Criminal Law II- Topic 3: Consent and Assault

Summary
What harms should you be allowed to consent to?
How may consent limit liability?
Consent at common law – R v Brown
Criticism of R v Brown
Later cases
Consent and the 1997 Act – DPP v Brown
Criticism of DPP v Brown
Informed consent

How can consent limit liability?

Assuming factual consent is there, what can a person consent to, and is there consent even relevant to liability?

Consent may be used to limit criminal liability through an offence or a defence model.
Offence model – It is an offence for D to do X, without the consent of V. eg sex. Sex is not illegal, but sex with an Un-
consenting person is. S2

Defence model – It is an offence for D to do X. D shall have a defence to X where V consents. Eg It is an offence, but if
they consent then there is a defence.

Exceptions – both models may incorporate exceptions.

Consent at common law- R V BROWN [1993]

Facts: Police run into a sadomasochistic orgy while investigating something else. Everybody is consenting, but does that
consent even matter when they are being branded and whipped?
Basic common law rules
You can consent to what would otherwise be an assault or battery.
You cannot, generally, consent to higher-level harm.
There are exempted categories of higher-level harm which you can consent to.

The view of the majority in Brown –

Exceptional areas where consent can provide a defence: boxing, horseplay, tattooing.
The activities in question do not fall within these exceptions.
Does the public interest require the creation of a new consent defence for Sadomasochistic activities? No.
It is for Parliament to decide if a defence should apply to this behaviour.

The view of the minority in Brown –

Exceptional areas where consent cannot provide a defence: prize fighting and duelling.
The activities in question do not fall within these exceptions.
Does the public interest require the offences to be interpreted so as to criminalise this conduct? No.
It is for Parliament to decide whether the activities should be criminalised.

Bamforth- if autonomy is to mean anything, why should the state have a say in what we do in our own private
bedrooms?
BM (Body modification) [2018]
Should factual consent to body modification such as splitting of a tongue, removal of a nipple and removal of an ear
preclude liability for offences against the person?

Body mods do not fit in a common law category (offences where consent is relevant or irrelevant.) Because it does not
fit in the categories, CoA does not want to go creating new categories. It would be unreasonable for the court to
criminalise or legalise this, so it is up to legislation to create an act on it.

For comment, see Laura Donnellan, ‘Consent and the Common Law Exceptions: R. v Brown Still Good Law’ Irish Criminal
Law Journal 2020, 30(3), 62-71.

Barnes [2004]
Super messy.
FACTS- The appellant was an amateur footballer. He was playing a football match, went in for a tackle and seriously
injured his opponent’s leg. He was charged with inflicting grievous bodily harm under section 20 of the Offences Against
the Person Act

When is it appropriate for criminal proceedings to be brought after an injury occurs in the course of sport, by one to
another? The court found that as most sports have their own disciplinary procedures and rules, such conduct is usually
dealt with appropriately within the sporting context. The court need only intervene when the conduct that has
occurred is extreme or seriously grave and can be properly categorised as criminal. The conduct that occurs must
reach the required threshold to be considered grievous bodily harm.

If what occurs goes beyond what a player can ‘reasonably be regarded as having accepted’ by taking part in the sport,
this indicates that the conduct will not be covered by the defence. -Lord Woolf

Factors of relevance in assessing a possible offence- objective, state of mind, what level they are playing to, degree of
force, rules of the sport.

In borderline cases, it goes to the jury to decide.

O’Moore-

Consent and the 1977 Act – DPP V BROWN [2018] SC

Facts: D and V were prisoners in Portlaoise prison. D hit V with a mug in a sock, and V needed stitches.

Could D run a defence of consent at trial? --> At first instance, this was rejected in consequence of Dolny [2009] IESC 48
and D was subsequently convicted of S.3 assault causing harm.

On appeal, the Supreme Court unanimously held that Dolny was wrongly decided: assault causing harm was a
compound offence. What was required in s2 (action without consent) is also required in s3.

SC did, however, split on the limits of consent arguments in section 3.

The majority placed weight on section 22 of the 1997 Act and concluded that there remained categories (such as the
present case) where factual consent would be legally irrelevant.

The minority view was that the 1997 Act had raised the general level of harm to which a person could consent and that
the issue of consent should have been let to the jury.
Prendergast-

WHERE IS IRISH LAW LEFT?

Offence Role of consent
Assault Absence of consent is part of the offence and likely functions without exception.
Assault causing harm Absence of consent is part of the offence and functions with exceptions.
Causing serious harm A defence of consent is generally not available but likely will be for exceptional
categories.

Assault with intent to cause A defence of consent is generally not available but likely will be for exceptional bodily
harm or commit indictable categories
Offence.

Informed Consent
Dica [2004] - Transmission of HIV during consensual sex. D knew, V didn't. D was tried for grievous bodily harm. Did V
consent to the risk of harm, if P is unaware of the risk? No, there is no consent. Reckless transmission.

Konzani [2005] - Is there an obligation on V to ask if they have HIV? Is there a liability if D lies? D knew, Konzani relied on
the defence of reasonable or genuine belief against s 20 of the Act. However, on appeal it was found that Konzani’s
concealment of his HIV status was incongruent with honesty. However, it was distinguished on the basis that where
Konzani had knowingly concealed the fact that he had HIV from his sexual partners, his sexual partner’s personal
autonomy could not reasonably be expected to extend to anticipate his deception. Therefore, his concealment of his
condition consequently led to the transmission of HIV to the complainants. The complainants could not have given
proper consent as they were not honestly informed. The defence of honest belief was not upheld under s 20 of the Act.
The appeal was dismissed, and the conviction stayed.