Consent to Physical Harm Based on Logical Principles - Research Paper Example

1. To what extent is the defence of consent to physical harm based on logical principles? Introduction The concept of consent as a valid defence to physical harm in assault cases has proved problematic to apply in practice. In general terms, consent can never be a defence to homicide and is only available in non-fatal offences against the person, including assault, battery and rape. However, the central premise of the defence of consent was extrapolated by Lord Lane in Attorney General’s reference (No 6 of 1980) where he asserted that valid consent vitiated criminal liability. Moreover, Lord Lane named the following situations as those where consent could potentially constitute a valid defence: “properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference and exhibitions”. However, it is precisely what constitutes “valid” consent that has proved problematic in practice and it appears that the courts have created variances in the applicability of consent as a defence through categorisation. This is evidenced by the judicial approach to contact games and sports in contrast to public interest motivated decisions in cases involving consensual sadomasochism in the private domain. On the one hand, the inherently subjective nature of “consent” to physical harm necessarily requires a flexible approach; however this simultaneously impedes the desirability of legal certainty, which has led to criticism of the principles upon which consent is determined in practice. The focus of this analysis is to critically evaluate the extent to which consent is rooted in logical principles. To this end, it is necessary to evaluate the categorisation approach adopted by the judiciary and as such, I shall contextually undertake a comparative analysis of the development of consent principles with reference to contact sport, surgery, horseplay and sexual activity. 2. Contact Sport The nature of contact sport inherently attracts risk of injury, however the parameters of implied participant consent to such injury has fuelled academic debate, compounded by the overlap between civil liability in negligence and criminal prosecutions. Moreover, the ambiguity surrounding the ambit of valid implied consent to injuries on the field has been compounded by the lack of consistent guidance from the judiciary. Nevertheless, the decision in R v Barnesattempted to distinguish between civil and criminal liability by stating that criminal liability should be “reserved for those situations where the conduct is sufficiently grave to be categorised as sufficiently grave to be categorised as criminal”. However, it is precisely what constitutes “sufficiently grave” that has been problematic in practice, particularly as the Barnes decision acknowledged that criminal liability could be negated if the injury was of a type outside the rules of the game but fell within the equivocal concept of “player culture”. The objective of the law of assaults in criminal liability is to protect people from being caused unnecessary harm and deter others from causing criminal injury in the future and thereby act as an incentive for fair play on the pitch. Additionally, in R v Billinghurst, when addressing the overlapping civil and criminal concepts of implied consent, it was held that in determining criminal liability for player injury, the relevant question was to consider whether the player’s conduct clearly went beyond the accepted culture of sport. The most common offence relevant to player injury is assault as defined under the Offences Against the Person Act 1861 (OAP Act) and common assault under section 39 of the Criminal Justice Act 1988, where the mens rea is recklessness. The actus reus is that actual bodily harm is occasioned and assault is the most common charge for perpetrators of sports violence. For example, in R v Davies there was a player collision in the football match and the defendant then approached the victim player and struck him in the face. Although victim was able to play, he had a fractured cheekbone and it was held that as the offence was in the course of game, unprovoked and deliberate was held to be serious, which in turn justified the conviction for assault and six months’ imprisonment. In sport, the central issue of contention is whether the claimant consented to such injury as an inherent risk of participation in the game. Consent will provide a defence to common assault or battery occasioning actual bodily harm under section 47 of the OAPA. However, consent will not be a defence without a justifiable good reason. For example, in Attorney General’s reference (No 6 of 1980) Lord Lane, in addressing consent in sports claims asserted: “Nothing which we have said is intended to cast doubt upon the legality of properly conducted games and sports”, thereby highlighting the complex legal minefield facing the judiciary when considering the appropriate approach to criminal liability in sports related injuries. Also, apart from the nature of the sport, the issue