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1 NON-FATAL OFFENCES: CONSENT BY THE END OF THIS UNIT YOU SHOULD BE ABLE TO [AO1]: Understand what is meant by consent, and how it operates as a defence. Describe the limitations imposed on this defence by the courts, and explore some of the justifications for their imposition Understand why consent may operate as a defence in the criminal law. YOU WILL ALSO BE ABLE TO [AO2]: Evaluate the scope of the current law. Explore the Law Commission s proposals for reform on the law of consent within non-fatal offences. Explore the extent to which these defences try to strike a balance between personal freedom and public policy. HOMEWORK: Law has no coursework, and as such, the homework is an important assessment tool to evaluate your work in the subject. You are reminded that if a homework is not handed in on time, you will have 24 hours to get it to your teacher: 1. Read the case of Diane Pretty and Debbie Purdy. or The case itself is here: 1.htm (if you are aiming for top grades, take a look it is a very interesting judgment. What did they consent to? To what offence was it argued as a defence? Was this a valid defence to the situation in the eyes of the court? Do you agree with this outcome? Why/why not? 2. Write up the consent essay detailed below. END OF UNIT ASSESSMENT. You will complete a DRAG test on both Non-Fatal Offences and Consent at the end of this unit. You will also complete the following essay question in timed circumstances: The law on consent as a defence to offences against the person recognises that the causing of deliberate harm may sometimes be justified. Consider the truth of this statement. [50] 1

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3 CONSENT What should you be able to consent to? Are you allowed to consent to death? Should you be? Again, this is one of those defences that only comes into play if D has both the AR and the MR of the offence. Really, it is saying that the victim s MR negates Ds. Why have it as an offence in the first place? Well, that s easy. We should all have autonomy over our own life! Do you agree with this? Are there limits to the autonomy? BURDEN OF PROOF When D raises evidence of consent, it is then up to P to prove the lack of D s consent. It is available for all non fatal offences against the person, sexual offences but not or (Pretty v DPP 2002). 3

4 INTRODUCTION TO CONSENT You are going to use your knowledge of the law on assaults and research the law on consent in sports to explore its operation in reality What does this mean? You are going to work in small groups to research and present the current law on assaults committed during lawful sporting activity. As a particular focus you can look at the Eduardo tackle in 2008, should the perpetrator have been prosecuted? If he had been, would he have had a defence? Is the law a fair balance as it stands at the moment or should it be reformed? You can use other incidents... in other sports as well! What do I do Next? The incident 1. Find out what happened in your case. What did the papers think? What was the interpretation of the law by the people? Were charges brought within the game e.g from the FA etc? The Offence 2. Find out what offence would have been committed in that case. Look back at your non-fatal notes... Which category does the injury fall into? Remember the charging standards! The Defence 3. The defence of consent would normally be argued in sports cases. What is the general rule regarding consent and football? The key case here is the case of Barnes [2004] EWCA Crim Summarise the current test (the Barnes test) for when consent would be a valid defence against an assault committed during a sporting activity. Stretch and Challenge? A/B students. At the back of your handout is an academic journal article on consent and sport. The explores the current law and the alternative law from Canada. It is excellent for developing AO2 and considering the more problematic areas in more detail. OUTCOMES You must prepare to present your findings to next lesson. You should include an explanation of the relevant law on assault and consent in sport and how it applied in your case. Whichever way you choose to present your findings it should take 5 minutes. Every member of the group should be actively involved in some part of the process. You could use any of the following ways: 1.. You can film your report and show your film in class (as if you were journalists reporting). 2. You could produce a short PowerPoint, as though presenting a case study (no more than 5 slides) 3. You can prepare a role play of a court case for the Eduardo case, which should include: It s up to you and your group! 4 a. A description read to the court of the facts of the case. b. Closing speech by the prosecution (they must establish that a crime has been committed by the defendant) c. Closing speech by the defence (explain the defence) d. Summing up by the judge (sums up the law to the jury)

