Non- Fatal Offence Against the person 2

what is the philosophical views on consent to harm?

1. Personal autonomy and freedom to choose how to live are important; criminal law should only be used to stop conduct that causes another to be harmed.

2. Criminal law to protect certain moral values, committing violence against another should be seen as unlawful, but acceptable in some circumstances.

consent as a concept.

Its about who proves what and when. If we think of it as part of the offence definition then it becomes the prosecutions job to prove lack of consent. As a defence we need to prove for prosecution to argue to disprove it.

Courts view on this is that actually (brown case) prefer to see it as a defence and that is how we are going to treat it.

what is consent as a defence and the three elements that needed to be fulfilled?

1. There has to be expressed or implied consent by V

2. The consent has to be effective

3. The offence must be one to which the law recognises consent as a defence OR where the law is willing to recognise an exception.

These 3 elements need to be proven and then and only then may the defence apply. The law has to allow consent for that offence or where law can make an exceptions as some offences the law will not allow for consent to be applied Whether consent can be applied it depend on the case on hand.

victims consent implied or expressed.

Implied consent is stuff such as every day life like accidentally bumping into someone on a busy bus that is implied consent. This is implied consent as we all kind of assumed.

Consent can be expressed or implied but if it is implied it has to be contact in everyday life.

Implied consent is different from foreseeability.

where will consent not be effective?

•  V lacked capacity to consent – e.g. due to youth, mental health conditions, learning needs, intoxication

• V lacked knowledge to be capable of effective consent (no informed consent)

  • greater harm = greater the level of knowledge required

  • Consent was obtained by fraud

    • fraud as to the identity of D: e.g. fake ‘medical doctor’ giving Botox injections (Melin [2019])

    • Consent was obtained through duress – i.e. threats, BUT exact test unclear (see p 247-248 in Child & Ormerod)

 V lacked capacity to consent case.

• Burrell v Harmer [1967]: Minors not capable of understanding nature of act of tattooing à lacked consent à D guilty

V lacked knowledge to be capable of effective consent (no informed consent)

• Konzani [2005] EWCA Crim 706 (CA): V cannot consent to something they are ignorant of; no consent to risk of HIV infection because not informed of this. CA Held: D guilty of s.20

Consent was obtained by fraud

Dica [2004]: D infected two partners with HIV – consent to sexual intercourse, not same as consent to riks of infection, which was gained through fraud because V mislead as to nature of risk of infection.

which offences does the law recognise consent as a defence?

• S.18

• S.20

• S,47

• Assault/ Battery

assault and battery with consent as a defence.

consent can be used and is allowed by law to be used but doesn’t mean it is always accepted it can be denied.

S.18, S.20, S.47 and consent as a defence.

Consent is not allowed to be used as a defence unless you can fit the situation into one of the accepted recognised exceptions.

leading cases on consent.

R v hobday (martin) [2025] EWCA crim 46

•  V, 17, & D met at a bar – V looking for “speed” . Went to D’s house, had consensual sex – V started carving D’s initial into her buttock, asked D to finish it, which he did.

•  D charged with s. 47 offence – D argued V consented and V was driving force – V & D didn’t give evidence at trial

•  D found guilty & sentenced to 20 months imprisonment

•  Trial judge: consent not a defence in this case

• Consent as defence so 47 – only if recognised exception to general rule

• Consent = defence only if truly voluntary and not result of coercion/duress + person giving

• consent has to have capacity and consent has to be informed

This is not something that falls within that rule additionally, they were concerned about her consent due to alcohol, drugs and age. But in other cases husband carving initials into her butt was allowed but this case wasn’t?
in Wilson apparently the wife had instigated the branding and the husband wanted to assist her. This case is not close analogy because here the D and V were not husband and wife and not in a loving relationship but here it was consent of drugs and sex from a mature man. Is carving of initial tattooing or not or does it only have to be in a loving relationship?

R v Hobday cont.

 

Trial judge distinguishing case from Wilson (para 14-15)

• Wilson: wife had not only consented, but also instigated the branding – D had no aggressive intent toward wife, but wanted to assist her in what she thought was personal body adornment

•  This case not close analogy with Wilson

• D and V were not husband and wife, nor in loving relationship

• Were similarities in terms of consent, the knife and carving on buttock, but here consent was by young woman for drugs and sex from mature man

• Carving was seen as “freaky” act by D following sexual activity à facts perhaps more in common with Brown

 

Appeal Court

1. Wilson should be treated as case where court decided on particular facts that conduct of D should be treated as akin to tattooing, which doesn’t involve branding

Branding – one of the activities which in Brown was found to be unlawful

1. Approach in Wilson not followed in BM – law as established in Brown and explained in BM is clear and if it requires changing this is matter for Parliament

This case, not analogous with exceptions recognised in Brown – although harms much less serious than in Brown, case falls within principles of BM

1. In any event – cutting the skin of young person with unsterile knife should not be lawful even if she consented to it

• cutting skin is commonly encountered form of self-harm to which young and vulnerable are particularly prone

• no good reason why people should be permitted to do this to others except for recognised exception of medical intervention

It is much more about the fact that this was a relationship where the court found the age an issue.

