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Lord Lane states ..."It is an essential element of an assault that the act is
done contrary to the will and without the consent of the victim." Dr Jepson
argues that ..."Consent should never be a valid defence when it comes to
intent to commit serious offences against the person." Critically analyse these
views.
Introduction
Where a victim consents to the defendant touching them or committing an offence against them,
the defence of consent can negative an offence against the victim and the defendant cannot be
charged due to the victim’s consent. However, for certain offences, such as murder and situations
where serious injury is caused, consent can never be a defence. In this essay I am going to discuss
non-fatal offences against the person and consent as a defence to them. This means that I will have
to discuss the four main types of non-fatal offences against the person, these are: assault and
battery, assault occasioning actual bodily harm (ABH), assault occasioning/inflicting grievous bodily
harm (GBH) and causing grievous bodily harm (GBH) with intent. Thus the necessary legislation that I
will be looking at is the Criminal Justice Act (1988) and the Offences Against the Person Act (OAPA)
(1861). I will look at each of these offences and discuss the argument put forward by Lord Lane, “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 Dr. Jepson’s argument that “Consent should never be a valid defence when it
come to intent to commit serious offences against the person.”
Assault and Battery
Common assault can be committed by either an assault and battery. Both of these are common law
offences charged under s39 of the Criminal Justice Act 1988. An assault is an act which causes the
victim to apprehend the infliction of immediate, unlawful force with either an intention to cause
another to fear immediate unlawful personal violence or recklessness as to whether such fear is
caused. This means that the actus reus of an assault is an 1) an act, 2) which causes the victim to
apprehend the infliction of immediate, unlawful force.
For an assault, omissions are generally not sufficient for the act, only an act or words. Words can be
either verbal or written. A case demonstrating this is Constanza (1997); in this case the Court of
Appeal held that letters could be an assault. The defendant had written 800 letters and made a
number of phone calls to the victim. The victim interpreted the last two letters as clear threats. The
Court of Appeal held that there was an assault as there was a ‘fear of violence at some time, not
excluding the immediate future’. In the case of Ireland (1997) it was even held that silent telephone
calls can be an assault depending on the facts of the case.
The act committed by the defendant must cause the victim to apprehend that immediate unlawful
force is going to be used against them. This means that where the situation is one in which it is
obvious that the defendant cannot actually use force in the immediate future, there cannot be an
assault. An example of such a situation is where a person shouts death threats or threatens to attack
the victim while passing by on a train, there is no possibility that he would be able to carry out those
threats in immediate future. Fear of immediate force is necessary and in this example, there was no
immediate force, however immediate does not mean instantaneous but ‘imminent’. In the case of
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Smith v Chief Superintendent of Woking Police Station (1983), it was held that an assault can be
through a closed window. The defendant in this case had broken into the victim’s garden and looked
through her bedroom window around 11pm at night. The victim was terrified and thought that the
defendant was about to enter the room. Although the defendant was outside the house and no
attack could be made at that immediate moment, the court held that the victim was frightened by
his conduct. The basis of the fear was that she did not know what he was going to do next, but that
it was likely to be of a violent nature. Fear of what he might do next was sufficiently immediate for
the purposes of the offence.
Additionally, fear of any unwanted touching is sufficient and the force or unlawful personal violence
which is feared need not be serious. It is important though that the force which is threatened is
unlawful, if the force is lawful then there cannot be an offence.
A battery is the application of unlawful force to another person intending either to apply unlawful
physical force to another or recklessness as to whether unlawful force is applied. This can include
even the slightest touching as seen in the case of Collins v Wilcock (1984). In this case two police
officers saw two women apparently soliciting for the purposes of prostitution. They asked the
appellant to get into the police car for questioning but she refused and walked away. As she was not
known to the police, one of the officers walked after her to try to find out her identity. Again she
refused to speak and walked away. The officer then took hold of her arm to prevent her from
leaving. She became abusive and scratched the police officer’s arm. She was convicted of assaulting
a police officer in the execution of his duty. She appealed against this conviction on the basis that
the officer was not acting in the execution of his duty but was acting unlawfully by holding her arm
as the officer was not arresting her. The court held that the officer had committed a battery and the
defendant was entitled to free herself. In the case of Thomas (1985) it was even held that the
touching of someone’s clothes could be an assault. In this case the defendant touched the bottom of
a woman’s skirt and rubbed it. The Court of Appeal said, obiter, ‘There could be no dispute that if
you touch a person’s clothes while he is wearing them that is equivalent to touching him.”
