There are different types of consent that include express and implied. Discuss the issues of consent looking at relevant pieces of legislation and case law; in particular refer to the case of R v. Brown [1993] 2 All ER 75 and other decided cases.

Consent

Following the decision in the case of the R v. Brown (1993) the issue of consent was raised in English law, and has been of debate since. In most English dictionaries the synonym for consent is agreement. Consent is essential in a number of circumstances; for example, contracts and marriages are invalid unless both parties give their consent.

There are 2 forms of recognised consent; they are expressed consent and implied consent. Express consent takes place when consent is communicated directly through speech or conduct and there is little or no doubt as to the consent given. For example by directly saying ‘yes’ or even through nodding, and other direct gestures expressed consent can be communicated to another. Implied consent however is to indicate consent through body language or conduct without actually directly communicating it, it need not necessarily be the in the positive form either. For example, not disagreeing or communicating in the negative through body language, gestures or facial expressions may imply consent. The latter form of consent is open to ambiguity and to subjective interpretation. As already stated above there are many forms in which consent can be communicated. It may be spoken or unspoken, may be direct or indirect, consent can be in the form of words, gestures, body language, hand movements, as well as facial expressions.

As stated above the case of R v. Brown (1993) raised the issue of consent. One of the most important issues mentioned in terms of public importance was the matter of whether consent should be allowed as a defence to certain offences. One such relevant offence was that of assault. The definition of assault adopted by the law commission is as follows:

‘ At common law assault is an act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful personal violence and a battery is an act by which a person intentionally or recklessly inflicts personal violence upon another. However the term assault now, in both ordinary legal usage and in statutes, is regularly used to cover both assault and battery.’

There are currently 3 types of assault, each differing in gravity. Firstly there is common assault, secondly there is assault that occasions actual bodily harm and thirdly and lastly there is assault that inflicts grievous (serious) bodily harm.

Common law assault is enacted within s39 Criminal Justice Act 1988, which states: ‘Common assault and battery shall be a summary offence…’

The offence of assault occasioning actual bodily harm is by authority of Offences Against the Persons Act 1861, and in R v. Donavan, Swift J said:

‘ Bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with health or comfort of the posecutrix. Such hurt or injury need not be permanent but must be more than merely transient or trifling’

‘ Transient or trifling’ meaning the harm caused being more than momentarily and trivial. The offence of grievous bodily harm is by authority of s20 of the Offences Against the Persons Act 1861. The act states:

‘Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of [an offence] …’

To constitute a wound the whole skin must be broken and not just the outer layer of the epidermis, the authority for this JJC v. Eisenhower (1938). Grievous bodily harm (GBH) simply meaning bodily harm that is of a serious nature, more so than in actual bodily harm (ABH).

The case R v. Brown and others (1993) was concerned with a group of appellants who belonged to a faction of sadomasochistic homosexuals. They willingly participated in acts of violence against each other, including genital torture for the purpose of sexual pleasure produced in the giving and receiving of pain. In each case the masochist (person receiving the pain) or ‘victim’ as they were referred to by the courts had expressly consented to the acts of violence that were committed against them, no permanent injury was suffered by any of the ‘victims’.

The sadomasochistic acts took place in private and the acts were videotaped and distributed amongst members of the faction only. Police discovered the sadomasochistic activities on chance during the course of an investigation of another matter. The accused were tried on and convicted of charges of assault occasioning bodily harm contrary to s47 of the Offences Against the Person Act1861, and unlawful wounding contrary to s20 of the same act.

The defendants appealed to the Court of Appeal but the convictions were upheld. The defendants later appealed to the house of lords, contending that a person could not be guilty of offences under ss 47 and 20 of the Offences Against the Person Act1861 in respect that the acts were carried out in private and with the victim’s consent. This raised the question in law as to whether consent should be available as a defence to ss 47 and 20 of the Offences Against the Person Act1861 as it is with common law assault. By a majority of three ...

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Since ABH was intended and caused, consent to the harm was irrelevant. It also took the view that it was not in the public interest to recognise consent as a valid defence to the intentional causing of ABH in sadomasochistic practices for several good reasons.

