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 actual/serious offences against the person." Critically analyse these views.

Written by Paul Gomm (February 2006)

Introduction (The Law on Offences Against the Person - Assault and Battery)
During this introduction I will explain both the basic principles of assault and battery as they apply to the defence of consent around which the question is based.
The law on crimes such as assault can be found under the s.47 Offences Against the Person Act 1861 where the law on the offences of Assault, Battery, Actual Bodily Harm (ABH) and Grievous Bodily Harm (GBH) Sections 20 and 18 (with intent) is present. Assault is defined in the following way;

“Assault will occur when the defendant intentionally or recklessly causes the victim to apprehend immediate and unlawful violence” - Definition under Diana Roe, Criminal Law 3rd Edition.

This definition was affirmed in the case of Ireland 1998 which also altered other aspects of the law on offences against the person. Under the case of Ireland 1998 it was actually held that even a silent telephone call could actually amount to an assault upon the victim. Also in the more recent case of Santana-Bermudez 2003 it was held by the courts that simply words alone could constitute an assault if they cause the victim to apprehend immediate fear of violence. However under the early case of Tuberville v Savage 1669 it was held that even words may prevent an assault. In this case the defendant had been in the court room at the time and had placed his hand upon his sword and said that “if it were not assize time, I would not take such language from you”. Although his original action may have appeared as being a threat (i.e. the action of placing his hand upon the sword) his later words caused the actual threat to disappear. Therefore words are actually able to remove the original threat that was present from the aggressor.
It is also a requirement within the offence of assault that the victim believes that the defendant will inflict violence upon them immediately. There was question over therefore how immediate the required threat was meant to be. However the case of Smith v Chief Superintendent of Woking Police Station 1982 clarified the matter with regard to this area. In the case it was stated that:

“When one is in a state of terror, one is very often unable to analyse precisely what one is frightened of as likely to happen next.”

Therefore under the precedent of this case, it can be seen that the victim does not have to have a rational fear. As long as the victim themselves fears that violence may be inflicted upon them then they have fulfilled the crime of assault and the defendant can be found guilty of assault. The fear does not have to be a rationalised fear. So therefore a defendant could phone someone from Thailand and say I’m outside your door. Even though there is no chance that the victim can have harm inflicted upon them as the defendant is miles away and can therefore do no harm, the victim may actually take an irrational fear, believing that the defendant is actually near them and that violence will be inflicted upon them. Therefore they could be charged. This was later affirmed in the case of DPP v Ramos 2000.
Another offence under the act is that of Battery. Many people believe that the crimes of assault and battery are the same thing however this is not so. Although assault requires the victim to apprehend immediate fear of violence, no violence is actually required to be inflicted upon the victim. As long as they apprehend that immediate violence may occur then the offence has been fulfilled. Battery is different as it actually requires the violence to be inflicted upon the victim. They cannot simply fear that violence may be inflicted, they must actually have force taken against them. The crime of Battery is defined in the following way under Diana Roe, Criminal Law 3rd Edition:

“When D intentionally or recklessly applies unlawful physical force to another person.”

Originally there was dispute over what actually constituted a battery. Surely not all actions are simply unlawful, a simple touching would not constitute a battery. However what would therefore. The case of Collins v Wilcock 1984 clarified the law on when an offence has not actually been committed and which actions would not constitute an offence of battery. In this case Lord Justice Goff stated that:

“most of the physical contacts of ordinary life are not actionable because they are impliedly consented o by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; not can a person who attends a party complain if his hand is seized in friendship or even if his back is (within reason) slapped.”

Therefore we can see from the statement by Lord Justice Goff within the case of Collins v Wilcock 1984 that simple everyday actions within life, such as when we get on a train and jostling and crowding occurs, or when we cram into a lift full of others, that these actions would not constitute us carrying out a battery.
So now that the basic areas of the law on assault and battery have been covered I shall move onto discussing the two comments made by both Lord Lane and by Dr Jepson and also the law relating to the area of the defence of consent. I shall also be analysing whether I agree with the two comments and discuss possible reform relating to this area of the law.

