Alternative verdicts:

- If d is charged under s18, GBH w intent, the jury may alternatively find liability under
s20 or 47 if they believe that the essential elements if liability for s18 are not proven -
Mandair (1994) 99 Cr App R 250.
- Where D satisfies the elements of section 47, 20, or 18, she will nevertheless avoid
liability if she has a specific defence of ‘consent’ or ‘belief in consent’. D may also
avoid liability by relying on one of the general defences
- although the defences of ‘consent’ and ‘belief in consent’ are available in relation to
sections 47, 20, and 18, these defences are not constructed in the same way as they
were in relation to assault and battery.
- To apply to the more serious offences, V’s consent, or D’s belief in consent, will
require additional elements before being legally effective.

Defense to base offence of s47:

- Since s47 builds upon s39 CJA, a defense to s39 might show possibility of removing
liability. As without the base offence, s47 can’t be constructed.

BUT

1. Where D causes ABH, she intended or foresaw possibility of causing ABH, and V
has given affective consent to assault or battery, but since D foresaw ABH,
consent will not prevent s47 liability. D will only avoid this liability if she satisfies
more restrictive consent defenses – Donovan [1934] 2 KB 498.
2. Where D causes ABH, she did not intend or foresee ABH, then V’s effective
consent to assault and battery will prevent s47 liability. There is no further fault
from D that justifies treating the consent as invalid – Meachen [2006]
3. Where D causes ABH, she did not intend or foresee it although she could have
foreseen it, then according to case of Boyea, V’s effective consent to assault and
battery will not prevent liability of s47. Because D’s negligence as to causing
ABH will undermine her defiance. BUT in more recent cases such as Meachen,
the Court of Appeal casts doubt on this interpretation, suggesting that p. 259↵only
subjective foresight of ABH (point (ii)) will prevent V’s consent to simple assault
or battery undermining the base offence. The case in point (iii) should therefore be
treated in the same way as in point (ii). It is likely that the interpretation
in Meachen will be followed.
- Foresight to ABH becomes primary concern when determining if defense to assault
and battery can remove liability.

Consent to more serious OAP:

Defence of consent to serious offences against the person:

1. V’s consent must be expressed or implied to D in a legally recognised manner

2. V’s consent must be effective: V must have the capacity, freedom, and information
to make a choice

3. The conduct and harms consented to must come within a legally recognised
category

- First two elements are discussed in assault and battery.

Third element was established in Brown [1994]:

D and others were involved in sadomasochistic gay gatherings. Within the group, the men
filmed various acts, causing both ABH and wounding, for their mutual sexual pleasure. They
were charged with offences under sections 47 and 20.
Crown Court: guilty of section 47 and 20 offences.
Court of Appeal: convictions upheld on appeal.
House of Lords: appeal dismissed. The court set out the additional requirement for consent in
relation to sections 47, 20, and 18. They then concluded that sadomasochism did not qualify
within one of the special categories.

In Barnes, Lord Woolf admitted that the list of accepted activities where V’s consent will be
legally effective have evolved as a matter of ‘public policy’.

List:
1. Surgery
2. Body modification
3. Religious flagellation
4. Sports
5. Horseplay
6. Sexual pleasure

SURGEY:

- straightforward example where V can provide valid consent to what might otherwise
constitute a serious offence against the person - Law Commission, Consent in
Criminal Law (Consultation 139, 1995) Part 8; Skegg, ‘Medical Procedures and the
Crime of Battery’ [1974] Crim LR 693 and (1973) 36 MLR 370.
- includes both essential and non-essential (cosmetic) treatment. - Corbett v
Corbett [1971] P 83: gender reassignment surgery.
- There are specific exceptions where consensual surgery is an offence:
 i. Under the Health and Care Act 2022, it is now a criminal offence to carry out
‘virginity testing’ (the examination of female genitalia for the purpose (or
purported purpose) of determining virginity, with or without consent).
ii. also, an offence to carry out hymenoplasty (reconstruction of the hymen, with
or without consent)
iii. under section 1 of the Female Genital Mutilation Act 2003, to ‘excise,
infibulate or otherwise mutilate’ the whole or any part of the female genitals.

