Written by Lisa Incledon - February 2005
Consent can, depending on circumstances, be a defence to all non-fatal offences against the person, all sexual offences and potentially to constructive manslaughter.
Lord Lane’s statement is in relation to assault, whilst Dr Jepson’s focuses upon actual/serious offences against the person, therefore in analysing the statements I will be considering the defence of consent in relation to non-fatal offences against the person.
There is currently a great deal of confusion as to the extent to which consent can be a defence to actual/serious offences against the person, further complicated by the conflicting basisses for decisions used by the Court of Appeal and the House of Lords, as demonstrated by the cases of Brown and Others (1994) and Wilson (1997).
I would agree with the views presented in both Lord Lane and Dr Jepson’s statements to some extent; but with some limitations and additions, which I will discuss, along with the arguments in support of both of these statements.
Lord Lane’s Statement
Lord Lane’s statement in Attorney – General’s Reference (No. 6 of 1980) (1981), that "It is an essential element of an assault that the act is done contrary to the will and without the consent of the victim," appears to suggest that consent should be considered a valid defence to non-fatal offences against the person.
Arguments that the state should not prevent harm inflicted at the request of the individual as this is interfering with the freedoms of the individual and that what consenting adults do in private should not be anyone else’s concern, support the view that initially appears to be suggested by Lord Lane’s statement; that consent should be a valid defence to non-fatal offences against the person.
However, it is important to note that Lord Lane’s statement is concerned with assault, rather than actual or serious offences against the person, and should not be considered to include assault occasioning actual or grievous bodily harm, since in this case, Lord Lane also stated that: “It is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason…”
Thus, when considering both Lord Lane’s judgement and his obiter statement on assault in Attorney – General’s Reference (No. 6 of 1980) (1981) his view appears to be that consent should be a valid defence to assault, but only a defence to ABH or GBH with a ‘good reason’. This view is closer to that expressed by Dr Jepson, but allows for exceptions, where consent may be a defence to ABH or GBH in certain circumstances.
Dr Jepson’s Statement
Dr Jepson’s statement: “Consent should never be a valid defence when it comes to actual/serious offences against the person”, indicates the view that consent should never be accepted as a defence to actual bodily harm or grievous bodily harm and there are a number of arguments in support of this view. Firstly, the need for safety and protection of individuals, it is dangerous to allow people to consent to ABH or GBH, particularly when you consider the potential of death resulting from the defendant’s actions. Under UK law you cannot consent to be killed, however problems with this arise when considering constructive manslaughter, which is an unlawful and dangerous act, resulting in death. Thus, in order to find someone guilty of constructive manslaughter, it is necessary to prove that they committed an unlawful act, and if the victim consented to the initial offence, then a conviction of constructive manslaughter is not possible as there is no unlawful act to base the charge upon. This situation was demonstrated by the case of Slingsby (1995) in which the defendant had, with the consent of the victim penetrated her vagina and rectum with his hand, causing internal cuts with a ring he was wearing. The victim later died of septicaemia as a result, but the defendant was not convicted of constructive manslaughter, based upon the unlawful act of battery, since the victim had consented to his actions and thus there was no battery and so no unlawful act upon which to base the charge of constructive manslaughter.
Excluded Offences
In general the view taken by the House of Lords is very similar to that expressed by Dr Jepson; that consent cannot be a valid defence to actual or serious offences against the person. However, Dr Jepson’s statement fails to take account of certain situations where consent is considered a valid defence to actual or serious harm, which are accepted by the House of Lords; as stated by Lord Templeman in Brown and Others (1994): “When no actual bodily harm is caused, the consent of the person affected precludes him from complaining. There can be no conviction for the summary offence of common assault if the victim has consented to the assault. Even when violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating.”
Similarly, in Attorney – General’s Reference (No. 6 of 1980) (1981) Lord Lane demonstrated his acceptance of situations where consent can be a defence to actual or serious harm, and suggested reasons for this, stating: “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.”
I will now discuss some of the situations in which the courts have had to decide whether consent should be accepted as a defence to actual or serious harm and the reasons behind their decisions.
Surgery
Surgery evidently involves a ‘wounding’ but those performing surgery are not liable for this due to the consent of the patients. This was indicated by Lord Templeman’s statement in Brown and Others (1994): “Surgery involves intentional violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity.” Consent is an effective defence to all surgical procedures, including sex-change operations and cosmetic surgery.
This area is possibly the strongest argument against Dr Jepson’s statement, since if consent was never a valid defence to actual or serious offences against the person then doctors and surgeons would be liable for any surgery they carried out, although it would generally be in the ‘victim’s’ best interests.