regarding consent will depend on the types of injury reflected within the rules of the game. As regards criminal liability, Gardiner comments that “the problem lies more with delineating reckless conduct that is a legitimate part of the game and that which is so reckless as to be nothing to do with sport……However, without guidance from the higher courts, a strict interpretation of the law would mean that this latter challenge is criminal”. The lack of definitive guidance is further highlighted by the inconsistency in judicial determinations when dealing with criminal prosecutions for sports injuries. For example, in R v Johnson, the defendant legitimately tackled and as the defendant and victim grappled for the ball, the defendant bit the victim’s ear lobe and tore it off. However, it was held that despite the heat of the moment incident there was as a matter of public policy a distinct need to discourage on pitch violence and the conviction was upheld. Additionally, in R v Calton, criminal assault charges were upheld as the injuries caused were nothing to do with the game and could not be consented to. Alternatively, in R v Blissett, the defendant had been cleared of violent conduct by the internal FA investigation and the court relied on evidence of the FA chief in determining criminal liability under a section 18 OAPA prosecution and the defendant was acquitted. However, Gardiner comments that “without clarification of which acts a player can consent to, evidence such as that given above will continue to confuse the issues.” As such, the central practical difficulty in criminal prosecutions is the nature and scope of consent. For example, in R v Cey it was held that “there cannot be as many different consents as there are players on ice, and so the scope of the implied consent, having to be uniform, must be determined by reference to objective criteria”. Similarly, in R v Barnesit was held that in considering the objective criteria, the “type of question that the jury had needed to ask themselves had been, inter alia, whether the contact had been so obviously late and/or violent that it was not to be regarded as an instinctive reaction, error, or misjudgement in the heat of the game”. However, this arguably requires an objective case by case determination, which further compounds legal uncertainty by the law’s approach consent Furthermore, the Barnes decision highlighted exceptions to the defence of consent, for example, it was commented that “physical injury in the course of 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 the match does give rise to a risk of injury, even grievous injury”. The Court of Appeal further referred to the decision in R v Brown as supporting this: “the speeches in that case make it clear that the rule and exceptions to the rule that a person cannot consent to his being caused actual bodily harm, are based on public policy”. Pendlebury feels that the Barnes decision marked a change in perceptions of the boundaries of legitimate conduct in sport and the law of consent, which is problematic as a criminal law concept. For example, in R v Brown, it was held that sports persons could consent and this fuelled debate as to what constituted valid consent and to this end, Pendlebury poses the question “it can therefore, be put forward that, after consideration of Brown and the Law Commission reports, the rules of the game, were a decisive factor in determining whether contacts can be consented to”. Arguably, the Barnes decision has widened the concept of consent via the notion of the “playing culture” outside the exact rules of the game as this would appear to include “codes of conduct, tactics and commonly occurring incidents of foul play. This has the potential to wide the scope of consent and is a controversial concept in that it suggests the acceptability of activity beyond the rules”. Moreover, Gardiner and Pendlebury suggest the problem is compounded by the failure of courts to directly address the concept of consent and playing culture with “oblique references” in decisions such as R v Bradshawand R v Billinghurst However, the decision in Barnes has clearly gone further as “prior to Barnes, as noted above, the courts had not expressly accepted that conduct outside the rules could be capable of being consented to”.Therefore, whilst the Brown decision reaffirmed the concept of implied consent within the rules of the game, the concept of player culture is clearly illogical to apply as a criminal law concept as regards implied consent in sport. 3. Surgery Alternatively, in the Brown decision, Lord Templeman referred to surgery as intrinsically involving “intentional violence resulting in actual bodily harm”. However, surgery is lawful and therefore assumes consent. 