Defences
Consent
Lesson Objectives
• I will be able to state the definition of the
defence of consent
• I will be able to apply the rules to a given
situation
Consent
• 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
• The issues are deciding what a person can consent to
and the genuineness of the consent
• We need to consider:
– What offences can a person consent (and not
consent) to?
– Is the consent genuine?
What offences cannot be subjected
to a defence of consent?
• A person cannot consent o being killed
(murder), hence the difficulties with
euthanasia and turning off life support
machines – Airedale NHS Trust v Bland (1993)
• Euthanasia or assisted suicide – Pretty (2002)
What activities that might be an
offence can a person consent to?
• There are a number of areas where the law allows consent, although the
extent of the consent may be limited. This was discussed in detail in
Brown (1993)
• This case involved consenting homosexuals who performed sadomasochistic 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’
• A list was given including ‘properly conducted
games and sports, reasonable surgical
interference and dangerous exhibitions’
Normal Sports Activities
• Many sports involve some physical contact and the risk of injury
inflicted by another – Michael Watson – Boxing
• Whilst the event is being properly conducted and supervised within
the rules, there is consent. When the incident goes beyond the
rules and regulations of the sport, then there is the potential for
criminal liability – Barnes (2004) – leg injury in amateur football
match
• Court of Appeal decided that criminal proceedings should only take
place in those situations where the conduct was sufficiently serious.
Most sports have their own disciplinary procedures that covered
most situations and physical injury was an inevitable risk of sport,
and those taking part consented to such injury
• Before a prosecution was considered the
following would need to be considered:
– The type of sport
– The level at which it was played
– The nature of the act
– The degree of force used
– The extent of risk of injury
– The state of mind of the person causing the injury
The court also noted that in the heat of the moment
excessive force might be used but that was unlikely
to be criminal
Sports
• One of the exceptions in regard to consent to
actual harm is contact sports
• In Barnes, the CA held that prosecutions
should be reserved for conduct which was
‘sufficiently grave’ to be classed as criminal
• Intentional injuries will be criminal
• Injuries occurring within the rules will not
• Between these much will depend on whether
they occurred in a moment of temper or
excitement, and whether during play or not
Normal social intercourse
• This covers things such as shaking hands,
tapping someone on the shoulder to draw
their attention to something, hugging etc. It
should be noted that a person can withdraw
their consent, thus making the action
potentially criminal
Medical procedures, dentistry,
piercing, tattooing and blood tests
• Most surgical treatment can be readily
consented to either expressively by signing
consent forms, having the forms signed by a
parent or guardian for a child and by implied
consent in emergencies. This consent can be
refused or withdrawn at any time
Horseplay and sexual activities
• Brown (1993) – even though the activities were fully
consensual, the defendants were convicted because the acts
were intentional, and, also because of the moral view taken
• Jones (1986) – where there is horseplay there will be no
offence committed if the defendants were 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 consent
The public interest
• The CA held it was not in the public interest
that people should cause each other actual
bodily harm
• Deciding what is in the public interest may
involve the courts in moral judgements
• Compare and discuss Brown & Wilson
Mistake belief in consent
• Where D believes V is consenting to the
activity this may suffice
• In Jones, a group of boys tossed two other
boys into the air causing a ruptured spleen
and a broken arm
• In Aitken, RAF officers doused a colleague
with white spirit and set fire to him
• In both cases their s 20 convictions were
quashed as the jury had not been allowed to
consider consent to ‘rough horseplay’
Dica
• Look up this case
• If V does not have all the information there
may be no real consent
• D was convicted under s 20 OAPA 1861 with
recklessly inflicting grievous bodily harm
• He argued the women consented to sexual
intercourse
• The Court of Appeal overruled Clarence. The
women did not know he was infected so there
was no informed consent
• It is important to reiterate that the defence is
only relevant where the actus reus and mens
rea of the crime have been established. Thus if
the defendant had no mens rea, the defence
of consent is irrelevant – Simon Slingsby
(1995)
Is the consent genuine?
• The fact that the victim appears to consent
does not mean that the consent is genuine. If
the victim is a child or is mentally retarded,
then the consent may not be valid – Burrell v
Harmer (1967) – a person’s age does not in
itself negate the defence of consent: it is the
ability to appreciate the nature of the act that
is important
• Where the victim consents only through fear, it is a question of whether
the threats are sufficient to warrant the consent. This would be in line
with the defence of duress. However, where the defence is obtained by
fraud, it will not be a valid consent – Tabassum (2000) – consent can be for
a particular purpose only
• Tabassum (2000) – 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 for medical purposes, had not consented for any other
purpose
• This seems inconsistent with Richardson (1998), where consent to dental
treatment was accepted as a defence even though the patients did not
know that the defendant had been disqualified from practice. This latter
case seems inconsistent with Dica (2004) and so perhaps should be
disregarded
Overview
Consent is mainly
relevant to the nonfatal offences
against the person
It is never a defence
to murder, even if V
specifically asks D
to kill them – Pretty
It must be true
consent
Look at the cases of Tabassum. Why was there no real consent?
Exam tip
• Consent is not always used as a defence. In many
cases it makes the act lawful so no offence occurs
• For battery, consent would make the force lawful
• This means it can be discussed along with the
actus reus of battery
• The same would apply to unlawful act
manslaughter
• In Slingsby there was no unlawful act so no
offence occurred
Summary: When does it apply?
Battery
ABH/GBH
• Consent makes
a battery
lawful
• Can be implied
to everyday
‘jostling’
• Wilson v
Pringle
• Not usually a
defence unless
an exception
applies
• A.G.’s
Reference (No
6 of 1980)
Murder
• Never a
defence
• Even if V
specifically
asks D to kill
them - Pretty
Consent
Case Questions
Case 59 Questions
R v Brown and Others (1993)
1 What decision was made in this case?

