Criminal Law- Consent
AGs Ref (no6 of 1980)
Two guys decide to settle their differences with a fist fight, one suffers a bloody nose and some other minor injuries. they have consented to do with, but the issue is the person who inflicted the harm is being charged with an offence against the person. s47.
Billinghurst
- Players are deemed to consent to force of a kind which could reasonably be expected. A useful distinction may be drawn between On/off ball incidents
- rudgy case, during an off the ball game, billinghurst punched the opposing team in the face, fracturing his jaw in two places, he is charged with s20, the court first said the above statement,
moss
another rugby game, where a player punches another player in the face fracting his eye socket, the court recognises that rugdy is a fairly hands on game but it is not a licence for thuggery, here it involved an offence off the ball once the game had moved on
Barnes
football game where there is a late tackle made on another person, the prosecution said that it was a crushing tackless that was late, unneccessary and reckless, V sustained a serious leg injury as a result. the court said that a criminal prosecution should be reserved for those situations when the conduct is sufficiently grave as to be properly categorised as criminal. they make the point that in most sports, intentional infliction of injury is not the purpose of the sport. they also make the point that n some sports conduct outside the sports can be expected
Jones
Group of kids throwing another kid into the air and letting them drop to the ground, the child suffered a broken arm and a ruptured spline, they held that children could validly consent to this kind of horse play as long as we can show there was no intention to cause injury
Aitkens
group of men who had all been drinking and playing games and pranks and got to the point they started pouring white spirits over people who were wearing flying suits and setting it alright, some of these people were asleep while they were set alright, V resisted this action and resulted in 35 degree burns
Richardson & Irwin
group of drunken students who decided they would drop their friend off the balcony and their friend fell about 12 feet and suffered serious injury, it was held here this was horse play and their drunken belief to the Vs consent would have provided them with a defence.
R v P, R v A
p and A bring a victim to the bridge and they push him over the bridge and into the river below and the V drowned, it was known that he could not swim, whitnesses said that vV was clearly objecting and not consenting as well as making clear that they could not swim. the court said that in this case it was not credible that the Ds had a belief in Vs consent.
wilson
D was convicted of s47 ABH, he had used a hot knife to brand his initials into his wifes buttocks, with her consent, it got infected, the court said this is the equivalent to tatooing, they also said that it was Mrs W that instigated the branding, and there was no aggressive intent on the part of Mr W. they said the branding was motivated by artistic desire, not sexual.
R v BM
D is a tattoo artist who also does body modifications, there is three victims who have consented to the following procedures, 1 had an ear removed, one had a nipple removed, and one had their tongue forked, D was being charged with three counts of s18. he tried to say they all consented and that this was like tattooing or like cosmetic surgery.
Donovan
D meets with a 17 year old girl and brings her to a garage where he beats her on the bottom with a cane and she suffered six or seven slashes, it was alleged that they had had convosations about what was going to happen and that he was going to spank her and she had consented to do so
Brown
group of sadomasochistic homosexuals who consentually agreed to do a number of different things, they recorded this and that was only for their own viewing purposes
Emmett
hetrosexual couple and the man on one occasion puts a plastic bag over the womans head and she suffers haemorrhages in her eyes and onn another occasion pours lighter fuel on her breasts and set it on fire. this has all been done with her consent,
Boyea
D was convicted of an offence, he put his hand in the victims vagina and twisted it, this caused injuries, it was argued that this was done in the context of consensual sexual activities, the judge had directed the jury that the Vs consent was irrelevant, if they were satisfied that the Ds actions were intended to or likely to cause harm. it was also said that the courts had to take into account the fact that social attitudes had changed since donovan.
Slingsby
D claimed that with the consent he penetrated her vagina and rectum with his hand and twists it. the victim did not realise at the time, but because the D was wearing a ring at the time he had caused some internal cuts and the victim ends up suffering a infection and actually died from septicaemia
R v Richardson
a dentist is registered as a dentist but was suspended from practice and whilst suspended she did perform dental surgery on three patients. those patients said they would not have consented if they had known she was suspended, she was convicted of actual bodily harm
R v Tabassum
D claims to be doing research for breast cancer, and he persuades a number of woman to allow him to measure their breasts, and the woman all consented as they thought this was for legitimate reseach by a medically qualified person, which he was not.
