Written by Paul Powlesland
As both Lord Lane and Dr Jepson state, the defence of consent mainly applies to "offences against the person". These "offences against the person" refer to assault and battery ( s39 Criminal Justice Act (1988) ), as well as actual bodily harm (s47 Offences Against the Person Act (1861) and grievous bodily harm ( s18 & s20 Offences Against the Person Act (1861) ). In this essay I shall firstly analyse Lord Lanes view and decide whether it is necessary that assault is done "contrary to the will and without the consent of the victim". Next I shall analyse Dr Jepson's comment and decide whether it is true that that "consent should never be a valid defence when it comes to offences against the person". Finally, if this is not the case, then I shall examine in which circumstances the defence of consent should be allowed and in which circumstances it should not be allowed.
The offence of assault was originally found in s47 Offences Against the Person Act (1861) , but it is now found in s39 Criminal Justice Act (1988) . An assault is committed when the accused "intentionally or recklessly causes the victim to apprehend immediate and unlawful violence". Thus, it can be seen that no force need actually be applied to constitute this offence, as merely waving a fist or pointing a gun would suffice. Furthermore, the case of Constanza (1997) [Footnote 1] has ruled that an assault could be committed by words alone. However, what must be proven with assault is that the victim apprehended immediate force or violence and this is a subjective test, in which "the victims fear does not have to be rationalised" ( Smith v Chief Superintendent of Woking Police Station (1983) [2]). This leads us to Lord Lane's comment in Attorney General's Reference (No 6 of 1980) (1981) [3] , in which he stated 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." I believe that the definition of assault itself validates this comment, insofar as if the victim themself needs to apprehend immediate and unlawful violence, they surely cannot apprehend such violence if they are consenting to the act. Therefore, I believe that Lord Lane's comment is correct, as the subjective test for assault cannot be fulfilled if the defendant is consenting to the act.
However, if I agree with Lord Lane's comment, does this automatically lead me to disagree with Dr Jepson's comment? I believe it does, as assault is an offence against the person and Dr Jepson states that "consent should never be a valid defence when it comes to offences against the person". The fact that the actual definition of assault means that the offence cannot be committed if the victim is consenting seemingly automatically makes Dr Jepson's comments at odds with the current law. However, as it may be argued that Dr Jepson's comment is a proposal for reform, rather than a reflection of the current law, I believe there are many other good reasons against his statement that "consent should never be a valid defence when it comes to offences against the person." The main reasons being that the situations in which the defence of consent is allowed would then become criminal offences subject to prosecution. The situations in which the defence of consent is allowed and which, if Dr Jepson's comments were enacted as law, would become illegal were defined in Attorney General's Reference (No 6 of 1980) (1981) as "properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions etc...". I will now consider the effect on these, and other situations, if no defence of consent existed, as is Dr Jepson's wish.
The current position with regards to "properly conducted games and sports" is that in participating in such activities, the victim ids held to have consented to harm that occurs within the rules of the game. Despite this, this consent is vitiated if the defendant intends to cause injury (even if this is within the rules of the game) or, obviously, if the defendant broke the rules of the game ( Bradshaw (1878) [4] ). However, if there were to never be a valid defence of consent, than many sports would have to stop being conducted. The most obvious of these would be boxing, in which, if no defence of consent existed, every participant would be found guilty of battery and many would also be found guilty of actual and grievous bodily harm, as well as, in some cases, murder. However, although there would be some who welcome the demise of boxing, the abolition of the defence of consent would almost certainly lead to the end of most contact sports. This would include rugby and football, as in both sports there are regular batteries and also, occasionally, actual and grievous bodily harm. If the law were to abolish the defence of consent and this led to (as it probably would) to the abolition of such sports, there would almost certainly be a public out cry, meaning that the abolition of the defence of consent, at least with regards to sports, would be unacceptable for public policy reasons.
Another area in which a person may currently consent to harm is with regards to surgical interference. This consent can be for obvious medical reasons such as heart transplants, or for other procedures that produce "psychological benefits", such as sex change operations or cosmetic surgery. If the defence of consent were abolished, then the surgeons would commit numerous offences against the person every day. This is because in the course of conducting an operation surgeons would almost certainly commit grievous bodily harm and they would intend to commit it, as motive is usually irrelevant ( Chandler v DPP (1964) [5] ). However, this might be different for surgeons due to public policy reasons ( Gillick v West Norfolk Area Health Authority (1986) [6] ). Thus, as they have both the actus reus and mens rea, they would, prima facie, be liable for grievous bodily harm under s18 Offences Against the Person Act (1861) , which carries a maximum sentence of life imprisonment. If surgeons became liable as a result of the abolition of the defence of consent, then they would almost certainly stop doing their work that saves and improves the lives of virtually everyone at some time in their lives. Therefore, if consent were never to be a valid defence for offences against the person, it would lead to the nonsensical situation whereby those in the medical profession who help to save and improve lives would be criminally liable, a situation that most people would see as unjust and absurd.