5 RULES FOR CONSENT (1): THE CONSENT MUST BE REAL V may appear to consent (or consent in fact ), but the law may not accept it: it must be real. 1. V must have the capactity to consent Generally this means: Burrell v Harmer 1967 D was charged with ABH after tattooing 2 boys [12 &13] which became inflamed, and painful. Gillick v West Norfolk AHA 1986 Parents can give consent until the child has sufficient understanding. A child under 16 may be classed as a Gillick-competent child. 2. V has to comprehend the real nature of the offence. We normally use the phrase informed to describe this meaning that they must know both the nature and the quality of the act they are consenting to. If they don t, then even if V has given consent, it will not be good. R v Tabassum 2000 [you re going to love this one!] The trial judge (approved by CA) said that consent to surgical operation or examination is not consent to sexual connection or indecent behaviour. CA upheld his conviction for indecent assault arguing that the victims knew the nature, but not the quality of the act, so no consent, so assault! BUT: Consent obtained by fraud will not necessarily negate the consent. R v Richardson

6 Why was the patients consent deemed good here? What then is then the difference between the two elements? Nature Quality 3. Overlap with sexual consent and transmission of disease [ AO2 contextual] Traditionally, the courts seemed to say that V s consent was good unless he did not know the both the nature and quality of the act. How would this approach have changed the outcome in Tabassum? Clarence 1888 Which branch nature or quality did she know? Do you agree with the current division of consent here? Or is it an artificial distinction created by the courts? R V OLUGBOJA [1982] Whilst this case comes from the notion of consent within the law on rape, it is a very important case to the notion of consent generally. It asks whether mere submission is enough for consent. 6

7 R v Dica 2005 Here VV consented to the quality and not the nature of the act. Judge LJ expressly overruled Clarence. To the extent that consensual sexual intercourse of itself was to be regarded as consent to the risk of consequential disease it is no longer authoritative. They also said, obiter, that in theory, they could consent to the risk, but V would need to be informed. Whether the consent is informed or not is a question for the jury. This was confirmed in the Court of Appeal in R v Konzani 2005, where the Court of Appeal said that there was not the slightest evidence, direct or indirect, from which a jury could begin to [infer] that D honestly believed that [the victims] consented to that specific risk. 4. What about if D mistakenly thinks there is consent? Well, the general rule in the criminal law regarding mistakes is that if D makes an honestly held, not necessarily reasonable, mistake as to V s consent, he may have a defence. But what if D makes a mistake due to intoxication? Use the pictorial clues to remind yourselves! Case Name: Case Name: 5. What if V s consent was obtained through duress? 7

8 RULES FOR CONSENT (2) GENERAL LIMITATIONS ON THE DEFENCE. Well, generally speaking the courts seem to have decided that V can only consent to common assault and battery, although there are some specified exceptions. General Rule: Attorney General s Reference (No 6 of 1980) 1981 Lane LCJ It is an essential element of an assault that the act is done contrary to the will and without the consent of V It is not in the public interest that people should try to cause each other ABH for no good reason. So, what are the basic rules which come from this case? An occasion you can t consent to R v Leach 1969 R v Brown 1993 *KEY CASE* We will be coming back to this case later. For now, what is important is to say that this case makes it clear that you can only consent to and, Or in slightly posher terms, only harm which is: more than merely or and You cannot consent to, or unless it is a recognised exception. And remember: Collins v Willock 1984 [we did this case in NFOAP the mistaken prostitute case!] Goff LJ: Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to 8

9 RULES FOR CONSENT (3) SO, WHAT DO WE MEAN BY A RECOGNISED EXCEPTION? The following have been accepted by the courts as posing exceptions, albeit limited ones. Contact games and sport, including boxing Tattooing & branding Ear piecing Surgery Horseplay Practical jokes SO, SPORTS AND CONSENT Generally, most of this is consented to. The main issue is whether the law stops at the touchline or not. These exceptions largely fall into the category of manly diversions and the argument for allowing them, is that they all have social benefits. Football!? Seriously?! Can anyone explain this to me!? BOXING If within the rules, ok. Despite the high risk of injury then, its because they have a high entertainment value and are very popular! However, this exception does not cover bare knuckle fighting. R v Coney 1882 Cave LJ a blow struck in sport is not an assault b Do you agree with this? Why/why not? 9

