Public Policy and the Judicial Approach to Consent as a Defence in Criminal Law - Case Study Example

The general rule in assault cases is that to limited exceptions, consent to bodily harm will be irrelevant and will not negate criminal liability for an offence, if actual bodily harm was intended1. This was further supported by the Court of Appeal decision in AG’s reference (No 6 of 1980)2. However, the situations in which consent will provide a defence to criminal liability have perpetuated legal uncertainty and appear to be rooted in public policy considerations. Indeed, in the recent case of R v Barnes3 it was suggested that consent as a defence to bodily harm cases was inherently dependent on public policy considerations. The focus of this paper is to critically evaluate the extent to which public policy has informed the judicial approach to consent as a defence in criminal law. It is submitted at the outset that at the centre of the consent defence debate is the parameters of what a plaintiff can consent to, and the “answer to this question involves giving consideration to what is deemed to be in the public interest4”. For example, in the AG’s reference (No 6 of 1980) case5 it was held that public interest would shape the extent to which consent could constitute a defence to criminal liability for bodily harm. Moreover, the earlier cases addressing consent appeared to hinge on whether or not the act itself was unlawful, which intrinsically limited any scope for consent as a defence to bodily harm. For example, in the early case of Coney6, the consent of the prize fighters was deemed irrelevant as the fight itself was illegal7. Additionally, in the case of R v Donovan8, the defendant had caned a girl for sexual gratification at her request, however consent was deemed to be irrelevant as the act itself was unlawful. Moreover, Swift J in the Donovan case defined bodily harm to include the following: “any hurt or injury calculated to interfere with health or comfort of the prosecutor, such hurt or injury need not be permanent but must, no doubt be more than merely transient and trifling”9. Nevertheless, the court in Donovan did acknowledge that there were exceptions to the general presumption against consent as a defence to bodily harm and the case law demonstrates the emergence of three central categories in this area. The first category related to lawful sporting activity where the participants are bound by rules and regulations. The approach to consent in lawful and regulated sporting activity has remained consistent in the judicial approach and was reflected by the views of the Law Commission in the consultation paper “Criminal law: Consent in the Criminal Law10 , which extrapolated that participating in an activity that is widely regarded as beneficial should not be regarded as being against a person’s interests. The state must be satisfied that the risks involved are properly controllable and ascertainable11. The second exception relates to surgery performed with consent12 however this will not cover unconventional or experimental surgery with a prime example being female circumcision, which is outlawed under the Female Circumcision Act 198513. The third exception was extrapolated in the case of Jones14 where two schoolboys aged 14 and 15 had been injured after being tossed into the air by the appellant and the court of appeal held that “consent to rough and undisciplined play where there is no intention to cause injury is a defence, in this case to inflicting grievous bodily harm”. A similar line was adopted in the case of R v Atkin and Others15 where convictions contrary to section 20 of the Offences against the Persons Act 1861 (OAPA) were quashed on the basis that the victim had willingly taken part in “horseplay”16. However, these policy motivated categorisations seem to be rooted in morality and inherently dependent on the nature of the activity, which has led to inconsistent rationale. This is particularly evident with regard to the court’s approach to consent and sexual activity involving the deliberate infliction of harm, which is not seen as fulfilling any particularly useful public interest and has there not been an area where courts are keen to extend the defence17. For example, in R v Boyea18, the defendant had put his fist in the plaintiff’s vagina causing serious injuries. Whilst the court accepted that there was a degree of harm to which the plaintiff could be said to have validly consented during heterosexual interplay, which might now be greater than was case when R v Donovan was decided; the court felt that the actual harm caused in Boyea far exceeded the level of injury to which she could have validly consented. Whilst the outcome of the decision still resulted in criminal liability, the Boyea decision clearly marks a shift in the judicial approach to consent, which highlights the central influence of policy motivated considerations. The leading case in consent is R v Brown19 where the House of Lords acknowledged that the “good reason” exception whereby valid consent could be given. Moreover, the decision in Brown brought the issue of consent to the fore, fuelling academic debate in relation to the parameters of consent for the purposes of criminal liability. In the case of R v Brown, the central issue raised in terms of public importance was whether consent should be allowed as a defence to certain offences, in particular assault. If we consider the facts, the appellants were a group of people belonging to group of homosexuals practising sadomasochism, who willingly participated in acts of violence as part of sexual gratification. In each case, the masochist and the victim had expressly consented to the acts of violence such as genital torture with no permanent injury being suffered. The sadomasochistic acts took place in private where the acts were videoed and distributed to members of the group only. The police discovered the tapes by chance during the investigation of another unrelated matter and the defendants were charged and tried and convicted for charges of assault contrary to section 47 of the OAPA act and the defendants appealed to the Court of Appeal on grounds of consent. The House of Lords dismissed the appeal and asserted that as