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Criminal | Defences

Consent: Criteria

Revision Note | A Level

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  • arguably not a defence as consent means there has been no unlawful act
  • relevant considerations: in what circumstances a person is able to give consent and whether genuine consent is given


  • consent can only become a factor when considering certain offences
  • generally, if an injury is caused then consent is not a defence

Common assault

  • consent is always a defence to assault or battery because there is no injury
  • under the principle that the law will not interfere with people’s rights to do what they wish


  • a person cannot consent to being killed
  • raises important issues in relation to life support machines and euthanasia
  • life prolonging treatment has been considered in a number of cases and position is not entirely clear

    Airdale NHS Trust v Bland [1993]

    • Mr Bland was severely injured at Hillsborough disaster
    • he continued to breathe by himself and his digestive system still functioned, but he could not communicate, was incapable of voluntary movement, had no sensory abilities and was unconscious
    • doctors agreed there was no hope for recovery, after 3 yrs doctors and his family applied to court for a decision on whether it was lawful to stop his artificial hydration and nutrition, which would lead to his death
    • House of Lords decided that his treatment could be stopped, found that artificial nutrition and hydration is a form of medical treatment, there is no distinction between withholding treatment (an omission) and discontinuing treatment
    • should be considered whether it is in the best interests of the patient that his life should be prolonged, assessment should include the previous stated wishes of patient and views of family
    • Lord Goff: .. the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient's life to an end...

    W v M and S and NHS PCT (2011)

    • Patient, a 52-year-old woman, is suffering from a condition known as a minimally conscious state, her family argued that she was in pain and her life support should be withdrawn
    • opposed by the Official Solicitor and health authority in charge of the patient’s care
    • High Court judge ruled that the life sustaining treatment could not be stopped, stating: .. the factor which does carry substantial weight, in my judgment, is the preservation of life. Although not an absolute rule, the law regards the preservation of life as a fundamental principle...
  • legality of euthanasia has been challenged in number of cases

    Pretty (2002)

    • Dianne Pretty was paralysed by motor neurone disease, impossible for her to move or communicate easily, but mental faculties remained, she wanted to choose the time of her own death and would need her husband’s help
    • she took a case to try and ensure if husband assisted in her suicide he would not be prosecuted, argued that Article 2 of the European Convention on Human Rights protects the right to life and right to choose manner of death
    • House of Lords and European Court of Human Rights found Article 2 did not provide right to die, courts found protection of vulnerable citizens was of paramount importance

    R (on application of Purdy) v DPP (2009)

    • Mrs Purdy, suffered from multiple sclerosis and wished to travel to a country where assisted suicide was lawful to end her life
    • she wanted to know whether her husband could help her travel
    • under Prosecution of Offences Act 1985, DPP is obliged to give guidance to prosecutors in deciding whether to prosecute in cases involving aiding suicide
    • guidance not relevant to assisting people to travel abroad to commit suicide, Mrs Purdy asked for clarification, DPP refused
    • House Lords heard judicial review request, held DPP should issue guidelines
  • assisted suicide remains unlawful under the Suicide Act 1961
  • new DPP guidelines still leave the situation unclear
  • those who assist someone to travel abroad to commit suicide may be liable for prosecution


  • consent to injury is not a defence unless a public policy exception applies
  • areas have been developed through case law, sometimes extent of the consent may be limited

    Brown (1993)

    • Ds participated in sadomasochistic activity, no one suffered permanent injury
    • Ds argued acts were consensual, judge did not allow argument, Ds plead guilty to ABH and unlawful wounding
    • on appeal court confirmed consent could be only be used in cases of battery, causing any greater injury was not in public interest
    • consent only available in cases involving injuries more serious than common assault if in category of recognised exceptions, eg. .. properly conducted games and sports, reasonable surgical interference and dangerous exhibitions...


  • many sports involve some physical contact and risk injury inflicted by another
  • key issue is the extent of consent

    Barnes (2004)

    • D inflicted serious leg injury upon V, D attempted slide tackle during an amateur football match
    • D accepted tackle had been hard, maintained it was fair and injury caused was accidental
    • D convicted of S20 offence under Offences Against The Person Act (OAPA) 1861
    • Court of Appeal quashed D’s conviction, held there is implied consent where situation is within what can reasonably be expected and game is conventionally played
    • contact sports, including football, are recognised exceptions on public policy grounds, ruled criminal prosecutions should be reserved for grave situations
    • the following should be considered before a prosecution is brought: the type of sport, the level it was played at, the nature of the act, the degree of force, the extent of the injury and the state of mind of the person who caused the injury
  • is in the public interest to provide consent defence, so not to create criminal liability in normal sporting activities, to allow for participation in contact sports

