Lord Lane states ..."It is an essential element of an assault that the act is done contrary to the will and without the consent of the victim." Dr Jepson argues that ..."Consent should never be a valid defence when it comes to intent to commit serious offences against the person." Critically analyse these views.
Written by Edward Ackers (Nov 2007)
The defence of consent can be a defence to all non-fatal offences against the person, all sexual offences and potentially to constructive manslaughter. Lord Lane’s statement relates to the non-fatal offence of assault and Dr Jepson’s statement in response related to serious offences. This essay will consider the defence of consent to non-fatal offences against the person. There are four main types of non-fatal offences against the person, these include: (1) assault/battery, (2) assault occasioning actual bodily harm (ABH), (3) assault occasioning (or inflicting) grievous bodily harm contrary to s 20 OAPA 1861 and (4) causing grievous bodily harm with intent to do so contrary to s18 OAPA 1861. This essay will take each type of offence and analyse the argument put forward both by Lord Lane and Dr Jepson, it will then discuss excluded activities and potential reform in the law.
The lack of clarity in the law is the cause of this controversial argument and by analysing the views in applying them to the four main types of non-fatal offences I hope to be able to make an informed conclusion.
There are two main methods of committing the ‘common assault’ the first is classed as assault (also known as a technical assault or psychic assault) and the second as battery. These are both common-law offences and have a slight difference.
An example of the non-fatal offence of assault can simply be silent phone calls that cause apprehension of immediate force or violence (confirmed in the case of Ireland (1997)). The actus reus must contain two elements; it must be ‘an act’, ‘which causes the victim to apprehend the infliction of immediate, unlawful, force.’ An assault requires some act or words, therefore an omission is not sufficient to be classed as an assault. Words said can be verbal or non-verbal (confirmed in the case of Constanza (1997)) providing that the act or words cause the victim to apprehend that immediate force or violence is going to be used against themselves. An example of a situation where it is impossible for the defendant to use immediate force could be where the defendant is a passenger on a boat and shouts threats to a victim on the shore a long distance away. Fear of an unwanted touching is sufficient, it need not be serious. An example would be throwing a stone at a victim, which just misses. In addition, the threat must be of a force that is unlawful.
The non-fatal offence of battery varies from the offence of an assault. The actus reus for battery is the application of unlawful force to another person, it could simply mean preventing someone from leaving by holding their arm which was illustrated in the case of Collins v Wilcock (1984). Another situation could be just touching/rubbing someone’s clothing as in Thomas (1985) it was said (obiter) that ‘there could be no dispute that if you touch a person’s clothes while he is wearing them that is equivalent to touching him’. A battery can be committed through an indirect act illustrated in the case of DDP v K (1990), which involved a boy not intending to hurt anyone with the possession of acid, but without knowing so it harmed another. A continuing act can be illustrated in the case of Fagan v Metropolitan Police Commander (1968) which involved a defendant who firstly didn’t realise he had parked on a police officer’s foot. After being notified by the police officer he did not move of his/her foot for a considerable amount of time. The actus reus for the battery was still continuing and when intention collided then the offence of battery can be given.
If the defendant is under a duty to act he can be criminally liable for an omission for example in a relationship or a contract. An illustration of this is in the case of DPP V Santana-Bermudez (2003) were a policewoman asked the defendant if he had any sharp objects on him. He told her he didn’t have any objects or the sort however, on the search a needle in his pocket injured her.
Intention or recklessness is sufficient for both assault and battery. For an assault, the defendant must realise there is a risk that his acts/words could cause another to fear unlawful personal violence. For a battery the defendant must realise there is a risk that his act (or omission) could cause unlawful force to be applied to another.
In the instance for this type of crime (assault/battery) I believe that Lord Lane’s statement (‘It is an essential element of an assault that the act is done contrary to the will and without the consent of the victim’) is applicable and that there is logic and reasoning. If the defendant has consented to an assault/battery and there is no mental or physical harm inflicted it means there was no apprehension of force by the victim as they actually invited to be assaulted. Therefore, I believe it would be a waste of precious funds of the judicial system to punish a defendant in these circumstances and Lord Lane’s view is logical in relation to this offence.
(2) Assault occasioning actual bodily harm (ABH)
An assault occasioning actual bodily harm refers to the lowest level of injury under s47 of the Offences Against the Person Act 1861. Due to it being regarded as a triable either way offence, the maximum imprisonment given is five years. As a result of Parliament omitting to define the offence, case law is the only guide. Actual bodily harm was defined in Donavan (1934) ‘any hurt or injury’ that interfered with the ‘health or comfort’ of the victim and that it need not be permanent but it has to be ‘more than merely transient or trifling’. ABH was similarly defined in Miller (1954) that it is ‘any hurt or injury calculated to interfere with the health or comfort of the victim.’ An example could be loss of consciousness (R(T) v DPP (2003)). In Chan-Fook (1994) the Court of Appeal stated that ‘actual’ indicates that the injury should not be so trivial as to be wholly insignificant. The word ‘harm’ simply means injury and ‘bodily’ means all parts of the body, including his organs, his nervous system and his brain.