A battery may be committed through a continuing act as seen in the case of Fagan v Metropolitan
Police Commander (1968) where the defendant unintentionally parked his car on a police officer’s
foot. When asked to move his car by the police officer he refused to do so for several minutes. The
parking of the car on the police officer’s foot constituted a part of the battery (i.e. the act, actus
reus), when the defendant realised what he had done and refused to move, he had completed the
offence as he had then formed the intention (i.e. the mens rea).
A battery can also be committed through an indirect act. This was seen in the cases of Martin (1881)
and DPP v K (1990). In Martin (1881), the defendant put an iron bar across the doorway of a theatre
and then switched off the lights. In the panic that followed, several of the audience were injured
while they were trapped and unable to open the door. Martin was convicted of a s.20 of the OAPA
1861 offence. In the case of DPP v K (1990), the defendant hid sulphuric acid in a hand drier in the
school toilets. He intended on going back to get the acid later however before he did so, another
student used the hand drier and was sprayed by the acid. The defendant was charged under s.47 of
the OAPA 1861. The magistrates acquitted him due to the lack of mens rea but the prosecution
appealed to the Queen’s Bench Divisional Court which held that a common assault could be
committed by an indirect act.
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An omission can only create liability where the defendant is under a duty to act. As the actus reus of
a battery is the application of unlawful force it would be rare for such a case where an omission
would create liability for a battery. However, this did occur in the case of Santana-Bermudez (2003).
In this case the victim was a policewoman who asked the defendant before searching his pockets if
he had any needles or other sharp objects in his pocket. He said ‘no’ but when the policewoman
searched the defendant she was injured by a needle which caused bleeding. The Divisional Court
held that the defendant’s failure to tell her of the needle could amount to the actus reus for the
purposes of an assault occasioning ABH.
Like an assault, for a battery to be committed the force used must be unlawful. If the victim gives
genuine/real consent to the force then the force may be regarded as lawful. Force may also be
justifiable and lawful where it is reasonable and was used in self-defence, defence of another or in
the prevention of crime. If the force used is lawful then the defendant cannot be guilty of a battery.
With regards to the mens rea, the mens rea for an assault is either an intention to cause another to
fear immediate unlawful personal violence, or recklessness as to whether such fear is caused. The
mens rea for a battery is either an intention to apply unlawful physical force to another or
recklessness as to whether unlawful force is applied. As both of these are basic intent offences
intoxication is not a defence as per the case of DPP v Majewski (1976) where it was held that getting
drunk was a reckless course of conduct and is sufficient for the mens rea in assault cases.
Assault and battery are both minor offences which have lower levels of seriousness in comparison to
other non-fatal offences against the person. This means that Dr. Jepson’s argument that “Consent
should never be a valid defence when it comes to intent to commit serious offences against the
person”, is irrelevant in relation to these offences. This is because Dr. Jepson’s argument is regarding
“serious offences”, assault and battery are not considered to be serious offences. Lord Lane’s
statement however I believe is relevant as it is regarding assault. Lord Lane stated 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.” This seems like both a logical and justifiable statement to make. For an assault there
must be an act which causes the victim to apprehend immediate unlawful force and for a battery
there must be the application of unlawful force. Clearly for both unlawful force is needed, where the
victim consents to that force it cannot be unlawful. For an assault the victim must apprehend
immediate unlawful force, if the victim consents to the force surely they cannot then claim to have
apprehended immediate unlawful force as they are expecting and allowing it. This was seen in the
case of Lamb (1967) where it was held that pointing an unloaded gun at someone who knows that it
is unloaded cannot be an assault because the other person does not fear immediate force. Thus it
would seem reasonable, logical and justifiable to allow consent as a defence to the minor offences of
assault and battery and Lord Lane’s statement should be followed.
Assault Occasioning Actual Bodily Harm
Assault occasioning actual bodily harm (ABH) is an offence under s.47 of the Offences Against the
Person Act 1861. This is where an assault or battery causes ABH and the defendant had the intention
to cause the victim to fear unlawful force, or was subjectively reckless as to whether the victim fears
or is subjected to unlawful force. Thus, for the actus reus of an s.47 offence, it needs to be proven
that there was an assault or battery that caused the victim actual bodily harm.
