Consent as a Defence
Common law general defence defined by judges
The defence of consent is, in many ways, not a defence at all as it could be argued that there has been
no unlawful act. This is because if criminal law allows a person to consent to a criminal act there is no
victim and therefore no crime. The defence is very closely linked to NFO’s. The issues are deciding
what a person can consent to and the genuineness of the consent. If the defence is successful it
results in an acquittal. The defence is only relevant where the actus reus and mens rea of the crime
have been established.
Definition: Where the D argues that the V gave either express or implied agreement to what otherwise
would be a fatal or non fatal offence.
What offences and can’t be consented to?
Where the defence is allowed
Assault
Battery
Where the defence is not allowed
Murder
Manslaughter
GBH with intent S18 OAPA 1861
Malicious Wounding S20 OAPA 1861
ABH S47 OAPA 1861 – though see
exceptions
Murder
A person cannot consent to being killed (murder), hence the difficulties with euthanasia and turning off
life support machines.
Airedale NHS Trust v Bland (1993): Where the D is brain dead and the clear will of the family and the
D would be to stop providing assistant to keep bodily functions running in this exceptional situation the
defence of consent would be allowed to the technical murder of V
Pretty (2002): The House of Lords and the European Court did not find that Article 2 created a right to
die and indeed that the need to protect vulnerable citizens justified the prohibition of assisted suicide.
Therefore legal consent could not be given by the V so the D would be guilty of an unlawful killing.
Assault and Battery
Cole v Turner: The defence of consent is implied in numerous everyday situations such as everyday
jostlings in the street and greeting friends or acquaintances. However, any touching that is outside
what would normally be expected in everyday life, such as the pulling of the hem of a girls skirt by a
stranger, would not imply the defence of consent and would be unlawful force.
Collins v Wilcock a police officer can use reasonable force when making an arrest but any force used
outside this legal authority would amount to a battery.
Other Non Fatal Offences
AG’s Reference (No 6 of 1980) 1981, where D aged 18, and the victim, aged 17 quarrelled and
agreed to settle their difference by fighting in the street. Lord Lane CJ held:
'It was not in the public interest that people should try to cause or should cause each other actual bodily
harm for no good reason. Minor struggles are another matter’
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Consent as a Defence
Common law general defence defined by judges
This case makes it clear that the defence of consent is not available for any NFO’s from ABH to GBH
with intent. However Lord Lane went on to identify a number of exceptions:
“Properly conducted games and sports, lawful chastisement, reasonable surgical interference,
dangerous exhibitions etc….”
Effectively the case grants the use of the defence of consent where the violence is held to be in the
public’s interest, e.g. a healthy society requires we submit to operations, children need to be
disciplined, team sports encourage many positive qualities in participants and spectators.
Brown (1993). This case involved consenting homosexuals who performed sado-masochistic acts in
private. Whilst at the time many perceived the acts as distasteful, and immoral, the question before the
court was whether the individuals could consent to these activities. The court confirmed that consent is
allowed as a defence to battery, but not to more serious injuries as the law insists that there are limits
to the defence of consent when injuries are more serious than common assault (ss47, 20 and 18): it is
not in the public interest for people to harm each other for no good reason. The court stated that the
defence is not available for injuries more serious than common assault unless they fell into one of the
‘recognised exceptions’.
Normal sports activities
Barnes (2004). In this case, the victim suffered a serious leg injury following a tackle during an amateur
football match. The Court of Appeal decided that criminal proceedings should only take place in those
situations where the conduct was sufficiently serious. When the incident goes beyond the rules and
regulations of the sport, then there is the potential for criminal liability.
Billingshurst: Where the D injures someone when not following the rules of the game this will not be
allowed as a defence of consent.
Medical procedures, dentistry, piercing, tattooing and blood tests
IWilson (1996) branding the husband’s initials, at the wife’s behest, on her buttock was likened to
tattooing and was one of the reasons the defence of consent was allowed in this case.
Horseplay and sexual activities
The courts have tried to distinguish between acts done in the privacy of a person’s home and those
acts, which go beyond this and can be seen by many as simply acts of violence, which the criminal law
should deter.
Jones (1986) Where a group of boys gave another ‘the bumps’ by tossing him in the air, the
defendants were entitled to be acquitted if the jury decided that they were indulging in ‘rough' and
undisciplined sport or play, not intending to cause harm, and genuinely believing that the injuries which
occurred in the course of the horseplay occurred with the victim’s consent.
Dica (2004) established that the transmission of disease (at least sexual ones) can be criminal and the
question is then one for the jury on the issue of consent. Clearly someone who is not told that their
partner is HIV positive cannot consent to the risk of infection as a result of unprotected sex, but this
does not deal with the issue of the victim’s ability to understand the implications of the activity, or where
drug users share needles or inject each other.