10 OTHER SPORTS [FOOTBALL, RUGBY, ICE HOCKEY ETC.] These are divided into on the ball and off the ball incidents. The same rules as for elsewhere on consent apply - you can t consent to death [R v Bradshaw 1978]. Off the ball incidents are easy to deal with - clearly you don t consent to being assaulted then. R v Billinghurst 1978 But what if the assault was on the ball? Implied consent comes into play there are clearly rules for all these sports, and when you take part, you are deemed to consent to harm within those. However, according to an ancient case of Moore 1898 no rules or practice of any game whatever can make lawful that which is unlawful by the law of the land. This means that D may be liable despite the fact that V consented to harm within the rules of the game. R v Barnes 2004 KEY CASE!!! Read the enclosed law report and answer the following questions: What section was he charged under? Was this an on the ball or off the ball situation? What facts might have put it beyond implied consent? 10

11 What should deal with most of these kind of issues before they reach the court? What kind of harm does Woolf say you can consent to? Name two exceptions to the rule What is the basis of any exceptions to the general rule on consent? Look at paragraph 15. What factors should be taken into consideration when deciding whether the action is assault or not? Who will the decision be left to? What question should be put to them? What was the result of the appeal? 11

12 SURGERY Well, technically speaking this is wounding with intent. Therefore, V must consent. The rule from the courts is that V can consent to reasonable surgical interference as it is carried out for V s benefit and there is no harm caused - normally it actually solves the harm! What if V does not consent? Re: A 2000 Re: S 1992 IS Task Lawful chastisement. Produce a paragraph outlining when this may be an offence, and under which circumstances it can be lawful. CLUE: look at the Children Act Is this a case of true consent? TATTOOING AND PIERCING R v Wilson 1997 CA CA argued that it was no more hazardous than tattooing, and there was no aggression. Therefore it was akin to desire for physical adornment I think this is posh judge talk for piercing! Public policy may argue that cases like this should not be prosecuted and that these sort of cases cover behaviour which is not really criminal. 12

13 SEXUAL ACTIVITY Oh, great. Here we go welcome to the courts and their confusion. [and this is the simplified version!] Case One: Yes, you can consent, even if it is vigorous sex R v Slingsby 1995 Case Two: Well ok, yes, but D s intent to cause injury is a question for the jury. R v Donovan 1934 D beat a V, a 17 year old Prostitute for sexual gratification. She went to the doc 2 days later, and had 7/8 red marks on her back, the result of a fairly serious beating. D was convicted of common and indecent assault. Case Three: They did what?! Ermm what is that again? I don t think that that is very manly no you can t consent! Confused yet...? R v Brown 1993 KEY CASE Charges: All five of the Law Lords took different approaches to the case, and this does not make it an easy case to analyse generally, the problem comes down to whether they were: Acts of violence with a sexual motive; or Sexual acts which involve violence. The majority decided that number one was the answer, and therefore the acts were clearly unlawful and the minority chose number two and therefore decided that the acts were clearly lawful and that D could consent to ABH, but not GBH. 13

14 Templeman LJ: The violence of the sado-masochistic encounter involves the indulgence of cruelty by sadists and degradation of victims. Such violence is injurious to the participants and unpredictably dangerous [These practices are] endangering to body and mind. Lowry LJ: Homosexuality and S&M are not a manly pursuit and not conducive to the enhancement of family life or conducive to the welfare of society. Jauncey LJ: The corruption of young men is a problem and if this behaviour was lawful, then it was up to Parliament to say so. If it is unlawful, as it appears to be, then it is hostile contact and cannot be consented to. Mustill LJ: The state should intervene no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together compromise the populace at large. Slynn LJ. Argues that it is up to Parliament to legislate this area. Remember that whole thing about merely transient and trifling? Well that comes come from me favourite old Lord Lane in the Court of Appeal. What is the conclusion of all of this? V can only consent to assault and battery. That s it. Case Four: Well actually that might not be the law, and we can always distinguish! R v Wilson 1996 Case Five: Ok, so which do we use? Is Brown right? R v Emmett 1999 CA 14

15 Student Reasoning Task What do you think? How easy is it to legislate people s private lives? Under art. 8 of the ECHR you do have the right to a private and family life, but the ECtHR ruled that there was no breach in the appeal by the Brown defendants (Jaggard, Dickinson and Brown v UK). Reason your answer using the law on non-fatal offences and consent. (You should include at least three cases) 15

