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4100LAWPL
Criminal Law
Student ID: 846574
“On a public policy basis, English law restricts the validity of consent by reference to

the level of harm and the circumstances in which it is inflicted.”

David Ormerod & Karl Laird, Smith, Hogan, and Ormerod’s Criminal Law (OUP, 2018),

p. 675.

With reference to the above quote, discuss the extent to which consent is a valid

defence to non-fatal, non-sexual offences against the person.

Usually, the term consent would be used to refer to cases of sexual assault or rape and

would refer to, generally, sexual contact1. There are scenarios and circumstances, however,

that exist outside of this frame of reference and the subject of whether one can consent to

acts of non-fatal, non-sexual bodily harm is a rather interesting one2. Assault and battery are

crimes for which consent may be used as a defence, and victims can be held to consent

crimes such as these – one common example is in the instances of sporting scenarios in

physical activities which possess and element of contact and potential bodily harm.

Generally, participants are deemed to have consented to the contact as an essential part of

the sport they are involved in.

There are three requirements which should be outlined for establishing consent, and will be

built upon later; Firstly, the individual is unable to consent to a circumstance which involves

1
Sexual Offences Act 1956
2
J. Herring, Non-Fatal Non-Sexual Offences against the Person, (Published by Oxford University
Press, 2016)
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4100LAWPL
Criminal Law
Student ID: 846574
the potential possibility of “serious” bodily injury. Secondly, the harm which occurred must be

“reasonably foreseeable” as an aspect of the conduct or situation, and it is a risk which

would reasonably be accepted. Thirdly, the individual must receive some kind of benefit from

the circumstance or conduct or activity, such as the consent was justified3.

As it is outlined in the Sexual Offences Act (2003), “a person consents if he agrees by

choice, and has the freedom and capacity to make that choice.”4 So, by that reasoning, if

something is carried out where consent is not clear or apparent, or the participant(s) are “not

of sound mind or legal capacity”, then legislation outlined penalties will apply. Heidi Hurd, a

notable US lawyer specialising in criminal and tort law, notes that “consent can function to

transform the morality of another’s conduct – to make an action right when it would

otherwise be wrong.”5  The existence of consent as a defence would imply that individuals

have a degree of choice and responsibilities over their actions, bodies and lifestyles and

potentially must consider that in day-to-day life, there are instances of contact with others. In

a similar vein, an individual can subject their own body to a certain amount of harm within

the law. However, there is a level at which the court would not allow someone to abuse their

own body or the body of another human being.

The issue of consent within the confines of the law are varied; one must note that consent

can be implied or expressed – one can consent to an action without granting explicit or

express permission and it is simply inferred under the circumstances, and it this case it must

be clear that the law would allow consent in that situation. Where express consent is
3
C. P.Selinger, The right to consent: Is it absolute? (Published by BJMP, 2009)
4
S. 74 Sexual Offences Act 2003
5
H. M.Hurd, “The Moral Magic of Consent”, Legal Theory 2 (1996)
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4100LAWPL
Criminal Law
Student ID: 846574
required, permission should be verbally granted or written, probably the most obvious

instance of this is during sexual activity, where usually verbal consent is what is required6.

There are instances where the lines are perhaps more blurred, and one has to consider how

much contact and consent should be involved in everyday existence.

The case of Collins v Wilcock [1984] involved a defendant who refused to speak to a police

officer, who then physically grabbed their arm in order to restrain or encourage to talk, and

the defendant’s arm was scratched. The court came to the conclusion that “all physical

contact which is generally acceptable in the ordinary conduct of daily life”7 fell under that

sphere of implied consent. With this in mind, Goff LJ expressed that “except when lawfully

exercising his power of arrest or some other statutory power a police officer had no greater

rights than an ordinary citizen to restrain another.”8 Obviously, this quite a controversial

topic in today’s light, particularly in countries like the US, but the court held that the officer

conducted behaviour that was deemed unnecessary and that there was a lack of consent,

therefore quashing the initial conviction. Herring possesses a broad approach to the

meaning of “everyday battery”9. He notes that consent to battery is accepted through

implication by “all who move in society and so expose themselves to the risk of bodily

contact.”10 However, he does go on to say that conduct displayed out of the normal

standards expected in society should be deemed to require specifically expressed consent.