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In the case of Miller (1954) it was said that actual bodily harm is ‘any hurt or injury calculated to
interfere with the health or comfort of the victim’. In the case of T v DPP (2003) it was held that even
loss of consciousness, even if momentarily, was actual bodily harm. In T v DPP, the defendant and a
group of youths chased the victim. When the victim fell to the ground he was kicked by them. He
lost consciousness and was later woken by a police officer and was unable to remember anything.
The defendant was charged with assault occasioning ABH.
Bruising, grazes and scratches are all injuries that also come under a s.47 offence. It has even been
held that cutting a part of the victim’s hair can also amount to ABH. In the case of DPP v Smith
(Michael) (2006), the defendant had an argument with his girlfriend and cut off her ponytail and
some hair from the top of her head without her consent. He was charged under s.47 of the OAPA
1861. The magistrates believed that cutting hair could not amount to actual bodily harm however on
appeal the Divisional Court held that cutting off a substantial amount of hair could be actual bodily
harm. Psychiatric injury has also been classed as ABH following the case of Chan Fook (1994).
However, the Court of Appeal stated that this does not include “mere emotions such as fear, distress
or panic” nor does it include “states of mind that are not themselves evidence of some identifiable
clinical condition.” The House of Lords approved of this in the case of Burstow (1997) and confirmed
that ‘bodily harm’ included psychiatric illness under s.18, 20 and 47 of the OAPA 1861.
The courts have held that the mens rea for a common assault is sufficient for the mens rea of a s.47
offence. This means that the defendant must intend to or be subjectively reckless as to whether the
victim fears or is subjected to unlawful force. The defendant need not intend or be reckless as to
whether actual bodily harm was caused as seen in the case of Roberts (1971). In this case the
defendant, while driving a car, made advances to the girl in the passenger seat next to him and tried
to take her coat off. She feared that he was going to commit a more serious assault and jumped
from the car while it was travelling at about 30 mph. As a result of this she was slightly injured. The
defendant was found guilty of assault occasioning ABH despite not intending any injury or realised
that there was a risk of injury. He had intended to apply unlawful force when he touched her as he
tied to take her coat off. This satisfied the mens rea for a common assault and so he was guilty of an
offence under s.47. The House of Lords confirmed this decision in the combined appeals of Savage
and Parameter (1991). In Savage, the defendant threw beer over another woman in a pub but while
doing this the glass slipped from her hand and cut the victim. The defendant said that she had only
intended to throw beer over the woman. The defendant had not intended to injure her nor had she
realised that there was a risk of injury. She was convicted of an s.20 offence but the Court of Appeal
quashed it and substituted it for an s.47 offence. The fact that she intended to throw beer over the
woman meant she had the intention to apply unlawful force and this was sufficient for the mens rea
of an s.47 offence.
Looking back at Lord Lane’s statement 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” this would seem logical. If the victim
consents to the act then surely the defendant should not be guilty as would be the case for an
assault or battery. However, unlike an assault or battery, an s.47 offence of assault occasioning
actual bodily harm means that the victim sustains some form of injury as a result of the defendant’s
conduct. It may be argued that even if the victim does consent to the act which results in an injury
the defendant should not be liable; however, do we really want to allow people to hurt others for no
reason. Dr. Jepson argues that “Consent should never be a valid defence when it comes to intent to
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commit serious offences against the person”, again this argument may not be applicable in the sense
that it is in relation to “serious offences” and although assault occasioning actual bodily harm is
more serious than assault or battery, it is not really a serious offences in comparison to other nonfatal offences against the person. However, the principles of Dr. Jepson’s argument seem right;
surely the law should not encourage people to rely on the defence of consent to injure another
person. In the case of Attorney-General’s Reference (No 6 of 1981) (1980) two men agreed to fight
in the street to settle their differences following a quarrel, the Court of Appeal held that consent
could not be a defence to such an action as it was not in the public interest. Lord Lane in this case
stated that, “It is not in the public interest that people should try to cause, or should cause, each
other bodily harm for no good reason. Minor struggles are another matter. So, in our judgement, it is
immaterial whether the act occurs in private or 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.” This
would therefore suggest that Lord Lane is of the opinion that where harm is caused or intended
consent cannot be a defence as it is not in the public interest that they do. Thus it seems clear that
consent is not a defence to s.47 offences and therefore consent is not always a defence to an
assault. Thus this decision and Lord Lane’s statement would seem reasonable, logical and justifiable.
