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Cases - assaults - consent

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A v UK (1998) European Court of Human Rights

Aitken, Bennett, Barson, R v (1992) CA

Attorney General's Reference (No 6 of 1980) (1981) CA
Billinghurst, R v [1978] Newport Crown Court
Boyea, R v [1992] CA

Bree, R v [2007] CA
Brown, R v (1993) HL
Burrell v Harmer [1967] QBD
Cato, R v [1976] CA

Cey, R (1989) CA (Canada)
Coney and others, R v (1882) QBD

Dica, R v [2005] (CA)

Donovan, R v (1934) KBD

Dougal, R v (2005) Swansea Crown Court
Johnson, R v (1986) CA

Gillick v West Norfolk & Wisbech HA [1985] HL
Jheeta, R v [2007] CA

Jones and others, R v (1986) CA
Lamb, R v [1967] CA
Lloyd, R v [1989] CA

Olugboja, R v (1982) CA
Re J (Prohibited steps order: circumcision) (1999) CA

Re W (1993) Fam
Richardson, R v (1999) CA
Tabassum, R v (2000) CA
Williams, R v (1923) CA
Wilson, R v (Alan) (1996) CA

 

A v UK (1998) European Court of Human Rights

^[General defences - assault - the right of parents to physically chastise their children]
D frequently and severely caned his stepson 'A' aged 8 with a garden cane. D argued that such chastisement was reasonable and necessary since A was a difficult child.

 

Held: D could not rely on the defence of lawful punishment, because it was held to be sufficiently severe to be a breach of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) Art 3) (inhuman or degrading punishment).

 

The United Kingdom had failed to provide adequate protection to children in such situations.

 

Not Guilty of ABH

UK Guilty

 

Aitken, Bennett, Barson, R v (1992) CA

^[General defences - assault – Sec 20 an offence of basic intent - consent by conduct therefore intoxication not a defence] 
D's RAF officers at a party at the completion of their flying training. They drank a lot. There was some horseplay that was treated it as a joke.

 

D's set fire to V's fire resistant suit. In his drunken state he could only resist weakly. Flames flared up rapidly and although the appellants took immediate action to put out the fire but G was severely burned. 

 

Held:
Section 20 not an offence of specific intent.

Therefore drunkenness is no defence to the forming of the intent necessary.

 

D’s would have acted maliciously if they had foreseen that their actions would result in injury to V or would have foreseen injury but for drunkenness. 

 

A victim can give effective consent to the risk of accidental injury in the course of rough undisciplined play.

 

Moreover, if D honestly but mistakenly believed that V had consented (or in this case, would have so believed had they not been intoxicated), that too would be a defence.

 

Not Guilty of GBH

 

Attorney General's Reference (No 6 of 1980) (1981) CA

 

Red Triangle indicating "Must Know" material

 

 

Whole case here

 

^[General defences - consent - cannot consent to injury that has no social function - definition of assault]
D aged 18, and the victim, aged 17 quarrelled and agreed to settle their difference by fighting in the street.
 

Held:

Lord Lane CJ: 

'It was 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' 
 

 

Per curiam.

 

"Doubt is not intended to be cast upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc., which apparent exceptions can be justified as involving the exercise of a legal right or as needed in the public interest."

 

Definition of assault

"the actual intended use of unlawful force to another person without his consent, or any other lawful excuse."

 

Not Guilty, but would be now

Comment: The basis for the court’s decision was that it is not in the public interest for people to cause or try to cause each other bodily harm for no good reason.

 

Billinghurst, R v [1978] Newport Crown Court

[General defences - consent – assault lawful sport]
D punched another player during a rugby match fracturing his jaw. Mervyn Davies, a former Welsh International Rugby player, said that in the modern game of rugby punching is the rule rather than the exception.

 

Held: 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."

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.

 

Guilty D a man of previous good character and sentenced to nine months' imprisonment suspended for two years for Sec 20 G.B.H. 

 

Boyea, R v (1992) CA

^[General defences - assault - ABH - more than transient or trifling]
D pinned V down on her bed and forced his hand into her vagina
twisted it with some force, causing her injuries..