2 What was the reason for the decision?
3 In which similar case was the defendant allowed to rely on the defence
of consent?
4 What happened in R v Dica (2004)?
5 Can a person consent to his or her own death?
6 In which case was this decided?
Case 59 Answers
1 The defendants were not able to rely on consent as a defence and therefore were

guilty.
2 It was not in the public interest that a person should wound or cause actual bodily
harm to another for no good reason. The satisfying of sadomasochistic desires did
not constitute such a good reason and therefore the defence of consent would not
operate.
3 R v Wilson (1997).
4 The defendant slept with two women who were unaware that he was HIV positive.
Under the old case of Clarence (1888), by consenting to sexual intercourse the
victims would also have been consenting to the risk of injury or illness incidental to
it. The Court of Appeal in Dica held that this was no longer the case. The victims
had not consented to the risk of HIV infection, as they had been unaware that the
defendant was infected. This notion of informed consent was followed in Konzani
(2005) — another case of HIV infection. The defendant could not rely on the
defence of consent, as his victims had only consented to unprotected sex and not
to the risk of infection with a fatal disease.
Case 59 Answers continued
5 No. Consent is not available as a defence to charges of murder or manslaughter, as
no one may consent to his or her own death at the hands of another.
6 In Pretty v UK (2002). Diane Pretty suffered from terminal motor neurone disease.
She wished to end her life but was physically incapable of committing suicide. She
wanted a guarantee from the Director of Public Prosecutions that her husband
would not be prosecuted for assisting in her suicide since she had consented to
this. The DPP refused to grant such immunity. Diane Pretty appealed to the
European Court of Human Rights but was unsuccessful. Euthanasia remains a crime
in the UK.
Case 60 Questions
R v Barnes (2004)
1 How did the court consider that these types of case should usually be

dealt with?
2 When should legal proceedings be brought in these types of cases?
3 What factors will be taken into account when deciding if the player has
committed a criminal offence?
4 Why do the courts allow people playing sports to give their consent to the
risk of injury?
5 Apart from playing sports, in what other situations will the courts allow a
person to consent to harm?
6 What happened in R v Jones (1986)?
Case 60 Answers
1 The court held that most organised sports had their own disciplinary

procedures and thus, in most cases, there was no need for criminal
proceedings when a player injured another player.
2 Legal proceedings should only be brought if a player’s conduct was so
serious that it should be considered criminal.
3 The type of sport, the level at which it was played, the nature of the act,
the degree of force used, the extent of the risk of injury and the
defendant’s state of mind.
4 Since sports are deemed to be socially useful, participants are able to
consent to injuries sustained during the course of a game.
5 A person may consent to various other things, including surgery, a tattoo,
ear piercing and horseplay.
Case 60 Answers continued
6 The victim was thrown into the air by his classmates. He sustained a
broken arm and a ruptured spleen. Despite the serious nature of his
injuries, the defence of consent was allowed as the boys involved,
including the victim, had treated the incident as a joke and there was no
intention to cause injury.
Extras
Topic 6
Consent
Consent
Introduction
The general rule is that no liability is incurred if a person
inflicts minor harm with the consent of the victim. Consent
operates as a defence because the courts recognise that
individuals have autonomy over their own lives.
However, there are limits as to what a person may consent
to, and while consent may be available as a defence to
non-fatal and sexual offences, it is not available for
charges of murder or manslaughter, as no one may
consent to his or her own death at the hands of another.
Consent
Elements
• Consent must be valid and informed.
• If the defendant has obtained the victim’s consent by
fraudulent means, this will not always render the consent
invalid. Fraud will only invalidate consent if the victim is
deceived as to the identity of the defendant or the nature
and quality of his or her act (R v Richardson, 1998; R v
Tabassum, 2000).
Consent
Limitations
• Generally, a victim may consent to assault and battery,
but when the charge is more serious, consent will only be
valid if the activity provides a useful social purpose.
• Certain activities inevitably mean that the victim will
sustain injury beyond assault or battery. A defendant may
still be able to rely on the operation of consent, however,
provided that the activity is deemed to fall into a category
of recognised exceptions, including surgery, tattooing and
piercing, properly conducted sports, and horseplay.
Consent
Effect
A successful plea will result in the defendant’s acquittal.
Consent
Evaluation (1)
Irrational distinctions
The cases of Brown and Wilson highlight the irrational
distinctions that are often made between what appear to
be similar situations. Some critics have suggested that
since the only real difference between the cases appears
to be the sexual preferences of the parties involved, the
decision was made on discriminatory grounds.
Consent
Evaluation (2)
The law should not determine limits of personal
autonomy
Opponents of the current position question why it is up to
the law to set limits on what individuals may or may not
consent to. They claim that judges, who are largely from a
restricted social background, are not best placed to set
limits on personal autonomy.
Consent
Evaluation (3)
Euthanasia
Currently, consent cannot operate as a defence to murder
and some argue that this is wrong, particularly when the
suffering of terminally ill patients is prolonged.
Consent
Reform
The Law Commission reviewed the defence of consent in
its 1995 paper ‘Consent in the Criminal Law’, but no real
reforms were suggested.