6
K. Stevenson, Blackstone’s Guide to the Sexual Offences Act 2003, (Published by Oxford University
Press, 2004)
7
Collins v Wilcock [1984] 1 WLR 1172
8
Collins v Wilcock [1984] 1 WLR 1172
9
Collins v Wilcock [1984] 1 WLR 1172
10
Collins v Wilcock [1984] 1 WLR 1172
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Criminal Law
Student ID: 846574
Contrastingly to these decisions, the more recent case of McMillan v CPS [2008] suggested

that consent is something that can be implied in some circumstances – the content was

easily comparable to that of Collins v Wilcock; a police officer was accused of assaulting the

appellant while attempting to transport them to a public pathway before actually arresting

them. The decision in this case, however, was that the officer had “acted in conformity with

the general accepted standards of conduct”11. Because of this reasoning, the appeal failed,

going to show that there isn’t always the necessity to express immediate explicit consent

when involved in what was described as “everyday touchings”12. It was suggested that the

actions the police officer took were in the interest of safety for the appellant, even if they

were made before a formal arrest. R v Dica [2004]13 does refer to some sexual activity with

regards to consent, which may not be the focus of discussion for this essay, but the ruling

remains relevant; it was argued by the defendant that the plaintiffs had given implied consent

to contracting HIV when they engaged in unprotected sexual intercourse. To the average

person, this of course is ludicrous as you can’t consent to catching something you are

unaware the other party has, and this was indeed the decision of the court; the plaintiffs

were not informed of the presence of HIV in the other party, and therefore it would not be

possible for them to consent to contracting something they were completely unaware of14.

There is this suggestion that it is with public policy in mind that the spread of any STD is

prevented where possible, because it does of course increase strain on the national health

11
McMillan v Crown Prosecution Service [2008] EWHC 1457
12
McMillan v Crown Prosecution Service [2008] EWHC 1457
13
R v Dica [2004] EWCA Crim 1103
14
S. Cooper, A. Reed, Informed consent and the transmission of sexual disease: Dadson Revivified,
(Published by University of Salford, 2007)
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Criminal Law
Student ID: 846574
service. The decision would imply that even if someone does consent to the contraction of a

diseases through these means, the carrier who passes it on would still have no defence as

what they were doing is causing serious bodily injury on someone, regardless of whether

consent existed. One can already infer from these judgements that the use of consent as a

means of defence in a case is difficult to express in many instances, and often the ruling will

go in favour of the victim regardless of any explicit consent, because there will always be

that ever-hovering idea of the “ordinary person” looking over the circumstances and

determining what is just using quite a lot of common sense.

Following that vein of common-sense decision making, sporting occasions will always be a

contested area for the defence of consent; what has been outlined so far is that a person

cannot consent to any serious harm to their body, of course this is especially the case if they

lack the capacity to do so15. Despite this, criminal law does generally recognise consent as a

defence in organised sports. It is within the rules of certain sports that harm be inflicted on

another to succeed in that sport, albeit in a regulated and sensible way (hence rules); rugby,

American football and boxing for instance. One could again infer that the only real issue for

contention is what would be deemed within the expectations and rules of the game. R v

Billinghurst [1978] involved a rugby match where there was an act of punching which was

deemed “off the ball assault”16 and therefore was not considered to be within the acceptable

boundaries of the sport. There was a similar incident in the case of R v Barnes [2004],

where the defendant was convicted of “maliciously inflicting grievous bodily harm”17 in the