The final area I shall examine in which consent to offences against the person is currently a valid defence is that of everyday life. The abolition of the defence of consent, as advocated by Dr Jepson, would probably produce the most absurd results in this area and to find out why I shall examine the current law regarding the offence of battery. A battery is committed when a defendant "intentionally or recklessly applies unlawful physical force to another person" [7] . The degree of violence does not have to be high, with Blackstone saying "the law cannot draw the line between different degrees of violence and therefore totally prohibits the first and lowest stage of it; every man's person being sacred and no other having a right to meddle with it, in any the slightest manner" [8] this statement that even the slightest touching of another is a battery was affirmed in the more recent, and extremely important, case of Collins v Wilcock (1984) [9] , in which Goff LJ declared "The fundamental principle, plain and incontestable is that every person's body is inviolate." However, it is very important to note that in Collins v Wilcock (1984) Goff LJ went on to mitigate the above statement, saying "most of the physical contacts of ordinary life are not actionable because they are impliedly consented to 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; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason) slapped." This statement is very important, due to the use of the phrase "implied consent", which means that by living in our society, people have given their implicit consent to the ordinary bodily touching that happens in everyday life. From this it can be seen that if, as Dr Jepson advocates, there were to be no defence of consent, then people could not give their implicit consent to the everyday touching that occurs in society. As a result, this would lead to the ridiculous situation in which virtually everyone would commit the offence of battery, with a maximum sentence of six months imprisonment, numerous times everyday as a result of the normal bodily touching that occurs in modern society. This would be seen by most people as unjust and ridiculous and lead to a loss of respect for the criminal justice system.
In conclusion therefore, if, as Dr Jepson argues, consent were never to be a valid defence for offences against the person, we would be living in a society in which sportsmen could not play ordinary and extremely popular sports such as rugby and football, medical treatment could not be performed and people could not even brush against another person in the street, without fear of prosecution. From this it can be seen that the results of the abolition of the defence of consent would be clearly absurd and as such I believe it should be retained in some form. This being the case I shall now go on to examine the extent to which the defence of consent should be used and the situations in which I believe it should be used.
Firstly, I believe that the law with regards to consent is currently largely satisfactory. The current law with regards to assault is, according to the case of Attorney General's Reference (No 6 0f 1980) (1981) , that a defence of consent is always allowed. As mentioned earlier in this essay, I believe this is sensible, as it would be hard to cause someone to apprehend immediate and unlawful violence if they are consenting to the act. In the case of Brown (1993) [10] it was decided that for the offences of both assault and battery the defence of consent would always be a complete and valid one, even if there was no social utility of use in the act. Again, I believe this is satisfactory, as it prevents the nonsensical situations mentioned earlier in this essay. However, I believe that while the law with regards to actual and grievous bodily harm and the defence of consent is satisfactory in the general rules it lays down, I do not agree with the way in which these rules are applied in specific purposes (e.g. with regards to sado-masochism). The general rules regarding the extent to which the defence of consent could be used for charges of actual and grievous bodily harm were first laid down in the case of Attorney General's Reference (No 6 of 1980) (1981) . In this case it was stated that "It is not in the public interest that people should try to cause, or should cause, each other harm for no reason." As a result of this it was decided that the defence of consent could not be used for offences of actual and grievous bodily harm, except in the situations of "properly conducted games and sports, lawful chastisement of correction, reasonable surgical interference, dangerous exhibitions etc..." [11] . In the case of Brown (1994) it was confirmed that consent is not a valid defence in cases of actual and grievous bodily harm, except within one of the recognised exceptions [12] . I believe that the principles developed in Attorney General's Reference (No 6 of 1980) (1981) and approved of in Brown (1994) are satisfactory, as they balance the need for order and prevention of violence in society (by banning the use of the defence of consent for actual and grievous bodily harm in most situations) and the need not to cause injustice and absurdity (through the allowance of limited exceptions).