 

Held: It was inconceivable that V had consented to such injuries.
Glidewell LJ:
Even though the level of vigour in sexual congress which was generally acceptable today, and therefore the voluntarily accepted risk of incurring some injury, was probably higher now than it was in 1934 and therefore the phrase "transient or trifling" must be understood in the light of modern attitudes. 

'An assault intended or which is likely to cause bodily harm, accompanied by indecency, is an offence irrespective of consent, provided that the injury is not "transient or trifling"'.

Guilty of indecent assault

Bree, R v [2007] CA

^[Consent - drunken consent is still consent]
D had intercourse with V a 19 year old student at Bournemouth University, she claimed she was too drunk to give consent.

Held: V was still capable of consenting to intercourse, even though she had drunk so much she was sick (she had drunk Red Bull and Vodka and cider).

Not guilty
Comment: This case further damages the government’s intention to drive up the number of convictions for rape following the passing of section 74 of the Sexual Offences Act 2003, which says that a person consents if she agrees by choice, and has the freedom and capacity to make that choice. It was thought that a very drunk person would not have lost capacity would not have consented and the defendant would be guilty (subject to having the necessary mens rea). Sir Igor Judge said, “…when someone who has had a lot to drink is in fact consenting to intercourse, then that is what she is doing, consenting: equally, if after taking drink, she is not consenting, then by definition intercourse is taking place without her consent.

Brown, R v (1993) HL

 

Red Triangle indicating "Must Know" material

 

 

[General defences - consent - assault - ABH - harm caused - consent not relevant]
D1-5 engaged in various homosexual sadomasochistic practises in private.
They used genital torture and inflicted injuries, willingly and enthusiastically participating in the commission of acts of violence against each other for the sexual pleasure it engendered in the giving and receiving of pain. None requiring medical treatment.

Held: The courts will interfere, liability did occur, but not if it were a lawful act. Public policy, fear of proselytisation, corruption, cult of violence and potential for serious harm.

Absence of consent is not an element of assault occasioning actual bodily harm or unlawful wounding.

Consent is a defence to the infliction of bodily harm in the course of some lawful activity, but ought not to be extended to sadomasochistic encounters.

Lord Mustill, dissenting;

'these consensual private acts are [not] offences against the existing law of violence'

Lord Slynn found no compelling reasons for creating criminal liability.

Definition of assault:

"At common law, an assault is an act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful personal violence and a battery is an act by which a person intentionally or recklessly inflicts personal violence upon another. However, the term 'assault,' is now, in both ordinary legal usage and in statutes, regularly used to cover both assault and battery."

All Guilty of ABH and three of wounding
Also
here

 

Burrell v Harmer [1967] QBD

[General defences - consent - assault causing actual bodily harm - tattooing - consent of child - ability to understand nature of act]
D caused actual bodily harm to two boys of 12 and 13, by tattooing them.

 

Held: Where the victim was unable to appreciate the nature of the act to which he was ostensibly consenting, that consent was not true consent at all.

Guilty

[You now have to be 18 to give consent to being tattooed.] 

Cato, R v [1976] CA

Red Triangle indicating "Must Know" material

 

[General defences - consent – unlawful dangerous act manslaughter]
D and V injected one another with heroin several times during the course of one night, and V died in the morning.

 

Held: his acts were not "directed against" anyone, his friend having freely consented. The unlawful and dangerous act, said Lord Widgery CJ, was administering a noxious substance, to which the victim's consent was no defence.

 

Guilty of manslaughter

Cey, R (1989) CA (Canada)

 

 

R. v. Cey, 75 Sask. R. 53; 48 C.C.C. (3d) 480 (C.A. 1989)

 

 

Red Triangle indicating "Must Know" material

 

^[General defences - consent – assault lawful sport]

D inflicted injuries to the head of the victim during an ice-hockey game.  V sustained a concussion and a whiplash, keeping him hospitalized for three days.

 

The trial judge found that the accused had not intended to injure the complainant, nor had he intended to apply any greater force to the victim than was customary in the game. Since the complainant had continued to play the game after he received the injuries, the trial judge held that that willingness amounted to an implied consent to the bodily contact which had occurred, and used that finding as a basis for acquitting the accused.