15
Law Commission Consultation Paper No 134, Consent and Offences Against the Person,1994
16
R v Billinghurst [1978] Crim LR 553
17
R v Barnes [2004] EWCA Crim 3246
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Criminal Law
Student ID: 846574
first instance, but after an appeal the conviction was quashed. It was concluded by Lord

Woolf that due to an increase in these sorts of cases, conduct should only be classed as

criminal when the injury that was inflicted is “significantly grave”18, and of course this would

still depend on further circumstances. There is an element of contrast with the judgements

and statements made in R v Dica, as it appears that individuals could consent to what may

be construed as assault or battery in “everyday life”. Of course, one must consider whether

sporting events fall under the category of “everyday life”. Leake suggests in the Criminal Law

Review [2005] that it may be too “simplistic” to suggest that consent is only acceptable when

it is “within the standards of that particular game and that the individual taking part may

impliedly consent to the risk of injury occurring in conduct outside the rules as in a late tackle

in football…”19 Similar to Brosnan and Flynn in the International Law Journal20 when referring

to children’s horseplay or disabled people’s rights and consent and the law potentially

treating them unequally or not in their best interests, Leake puts forward that it may be

necessary to “look to a broader range of factors.”21

To continue on from horseplay and sporting events where consent is assumed, there are

also circumstances such as tattoos and piercings. While many may not be convinced to

have needles poked through various parts of their body, others relish the idea and will pay

extensive money for the pleasure. Criminal Law generally accepts that minimal bodily harm

such as these are indeed acts which an individual can consent to. The case of R v Wilson

18
R v Barnes [2004] EWCA Crim 3246
19
S. Leake, “Contact sports: application of defence of consent” Criminal Law Review  (2005)
20
L. Brosnan, E. Flynn, “Freedom to negotiate: a proposal extricating ‘capacity’ from
‘consent’” International Journal of Law in Context  (2017)
21
S. Leake, “Contact sports: application of defence of consent” Criminal Law Review  (2005)
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4100LAWPL
Criminal Law
Student ID: 846574
[1996]22 involved a defendant whom branded his wife after she requested such an act, and

she required medical attention after the fact. He was initially charged with causing actual

bodily harm under s. 47 of the Offences Against the Person Act [1861]23, because the judge

in this instance was bound by R v Donovan [1934]24. However, upon appeal, it was

determined that the act of branding was no more severe than any bodily harm which may be

caused by a tattoo, and therefore the wife’s consent was apparent and accepted and in fact

it was decided that the wife was a “willing participant” being aided by her husband, and that

no penalty should be enacted upon a married couple for being involved in a consensual

act25. With this in mind, following Brown [1993], if the couple had engaged in any behaviour

with sad-masochistic intent then the outcome of the decision would likely be that their

behaviour is unlawful. Regardless, this decision goes to suggest that the infliction of any

serious bodily harm, which is made clear in this instance by the need for medical attention,

upon another, and if the statement made in Dica is therefore applied, then the act would be

deemed as non-consensual. Therefore, it could be argued that consent of the victim should

not be not recognised as a valid defence within the criminal law.

It would appear that the precedent for this defines falls with the courts decision on what is

deemed excessive, appropriate or everyday in terms of any bodily harm. The law seems to

deny consent as a defence for actions that cause a significant degree of harm, whether the

receiver is consenting to it or not. This, as case law has shown, can refer to sporting, sexual

22
R v Wilson [1996] 2 Cr. App. R. 241
23
s. 47 of the Offences Against the Person Act [1861]
24
R v Donovan [1934] 2 KB 498
25
R v Wilson [1996] 2 Cr. App. R. 241
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Criminal Law
Student ID: 846574
acts, tattooing and piercing; there is a line that can be crossed which would invalidate

consent as a defence – excessive, out of the perceived ordinary or rules or generally

understood guidelines bodily harm. Following from this, the case of R v Brown [1994]26 did

indeed outline the “guidelines on the limits of consent”. This case involved a number of sado-

masochistic homosexual men who were involved in a series of acts of violence they