However, I believe there is a problem with the law surrounding the defence of consent with regards to the offences of actual and grievous bodily harm, as the exceptions to the rule made in the case of Attorney General's Reference (no 6 of 1980) (1981) do not extend far enough and cause injustice as a result. The most obvious example of a situation in which the exceptions to this general rule have, I believe, not been wide enough is with regards to sadomasochism. The leading case in this area is that of Brown and others (1994) [13] , in which the convictions for actual and grievous bodily harm of a group of male homosexuals as a result of sadomasochistic activities were upheld be the House of Lords by a three to two majority. I believe that the decision in this case was wrong and I agree instead with Lord Mustill, who made a dissenting argument. In his judgement Lord Mustill stated that the state should intervene "no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together comprise the population at large." This comment sums up what is currently wrong with the defence of consent with regards to actual and grievous bodily harm, in that it shows that there should be another exception to the general rule forbidding the use of the defence of consent in such circumstances. This exception should allow the use of consent if the activities in question were done behind closed doors, between consenting adults and as a result of the activities the injuries inflicted were not so great as to warrant a prosecution in the public interest. I believe that the addition of this exception would make the defence of consent satisfactory in virtually all respects and as such I believe it is a major reform needed for the future. This reform is especially needed in order to bring our law into line with the European Convention on Human Rights , which was incorporated into our law as a result of the Human Rights Act (1998) . I believe that despite the ruling by the European Court of Human Rights in the case of Laskey and Others v United Kingdom (1997) , the law as it currently stands with regards to the defence of consent violates people's right under Article 8 of the European Convention on Human Rights to "respect for his private and family life".
The final part of the law on consent that needs examining is the extent to which the defence of consent can be used if the victim is somehow deceived into giving this consent. It was originally decided in the case of Clarence (1888) [14] that consent to an act would only be vitiated if the victim was deceived as to the identity of the person committing the act. This often led to the unfair situation in which the defendant could claim the defence of consent where he had only deceived the victim as to the nature of the act rather than the person committing it, which was the situation in Clarence (in which the victim knew she was having sexual intercourse with her husband, but not that her husband had gonorrhoea). However, this unfair position has now been altered by the recent case of Tabussum (2000) [15] . In this case, the Court of Appeal decided that consent can be vitiated not only if the victim was deceived as to the identity of the person performing the act, but also if the victim is deceived as to the quality of the act. If the law as stated in Tabussum were applied to the case of Clarence, then "Mrs Clarence's consent to sexual intercourse would have been vitiated by the deception that occurred in relation to the quality of the act - she did not consent to sexual intercourse accompanied with the transmission of gonorrhoea..." [16] and therefore the defendant in the case would not have been able to plead the defence of consent. Overall, I believe that the developments in the case of Tabussum, which overrule Clarence, are positive and help to make the law with regards to the vitiation of consent as a result of deception satisfactory.
Conclusion
In conclusion, after critically examining the views in questions I agree with the view expressed by Lord Lane, but disagree completely with the view expressed by Dr Jepson. I agree with Lord Lane's comment, as I believe that the actual definition of the offence of assault means that the offence cannot be committed if the victim is consenting. I disagree with Dr Jepson's comment, as if there were to be no defence of consent in any situation, this would lead to a situation where contact sports could not be played, doctors could not operate on patients and people could not brush against each other in the street, without breaking the law and facing the threat of prosecution. This situation would obviously be nonsensical and this is why I disagree with Dr Jepson's view. Instead of this view, I believe that the current law with regards to the defence of consent and offences against the person is largely satisfactory. This is because it recognises the defence of consent for assault and battery, but restricts its use for actual and grievous bodily harm, except where the act falls into one of a number of exceptions to this rule. The only reform that I believe is necessary in this area goes against Dr Jepson's comments, in that I believe the exceptions to the restriction of the use of consent for actual and grievous bodily harm should be widened to include situations in which consenting adults cause each other harm in their own homes, so long as this harm is not serious harm.
Therefore, I agree with Lord Lane's view, but not with the view expressed by Dr Jepson.
Footnotes
[7] Ireland (1997). House of Lords.
[8] Blackstone's Commentaries.
[11] Attorney General's Reference (No 6 of 1980) (1981). QB 715.
[12] i.e. practical joking, minor harm in sexual activities and the exceptions already mentioned under Attorney General's Reference (No 6 of 1980) (1981).
[15] 2 Cr App Rep 328. Crim LR 686.
[16] New Law Journal. Volume 153. Number 7104. Pages 1685 & 1720.