General Defences - Consent

• usually used as a defence to non-fatal offences against th person
• Cannot EVER be used as a defence to any homicide offence
  • If V asks to be killed, it will result  in a murder conviction (unless D succesfully pleads Loss of Control, or Diminished Responsibility)

Burrell v Harmer (1967)

• D tatooed two minors and was convicted of s47 ABH
• Held: Although boys said they consented, there is no legally recognised consent, as (being minors) they did not understand the nature of the act 
  • Consent has to be real (legally recognised). A person giving their consent doesn't always make it legally valid
    • i.e. a child, or a mentally incapacitated person

Olugboja (1982)

• V appeared to submit to **** by D2 after being ****d by D1. D2 claimed V was consenting
• CA: there is a difference between real consent and simply submitting
• It is for the jury to decide if the consent was real

Tabassum (2000)

• D pretended to be medically qualified. He examined the breasts of a number of women, falsely saying that it was for research purposes
• Conviction of indecent assault upheld. The women were only consenting for medical purposes; they had been deceived to the 'quality' of D's act. This negates consent

Flattery (1877)

• D told V he was performing surgery. He was actually having sexual intercourse with her.
• V's consent was negated by D's lie

Williams (1923)

• D was a singing teacher
• V consented to sexual intercourse, when he told her it was a method of improving her breathing
  • This consent was negated by the fraud

Richardson (1998)

• D was a dentist, suspended by the General Dental Council. Despite being suspended, she continued operating
• Convicted at first instance of s47, due to fraud over her continued entitlement to practise
• Conviction quashed. Her patients consented to the treatment + it was irrelevant that they might not have given their consent if they had known she was suspended

Leach (1969)

• V had consented to be crucified. At his request, D nailed V's hands o a wooden cross w/ large nails
• Held: D couldn't rely on V's consent as a defence. s18 conviction upheld
  • V had suffered serious injury and there was no social benefit to the activity

A-G Ref 1980 (No. 6)

• Consent not available for bare knuckle fighting
• Lord Lane: "it is not in the public interest that people should try to cause each other ABH for no good reason"
• V cannot consent to any injury greater than common assault/battery, unless the activity causing ABH has some social benefit, or if it falls into certain exceptions

Brown and Others (1993) HL

• Ds = group engaging in consensual homosexual sado-masochistic practices causing ABH to participants
• HL found that consent was applicable to common assault/battery, but not to ABH or GBH, unless recognised exceptions applied

Wilson (1996)

• D branded V (his wife) at her request. D convicted at first instance (followed Brown and Others)
• Appeal allowed,
  • It was held that branding fell into the exception of 'tatooing'
  • It was also noted that it was not in the public interet to sanction such consensual activity between husband and wife in the privacy o their matrimonial home

Emmett (1999)

• suffocating with plasitic bag, causing eyeball bleeding + severe burns from lighter fluid over breasts
• D convicted, as injuries went beyond Wilson. Judge compared it to the sado-masochism in Brown

Wilson v Pringle (1987)

'ordinary jostlings' of everyday life are not a battery, due to implied consent

Consent to ABH/GBH can be given in certain situations

• Contact sports
• Surgery
• Tattoing + ear piercing 
• Horseplay

Boxing

• No prosecutions have been brought regarding boxing rules
  • Consensual fights in other circumstanes do not provide a good defence (e.g. A-G's Ref (1980) (No. 2))

Other Contact Sports

• players in contact sports impliedly consent to the risk of injury, if the assault/battery causing the injury occurs withing the rules of the game (including fouls)

Barnes (2004)

• When an injury is caused in sports, prosecutions should be reserved for cases where it is grave enough to be truly criminal

Billinghurst (1978)

• D punched an opposing player during an 'off-the-ball' incident. V suffered a fracured jaw + D was convicted of s20 OAPA

Consent to any recognised surgery is safe. Includes sex-change ops and cosmetic surgery

• consent is valid for tatooing
  • but not for minors (Burrell and Harmer)
• Also applies to branding (at least between husband and wife) (Wilson)

• another exception where consensual acts, even where quite serious injury is caused, may be legally tolerated

Jones and Others (1986)

• Schoolboys threw V 10 feet in the air. V suffered ruptured spleen + broken arm.
• Convictions quashed: consent allowed on basis that there was no intention to cause injury 

Aitken and Others (1992)

• RAF 'initiation' caused severe burns to new RAF officer
• convictions quashed

Morgan (1976)

• HL confirmed that D's belie does not need to be reasonable, only genuine. However, in this instance, the D's story was so outragerous that it was concluded a jury would not have believed them
• Convictions upheld