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Consent as a Defence
Common law general defence defined by judges
If the defendant has no mens rea (or actus reus), the defence of consent is irrelevant. This can be seen
in the case of Slingsby (1995), where the defendant caused internal injuries to a woman partner from
the signet ring he was wearing. At the time of the incident, neither the defendant nor the victim was
aware of the injury or the cause of it until the subsequent seriousness as a result of the wound
becoming septic became apparent. Her death was not the result of a criminal act as the defendant
lacked the mens rea for unlawful act manslaughter, so the issue of consent was irrelevant.
Is the consent genuine?
Burrell v Harmer (1967), where the defendant tattooed two boys who were aged 12 and 13 with their
consent. The defence of consent was not allowed, as the court felt that the boys were unable to
understand the pain involved whilst recognising what a tattoo was. Age in itself does not mean there is
no consent, but the failure to appreciate the nature of the act does form the basis of the lack of
consent.
Tabassum (2000), where women consented to a breast examination carried out by the defendant in
the erroneous belief that he was medically qualified. The offence had taken place because the women,
who had consented to being touched purely for medical purposes, had not consented for any other
purpose.
Mistaken belief as to consent
Aitkin and others 1992 D attended a party with friends (all in the RAF) and became very drunk. V and
friends engaged in an initiation ceremony, which involved setting fire to a fire resistant suit with white
spirits. V was severely burnt but the CA said no GBH, as the D's had genuinely believed that V had
been consenting and this was not put to the jury.
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Consent as a Defence
Common law general defence defined by judges
AG Ref (No 6 of 1980) 1981
THE LORD CHIEF JUSTICE OF ENGLAND (Lord Lane)
MR. JUSTICE PHILLIPS
and
MR. JUSTICE DRAKE
____________________
REFERENCE TO THE COURT OF APPEAL (CRIMINAL DIVISION) BY THE ATTORNEY
GENERAL UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT, 1972 (No. 6 of 1980)
MR. R. ROUGIER, Q. C. and MR. R. INGLIS appeared on behalf of the Attorney General.
MR. A. GREEN appeared as Amicus Curiae.
1. THE LORD CHIEF JUSTICE: This is a reference to the Court by the Attorney General
under section 36 of the Criminal Justice Act 1972. The point of law upon which the Court
is asked to give its opinion is as follows:
2. "Where two persons fight (otherwise than in the course of sport) in a public place can it
be a defence for one of those persons to a charge of assault arising out of the fight that
the other consented to fight."
3. The facts out of which the reference arises are these. The respondent, aged 18, and a
youth aged 17, met in a public street and argued together. The respondent and the youth
decided to settle the argument there and then by a fight. Before the fight the
respondent removed his watch and handed it to a bystander for safe keeping and the
youth removed his jacket. The respondent and the youth exchanged blows with their fists
and the youth sustained a bleeding nose and bruises to his face caused by blows from the
respondent.
4. Two issues arose at the trial: (1) self defence and (2) consent. The learned Judge
directed the jury in part as follows:
5. "Secondly, if both parties consent to a fight then that fight may be lawful. In that
respect I disagree with Mr. Inglis' description of the law. It may well be that a fight on
the pavement is a breach of the peace or fighting in public or some other offence but it
does not necessarily mean that both parties are guilty of an assault. So that if two people
decide to fight it out with their fists then that is not necessarily an assault. If they use
weapons or something of that nature, other considerations apply. So you have to consider
those two matters in this case. Was Mr. X acting in self-defence? Was this a case of
both parties agreeing to fight and using only reasonable force?"
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Consent as a Defence
Common law general defence defined by judges
6. Thus the jury were directed that the respondent would, or might, not be guilty of assault
if the victim agreed to fight, and the respondent only used reasonable force. The
respondent was acquitted.
7. At the hearing of the reference, Mr. Rougier Q. C. and Mr. Inglis appeared for the
Attorney General. Mr. Rougier submitted that this direction was incorrect, that the
answer to the point of law was "No", and that if an act (ordinarily constituting an assault)
is unlawful per se, no amount of consent can render it lawful. Thus an act committed in
public might, he submitted, be an assault, even though it would not be if committed in
private, since if committed ix public it would be a breach of the peace and for that reason
unlawful.
8. Mr. Allan Green appeared as amicus curiae, and drew the attention of the Court to the
relevant authorities and text books. He pointed out that though the conclusions in the
cases are reasonably consistent, the reasons for them are not.
