Defences

1
Defences

• Consent

2
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

3
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?

4
What offences cannot be subjectedto 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)

5
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)

6

• 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

7
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

8

• 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

9
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

10
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

11
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

12
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
  victims 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

13
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

14
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

15
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

16

• 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)

17
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 persons age does not in itself negate
  the defence of consent it is the ability to
  appreciate the nature of the act that is important

18

• 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

19
Overview
Look at the cases of Tabassum. Why was there no
real consent?
20
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

21
Summary When does it apply?
22
Consent Case Questions
23
Case 59 Questions
R v Brown and Others (1993)
?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?
24
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.
25
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.
26
Case 60 Questions
R v Barnes (2004)
?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)?
27
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 players 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 defendants
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.
28
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.
29
Extras
30
Topic 6
Consent
31
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.
32
Consent
Elements

• Consent must be valid and informed.
• If the defendant has obtained the victims
  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).

33
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.

34
Consent
Effect
A successful plea will result in the defendants
acquittal.
35
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.  
36
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.
37
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.
38
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.