BODY MODIFICATION:

- including piercing, tattooing, hair cutting, etc.

- These procedures can, of course, be validly consented to - Law Commission, Consent
in Criminal Law (Consultation 139, 1995) Part 9; Elliott, ‘Body Dysmorphic
Disorder, Radical Surgery and the Limits of Consent’ (2009) 17 Med L Rev 149.

Category with significant grey areas, as we see in Wilson [1996]:

At his wife’s (V’s) request, D consensually branded his initials onto her bottom with a hot
butter knife. D was charged with a section 47 offence (ABH). Crown Court: guilty of section
47 offence. Court of Appeal: appeal allowed. D’s conduct was akin to tattooing, and V’s
consent was therefore valid.

Court of Appeal, in allowing the appeal in Wilson, was robust in making clear that this kind
of activity, performed in private, was not deserving of criminal liability. This would suggest
that Wilson was a clear case on its facts where V’s consent was valid.

However, the position is not so clear when compared to the case of Brown: some of the acts
in Brown could equally have been treated as analogous to this category of behaviour (eg
genital piercing), but the court in Brown found consent to be invalid.

Also seen in BM [2018]:

D (a professional piercer and tattooist) began performing more extreme forms of body
modification, including the removal of an ear, the removal of a nipple, and tongue splitting. It
was not disputed that each V (customer) consented in fact to the procedures. D was charged
with a section 18 (GBH with intent) offence on the basis that such consent was not legally
valid. Crown Court: preparatory hearing found that consent was not legally valid, giving rise
to an interlocutory appeal. Court of Appeal: dismissing the appeal. Body modification of this
kind is akin to unlicensed surgery, and therefore not part of piercing, etc category (at [42]).

BM offers useful clarification on the limits of this consent category, but several issues
remain. The court states that the practices in BM are unlawful, while piercing and similar
procedures are lawful, yet it provides little guidance on intermediate procedures (e.g.,
scarification, skin peels, branding, beading).

The judgment mentions factors such as whether the harm caused is ABH or GBH, whether
the activity is regulated, and whether it poses additional risks (e.g., infection), but does not
clarify their determinative extent. While the court rightly states that recognizing new consent
categories is Parliament's responsibility (at [45]), it is argued that guidance on existing
categories' boundaries is still a judicial matter.

Body modification is common in religious context, and it gains some protection from Article
9 of the ECHR. – but some practices have not been accepted such as cheek incision in the
case of Adesanya (1974)

RELIGIOUS FLAGELLATION:

- Eg, beating or hitting as a part of ritual, it is likey to constitute as an exception where

V’s consent is valid – recognised by Lord Mustill in Brown.

SPORTS:

1. Question if the sport is recognised by the law.

- sports like boxing allow participants intentionally to inflict GBH, and the courts
recognise this as lawful. - Gunn and Ormerod, ‘The Legality of Boxing’ (1995) 15 LS
181; Anderson, The Legality of Boxing: A Punch Drunk Love? (2007).
- Where injury results from an unrecognised sport then v’s consent will not be legally
valid, and D may be liable.
2. We then examine the rules of the sport.
- law will generally accept that no offence arises for conduct within the rules of a sport,
played consensually.
- risks are implicitly consented to when V joins the game.
- One qualification here, however, is that the criminal law is not obliged to accede to
any rule changes instituted by sporting bodies.
3. We then consider injuries that result outside the rules of the game.
- task, then, is to distinguish what we might call legitimate foul play (conduct that
breaches the rules, but is still impliedly and validly consented to),
from illegitimate foul play (conduct that breaches the rules to such an extent that it is
not validly consented to). This was discussed in Barnes.

Barnes [2005]:

D was playing in an amateur football match. D mistimed a sliding tackle against V, and
caused serious injury. D was charged with a section 20 offence. Crown Court: guilty of
section 20 offence. Court of Appeal: appeal allowed. D’s conduct can be outside the rules
of the game (within a margin of appreciation) and still be validly consented to.

When asking if the risk is impliedly consented to by those involved, even though it is outside
the rules of the game, the Court of Appeal set out a number of factors that should be
considered: the type of sport, the level at which it is being played, the nature of the act, the
degree of force, the extent of the risk of injury, and D’s state of mind.