16 HORSEPLAY This seems to be that area in which the courts have been the most flexible (remarkably so really!) Even if quite serious injuries are caused (more than common assault), the consent is still deemed enough to negate D s liability. R v Jones & Others 1986 R v Aitken & Others 1992 TASK: Have the courts taken a consistent and fair approach in cases? Reason your answer using appropriate cases. 16

17 REFORM AND EVALUATION. For each of the following, explain (detail) how this might be a criticism of the current law. Irrational distinctions e.g. Brown and Wilson Law should not determine limits of personal autonomy Euthanasia The case by case approach makes it uncertain. Horseplay On the ground of public policy, the defence has been restricted. REFORM? The Draft Criminal law Bill 1993 (Law Commission) and their consultation paper of 1995 Consent in Criminal Law proposed no radical changes. Under the Draft Criminal Law bill, clause 6(2) No such offence is committed if the force or impact not being intended or likely to cause injury, in in circumstances such as is generically acceptable in ordinary conduct of daily life and D doesn t know or believe that it is in fact unacceptable to the other person. Consent in the Criminal Law intention and reckless causing of serious disabling injury should continue to be criminal even if injured person consents to such injury or to the risk of such injury. V may consent to intent or reckless causing of injury to another falling short of serious disabling injury. What is this equivalent to? 17

18 AO2 Work: 1. What conduct should the law criminalize, in particular as regards sports injuries, sado-masochistic practices infection with HIV? 2. What does consent mean within the criminal law? 3. Is consent an element of the assault offence, or a defence to assault? 4. Will the current law on reckless transmission of HIV exacerbate the problem of HIV infection by treating it as a potentially criminal act, rather than a matter of public health? 18

19 SECTION C QUESTIONS: [20] STATEMENT A: Andrew is liable for ABH s. 47 OAPA 1861 for the bruise suffered by Wayne. STATEMENT B: Wayne is liable for GBH s.18 OAPA 1861 for the broken ankle sustained by Andrew. Wayne is the captain of the Northport United football team. During an important match against their local rivals. Wayne is involved in a clash of heads in an incident with an opposing player, Andrew. Wayne receives a nasty bruise above his left eye and is badly concussed. Wayne insists on continuing after treatment with a cold sponge but is obviously still in a very dazed condition. A few minutes later Wayne jumps wildly into a foul tackle on Andrew. Andrew is carried off in agony and X-rays later reveal that he has a broken ankle. Evaluate the accuracy of each of the four statements A, B, C and D individually, as they apply to the above scenario. STATEMENT C: Andrew has a defence of consent for any charge brought by Wayne STATEMENT D: Wayne has a defence of automatism for any charge brought by Andrew. 19

20 END OF SECTION REVISION PROBLEMS AND QUESTIONS. 1. When will consent be valid.? 2. What happened in R v Dica and what was the ratio? 3. Why can V consent to the following? a. surgery b. sports c. horseplay 4. What happened in R v Brown and what was the ratio? 5. Will fraud always invalidate consent? 6. What is the effect of a successful plea of consent? 7. Can they consent to death, should they be able to? 8. How satisfactory is the current law? 9. Harpeet is playing football. He is tackled from behind by Matt. They start to argue and Matt punches Harpeet, breaking his jaw. 10. Louise has had a few drinks. She notices Meera by a balcony and decides, as a joke, to push her off. Meera suffers two broken legs. 20

