Discuss the nature of the defence of consent

The defence of consent is a general defence to a criminal charge. The defence developed under the common law and has long been recognised under our criminal law.

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The defence of consent is a general defence to a criminal charge.  The defence developed under the common law and has long been recognised under our criminal law.


General defences are said to be a complete defence to a criminal offence. If the defence is successful then the defendant will be acquitted and found not guilty of the offence. Should the defence fail,for example the jury may fail to agree on the defendant's version of events, then the defendant will be found guilty of the charge. For this reason it is not a partial defence and could be said to be an 'all or nothing defence'.


Some defences are referred to as 'special defences' meaning that, whilst they are by nature a defence to criminal behaviour, they do not operate to totally absolve the defendant from responsibility. Special defences can only apply to a specific charge such as murder.


The Homicide Act 1957, created three defences that can only be pleaded in response to a murder charge. The defences are provocation (now replaced by the defence of loss of control Sections 54 and 55 of the Coroners and Justice Act 2009), diminished responsibility and suicide pact. The effect of such a defence, if successful, is to reduce the charge of murder to manslaughter. There can be no acquittal in such circumstances and therefore it follows that there will be a conviction even if the defence is successful.


Consent can be contrasted with some other defences such as insanity, automatism, mistake and self defence, which are available for all offences.


Insanity is available as a defence to all crimes except crimes of strict liability. It is not commonly pleaded because of the stigma attached to the special verdict reached by the court.

The defence of automatism serves not only as a complete defence but is not limited.  It is a defence to any crime including crimes of strict liability.

Mistake is available as a defence for all offences.

Self defence is also a defence to any crime including murder on the basis that if successful the defendant is able to justify the force used.

Intoxication is not available for all crimes and in particular cannot be pleaded in response to a basic intent crime. A basic intent crime is one where no specific intent is required for the offence to arise. In the case of basic intent crimes, a lesser form of mens rea may be sufficient, such as recklessness in the case of common assault. A specific intent crime generally requires a high level of mens rea, such as the intention to kill or cause serious harm, in the case of murder.


Duress is another defence which has limitations imposed by the courts. Duress is not available to use as a defence to murder, attempted murder and possibly treason.

Necessity is very problematic and is strictly limited, so much so that there are very few examples of it successfully being pleaded as a defence.


Finally, consent is not available for murder or for serious assaults.


Having briefly considered the effect of general defences and and how they operate, let's look at the defence of consent in more detail.


The matter of whether the victim or other person consents is not strictly speaking a defence. The reason for this is that where such consent exists there is no offence and hence there is no need for a defence. This is likely to be the case with what might have amounted to minor assaults or a sexual offence. However, Parliament has acted in such a way as to set out an age limit below which a person cannot consent, in an attempt to import protection and a common sense approach.


The issue of consent can often arise in the context of theft. Consent to an appropriation can operate to negate the mens rea but the courts have, on occasions, shown a willingness to examine the quality of the consent with the result that the defendant has still been found guilty of theft even though there has been an apparent consent Gomez (1991), Hinks (2000).


Returning to the matter of sexual offences, the issue of consent can be paramount. For example, in the case of such offences as rape and indecent assault, consent usually means that the act cannot be considered as unlawful and, as a result, no offence will arise. However, as has already been mentioned, Parliament has for policy reasons intervened in some situations to place a limitation on the apparent consent. In the case of indecent assault, for example, girls and boys under the age of 16 cannot consent to what would otherwise amount to an indecent assault under Sections 14 (2) and 15 (2) of the Sexual Offences Act 1956.


In some cases the nature and quality of the consent is considered. For example, in the case of indecent assault, now termed sexual touching, where the victim has consented in the belief that the defendant is medically qualified, the consent is not considered to be an informed consent and an offence will arise.


In recent years the issue of consent has arisen in the context of assaults and the question arises as to whether it is appropriate to allow the defence of consent in all situations despite the severity of the attack or circumstances.


The starting point is that the presence of consent by the victim to an assault which does not result in an injury is considered to be a good defence in that it prevents the act from being unlawful – in effect no offence takes place. However the courts have imposed limits and as a result of these limits the principle that an unlawful act 'cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can license another to commit a crime' has prevailed at times Donovan (1934).


The courts have attempted to set acceptable boundaries. An example being the case involving two young men who went out into the street to settle an argument by way of a fight. The Court of Appeal held that such actions were not in the public interest and refused to accept that consent could operate as a defence in such situations Att-General's Reference (No 6 of 1980) (1981).


The above case is important for other reasons. It was in this case that the Court considered it appropriate to provide, in effect, helpful guidance about when consent was available in certain situations, namely, in 'properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference and dangerous exhibitions etc.'.


The law has been developed by a number of cases which have accepted that if someone participates in lawful team sports and recreational pursuits then body contact is permitted within the rules of the game. Such sports as football and rugby being typical examples. Such contact might result in bodily harm and, provided the incident leading to the injury is within the rules of the sport, the defence of consent is available Barnes (2005). The defence is unlikely to be available if the conduct of the accused goes beyond what is generally regarded to be reasonable behaviour in which case it is difficult to see how the victim can be said to have consented to such conduct.


The House of Lords in Brown 1993 took the opportunity to signal to the defendants and the public at large that certain conduct was unacceptable in the sense that consent to subsequent injury or harm could not negate liability.


In this case a group of men engaged in sado-masochistic acts and although all participants were adults the acts were considered unlawful on the basis that they were different from normal sexual activities between consenting adults as was the case of Wilson a few years later in 1996. In this case the Court of Appeal held that a defendant who had 'branded' his wife's buttocks at her request had not acted unlawfully. The court took the view that it would be wrong to criminalise such activities which formed part of a sexual act between adults and distinguishable from those encouraged in Brown 1993.


It can be argued that the defence of consent has been developed and strengthened in recent years as a result of the intervention of the courts. The cases of Dica (2004) and Konzani (2005) are good examples of the courts willingness to indicate that consent must be genuine and informed otherwise it would not amount to an informed consent. An uninformed consent does not amount to consent. In the cases in question the defendants were found guilty of causing grievous bodily harm by infecting others with HIV during a sexual act which was not consensual as their partners had not been informed of their HIV positive status.


Finally what matters is what the defendant genuinely believes and provided that the defendant honestly believes that the victim is consenting, a defence can be put forward.


It can be seen that the defence of consent exists and is a very real possibility in many situations.


The defence has parameters and limitations as a result of the work of the courts in such cases as Att-General's Reference (No 6 of 1980) (1981) which could be said to provide a workable framework for future reference.


It can also be argued that the courts have been prepared to strengthen and develop certain aspects of the defence through the decisions of Dica and Konzani which touch upon the quality of the consent.


It can be argued that the defence is relatively uncomplicated which is a good thing from the jury's point of view in that it is unlikely to require long and complex rulings by the trial judge which may make their job more difficult and open up the risk of misdirections and appeals against conviction. Such appeals on technicalities can appear to bring unnecessary expenditure of public money as well as shake the victim's faith in the justice system.




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