R v Melin
D performed cosmetic surgery, botox injections on a number or woman , as a result of the injections, they all suffered serious harm, it was said that he had lied about his medical trainsing and his qualifications. the woman said if they had known the truthh, they would not have consented to him giving them those injections
R v Dica
dica was charged with transmitting HIV to 2 women, dica knew he was hiv positive and had unprotected sex with three women and never disclosed his status, charged with s20, if the V knew about the infection and chose to run the risk then this would be consent, but the fact that they did not know about this they could not consent to run the risk
R v Konzani
he knew he was HIV positive and slept with 3 woman and all three women become infected, konzani argued that by agreeing to have unprotected sex they are agreeing to run the risk of infection, the court rejects this
what are the two views on consent?
consent as a part of the actus reus
consent as a defence
what is the legal rule of consent?
AGs ref (no6 of 1980)
Consent to acts intended and/or likely to cause actual bodily harm or more serious levels of harm is not legally recognised, unless the activity involved is one which the courts or Parliament has recognised to be in the public interest.
what are the rules around the sports and organised games exceptions?
Billinghurst [1978] Crim LR 553- Players are deemed to consent to force of a kind which could reasonably be expected. A useful distinction may be drawn between On/off ball incidents
Barnes [2004] EWCA Crim 3246 - Intentional infliction of injury enjoys no immunity
Brown [1994] 1 AC 212 - boxing is a special situation because society chooses to tolerate it.
what is the exception of rough horseplay?
school children could validly consent to ‘rough and undisciplined play’, so long as there was no intention to cause injury- jones
Aitkens, Richardson & Irwin
R v P, R v A [2005] EWCA Crim 1960 – not credible that D had a genuine belief that V was consenting to horseplay
what is the exception of surgery and tattooing?
- Circumcision of males allowed; but FGM is an offence
- Surgery and Cosmetic surgery carried out by medical professionals permitted
- Tattooing – recognised as an exception in Brown. But see Tattooing of Minors Act 1969 - an offence to tattoo anyone under 18
- Wilson [1996] 2 CR App R 241
what are the rules about body modification?
R v BM
- Body modification of this nature not akin to tattooing
- Conduct more like surgery but not akin to surgery either – lacked medical justification and involved serious health risks
- Would not create a new exception or category of body modification – that should be left for Parliament
what are the rules around infliction of ABH or greater for sexual gratification?
Donovan- if the blows were likely or intended to cause bodily harm D was guilty whether V consented or not.
Brown- no exception should be created, pleasure derived from the infliction of pain is an evil thing, cruelty is uncivilised.
laskey, Jaggard & brown v UK
Emmett
what are the rules around where D intends only an assault or battery and has consent of V or never contemplates the risk of injury?
Dicta in AG’s Ref (6 of 1980) suggested one would be guilty if ABH was intended and/or caused.
boyea- likely was to be given its ordinary meaning
slingsby, meachen
what are the rules around rough sex and consent as a defence
Section 71 Domestic Abuse Act 2021 - Consent to Serious Harm for sexual gratification not a defence
Restates the position set out in R v Brown
strangulation or suffocation- consent is not a defence if serious harm is caused
75A(2) (3) and (6) Serious Crimes Act 2015
what are the rules around consent induced by fraud?
only deceptions as to nature of the act or identity of the actor were regarded as sufficient- clarence
deception as to the attributes is not sufficient- R v richardson
R v Tabassum [2000] 2 Cr App R – there was consent to the nature of the act but not its quality
R v Melin- fraud as to the attributes may caase trivial cases, however there are cases where a persons identity is inextrinsically linked to his or her profesional status
what are the rules around non-disclosure of HIV status?
will not be rape as the victims have consented to sexual intercorse- Dica, R v B
non- disclosure means the V cannot consent to run the risk of infection- Dica
D may not be convicted if there was an informed consent by the sexual partner to the risk that he would transmit HIV. R v Konzani.
what are the rules around informed consent
there may be informed consent in the absence of disclosure in very narrow circumstances. eg knew him while he was in hospital getting treatment for the condition- R v Konzani
what are the rules around belief in consent?
a Ds honest belief in consent did provide a defence but that belief is consistent with the consent.
where D deliberatly conceals his status there can be no honest consent- R v Konzani