The Defence of Consent
The Defence of Consent is a defence which is applicable to the areas of assault and battery within the Offences Against the Person Act 1861. The comment which Lord Lane made was that “an essential element of assault that the act is done contrary to the will and without the consent of the victim.” Lord Lane laid down this comment in the Attorney Generals Reference (No. 6 of 1980) 1981. Therefore what Lord Lane was implying was that if a person is assaulted they cannot agree for the action to be committed against them. It must be carried out “without there consent and contrary to their will”. If for example, I consent for a person to threaten me, I cannot then turn round and say that they have committed the crime of assault. If however a person was to be threatened in the street causing them to apprehend fear of immediate violence, then they can under the law be found guilty of the crime of assault. So what happens if a person has given a valid consent to the offence which has been committed. Then surely it is not an offence at all as it has been conducted with the “valid consent” and the “will” of the victim. However this is not strictly true and therefore a Defence of Consent has developed which allows the person to place forward a plea that the victim consented to the actions. There are restrictions on this defence and it will not always be held as applicable.
Under the Attorney Generals Reference (No.6 of 1980), 1981 Lord Lane laid down the possible circumstances in which the Defence of Consent may actually suffice. These are:

“for properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, minor harm in sexual activities and horseplay”.

Restrictions have already been placed upon the defence as was seen in the cases of Coney 1882, and in Leach 1969. In the case of Coney 1882 the two defendants had conducted a “prize fight” which used bare fists. This type of fighting was held as being illegal and therefore unlawful. The two parties had actually consented for the fight to go ahead, however the courts within this instance held that it would not be a valid defence as it went against the “public interest” and therefore this type of action would be discouraged. Another interesting case was that of Leach 1969 where the victim had in the case consented to undergo a crucifixion up on Hampstead Heath. The defendants argued the point that hid consent had been given however it was still held as unlawful.
I will now examine these different instances in which the defence may be available and other instances which have since arisen and it is held that the defence is not applicable to them. I will then go on further to discuss Dr Jepson’s.

Properly Conducted Games and Sports
Within Lord Lanes Statement, properly conducted games and sports are allowed as a defence of consent. This is a sensible decision. Often a game such as football, or rugby will involve physical contact and the possibility of actual bodily harm occurring. Surely by deciding to take part within the sporting event you have expressly given your consent for the possibility of this harm occurring and have weighed up the odds of the risk occurring. However where is the limit of what is acceptable within a game of “properly conducted sport”. When has a person simply committed acts which are inside the limit of the game, and when have they gone to far. The courts take the view that fouls which are committed which are classed as “normal fouls” are those which are inside the rules and which are commonly expected within a sports game. However, other fouls, are not considered normal. They may instead go “over-the-top” and be completely unexpected or outside the rules of the game. These actions, the courts may be able to convict upon and the defence of consent would surely not be allowed by the courts. An example would be the case of Footballer Roy Keane, who deliberately (and later admitted to doing so intentionally in the publication of his book) went out onto a pitch and injured rival player Alf Inga Halland, who was later unable to play due to the extent of his injuries. Surely fouls like these are outside of the rules of the game and are considered as completely unexpected and those who carry out the actions should face prosecution. This was backed up in the case of Bradshaw 1878 where the victim was killed as a result of the actions of the defendant within a game of football.
So what happens with boxing? Boxing is a properly conducted sport and game however its intention is to cause harm to the other contender. In some cases such as with regard to Nigel Benn, serious harm has occurred to the other contender (in this case paralysis) and this has resulted in the victim being unable to continue boxing. Although it also ruined Benn’s career to should we prosecute him? The courts view that boxing is a properly conducted sport and that it is therefore lawful. It is considered as being a “manly diversion to give strength, skill and activity, and may fit people for defence, public as well as personal in time of need”. This comment was made in the case of Brown 1994 which reaffirmed the position, that boxing is a lawful activity. The case of Ormerod and Gunn 1995 also makes points regarding the activity of boxing.
Therefore I agree with Lord Lanes views that the defence is available for sports. Dr Jepson’s views would simply cause problems as we would end up with prosecutions occurring all over the football pitch. There would be arrests for any tackle seen as inflicting ABH or GBH and people would be prosecuted even though all players had been aware of the possible risks involved.

