Consent
Content
Consent
Consent can be a defence against battery and other offences against the person, but is
never a defence to murder or to situations where serious injury is caused.
It is not technically a defence as when the other person consents, there is no offence.
o Donovan 1934- D caned 17yr old girl for sexual gratification, causing
bruising. D convicted of indecent and common assault; conviction quashed on
basis that V had consented to the act.
o Slingsby 1995- D charged with involuntary act manslaughter; V had died from
blood poisoning following consented, ‘vigorous’ sexual activity, during which
D’s signet ring caused cuts to V. V’s consent mean there was no battery or
other form of assault, so D was held to be not guilty- no unlawful act.
o Burrell v Harmer 1967- D was held to have caused GBH to young teenage
boys by giving them piercings and tattoos. Despite their consent, it wasn’t true
consent due to them being underage.
o Gillick v West Norfolk AHA 1986- a mother sought a declaration that if a
doctor gave contraceptive treatment to her daughters without her consent, they
would be acting unlawfully. Issues of teenage pregnancies and underage sex
arose. Held that it was not an unlawful act; a child under 16 who understands
the implications of a medical treatment (a ‘Gillick competent’ child) can give
own consent to medical treatment.
However, the consent given must be real and informed, and submission through fear
is not the same as true consent.
o Tabassum 2000- D persuaded woman to let him measure their breast for
purpose of preparing a database for sale to doctors. Women were aware of
nature of the act, but said they only consented because they thought D had
either medical qualifications or training.
o Olugboja 1982- V had been raped by D’s companion, and seen her friends
raped by the same man. Submitted to having sex with D; D claimed this meant
she had consented. Court of Appeal held there was a difference between real
consent and submission, and it was for the jury to decide whether the consent
was real.
o Dica 2005- D knew he was HIV positive and had unprotected sex with two
women. They both became infected, and claimed that they hadn’t known about
his HIV and if they had, wouldn’t have consented to unprotected sex. D
charged under S.20 OAPA 1861. Judge didn’t allow the issue of consent to go
to the jury, and a re-trial was ordered but the decision was confirmed in
Konzani 2005.
o Clarence 1888- Unknown to his wife, D had a disease and the wife became
infected following sex. Held that a wife’s general consent to sex with her
husband meant there was no assault; this was overruled in Dica 2005 and
Konzani 2005.
Implied consent is the idea that there are situations where the courts imply consent to
minor touching where otherwise there would be a battery. This applies to things like
brushing past people in a crowd.
o Wilson v Pringle 1987- held that ordinary jostlings of everyday life are not
battery; also applies to ordinary contact within contact sports.
This idea of implied consent also applies to contact sports. When a person takes part
in such a sport, they are agreeing to contact that is normally part of it.
The breach of rules of sport must be serious for consent to not be a defence.
o Attorney-General’s Reference (No 6 of 1980) 1981- two men agreed to settle
their differences through street fighting. Court of Appeal held that consent
could not be a defence to such an action, as it was not in the public interest.
o Barnes 2004- D made a late tackle during football match and injured V’s leg.
S.20 conviction quashed, as breach of sports rules wasn’t serious.
Barnes 2004 set out what needs to be considered when decided whether or not there is
an assault during sport. If the injury is intentional it will be criminal, and if reckless
then it must be considered whether it occurred during play or in the heat of the
moment afterwards. Additionally, off the ball injuries are more likely to be criminal.
o Billinghurst 1978- D punched V in the fact during a rugby match. Convicted
of S.20 as was away from play, and didn’t come under implied consent/rules
of the game.
As it is not in the public interest, it has been stated that consent is not a defence to
S.47 ABH offence unless it is one of the exceptions recognised by the courts. Such
exceptions include ‘properly conducted games and sports, lawful chastisement or
correction, reasonable surgical interference, dangerous exhibitions, etc’.
o Brown 1993- men in a group of consenting adult sadomasochists convicted of
causing ABH and malicious wounding. Carried out acts including applying
stinging nettles to the genital area. All victims had consented and none had
needed medical attention, but their convictions were upheld.
o Wilson 1996- Court of Appeal held that where D had branded his initials into
his wife’s buttocks with a hot knife at her request, there was no unlawful act
despite medical attention being required. Held it was not in public interest that
such consensual behaviour should be criminalised, and this was like a
‘personal adornment’ similar to a tattoo.
o Emmett 1999- ‘high risk’ sexual activity resulted between V suffering eye
haemorrhages and burns to her breasts. Court of Appeal held that consent was
not a defence as the harm caused was more than ‘transient or trivial.’
o Watkins 2001- D put student in an arm lock to prevent a fight. Held that
teachers may use reasonable force to restrain unruly pupils but may not issue
corporal punishment.
o R v H 2002- D used a belt to administer corporal punishment to their child;
held that defence of lawful chastisement is available to parents/guardians.
However, the judge must decide whether or not the force was excessive, in
which case there would be no defence.
Another exception where consent is allowed is where surgery is required to improve a
patient’s health. Mentally capable adults can consent to or refuse responsible medical
treatments; if they refuse and the treatment is still performed then there is an offence.