9. For convenience we use the word "assault" as including "battery", and adopt the definition
of Mr. Justice James in Fagan v. Commissioner of Metropolitan Police (1969) 1 Q. B. 439)
at page 444, namely:
10. "the actual intended use of unlawful force to another person without his consent", to
which we would respectfully add "or any other lawful excuse".
11. We think that it can be taken as a starting point that it is an essential element of an
assault that the act is done contrary to the will and without the consent of the victim;
and it is doubtless for this reason that the burden lies on the prosecution to negative
consent. Ordinarily, then, if the victim consents, the assailant is not guilty.
12. But the cases show that the Courts will make an exception to this principle where the
public interest requires: R. v. Coney (1881/82) 8 Q. B. D. 534 (the Prize Fight case). The
eleven Judges were of opinion that a prize fight is illegal, that all persons aiding and
abetting were guilty of assault, and that the consent of the actual fighters was
irrelevant. Their reasons varied as follows: Mr. Justice Cave, that the blow was struck in
anger and likely to do corporal hurt, as opposed to one struck in sport, not intended to
cause bodily harm; Mr. Justice Mathew, the dangerous nature of the proceedings; Mr.
Justice Stephen, what was done was injurious to the public, depending on the degree of
force and the place used; Mr. Justice Hawkins, the likelihood of a breach of the peace,
and the degree of force and injury; Chief Justice Coleridge, breach of the peace and
protection of the public.
13. The judgment in R. v. Donovan (1934) 2 K. B. 498 (beating for the purposes of sexual
gratification), the reasoning in which seems to be tautologous, proceeds upon a different
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Consent as a Defence
Common law general defence defined by judges
basis, starting with the proposition that consent is irrelevant if the act complained of is
"unlawful... in itself", which it will be if it involves the infliction of bodily harm.
14. Bearing in mind the various cases and the views of the text book writers cited to us, and
starting with the proposition that ordinarily an act consented to will not constitute an
assault, the question is: at what point does the public interest require the Court to hold
otherwise?
15. In answering this question the diversity of view expressed in the previous decisions, such
as the two cases cited, make some selection and a partly new approach necessary.
Accordingly we have not followed the dicta which would make an act (even if consensual)
an assault if it occurred in public, on the ground that it constituted a breach of the
peace, and was therefore itself unlawful. These dicta reflect the conditions of the times
when they were uttered, when there was little by way of an established police force and
prise fights were a source of civil disturbance. Today with regular policing, conditions are
different. Statutory offences, and indeed bye-laws, provide a sufficient sanction against
true cases of public disorder, as do the common law offences of affray, etc. Nor have we
followed the Scottish case of Smart v. H. M. Advocate (1975) Scots Law Times 65,
holding the consent of the victim to be irrelevant on a charge of assault, guilt depending
upon the "evil intent" of the accused, irrespective of the harm done.
16. The answer to this question, in our judgment, is that it is not is the public interest that
people should try to cause or should cause each other actual bodily harm for no good
reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether
the act occurs in private or in public; it is an assault if actual bodily harm is intended
and/or caused. This means that most fights will be unlawful regardless of consent.
17. Nothing which we have said is intended to cast doubt upon the accepted legality of
properly conducted games and sports, lawful chastisement or correction, reasonable
surgical interference, dangerous exhibitions, etc. These apparent exceptions can be
justified as involving the exercise of a legal right, in the case of chastisement or
correction, or as needed in the public interest, in the other cases.
18. Our answer to the point of law is No, but not (as the reference implies) because the fight
occurred in a public place, but because, wherever it occurred, the participants would have
been guilty of assault (subject to self-defence) if (as we understand was the case) they
intended to and/or did cause actual bodily harm.
19. The point of law referred to us by the Attorney General has revealed itself as having
been the subject of much interesting legal and philosophical debate, but it does not seem
that the particular uncertainty enshrined in the reference has caused practical
inconvenience in the administration of justice during the last few hundred years. We
would not wish our judgment on the point to be the signal for unnecessary
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Consent as a Defence
Common law general defence defined by judges
prosecutions.suffering from depression. During a visit home from hospital he argued with
his wife and beat her
Questions
1. What was the question posed by the AG to the court seen at point two?
2. What was the courts answer to this question at point 18?
3. What reason did the court reject for the answer to the question at point 18?
4. Explain why the court answered as they did in point 18. Refer to point 16.
5. What is the general rule on the defence of consent to a non fatal offence according to
this case?
6. Explain what exceptions there are to this general rule of criminal law using point 17.
7. What does in the public interest mean at point 17?
8. Give a brief reason why the court has created this list of exceptions thinking about the
phrase “in the public interest”
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