Malicious Wounding/Inflicting Grievous Bodily Harm
Malicious wounding/inflicting grievous bodily harm is an offence under s.20 of the Offences Against
the Person Act 1861.This is defined as “Whosever shall unlawfully and maliciously wound or inflict
any grievous bodily harm upon any other person, either with or without a weapon or instrument,
shall be guilty of an offence and shall be liable…to imprisonment for not more than five years.” The
prosecution therefore have to prove that the defendant wounded or inflicted grievous bodily harm
and that he did this intending some injury (although not necessarily serious injury) or was reckless as
to whether any injury was inflicted.
Following the case of JCC v Eisenhower (1983), it was held that a wound means a cut or break in the
continuity of the whole skin. In this case the victim was hit in the eye by a shotgun pellet. This did
not penetrate his eye but it did cause severe bleeding under the surface. As there was no cut, it was
held that it was not a wound. Even a broken bone is not considered a wound unless the skin is also
broken as seen in the case of Wood (1830) where the victim’s collar bone was broken but as the skin
was intact it was held that there was no wound.
With regards to grievous bodily harm, it was held in DPP v Smith (1961) that grievous bodily harm
meant ‘really serious harm’ but this does not have to be life threatening. In the case of Saunders
(1985) it was held that a jury could be directed that grievous bodily harm was ‘serious harm’.
Following the case of Burstow (1997) it was decided that ‘inflict’ does not require a technical assault
or a battery. In this case the defendant harassed the victim, a woman whom he had a brief
relationship with three years earlier, for 8 months. He had sent her hate mail, stalked her and had
made silent and abusive phone calls to her. This caused the victim to suffer from severe depression.
The defendant’s conviction under s.20 of the OAPA 1861 was upheld by the House of Lords.
The mens rea for a s.20 offence it states that the defendant has to be malicious, this does not
require any ill will towards the victim as per Cunningham (1957). It means that the defendant must
either have an intention to do the particular kind of harm that was done or was reckless as to
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whether the harm would occur. In Cunningham (1957), the defendant tore a gas meter from the wall
of an empty house in order to steal the money in it. This resulted in gas seeping into the next house
where a woman was affected by it. The defendant was found not guilty as he had not realised the
risk of gas escaping into the next house. He had not been subjectively reckless about causing harm
nor had he intended to cause the harm. This was then confirmed by the House of Lords in the case
of Parmenter (1991).
Hypothetically, if a situation arose where a defendant punched the victim in the arm and the
defendant’s ring caused a cut to the victim who bled, thus constituting a wound, he would be guilty
under s.20 as he intended to assault the victim and did so. Thus both the actus reus and mens rea
are fulfilled. However had the victim asked to be punched, for whatever reason, then should the
defendant be guilty? Technically he has only followed the wishes of the victim, surely he should be
found not guilty then. Lord Lane’s statement states 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.” In the scenario
mentioned, the assault is not done contrary to the will of the victim and was done with their
consent, thus according to this he should not be guilty. However, in his statement, Lord Lane refers
to assaults and his omission of any other more serious offence that would result in a greater injury,
such as an s.20 offence, suggests that he is of the view that consent should not be a defence to
crimes more serious than assault. In Attorney-General’s Reference (No 6 of 1980) (1981), Lord Lane
also stated that “It is not in the public interest that people should try to cause, or should cause, each
other bodily harm for no good reason.” Hitting someone or deliberately trying to wound or inflict
harm on them is not in the public’s interest nor is it a good reason to cause someone harm because
they ask you to hit them. This would be in line with Dr. Jepson’s argument that, “Consent should
never be a valid defence when it comes to intent to commit serious offences against the person.”
This I believe is a logical, justifiable and rational approach to the defence of consent where the
offence is one that results in the infliction of grievous/serious bodily harm. Surely we do not want
the law to allow defendant’s to escape criminal liability for the infliction of pain on others.