If a patient is unconscious and relatives cannot be spoken to regarding consent,
necessary treatment that must be performed quickly can occur without actual consent.
Where D genuinely, but mistakenly, believes that V is consenting then there is a
defence to an assault.
o Jones 1986- two young schoolboys tossed into air by older youths; one
suffered a broken arm, the other a ruptured spleen. Ds claimed they thought Vs
had consented; Court of Appeal quashed S.20 convictions as judge hadn’t
allowed the issue of mistaken belief in consent to go to the jury. Court held
that a genuine mistaken belief in consent could be a defence, even if that belief
was unreasonable.
o Aitken 1992- RAF officers poured spirit over V who was wearing a fireresistant fire suit, but who was asleep and drunk at the time. He suffered 35%
burns, but Ds S.20 convictions quashed as the mistaken belief in V’s consent
should’ve been left to the jury.
o Collins v Wilcock 1984- D, a police officer, had grabbed a woman’s arm after
she refused to speak to him and walked away. She became abusive and
scratched D’s arm. Her conviction was quashed as by holding her arm but not
arresting her, D was acting unlawfully and she had a right to free herself.
Problems and Reforms
Some cases suggest that the courts are prepared to condone acts where the parties are
consenting heterosexual adults, but not those where the parties are consenting
homosexual adults. Imposing own moral values on law? Contradicting decisions.
Public policy- in a civilised society, cruelty should not be tolerated and so Vs cannot
consent to injuries caused by the deliberate infliction of cruelty.
It is in the public interest to interfere with the freedom of individuals and their right to
do what they choose.
Horseplay- even when such behaviour causes serious injuries, consent can be a
defence and an honest mistaken belief in consent can provide a defence.
Consent and sexual offences- rape can occur even if someone genuinely believes their
sexual partner to be above the age of consent.
Consent and euthanasia- people cannot consent to their own death. Suicide is a
different matter, but where one requires help to commit suicide, the person helping
can be guilty of an offence.
o Pretty 2001- D was suffering from motor neurone disease, and knew she
would eventually suffocate to death. She wanted her husband to help her
commit suicide, and applied for a judicial declaration that would protect her
husband from prosecution if he helped her. House of Lords refused.
Sexual Offences At 2003 defines consent in S.74, and introduces the idea of
‘evidential presumptions’ where consent is not available. Should such presumptions
apply to non-sexual offences?
Law Commission Consultation Paper 1996- suggested changing some situations
where consent can be used therefore clarifying the law.
Consent can be a defence against battery and other offences against the person, but is
never a defence to murder or to situations where serious injury is caused.
It is not technically a defence as when the other person consents, there is no offence.
o Donovan 1934- D caned 17yr old girl for sexual gratification, causing
bruising. D convicted of indecent and common assault; conviction quashed on
basis that V had consented to the act.
o Slingsby 1995- D charged with involuntary act manslaughter; V had died from
blood poisoning following consented, ‘vigorous’ sexual activity, during which
D’s signet ring caused cuts to V. V’s consent mean there was no battery or
other form of assault, so D was held to be not guilty- no unlawful act.
o Burrell v Harmer 1967- D was held to have caused GBH to young teenage
boys by giving them piercings and tattoos. Despite their consent, it wasn’t true
consent due to them being underage.
o Gillick v West Norfolk AHA 1986- a mother sought a declaration that if a
doctor gave contraceptive treatment to her daughters without her consent, they
would be acting unlawfully. Issues of teenage pregnancies and underage sex
arose. Held that it was not an unlawful act; a child under 16 who understands
the implications of a medical treatment (a ‘Gillick competent’ child) can give
own consent to medical treatment.
However, the consent given must be real and informed, and submission through fear
is not the same as true consent.
o Tabassum 2000- D persuaded woman to let him measure their breast for
purpose of preparing a database for sale to doctors. Women were aware of
nature of the act, but said they only consented because they thought D had
either medical qualifications or training.
o Olugboja 1982- V had been raped by D’s companion, and seen her friends
raped by the same man. Submitted to having sex with D; D claimed this meant
she had consented. Court of Appeal held there was a difference between real
consent and submission, and it was for the jury to decide whether the consent
was real.
o Dica 2005- D knew he was HIV positive and had unprotected sex with two
women. They both became infected, and claimed that they hadn’t known about
his HIV and if they had, wouldn’t have consented to unprotected sex. D
charged under S.20 OAPA 1861. Judge didn’t allow the issue of consent to go
to the jury, and a re-trial was ordered but the decision was confirmed in
Konzani 2005.
o Clarence 1888- Unknown to his wife, D had a disease and the wife became
infected following sex. Held that a wife’s general consent to sex with her
husband meant there was no assault; this was overruled in Dica 2005 and
Konzani 2005.
Implied consent is the idea that there are situations where the courts imply consent to
minor touching where otherwise there would be a battery. This applies to things like
brushing past people in a crowd.
o Wilson v Pringle 1987- held that ordinary jostlings of everyday life are not
battery; also applies to ordinary contact within contact sports.
