March 22, 2018/in Criminal /by Vivek Khanna LLB, LLM, Barrister at Law
“As long as men keep to certain (supposedly) heterosexual manly spaces and are apparently masculine, they are expected and, indeed allowed to display quite extreme levels of violence”. (Lois Bibbings in, ‘Boys will be boys: masculinity and offences against the person’, in Nicolson and Bobbings (eds) Feminist perspective on Criminal Law, 2000)
In A-G’s Reference (No 6 of 1980) , the Court of Appeal held that, subject to exceptions mentioned below, a person’s consent is irrelevant and cannot prevent criminal liability for an offence if actual bodily harm was intended and/or caused. This strict rule was based on the view 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. In some cases there may be a good reason, and the Court of Appeal was at pains to emphasise that the above rule did not affect the accepted legality of certain situations, referred to below, in which the consent of the victim is legally relevant and renders the conduct in question lawful.
One cannot consent to the intentional causing of actual bodily harm, except in certain recognized cases. R v Brown and Others  & R v Wilson . As a general rule where persons quarrel and agree to settle their differences with a fight, the injuries can amount to an assault and the unlawfulness cannot be denied by pleading that the other consented to the fight. A-G’s Reference (No 6 of 1980) .
As the House of Lords recognized in Brown there may be ‘good reason’ for the intended infliction of actual bodily harm, in which case a valid consent to it may be given. The exceptional cases where a person may validly consent to intentional actual bodily harm are situations where the law regards the public interest to require the exception. The main exceptions are reasonable surgical interference, a properly conducted game or sport, and tattooing and ear piercing.
Consent may be a defence to reasonable surgical interference. Surgical interference will involve a wound and can therefore be described as harm to the body. However the law does permit the consent of a patient to surgery performed by a suitably qualified doctor. Clearly there is social utility in such operations being performed. This includes sex change operations. Corbett v Corbett (1971)
Boxing and wrestling, for example, can be regarded as properly conducted sport. They are manly diversions, they intend to give strength, skill and activity, and may fit people for defence, public as well as personal, in time of need.
It is generally accepted that this exception now covers organised sports, played according to recognised rules with appropriate supervision from a referee or umpire. A prize fight (a fight with bare fists until one participant is unable to continue) is not regarded as a properly conducted sport. R v Coney (1882).
The consent in boxing is only to intentional harm within the rules; a boxer does not consent to being intentionally harmed by, for example, a blow delivered between rounds. In games such as football and rugby the common sense approach is to say that the players consent to such contact as is incidental and normal to the game (see below for further details).
As far as tattooing and ear piercing are concerned, these activities could be regarded as involving actual bodily harm, but in R v Brown Lord Templeman regarded these activities as ones to which a valid consent could be given.
A person can validly consent to the risk of being unintentionally harmed. For example, a person who takes part in a football, rugby or cricket match validly consents to the risk of such bodily harm (eg, bruises or a broken nose or leg) as can reasonably be expected during the match. However, such a player does not, and could not, consent to deliberate acts of violence “off the ball”; as where a player kicks or pushes another not in the course of play. R v Billinghurst .
Consent by boys to rough and undisciplined play may be a defence to a charge of inflicting grievous bodily harm if there is no intention to cause injury. Consent, or a genuine belief in consent, even an unreasonable belief will be relevant. R v Jones (Terence) (1986). In one case, the victim’s participation in practical jokes played on RAF companions was accepted as evidence suggesting that he too could become a victim and consented to this. R v Aitkin and Others .
There are however two main question concerning consent. One can in be a defence to harm amounting to actual bodily harm or beyond in a private family home or in conduct not concerning the public at large. And in recent times the second question that has arisen can consent in euthanasia (mercy killing) issues be a defence. The answer to the second question would seem to in the negative. ……….
