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Criminal Law Personal Notes Consent
This can be a defence to non-fatal offences as it negates the unlawfulness of the force used.
All non-fatal offences except common assault require some degree of unlawful force.
This is important as for an offence such as battery for which a mere touch could suffice in terms of force used, consent is a vital part of everyday life. A hug could be battery if consent were not a defence as would the more serious acts of surgery or ear piercing.
However, it is not a defence to all instances of non-fatal violence: The law here seeks to balance freedom, personal autonomy i.e. the right of individuals to control what happens to them and prevention of harm to individuals and to society at large.
The courts often have problems deciding where the line should be drawn between offences that individuals should and should not be able to consent to Then, once this line is drawn, what exceptions to this ‘line’ exist where consent might be recognised?
The Boundaries of Consent:
R v Brown The defendants were sado-masochistic homosexuals charged with battery among other offences for the acts that they committed while engaging in consensual sex with one another. The victims had consented to the activities and the infliction of injuries. They had been very careful about going too far with safe words and the like.
The courts held that consent was only a defence to conduct that did not result in bodily harm i.e. battery. In relation to offences resulting in bodily harm, there’s a range of exceptions where consent is a defence such as surgery and sports but this was justified on the basis of public interest. The HL refuses to extend this reasoning to consensual, homosexual, sexual activities stating that it was not in the public interest for people to cause each other bodily harm for no good reason.
Therefore,
Consent where available as a defence: Battery: There are no restrictions on the availability of consent for battery so long as the victim did consent.
Consent where not generally available: Sections 47, 20 and 18 (GBH and ABH) Consent is not generally available here Even if the victim did consent, this will not be legally valid unless the conduct in question falls within the recognised exceptions.
Exceptions: It is accepted that there are circumstances where consent would is acceptable for ABH and GBH where public policy dictates that there is a good reason to allow a defence:
- Lawful surgery
- Ear-piercing and tattooing
- Properly conducted sporting activities: Barnes (2005) The defendant was liable for a tackle on a football field because it went too far outside the normal rules of the game.
- Manly horseplay: Aitken (1992) The defendants set someone on fire as a prank and were allowed to use the defence of consent.
N/B: Deception can invalidate consent i.e. if the consent was obtained through some form of deception it will be not be a valid defence in court: Tabassum (2000) A man posing as a doctor conducted breast examinations on women who consented to it believing him to be a doctor. However,
Criminal Law LA104 (2015/6) Assaults and Consent Weeks 7 - 8 Dr Ana Aliverti
Readings: Clarkson and Keating (2014), chapters 7 (assaults) and 4.II (consent). Relevant statutes: Offences Against the Person Act 1861, ss. 18, 20, 47 Criminal Justice Act 1988, s. 39 (battery) Crime and Disorder Act 1998, ss. 28, 29 (racially aggravated assault) Serious Crime Act 2015, s. 76 Relevant cases:
R v Ireland; R v Burstow [1997] 4 All ER 225 R v Venna [1976] QB 421 R v Chan Fook [1994] 2 All ER 552
R v Mowatt [1968] 1 QB 421 R v Savage; DPP v Parmenter [1992] 1 AC 699 R v Dica [2004] EWCA Crim 1103 R v Konzani [2005] EWCA Crim 706 R v Brown [1993] 2 All ER 75
I. Violence in context
- In 2014, crime involving violence comprised 19% of offences reported to the police.
- 1 in 3 violent offences are not recorded as crime while they should have been. Violent crimes together with sexual offences are the largest under- recorded category of crimes.
- The least serious forms of violence without injury accounted for the largest proportion of recorded offences (52%), while the more serious crimes of
assault with minor injury and wounding accounted for lower proportions (24% and 23% respectively).
- Offenders are most likely to be men and aged between 16 and 24 years old.
- Young men is the group at highest risk of victimisation: men are more likely to be victimised compared to women, as are adults aged 16 to 24 compared to all other age groups.
- Men are most commonly victimised by strangers, while women are more likely to be victimised by an acquaintance. Women are more likely than men to be victims of domestic violence.
