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
Where the defence is not allowed
GBH with intent S18 OAPA 1861
Malicious Wounding S20 OAPA 1861
ABH S47 OAPA 1861 – though see exceptions
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. Read the article summarising the case.
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’
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.
Task: Watch the video clip and decide whether the D can use the defence of consent, exaplianing your answer:T
Medical procedures, dentistry, piercing, tattooing and blood tests
Wilson (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.
Read about a recent case and watch a video:
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.