In R v Brown1 the appellants belonged to a group of sado-masochistic homosexuals who over a 10 year period from 1978 willingly participated in the commission of acts of violence against each other, including genital torture, for the sexual pleasure which it engendered in the giving and receiving of pain. The passive partner or victim in each case consented to the acts being committed and suffered no permanent injury. The activities took place in private at a number of different locations, including rooms equipped as torture chambers at the homes of three of the appellants.
There was however a more public aspect to these acts. Video cameras were used to record the activities and the resulting tapes were then copied and distributed amongst members of the group. The tapes were not sold or used other than for the entertainment of members of the group. The appellants were charged with assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861 and unlawful wounding, contrary to section 20 of that Act.2 The essential question that arose in this case was whether consent could be a defence to an aggravated assault under section 20 and section 47 and was it necessary for the prosecution to prove absence of consent therefore to prove the offences. This in turn gave rise to the question whether this was such an act that was within the private sphere and therefore not of direct concern for the courts.
In giving this decision the Court had two opposing views to balance. One of these views has been advocated by Lord Devlin and the other by Professor H.L.A. Hart. A synopsis of their views is as follows. Lord Devlin’s view is that morality is that which the ordinary man on the Clapham omnibus’ thinks, and those moral views that man has for which he has very strong feelings of resentment are, just for that reason, enforceable by criminal sanction. Hart does not think that the ordinary man’s responses are a criteria of moral relevance, nor does he think that doing wrong is strong ground for criminal sanction.
The majority in R v Brown ruled that consent was not a defence for the defendants. Their judgments reflected to an extent that neither did they regard the conduct as wholly private and neither did they feel compelled not to apply public morality to such acts.
Lord Templeman, Lord Jauncey of Tullichettle, & Lord Lowry quashed the appeal and held that consent could not operate the defence. Their statements echoed to a large extent the stance taken by Lord Devlin. Lord Templeman stated that ‘…Society is entitled and bound to protect itself against a cult of violence.’ Lord Jauncey’s statement also highlighted the dilemma that drawing a line between public and private sphere is an artificial and arbitrary process. He stated that the fact that these activities had not resulted in any injuries, which required medical treatment, was ‘good luck rather than good judgment’. Lord Lowry also rejected the argument albeit his statement was not very lucid on this point.
All the three Lords rejected that acts in the private were not within the law’s ambit and therefore followed the approach of Lord Devlin. It was felt that intervention was necessary to ensure that society could protect its values, though they may change with time. However Lord Mustill and Lord Slynn of Hadley took the approach voiced by Mill and Hart. Lord Slynn of Hadley stated that ‘If society takes the view that this kind of behaviour, even though sought after and done in private, is either so new or so extensive or so undesirable that it should be brought now for the first time within the criminal law, then it is for the legislature to decide.’ He therefore held that as the law stands this act was done in private and therefore consent could operate as a defence.
Lord Mustill stated that the defendant had committed acts, which were probably more repulsive then the ones for which the defendant had been charged. Yet as there were no statutory provisions aptly covering such conduct a charge could not be brought in that regard. Lord Mustill stated that ‘If repugnance to general public sentiments of morality and propriety were the test, one would have expected proceedings in respect of the most disgusting conduct to be prosecuted with the greater vigour. Yet the opposite is the case.’ Discerning himself from moral judgment whilst still recognizing them, he stated further that ‘…these are questions of private morality; that the standards by which they fall to be judged are not those of the criminal law; and that if these standards are to be upheld the individual must enforce them upon himself according to his own moral standards…’
This is one of the best restatements of Mill’s harm principle, which provided that harm to one own self is a matter of private morality and thus such liberty and freedom of the individual should not be interfered with. Mill was opposed to sanctions on self-regarding actions. Mill’s view had previously also influenced Report of the Committee On Homosexual Offences and Prostitution, under the chairmanship of Sir John Wolfenden in 1957. The report stated that the function of the criminal law ‘…is to preserve public order and decency…’and unless expressly dealt with by law, ‘…there must remain a realm of private morality.’3
Three of the appellants complained to the European Commission of Human Rights that their convictions violated their right to respect for private life guaranteed by Article 8 of the Convention. In Laskey, Jaggard and Brown v. United Kingdom4 the European Court of Human Rights held that while the prosecution of the applicants interfered in their private lives, this was ‘necessary in a democratic society’ in pursuance of a legitimate aim, namely that of the ‘protection of health’. This vindicated the judgment of the majority Law Lords in R v Brown and Lord Devlin’s theory.
