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The defence of consent in criminal law
 
 
 
The defence of consent in criminal law may operate to defeat an element of the actus reus of a crime and thus render the action lawful as oppose to unlawful. For example the offence of battery  requires the application of 'unlawful' physical force, where the person consents to being touched the application of force is 'lawful'.  The defence of consent does not apply to all crimes. Indeed it can never be used for murder. In relation to theft, the courts have held that an appropriation may take place notwithstanding the consent of the owner of the property. See Lawrence v MPC [1972] AC 626 Case summary, DPP v Gomez [1993] AC 442 Case summary. However, the issue of consent may demonstrate that the defendant is not dishonest. In some crimes, consent will absolve the defendant of criminal liability. For example rape, assault and battery. In other crimes such as ABH, GBH and wounding a restrictive approach is taken with regards to consent. The defendant's belief in consent is relevant to the mens rea of crimes such as theft, criminal damage and rape. However, the mens rea element is not concerned with whether or not the victim in fact consented, but whether the defendant honestly believed the victim consented. There is no requirement that the belief is reasonably held (DPP v Morgan [1976] AC 182  Case summary).
 
 
Effective consent
 
In order to constitute valid consent absolving the defendant from criminal liability the consent must be:
 
  • Positive

 

  • Genuine

 

Positive

Consent is positive, it is not a matter of the victim not objecting or saying no. Consent differs from submission:
 
 
R v Olugboja [1982] QB 320   Case summary
 
 
Consent may be express or implied:
 
 
Collins v Wilcock [1984] 3 All ER 374 Case summary
 
 
Donnelly v Jackman [1970] 1 All E.R. 987  Case summary
 
 
Genuine
 
The consent must be genuine. This consists of two requirements:
 
  1. The person giving consent must comprehend the nature of the act to which they are consenting
  2.  
  3. The consent must not be vitiated by fraud 

 

 
1. Comprehend the nature of the act
 
Children
 
 
 
Burrell v Harmer [1967] Crim LR 169   Case summary
 
Where there is no statutory prohibition from children giving consent, they may nevertheless lack capacity to give consent if they are not capable of comprehending the nature of the act. The Gillick competence test and Fraser Guidelines are used to establish whether a particular child is capable of giving consent for a particular action:
 
 
 
Adults
 
Adults may lack the mental capacity to appreciate the nature of what they are consenting to. There is a presumption of capacity under the Mental Capacity Act 2005. However, a person may be found to lack capacity if at the material time they are unable to make a decision in relation to the matter because of a temporary or permanent impairment or a disturbance in the functioning of the mind or brain.
 
2. Consent vitiated by fraud
 
Fraud will only vitiate consent where it relates to either:
 
i) The identity of the person or
ii)The nature and quality of the act
 
 
i) The identity of the person
 
 
Fraud as to the identity of the person will vitiate consent:
 
R v Elbekkay [1995] Crim LR 163 Case summary
 
 It must be the identity of the person, not their attributes:
 
R v Richardson [1998] 2 Cr App 200   Case summary
 
Fraud as to qualifications may relate to the nature and quality of the act and therefore vitiate consent.
 
 
R v Tabassum [2000] 2 Cr App R 328  Case summary
 
 
ii) The nature and quality of the act
 
Originally a restrictive approach was taken in relation fraud as to the nature and quality of  the act:
 
R v Clarence (1889) 22 QB 23 Case summary
 
 
The courts would only recognise that fraud vitiated consent in extreme cases:
 
 
R v Flattery (1877) 2 QBD 410 Case summary
 
 
R v Williams [1923] 1 KB 340   Case summary
 
 
 
A more relaxed approach has been evident in recent years
 
R v Tabassum [2000] 2 Cr App R 328  Case summary
 
 
R v Dica [2004] 3 ALL ER 593 Case summary
 
R v Konzani  [2005] EWCA Crim 706 Case summary
 
 
However, a restrictive approach still appears to be present in relation to rape cases:
 
 
R v Dica [2004] 3 ALL ER 593 Case summary
 
 
 
R v Jheeta [2007] EWCA Crim 1699 Case summary
 
 
 
R v Linekar [1995] 2 CR App R 49  Case summary
 
 
 
 
Consent in Non-Fatal Offences Against the Person
 
 
As a matter of public policy, generally a person can not consent to being harmed. Thus if two people willingly engage in a fist fight, their consent to being harmed (at a level greater than assault and battery) by their opponent will not be recognised in law. However, there are some exceptions to this as stated in:
 
 
 
 
Excluded categories where consent will be valid include:
 
 
1. Properly conducted games and sports
 
R v Coney (1882) 8 QBD 534 Case summary
 
 
However not where the aggressor acts outside the rules:
 
R v Billinghurst [1978] Crim LR 553  Case summary
 
 
 
2. Reasonable surgical interference
 
 
A medical professional that treats a patient without consent may incur criminal liability
 
 
3. Cosmetic enhancements including tattoos, branding and piercings
 
R v Wilson [1996] Crim LR 573    Case summary
 
4. Horseplay -consent may be implied
 
R v Jones [1987] Crim LR 123   Case summary
 
R v Aitken [1992] 1 WLR 1006   Case summary
 
 
 
Consent to being harmed for sexual pleasure will not be valid:

 

R v Brown [1993] 2 All ER 75 Case summary
 
 
 
 Consent in Criminal Law