Consent

• Consent is a defence that effectively cancels out what would otherwise be an assault. Lawful consent is a valid defence to assault and battery but is not a defence to ABH, GBH or wounding unless it fits within a recognised exception.  These exceptions usually apply because of public policy and fit into two categories: intentional injury and risk of accidental injury.
• Express consent


  These are situations where we are explicitly asked verbally or in writing before a procedure that would otherwise be an assault such as ear piercing, surgery or dental treatment.
• Implied Consent


  It is possible to ‘impliedly’ consent to minor batteries through situations where, for example, people inevitably come into contact with one another such as at football matches, on the underground or a pop concert.
• Must not be obtained by fraud


  Must be genuine/true
• Tabassum (2000)  

  Must not be by fraud. (Women thought doctor was examining breasts for medical research).
• Real consent


  Just because the victim appears to consent, this does not mean the consent is valid in law.

  Submission is not the same thing as consent.

  Consent is not the same as reluctant consent.
• Informed Consent

  Dica (2004)

  Prior to this case if you had unprotected sex then the law said you consented to any STI contracted.

  D had unprotected sex with three women knowing he had HIV.  Women did not know.

  Convicted of s20 biological GBH. The court stated that a victim can validly consent to the risk of infection provided the victim was fully informed of the risk. This will not apply where the defendant intends infection to be spread.
• Cannot consent to your own death.

  Leach (1969)

  Asked to help his friend crucify himself on Hampstead Heath. The defence of consent failed as you cannot consent to own death.
• Cannot consent to your own death.

  Pretty (2002)

  Wanted the court to rule that her husband would not be indicted for murder if he helped her die.

  Both House of Lords (now Supreme Court) and European Court of Human Rights (ECtHR’s) found no right to die.
• Exception 1Sport


  Risk of accidental injury during properly conducted sports.

  Deliberate and unnecessary infliction of injury cannot be consented to even in a rough sport like boxing or rugby.

  As a general rule, any incident which takes place outside the rules of the game will not be considered to have been consented to.
• Barnes (2004) 


  Case involved a football tackle. The court outlined the factors that should take into account when deciding whether the consent would be assumed

  or considered criminal.
• Boxing and similar aggressive sports

  Due to their alleged entertainment value, public matches conducted with protective equipment, a referee and within the rules are lawful but street fighting and ‘bare-knuckle’ fighting are not lawful since the higher risk to the combatants outweighs any alleged entertainment value.
• Exception 2Medical Procedures which includes:

  Dentistry, piercing, tattooing, surgery and blood tests.

  Can be expressly consented to with a consent form.

  Implied consent in medical emergencies.

  Reasonable surgical and medical treatment.

  Most surgery is expressly consented to an has a high utility factor in it’s benefit to the patient. This is clearly lawful.
• Wilson (1996)


  Husband branded his wife with a hot knife on her buttocks. 

  She sought medical attention when it got infected and the hospital reported this to the police as they suspected domestic abuse.

   W was charged with and convicted of s47 ABH.

  On appeal, the CA said he could use the defence of consent as it was like a tattoo and came under medical procedures.
• Male circumcision for boys under 18 years for religious purposes is lawful where both parents agree to it.

  But

  Female circumcision is prohibited under the Female Genital Mutilation Act 2003
• Tattooing, ear and body piercing


  In most circumstances, the victim will give express consent to a piercing or tattoo that is considered to have some social utility as a personal adornment.  There are issues around the age of consent to such procedures. But, note the limits set in the recent case of BM
• BM (2018)

  Body modification was not similar to tattooing and therefore would not come under the medical exception.

  No defence for BM
• Exception 3 –Rough Horseplay


  Consent to rough and undisciplined play could provide a defence as long as there was no intention to cause injury and a victim can give effective consent to the risk of accidental injury in the course of rough undisciplined play.
• Jones (1986)  


  School boys gave birthday ‘bumps’ which led to injury (ruptured spleen and broken arm).

  Court held this came under exception of rough horseplay which can be consented to.

  Provided the defendant genuinely believed that the victim consented it can be raised as a defence. Did not need to be a reasonable belief.
• Drunken mistaken belief

  Aitken (1992)

  RAF pilots set fire to colleague whilst he and they were drunk.  They thought he would consent as he was wearing a flame resistant uniform. 

  Court held that as there was a genuine belief in consent it was successful even though the parties were intoxicated.
• Sexual consent


  The risk of injury involved in consensual sexual activity short of ‘vigorous’ or sado-masochistic’ activity will be a viable defence.

  However,

  The law has not generally accepted the idea of consent being a defence to injuries inflicted for sexual gratification in sado-masochistic sexual activity – certainly not where they are serious.
• Brown (1993)


  Group of middle-aged gay men and youths all consented to sado-masochistic activities in private.

  Their activities included genital torture with whips, stinging nettles, fish hooks and mouse traps.

  The court refused to allow the defence of consent stating that there were ‘dangers of serious personal injury’ and there was a difference between violence which was incidental and violence which was inflicted for the indulgence of cruelty’.
• Domestic Abuse Act 2021


  A Person cannot consent to actual bodily harm or to other more serious injury or, by extension, to their own death.
• ‘No death or other serious injury – whatever the circumstances – should be defended as ‘rough sex gone wrong’ which is why we are making it absolutely clear that this is never acceptable’. - Justice Minister Alex Chalk
• Exception 4 - Normal Social Contact

  Shaking hands

  Taping someone on the shoulder

  Hugging

  Wilson v Pringle (1997)

  Everyday ‘jostlings’.

  Note – consent can be withdrawn
• Children and consent


  Gillick Competent Child

  Children under 16 with sufficient intelligence to understand fully the implications of the proposed treatment can give effective consent.
• Mentally incapacitated and consent


  If medical staff are acting in the patients' best interest the absence of consent would not be unlawful.