The belief held by Lord Lane and Dr. Jepson has been supported by the House of Lords in the case of
Brown (1993). In this case a group of five consenting adult sadomasochists were convicted of
offences of assault occasioning actual bodily harm and malicious wounding. They had carried out
acts such as applying stinging nettles to the genital area and inserting map pins or fish hooks into the
penises of each other. All the victims had consented to the acts and none had needed medical
attention. Their convictions were upheld by the House of Lords. The Law Lords stated that this
decision was a matter of public policy and Lord Templeman, in his judgement stated that: “The
question whether the defence of consent should be extended to the consequences of
sadomasochistic encounters can only be decided by consideration of policy and public
interest...Society is entitled and bound to protect itself against a cult of violence.” Both the House of
Lords and the European Court of Human Rights were in agreement that consent should not be a
defence to serious bodily harm; this is also in agreement with Dr. Jepson’s argument. Therefore
consent is not a defence to serious offense against the person and should clearly not be a defence
against serious offences against the person. Additionally, on the basis of precedent, this is the law
that the courts and of course the people of this country must abide by. However, following the case
of Slingsby (1995) and R v Wilson (1997), it would appear that despite the ruling in Brown and the
overall belief that consent cannot be a defence to offences against the person that result in serious
harm, there are instances in which the defence of consent can be used even where the injury
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sustained by the victim was serious. In Slingsby (1995) the defendant was charged with involuntary
manslaughter by an unlawful act. The defendant and the victim had taken part in consensual
‘vigorous’ sexual activity. During this, the defendant’s signet ring caused small cuts to the victim and
this led to blood poisoning which resulted in the death of the victim. The victim’s consent meant
that there was no battery or any other form of assault and as such the defendant was found not
guilty of manslaughter as there was no unlawful act. This would seem like the wrong decision to
make based on the case of Brown (1993), the statement made by Lord Lane and the argument put
forward by Dr. Jepson. However, it may also be argued that this decision was justifiable as in this
case it would seem that the injury was unintentional and was unforeseen, as such the defendant had
no mens rea, surely he should not be guilty of the offence. In the case of R v Wilson the defendant
branded his initials on his wife’s buttocks with a hot knife at her request and the Court of Appeal
held that this was not an unlawful act despite the fact that the wife needed to seek medical
attention. The Court of Appeal held that it was not in the public’s interest that such consensual
behaviour should be criminalised and this situation was one of ‘personal adornment’ like having a
tattoo. Surely on the basis of Brown, Lord Lane’s statement and Dr. Jepson’s argument the decision
in Wilson would seem illogical and arguably wrong. Surely this is act is somewhat sadomasochistic
and would clearly result in some farm of harm or injury being inflicted on the victim and the
defendant would have realised that, regardless of consent surely the defendant’s actions were not
justifiable. However, his actions were held by the courts to be lawful and he was acquitted. As can
be seen by the cases of Slingsby and Wilson, it seems apparent that although there is a general belief
that consent is not a defence to serious injuries, there are some circumstances in which consent may
be valid even if the injury sustained by the victim is serious.
Wounding or Causing Grievous Bodily Harm with Intent
Wounding or causing grievous bodily harm with intent is an offence under s.18 of the Offences
Against the Person Act 1861. This section states that: “Whosever shall unlawfully and maliciously by
any means whatsoever wound or cause any grievous bodily harm to any person, with intent to do
some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension
or detainer of any person, shall be guilty of...an offence.” The maximum sentence given for a s.18
offence, the most serious offence, is a maximum life sentence. The actus reus of a s.18 offence
requires that the defendant wounded or caused grievous bodily harm to the defendant. The
meaning of wound and grievous bodily harm are the same as they are for the s.20 offence of
maliciously wounding or inflicting grievous bodily harm. With regards to whether the defendant’s
actions caused the harm, the defendant’s act must be a substantial cause of the wound or grievous
bodily harm. The mens rea of a s.18 offence requires that the defendant intended to do some
grievous bodily harm or he intended to resist or prevent the lawful apprehension or detainer of any
person. Intention has to be proven, recklessness is not sufficient.
A s.18 offence is the most serious offence out of all the ones mention under the Offences Against
the Person Act 1861. Lord Lane stated 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.” Dr. Jepson argues that: “Consent
should never be a valid defence when it comes to intent to commit serious offences against the
person.” I believe that in relation to such a serious offence like s.18 of the OAPA (1861), consent
should not be a defence. S.18 is a specific intent offence and requires a serious injury like an injury
resulting in permanent disability opposed to bruise. Therefore, I believe that on the principles of
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public policy and the judgements given in cases such as Attorney-General’s Reference (No 6 of 1980)
(1981) and Brown (1993) that the argument put forward by Dr. Jepson in unequivocally correct and
justifiable. The law should not allow consent to specific intent crimes this would result in injustice
occurring towards victims and would not allow for public protection, it would give defendant’s a
feeble excuse to harm others to a serious degree and then not be liable. The line for where consent
should not be allowed should certainly be drawn to not allow s.18 offences to be defended by the
defence of consent.
