Defining Consent
Sexual Offences Act 2003
S74 states consent is when ‘a person agrees by choice, and has the freedom and
capacity to make that choice’
Only applies formally to sexual offences but gives some formal understanding
Consent must be freely given
Consent must be informed
The consenting person must have the capacity to agree
The consent must subsist at the time of the act agreed to so you have to consent at
the time of it happening
Armin Meiwes, a German national, advertised for someone to eat in 2003
Someone replied, they met up but agreed it wasn’t the right time
The next person who replied had his penis cut off and they both ate it
He bled out in a bath and died
Consent Provides a Defence to Criminal Charges of Assault in the Following:
Tattooing
Body piercing
Spanking
Boxing matches
Surgery
Tackles in a football match
Cosmetic surgery
Euthanasia in some countries
Play fighting
Branding
Sado masochism
All depends on the context of the case e.g. harm above a battery cannot be
consented to as per Brown
Body Modifications recent case B v M [2019] where he removed a nipple, ear and
split the tongue, judge decided it should have been done by medical professions
Consenting to an Assault and Risk of Injury: General Principles:
Attorney General's Reference (No.6 of 1980) [1981] 1 QB 715
2 young men argued and agreed to a fight in the street to resolve the matter
Did this agreement provide a defence to assault as consent to fight
It didn’t provide a defence
Initially the judge said that if there was consent and the force was reasonable
then this can be a defence. He said it was up to the jury and it was
considered in this case that consent would have no effect on lessening guilt
‘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…it is immaterial whether the act occurs in private or in public:
it is an assault if ABH is intended and/or caused. This means that most fights
will be unlawful regardless of consent’ (Lord Lane CJ)
Lord Lane also made clear that this statement was subject to a number of exceptions
Properly conducted games and sports
Lawful chastisement
Reasonable surgical interference
, Dangerous exhibitions
This list is not exhaustive e.g R v Jones
Rationalising the Law:
The difficult question is when and for what reasons does consent become ineffective
in respect of physical harm caused?
Public policy/public interest is used as common justification for reaching conclusions
in this area
However it is more difficult to identify a common thread to such justifications
Contact Sports: Boxing:
R v Coney (1882) 8 QBD 534
Prize fighting illegally means the participants and audience are guilty of
assault, regardless of consent
Those fighted consented to do it which is not that different from AG’s ref no.6
as it is an unregulated setting
Court held a majority that it was illegal and that anyone betting contributed to
the assault so the audience was also guilty
Consent was not a defence here
Cave J said a blow struck in anger and likely to hurt as opposed to a blow
struck in sport
Mathew J talked about the dangerous nature of proceedings
Hawkins J said about the likelihood of breach of the peace
Lord Coleridge CJ talked about protection of the public
Boxing is accepted even though there is a deliberate intention to injure
Contact Sports: Implied Sporting Consent:
For injuries sustained in sporting activities, there is an idea that there is implied
consent for injuries sustained in the course of properly conducted games (AG’s ref
no.6 of 1980)
R v Barnes [2004] EWCA Crim 3246
Footballer was charged with S20 GBH after a tackle inflicted a serious leg
injury
Players cannot consent to intentional infliction of injury but…
Consent to participate encompasses consent to ordinary and reasonable
collisions which may occur
Reckless infliction of injury is to be judged as criminal according to the type of
sport, safety rules and conditions under which the game is played, playing
culture and whether heat of the moment acts are criminal, nature of injuring
act, extent of force, degree of risk of injury and probability of serious harm
and state of mind of the accused
This is a very contextual approach
The Scope of Consent to Harm:
Sexual Offences Act 2003
S74 states consent is when ‘a person agrees by choice, and has the freedom and
capacity to make that choice’
Only applies formally to sexual offences but gives some formal understanding
Consent must be freely given
Consent must be informed
The consenting person must have the capacity to agree
The consent must subsist at the time of the act agreed to so you have to consent at
the time of it happening
Armin Meiwes, a German national, advertised for someone to eat in 2003
Someone replied, they met up but agreed it wasn’t the right time
The next person who replied had his penis cut off and they both ate it
He bled out in a bath and died
Consent Provides a Defence to Criminal Charges of Assault in the Following:
Tattooing
Body piercing
Spanking
Boxing matches
Surgery
Tackles in a football match
Cosmetic surgery
Euthanasia in some countries
Play fighting
Branding
Sado masochism
All depends on the context of the case e.g. harm above a battery cannot be
consented to as per Brown
Body Modifications recent case B v M [2019] where he removed a nipple, ear and
split the tongue, judge decided it should have been done by medical professions
Consenting to an Assault and Risk of Injury: General Principles:
Attorney General's Reference (No.6 of 1980) [1981] 1 QB 715
2 young men argued and agreed to a fight in the street to resolve the matter
Did this agreement provide a defence to assault as consent to fight
It didn’t provide a defence
Initially the judge said that if there was consent and the force was reasonable
then this can be a defence. He said it was up to the jury and it was
considered in this case that consent would have no effect on lessening guilt
‘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…it is immaterial whether the act occurs in private or in public:
it is an assault if ABH is intended and/or caused. This means that most fights
will be unlawful regardless of consent’ (Lord Lane CJ)
Lord Lane also made clear that this statement was subject to a number of exceptions
Properly conducted games and sports
Lawful chastisement
Reasonable surgical interference
, Dangerous exhibitions
This list is not exhaustive e.g R v Jones
Rationalising the Law:
The difficult question is when and for what reasons does consent become ineffective
in respect of physical harm caused?
Public policy/public interest is used as common justification for reaching conclusions
in this area
However it is more difficult to identify a common thread to such justifications
Contact Sports: Boxing:
R v Coney (1882) 8 QBD 534
Prize fighting illegally means the participants and audience are guilty of
assault, regardless of consent
Those fighted consented to do it which is not that different from AG’s ref no.6
as it is an unregulated setting
Court held a majority that it was illegal and that anyone betting contributed to
the assault so the audience was also guilty
Consent was not a defence here
Cave J said a blow struck in anger and likely to hurt as opposed to a blow
struck in sport
Mathew J talked about the dangerous nature of proceedings
Hawkins J said about the likelihood of breach of the peace
Lord Coleridge CJ talked about protection of the public
Boxing is accepted even though there is a deliberate intention to injure
Contact Sports: Implied Sporting Consent:
For injuries sustained in sporting activities, there is an idea that there is implied
consent for injuries sustained in the course of properly conducted games (AG’s ref
no.6 of 1980)
R v Barnes [2004] EWCA Crim 3246
Footballer was charged with S20 GBH after a tackle inflicted a serious leg
injury
Players cannot consent to intentional infliction of injury but…
Consent to participate encompasses consent to ordinary and reasonable
collisions which may occur
Reckless infliction of injury is to be judged as criminal according to the type of
sport, safety rules and conditions under which the game is played, playing
culture and whether heat of the moment acts are criminal, nature of injuring
act, extent of force, degree of risk of injury and probability of serious harm
and state of mind of the accused
This is a very contextual approach
The Scope of Consent to Harm:
