Consent is no defence to murder as no one will consent to anyone wanting to kill himself or herself.
There are only a few occasions in fraud that can actually validate consent.
Fraud does not necessarily negative consent; it only does so in the situations where it deceives V as to the identity of the person or the nature and quality of D’s act.
For example, a woman who consents to someone who acts as a gynaecologist, but who actually wants to fulfil some weird pleasures of his.
The case of Richardson 1998 involved the first situation. D was a dentist who had been suspended by the General Dental Council. However, she continued to treat her patients until she was detected and prosecuted. She was convicted of six counts of actual bodily harm. It was held that her fraud to continue to treat her patients negatived her patients’ consent. The court of appeal allowed her to appeal, even though they described her treatment as ‘reprehensible’. It was held that the patients were consenting treatment by her, and that it was irrelevant that they would not have consented if they had known the truth.
In the case of Tabassum 2000, the court of appeal upheld convictions of indecent assault. D had examined a number of women’s breasts after telling them that he was medically qualified, which he was not. The court held that the women had only consented because they believed that it was for medical purposes, when actually they had been deceived as to the ‘quality’ of D’s act and hence there was no consent.
There are limitations on consent to anyone when it comes to infliction of harm upon them. A fight in public is unlawful at common law as a breach of peace. This is because the whole enterprise in unlawful, consent is not a defence. However, boxing under the Queensbury rules is treated differently. A boxer who tries to knockout his opponent certainly has the intention to cause serious harm, which is sufficient mens rea for murder and in the case of R vs. Brown 1993 all Lordships accepted that boxing was lawful. In this case two youths aged 17 and 18 decided to settle and argument with fists. One had sustained a bloody nose and bruised face. The other was found guilty of assault occasioning actual bodily harm.
In the Attorney-General’s Reference (No. 6 1980) it was stated:
‘…It is not in the public interest that people should try to cause or should cause each other ABH for no good reason. Minor struggles are another matter. So, in our judgement, it was immaterial whether the act occurs in private or in public; it is an assault if ABH is intended and/or caused. This means that most fights will be unlawful regardless of consent.’
Is there a defence of consent when the charge is one of GBH caused by rough and undisciplined play?
It all depends on the consent by the person. Consent by boys to rough and undisciplined play may be a defence to a charge of inflicting GBH if there is no intention of causing any injury. Consent or a genuine belief of consent even an unreasonable belief, apparently negatives consent. In the case of R vs. Jones 1987 boys where being injured by being tossed in the air by schoolmates. The decision recognised that boys have and always will indulge in rough and undisciplined games among themselves. But the law rightly protects the non – consenting child.
This was further explored in the case of R vs. Aitken 1992. In this case the ‘robust games’ of RAF officers at a celebration in the mess included setting fire to one another’s fire resistant clothing. There where two incidents which had caused no harm, but when P had his go, he suffered severe burns. It was held at the ruling that it was not open to the court martial to find the ‘activities’ where lawful was wrong. If P consented, or if D believed, reasonably or not, that P consented to them, it was open to the trial court to find that there was no offence.
This case shows that even a little hint of consent could validate anything that happens to the victim.
The validation of consent has now been extended from tattooing to branding. This was found in the case of Wilson 1997, where it was held that branding was no more hazardous than a tattoo.
In this case D, Alan Wilson, had branded his initials onto his wife’s buttocks using a hot blade, after she had asked him to do it. She regarded the branding as a ‘desirable personal adornment’. The matter only came to light when her doctor reported the incident to the police. D was convicted of assault occasioning actual bodily harm but the court of appeal allowed his appeal. It was the judge’s opinion that the law will not and should not intervene in actions between consenting adults in private behind closed doors.
This case shows that when couples that both consent to what they are going to do then there can be no crime, especially when both are mature adults. This shows the changing influence of public policy. However in the case of Brown and others 1993 this was deemed not to be the case. In this case Anthony Brown and other appellants belonged to a group of sadomasochistic homosexuals who, over a 10-year period willingly and enthusiastically participated in acts of violence against each other in order to gain sexual pleasure. Most of these acts were taken place in rooms that was designed as torture chambers. Activities included branding with hot metal or wire that was heated by a blow-lamp and genital torture. There was no complaints to the police, no medical attention was ever needed and there was no permanent injuries where sustained. The police discovered the activities by accident. All members were charged with various offences, including ABH under S.47 and wounding under S.20.
They were convicted, and there appeal was dismissed.
It was held that in the opinion of the majority, public policy requires the conviction of men participating in consensual sadomasochistic homosexual encounters resulting in ABH and wounding, so to protect society against a cult of violence with the danger of corruption of young men.
This case shows that even though all men had consented to what they was doing there was still no defence to what they had taken part in. As it was said above crimes that affect and could influence the society is a crime that should be convicted of.