 

Held: The court attempted to clarify the approach by providing that in future the consent of sports participants should be recognised by reference to a number of specific factors such as the nature and standard of the game played, the nature of the act from the point of view of the degree of force and harm inflicted and the state of mind of the accused.

 

Retrial ordered

Comment: This case is seldom referred to in UK cases, but it has persuasive interest. It is an objective approach and although this precedent has not be followed by UK courts it has been followed in other Commonwealth jurisdictions.  It has appeared in the exam marking guide as a case of interest.

Coney and others, R v (1882) QBD

 

Red Triangle indicating "Must Know" material

 

^[General defences - assault - prize fights are unlawful - consent not relevant]
The defendants were present when two men fought with each other in a ring, formed by ropes supported by posts, in the presence of a large crowd. It did not appear that the prisoners took any active part in the management of the fight, or that they said or did anything. They were tried and convicted of assault, as being principals in the second degree.
 

 

Held: Prize-fight is illegal, and that all persons aiding and abetting therein are guilty of assault, and that the consent of the persons actually engaged in fighting to the interchange of blows does not afford any answer to the criminal charge of assault.

 

Guilty

 

Dica, R v [2005] (CA)

^[General defences - consent - assault - appeal - leave refused – point of general public importance certified - biological GBH]
D infected V with HIV during unprotected, consensual, sex and was convicted of “biological GBH” (s 20 of the Offences Against the Person Act 1861). The issue of consent lead to a successful appeal a retrial was order and he was again convicted by the jury.

Held: Leave to appeal to the House of Lords refused but certified that a point of law of general pubic importance was involved in the decision.

Guilty
Comment: The leading cases of consent to serious injury (R v Dica [2004] CA; R v Barnes [2004] CA and R v Konzani [2005] CA) are not at ease with each other, and because leave was refused on a procedural ground it is quite likely that this will go to the House of Lords.

Donovan, R v (1934) KBD

 

 

 

^[General defences - consent – assault - ABH - relevance of consent - definition of bodily harm]
D caned a girl of seventeen for purposes of sexual gratification. She had consented.

 

Held: An act, unlawful per se as being criminal, cannot be rendered lawful because the person to whose detriment it is done consents to it.

 

Only if the blows struck were neither likely nor intended to do bodily harm, is it necessary to consider whether V had not consented.

 

Not Guilty (misdirection by the trial judge, he did not make it clear that consent was irrelevant)

Comment: This case is the source of the following description of bodily harm:

"For this purpose we think that "bodily harm" has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling."

Dougal, R v  (2005) Swansea Crown Court

[General defences – consent – statutory provision – reverse burden of proof]
D had sexual intercourse with V whilst she was too drunk to give or deny consent.

Held: Section 74 of the Sexual Offences Act 2003 put the burden on the defendant to show that consent had not been refused in circumstances in which it would be deemed that the victim had not the “freedom and capacity” to consent.

Not guilty
Comment: Under the 2003 Act once the prosecution has proved that sexual activity took place in one of the precluded circumstances (e.g. victim detained, asleep or drugged) it would be for the defendant, on the balance of probabilities, to persuade a jury that consent had been given (a reverse burden of proof).

Prosecuting counsel’s statement in Swansea Crown Court that “drunken consent is still consent” demonstrates that the legislation has not settled the issue of consent laid out in the White Paper because the prosecution was not able to prove that sexual intercourse had taken place because the woman could not remember.

This case occurred in the same week as an Amnesty International survey claims that the true extent of rape exceeds of 50,000 a year, compared with 12,000 reported rapes. The survey also showed that many people believe the victim’s behaviour can make partly to blame.

It is submitted that both the judge and the prosecutor correctly interpreted the current law.

Gillick v West Norfolk & Wisbech HA [1985] HL

[General defences - consent – limited role of parents]
Mrs Gillick a Roman Catholic mother of five daughters sought a declaration that a doctor would be acting unlawfully if he gave contraceptive treatment for any of her daughters without the mother's consent. 

