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The question: “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”
(R v Barnes [2004] EWCA Crim 3246)

With reference to the above quote discuss, with case examples, the extent to which consent provides a valid defence in law.

The answer:

The primary focus point of this paper will be a discussion of the extent to which consent provides a valid defence in law. With reference to Lord Woolf C.J.’s quote in the case of R v. Barnes, the writer will discuss whether the general facts of the statement are true, drawing on case law and statute for reasoning and argument.


What is consent?

A unanimously agreed upon legal definition of consent is difficult to find. This said, the law does define consent as it applies in two distinct and separate categories; ‘express consent’ and ‘implied consent’. these terms refer to the way in which the consent is perceived to have been given. Express consent is the simplest to define; express consent is consent given explicitly, either verbally or in writing, in unambiguous terms. Oppositely, Implied consent is permission which can be said to have been given in ways other than expressly having communicated it.



To what extent does consent provide a valid defence when no bodily harm is caused?

Lord Woolf’s quote from R v. Barnes begins; ‘when no bodily harm is caused, the consent of the victim to what happened is always a defence to a charge’. This is an interesting choice of words for the fact that anybody may believe Lord Woolf is referring exclusively to assault, based on ‘when no bodily harm is caused’. Assault is defined as ‘when a person intentionally or recklessly causes another to apprehend immediate infliction of unlawful force’. the definition of assault itself makes consent impossible - for one cannot consent to the apprehension of an act. For this reason, we are left with only battery to consider when addressing whether the consent of the victim where no bodily harm is caused is always a defence. The most relevant case law which can be applied here is Collins v. Wilcock (1984), in which, Goff L.J. stated ‘Generally speaking consent is a defence to battery’. Consent being held a generally valid defence to battery may, on its surface, appear a contentious precedent to set. However, it is important to consider the nuanced context in which Goff made this statement; as with assault, it is arduous to imagine a case in which consent would be proposed as a defence to battery - as Glanville Williams wrote in consent and public policy ‘it is inherent in the concept of assault and battery that the victim does not consent’2. However, Goff was explaining the exception to the rule in his statement - ‘a broader expectation has been created to allow for the exigencies of everyday life… most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact’.

We can thus reason that when no bodily harm is caused, consent only provides a valid defence to the extent of implied consent having been established as being impliedly given by the victim. Otherwise, there is an inability to consent, and thus no consent will ever be established due to the fact that a non-consenting victim is inherent to the concept of battery. Further cases support this reasoning, such as McMillan v. CPS (2008).


To what extent does consent provide a defence when at least bodily harm is caused?

Lord Woolf’s quote from R v. Barnes then states that consent does not provide a valid defence when bodily harm is caused1.

ABH and GBH are not actions which an individual would typically consent to. For this reason, the issue of consent to bodily harm tends to arise in five main situations; consensual sex, sports, medical treatment, tattooing and piercing, and horseplay.


In consensual sex.

Without doubt, the most famous case regarding consent to bodily harm in the English commonlaw system was that of R v. Brown (1993). R v. Brown is considered by many academics to be the foundational case upon which the discussion of the extent to which consent provides a valid defence in law is to be held. The case involved five homosexual men, who engaged in group sado-masochistic acts resulting in injuries actioning ABH.
Although all of the resulting injuries in Brown were inflicted consensually, the court still held that consent was not a defence and the injuries sustained were actionable (at least partly) due to their degree of severity2.


