Consent

Consent is a defence to, in theory at least, all non fatal offences and even homicide. Its meaning has been a matter for the common law to decide and thus the concept of consent may develop differently depending on its context.

The consent of V prevents D incurring liability for what would otherwise be an offence as it negates the unlawfulness of the ‘force’ used. Consent will be raised by D (evidential burden) and the onus of rebutting this to show a lack of consent rests on the prosecution (burden of proof). Where D successfully pleads consent, D is entitled to a full acquittal as it is a complete and general defence. This is therefore Woolmington [1935] compliant.

Allowing this defence recognises that individuals have autonomy to control the physical interactions they experience with other people. It is of course subject to some limitations as it is never a defence to murder (Pretty v UK [2002]) or to the infliction of serious GBH injury (Brown [1993]), UNLESS the injury/death occurs during the commission of an activity that is deemed to fall within a ‘recognised exceptions list’, which includes surgery, contact sports, tattooing etc. This is because the law recognises that these activities have a ‘public benefit’ and thus individuals should be able to consent to such contact, even though the harm caused may be serious.

Legally speaking, this defence retrospectively negates the unlawful element of the contact between D and V. Strictly speaking, however, where this has been proven, it therefore means that there was consent from V all along and no crime had actually been committed from the beginning!

R v Slingsby [1995]

D and V took part in ‘vigorous’ sexual activity. The signet ring D was wearing caused small cuts to V, which led to blood poisoning from which she died. Vs consent meant that there was no battery or any other assault and so D was not guilty of UDA manslaughter as there was no unlawful act to base it upon.

The consent given by V must be true and valid. This is only possible if V understands the nature of the act and knows exactly what they are consenting to. Therefore, V must have the capacity to consent i.e. children and those suffering from a mental illness may not be able to give valid consent (but it might be given on their behalf).                                      Burrell v Harmer [1967]                                                                                           D was convicted of assault occasioning ABH after tattooing two boys aged 12 and 13, the result being that their arms became inflamed and painful. The court held there was no consent as they did not understand the nature of the act. Presumably they understood what a tattoo was, but would not have understood the level of pain involved and the fact that it was permanent etc. (Age of consent is now 18.)                                                    Re: W [1993] (Family law case)                                                                                  W had severe learning difficulties. She could not consent to medical treatment and had very little understanding about sexual matters and childbirth. There was a risk that her epilepsy would worsen during pregnancy although the risk of pregnancy was small. Her mother wanted her to live in the community and to socialise with members of both sexes. Forms of contraception had been rejected as inappropriate for her and so the mother sought a declaration for the lawful sterilisation of her daughter. Held: Although the risk of pregnancy was small, in the light of the medical opinion it was in Ws best interests for sterilisation to be performed and the declaration was granted.

Fraud does not necessarily negate consent. It only does so if it deceives V as to the ‘identity’ of D or the ‘nature and quality’ of the act they are consenting to. There was no offence in the following cases:

Bolduc and Bird [1967] Canadian case D was a doctor and falsely told V that E was a medical student in order to obtain her consent to E’s presence at her vaginal examination. In fact, E was a musician. The Supreme Court of Canada held that there was no assault because the fraud was not as to the “nature and quality” of what was to be done. She was there to have an examination, and knew that someone else would be observing.

R v Richardson [1998]  D was a dentist. In August 1996 the General Dental Council suspended her from practice. D continued to treat patients and was subsequently charged with 6 counts of ABH. She was convicted but the CA quashed this and held that fraud only negated consent if V was deceived as to the identity of the person concerned or the ‘nature and quality’ of the act performed. D was not pretending to be someone else (nor was she technically performing anything other than dental work) and so she was not guilty.

The focus of the indictment in Richardson was ‘identity’.

However, in the following case, the CA distinguished the precedent of R v Richardson [1998] by drawing a distinction between consent as to the ‘nature’ of the contact/touching and consent as to its ‘quality’.