 

It was argued on the one hand that teenage pregnancies would increase if the courts ruled that parental consent was necessary, on the other hand that the judges would be encouraging under-age sex if they did not.

Held:  By a majority of three to two. A child under 16 who can fully understand the implications of the proposed treatment (a "Gillick competent" child) can give her own consent to medical treatment.

(Since Parliament had not legislated, the courts had to make a decision one way or the other.)


Mrs Gillick lost

Also here

 

Jheeta, R v [2007] CA

 

Whole case here

 

[General defences – consent – rape - complainant not deceived as to nature and purpose of activity (sec 76), but by other lies and Sec 74 applies]
D had a sexual relationship with C. After a few months, C received threatening text messages and telephone calls, these were from D, but she didn’t know that.

 
D pretended to tell the police and C received text messages from 'police constables' about security.
 

Whenever C tried to end her relationship with D, she would receive text messages from different 'police officers' telling her it was her duty and take care of D; and that she should sleep with him, otherwise she would receive a fine. She received 50 such demands over 4 years.
 

D was arrested and admitted sexual intercourse had taken place whilst the complainant was not truly consenting. He was convicted of rape.
 

Held: Lies and blandishments might well be deceptive and persuasive, but they would rarely go to the nature or purpose of intercourse. On the evidence in the instant case, the defendant had undoubtedly deceived the complainant and had created a bizarre fantasy which had pressurised her into having sexual intercourse with him more frequently than she otherwise would have done.
 

She had not been deceived as to the nature or purpose of the sexual intercourse, but deceived as to the situation in which she had found herself.
Section 76(2)(a) Sexual Offences Act 2003, had no application in the instant case.

 

However, in the light of the defendant's admissions in interview and his guilty plea, the complainant had not exercised a free choice or consent for the purposes of s 74 of the Act. There was no doubt that, on some occasions at least, the complainant had not consented to intercourse and that the defendant had been perfectly aware of that.
 

Guilty

Johnson, R v (1986) CA

[General defences - consent – assault - causing GBH with intent – sentence]
D a rugby player bit the ear of an opponent during the match between two police teams.


Held
: six months' imprisonment, imposed.

Jones and others, R v (1986) CA

 

Red Triangle indicating "Must Know" material

 

^[General defences - consent - assault – consent can be raised for GBH where no intention - horseplay allowed]
D, a schoolboy and others tossed two boys into the air. (Birthday 'bumps').

One boy suffered a ruptured spleen and the other a broken arm.

 

Held: V's consent (or DD's honest belief in that consent) to rough and undisciplined play could provide a defence as long as there was no intention to cause injury - mere foresight of bruising (or even of greater harm) was not sufficient.

 

D ought to have been able to raise the defence of consent at trial.

 

Not Guilty of GBH

Lamb, R v [1967] CA

Red Triangle indicating "Must Know" material

 

[General defences - consent – assault – if none, no unlawful act]
D and a friend V were playing with a revolver. In the chamber there were two bullets, but neither was opposite the hammer when D, in jest, pointed the gun at V and pulled the trigger. The chamber rotated and V was killed.

 

Held: since V shared in the joke and did not feel threatened (since both believed the gun to be safe) there was no assault and hence no unlawful act to support D's conviction for manslaughter.

 

Not Guilty 

Lloyd, R v [1989] CA

[General defences - consent - assault – fighting - sado-masochistic sexual activities - ABH or worse - consent no defence]
D a rugby player kicked another while he was lying on the ground, breaking his cheekbone

 

Held: Although the game involved forceful contact, it was not a licence for thuggery. What the defendant
did had nothing to do with rugby football or the play in progress but was a vicious barbaric attack.
 

Guilty of GBH 18 monts imprisonment upheld

Olugboja, R v (1982) CA

[General defences - consent - submission is not consent - meaning of consent]

D and L met the Jayne aged 16 and Karen aged 17 at a disco and took them L's bungalow. L raped Jayne in the car and Karen in the bungalow

D then raped Jayne who submitted to sexual intercourse through fear, without the defendant using force or making any threats or violence.