The actus reus is simply an assault causing actual bodily harm. An illustration is the case of DPP V K (1990) outlined previously.
The mens rea for this offence was finally sorted from a state of confusion in the case of Savage and Parmenter (1992). The House of Lords stated that the mens rea is the same as it is for common assault and battery. After some mistakes in cases such as Spratt (1991) and Savage, the House of Lords decided that the law was correctly decided in Roberts (1971). This case involved a victim who jumped out of a car travelling between 20 and 40mph, after the driver, who was giving her a lift to a party, had told her to undress and had grabbed her coat. He claimed earlier that he had beaten up other girls who had refused his advances. The Court of Appeal upheld his conviction for actual bodily harm because although he had not directly inflicted the injuries, he was responsible for them.
Therefore, if actual bodily harm results as a consequence of either putting the person in fear of a battery intentionally or recklessly, or intentionally or recklessly touching the victim unlawfully, then the greater crime under s47 has been committed. There is no requirement to prove that the defendant intended to cause ABH itself or had been reckless about whether this would happen. In addition, the recklessness if alleged must be subjectively proved (Cunningham (1957), Venna (1976)).
Lord Lane’s statement in relation to this offence is not logical, and Dr Jepson’s argument seems rational. Lord Lane’s statement does not take into account individual differences. For example, if a defendant slapped one victim and they did not react however, the defendant slaps another victim applying the same amount of force and causes a bruise. The bruise is the trigger for the actus reus. One assault is thought of as acceptable and the bruised assault is not. However, Lord Lane later states that ‘it is not in the public interest that people should try to cause or should cause each other actual bodily harm’. It is apparent that Lord Lane believes that consent is not always a defence to actual bodily harm, which is rational.
(3) Assault occasioning (or inflicting) grievous bodily harm contrary to s20 OAPA 1861
Section 20 of the Offences Against the Person Act 1861 states that ‘whosoever shall unlawfully and maliciously or inflict any grievous bodily harm upon any person, wither with or without any weapon or instrument shall be guilty of an offence’. Disturbingly the maximum punishment for this offence is equal to inflicting actual bodily harm, five years imprisonment. From the statement in section 20 it can be seen that the offence has two aspects, the malicious wounding of another or the malicious infliction of grievous bodily harm. From this statement and the case of JJC (a minor) v Eisenhower (1984) it was decided that there must be ‘a break in the continuity of the whole skin’. The meaning of ‘skin’ can also include the skin of an internal cavity where it is continuous with the outer skin. In addition, if there is proof of a wounding, the actual injury need not be severe; any breaking of the skin will suffice.
In the case of DPP v Smith (1961), the House of Lords held that the words ‘grievous bodily harm’ simply mean really serious harm.
The actus reus of s20 consists of an unlawful wounding or the unlawful infliction of grievous bodily harm.
The mens rea of s20 is that the wounding or infliction of grievous bodily harm must be done ‘maliciously’. The word now means intending to wound or inflict some harm on the victim or being reckless about this (Cunningham-style recklessness is required).
Lord Lane’s later ratio statement ‘it is not in the public interest that people should try to cause or should cause each other actual bodily harm’ clearly pronounces that public policy does not permit an assault that results in a bruise (ABH). For example, if a victim consented to an assault that resulted in a cut and/or a broken bone as a result of the defendant’s actions it is obviously of a higher severity to that of an assault that results in a bruise. Therefore, it is without saying that Lord Lane logically would not want consent to be a defence to such circumstances and this type of offence.
The sadomasochistic case of Brown and others (1993) involved a number of homosexual men exploring sadomasochistic activities. The court in this instance logically rejected the argument of consenting adults because of the violent nature of the act of nailing a scrotum to a desk. Brown and others appealed to the House of Lords, and subsequently the European Court of Human Rights, thankfully both courts rejected the view that the defence of consent would be sufficient for cases involving serious bodily harm.
Although, the courts decided rationally in Brown and others (1993) there are cases that go against Dr Jepson’s viewpoint such as R v Wilson (1997). This case involved a man who burns his initials into his wife’s buttocks. The Court of Appeal distinguished the recent previous case of Brown on the grounds that this was ‘a desirable personal adornment’ and therefore, granted and accepted that the defence of consent be allowed under s20.