However the views of Mill, Hart and Lord Mustill also gained limited implied recognition by ECHR where they recognised the private sphere although subjecting to the standard of public morality in this instance. It seems that the courts will broadly follow anti-libertarian approach of Lord Devlin, however in R v Wilson5 the courts showed their willingness in family cases, concerning conduct in private sphere, to recognise the libertarian approach and the judgment of the minority in R v Brown.
Whilst Wilson is limited in effect due to the case of Donovan, consent may be a defence where the activity concerned in the private home and the purpose of the act is one, which the law does not condemn. Despite this it seems that consent will not be a defence where serious bodily harm is caused.
In R v Barnes (Mark) it was stated that the criminal prosecution of those who had inflicted injury on another in the course of a sporting event was reserved for those situations where the conduct was sufficiently grave to be properly categorised as criminal. Where injuries were sustained in the course of contact sports, such as football, public policy limited the availability of the defence of consent to situations where there had been implicit consent to what had occurred.6
Whether conduct reached the required threshold to be criminal would depend on all the circumstances. The fact that the play had been within the rules and practice of the game and had not gone beyond it would be a firm indication that what had occurred was not criminal. However, in highly competitive sports, where conduct outside the rules could be expected to occur in the heat of the moment, such conduct might not reach the threshold level required for it to be criminal. That level was an objective one which would be determined by the type of sport, the level at which it was played, the nature of the act, the degree of force used, the extent of the risk of injury and the state of mind of the defendant. For an offence under s.20, it was a requirement that the act was not only unlawful but also “malicious”. This could involve no more than that the defendant foresaw the risk of bodily harm.
In R v Konzani it was stated that consent to the risk of contracting HIV could not be inferred from consent to unprotected sexual intercourse and was therefore not a valid defence to charges under the Offences against the Person Act 1861 s.20 of passing on the infection. For a valid defence, there had to be a willing and informed consent to the specific risk of contracting HIV. A defendant’s honest belief in consent would only assist him if the consent had provided him with a defence.7 The case of R v MOHAMMED DICA (2005) was followed.
It was to be emphasised that there was a critical distinction between taking a risk as to the various potentially adverse and possibly problematic consequences of unprotected consensual sexual intercourse, and the giving of informed consent to the risk of infection with a fatal disease. Where consent provided a defence to an offence against the person, it was generally the case that an honest belief in consent would also provide a defence. However, in the circumstances, the defendant’s honest belief had to be concomitant with the consent, which provided a defence. Unless the consent would provide a defence, an honest belief in it would not assist a defendant.8
The effect of Dica and Konzani is that if a person is aware that s/he is HIV positive and knows the risk of transmission and then has unprotected sex with a partner whom they have not told, then they will be liable to prosecution if that partner becomes infected with the virus. However “on the other hand the defendant would have a defence if he had made the partner aware of his condition who with that knowledge consented to sexual intercourse with him because she was still prepared to accept the risks involved”. This however is an obiter statement made Judge LJ in Konzani.
1  2 All ER 75 (HL) &  1 A.C. 212
2 Michael J Allen: Elliott & Wood’s Cases and Materials on Criminal Law, 8th Edition, Sweet and Maxwell, p. 629-641
3 J.W. Harris, Legal Philosophies, 2nd Edition, Butterworths, p. 132, 133
4 Case No. 109/1995/615/703-705)
5  QB 47
6 R v Barnes (Mark) (2004) EWCA Crim 3246, (2005) 1 WLR 910
7 R v Konzani (Feston) (2005) EWCA Crim 706
8 R v Brown (Anthony Joseph) (1994) 1 AC 212