Lawful Chastisement and Correction
Lord Lane also makes it clear in his statement that the defence is available where lawful chastisement or correction is present. This means that a person may be able to use reasonable force to restrain and correct a person, such as the police or under the case of Watkins 2001, teachers to restrain pupils under certain circumstances. Correction hence implies punishment (in a reasonable degree) and is only allowed if it is not for the “gratification of passion or rage or if it be immoderate or excessive in its degree or nature”. So if a person was to punish their child, an in doing so does it for their own pleasure, and it goes over the level which would be considered normal for basic punishment then they would be guilty. An example can be seen in the case of Hopley 1980.
I agree with the view of this by Lord Lane as it allows consent for specific areas such as if a person becomes so unruly in a classroom and begins to lash out injuring other people then it is only reasonable that they may be restrained. Another example would be in a nightclub, where tempers may flare due to intoxication and subsequent violence may break out. Surely it is only reasonable that the security guards at a club be able to restrain the people fighting as to ensure that injury does not occur.

Reasonable Surgical Interference
Within the Attorney Generals Reference (No.6 of 1980), 1981 Lord Lane also suggests the need for the defence to apply in cases of surgery. When a person has given their consent for an operation, then (unless the doctor is grossly negligent) they would not be found guilty of crimes such as GBH. Surely this is required so that a doctor cannot be found guilty of offences against the person. Imagine the consequences of not allowing a defence of consent with regard to reasonable surgical interference. No doctors or surgeons would be willing to perform procedures due to fear of repercussions that could occur from the fact that the operation has been conducted. However it would not apply for certain medical procedures such as female circumcision which is illegal and therefore if a procedure was conducted then the doctor would not be able to use the defence of consent. (This is so under the Prohibition of Female Circumcision Act 1985).
Therefore I agree that the defence should be applicable to cases of reasonable surgical interference. The victim will have given their consent and therefore it is not argument that the surgeon has carried out anything illegal/unlawful. An assault cannot simply occur if the victim has given their consent. There are of course further instances where consent can be seen as a defence therefore agreeing with Lord Lanes comments. This is where problems are present with Dr Jepson’s statement as under his view the defence of consent should not be present even though a person has consented to a surgical procedure. Under his view a victim would be able to get a prosecution against a surgeon even though the work carried out was not even negligent. Therefore surely the statement is flawed!
Dangerous Exhibitions and Bravado
The idea of such a criteria is to cover certain actions carried out within professions within the entertainment industry such as the circus and stunt acting where so called “dangerous exhibitions” or “bravado” are likely to take place. An example would be actions such as “knife throwing” and “human cannonball” acts. This would come under the definition of Dangerous exhibitions. The defence of consent would therefore be present for injuries incurred to stunt actors which was suggested within the Canadian Supreme Court under the case of Jobindon 1991. In this case the Canadian Supreme Court held that the defence was present for reasons that the stunt actions so called “dare-devil” actions and stunts are conducted for;

“the good of the people involved, and often for a wider group of people as well”.

Therefore this persuasive precedent under the case of Jobindon would mean that victims who are stunt actors would not be able to prosecute as they had given the appropriate consent for the stunts which they conducted. Bravado would be when a victim has dared a person to hurt them claiming that it would not injure or even effect them for example if a person said that you could hit them with a bat over the head, coerced you into doing so and told you that it would not in any way affect them, then there act of “bravado” means that a defendant would not be prosecuted. Once again I agree with Lord Lanes comment that if a victim has consented to the act then they cannot then claim that a person has committed a crime of assault or battery. If a person has willingly taken part within actions such as “dangerous exhibitions” then why should they then claim they have been assaulted? They were knowingly aware of what would occur however still carried out the crime.