21 R v BARNES [2004] THE LORD CHIEF JUSTICE [Lord Woolf]: Introduction 1. On 16 October 2003 Mark Barnes ( the appellant ) was convicted of unlawfully and maliciously inflicting grievous bodily harm upon Christopher Bygraves ( the victim ) contrary to Section 20 of the Offences Against The Person Act 1861 ( the 1861 Act ). 2. The prosecution arose out of a serious leg injury sustained by the victim during the course of an amateur football match in December The prosecution contended that it was the result of a crushing tackle, which was late, unnecessary, reckless and high up the legs. The appellant admitted the tackle but claimed that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and that any injury caused was accidental. It was not disputed that the victim s injury was the result of the tackle and that the injury to his right leg amounted to grievous bodily harm. The Law 4. The issue which this appeal raises, is an important one. It goes to the heart of the question of when it is appropriate for criminal proceedings to be instituted after an injury is caused to one player by another player in the course of a sporting event, such as a football match. It is surprising that there is so little authoritative guidance from appellate courts as to the legal position in this situation. The explanation for this may be the fact that, until recently, prosecutions in these circumstances were very rare. However, there is now a steady but, fortunately, still modest flow of cases of this type coming before the courts, and thus the need for guidance. 5. In determining what the approach of the courts should be, the starting point is the fact that most organised sports have their own disciplinary procedures for enforcing their particular rules and standards of conduct. As a result, in the majority of situations there is not only no need for criminal proceedings, it is undesirable that there should be any criminal proceedings. [A] criminal prosecution should be reserved for those situations where the conduct is sufficiently grave to be properly categorised as criminal. 6. When criminal proceedings are justified, then, depending upon their gravity, the prosecution can be for: assault; [or GBH or wounding with intent]. If, unfortunately, death results from the assault, the charge could be one of manslaughter or even murder depending upon the defendant s intent. 7. When no bodily harm is caused, the consent of the victim to what happened is always a defence to a charge. Where at least bodily harm is caused, consent is generally irrelevant because it has been long established by our courts that, exceptional situations apart, as a matter of law a person cannot consent to having bodily harm inflicted upon him. 8. To this general rule, there are obvious exceptions. A patient can lawfully consent to having an operation performed upon him by a surgeon, even though he will inevitably suffer bodily harm while the operation is being performed. Another exception is physical injury in the course of contact sports such as football or boxing. Boxing is different from football in that it is inherent in boxing that the combatants intend to injure each other. This should not be the position in football, albeit that taking part in a football match does give rise to a risk of injury and even grievous injury. 9. There is authority to support what we have said so far. The relevant authorities were exhaustively considered by the House of Lords in the course of their speeches in R v Brown [1994] The speeches in that case make it clear that the rule and the exceptions to the rule that a person cannot consent to his being caused actual harm, are based on public policy. 10. The same public policy approach is adopted in the very recent decision of this Court in R v Dica [2004] Q.B [in the Library]. This Court held that the man would be guilty of an offence contrary to Section 20 of the 1861 Act if, being aware of his condition, he had sexual intercourse with them without disclosing his condition. On the other hand, this Court considered that he would have a defence if he had made the women aware of his condition, but with this knowledge because they were still prepared to accept the risks involved and consented 21

22 to having sexual intercourse with him. 11. The advantage of identifying that the defence is based upon public policy is that it renders it unnecessary to find a separate jurisprudential basis for application of the defence in the various different factual contexts in which an offence could be committed. For example, it explains why boxing, despite the fact that participants intend to hurt each other, is ordinarily considered a lawful sport, whereas prize-fighting is not [see R v Coney (1882) 8 QBD in the Library]. It also means that changing public attitudes can affect the activities which are classified as unlawful, as the judgment in Dica demonstrates. However, so far as contact sports are concerned, the recognition that public policy is the foundation of the defence should not detract from the value of recognising that public policy limits the defence to situations where there has been implicit consent to what occurred. 12. The fact that the participants in, for example, a football match, implicitly consent to take part in a game, assists in identifying the limits of the defence. If what occurs goes beyond what a player can reasonably be regarded as having accepted by taking part in the sport, this indicates that the conduct will not be covered by the defence. What is implicitly accepted in one sport will not necessarily be covered by the defence in another sport. In R v Cey (1989) 48 C.C.C. (3d) 480, the Saskatchewan Court of Appeal was concerned with ice hockey which is a very physical game. Despite the nature of ice hockey, in giving the majority judgment, Gerwing JA (Cameron JA concurring), made it clear that even in ice hockey: some forms of bodily contact carry with them such a high risk of injury and such a distinct probability of serious harm as to be beyond what, in fact, the players commonly consent to, or what, in law, they are capable of consenting to. 13. The general position as to contact sports was helpfully considered by the Law Commission in Consent and offences against the person: Law Commission Consultation Paper No. 134 The Commission indicated... This is that in a sport in which bodily contact is a commonplace part of the game, the players consent to such contact even if, through unfortunate accident, injury, perhaps of a serious nature, may result. However, such players do not consent to being deliberately punched or kicked and such actions constitute an assault for which the Board would award compensation. (para 10.12) 14. Subject to what we have to say hereafter we would in general accept the view of the Commission that: the present broad rules for sports and games appear to be (i) the intentional infliction of injury enjoys no immunity; (ii) a decision as to whether the reckless infliction of injury is criminal is likely to be strongly influenced by whether the injury occurred during actual play, or in a moment of temper or over-excitement when play has ceased, or off the ball ; (iii) although there is little authority on the point, principle demands that even during play injury that results from risk-taking by a player that is unreasonable, in the light of the conduct necessary to play the game properly, should also be criminal. (para 10.18) 15. On the other hand, the fact that the play is within the rules and practice of the game and does not go beyond it, will be a firm indication that what has happened is not criminal. In making a judgment as to whether conduct is criminal or not, it has to be borne in mind that, in highly competitive sports, conduct outside the rules can be expected to occur in the heat of the moment, and even if the conduct justifies not only being penalised but also a warning or even a sending off, it still may not reach the threshold level required for it to be criminal. That level is an objective one and does not depend upon the views of individual players. The type of the sport, the level at which it is played, the nature of the act, the degree of force used, the extent of the risk of injury, the state of mind of the defendant are all likely to be relevant in determining whether the defendant s actions go beyond the threshold. 16. Whether conduct reaches the required threshold to be criminal will therefore depend on all the circumstances. However, there will be cases that fall within a grey area, and then the tribunal of fact [jury] will have to make its own determination as to which side of the line the case falls. In a situation such as we have on this appeal, to determine this type of question the jury would need to ask themselves among other questions 22