This is an instance of case law where the decision appears to create a precedent of consent being irrelevant where ABH or further (GBH) arises, leaving victims unable to consent to such injuries and thus rendering Lord Woolf’s statement on the subject factually true. However, just three years later, the case of R v. Wilson (1996) arose. The defendant, Alan Wilson, had used a heated knife to brand his own initials on his wife’s buttocks. Wilson’s actions arose to ABH, and he was charged. However, the court held the consent of his wife to the bodily harm as a valid defence. The court distinguished Wilson’s action from that of Brown, stating that there was no comparison to be made between the two cases by reasoning that in the case of Brown, sadomasochism was an extreme act with a significant risk of injury.
This is, clearly, contentious logic on part of the court.
although somewhat subjective, it is reasonable to assume that Wilson’s actions were also extreme, and, just as in Brown, also posed a serious risk of injury. The court also drew a comparison between Wilson’s acts and tattooing, stating that Wilson’s acts were more akin to tattooing rather than sexual gratification1. Regardless, the act was sexual in nature and is therefore reasonably subject to scrutiny in comparison to Brown.
Understandably, the opposing decisions in Brown and Wilson gave rise to much controversy; Two cases actioning relatively similar charges, one regarding a heterosexual couple and the other a group of homosexual men, attracted drastically different convictions.
It is a position held by a plurality of legal academics that the decision held in R v. Brown was plainly homophobic2. The questionable decision of the court in Brown resulted in a parliamentary publication outlining, in part, that were the case of R v. Brown to be reconsidered, a different decision would be reached3. In more recent times, the courts have appeared to remain tenacious on the position that consent is no defence to bodily harm, confirmed in the case of R v. Emmett (1999). In Emmett, the defendant was charged with ABH after putting a plastic bag around the victim’s neck and using petrol to set the victim’s breasts on fire. After appeal, the court held that the decision held in Brown should be equally applied and the defendant was convicted.
As can be seen, where bodily harm is caused deliberately for sexual gratification, consent appears to provide no valid defence since the controversy of the Brown decision.

However, we must also consider cases where the bodily harm is caused accidentally in the course of consensual sex.
It appears that where bodily harm is caused accidentally during sexual intercourse, consent to the intercourse in the first instance will render resulting bodily harm inactionable. This was evidenced in R v. Meachen (2006), where the defendant accidentally caused injury to the victim’s rectum through sexual acts. The court held that the victim had consented to the original act1, resulting in consent being held a valid defence. The case of R v. Slingsby (1995) appears to confirm this.
Although consent will provide a valid defence to the extent of accidental bodily harm during sexual intercourse, the consent of the victim will only extend so far as bodily harm which cannot be reasonably foresaw as a result of the intercourse; If acts engaged in during intercourse are likely to result in bodily harm, then the consent of the victim will not constitute a valid defence. This exception was founded in R v. Boyea (1992). In Boyea, the defendant had inserted his hand into the victim’s vagina and twisted it, causing injury to the victim. Although there was question as to whether the victim consented to any sexual acts in the first instance, the court held that the injury sustained was a likely outcome of the act and therefore the consent of the victim (of which there was none) would have been irrelevant2.

In sports

Sports, especially which involve contact, are likely to result in injury constituting ABH & GBH. It is therefore inevitable that the question of consent as a defence to these injuries will arise.
The validity of consent as a defence to ABH & GBH in sports is relatively cut and dried. It is understood that bodily harm which can be reasonably foresaw as a possible outcome of sporting are not actionable. The ratio decidendi for this is the implied consent of players in sport where injury is a possible outcome; by taking part, the player has consented to injuries which are reasonably foreseeable result. This line of reasoning was shown in R v. Blissett (1992); the case involved a game of football, in which the defendant had attempted to head the ball. An opposing player had attempted the same, during which the defendants elbow hit his opponents face and fractured his cheekbone and eye socket. The defendant was found not guilty of GBH after the court held that this scenario was one which would be expected as a regular occurrence during play1. A similar line of reasoning was used in R v. Barnes (2004), also finding the defendant not guilty of GBH after an in-game tackle seriously injured another player’s leg.
As shown, it is clear that the relevant case law upholds consent as a defence to ABH and GBH where the injury is a reasonably foreseeable possible outcome of in-game play. But, there are instances where bodily harm is caused, yet the harm was not reasonably foreseeable. These instances tend to manifest as assaults actioning ABH or GBH following heated out-of-play or ‘off the ball’ altercations between players. An example of this is R v. Billinghurst (1978), where on the rugby field, a player punched his opponent. The court held that the defendant was guilty of GBH based on the reasoning that an ‘off the ball’ attack could not be something a player would foresee as happening during the game, and therefore had not consented to2. Many other cases support the doctrine that ‘off the ball’ bodily harm offences will find the defendant liable, such as; R v. Cotterill (2007), R v. Birkin (1988).