The law on consent as a defence for this type of offence is ever changing with new cases taking opposite views. Therefore, the courts agree with Lord Lane that there are circumstances where the defence of consent should be allowed against assault occasioning (or inflicting) grievous bodily harm, which I find absurd.
(4) Causing grievous bodily harm with intent to do so contrary to s18 OAPA 1861
S18 of the Offences Against the Person Act 1861 was amended by the Criminal Law Act 1967 which states that: ‘Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person…with intent to do some grievous bodily harm…or with the intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of an offence.’
The actus reus of s18 is committed when the accused unlawfully and maliciously wounds another or causes him grievous bodily harm by any means whatsoever.
Under s18 the mens rea is that the wounding or grievous bodily harm must be done maliciously (just like for s20) but also with a further intention either to cause grievous bodily harm or with intention to resist or prevent a lawful arrest or detention.
Although there are many similarities between the offence of assault occasioning (or inflicting) grievous bodily harm contrary to s20 OAPA 1861 and this offence there are a few important differences. The maximum sentence for s18 offence is life imprisonment unlike the five years given for assault occasioning (or inflicting) grievous bodily harm contrary to s20 OAPA 1861. Section 18 offence cannot be committed recklessly; there must be an intention to cause grievous bodily harm. An intention to cause less harm than grievous bodily harm will not suffice. The section 18 offence is committed when the accused ‘causes’ grievous bodily harm.
The maximum imprisonment of life for this offence is proportionate to the severity of the offence.
In all the cases that have been discussed until this point that allow the ludicrous defence of consent have been of a lower severity and there has been no previous case law on this type of offence that allows consent. I believe along with the courts that Lord Lane’s statement over the defence of consent at this level of severity is 100% incorrect. If a defence was created that is often extremely difficult to prove, which is given to offences causing grievous bodily harm with intent to do so, then it is only one step away from giving the defence the murder. This level of severe offences should not be adjusted from case law, and I feel the law as it stands is correct.
Exceptions
In the case of Attorney – General’s Reference (No. 6 of 1980) (1981) Lord Lane also said that “Nothing which we have said is intended to cast doubt upon 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 correction, or as needed in the public interest, in the other cases.”
This essay will now discuss the exceptions that Lord Lane points out that consent can be considered as a defence.
Properly conducted games and sports
I believe to an extent that consent should be allowed as a defence to offences committed in properly conducted games and sports. In the properly conducted game of rugby, a tackle might be classed as an assault, which was dealt with in (1). It is logical that where consent is given to participate in a game that is undoubtedly going to involve tackling, it can be defence to the offence. Assault occasioning actual bodily harm for example a bruise, is also an offence that rationally will have the defence of consent, as is part of the game. The result (the bruise) is not intended but merely is a result of such a tackle, which lies within the rules of the consented game of rugby. However, if the player sets out to do serious harm to a victim (e.g. breaking a player’s neck) and the intention is malicious then consent should certainly not be available as a defence. In the case of Cey (1989) the court provided a list of criteria which could be considered in order to determine the extent of implied consent within a sport, including: the nature of the game played, the nature of the particular acts and their circumstances, the degree of force employed, risk of injury and state of mind of the defendant. The view of Dr Jepson in this context could cause numerous problems. If implied consent was not allowed a defence to assaults, then it would be difficult to distinguish in a contact game where offences were committed outside of the rules of the game. Therefore, I believe that Lord Lane’s statement applies rationally to contact sport although, the higher the severity of the offence committed in a sport, consent as defence should certainly not be sufficient.
Horseplay
This exception has been open to much criticism although, the courts have generally been prepared to accept consent as a defence. This can seen in the case of Jones (1986), which involved two young schoolboys who were injured after being tossed in the air by the defendants. The Court of Appeal quashed the convictions for GBH as the boys’ consent to such ‘rough and undisciplined play’ could have provided a defence. The case of Aitken and Others (1992) involved practical jokes by RAF officers that were potentially dangerous. The defendant set fire to the victim’s supposedly fire resistant suit but the joke backfired and the victim received severe burns. The Court of Appeal in this case held that it was a misdirection to state that such an activity could never be lawful and the convictions were set aside. With this area I believe that Dr Jepson’s statement is too harsh, and the courts and Lord Lane have a strong argument that is truly rational in that the defence should be allowed for horseplay. However, the scope of the defence of consent for horseplay should be limited in agreement with Dr Jepson’s view. I believe that the courts view in Aitken was too weak and that it was grievous bodily harm that was committed which is of an extreme severity. Therefore, my view is that both Dr Jepson’s view and Lord Lane’s view has advantages although, I would personally meet both views half way to establish a rational judgement.
