to be properly categorised as a criminal’. Lord Woolf said participants in sports impliedly consent to risk of harm, relevant factors to take into account might be the type of sport, the level it was being played at, amateur or professional, nature of the act and the degree of force used.

Question 15

R V Moss 2000?

Answer 15

The defendant was convicted of Section 20 GBH where during the course of rugby match he punched an opponent in the face resulting in a fractured eye socket. The defence was unavailable.

Question 16

How does a victim consent to more serious injury in horseplay?

Answer 16

Deliberate physical contact in the school playground and elsewhere might involve a mutual risk of potential harm. This is a contentious issue because her the law allows for defence of consent for rough horseplay but it may be perceived by some bullying, although the courts seem to have insisted on a lack of intention to cause injury.

Question 17

R V Jones and Others 1987?

Answer 17

Some boys were injured having been thrown in the air by their schoolmates. One had a ruptured spleen and broke his arm. The defence of consent was accepted.

Question 18

R V Aitken and Others 1992?

Answer 18

The people involved were RAF officers and set fire to the victims fire resistant suit in an ‘initiation ceremony’. The victim was severely burned but their convictions were quashed.

Question 19

How does a victim consent to more serious injury in tattooing and branding?

Answer 19

Consent is a valid defence for tattooing and branding.

Question 20

R V Wilson 1997?

Answer 20

The defendant branded his wifes bottom with a hot butter knife and his conviction was quashed on the grounds that she had consented and that branding was a ‘bodily adornment’ similar to a tattoo.

Question 21

How does a victim consent to more serious injury in sexual activity?

Answer 21

Injury accidentally inflicted during sexual activity between two consenting adult is not assault, even if one of the parties dies.

Question 22

When can a victim not consent to more serious injury in contact sports?

Answer 22

The courts do not accept consent when injury is caused during sado-masochism.

Question 23

R V Slingsby 1995?

Answer 23

The defendant and the victim had consenting intercourse and he accidentally scratched her with his signet ring. She suffered internal cuts and died of septicemia. The court held there was no assault as the victim had consented so the defendant was not guilty of unlawful act manslaughter.

Question 24

R V Brown 1994?

Answer 24

A group of gay men over a 10-year period willingly and enthusiastically took part in acts of violence against each other for sexual pleasure. Everyone involved consented, no one complained to the police, no one sought medical treatment and no one suffered permanent injury. The police discovered the activities by accident and they were all charged with various offences under the OAPA 1861. They were all convicted and their appeals were rejected by the Court of Appeal and the House of Lords.

Question 25

Emmett 1999?

Answer 25

A man was convicted of causing ABH to his fiancee. During sex he had suffocated her with a plastic bag, causing internal bleeding in her eyes and poured lighter fluid on her breasts causing serious burns. Even though she had consented the Court of Appeal still upheld his conviction.

Question 26

How does a victim consent to more serious injury in surgery?

Answer 26

Patients consent to operations that would otherwise amount to wounding, this extends to cosmetic surgery and sex-change operations.

Question 27

Can a person give consent to euthanasia?

Answer 27

Euthanasia is murder in English criminal law and a person may not consent to their own death.

Question 28

Pretty V DPP 2002?

Answer 28

Diane Pretty had motor neurone disease and wanted her husband to assist her suicide. She took her case to the European Court of Human Rights claiming that the offence of assisting suicide was against her human rights. Article 2 - the right to life, she claimed it should also cover how to end life. Article 3 - prohibition of torture, she claimed that denying her the right to die amounted to torture. Article 8 - respect for family and private life, personal autonomy should mean she should be able to choose to die and Article 9 - freedom of thought and conscience, she believed in assisted suicide and should be allowed to manifest her belief. The ECHR dismissed her appeal.

Question 29

How does a victim consent to more serious injury in medical treatment?