Consent is not a defence of section 47 and above unless you can fit the situation into one of the accepted recognised exceptions.

 

consent as a defence to s 47 where harm was caused unintentionally

D causes ABH, but did not intend or foresee ABH

• Example: D and V play game trying to push each other over. V falls and accidentally hit head on a rock hidden beneath the grass, causing ABH. D didn’t intend to cause ABH and had not foreseen V might suffer ABH since rock hidden.

à consent to assault/battery = defence to s. 47 because if there is no battery or assault, there cannot be a s. 47 offence

 Meachen [2006]

what are the exceptions to consent?

surgery, body modification, religious rituals, regulated sports, horseplay (practical jokes), transmission of STI/STD, sexual pleasure.

surgery exception.

V can provide valid consent to what otherwise may constitute serious offence against the person (surgery causes ABH or even GBH)

NB! Some statutory exceptions where consensual surgery is criminalised

• Health Care Act 2022 – criminal offence to carry out ‘virginity testing’ or to carry out hymenoplasty

• Female Genital Mutilation Act 2003

It is by definition wounding ABH or GBH .

body modification exception.

There are cosmetic procedures that cause bodily harms – e.g. piercings, tattooing, etc.

 These can be consented to – but grey areas – see R v Wilson and R v BM

• In R v BM: court is clear that piercing etc is lawful but that practices of D were unlawful – little guidance in terms of the various procedures in between (e.g. scarification, branding, etc.)

 See Child & Ormerod s. 7.8.2.2.

Certain procedures cause harm like earing piercing such as ABH/GBH. And the law says if its body modification you can consent to it but courts argue otherwise such as previous cases.

religious rituals exceptions

Flagellation – i.e. beating or whipping as part of a religious ritual

Recognised as an exception by Lord Mustill in Brown

• Not common occurrence

•  Protection of religious freedoms under Article 9 of ECHR

• But qualified right

• Article 9.2: Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Falls under Qualified right. You can limit this right but has to be for specific circumstances.

 

regulated sports exceptions

•  Where sport recognised and played within rules consensually no offence will arise à E.g. rugby, boxing, etc.

 Where outside the rules (i.e. foul play):

•  Legitimate foul play: conduct that breaches the rules, but is impliedly and validly consented to through participation in the sport à defence to reasonable risk of injury outside rules within margin of appreciation

• See Barnes [2005]

Illegitimate foul play: conduct that breaches the rules, and is NOT impliedly and validly consented to, i.e. goes beyond what is acceptable within the sport (e.g. deliberate punch during a football match) à consent is not recognised as a defence

Barnes [2005] 1 WLR 910

• Amateur football, tackle, causing serious injury = s. 20.

 CA allowed appeal, set out factors to be considered:
(1) type of sport
(2) level
(3) nature of act
(4) degree of force
(5) extent of injury
(6) Ds state of mind.
 Prosecutions are rare

 Normally criminal law does not criminalise because sporting authorities have their own disciplinary procedures. Will only interfere in extreme cases!

If you break the game rules and cause ABH or GBH you will not fall under this exception.

horseplay exception

Horseplay, general undisciplined play between children – not recognising this would criminalise thousands of acts in playgrounds

•  Jones  [1986] 83 Cr APP R 375: Consent to rough and undisciplined play where there is no intention to cause injury is a defence to a charge of assault

• Even if that consent is absent, genuine belief by a defendant that consent was present would be such a defence – A [2005] All ER 38

•  If the belief is genuinely held, it is irrelevant whether it is reasonably held or not
   

transmission of STI/STD exceptions.

•  V may validly consent to risk of potentially lethal infection, as long as fully informed of the risk: Dica [2004]

• V can consent to known risk of STI transmissions, but to unknown risk: Konzani [2005] (here D didn’t inform Vs so they hadn’t consented to risk)
   

•  Does not apply if intention is to spread the infection

• Consent to risk of infection not socially desirable – BUT, if not an exception, how would it be policed?

• Dica: not recognising this exception would involve impracticality of enforcement and invasion of private life (see Child & Ormerod: 7.8.2.6)

sexual pleasure exception

• Consent is not a defence to harm for sexual pleasure

• Domestic Abuse Act 2021, s 71(2): It is not a defence that V consented to the infliction of the serious harm for the purposes of obtaining sexual gratification.

Codifying ratio in Brown

belief in consent.

• May also provide a defence

• Where D makes a mistake and honestly believes that V gave a valid and effective consent, then D has a defence, even if V had not given a valid and effective consent

•  D’s mistake need only be honest; it does not have to be based on reasonable grounds

•  The focus here is on D’s state of mind, rather than whether V consented in fact. Did D believe that V consented?

•  This defence is rarely pursued in practice

 

You have to be aware of this risk in order to consent to this risk.