Consent to harm, discuss.

It therefore seems that the general rule is that consent to the infliction of harm only is a defence when the harm occurs in the pursuit of conduct where foresight or intention to commit harm is not an aim. It is necessary in looking at public policy implications examine what it is considered by the courts as ‘sufficient reason’ (Allen, 2007) for harm.  

Cases such as Wilson [1996] Cr App R 241 show a difference in the courts interpretation in line with public policy. The court attempted to depart from Brown and based it on the fact that the act of branding in Wilson was initiated by Mrs Wilson, and the motivation was sexual and not violent. But whilst Mrs Wilson required medical treatment no medical treatment was required in R v Brown. It could be argued that as branding was involved in the sadomasochistic activities in Brown, the only other distinction is the fact that Brown involved homosexual sadomasochism and Wilson involved a heterosexual couple in their matrimonial home engaging in an act that could similarly be described as sadomasochistic. This suggests that there is a certain degree of prejudice in using public policy as an effective interpretation tool. Lord Justice Russell opined that ‘consensual activity between husband and wife, in the privacy of the matrimonial home is not’ a matter ‘for criminal investigation. However in Emmett the matter was clarified, the determination was that there was no distinction between homosexual and heterosexual in regard to consent to actual bodily harm and the main issue was that consent does not negative harm when there is foresight of the said harm. Also the level of harm if a key factor and the ‘potential damage to the appellants partner’ (Allen, 2007, p363) in Emmett ‘went far beyond that which was established by evidence in Wilson’ (Allen, 2007, p363)

Public policy was also an issue in the development and interpretation of the transmission of the diseases and whether this can be impliedly consented to. In Clarence (1888) 22 QBD 23, it was argued that concealment vitiated consent but it was found that consent to sexual intercourse also carried an implication of consent to the risk of the venereal disease contracted. This was however overruled by R v Dica [2004] All E.R. 593, the case which involved concealment and unprotected sex which led to the victim contracting the HIV virus. It was found that whilst the victim consented to the sexual intercourse that did not give implied consent to injury or disease and therefore consent was limited to the act and not the consequences of the act. It also showed the shift in the interpretation of the courts when it came to consensual sexual intercourse which involved an extreme risk ‘to the physical health of one participant’ (Ormerod, 2006). This not only showed the changed in the interpretation of public policy between Clarence and Dica but also showed the fact that the implications of the ‘catastrophic illness’ (Ormerod, 2006, p686) was a massive public concern as opposed to the venereal disease in Clarence. The implications and possible spread of the disease was clearly in the public interest and therefore was a rightly a consideration but the decision in R v Dica leaves many questions also. Whilst the risk is a public policy consideration, so is implied consent and reliance on an ‘honest belief’ (Allen 2007, p364) in the case of transmission of HIV is not sufficient to negative harm and therefore whilst consent would remain a defence it would be for the prosecution to disprove consent. A further quandary is whether there ever for public policy reasons can be informed consent in cases involving HIV. The decision is R v Brown suggests the answer is no as there similarly is a risk of harm to one of the participants. But personal autonomy is a significant factor in considering public policy, if there cannot be informed consent then that would be a statement that a person infected with HIV could not have consensual sex for the remainder of their life. This surely would have Article 8 of the European Convention of Human rights implications as an interpretation such as this would surely infringe on the right to a private life. Also ‘interference of this kind ‘and its level and extent may only be made by parliament’ (Ormerod, 2006. p695) Personal autonomy however has always had to be balanced with domestic law and informed consent was acknowledged, but absent for the participant in Dica.