This idea of implied consent also applies to contact sports. When a person takes part
in such a sport, they are agreeing to contact that is normally part of it.
The breach of rules of sport must be serious for consent to not be a defence.
o Attorney-General’s Reference (No 6 of 1980) 1981- two men agreed to settle
their differences through street fighting. Court of Appeal held that consent
could not be a defence to such an action, as it was not in the public interest.
o Barnes 2004- D made a late tackle during football match and injured V’s leg.
S.20 conviction quashed, as breach of sports rules wasn’t serious.
Barnes 2004 set out what needs to be considered when decided whether or not there is
an assault during sport. If the injury is intentional it will be criminal, and if reckless
then it must be considered whether it occurred during play or in the heat of the
moment afterwards. Additionally, off the ball injuries are more likely to be criminal.
o Billinghurst 1978- D punched V in the fact during a rugby match. Convicted
of S.20 as was away from play, and didn’t come under implied consent/rules
of the game.
As it is not in the public interest, it has been stated that consent is not a defence to
S.47 ABH offence unless it is one of the exceptions recognised by the courts. Such
exceptions include ‘properly conducted games and sports, lawful chastisement or
correction, reasonable surgical interference, dangerous exhibitions, etc’.
o Brown 1993- men in a group of consenting adult sadomasochists convicted of
causing ABH and malicious wounding. Carried out acts including applying
stinging nettles to the genital area. All victims had consented and none had
needed medical attention, but their convictions were upheld.
o Wilson 1996- Court of Appeal held that where D had branded his initials into
his wife’s buttocks with a hot knife at her request, there was no unlawful act
despite medical attention being required. Held it was not in public interest that
such consensual behaviour should be criminalised, and this was like a
‘personal adornment’ similar to a tattoo.
o Emmett 1999- ‘high risk’ sexual activity resulted between V suffering eye
haemorrhages and burns to her breasts. Court of Appeal held that consent was
not a defence as the harm caused was more than ‘transient or trivial.’
o Watkins 2001- D put student in an arm lock to prevent a fight. Held that
teachers may use reasonable force to restrain unruly pupils but may not issue
corporal punishment.
o R v H 2002- D used a belt to administer corporal punishment to their child;
held that defence of lawful chastisement is available to parents/guardians.
However, the judge must decide whether or not the force was excessive, in
which case there would be no defence.
Another exception where consent is allowed is where surgery is required to improve a
patient’s health. Mentally capable adults can consent to or refuse responsible medical
treatments; if they refuse and the treatment is still performed then there is an offence.
If a patient is unconscious and relatives cannot be spoken to regarding consent,
necessary treatment that must be performed quickly can occur without actual consent.
Where D genuinely, but mistakenly, believes that V is consenting then there is a
defence to an assault.
o Jones 1986- two young schoolboys tossed into air by older youths; one
suffered a broken arm, the other a ruptured spleen. Ds claimed they thought Vs
had consented; Court of Appeal quashed S.20 convictions as judge hadn’t
allowed the issue of mistaken belief in consent to go to the jury. Court held
that a genuine mistaken belief in consent could be a defence, even if that belief
was unreasonable.
o Aitken 1992- RAF officers poured spirit over V who was wearing a fireresistant fire suit, but who was asleep and drunk at the time. He suffered 35%
burns, but Ds S.20 convictions quashed as the mistaken belief in V’s consent
should’ve been left to the jury.
o Collins v Wilcock 1984- D, a police officer, had grabbed a woman’s arm after
she refused to speak to him and walked away. She became abusive and
scratched D’s arm. Her conviction was quashed as by holding her arm but not
arresting her, D was acting unlawfully and she had a right to free herself.
Problems and Reforms
Some cases suggest that the courts are prepared to condone acts where the parties are
consenting heterosexual adults, but not those where the parties are consenting
homosexual adults. Imposing own moral values on law? Contradicting decisions.
Public policy- in a civilised society, cruelty should not be tolerated and so Vs cannot
consent to injuries caused by the deliberate infliction of cruelty.
It is in the public interest to interfere with the freedom of individuals and their right to
do what they choose.
Horseplay- even when such behaviour causes serious injuries, consent can be a
defence and an honest mistaken belief in consent can provide a defence.
Consent and sexual offences- rape can occur even if someone genuinely believes their
sexual partner to be above the age of consent.
Consent and euthanasia- people cannot consent to their own death. Suicide is a
different matter, but where one requires help to commit suicide, the person helping
can be guilty of an offence.
o Pretty 2001- D was suffering from motor neurone disease, and knew she
would eventually suffocate to death. She wanted her husband to help her
commit suicide, and applied for a judicial declaration that would protect her
husband from prosecution if he helped her. House of Lords refused.
Sexual Offences At 2003 defines consent in S.74, and introduces the idea of
‘evidential presumptions’ where consent is not available. Should such presumptions
apply to non-sexual offences?
Law Commission Consultation Paper 1996- suggested changing some situations
where consent can be used therefore clarifying the law.