Firstly it was regarded as being luck which had prevented any serious injury, secondly there was said to be a real, even if small risk of spreading disease as it was found members of the group suffered from HIV or AIDS, and the acts of violence including ‘blood letting’. Another reason given for the decision was the fact there was ‘danger that young persons would be drawn into the unnatural practices of sadomasochism. In

Summing up Lord Templeman stated:

‘Public policy required that society be protected by criminal sanction against this cult of violence.’

The imposition of ‘criminal sanction’ on such acts could be construed as not only reinforcing that the acts were morally wrong in society but also unaccepted and punished by the law. It could also be said that the law was certainly over ruled in this case, in terms of what is stated by statute and what it was interpreted as by the judiciary. This shows that the law is subject to the interpretation and the values held by the judiciary. It could be argued that to be guilty of an offence under s20 of the Act the defendants should have acted in malice as stated by the section. As it has alredy been determined the defendants were acting for purposes of sexual gratification rather than malice.

The decision in R v Brown was consistent with that of R v. Boyea (discussed later) as well as with that of the A-G’s Reference (No 6 of 1980).

In A-G’s Reference (No 6 of 1980) [1981] the defendant and the victim had a fight in a public street, which resulted in actual bodily harm to the victim. The defendant was charged with assault causing actual bodily harm and was acquitted on the basis that there was expressed consent through conduct (that is the exchange of punches). The question referred to the Court of Appeal was:

‘Where two persons fight (otherwise than in the course of sport) in a public place can it be a defence for one of those persons to a charge of assault arising out of the fight that the other consented to fight?’

The court answered the question in the negative. Lord Lane CJ said:

‘is that 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. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused… Nothing which we have said is intended to cast doubt on the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions etc. These apparent exceptions can be justified as involving the exercise of a legal right…. or as needed in the public interest, in the other cases.’

Although the A-G’s Reference (No 6 of 1980) was concerned with a fight and the case of Brown was concerned with sadomasochist practices the conclusion for both cases were the same. The infliction of bodily harm without good reason was ‘unlawful and consent of the victim irrelevant.’

An earlier case, which also relied on the defence of consent to assault, was R v. Donavan (1934). The appellant in private beat a girl for purposes of sexual gratification, allegedly with her consent. He was charged and convicted of indecent and common assault, Swift J stated:

‘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.’

However due to misdirection by the trial judge the conviction was quashed.

The judges in R v Brown agree that consent was an answer to common assault and indecent assault. However in the case of R v Donavan it was held, had it not been for a misdirection by the trial judge, the conviction of Donavan would have been upheld despite the fact there was said to be consent by the victim. This shows the had it not been for the misdirection the judges could have overridden the victim’s right to consent, and upheld a conviction where there was the valid defence of consent to answer both the charges of common assault and indecent assault.

Not all the cases followed the same consistency seen in A-G’s Reference (No 6 of 1980), R v Donavan (1934) and R v Brown (1993). In R v Wilson (1996), the defendant had been charged with assault occasioning ABH under s47 of the Offences Against the Person Act1861. The defendant using a hot knife branded his initials onto his wife’s buttocks after she had instructed him to do so, thus expressly consenting to the act. The judge held he was bound by the case of R v Brown and directed the jury to convict.

On appeal however the conviction was quashed and the judges held that consensual activity between husband and wife should be no business of any criminal investigation or prosecution. The court held that the defendant’s actions amounted to no more than what could be considered tattooing. The Court of Appeal also stated that the case of R v Brown (1993) was not an authority that consent was no defence to a charge under s47 of the Offences Against the Person Act1861. It said the case of Brown (1993) was concerned with sadomasochistic practices, involving torture, danger of serious physical injury and blood infection and the spread of disease. It also argued the act done in Donavan (1934) was for purpose of sexual gratification and was of a ‘aggressive element.’ The Court of Appeal held there was no aggression involved in the act in Wilson (1996) and that the ‘husband was assisting the wife to acquire a physical adornment, not different to a tattoo,’ the act of tattooing with consent of a person over the age of 18 years, being legal.

Another case, which is also, deviates from the consistency seen in A-G’s Reference (No 6 of 1980), R v Donavan (1934) and R v Brown (1993). Is the case of the R v Slingsby (1995), the victims death was caused by vigorous sexual activity to which she had consented. There was no premeditation into the injuries, which were caused, and no consent to any such injury, as no such injury was contemplated by either participant. The injuries were sustained accidentally and led to the death of victim through septicaemia. The defendant was charged with manslaughter by an unlawful and dangerous act. The judge held: That it would not be in public interest and be ‘contrary to principle if he treat as criminal activity which would not otherwise amount to assault because during the course of that activity an injury occurred.’ On direction of the judge a verdict of not guilty was returned.

