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 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’ 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 non-fatal 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 Consent makes a battery lawful Can be implied to everyday ‘jostling’ Wilson v Pringle ABH/GBH 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

R v Brown and Others (1993) Case 59 Questions 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.

R v Barnes (2004) Case 60 Questions 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.

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.

Effect A successful plea will result in the defendant’s acquittal. Consent Effect A successful plea will result in the defendant’s acquittal.

Evaluation (1) Irrational distinctions 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.

Evaluation (3) Euthanasia 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.