- 49% of incidents of violence occurred during the week and 51% of incidents occurred at the weekend.
- II. The law of assaults
- The law of assaults protects the individual rights to autonomy and privacy, and to physical integrity. It criminalises unwarranted intrusions upon our bodies. There are five different assault offences, which are differentiated by the level of seriousness, in terms of harm and fault. The law also criminalises racially or religiously aggravated assaults, which are more severely punished.
- Common assault and battery:
- The CJA 1988 (s. 39) refers to ‘battery and common assault’ as two separate offences; however, it does not provide a definition. It is generally agreed that common assault is a threat offence, while battery is a contact offence.
- Common or ‘technical’ assault: when D intentionally or recklessly causes V to apprehend imminent violence. - Actus reus:
- Any act by D which makes V to apprehend the imminent application of force.
- Can silent telephone calls amount to the actus reus of common assault? R v Ireland; R v Burstow.
- F 0 A 7^ But mere presence does not suffice.
- Imminence: temporal proximity (‘there and then’), but how close? R v Constanza [1997] 2 Cr App R 492.
- F 0 A 7 Physical and psychiatric harm: ‘recognisable psychiatric illnesses’ (Ireland; Burstow); but not ‘mere emotions such as fear, distress, panic or a hysterical or nervous condition’ (R v Chan Fook). - Mens rea:
- The same MR for common assault/battery: R v Savage; DPP v Parmenter
- Constructive liability as to ABH element (note that common assault and battery are punished with a maximum of 6 months imprisonment whereas the maximum penalty for aggravated assault is 5 years).
- Malicious wounding or infliction of grievous bodily harm –s 20, OAPA
- ‘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 a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude.’
- Actus reus:
- To wound or inflict grievous bodily harm (GBH)
- Wound: piercing of all layers of the skin
- GBH: really serious harm (physical or psychiatric) (see CPS Guidelines)
- F 0 A 7^ Can infecting someone with a serious disease like HIV constitute GBH? R v Dica.
- ‘Infliction’ as synonym of ‘causing’: it does not require an assault or battery (contra Clarence (1888) 22 QBD 23): R v Wilson; R v Jenkins [1984] AC 242; Ireland; Burstow (House of Lords); R v Dica (Court of Appeal).
- Mens rea:
- ‘Malice’ means intention or recklessness (Cunningham test)
- Another case of constructive liability: intention or foresight of some, even minor, harm, not wounding or GBH (R v Mowatt endorsed in Savage; Parmenter).
- Discussion: following the House of Lords’ decisions in Ireland; Burstow and in Savage; Parmenter, can the offence in section 20 be considered as more serious than the offence in section 47?
- Inflicting grievous bodily harm –s 18, OAPA
- ‘Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent, to do some grievous bodily harm to any person,
or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life.’
- Actus reus:
- To wound or cause GBH
- Mens rea:
- Only intent suffices: Maliciously wounding or causing GBH with intent to cause GBH or resist lawful arrest.
- Ulterior intent.
- Note the maximum penalty.
- Racially or religiously aggravated assaults –CDA 1998, ss 28, 29:
- Enhancement of penalty due to racial or religious motivation when: ■ the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group; or… ■ the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.’
- Punishment enhancement:
- For offences under ss 47 and 20, OAPA: maximum penalty of 7 years imprisonment.
- For common assault: maximum of 2 years imprisonment.
- III. Consent
- The consent by V can, in some circumstances, exclude D’s criminal liability, either because it is a definitional element of the offence (such as in rape) or because it is a defence to a criminal charge (e.g. battery or infliction of ABH resulting from medical surgery, regulated sports, etc.). We will concentrate on consent in the context of assaults. The extent to which V’s consent can exempt D from liability for assaults is contested. In the controversial decision of R v Brown, the House of Lords ruled that consent is not a defence to a charge under s 47 and s 20 in the context of sado- masochist acts. The certified question was: 'Where A wounds or assaults B occasioning him actual bodily harm in the course of a sadomasochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A's guilt under section 20 and section 47 of the 1861, Offences Against the Person Act?' Majority (Lord Templeman):