In medical treatment

Most medical procedures, although legal and regularly performed, inflict ‘injuries’ upon the patient which fall within the boundaries of ABH & GBH. Therefore, there is a discussion to be had surrounding consent to these procedures.
It is well established, in statute such as the female genital mutilation act (2003), that an individual may only consent to medical procedures prescribed lawful. However, as long as the procedure is lawful, it need not be medically necessary, e.g. religious male circumcision. the ECHR outlines that the parents of a male child may consent, on behalf of the child, to legal non medically essential procedures1. The ability of parents to consent to non-essential religious medical procedures (circumcision), has brought about uncommon but valid criticisms of their ability to do so. Sir James Munby, president of the family division, stated that male circumcision constitutes ‘significant harm’, similar to that of less severe degrees of FGM2. this reveals an apparent disparity between how male and female religious/cultural surgical procedures are perceived in public policy.
In instances of essential medical treatment, a patient must consent either in writing or verbally when able to do so. There are exceptions to this rule, for instance, when emergency medical treatment is necessary and the patient is in some way incapacitated3.


in tattooing and piercing

Although the physical injuries sustained through tattooing & piercing fall within the boundaries of ABH, both have a public policy exemptions due to them being perceived as socially acceptable. They are also subject to regulation, and individuals carrying out these cosmetic procedures must be properly licenced1. Therefore, consent, in any case where it would arise, is always a defence to legal cosmetic procedures (tattooing & Piercing) and thus by extension, ABH in this circumstance. However, consent only remains a defence to the extent that the procedure is legal.
The question of where the boundary of legality lies with body modification has recently been brought to light in the case of R v. McCarthy, where a body modification artist carried out procedures which are currently (sentencing is to be concluded on 21st March 2019) believed to be unlawful and constituting GBH2.

In horseplay

The participation in horseplay and subsequent cases is an area of caselaw where all previously assumed rules regarding consent as a defence to bodily harm are thrown out the window.
Generally, the courts have appeared to allow consent as a defence to ABH & GBH to hold valid when the consent is given in instances of horseplay. This is evidenced in the case of R v. Jones (1986), where six schoolboys appealed a conviction. The two complainants of the case were engaged in schoolground play when they landed on the ground after being thrown into the air, resulting in serious injuries. The judge, McCowan J. held that there had been no intention to injure, and therefore the consent of the boys held as a defence to GBH1. Further cases involving horseplay have also held consent, to varying degrees, as a valid defence to GBH, such as R v. Aitken (1992), where RAF officers wearing their fire retardant equipment set fire to eachother using flammable liquids. Although in Aitken the defendants were initially convicted under S.20, upon appeal the conviction was quashed based on the idea that the defendants had mistakenly believed there was consent in the first instance2.


Conclusion & Potential future development in the law.

The question of to what degree consent provides a valid defence in law when no bodily harm is caused seems settled. This may largely be due to the nature of offences which give rise to a question of consent where no bodily harm is caused falling within implied consent. There also appears to be no indication of changes in the established principles of law when considering consent as a valid defence to ABH & GBH in cases involving sports and horseplay.
When at least bodily harm is caused it would be reasonable to assume that the courts, especially after the controversy caused by the decision in Brown, will continue to apply the law as it relates to consent as a defence where bodily harm is caused during sexual intercourse more equally in cases of homosexual and hetrosexual encounters. This is particularly relevant and likely as society advances and becomes increasingly accepting of alternative sexualities. It is the opinion of the writer that the Brown case should be reconsidered, although it is highly probable that the same ruling will be held based on different, but more logical reasoning; The law as it relates to injuries sustained during sexual intercourse is now being applied more equally, rather than apparent sexuality based discrimination factoring into judgements. Therefore, the same judement should theoretically still apply, as it has been established by the court that consent as a defence to intended or foreseeable harm during sexual intercourse will not constitute a valid defence. Maybe, then, it is the case of Wilson that should be reconsidered and attract a different decision.
Considering medical treatment, current law appears settled as far as routine and emergency procedures are concerned. However, with the increasing amount of ever advancing information readily available to the public relating to health & medicine, people are increasingly questioning the judgement of medical professionals1; especially in areas of high moral sensitivity and personal importance (e.g. abortion, religious observance). This may lead to developments in the law as unique cases arise and social norms change, especially in regards to consent to treatment.
Modern times and changing social norms are also bringing about criticism of the law and individual’s ability to consent to GBH in situations of body modification - especially the previously mentioned case of Brendan McCarthy. Although the defendant of the case will be convicted and sentenced, local authorities responsible for the licencing of the defendant’s procedures appear to be siding with developments to existing case law and statute rather than continuing with consent not constituting a valid defence to GBH in cases of body modification.