R v Tabassum [2000] CA D was an ICT lecturer and had no medical qualifications. He examined the breasts of three women and had obtained their consent on the pretext that the examinations were part of a survey he was conducting, leading ultimately to the production of a computer software package for doctors to assist in the diagnosis of breast cancer. He did not tell them he was medically trained, but he did tell at least 2 of the women that he worked at Christie’s cancer hospital in Manchester and was a breast cancer specialist. When arrested he denied touching the women’s breasts for sexual gratification but said he had done it in order to show them how to do it for themselves. D also denied pretending to be a doctor.

D was convicted of indecent assault and the CA upheld the convictions. The women had consented to the ‘nature’ of the act (the touching) but were only consenting for medical purposes and thus had been deceived as to the ‘quality’ of Ds acts. The CA approved of the trial judge’s direction: “Consent to a surgical operation or examination is not consent to sexual connection or indecent behaviour.”

Where V ‘submits’ to Ds conduct (i.e. allows it to happen) through fear, this does not mean they have actually consented.

Olugboja [1982] CA

V had already been ***** by D1 and seen her friend ***** by D1. When D2 took her into a room, and told her to remove her trousers, she did so. She was crying and complied out of fear. D2 did not use force or threats in any way, she had merely submitted. D2 claimed this meant she had consented.

CA: There was a difference between real consent and mere submission. It was for the jury to decide if consent was real. Conviction upheld.

Valid consent requires V to be fully informed of what exactly they are consenting to. Where consent is given to sex without knowledge that D is HIV positive, the CA have held that Vs are consenting to the sex but not to the risk of infection.

R v Dica [2004]~D was diagnosed with HIV in 1995. Despite this knowledge, he had unprotected sex with 2 women who had been willing sexual partners, but were unaware that he was HIV positive. V claimed D insisted they have unprotected sex because he had had a vasectomy. Both women became infected. They claimed they did not know he was HIV positive and that if they had, they would not have had unprotected sex.

Originally, Clarence [1888] held that by consenting to sex, V also consents to the risk of any injury or illness incidental to it. However, here, the CA held that this was no longer the case. Vs had not consented to the risk of HIV infection as they were unaware of his condition.“The effect of this judgment...is to remove some of the outdated restrictions against the prosecution of those who, knowing that they are suffering from a serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict GBH on a person from whom the risk is concealed and who is not consenting to it.

Due to a misdirection, a re-trial was ordered and D was convicted of inflicting ‘biological’ GBH.

The ruling in R v Dica [2004] was relied on shortly afterwards:

R v Konzani [2005] D had unprotected sex with 3 women and did not tell them that he was HIV positive and they caught the disease. D was convicted of s.20 GBH. CA: Consent could be implied for certain minor risks, but not to a fatal disease. A person who is HIV positive therefore has a duty to disclose their status, and gain the willing consent of their sexual partner to the risk of HIV transmission. Ds knowledge of having the disease appears to be essential in order to establish ‘subjective recklessness’, the minimum level of MR for (basic intent) non fatal offences. Therefore, if D did not know he was HIV positive, no charge could be brought against D.

Williams [2003] Supreme Court of Canada D and V had unprotected sex despite his knowledge that he was HIV positive. After she contracted the disease, D was prosecuted, but his conviction was quashed because the couple had been having unprotected sex for 6 months prior to D learning of his HIV status. Although D had shown “a shocking level of recklessness and selfishness”, the prosecution could not prove that Ds conduct after he learned of his condition had harmed V. It was doubtful that V was free of HIV on the date D learned of his condition as they had been having unprotected sex for months prior to his knowledge. (D was however convicted of attempted aggravated assault.)

There are situations in which the courts will imply consent to minor touching which would otherwise be battery. These are everyday situations where there are crowds of people and thus impossible not to have some contact. Prosecutions in such scenarios would seem ridiculous.

Wilson v Pringle [1987]

The ordinary ‘jostlings’ of everyday life are not battery. No one can complain about the jostling that is inevitable from being in a supermarket, on the underground, on a busy street etc.

There are situations in which the courts will imply consent to minor touching which would otherwise be battery. These are everyday situations where there are crowds of people and thus impossible not to have some contact. Prosecutions in such scenarios would seem ridiculous.

Wilson v Pringle [1987]

The ordinary ‘jostlings’ of everyday life are not battery. No one can complain about the jostling that is inevitable from being in a supermarket, on the underground, on a busy street etc.