D’s state of mind requires some special attention. This is because, except for boxing and
certain martial arts, playing sport should not involve D intentionally causing V bodily harm.
Thus, although in sports such as hockey or cricket V’s implicit consent will extend to
the risk of D causing bodily harm, V has not consented to D intentionally causing such injury.
Where D causes injury with intent, there is, therefore, no consent. (Bradshaw (1878) Cox CC
83.)

HORSEPLAY:

- Such conduct often carries a risk of injury, and consent has been held to be legal valid
even where GBH results—as long as the court is satisfied that V’s consent
was genuine- A [2005] All ER 38: V was clearly not consenting.
- horseplay exception has been interpreted widely. For example, in Aitken- ‘robust
games’ involved RAF officers, who were celebrating in a bar, setting fire to one
another’s fire-resistant clothing, eventually leading to V suffering severe burns. It was
held that if V consented, such consent could be recognised within the exception.

SEXUAL PLEASURE:

- domestic abuse act provides clarification that V cannot consent to serious harms for
reasons of sexual gratification alone.

Risk of STD:

- it is clear from Dica and Konzani that a person may consent to the risk of getting an
STD if V was fully informed of the risk.
- This will not, of course, include consent where either party is intending that the
infection should be spread. This rule is confirmed in section 71(4) of the Domestic
Abuse Act 2021.

Harm and sexual pleasure: sadomasochism.

- common law position that evolved is now confirmed in the Domestic Abuse Act
2021.: It is not a defence that V consented to the infliction of the serious harm for the
purposes of obtaining sexual gratification.
 - ‘Serious harm’ is defined to include ABH and GBH.
- essentially codifies the ratio in Brown- done to protect vulnerable people from abuse,
but it may also limit the freedom of others who wish to experience pain for sexual
pleasure in non-abusive relationships.
Brown:
On appeal, the Ds argued that participants had consented and that lack of
consent should be an element of the s47 and s20 offences.
Held: The House of Lords dismissed the appeal by a vote of 3 to 2. The case decided
that:
1) As a general rule, causing ABH or GBH cannot be legitimated by consent. In other
words, people cannot consent to receiving ABH or GBH.
2) There are exceptions to the rule. One can consent to certain acts that fall under
various exceptional categories (which are not fully clear). These include sport,
dangerous exhibitions (daredevils), horseplay, surgery, tattooing and piercing,
religious ritual (flagellation or circumcision), and knowingly risking catching sexually
transmitted diseases.
3) Sado-masochism resulting in ABH or GBH is not included under an exception and
cannot legally be consented to.

Laskey v UK [1997] 24 EHRR 39

Facts: Some of the appellants from the Brown case appealed to the European Court of
Human Rights. They sought a “declaration of incompatibly,” a statement from the
Court that the Brown decision violated Article 8(1) of the European Convention of
Human Rights, the right to private life.
Held: Appeal failed. The prosecution and conviction of the Ds was a violation of their
right to private life, but it was permissible on the basis of Article 8(2), namely, as
being “necessary in a democratic society” for the protection of health.

Belief in consent to more serious OAP:

- D has a defence if she believed that V provided valid consent. D’s belief in V’s
consent must have been consistent with the legal requirements of being informed,
effective, and within a recognised category. Thus, even if V was not consenting in
fact, D will avoid liability if she genuinely believed that consent was present -
Jones [1987] Crim LR 123.

Jones (1986) 83 Cr App R 375

Facts: Teenage schoolboys engaged in horseplay they called “bumps.” A child would
be grabbed and restrained by a group of kids, and they would throw him into the air 9-
10 feet and let him land on the grass. One child suffered a broken arm and another a
ruptured spleen that had to be removed surgically. In their police interviews, the Ds
indicated that they only foresaw minor injuries like bruising. The Ds were convicted
of causing GBH after the trial judge refused to allow the jury to consider a direction
on consent.
Held: Appeals allowed. The trial judge should have directed the jury to consider
consent to
the horseplay. Following the dicta in Donovan (see above), “rough and undisciplined”.
horseplay is a category of activity for which Ds can claim that Vs consented to the
possibility of harm. D’s genuine subjective belief of V’s consent is sufficient.