Horseplay
This is also sometimes referred to as “rough and undisciplined horseplay”. The courts are often extremely tolerant when it comes to horseplay conducted by children for a number of reasons which will be discussed in the following case of Jones 1986. In this case the victim and defendants were schoolchildren, who were throwing the victim up and down. The victim at one point was dropped resulting in a ruptured spleen and a broken arm. It was held that the victim had actually consented to the actions taking place and that therefore this was a defence applicable to the defendant. The courts held that there were two reasons why they were required to give a defence and they were that, horseplay is a part of childhood and if made an offence would result in prosecutions for actions conducted by children in an playground around the country and that also they were seen as being “beneficial and important” within the process of growing up. Within this case I must find that I partly agree and partly disagree with the view of the courts. I feel that I agree with the first point regarding the view that it will result in unnecessary prosecutions, however the second point is not as clear. It surely depends upon how beneficial it really is. If the actions really are dangerous and violent then it cannot be a strong defence. If the horseplay is more similar to bullying then this means that this cannot be a defence to the actions. The courts must therefore distinguish between what they see as bullying and what is essentially horseplay. The cases of Aitkin 1992 held that a victims consent to being set on fire would act as an appropriate defence, and the victims consent (or the belief in the victims consent) to be thrown of a balcony could act as a defence under the case of Richardson and Irwin 1999. With this area I am not sure if the correct decision was made. In Richardson and Irwin 1999, the decision was strange as the defendant belief that the victim had consented was a drunken belief. If the belief is a drunken belief how can this provide a defence. Lord Lanes view suggests that the defence is present if the victim consented, however in this case the victim may not have done and the defendants belief had occurred whilst he was intoxicated. Why then was this defence provided? Dr Jepson may view that this entitlement to the defence of consent should not be allowed. He may view that under the case facts of Jones 1989 the victim suffered GBH and then certainly the defendants should not be able to get off by using the defence of consent.

When the Defence will not Succeed?
There are still a number of instances in which the defence will not succeed and also additions to the possible times that it may succeed due to changes under the cases of Brown and Other 1994 and also Wilson 1972. These include; serious intentional harm, sado-masochism, religious flagellation, and tattooing and body piercing.

In cases of Serious Intentional Harm
In cases where a defendant, even though the victim had consented ha, had inflicted harm that was serious and intentional, then the defence may not be available to the defendant. This was present in the case of Donovan 1934, Boyea 1992 and the Canadian Case of Currier 1998 where a defendant was convicted after having unprotected sex whilst possessing the knowledge that he was HIV+. However it has recently been reconsidered in the case of Dica 2004. Originally under the precedent established in the case of Clarence 1888 it was held that the defendant was able to use the defence when he had passed on venereal disease (VD) to his wife. The wife claimed that she would not have consented to sexual intercourse if she had been aware of the presence of the disease, however the defence was still available to him. Dica 2004 however changed the law. The defendant was aware that he was HIV+ and had had sex with another woman. The victim had contracted the disease and had claimed that she would not have consented if she had been aware of the disease. She had consented to the sexual intercourse, however not to the contraction and possible harm caused by the disease. The defendant was convicted however later escaped liability due to a mistake by the judge. We can see therefore a shift in the law from the original statement made by Lord Lane, and I myself agree with the decision. If a person is aware they are carrying a disease such as HIV or AIDS, then if they fail to warn the other party before having unprotected sexual intercourse then they have been reckless and should not escape liability. If however they warn the other party then there can be no claim by the victim. Therefore although I agree with Lord Lanes comments that there can be no prosecution if the victim consented as the act must be contrary to the will of the victim I do feel in instances such as this the defence must not be able to stand due to the defendants deceit. In this case it is obvious that Dr Jepson would agree with this view as can be drawn from his statement that consent should never be a defence to actual or serious offences against the person. If we class inflicting disease upon another as GBH then this would certainly be an appropriate statement by Dr Jepson.