Although we are autonomous being, there are limits to a person’s right to consent to the infliction of harm upon themselves at the hands of another person. Consensual killing will always be classed as murder and generally, the law will not permit V to consent to the infliction of harm above battery. This is because it is though that no ‘good’ can come from the intentional infliction of harm. However, Vs may actually consent to a high risk of injury, or even death, if the purpose of the act is ‘justified’. This will depend on its ‘social utility’. The following case provided a ‘recognised exceptions list’ of activities that have ‘social utility’:

AGs Ref (No 6 of 1980) [1981] Two youths, decided to settle an argument with a bare knuckle fist fight. Lord Lane CJ: “It is not in the public interest that people should try to cause...each other bodily harm for no good reason...This means that most fights will be unlawful regardless of consent.

Nothing we have said is intended to cast doubt on 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 as needed in the public interest, in the other cases.” (Note the use of ‘etc.’ allows the list to be added to in the future.)

In Brown and others [1993] the majority view was that consent was a defence to a charge of common assault/battery but not to s.47 ABH, s.20 GBH or s.18 GBH OAPA 1861, unless a recognised exception applied. These, according to Lord Templeman, related to lawful activities which carried a risk of harm. Despite the higher level of harm that may result, consent is a defence due to the social benefit of the activity. These include, amongst others:

•  Contact sports, including boxing.
•  Surgery.
•  Tattooing.
•  Ear piercing.

In Brown [1993], Ds argued GBH should be always be unlawful but that ABH should be lawful providing there is consent. The majority rejected this, holding that the line should be below ABH, concerned that if the law was drawn too high, it might encourage more serious behaviour, with the risk that even more serious harm might occur. Lord Jauncey said: “An inflicter who is carried away by sexual excitement or by drink or drugs could very easily inflict pain and injury beyond the level to which the receiver had consented.”

Many contact sports involve the risk of injury beyond battery, particularly boxing. However, no prosecutions have ever been brought in respect of boxing matches conducted within the Queensbury Rules. The entertainment value and popularity of the sport is taken to justify Vs consent to D trying to inflict serious injury (often GBH). 

Any fights that are conducted outside of these rules, often called ‘prize fights’ are not covered by this exception and therefore consent does not operate here. Any entertainment value is outweighed by the risk of serious injury.

With other contact sports such as rugby, football or ice hockey for example, a clear distinction must be drawn between:

•  “On the ball” incidents: where players consent to D doing what the rules of the particular sport permit and therefore consent is available.
•  “Off the ball” incidents: in principle these are no different to any other assault, involving as it does the deliberate use of unlawful force. There is no suggestion that players consent (impliedly or otherwise) to this use of force.

R v Billinghurst [1978]~D punched V and fractured his jaw in an “off the ball incident” during a rugby union match. D was charged with s.20 GBH and tried to rely on consent by claiming that on previous occasions, he had been punched and had himself punched opponents on the rugby field.

Trial judge:Rugby is a contact sport involving the use of force and that players are deemed to consent to reasonable force. However, a rugby player does not have an unlimited licence to use force and that “there must obviously be cases which cross the line of that to which a player is deemed to consent.” Jury convicted D after deciding that he had gone beyond what he was being consented to.

Problems arise when the alleged assault occurs during play, (‘on the ball’). Canadian courts have provided a useful list of criteria to help determine the scope of implied consent in sport, including:

•  The nature of the game played – amateur or professional.
•  The nature of the particular acts and their surrounding circumstances.
•  The degree of force employed.
•  The degree of risk of injury.
•  The state of mind of D.

Obviously this involves ‘wounding’, but consent to any recognised surgical procedure is effective, e.g. cosmetic surgery, organ transplant, sex change operations etc.

Society accepts that life may involve a mutual risk of deliberate physical contact and that the criminal law should distance itself. An honest belief that the other consents, even if based on unreasonable grounds, will negative their reckless behaviour in causing injury. (Even though this appears to conflict with the general principle 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.”)