4. Horseplay The courts have adopted another category where consent can operate as a valid defence and has arguably provided the most controversial. For example, in R v Jones the defendant was a schoolboy and had been playing when he threw the victim in the air, who then fell and suffered from a broken arm and damaged spleen. Notwithstanding, the courts permitted the defence of consent on grounds of the victim consenting to rough horseplay. Similarly, in the case of R v Aitkenthe defendants were in the RAF and had set fire to the victim’s “fire resistant” suit and as a result, the victim suffered severe burns. However, the courts bafflingly felt that this still fell within the definition of horseplay, which has been criticised for defying reason as subjectively it is highly questionable whether the victims in these cases could genuinely have consented to the extent of their injuries. As such, whilst the courts have attempted to seek a balance between horseplay and the prevention of floodgate claims; it is submitted that the application of the horseplay exception has gone too far. 5. Sexual Activity In attempting to address the realities of social change and the need to avoid undue interference in the private domain, the courts have adopted varying approaches to consent and sexual activity. In general, consent is generally accepted as a defence to potential offences during sexual conduct. For example, in the case of R v Slingsby, the victim had consented to penetration of her vagina, however suffered internal cuts due to the defendant’s ring. However, the injuries were not foreseen and the victim died of septicaemia. The defendant was acquitted as the victim had consented to the act. Furthermore, in the case of R v Wilson, the victim had asked her husband to tattoo his initials into her buttocks, which he did by using a hot knife. However Lord Russell refuted a claim for assault on grounds of consent: “Mrs Wilson not only consented to that which the appellant did, she instigated it. There was no aggressive intent on the part of the appellant”. In contrast, in R v Brown where the defendants were consenting members of a sadomasochistic homosexual group, a video found of their activities resulted in a police prosecution under section 20 of the OAPA. However, notwithstanding consent, the Court of Appeal refuted this as a valid defence on public interest grounds “the satisfying of sadomasochistic libido does not come within the category of good reason nor can the injuries be described as merely transient or trifling”. The House of Lords further felt that consent did not apply as sadomasochism was a dangerous activity. However, the Brown decision clearly flies in the face of private consent and the rationale for the Brown decision is clearly at odds with the horseplay cases where genuine victim consent to injury is questionable. However, on the other hand it is arguable that the Brown decision is now impacted by the application of Article 8 of the European Convention of Human Rights (ECHR) to which the UK is a signatory. However, there is a margin of appreciation principle in national application of the ECHR, and in the case of Jaggard and Brown v United Kingdom, the Court upheld the applicant’s convictions for participating in consensual acts of sadomasochistic nature highlighting that not every private sexual act would be covered by Article 8 right. 6. Conclusion The above analysis highlights that there is a significant variation of the applicability of consent as a valid defence, which is inherently dependent on judicial categorisation. On the one hand, it is submitted that this is necessary as the range of offences and conduct potentially falling within the ambit of consent requires a flexible approach tailored to the relevant situation. However, in practice, whilst attempting to set some guidelines, the courts have extrapolated ambiguous guidelines creating legal uncertainty in certain areas or alternatively resulting in intrusive regulation of individual privacy. For example, if we consider contact sports, whilst theoretically there is a distinction between civil and criminal liability for participant injury in regulated sport, ultimately liability for both strands hinges on the problematic concept of consent. As regards criminal liability, this has proved particularly problematic as liability hinges on the conduct going beyond negligence liability where the conduct is “sufficiently grave”. In turn, the relevant test for this has been extrapolated as being objective and whilst the Barnes decision recognises the need for a common sense approach in acknowledging the realities of variances in accepted sporting culture, the failure to clarify the parameters of “playing culture” has arguably been a missed opportunity. As such, it is submitted that in going forward, the judiciary needs to provide definitive guidance on what constitutes “player culture” to ensure consistency in criminal liability prosecutions pertaining to participator conduct. Similarly, with regard to sexual activity it is submitted that the general basis for applicability of consent as a defence is rooted in sound principle and the decision in R v Dica in relation to biological GBH is a welcome approach to the defendant’s conduct as opposed to applying entrenched principles pertaining to valid consent. However, on the other side of the spectrum, the courts have