Exceptions Where Consent May Be A Defence
In the Attorney-General’s Reference (No 6 of 1980) (1981) case Lord Lane listed some exceptions
where the defence of consent may be allowed, this was: “properly conducted games and sports,
lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc.” The
inclusion of “etc” showed that the courts accepted that there may be other situations or
circumstances in which the defence of consent may be applicable. I will now look at some of the
exceptions listed as well as others that have been recognised by the courts.
Properly Conducted Games and Sports
For sports there is implied consent to certain form of contact within the sports such as in rugby and
football a tackle, in martial arts the punching/kicking of an opponent. This is so even if actual bodily
harm or serious bodily harm occurs due to the fact that the contact was acceptable in the rules of
the game and that the injury sustained by the victim was an unfortunate but not intended result.
However, the contact must be that which is allowed within the rules of the sport, excessive force can
be an offence and therefore the person who used force may be criminally liable. This would also be
the case where a person while playing/participating in a contact sport deliberately and intentionally
sets out to inflict harm on another. This would seem like a logical and rational approach to take.
Understandably some sports require a degree of contact and providing that the contact made was in
the rules of the game, which generally regulate the contact to be safe, then any injury sustained by a
person in such circumstances should not make a person liable for them. With regards to properly
conducted sports and games, the law seems to recognise, appreciate and accept that injury may and
can occur and even the players of sports would also recognise this risk. As such Lord Lane’s
statement, “It is an essential element of an assault that the act is done contrary to the will and
without the consent of the victim” would seem applicable as players of contact sports recognise and
consent to the possibility of harm/injury being sustained during the course of the sport and as such a
person cannot be guilty of, for example, assaulting them providing the action/force was within the
rules of the game. The law also reflects Dr. Jepson’s view that, “Consent should never be a valid
defence when it comes to intent to commit serious offences against the person.” Where intent to
commit the serious offence against the person is present, then that person should be liable and that
the defence of consent should not be available to them.
Horseplay
Horseplay has been accepted as a situation in which the defence of consent may be available as seen
in the cases of Jones (1986) and Aitken (1992). In Jones, two schoolboys aged 14 and 15 were tossed
into the air by older youths. One victim suffered a broken arm and the other a ruptured spleen. The
defendant’s claimed they believed that the two victims consented to the activity. The Court of
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Appeal quashed their convictions for offences under s.20 of the OAPA 1861 because the judge had
not allowed the issue of mistaken belief in consent to go to the jury. The court held that a genuine
mistaken belief in consent to ‘”rough and undisciplined horseplay” could be a defence, even if that
belief was unreasonable. In Aitken, RAF officers poured white spirit over a colleague who was
wearing a fire-resistant flying suit, but who was sleep and drunk at the time that this was done. He
suffered 35% burns. Their convictions under s.20 of were quashed as the mistaken belief in the
victim’s consent should have been left to the jury. Lord Lane stated 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.” Surely
where there is a mistaken belief in consent to a serious injury there is no consent. The defence of
consent arguably should only be applicable where the defendant clearly and expressly gives consent
to the defendant. A mistaken belief seems like a broad category that some may argue in order to
escape liability where they are potentially guilty. It seems ridiculous to allow someone to be able to
plead a mistaken belief in consent to a serious injury they have inflicted on another especially where
the belief is unreasonable. If the victim has not stated/given clear consent then surely any actions
taken by the defendant where he assumes consent are still unlawful. In relation to this area of law I
believe Dr. Jepson’s argument that “Consent should never be a valid defence when it comes to
intent to commit serious offences against the person”, is appropriate for such situations where there
is an unreasonable mistaken belief in consent. However, I believe that where a mistaken belief in
consent is reasonable then consent should be available, but not where the belief is unreasonable.