Jones and Others [1986] CA   Two Vs were tossed into the air by classmates. On hitting the ground, one broke his arm and the other ruptured his spleen. Ds claimed they believed Vs were consenting to the activity, despite Vs claiming otherwise. CA: Quashed their s.20 GBH convictions after they found that a genuine mistaken belief in consent to “rough and undisciplined horseplay” could be a defence, even if that belief was unreasonable.

Aitken and Others [1992] Courts-Martial Appeal Court

RAF officers poured white spirit over V who was wearing a fire resistant suit before igniting it. V was drunk at the time, engaged in an initiation ceremony, and suffered serious burns. s.20 OAP Act 1861 was quashed as the mistaken belief in Vs consent should have been left to the jury.

SEXUAL ACTIVITY: The courts accept that an injury accidentally inflicted during the course of sexual activity between consenting adults does not amount to assault, even where one party dies. (Slingsby [1995]).

TATTOOING AND BRANDING:

Consent is a valid defence to tattooing; a view accepted by the majority in Brown [1993]. This was extended to cover branding as well.

R v Wilson [1997] CA D branded his initials (AW) onto his wife’s buttocks, at her request, using a hot blade. She regarded the branding as ‘a desirable personal adornment’ and had apparently originally requested that the branding be on her breasts. V had to seek medical attention for the burns and her injuries were reported to the police by her doctor. D was charged with s.47 ABH.

CA: Conviction quashed on appeal. It was not in the public interest that such consensual behaviour between man and woman be criminalised. This act was no more dangerous than tattooing; it was akin to personal adornment/tattoo and therefore consent was available.

This is regarded as beyond acceptable limits. The law does not tolerate the idea of inflicting injuries for the sexual gratification of either party. Lord Lane CJ in Brown [1993]: “It is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason.”

R v Donovan [1934]

D caned a 17 year old prostitute on the buttocks for the purpose of sexual gratification and caused bruising. A doctor examined her a few days later and concluded that she had had a ‘fairly severe beating’.

Ds conviction was quashed, but only on the basis that the trial judge had failed to direct the jury that the issue of disproving consent was on the Crown.

R v Brown and Others [1993] 5 men belonged to a group of sado-masochistic homosexuals who, over a 10 year period, willingly participated in acts of violence against each other for sexual pleasure. Many of these acts took place in ‘torture chambers’, in private and with the consent of the passive partner. No one needed medical treatment, all “injuries” were transitory and/or trifling, and no complaints had been made to the police. Police discovered activities by accident, by finding videos of the activities and the men were charged with various counts of s.47 ABH and s.20 GBH

HL: Upheld convictions. Majority (3:2) of them concluded that such activities were not conducive to the enhancement of enjoyment of family life or to the welfare of society and so declined to include them in the list of recognised exceptions. The Law Lords clearly made this decision as a matter of public policy. Lord Templeman said:"Society is entitled and bound to protect itself against a cult of violence.”

The majority of Lords justified their position referring to the risk of infection and the possible spread of AIDS. The minority (Lords Mustill and Slynn), meanwhile felt that the activities should not be treated as included within the offences charged. They agreed that consent was ineffective against a GBH charge, but not necessarily ineffective to ABH.

Laskey v UK [1997] ECtHR upheld the judgment of Brown [1993].

It was argued that the imposition of criminal punishment breached Art 8 (1) right to respect for private life. However the court applied Art 8 (2) which allows for justified interference by the State if “necessary in a democratic society...for the protection of health or morals.” Once conduct had gone beyond a potential risk with a sufficient degree of seriousness, it could not possibly amount to a breach of Art 8 (1).

In Wilson [1997], the CA distinguished Brown [1993], but it was followed in Emmett [1999]:

R v Emmett [1999] D and V enjoyed sado masochistic sex. D placed a plastic bag over Vs head and tied it tightly around her neck. Due to lack of oxygen, she nearly lost consciousness, suffered severe bruising and ruptured blood vessels in her eyes. D had also poured lighter fluid over her breast and ignited it. D was convicted of 2 counts of s.47 ABH and appealed, attempting to rely upon Jones and Others [1986], but this was rejected. The sado masochistic activities could not be construed as “rough and undisciplined love-play”.