harm was intended, consent was irrelevant. Additionally, it highlighted the point that it was not in the public interest to acknowledge the defence of consent for sadomasochistic practices on public policy grounds. Firstly, there was a serious injury risk and secondly there was a real risk of disease through the blood letting practice and that “public policy required that society be protected by criminal sanction against this cult of violence20”. The imposition of criminal sanctions were thereby reinforcing acts that were morally wrong and unacceptable social behaviour and consistent with the case of AG AG’s reference (No 6 of 1980),21 where Lord Lane CJ asserted that “it is not in the public interest that people should try and cause or should cause each other actual bodily harm for no good reason.”22. Moreover, in Brown Lord Templeman highlighted the overriding policy motivated rationale for the outcome and asserted that “Society is entitled and bound to protect itself against a cult of violence. I am not prepared to invent a defence of consent for sadomasochistic encounters which breed and glorify cruelty”23. Additionally, the majority determined that given the risk of serious physical injury, it was in the public interest to protect society from the danger of “corrupting” young people or seeking to influence them to participate24. Interestingly, Lord Mustill dissenting however argued that if consenting adults decided to inflict harm on grounds of sexual preferences, then the law should not intervene, which further highlights the overriding influence of public policy in consent cases. Indeed, Lord Mustill commented that “these are questions of private morality.25” However it is evident that the overriding policy considerations have created uncertainty. For example, in R v Wilson26 the defendant was tried under section 47 of OAPA after branding his initials on his wife’s bottom after she had asked him to do so. On appeal the defendant’s conviction was quashed and it was held that the matter was private between husband and wife. The Court of Appeal distinguished Wilson from Brown on grounds that the Brown decision was dealing with sadomasochistic practices, which could not be consented to, which indicates how judicial public policy considerations have created distinctions in the consent umbrella depending on the nature of the relationship and activity involved. Conversely, in the case of R v Slingsby27, the victim died from vigorous sexual activity and there was no premeditation in the injuries and there was no consent, as the injuries had not been contemplated. As such, it was held that it was not in the public interest to convict and “would be contrary to the principle to treat as criminal activity which would not otherwise amount to assault because during the course of that activity an injury occurred28”. However, in terms of legal certainty, the decisions in Wilson and Slingsby clearly depart from Boyea and Brown, which both resulted in convictions. The uncertainty caused by the overriding public policy factor is further evidenced by the contrasting decision in R v Emmett29, the Court of Appeal upheld conviction of defendant for lighting wife’s breast with a fuel and match as part of sexual foreplay. It is submitted that part of the uncertainty and inconsistency is driven by public policy motivated decisions along with the rationale in Brown where the House of Lords was prepared to recognise that there were certain lawful activities where consent to engage in activity knowing the risk is present. However, the precise source of knowledge has been problematic in practice. For example, in R v Dica30the issue of consent was addressed in terms of the decision in R v Clarence31where consent to sexual intercourse carries with it implied consent to risks inherent with sexual intercourse including sexually transmitted diseases along with the issue of consent to sexual intercourse with a defendant who was known to be suffering from HIV. In R v Dica the Court of Appeal further held that a person could have a defence of consent if the complainant had known of the risk of HIV and consented to the risk of transmission. Moreover, in the case of R v Konzani32, it was asserted that “the recognition of informed consent as a defence was based on but limited to conflicting public policy considerations33”. In Konzani the decision was distinguished on grounds that the victim whilst consenting to sexual intercourse did not consent to the risk of HIV that had not been disclosed to her. On the other hand, it would clearly be illogical for a person infected by someone who hadn’t disclosed the risk they were aware of to then be exonerated on grounds of consent. This was further supported by the decision in R v Barnes34where express reference was made to the Dica decision “This Court held [in Dica] 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 without disclosing his condition”. To this end, the Barnes decision asserted that the nature of consent cases inherently requires a public policy approach, which is evidenced by the ad hoc judicial development of this area of law. Moreover as highlighted by Lanser & Bloy “the difficulty lies in determining the contours of the public policy exceptions35”. For example the Wilson decision is difficult to reconcile with Brown and begs the question as to whether cohabitees would have been treated in the same vein. As such, it is submitted that there is a need for clear principles to be developed in relation to consent in bodily harm cases as the current ad hoc approach perpetuates uncertainty and arguably treads a difficult line between public protection from harm and criminalisation of private affairs. BIBLIOGRAPHY Michael Allen (2007) Textbook on Criminal Law, 9th Edition Oxford University Press. C. Elliot & F. Quinn (2006). Criminal Law. 6th Edition Longman. Jerome Hall (2005) Principles of Criminal Law, The Lawbook Exchange Limited. D. Lanser & D. Bloy (2003). Modern Criminal Law. Routledge Cavendish D. Omerod (2008). Smith and Hogan Criminal Law. 12th Edition Oxford University Press. William Wilson (2003), Criminal Law: Doctrine and Theory, 2nd Edition, Longman All UK legislation available online at www.opsi.gov.uk and www.statutelaw.gov.uk Read More