Social intercourse

  • is implied consent in everyday minor touching (hand shaking or tapping someone on the shoulder)
  • ordinary jostlings experienced in a crowd cannot amount to battery (Wilson v Pringle (1987))
  • a person can withdraw their consent and then such actions may lead to liability

Medical procedures

  • surgical treatment can usually be consented to expressly, by signing a consent form
  • in emergencies there is implied consent
  • medical consent may be refused or withdrawn at anytime
  • there may be statutory consent to blood tests, in some situations

    Police Reform Act 2002

    • If patient is unable to give consent for blood test, for medical reason (is unconscious) then police officer may request a sample is taken on his behalf
  • Tattoos and piercings

    • consent can be given for tattooing and body piercing
    • regulated by statute such as Tattooing of Minors Act 1969
    • consent may be a defence even if injury is caused in the process

      Wilson (1996)

      • D branded his initials, with a hot knife on his wife's (V) buttocks, V requested the homemade tattoo
      • V had to seek medical attention for burns, D convicted of ABH under S47 of OAPA 1861
      • Court of Appeal found branding was not an unlawful act despite injury caused, it was a situation of personal adornment and not in the public interest to criminalise such consensual acts


    • horseplay can be seen as a public policy exception

      Brown (1993)

      • Lord Mustill discussed, in a dissenting speech, the law on horseplay: .. As a matter of policy the courts have decided that the criminal law does not concern itself with these activities, provided that they do not go too far. It also seems plain that as the general social appreciation of the proper role of the state in regulating the lives of individuals changes with the passage of time, so we shall expect to find that the assumptions of the criminal justice system about what types of conduct are properly excluded from its scope, and what is meant by 'going too far' will not remain constant...
    • consent to horseplay may be enough despite injuries

      Jones (1986)

      • Ds, threw Vs, younger boys, into the air, giving them the ‘bumps’
      • Vs suffered a broken arm and an injured spleen
      • held Ds entitled to be acquitted, if indulging in rough and undisciplined play or sport, not intending to cause harm, genuinely believing injuries occurred in course of horseplay with V’s consent


    • no consent if V did not realise risk of catching disease

      Dica (2004)

      • D, knew he was HIV positive, had unprotected sex with Vs, who became infected
      • Vs claimed they did not know about D’s HIV, if they had would not have engaged in unprotected sex
      • D convicted of S20 offences under OAPA 1861
      • Court of Appeal found V needed to consent to the risk of catching the disease
      • quashed conviction and ordered a retrial on the grounds of a misdirection

      Konzani (2005)

      • D, knew he was HIV positive, had unprotected sex with Vs
      • judge directed jury to decide if Vs had known before that D was infected would this have affected their consent, if so, then there was no consent and D must be guilty
    • consent may be defence despite injury

      Slingsby (1995)

      • D had consensual sexual activity with V
      • Ds signet ring caused small cuts on V, which lead to blood poisoning and V’s death
      • V’s consent meant there was no battery or assault, therefore no unlawful act, D not guilty of manslaughter

    Genuine consent

    • consent must be genuine
    • fact V appears to consent may not be sufficient

    Insufficient understanding

    • age may affect understanding and so be a factor in determining genuine consent

      Burrell v Harmer (1967)

      • D tattooed Vs, 12 and 13 yr old boys, causing ABH
      • Vs consented to being tattooed, but court would not allow defence of consent
      • held where V was unable to appreciate the nature of the act consent could not be truly given


    • if V consents purely through fear, question is whether threats are sufficient to induce the consent
    • in line with the defence of duress
    • whether fear induced submission or genuine consent is question for jury

      Olugboja (1982)

      • D raped V, after she had watched him rape her friend
      • when D tried to have sex with V she submitted, D argued this was consent
      • Court of Appeal found that there was a distinction between real consent and mere submission, was for jury to decide if the consent was genuine


    • in a medical examination it was found V must understand the basis on which consent is being given

      Tabassum (2000)

      • D asked Vs to take part in a breast cancer survey where he showed them how to carry out breast examinations
      • Vs, three women, not knowing D had no medical qualifications consented, but only for medical purposes
      • D found guilty, as no genuine consent
    • however it has also been found exact basis of consent to treatment is not relevant

      Richardson (1998)

      • D, a suspended dentist, carried out treatment on patients
      • patients consented assuming the D was suitably qualified, would not have done so if they knew D was disqualified
      • consent was accepted in this case, D found not guilty of assault
    • case law regarding consent to fraudulent medical examination and treatment is unclear

    Mistaken belief

    • mistaken belief in that V consented may be sufficient for defence

      Richardson and Irwin (1999)

      • Ds and V were students who often indulged in horseplay
      • Ds drunk five pints and dropped V from a balcony, believing he consented, V suffered serious injuries
      • Ds convicted of S20 offences under OAPA 1861
      • Court of Appeal allowed D’s appeals, held their belief in V’s consent should have been considered
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