Medical Exceptions
A person can consent to “reasonable surgical interference”, i.e. medical procedures carried out by
medical professionals. Where surgery is necessary in order to save or improve a patient’s life then
consent to the operation is a defence to any charge of assault. Those who are adults with the mental
capacity to make decisions for themselves are allowed to refuse medical treatment if they wish to. If
they do so then any medical treatment carried out on them would be unlawful. Where a patient is
unable to give consent because they are mentally incapable of doing so then permission would have
to be sought from their parent/carer/guardian. If a patient is unconscious, then consent would be
obtained from relatives if possible. Where it is not possible and treatment is immediately necessary
then an operation can be performed without consent.
This also applies to tattooists who must, as a legal requirement, register with their local authority, if
they are they are licensed to undertake minor cosmetic operations where requested and consented
to, then they cannot be liable for an assault or other offence where they have done their job
properly.
This would appear to be a logical, acceptable and justifiable decision. It would be ridiculous to make
doctors liable for an offence against the person for doing their job and providing medical treatment
to a person in order to save their life. The fact that consent is obtained to legalise an operation
prevents a doctor from liability is a sensible decision. The same applies to tattooists who also carry
out their job by giving people who request tattoos, tattoos.
Sexual Activity
Sexual activity is also a situation where consent may be a defence due to the fact that
contact is inevitable and therefore there could be some form of assault or battery sustained.
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However, where the sexual activity is non-consensual, there can be an offence. It has been
accepted that when someone consents to sexual activity they also consent to the risks
associated with is such as getting pregnant and even getting diseases such as HIV. This was
seen in the old case of Clarence (1888), where a wife contracted a venereal disease from her
husband and was unaware that he had one. As a result of this, when they had sexual
intercourse she became infected however it was held that there was no assault as she had
consented to having sex. However, following the case of Dica (2004) what is known as
biological GBH has been established and has effectively cast doubts over the decision made
in Clarence. In Dica (2004), the defendant was HIV positive and was aware of that. He had
unprotected sex with two women who then also became infected. They claimed that they
did not know he was HIV positive and that if they had known they would not have
consented to unprotected sex. The defendant was charged with an offence under s.20 of
the Offences Against the Person Act 1861. At his trial, the judge did not allow the issue of
consent to go to the jury, so the Court of Appeal quashed the conviction and ordered a retrial, however the defendant was still convicted. Thus, from this case it would seem clear
that consent must be informed, in Dica, the victim’s had not been informed and therefore
their consent was not genuine. This case would seem like a fair and justifiable decision as in
the case the defendant knew he was HIV positive and knew that having unprotected sex
with others would result in the disease being transmitted, the fact that he still proceeded to
have sex was reckless. It is as Lord Lane said in Attorney-General’s Reference (No 6 of 1980)
(1981) that “It is not in the public interest that people should try to cause, or should cause
each other bodily harm for no good reason.” Lord Lane’s statement 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” seems to agree with the decision in Dica as well as the victims consented to sex
however they had not consented to getting HIV, had they been aware of the real possibility
of it because the defendant was HIV positive, they would not have agreed to have
unprotected sex with him. Dr. Jepson’s argument that “Consent should never be a valid
defence when it comes to intent to commit serious offences against the person” also seems
to be in line with this decision. HIV causes serious bodily harm that results in death and in
this case the defendant recklessly passed the disease onto others, he should not be allowed
to rely on the defence of consent as he failed to inform the victims that he was HIV positive,
thus when they consented it was not informed.
Conclusion
Both Lord Lane’s statement 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 Dr. Jepson’s argument that “Consent should
never be a valid defence when it comes to intent to commit serious offences against the person” are
both rational, logical, justifiable and reasonable statements. Lord Lane’s statement recognises that
in certain situations an assault or battery may be consented to depending on the circumstances
while recognising that there are other situations in which it is not. As we have seen through this
essay this approach seems to be correct. Where the offence committed is of a more serious degree
and results in the victim sustaining some form of harm, whether it may be physical or psychological,
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Dr. Jepson’s argument, although seeming harsh, would be a sensible approach to take, particularly
where someone intends to do harm to another. This is because as stated in Attorney-General’s
Reference (No 6 of 1980) (1981) “It is not in the public interest that people should try to cause, each
other bodily harm for no good reason…it is immaterial whether the act occurs in private or public ; it
is an assault if actual bodily harm is intended and/or caused.” Consent as a defence is needed for
certain situations where contact is expected, necessary or required, whether it be in the form of a
sport or a surgical treatment and the law recognises that this is the case. However where contact is
excessive, unreasonable, dangerous and would clearly cause harm and it is intended, there should
not be a defence of consent available to such situations.