Held;  The offence of rape was having sexual intercourse against the woman's consent; that the offence was not limited to cases where sexual intercourse had taken place as a result of force, fear or fraud and, therefore, the judge had properly directed the jury and left to them the question whether the complainant had consented to having sexual intercourse with the defendant.

Per curiam. Although "consent" is a common word it covers a wide range of states of mind in the context of intercourse between a man and a woman, ranging from actual desire on the one hand to reluctant acquiescence on the other. The issue of consent should not be left to the jury without some further direction. What the direction should be will depend on the circumstances of each case.

 

Guilty

Re J (Prohibited steps order: circumcision) (1999) CA

[General defences - consent – religious practices]
D the
Muslim father of a five-year-old boy J wanted him circumcised in accordance with Muslim tradition; his non-Muslim mother did not.

 

Held: male circumcision for religious purposes is undoubtedly lawful where both parents agree to it, but where they disagree the matter is one for the court, to be determined according to the child's welfare.

In the instant case there was no intention of bringing up J as a practising Muslim.

 

A prohibited steps order restraining the father from arranging any circumcision without the leave of the court was approved

Re W (1993) Fam

^[General defences - consent - sterilisation of daughter mentally incapable of giving consent]
The patient had severe learning difficulties, mobility and hearing impairments, severe epilepsy and mild cerebral palsy. She could not consent to medical treatment and had very little understanding about sexual matters and childbirth. There was a risk that her epilepsy would worsen during pregnancy although the risk of pregnancy was small.

 

Her mother wanted her to live in the community and to socialise with members of both sexes in a similar situation. Forms of contraception had been rejected as inappropriate for her.

 

The mother sought a declaration for the lawful sterilisation of her daughter.

 

Held:  Although the risk of pregnancy was small, in the light of the medical opinion it was in the patient's best interests for sterilisation to be performed.

Declaration granted

Richardson, R v (1999) CA

Red Triangle indicating "Must Know" material

 

^[General defences - consent – assault - consent obtained by fraud]
D a dentist was suspended by the General Dental Council.  She continued treatment of patients.

 

Held: Fraud only negatived consent if the victim was deceived as to the identity of the person concerned or the nature of the act performed.  The concept of the "identity of the person" could not be extended to cover the qualifications or attributes of the appellant.  In all the charges brought against the appellant the complainants were fully aware of the identity of the appellant.

 

Not Guilty 

Tabassum, R v (2000) CA

 

Red Triangle indicating "Must Know" material

 

[General defences - consent – indecent assault - quality of the act relevant- consent - vitiated by mistaken belief]
D had asked several women to take part in a breast cancer survey. Three women, not knowing D had no medical qualifications allowed him to show them how to carry out breast self-examination: They would not have consented had they known he was not medically qualified. There was no evidence of a sexual motive.

 

Held: The nature and quality of the defendant's act in touching these complainants' breasts was indecent. They were consenting to being touched for medical purposes but not for any other reason. They were consenting to the nature of the act but not to its quality.

 

Guilty 

Williams, R v (1923) CA

Red Triangle indicating "Must Know" material

 

[General defences - consent] 
D a choirmaster from a local church gave singing lessons to a girl of sixteen years of age.  He had sexual intercourse with her under the pretence that her breathing was not quite right and that he had to perform an operation to enable her to produce her voice properly. The girl submitted to what was done.  She believed him that she was being medically and surgically treated by D who would produce an air passage.

 

Held: The girl had consented to surgical operation not sexual intercourse.

 

Guilty 7 years imprisonment

Wilson, R v (Alan) (1996) CA

^[General defences - consent - assault - ABH]
D at his wife's instigation the appellant branded his initials on her buttocks with a hot knife.

 

Held:

"For our part, we cannot detect any logical difference between what the appellant did and what he might have done in the way of tattooing. The latter activity apparently requires no state authorisation, and the appellant was as free to engage in it as anyone else."

 

Public policy did not demand that D's activity should be visited with the sanctions of the criminal law. The judge misdirected himself in saying that R v Brown (1994) constrained him to rule that consent was no defence.

 

Not Guilty

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