A further case that Slingsby departs from is the case of R v Boyea (1992), which was followed by the R v Brown (1993), the defendants act was similar to that of Slingsby but caused only ABH. On appeal it was held that assault-occasioning ABH had occurred because the act was likely to cause harm.

The rule that was put forth in the R v Brown generally states that although consent can be a defence to common assault and battery, it cannot be used as a defence for the more serious assaults of ABH or GBH for reasons of public interest. There is however exceptions to this general rule, where acts with out consent would amount to assault occasioning ABH or GBH, as stated in the case of R v Brown (1993). These exceptions are horseplay, properly supervised games, tattooing and ear piercing, and surgery.

As stated above horseplay is one of the exceptions to which consent can be used as a defence against assault, even serious injuries which result from the horseplay can escape prosecution, simply because the injured party had consented to the original horseplay. Such was the case R v Jones (1986). Here the defendants had been found guilty of inflicting GBH on two schoolboys. The defendants had been throwing the boys up in the air several times and let them fall to the ground, which in turn led to the rupturing of one of the victims spleen. The defendant evidence suggested the act to be done in jest and was supported by evidence which suggested the victims too had regarded the horseplay as a joke- this allows for the implication of consent to the act of being thrown in the air. On appeal the defendants were successful as the trial judge failed to direct the jury that consent, or belief in consent was a defence to the charge of GBH during rough horseplay. It was held that even if there is no express consent, a genuine belief in the presence of consent whether it the belief is reasonable or not is a defence to assault during horseplay. This decision was reiterated in the later case of R v Aitkins and Others (1992), where upon appeal the defendants were acquitted of the charge of GBH through the belief of implied consent during horseplay.

Another exception to consent being used as a defence against assault is in the course of properly supervised games, played in accordance with the recognised rules of the games with appropriate supervision. Prizefights are not regarded as properly conducted sports (R v Coney [1882]). Although there is general consent to the risk of injury, players in contact sports do not consent to assaults which are not part of the game as with biting during rugby or boxing, as cited in R v Johnson (1986), and R v Lloyd (1989) respectively. The defence of consent within supervised games is subject to limitation as was decided initially decided in the R v Bradshaw (1878), where a footballer was convicted of manslaughter on the grounds that he had acted with excessive violence in accordance with the rules of the sport and consent to this on the victim’s part was irrelevant. However in another case (R v Moore [1898]) again involving a footballer facing manslaughter charges the answer of consent to the charge was an effective defence as it was argued that the defendant played within the rules of the sport, and it was also shown the victim had consented to the game of football. In the case of R v Billinghurst (1978), as with R v Bradshaw, it was decided that although players consent to the risk of injury, there is a limit to the violence, which can be consented to. The defendant was convicted of assault with GBH.

In addition to horseplay and contact sports, tattooing and piercing are not assault in relation to the act carried out with consent. Statute permits tattooing for consenting persons over 18 years of age. (R v Wilson [1996], as discussed above). In Burrel V Harmer 1967, the defendant a tatoo artist was charged with assault occasioning ABH for tattooing 2 boys of ages 12 and 13 years who had consented to the tattoo’s. (No statutory age was in force for a tattoo at the time; this was brought in by the Minors Act 1969). The court found against the defendant saying the age of the boys did not permit them to understand the nature of the act and therefore consent was negative, and there was no defence. This deviates from the rule of the time that tattoo was not an unlawful act if the act was consented to. Another exception is that of surgery. Many of the acts that are done by surgeons could be seen as serious assaults and contrary to offences governed by the Offences Against the Person Act1861. The acts done in relation to surgical treatment are deemed lawful and regarded as being of interest to the public, actual expressed consent is required before surgical treatment, however in emergencies the law implies that consent exists.

An absolute rule, and one that was repeated recently in the decision in the case of Pretty v United Kingdom (2001), was that consent couldn’t be used as a defence to causing the death of another. This therefore makes the act of euthanasia unlawful. The appellant wanted the right to be aided to die by her husband with her expressed consent, and wanted it to be a defence should a charge of murder or manslaughter be brought against him. The House of Lords ruled to allow consent, as a defence to cause the death of another was not in the public interest. As it could possibly lead to a ‘floodgate’ situation of cases involving ‘mercy killings.’