In Laskey v UK (1997) the European Court of Human Rights tackled consent and personal autonomy. One of the defendants in R v Brown argued violation of his Article 8 rights. The question posed was whether ‘such and interference was necessary in a democratic society’ it found that although such interference could not be ‘of a trifling or transient nature’, (R v Brown) in this case it was not ‘trifling or transient’ and had already distinguished itself from previous applications with the ‘degree of injury and wounding’. This impliedly affirmed the prosecution’s contention that the criminal law had a right to ‘deter such behaviour on public health grounds but also for broader moral reasons’ (Ormerod, 2006). This therefore suggests that Sadomasochists could have some protection depending on the extent of the physical injury. It would however be likely that the public policy implications of cases such as Brown and Dica would not be as binding on the courts if there were not the possibility of significant consequences to the acts or concealment which instigated the proceedings.

The law consistently makes distinctions though through the guise of public policy. Sport and medical procedures are two exceptions where in some cases the intention is still to commit harm or in the case of the latter, specifically surgical procedures, it is foreseeable that the harm or death may or will occur. But as long as it is within the framework of the rules or ethics of the respective professions then the consent aspect to a certain extent vitiates criminal liability. However where the consent is only partial or conditional, there is some type of concealment or the person exceed the rules or ethics of the profession with that same intent, case law suggest that affects the act and thus negates consent. This was apparent in R v Tabbassum [2002] Cr. App.R. 328 where there was consent by the victims to a breast examination for a cancer survey, but unaware to them the defendant was not medically qualified. It was found that consent was conditional on the mistaken belief that the defendant was medically qualified. Therefore the consent was vitiated as the ‘quality of the act’ (Penny Childs & Paul Dobson, Criminal Law, 2008) was not what they consented to. In Attorney-General's Reference (No. 6 of 1980) ‘chastisement or correction’ was seen as an exception and it was considered that whilst there may be a breach of other offences the respondent ‘would, or might, not be guilty of assault if the victim agreed to fight, and the respondent only used reasonable force’ (A-G Reference No. 6 of 1980). The fact that it ‘proceeded on a different basis’ (A-G Ref) to that of R v Donovan [1934] 2 K.B. 498 showed that consent wasn’t immaterial where ‘actual bodily harm was intended or a probable consequence’ (A-G Ref). The Lords followed their own reasoning based not only on previous decisions but ‘conditions of the times’ (A-G Ref). ‘Public policy interpretation therefore has rules and then exceptions. What is considered consistent and contrary to it, but the issue of public policy would suggest ‘crimes against the defenceless’ (R v Brown) are what are to be criminal and vitiate consent. This would be consistent with cases such as R v Dica and R v Tabassum where there was a concealment issue. But cases such as R v Brown and Emmett where there was informed consent it is arguable that public policy is another word for legal morality and due to the unfixed nature of morality something interpreted as unlawfully consensual today could be considered otherwise in a decade. I would therefore surmise that the dicta in these cases and the ratio clearly support the view of Lord Woolf and the number of cases supports the fact that to a great extent public policy is a consideration in cases involving actual bodily harm. There is thus a great difficulty in identifying if in any circumstances a person can consent to actual bodily harm as it depends on these considerations. R v Brown is not an authority for the fact that a person or persons can never consent to a section 47 offence, but rather that it is not in the ‘public interest that a person should wound or cause actual bodily harm to another for no good reason’. I would thus conclude that as morality changes so will the legal interpretation of circumstances that a person can consent to actual bodily harm. The ‘good reason’ requirement in R v Brown will widen, and determination on public policy ‘will be progressively more significant in deciding whether it is apt to criminalise consent to actual bodily harm.

Word Count 2035

Referencing Section

Childs, Penny and Dobson, Paul (2008) Criminal Law, Sweet and Maxwell

Allen, Michael. (2007).Textbook on Criminal Law. 9th Edition. Oxford University Press

Ormerod, David (2006) Smith & Hogan Criminal Law, 9th Edition, Oxford University Press

Nash, Susan (1996) New Law Journal, Butterworth and Co

Attorney -General Reference (No 6 of 1980)

R v Brown [1994] 1 A.C. 212

Wilson [1996] Cr App R 241

R v Donovan [1934] 2 K.B. 498

R v Tabbassum [2002] Cr. App.R. 328

R v Dica [2004] All E.R. 593

Clarence (1888) 22 QBD 23