Consent and offences against the person

Absence of the victim’s consent is one of the elements of common assault. This means that if D is charged with battery and the
prosecution proves that D intentionally punched V in the stomach, and nothing more, the defence can make a submission of ‘no case
to answer’. This is because an essential element in the offence of common assault has been left unproven, namely that the force
applied to V’s body was not consented to. This explains the decision in Slingsby.
The deliberate causing of physical injury is considered inherently unlawful and, being inherently unlawful, victim’s consent cannot
make it lawful. Donovan (1931)

What is consent?
If V submits to physical contact only due to force or the threat of force, this is not consent. However, the use of force or threat of
force is not the only way consent can be vitiated. For example, deception or threats of financial or social harm or other non-violent
threats might invalidate consent.
In Olugboja [1982], a rape case, the Court of Appeal drew a distinction between reluctant acquiescence (consent) and mere
submission (not consent).
Kirk [2008] was interpreted as a case of submission (I had no real choice) rather than reluctant acquiescence.

Consent must be effective

Consent of those who do not understand exactly what they are consenting to – for example, the young or those who lack mental
capacity – may be ineffective. For this reason a tattooist was guilty of common assault for tattooing youths of 12 and 13, consent
notwithstanding (Burrell v Harmer [1967]
Certain types of fraud may vitiate (damage) consent. Consent is not vitiated simply because a person would not have agreed to the
contact had they known all the relevant facts. It is vitiated only if the nature of the fraud prevented the victim from understanding
what they were consenting to.
Since 2003, the position on consent in relation to sexual assaults, including rape, is regulated by the Sexual Offences Act 2003. It
enacts that two deceptions vitiate consent, namely deception as to identity and deception as to the nature and purpose of the act.
The pre-2003 Act law is still authoritative in relation to non-sexual assaults which is essentially similar. In Bolduc v Bird [1967], D
asked V’s consent to conduct a medical examination on her in the presence of his ‘medical student’, who in fact was not his medical
student but a friend. It was held that her consent was not vitiated and there was no assault. Consent was given to the doctor’s action
and therefore the doctor and his friend did not commit a crime. Consent was not obtained through false or fraudulent claims to the
nature and/or quality of the acts as performed by the doctor.
A similar decision was reached in Richardson [1999], in which V submitted to dental treatment by a dentist who had been struck off.
It was held that V’s consent was not vitiated by the fact that her choice was not fully informed. The patients had consented to the
treatment. There was no fraud as to the identity of the person performing the treatment. The fraud related to the defendant’s right
to practice dentistry. She was not liable for ABH.
In both cases the deception was as to the quality of the contact rather than its nature, and to status rather than identity.
A slightly different conclusion was reached in Tabassum [2000], in which the defendant induced women to submit to breast
examinations by misrepresenting his medical qualifications. The Court of Appeal held that such mistakes could vitiate consent since
the victims were consenting to one thing (medical examination) and were getting another (indecent assault).
Judges are increasingly requiring consent to be fully informed for it to be operative. This is certainly the case in relation to the
transmission of sexually transmitted diseases. In Dica (2004) and Konzani [2005], the Court of Appeal ruled that consent to the act of
intercourse is vitiated for the purpose of common assault, ss.47 and 20 OAPA, if – unknown to V but known to D – D is suffering from
a sexually transmitted disease. Please note that consent to the act of intercourse for the purpose of the crime of rape is not vitiated
in this case, since the act of intercourse was what the victims consented to and was what took place.

Consent and violence

Although (absence of) consent is an essential element in common assault, it is not an essential element in crimes of violence such as
ss.47, 20 and 18 OAPA. This means, in effect, that the victim’s consent is not normally a defence to a crime of violence. So consent is a
defence to a kiss, a tap, a tickle or a slap, but it is not a defence to a private physical fight to settle an argument (as occurred in A-G’s
Reference (No 6 of 1980) [1981]. In this case Lord Lane CJ said:
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.
Minor struggles are another matter.
In reaching this decision, the Court of Appeal approved the case of Donovan [1934]. The appellant was charged with indecent and
common assault upon a girl whom he had beaten with a cane, with her consent, for his own sexual gratification. Explaining his
decision, Swift J said:
If an act is unlawful in the sen se of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to
whose detriment it is done consents to it. No person can license another to commit a crime...As a general rule, although it is a rule to
which there are well established exceptions, it is an unlawful act to beat another person with such a degree of violence that the
infliction of bodily harm is a probable consequence, and when such an act is proved, consent is immaterial.
Let us examine more closely the claim that consent is ineffective where physical injury has been sustained. It is more accurate to say
that, in the case of deliberately inflicted harm, consent will be ineffective unless the activity from which the harm derives is privileged
as being in the public interest. In the case where the harm is not deliberately inflicted, consent will usually be effective because of the
presumption that people should be free to take risks of physical harm.

