#4625 - Consent - GDL Criminal Law

• Sometimes unclear if consent forms part of the AR (absence of consent) (R v Brown)or stands alone as a defence – but treated as a defence for purpose of GDL

• Two elements: whether the V consented, and whether the D believed the V consented

  • It is for the prosecution to prove that the V did not consent and that the D did not believe in his consent R v Donavon

When is consent a defence to an offence against the person?

The general rule:

• Consent is only available to assault and battery: AG’s Reference (No 6 of 1980): ‘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’: only ‘minor struggles’

• Rule was confirmed by HL in R v Brown: homosexuals causing injury to each other – defence of consent failed as couldn’t be used for anything greater than a battery unless it fell under one of the accepted ‘good reasons’ such as ‘organised sporting contests and games, parental chastisement or reasonable surgery’ per Lord Jauncey

• R v Meachen: extension of consent to include more serious harm (s 47 ABH) in certain circumstances:

  • Consent available where the D intended only to commit a battery with the consent of the victim and did not see the risk of inflicting ABH

  • If however the D intended to cause ABH, then consent is not available as a defence, even if the V consented

  • Situation regarding being reckless as to causing ABH with V’s consent is still unclear

The Exceptions

• Medical Treatment:

  • Consent can be given for surgery and other medical treatment which causes GBH / risk of death

• Sport:

  • Any incidental injury caused whilst playing within the rules of the game will not be an offence

    • Consider factors such as the type of sport, the level at which it is played at, the nature of the act, the degree of force, the risk of injury, state of mind of the D

  • R v Barnes: CA said criminal prosecution should be reserved for situations where conduct is sufficiently grave to be categorised as criminal

    • Here late tackle in a football match – jury had to consider whether it was so obviously late and/or violent that it ws not to be regarded as an instinctive reaction, error or misjudgement in the heat of the game

  • R v Billinghurst: B punched G fracturing his jaw in 2 places – jury decided that consent had been given – Mervyn Davies (former Welsh International) said that punching is the rule not the exception in the modern game!

  • R v Coney: Failing to comply with proper rules in Boxing – consent was no defence

• Horseplay:

  • R v Jones: CA allowed consent as boys have always indulged in rough and undisciplined play amongst themselves

  • R v Aitken: drunken RAF officers setting fire to one another – conviction quashed relying on Jones

  • R v Richardson and Irwin: conviction quashed as trial judge had not directed jury to consider consent

• Sexual gratification/accidental infliction of harm/personal adornment

  • Consent will be considered on a case-by-case basis: no hard/fast rules

  • R v Brown: activity was not deemed to be a suitable exception – examined the nature of the act rather than the circumstance in which it occurred

    • Brown accords with earlier decision in R v Boyea (inserted fist into V’s vagina) – violent conduct

    • Emmett: tying a plastic bag over his fiance’s head to increase her sexual pleasure and pouring lighter fuel on her breasts and setting fire to it – violent conduct

  • However: case of R v Slingsby (similar facts to Boyea, the D was acquitted – no intention to cause harm (V died of septicaemia) – but the D was acquitted of unlawful act manslaughter on the grounds that he lacked the MR for assault or battery – caused accidentally during the course of sex

  • R v Wilson: contrast to Brown – D branded his initials on V’s buttocks – successfully argued consent under s 47

• Sexually transmitted diseases:

  • R v Dica: CA held that if the complainant consents to the risk of contracting HIV then the D has a defence to a charge under s20

  • But cannot consent to the deliberate infliction of HIV

• Lawful correction of a child:

  • R v Hopley: parent had a defence of reasonable chastisement in applying force to a child (now open to challenge under A3 ECHR)

  • R v H: look at the nature/context of the parent’s behaviour, its duration, the physical/mental consequences and the reason the child was punished

What counts as valid consent?

• R v Clarence: (no longer deemed to be good law) – wife’s consent to sex was valid as she understood the nature and quality of the act (but did not know that husband was knowingly infecting her with venereal disease

• R v Richardson: 1) Only a deception as to the nature or quality of the act or the accused’s identity would vitiate consent 2) a description s to the accused’s attributes, status or qualifications would not vitiate consent: conviction of dentist who performed...