Consent

General rule

Consent is a defence to Assault and Battery

It is not a defence to ABH or greater harm unless it comes within established exceptions: A-G’s Reference (No.6 of 1980)

Nicklinson

Consent is never a defence to murder

A-G’s Reference (No.6 of 1980)

Ds had agreed to settle their differences through a street fight and tried to rely on the defence of consent.

Consent is only available for common assault and NOT bodily injury unless it comes under a recognised exception in the public interest. Street fighting is not in the public interest, but the following may be:

Reasonable surgical procedures (medical procedures)

Body art (piercings, tattoos etc)

Properly conducted games and sports

Horseplay

Dangerous exhibitions (e.g. stunt riders or circus performers)

Medical procedures

If a patient who is mentally capable refuses an operation or even a blood transfusion, then such treatment cannot be given. Ritual circumcision is allowed, but not ritual mutilation.

Wilson

D branded his initials onto his wife’s buttocks with her consent, using a hot knife. Ratio: This was said to be similar to a tattoo or other forms of body art, so consent was a legitimate defence.

NOTE in Hobday (2025) D had carved the initial ‘M’ onto the buttock of a 17-year-old female with a Stanley knife. The carving was part of a consensual sexual encounter. Dismissing the appeal against conviction, Edis LJ stated that the decision in WILSON was “hard to justify”.

R v BM

D carried out body modification procedures including the removal of a customer’s ear, nipple and the division of a customer’s tongue to produce an effect similar to reptiles. Ratio: Consent was no defence to s.20 OAPA 1861 as this was not in the public interest.

Barnes

serious injury was caused by a heavy tackle in an amateur football match. Ratio: Consent can be a defence in physical contact sports if within the rules of the game. The Court need only intervene when the conduct that has occurred is extreme or seriously

Jones

Consent to childish “horseplay” has been accepted for some time. teenagers were given the “bumps” by a group of older boys and sustained serious injury.

Consent was allowed for rough physical play (horseplay) provided there was no intent to cause injury.

Aitken

RAF officers set alight a drunk colleague who was wearing a fire resistant suit, causing serious burns. Ratio: They honestly believed he would have given consent, so convictions for s.20 were quashed.

Brown

Consenting males took part in sadomasochistic activities for sexual pleasure. They were charged with s.47 and s.20 offences.

Consent was not permitted because of the cruelty and degradation involved.

Tabassum

D persuaded women to allow him to measure their breasts for the purpose of preparing a database for sale to doctors. The women only consented because they thought that D had medical training.

In such cases consent does not really exist as the act consented to is not the act actually done.

Richardson

a dentist carried out work after being suspended from practice. The patients would not have consented to the treatment had they known. However, the Court decided the patients had consented to the treatment. D had not deceived the patients as to her identity as a dentist. She was still a qualified dentist albeit suspended from practice at the time.

Patterson

a surgeon was convicted of nine counts of wounding with intent when he carried out life-changing operations for no medically justifiable reason. His victims had consented to the nature of the act (and D’s identity) but not the quality of the act.

Dica

Vs had consented to unprotected sexual intercourse but claimed they would not have done so if they had known D was HIV positive.

There was no informed consent to the risk of infection. However, there could be a defence of consent if the victim consented, knowing of the risk.

Olugboja

V submitted to sexual intercourse after having witnessed the rape of her friend.

There was a difference between mere submission and real consent and it was for the jury to decide if consent was real.

Burrell v Harmer

D tattooed two boys aged 12 and 13. The boys had consented to the tattoo. However, it was held that the boys’ consent was ineffective since the Court was of the opinion they were unable to comprehend the nature of the act.