Deliberate infliction of harm

A-G’s Reference (No 6 of 1980) is authority, in effect, for the proposition that where injury is inflicted deliberately it cannot be
consented to, unless the context within which the injury is inflicted is specially privileged on public interest grounds. Causing injury for
sexual gratification is not deemed to be in the public interest. In Brown [1994], a case involving a consensual homosexual orgy in
which quite serious injuries involving the genitals were deliberately inflicted, Lord Templeman for the House of Lords put it:
In my view the line properly falls to be drawn between assault at common law and the offence of assault occasioning actual bodily
harm created by s.47 of the 1861 Act, with the result that consent of the victim is no answer to anyone charged with the latter offence
or with a contravention of s.20 unless the circumstances fall within one of the well-known exceptions such as organised sporting
contests and games, parental chastisement or reasonable surgery.
In Emmett, consent was similarly not available where a heterosexual couple engaged in consensual sado-masochistic activities of a
particularly dangerous nature designed to enhance sexual pleasure, including the burning of the woman’s chest with lighter fuel and
partial suffocation.

Exceptions

Surgery, tattooing and body alteration

Other exceptions to the rule that deliberately inflicted harm cannot be consented to include, as Lord Templeman remarks,
‘reasonable surgery’. The implication behind the use of the word ‘reasonable’ is not clear, but probably does not require the surgery
to be clinically necessary but, rather, reasonable according to the ethical standards informing surgery at the relevant time.
Sex change operations and cosmetic surgery are therefore capable of being consented to, subject always to the requirement that the
consent is informed. (Brown)
Tattooing, ear piercing and other forms of body piercing and body alteration may also be consented to if reasonable (Brown).
In Wilson [1997], the Court of Appeal ruled that it was not unlawful for a man to brand his partner on the buttocks with a hot knife
when it was consensual and done for purposes of adornment rather than simply to cause injury. The Court said that the criminal law
should be slow to interfere with what people do in private. This does not affect the decisions in Brown and Emmett. The rather fragile
distinction to be drawn between these cases and Wilson is that in the latter the consensual hurt suffered by V was incidental rather
than the point of the exercise. The Court drew an analogy between this case and a case of tattooing, which is also lawful where
consented to.
Compare also the recent case of R v BM [2018]. The Court of Appeal ruled that consent would not render lawful the removal by a
tattoo artist of a customer’s ear, of another customer’s a nipple or the division of a tongue into two to produce an effect similar to a
snake. There was no possible public benefit attached to such a procedure and, involving gratuitous mutilation, the procedure was too
far removed from tattooing and piercing to sustain the argument that to criminalise would be an unreasonable interference with
personal liberty.

Non-deliberate infliction of harm

Games and sports

The other privileged activities referred to by Lord Templeman include lawful sports and games. Consent is effective in relation to this
category for a different reason than that for boxing – namely that the taking of risks and engaging in dangerous pursuits is normal
human activity and should be criminalised only if the risk-taking is contrary to public policy. Injuries inflicted in the course of contact
sports such as football and rugby will therefore be prima facie lawful unless deliberately inflicted, in which case consent, even were it
to be present, is ineffective.
This is the conclusion to be drawn from Barnes [2004] EWCA Crim 3246 where the Court of Appeal said that resort to the criminal
courts in cases of sporting injury should be exceptional. Most sports have their own codes of discipline which can properly be
deployed in the face of dangerous play. An instinctive error, reaction or misjudgement in the heat of a game was not to be treated
any differently. However, intentionally caused injuries give no immunity:

Horseplay
The decision in the A-G’s Reference (No 6 of 1980) case must be distinguished from cases of rough and undisciplined horseplay. The
essence of the former was that the blows landed by the accused were intended to cause injury. Play fighting and other expressions of
high spirits which result in physical injury are not so treated and consent may therefore be a defence. In Jones (1986), D (a schoolboy)
and others, to celebrate V’s birthday subjected V to the ‘bumps’ (a procedure involving throwing the subject into the air and allowing
them to drop on the ground). This caused V to suffer a broken arm and a ruptured spleen. D’s appeal against a conviction under s.47
was allowed. Given the context there was evidence of either express or implied consent to the ‘bumps’ procedure. In any event even
if consent were absent such that the actus reus was established, the defendants’ belief that V was a willing participant meant that
they lacked the mens rea for the crime charged.

Sexual relations
Consent, express or implied, is effective in relation to harms committed during sexual activity, so long as these are not deliberately
inflicted for their own sake. Brown
In Slingsby (1995), D inserted his hand into V’s vagina and rectum with her consent. A ring which he was wearing caused internal cuts,
and V later died of septicaemia. In the subsequent trial for manslaughter, D was held not to have committed an assault and so could
not be liable for manslaughter.
In cases involving the transmission of sexually transmitted diseases, informed consent will be effective to prevent liability under s.47
or s.20. Authority for this is Konzani (2005), in which the Court of Appeal made clear that so long as the transmittee of the disease
knew of the disease at the time of intercourse, she consented both to the intercourse and to the risk of transmission of the disease.