arguably gone too far in regulated private sexual conduct in prosecution of sadomasochistic cases, particularly when contrasted with the liberal approach to horseplay decisions. Therefore it is submitted the logicality of the principles underlying consent as a valid defence is inherently dependent on the category applicable as created by the judiciary. This in turn has created discrepancies and uncertainty in the law and it is further submitted that reform should be considered to address the current imbalance in application of the defence. Question 2: Peter Peter could be liable for murder if he satisfies the common law definition of unlawfully killing Sapphire “with malice aforethought.” Therefore, the definition of murder embodies the two stage requirement of actus reus and mens rea. With regard to actus reus, it must be established that Peter committed the unlawful act which caused Sapphire’s death. Both factual and legal causation of death must be established. The factual test applicable is the “but for” principle established in the case of White. Peter will be criminally liable if his conduct was the factual cause of Sapphire’s death and the consequence of death would not have happened “but for” Peter’s conduct. If we apply the “but for” test to the current scenario, it is evident that Sapphire would not have been killed if it had not been for Peter’s actions, therefore under the “but for test”, it is more than likely that Peter’s conduct will have satisfied the requirement of factual cause of death. Under the legal causation test, it is not necessary for Peter’s conduct to be the sole cause of death however it must be the substantial cause and have made a significant contribution to Sapphire’s death. The bomb was placed on the boat by Peter and was the cause of Sapphire’s death. Therefore, Peter is legally responsible for Sapphire’s death. In addition to the requirement of actus reus, it must be established that Peter had the necessary mens rea to be criminally liable for murder. The implementation of the Homicide Act 1957 further reinforced by the decision of R v Vickers establishes that the requirement of mens rea is not restricted to an intention to kill and that an intention to cause grievous bodily harm will also suffice and constitute malice aforethought. It is evident from the factual scenario that Peter clearly did not have an intention to kill Sapphire however he could still be liable for murder on grounds of having oblique intention. Oblique intention occurs where the defendant does not desire the consequence and his aim is something else, however his actions have the effect of making the consequence happen. Moreover, in the case of Hyam v DPP it was held that for oblique intention it had to be established that the consequence was highly probable. Lord Diplock held that “one, who does an act knowing full well of the consequence, although it was not the object he was seeking to achieve, implies a state of willingness to produce the particular consequence and is in my view intent”. However, Lord Hailsham distinguished Hyam and added that oblique intention was applicable where a defendant “deliberately exposed a victim to serious risk of death” therefore trying to narrow its application. Accordingly, if Peter’s conduct creates a risk of death, then he could be accorded oblique intention for the purpose of mens read for murder. If we apply this to Peter, it is evident that Peter did not intend anyone to get hurt and wanted to prevent anyone from going on board the boat. However, there was clearly a risk of someone going onto the boat and of injury and therefore Peter may have oblique intention for the purpose of criminal liability for murder. Additionally, in the case of R v Hancock v Shankland, it was asserted that the probability of the consequence occurring is important in deciding if there is evidence from which to infer intention This was further clarified in the case of R v Nedrick where Lord Lane asserted: “The jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.” The Court of Appeal further set out the following two questions as being relevant for jury consideration in such cases: 1) How probable was the consequence which resulted from the defendant’s voluntary act? 2) Did the defendant foresee that act? If the consequence was a virtual certainty and the jury was sure that the defendant foresaw it as being so, then the jury could infer necessary intention. This was again reiterated in the case of R v Woolin, where it was asserted that there must have been an intention on the defendant’s part to bring about the series of events and that it was foreseeable that such conduct could cause death. Again, if we apply these principles by analogy to the current scenario, it is highly probable that circumstances satisfy the requirement that serious injury was a natural consequence of his conduct and that he foresaw that this was the case. Alternatively, Peter could be liable for unlawful act involuntary manslaughter if the following can be established: 1) Peter committed an unlawful act; 2) The