The case of Brown and Others 1994 and Sado-Masochism
The case of Brown and Others 1994 was an influential case and challenged Lord Lanes statement that acts must be carried out “contrary to the will and consent of the victim”. The defendants were a group of homosexual males who enjoyed taking part in sado-masochistic activities each of which they consented to. No serious permanent harm was ever caused and all instruments used were sterilised and cleaned. All injuries were cleaned and dressed. All activities were carried out in private however police managed to recover a tape of their actions and arrested them. Although the actions were consented to the courts were unwilling to accept that sado-masochism could be covered by the defence. It was held as being concerned “with violence” and as “unpredictably dangerous and degrading to body and mind”. It was “glorifying cruelty” and therefore no defence was applied. However why did the courts take this view when all the adults had consented to the actions and had been conducted in private. Is it not wrong to lock defendants up for carrying out actions in private which they enjoy. However much you disagree with how they may enjoy such activities, how can we simply place people in prison for activities such as theirs. It is even more surprising that the European Court of Human Rights failed to accept their views and therefore reinforces Lord Lanes view that defence of consent should be allowed when actions carried out are consented to by the victim. The main view appears to be on grounds of protection of the public and public policy. The view was that it may corrupt the youth through its actions and that it could get out of hand when conducting the actions, however as Lord Mustill pointed out in his dissenting judgement that the defendants always protected against danger occurring from infection and that also the “corruption of youth is already catered for by existing legislation”. Therefore it may be more evident that the result was merely a reflection of the prejudice of the judiciary. There is no strong reason why the defence of consent should not be allowed.
The case of Wilson brought made the law more uncertain when it allowed a husband who had “bottom branded” his wife using a hot knife to escape liability due to the defence of consent. However why was this allowed and Brown not when acts were similar and involved similar possible risk of injury. Instead the courts decided this could be classed under Tattooing and Body Piercing. Also the courts decided that under Brown, flagellation could be allowed however only for religious matters and customs. Dr Jepson would also (via his comment) agree with the position which the courts established in Brown, however surely this cannot be correct as it would mean that he views that people should not even be allowed the defence when matters are committed with consent and in privacy.

The Two Statements - A Conclusion
When looking at all the case law I must say that I agree with Lord Lanes comment that it is an essential element of assault that the act is done contrary to the will and without the consent of the victim. I agree as otherwise we would end up with unfair decisions such as that of the decision of the case of Brown and Others 1994. The case of Brown displayed prejudices within the system and possibly issues which must still be resolved. I feel that it is certainly necessary that the defence of consent be available for cases of sport which has been properly conducted as people have entered the game with an exact knowledge of what they are doing. I feel that it is also necessary with regards to Surgery and to some degree (although limitations are required. Also I feel that limitations must be drawn with regard to the area of horseplay. A strong line must be drawn between what is simply bullying and what is horseplay. Therefore I agree with Lord Lanes views but what about Dr Jepson’s. Dr Jepson’s statement can be partly agreed with as it reflects views established under cases such as Dica 2004, however its limitations are present as if we view that it can never be a defence then problems would certainly arise in surgery and hospitals may become unwilling to operate. Therefore there are obvious flaws in the application of Dr Jepson’s statement. It denies human rights and also would view consent in matters which are conducted in private places and were no serious permanent injury occurs should still not suffice as a defence.

Reform

A number of reform points have been outlined with regard to assault and also to the defence. The main being that the Offences Against the Person Act 1861 is out-of-date and the language archaic, and therefore that they should be reformed. This would therefore result in a change of the offences and also a change in the imprisonment sentences. With regard to consent obvious problems have arisen mainly with regard to the dispute over Brown with both people in favour and others against the decision. People, such as writer for the Criminal Law Review - Stephen Shute, have criticised the view that consent should be regarded as a defence to the different criminal law offences and should not be “an absence of an element of the actus reus”. In my view I feel that the Offences Against the People Act 1861 should be left as it is. It has survived the test of time and its survival is surely the proof of its quality. I feel that the defence of consent is also required however decisions such as Brown need to be re-examined.

Bibliography
Roe, D. “Criminal Law 3rd Edition” 2005, Hodder Arnold
Herring, J. “Criminal Law, Text, Cases and Materials” 2004, Oxford University Press
www.peterjepson.com - past listed essays and materials