23 whether the contact was so obviously late and/or violent that it could not be regarded as an instinctive reaction, error or misjudgement in the heat of the game. 17. In the case of offences against the person contrary to Sections 18 and 20 of the 1861 Act, it is a requirement of the offence that the conduct itself should be unlawful. Where the offending act is alleged to fall within the implicit consent derived from the victim s participation in the sport (so that a defence to the alleged offence exists), the defendant can be said not to be guilty of the offence because his conduct was not unlawful as required by the 1861 Act. In the case of an offence contrary to Section 20, the 1861 Act also requires that the conduct be inflicted maliciously. In that context, maliciously means either intending to cause some bodily harm (however slight) or causing the harm recklessly. Recklessly in this context means no more than that the defendant foresaw the risk that some bodily harm (however slight) might result from what he was going to do and yet, ignoring that risk, the defendant went on to commit the offending act. In a sport like football, anyone going to tackle another player in possession of the ball can be expected to have the necessary malicious intent according to this approach, and in the great majority of criminal cases, the existence of a malicious intent is not likely to be in issue. Conclusion 28. The case called out for the jury to be given help as to the approach they should adopt in determining what is or is not legitimate sport. The judge should have given the jury a direction to determine for themselves what actually happened at the critical time when the injury was inflicted. Broadly speaking, were they satisfied that the case for the prosecution was correct? They should have been told that if they were not, and they thought that the appellant s description of what occurred might be correct, then that was in all probability the end of the case. It should have been pointed out to the jury that even if the offending contact was a foul, it was still necessary for them to determine whether it could be anticipated in a normal game of football or was it something quite outside what could be expected to occur in the course of a football game. The summing-up should also have made it clear that even if a tackle results in a player being sent off, it may still not reach the necessary threshold to constitute criminal conduct. 29. The jury were not given any examples of conduct which could be regarded as legitimate sport and those which were not legitimate sport for the purposes of determining whether they were criminal. The jury did not need copies of the rules, but they did need to be told why it was important to determine where the ball was at the time the tackle took place. They should have been told the importance of the distinction between the appellant going for the ball, albeit late, and his going for the victim. 30. Having carefully considered the summing-up as a whole, we can well understand why the jury felt they needed further assistance after they retired. The further direction they received, did not give them that assistance. Without it, it is difficult to determine what they thought they had to decide in order to find the appellant guilty. This being the position, we are forced to come to the conclusion that the summing-up was inadequate, and that as a result the conviction is unsafe. Accordingly the appeal will be allowed and the orders made set aside. 23