Lawful Chastisement
Under common law parents are able to use physical punishment on their children, but it must not be excessive. In R v Hopley (1860) it was decided that force would be unlawful if it was: “administered for the gratification of passion or rage or if it be immoderate or excessive in its nature or degree, or if it be protracted beyond the child’s powers of endurance or with an instrument unfitted for the purpose and calculated to produce danger to life and limb…”
Thus, a moderate level of physical punishment is acceptable but it is not allowed to be excessive. In A v United Kingdom (1998) the defendant was charged with causing actual bodily harm after beating his nine year old stepson with a stick but was acquitted after using the defence of lawful chastisement. However, the European Court of Human Rights held that Article 3 of the European Convention of Human Rights, prohibiting torture or inhuman and degrading treatment, had been violated. In the case of R v H (2001) the defendant was charged under section 47 of the Offences Against the Person Act and pleaded the defence of lawful chastisement. The Court of Appeal stated that, in relation to the defence of lawful chastisement, Article 3 of the European Convention on Human Rights would not be violated if the jury were directed to consider a range of factors when determining the reasonableness of the conduct, such as “the nature and context of the defendant’s behaviour, its duration, its physical and mental consequences in relation to the child, the age and personal characteristics of the child and the reason given by the defendant for administering punishment.”
Also, the Education Act 1996 allows staff at schools to use reasonable force to restrain violent or disruptive pupils and thus, provided this is reasonable and not excessive in the circumstances they would not be liable.
Contact Games and Sports
Participants in contact sports, such as football and rugby, impliedly consent to any actions permitted by the rules of the game and in public boxing matches, conducted within the Queensberry Rules; the consent of the participants is also accepted. However consent is not a defence in other fights, such as in the Attorney – General’s Reference (No. 6 of 1980) (1981) in which two youths were acquitted after having a fist fight, following an argument, but the Court of Appeal stated that the defence of consent was not available in that situation with Lord Lane making the statement that: “It is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason…”
Another potential issue when considering contact sports is the distinction between actions permitted by the sport, and those which are not. In the case of Moore (1898) it was stated that: “No rules or practice of any game whatever can make lawful that which is unlawful by the law of the land.” Thus any potential assault that has taken place during the sport should be considered under the law, particularly where it is not within the rules of the game, and therefore the victim cannot be said to have impliedly consented. 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.
This is an area of some difficulty, since it relies on implied consent, and in some circumstances it could be difficult to determine exactly how far the actions of participants may be considered to have been consented to. However, I do feel the area does demonstrate another potential problem with the strictness of Dr Jepson’s view, since if implied consent was not allowed as a defence to actual bodily harm then the issue of injury caused during contact sports could become very complex and result in a large number of prosecutions.
Horseplay
This is an area where the courts have generally been prepared to accept consent as a defence, even when it results in serious harm. In the case of Jones and Others (1986) two boys were tossed in the air by the defendants, and were injured as a result. However the defendants’ convictions for grievous bodily harm were quashed by the Court of Appeal, deciding that the boys had consented to ‘rough and undisciplined play’ and that this consent was a valid defence.
Similarly, in the case of Aitken and Others (1992) the defendants, a group of RAF officers set fire to the victim’s fire resistant suit, and the victim suffered severe burns. The defendants were initially convicted of grievous bodily harm but their convictions were quashed by the Court of Appeal, as it was decided that there had been a misdirection in stating that the activity could never be lawful.
This area appears to present another issue which Dr Jepson’s statement does not account for, since his view does not allow consent as a defence to actual or serious bodily harm caused through horseplay. However, I can understand the approach taken by the courts in accepting that horseplay, with the consent of the victim, may lead to actual or serious injuries for which the defence of consent should be available, but I feel the extent to which horseplay is acceptable should be more limited. Actions like those of the defendants in Aitken and Others, which resulted in grievous bodily harm, could be dangerous and have serious consequences, and as such I feel there is an argument for limiting the scope of consent as a defence in such situations.
Tattooing
Consent is accepted as a valid defence to tattooing, as demonstrated by Burrell v Harmer (1967), in which the defendant was convicted of ABH after tattooing two boys aged 12 and 13, but this was only because the court held the boys did not understand the nature of the act and thus there was no real consent. If there had been real consent then the defendant would not have been liable for the tattooing.
In the case of Wilson (1996) the defendant had branded his initials on his wife’s buttocks with a hot knife and was convicted of assault occasioning actual bodily harm. However, the Court of Appeal quashed his conviction, accepting the defence of consent and suggesting that there was little difference between the defendant’s actions and tattooing, Russel L.J. stating: “Mrs Wilson not only consented to that which the appellant did, she instigated it. There was no aggressive intent on the part of the appellant…For our part, we cannot detect any logical difference between what the appellant did and what he might have done in the way of tattooing.”