Answer 29

A person can also refuse to consent to their own medical treatment. However, a victim can consent to a degree of injury within certain limitations the law accepts individuals should be independent and free to decide what to do but there are limits as to how far this should go for reasons of public policy.

Question 30

Attorney-General Reference (No 6 of 1980) 1981?

Answer 30

Lord Lane said ‘it is not in the public interest that people should try to cause bodily harm for no good reason.’

Question 31

Evaluation of the defence of consent?

Answer 31

• cases like Brown 1993 and the contrasting case Wilson 1996 have led to controversy because it is thought that the court should not be responsible for policing sexual relations between consenting adults. One big difference between the two cases is that in Brown the participants were homosexual whereas in Wilson the defendants were heterosexual. This has led to speculation that there is some discrimination between sadomasochistic activities between homosexual and heterosexual participants.
• Brown was very controversial decision, the idea that the courts should police sexual relations has been challenged by many people. Peter Tatchell the gay rights campaigner stated ‘the state has no legitimate business invading the bedrooms of consenting adults and dictating how they should have sex.
• In Brown the majority in the House of Lords viewed that what occurred as acts of violence with sexual motive, which the law should not accept, as opposed to sexual acts which inadvertently involved violence. Therefore they concluded that what had happened was ‘prime facie’ unlawful. Lord Lowry said ‘homosexual sadomasochism could not be seen as a manly diversion nor was it conducive to the welfare of society’. Lord Jauncey felt that there was a danger young men might be corrupted. Dissenting Lord Mustill and Lord Slynn thought a victim could consent to ABH but not to GBH. Policy considerations need to be taken into account.
• It was argued that making private acts where everyone consented a criminal offence was a breach of human rights. Article 8 says that everyone has a right to respect for private and family life. The ECHR ruled that it was not, Article 8 (2) says public authorities may interfere with that right to protect health and morals among other things.
• Horseplay may actually be seen as bullying.
• The law is not consistent, why should consent be refused for disapproval types of sexual behaviour as in Brown and Emmett yet allowed for horseplay resulting in serious injury.
• Informed consent issue, this is an important area especially in the context of STI as seen in Dica 2004, Konzani 2005 and Yaser 2008 in relation to the transmission of Hep B. If informed consent had been a requirement perhaps there would have been a different outcome in Richardson 1995.
• sport, there can be problems delineating inside and outside the rules of the game. There is also inconsistency in the application of the defence as some sports, like boxing, involve deliberate harm which is allowed and in others less then deliberate harm constitutes an offence. Consent is only allowed in an ‘on the ball’ incident or ‘during the course of play’.

Question 32

Arguments in favour of euthanasia?

Answer 32

There are also lots of arguments in favour in euthanasia and assisted suicide. Many people would like to see this area of the law reformed so that a terminally ill person could choose when to die. Cases like Pretty 2002 and Purdy 2009 highlight how consent as a defence would be appropriate. Mrs Purdy asked the court to clarify the law on whether her husband would be prosecuted if he were to assist her to travel to another country where assisted suicide was legal. The Director of Public Prosecution gave guidelines on charging the CPS to use in similar cases. In the latest case of Nicklinson 2014 the Supreme Court concluded with a majority (7:2) that the matter should be addressed by Parliament. Tony Nicklinson wanted the law to change to allow doctors to assist patients to die under the Suicide Act 1961 it is still an offence to assist a suicide or suicide attempt.

Question 33

Reform of the defence of consent?

Answer 33

No radical change was proposed in the Law Commission’s Consultation paper ‘Consent in the Criminal Law’ 1995, it said that intentional or reckless causing of injury to another person short of the ‘serious disabling variety’ should not be criminal if the other person consent to it. This moves the law slightly, in Brown 1994 the HoL ruled that injury amounting to ABH or worse could only be consented to if there was a good reason for it. As the proposed offence of causing injury is designed to replace that of ABH then the law will be relaxed if the Comissions proposals are ever adopted.