Medical exceptions
A person may consent to the infliction of bodily harm for good medical reasons, even where the risk is substantial, such as an operation with only a small chance of success. This exception is quite different from the others due to the fact that intention to cause the substantial inference is in good heart and the defendant is a professional with no malicious intention. If a defendant without the necessary qualifications conducted the operation, which was illustrated in the case of Tabassum (2000), the Courts would not allow consent as a defence. With the necessary qualifications it is not likely that the defendant will fall into one of the four categories of offences discussed previously. Likewise, with tattooists, they have to be certified and to register with the local authority and if they have registered, they too should be considered as licensed to undertake minor cosmetic operations where valid consent is given.
Sexual activity
For offences conducted within the boundaries of sexual activity, consent is generally accepted as a defence. This is because of the nature of sexual activity, which is always of contact nature, therefore the participants are implicitly consenting to assault/battery. This consequently means that the law hardly ever gets intervened in sexual activity unless the sexual activity is without consent. Within the law on sexual activity there is also a sub-topic on biological GBH and sado-masochism.
Biological GBH
In the case of Clarence (1888) the defendant had sex with his wife, without telling her he had a venereal disease, although he was aware of it. It was argued that her consent to intercourse was not valid, as she would not have consented had she been aware that he was suffering from a venereal disease. The case of Dica (1998) was the first successful prosecution for biological GBH. In this case the defendant had unprotected sex with two women whilst being aware that he was HIV positive. Although, 6 years later his appeal was successful. It was decided that the judge was wrong to withdraw the issue of consent from the jury, and a re-trial was ordered. The issue was whether the victims had consented to the risk of any sexually transmitted infections, not whether they were aware of the defendant’s HIV condition and that they had consented to the risk. Therefore, the defendant could use the defence of consent. The decision by the Courts is certainly not in support of Dr Jepson’s view that consent should not be available. Consent is available provided that the victim consented to the risk of sexually transmitted infections, and not merely to intercourse, although it is not necessary for the victim to be aware of the defendant’s condition in order to consent. This logic is open to criticism, why should the victim of the offence have to cross-examine the defendant to ensure he does not have a sexually transmitted disease (STD). Surely, it is rational that if he/she did have an STD they must make sure the other is fully aware of such otherwise it is not fully informed consent.
Sado-masochism
Many people actually seek physical pain for sexual gratification and this is called sado-masochism. A clear illustration of such activities is in the case of Brown and Others (1994) discussed and outlined earlier. The House of Lords felt that the defence of consent should certainly not be given and therefore, on their appeal their convictions under ss47 and 20 OAPA 1861 were upheld. This supports Dr Jepson’s view although, Lord Lane’s view does have a certain degree of rationale. Surely, it is people’s right to privacy and individuals who want to participate in such activities have the right to so. Although, Dr Jepson’s view acts as a deterrent to people and ensures people are not hurt and are protected by the law.
Reform
The Law Commission’s Consultation Paper, Consent in the Criminal Law (1995), recommends that intentionally and recklessly causing ‘serious disabling injury to another person should continue to be criminal, even if the injured person consents to such injury or to the risk of such injury.’ Thus, since the term ‘serious injury’ was proposed by the Law Commission’s Report, Offences Against the Person and General Principles (1993), to replace grievous bodily harm, this would mean that consent would continue to be an unacceptable defence to grievous bodily harm. This would support Dr Jepson’s viewpoint and make sure that defendants would not be able to inflict GBH upon another.
Conclusion
In conclusion, Lord Lane’s statement (‘it is an essential element of an assault that the act is done contrary and without the consent of the victim’) is strong and rational in some aspects and in relation to some offences. In relation to assault/battery I believe that it is applicable and it is logical especially due to the fact that if Dr Jepson’s viewpoint stood as law then it would mean that any activities such as just touching someone’s clothes with their consent, it could result in a possible prosecution. This would waste court time and court funds that could instead be used beneficially in protecting the public. Therefore, the persuasive precedent from his obiter statement can be used with significant authority. However, in relation to offences of a high severity nature it is not rational to apply Lord Lane’s obiter statement. Such a defence would open up and question the defence being used for many defendants who have committed grievous bodily harm with intent to do so contrary to s18 OAPA 1861 which is only one step away from murder. I am in partial agreement with Dr Jepson’s view that: “Consent should never be a valid defence when it comes to actual/serious offences against the person” to some extent because it is possible that a person can consent to actual bodily harm or grievous bodily harm in certain circumstances. Dr Jepson’s view does not thoroughly take into account such exclusions such as medical exceptions and horseplay. I believe that Lord Lane’s statement is justifiable and rational when accompanied by his later statement; however, the scope for the defence of consent should certainly be limited.
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