CONSENT

In A-G's Reference (No 6 of 1980) [1981] (see below), 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.
The Court of Appeal's views were applied and developed by the House of
Lords in R v Brown and Others [1993] 2 All ER 75. The law about the
validity of a consent to bodily harm is now as follows:

CONSENT TO INTENTIONAL ACTUAL BODILY HARM

One cannot consent to the intentional causing of actual bodily harm,

except in certain recognised cases.

R v Brown and Others [1993] 2 All ER 75.

The accused belonged to a group of sado-masochistic homosexuals who
willingly participated in acts of violence against each other, including
genital torture, for the sexual pleasure engendered in the giving and
receiving of pain. The passive partner in each case consented to what was
done and the bodily harm suffered was not permanent. The activities took
place in private. They were video recorded and the tapes distributed only
among the group. The police discovered the activities by chance. The
accused were convicted of assault occasioning actual bodily harm and
unlawful wounding, contrary to ss47 and 20 of the Offences Against the
Person Act 1861 respectively. Their convictions were upheld by the Court
of Appeal. The accused appealed to the House of Lords, contending that a
person could not be guilty of offences under ss47 and 20 of the 1861 Act
in respect of acts carried out in private with the victim's consent.
By a majority (3-2), the House of Lords dismissed the appeals. It held
that, since actual bodily harm was intended and caused, consent was
irrelevant unless it could find that it was in the public interest to
permit such activities by recognising as valid a consent to intentional
causing of actual bodily harm in the course of sado-masochistic practices,
and there were several good reasons why it should not do so. First, it was
only luck that the participants had not suffered any serious harm or
infections. Second, there was a risk of spreading diseases such as AIDS.
Third, there was the danger that young people could be drawn into the
unnatural practices.
This decision was upheld by the European Court of Human Rights in 1997.

R v Wilson (1996) Times Law Report March 5 1996

The defendant had been charged with assault occasioning a.b.h. contrary to
s47 of the O.A.P.A. 1861. The activity involved the defendant burning his
initials onto his wife's buttocks with a hot knife because she had wanted
his name on her body. The Court of Appeal held that consensual activity
between husband and wife in the privacy of the matrimonial home was not a
proper matter for criminal investigation or criminal prosecution. The
court believed that the defendant had been engaged in an activity which in
principle was no more dangerous than professional tattooing. Thus, the
court was of the opinion that it was not in the public interest that his
activities should amount to criminal behaviour.

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. See:
Attorney-General's Reference (No 6 of 1980) [1981] 2 All ER 1057.
The accused and a youth met in a public street and argued together. They
decided to settle the argument there and then by a fight. They exchanged
blows with their fists and the youth sustained a bleeding nose and bruises
to his face caused by blows from the accused.
The trial judge directed the jury that the accused would, or might, not be
guilty of assault if the victim agreed to fight, and the accused only used
reasonable force. The respondent was acquitted. The Court of Appeal held
that a fight between two persons would be unlawful, whether in public or
private, if it involved the infliction of at least actual bodily harm, or
if actual bodily harm or worse was intended. This would make most fights
between people wishing to 'settle their differences' in this manner
unlawful. Lord Lane CJ stated:
"The answer to this question, in our judgment, is 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. Minor struggles are
another matter. So, in our judgment, it is immaterial whether the act
occurs in private or in public; it is an assault if actual bodily harm
is intended and/or caused. This means that most fights will be
unlawful regardless of consent.
Nothing which we have said is intended to cast doubt upon the accepted
legality of properly conducted games and sports, lawful chastisement
or correction, reasonable surgical interference, dangerous
exhibitions, etc. These apparent exceptions can be justified as
involving the exercise of a legal right, in the case of chastisement
or correction, or as needed in the public interest, in the other
cases."

EXCEPTIONS

As the House of Lords recognised 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.

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.

PROPERLY CONDUCTED GAME OR SPORT

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' (Foster, Crown Law, 1792, p259).
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) 2 QBD 534).
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).

TATTOOING AND EAR-PIERCING

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.

CONSENT TO RISK OF UNINTENTIONAL A.B.H.

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. See:
R v Billinghurst [1978] Crim LR 553.
During a rugby match and in an off-the-ball incident B punched an opposing
player, in the face fracturing the jaw. B was charged with inflicting
grievous bodily harm contrary to s20 of the Offences Against the Person
Act 1861. The only issue in the case was consent. Evidence was given by
the victim that on previous occasions he had been punched and had himself
punched opponents on the rugby field, and by a defence witness, a former
International rugby player, that in the modern game of rugby punching is
the rule rather than the exception.
· It was argued by the defence that in the modern game of rugby players
consented to the risk of some injury and that the prosecution would have
to prove that the blow struck by B was one which was outside the normal
expectation of a player so that he could not be said to have consented to
it by participating in the game. · The prosecution argued that public
policy imposes limits on violence to which a rugby player can consent and
that whereas he is deemed to consent to vigorous and even over-vigorous
physical contact on the ball, he is not deemed to consent to any
deliberate physical contact off the ball.
The judge directed the jury that rugby was a game of physical contact
necessarily involving the use of force and that players are deemed to
consent to force "of a kind which could reasonably be expected to happen
during a game." He went on to direct them that a rugby player has no
unlimited licence to use force and that "there must obviously be cases
which cross the line of that to which a player is deemed to consent." A
distinction which the jury might regard as decisive was that between force
used in the course of play and force used outside the course of play. The
judge told the jury that by their verdict they could set a standard for
the future. The jury, by a majority verdict of 11 to 1, convicted B.

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. See:
R v Jones (Terence) (1986) 83 Cr App R 375.
The defendants were convicted of inflicting grievous bodily harm on two
schoolboys, who had been tossed high in the air and then allowed to fall
to the ground by the defendants. The defendants' evidence was that they
regarded this activity as a joke. There was some evidence showing that the
victims, likewise, so regarded this. The judge declined to direct the jury
that if they thought that the defendants had only been indulging in rough
and undisciplined play, not intending to cause harm, and genuinely
believing that the victims consented, they should acquit. On appeal, their
appeals were allowed on the basis that consent to rough and undisciplined
horseplay is a defence; and, even if there is no consent, genuine belief,
whether reasonably held or not, that it was present, would be a defence.

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. See:
R v Aitken and Others [1992] 1 WLR 1066.
The three defendants and a man named Gibson were all RAF officers
attending a party to celebrate the completion of their formal flying
training. During the course of the evening the defendants had, in jest,
tried to ignite the fire resistant suits of two fellow officers. When G
indicated that he was leaving the party to go to bed, the defendants
manhandled him and set fire to his fire resistant suit. Despite the rapid
efforts of the defendants to douse the flames, G suffered serious burns.
Although it was accepted that the defendants had not intended to cause
injury to G, the defendants were court martialled, and convicted of
inflicting GBH contrary to s20 of the Offences Against the Person Act
1861.
An appeal against conviction was allowed. The Courts-Martial Court of
Appeal held that the judge advocate should have directed the court to
consider whether G gave his consent as a willing participant to the
activities in question, or whether the appellants may have believed this,
whether reasonably or not.