unlawful act was dangerous; 3) The unlawful and dangerous act caused Sapphire’s death. It is evident that by placing a bomb on the boat Peter’s conduct was unlawful and dangerous. However, this will not lead to a presumption of unlawful act manslaughter. For example in the case of Andrews v DPP, the facts are analogous to the current scenario in that the accused was driving carelessly and killed a pedestrian. The defendant was driving dangerously, which in itself is a criminal offence, however Lord Atkin argued that there is an obvious difference in the law of manslaughter between doing an unlawful act and doing a lawful act with such a degree of carelessness which the legislature makes criminal. As such, the act must be unlawful and satisfy the requirement of being dangerous. For example, in the case of Larkin the Court of Appeal held that: “where the act which the person is engaged in performing is unlawful, then if at the same time, it is a dangerous act, that is an act which is likely to injure another person and, quite inadvertently, he causes the death of that other persona by that act, then he is guilty of manslaughter”. This was further confirmed in the case of R v Church where it was held that “.. An unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to at least the risk of harm resulting therefrom, albeit not serious harm”. As such, in unlawful act manslaughter cases, the test is objective. This was further highlighted by the House of Lords’ decision in DPP v Newburywhere the House of Lords upheld the convictions and Church test of what was dangerous was ultimately an objective test not related to the accused’s state of mind. Therefore, if we apply this by analogy to the current scenario, it is established that Peter committed an unlawful act, which is likely to satisfy the legal test of causation. Moreover, it is further likely that on the Church objective test is likely to be considered a dangerous act to satisfy the requirements of unlawful act manslaughter. Alternatively, Peter may be liable for assault or battery with regard to Cecil’s broken leg. The definition of assault as defined in R v Venna is the act by which the defendant intentionally or recklessly causes a victim to apprehend unlawful personal violence. In Faulkner v TalbotLord Lane stated that “an assault is any intentional touching of another person without the consent of that person and without lawful excuse…. It need not necessarily be hostile, rude or aggressive”. Peter clearly did not have consent to touch Cecil and intended to touch him without consent to prevent Cecil going onto the boat. Therefore Peter could be liable for assault, however in the circumstance it is more likely that the appropriate charge will be for battery. As highlighted by the dicta in Wilson v Pringleassault is any act by which a defendant intentionally or recklessly, inflicts violence on the victim. In R v Vennait was affirmed that the mens rea for both assault and battery was intention or Cunningham subjective recklessness where the defendant was reckless in the sense that when they committed the actus reus they realised there was a risk of some harm occurring but undertook the dangerous act regardless. Additionally, in R v Parker it was held that where the accused “closed his mind to the obvious” he could still be reckless. The application of Cunningham recklessness to assault and battery was further confirmed in R v Spratt and R v Parmenter. If we apply this to the facts, it is evident that in jumping on Cecil, it is highly likely that Peter would have been aware that there was a risk of harm occurring to Cecil if he jumped on him and thereby satisfies the requisite mens rea for assault or battery. In summary, Peter is highly likely to have satisfied the legal test for causation of Sapphire’s death. He may be liable for murder on grounds of oblique intention mens rea. Alternatively, he will be liable for unlawful act manslaughter and faces action from Cecil for assault or battery. Bibliography Michael Allen (2007) Textbook on Criminal Law, 9th Edition Oxford University Press. Michael J. Beloff., Tim Kerr and Marie Demetriou (2003). Sports Law. Hart Publishing. C. Elliot & F. Quinn (2006). Criminal Law. 6th Edition Longman. Jerome Hall (2005) Principles of Criminal Law. The Lawbook Exchange Limited. Simon Gardner (2006) Sports Law. 3rd Edition Routledge Cavendish D. Omerod (2008). Smith and Hogan Criminal Law. 12th Edition Oxford University Press. Richard Parrish (2003). Sports Law and Policy in the European Union. Manchester University Press A. Pendlebury (2006). Perceptions of Playing Culture in Sport: the Problem of Diverse Opinion in light of Barnes. Entertainment and Sports Law Journal. Volume 4, Number 2. Kuldip Singh QC Consent to violence in Sport (1994). Sport and Law Journal 7. William Wilson (2003), Criminal Law: Doctrine and Theory, 2nd Edition, Longman Statutes Offences Against the Person Act 1861 Homicide Act 1957 Criminal Justice Act 1988 All UK legislation available online at www.opsi.gov.uk and www.statutelaw.gov.uk Read More