committed against each other for sexual gratification.  It was determined that their acts be

considered illegal under s. 47 of the Offences Against the Person Act (1861)27 for causing

actual bodily harm. Lord Templeman expressed that there are indeed circumstances where

inflicting actual bodily harm can be acceptable such as for surgery, but in this instance, it

was necessary consideration the interest of public policy28. The behaviour displayed by the

defendants is against public interest and should not be encouraged in society. Taking this

into account, Kyd, Elliot and Walters argue that this conclusion suggests “…legal moralism

prevailing over human autonomy …”29 and that human beings have the right to do with their

body as they please, which is quite a progressive mindset. There is of course a general

intention to cause harm, but it could be argued that this was only intended for sexual

pleasure and gratification and not as a means of torture per se, suggesting that the legal

system could be seen as criminalizing people for their sexual preferences. This is

controversial; many might suggest that what occurs within the confines of one’s bedroom is

arguably not the business of the law. However, some may contend that the legal system

26
R v Brown [1994] 1 AC 212
27
s. 47 of the Offences Against the Person Act (1861)
28
R v Brown [1993] 2 All ER 75
29
B. Falsetto, “Crossing the line: morality, society, and the criminal law” Cambridge Law
Review  (2009)
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Criminal Law
Student ID: 846574
should be intervening for the reason of protecting the people involved, for example within

cases of domestic abuse.

In the light of the quote being discusses, criminal law in the UK does not, as a general rule,

recognise consent as a defence to serious bodily injury. It is also not generally accepted

when the individual lacks the legal capacity to make that decision as they’re either mentally

incapable or underage, as previously discussed with regards to horseplay and even tattooing

underage people. On the other hand, criminal law and case law does recognise a few

exceptions with regards to, piercings, tattoos (and in a way some sexual activity) and sports,

but it is made clear by the courts that there should be a line drawn. For example, one

consents to a certain degree of injury when taking part in sports, but if the injury is out of the

bounds of what is “normal” conduct within the rules of the game then that is unlawful. These

are relatively common-sense guidelines for the determining of legality and legitimacy of

consent as a defence.  
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Criminal Law
Student ID: 846574

Bibliography

Case Law:

Collins v Wilcock [1984] 1 WLR 1172

McMillan v Crown Prosecution Service [2008] EWHC 1457

R v Barnes [2004] EWCA Crim 3246

R v Billinghurst [1978] Crim LR 553

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Criminal Law
Student ID: 846574
R v Brown [1993] 2 All ER 75

R v Brown [1994] 1 AC 212

R v Dica [2004] EWCA Crim 1103

R v Donovan [1934] 2 KB 498

R v Wilson [1996] 2 Cr. App. R. 241

Statute Law:

S. 47 of the Offences Against the Person Act (1861)

S. 74 Sexual Offences Act 2003

Books/Journals:

B. Falsetto, “Crossing the line: morality, society, and the criminal law” Cambridge Law

Review (2009)

C. P.Selinger, The right to consent: Is it absolute? (Published by BJMP, 2009)

H. M.Hurd, “The Moral Magic of Consent”, Legal Theory 2 (1996)

J. Herring, Non-Fatal Non-Sexual Offences against the Person, (Published by Oxford

University Press, 2016)

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4100LAWPL
Criminal Law
Student ID: 846574
K. Stevenson, Blackstone’s Guide to the Sexual Offences Act 2003, (Published by Oxford

University Press, 2004)

L. Brosnan, E. Flynn, “Freedom to negotiate: a proposal extricating ‘capacity’ from

‘consent’” International Journal of Law in Context (2017)

Law Commission Consultation Paper No 134, Consent and Offences Against the

Person,1994

S. Cooper, A. Reed, Informed consent and the transmission of sexual disease: Dadson

Revivified, (Published by University of Salford, 2007)

S. Leake, “Contact sports: application of defence of consent” Criminal Law Review (2005