The case of R v Rice (1803) also looked at the issue of consent in relation to causing death, the victim did not expressly consent to death, he expressly consented to the risk of death by agreeing to the duel. This case reiterated that ‘a man who inflicted the fatal wound was guilty of murder.’ A decision already established by R v Taverner (1619), where Coke CJ stated:

‘ Killing in cold blood was the sin of Cain’

Another argument central to the issue f consent is that consent must be true. That is it must be in no way be negative. For example consent obtained through duress is not true consent as in the case of R v McCoy (1953), in this case the manager of an airline was found guilty of assault as he had obtained consent to cane a air hostess through duress that she may lose her job. Consent obtained from people who are unable to know the nature to the act to which they consent is also deemed as not being true consent. For example the mentally ill or very young, the latter being the reason for lack of consent in Burrel V Harmer 1967, and therefore his conviction. Consent obtained through fraud is also negative consent, as was held in the case of R v Richardson (1999) and R v Tabassum (2000). In the case R v Richardson a disqualified dentist continued administer dental treatments. Her disqualification, meant no true consent could be given for her administer treatment as she was not legally allowed to administer any treatment and was found guilty of assault.

It could be argued although retrospectively in cases before the introduction of the Human Rights Act 1998, that acts conducted in private, as in R v Brown would be an infringements of ones private life free from interference of any public authority as provided for by Article 8 of the Act. It could also be argued that by restricted sadomasochistic practices, imposing through statute the minimum age to legally obtain a tattoo are infringements of Article 10 which provides the right to freedom of expression free from any interference from any public authority. It could be said that sadomasochistic practices are ways for people to sexually express themselves and tattoos for people to artistically express them selves.

As with many laws the human rights laws are restricted. Article 17 of the Act restricts the freedoms and rights permitted within the Act to be limited by the laws and public interest policies of the individual states.

In conclusion, the consent can be an answer to a charge of common assault or battery, however cannot be a defence to assault occasioning ABH or GBH, with the exceptions being in cases involving acts of horseplay, surgical treatment, tattooing and piercing subject to the statutory guidelines, as well as properly supervised games, again being subject limit. The defence of consent can be applied quite successfully to acts of horseplay, even where it results in quite serious injury. The consent need not be expressly communicated either, the mere implication of consent is adequate for defence.

In sport there can be limited consent where injury is caused through the defendants conduct were within the ‘rules of the sport.’ However where excessive violence is used against the rules of the game the defence of consent cannot be used successfully. The consent to the game could be taken to be expressed consent to the risk of injury. As stated above tattooing is subject to statue law, and consent must be given for the act to take place. As stated before consent cannot be used to defence where one intentionally causes the death of another, however one can consent to taking a risk, which may result in death or assaults occasioning ABH or GBH in cases where surgical treatment is required, this is one of the exceptions that are provided by the law.

In cases involving vigorous sexual activity the law has been applied inconsistently. in cases involving sexual conduct of male homosexuals the defence of consent has not been allowed. However the defence of consent has succeeded in heterosexual cases more often than not, if not at trial than certainly on appeal, particularly between husband and wife.

There is also issue true consent, that is consent must be obtained freely and be genuine, without duress or deception (R v McCoy). Consent can be made negative where the act itself is unlawful (R v Brown), or where consent is obtained by fraud, that is the victim believes the act was done for the purpose of administering treatment or for conducting medical tests (R v Richardson, R v Tabussum). Consent can also only be given by persons who understand the nature of the act they are consenting to, therefore they must not be too young or mentally ill to consent (Burrel v Harmer).

The Law Commission Consultation Paper No. 139 (1996) recommended that a defendant should be able to rely on the victims consent to an act which is likely to or is intended to cause injury, but not to acts which are intended to or likely to cause serious injury. They agreed with the current thinking that surgical treatments, tattooing and ear-piercing be kept as special cases decided on each cases own merits. They also suggested that no special consideration be given to horseplay or sexual activities where consent has been given, and specially designated rules be adopted in relation to organised sports. The suggestion would certainly remove some of the inconsistencies in relation to acts where consent may be an effective defence. However it should also be considered to extend the situations in which consent can be used as defence too.