This area presents another area that is excluded from Dr Jepson’s statement and more supportive of Lord Lane’s, although the decision in Wilson (1996) does appear to conflict with the decision in Brown and Others and as such demonstrates the differing basisses of Court of Appeal and House of Lords decisions. The House of Lords generally considering that consent can only be a defence to actual or grievous bodily harm in one of the specified situations, whilst the Court of Appeal deciding case by case, upon public policy, as stated in Wilson, with Russel L.J. stating: “In this field, in our judgement, the law should develop upon a case by case basis rather than upon general propositions to which, in the changing times in which we live, exceptions may arise from time to time not expressly covered by authority.” However, this approach can lead to confusion and complexity within the law.
Sexual Activity
Consent is generally accepted as a defence to potential offences committed during sexual activity, contrary to Dr Jepson’s statement, such as in the case of Slingsby (1995), in which the victim’s consent to the defendant penetrating her vagina and rectum with his hand meant that a battery had not been committed when his ring caused her internal cuts.
However, two more controversial areas are biological GBH and sado-masochism.
Biological GBH
In 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.
However, the case of Dica (1998) was the first successful prosecution for biological GBH, the defendant having had unprotected sex with two women whilst aware that he was HIV positive. However, in May 2004 his appeal was successful, it being decided that the judge was wrong to withdraw the issue of consent from the jury, and a re-trial was ordered. It was decided that the real 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 whether they had consented to the risk, and therefore, whether the defendant could use the defence of consent was an issue of fact, which was case specific.
This decision indicates that consent may be a defence to biological GBH, 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.
Thus, this decision does not support Dr Jepson’s statement as it indicates that consent could be a defence to actual/serious offences against the person.
Sado-Masochism
The main case in relation to the issue of said-masochism is Brown and Others (1994), the defendants were members of a group of sado-masochist homosexuals who participated in violent acts against each other for sexual pleasure over a period of years. They were convicted of actual bodily harm under section 47 and wounding under section 20 of the Offences Against the Person Act 1861. They appealed on the basis of consent but were unsuccessful, both the Court of Appeal and House of Lords deciding that consent was not a valid defence in the circumstances. Lord Templeman stated: “The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty and result in offences under sections 47 and 20 of the Act of 1861…Society is entitled and bound to protect itself against a cult of violence.”
The main arguments presented against allowing the defence of consent for sado-masochism were the potential dangers of such activities, moral objections to the defendants’ activities and the possible corruption of young people as a result of such activities. These arguments support Dr Jepson’s statement that: “Consent should never be a valid defence when it comes to actual/serious offences against the person”, but are specifically in relation to the issue of sado-masochism.
The argument that the state should not interfere with those conducting sado-masochistic activities in private, with consent of the victim, due to the rights and freedoms of the individual has been largely unsuccessful. Although Article 8(1) of the European Convention on Human Rights provides that ‘Everyone has the right to respect for his private and family life’, Article 8(2) limits this, allowing the intervention of public authorities due to the need for national security or public safety or for the protection of health or morals, or rights and freedoms of others, and the European Court of Human Rights upheld the decision in Brown and Others.
Reforms
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 proposal supports Dr Jepson’s statements, and also later comments made by Lord Lane in Attorney – General’s Reference (No. 6 of 1980) (1981).
The Law Commission’s Consultation Paper, Consent in the Criminal Law (1995), also recommends that consent could be used as a defence to reckless or intentional causing of injury, falling short of the seriously disabling and thus, since the offence of ‘intentional or reckless injury’ as proposed in the 1993 Paper to replace actual bodily harm, this would widen the potential use of the defence of consent to all offences of actual bodily harm.
This proposal conflicts with Dr Jepson’s statement since it indicates that consent should be available as a defence to actual bodily harm, but Dr Jepson states that “consent should never be a valid defence when it comes to actual offences against the person.” The proposal does appear, at first glance, to support Lord Lane’s comments, but his statement was solely in relation to assault, and not assault occasioning actual bodily harm, as he later stated in the same case “It is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason…”, thus this proposal can be seen to conflict with both Dr Jepson and Lord Lane’s viewpoints and could be argued a potentially dangerous relaxation of the law in this area.
In conclusion I would argue 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”, when taken alone, is certainly open to criticism since there are many instances in which consent is certainly not accepted as a defence to offences against the person. However, when you consider his statement alongside other comments he also made in the Attorney -General’s Reference (No. 6 of 1980) (1981) it is apparent that his statement was purely in relation to assault and that he considered it was not essential for actual or serious harm to be committed contrary to the will of the victim, and as such his view is much more similar to that expressed by Dr Jepson, and I would suggest an appropriate view on the law in this area, only allowing consent as a defence to ABH or GBH with a ‘good reason’.
I would also agree 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, since it is generally accepted that a person cannot consent to actual bodily harm or grievous bodily harm excluding certain circumstances. Thus, I would argue that Dr Jepson’s view, although mostly correct, fails to take account of excluded offences such as surgery, which should arguably be excluded on the grounds of public interest and individual freedoms.
Lisa Incledon - February 2005.
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