Criminal Law 2019/20 Coursework: Consent and Public Policy

This essay delves into the complexities of the defence of consent in criminal law, critically analyzing its reliance on public policy rather than strict legal principles. The discussion centers on the argument that this approach leads to an "unprincipled" determination of the lawfulness of consent, as exemplified by the landmark case of R v Brown. The essay provides a detailed overview of the concept of consent in criminal law, differentiating between various types of consent and exploring the circumstances in which consent serves as a valid defence to offences against the person. It presents an analysis of the case law, including R v Brown, R v Wilson, R v Billinghurst, R v Jones, R v Aitken and others, Collins V Wilcock, and R v Olugboja, to support both sides of the argument, offering a balanced perspective on the evolution of the defence of consent and its implications for the legal system. The essay examines the intricacies of consent in scenarios involving physical harm, sexual gratification, and other contexts where consent plays a crucial role in determining the legality of an action. This essay aims to provide a comprehensive and nuanced understanding of the defence of consent and its application in criminal law.

Criminal law

INTRODUCTION...........................................................................................................................1
Q. Discussion..........................................................................................................................1
CONCLUSION................................................................................................................................5
REFERENCES................................................................................................................................7
Bibliography....................................................................................................................................7

INTRODUCTION
Criminal law is a cluster of provisions and legal acts which is applied on wrongful
activities such as; where a person fails to follow the certain criminal statute like committing
immoral action by breaching the law. It’s totally different from civil law because penalties of this
law covers the forfeiture of individual rights and imprisonment1. Therefore, main objective of
this project is to highlight the provision or cases which will prove that harm which has been done
via defence consent is not an illegal activity. Additionally, project will outline the unprincipled
approach which will determine that whether the defence of consent is lawful and unlawful with
the help of R v Brown [1994] 1 AC 212 cases.
Q. Discussion
According to the criminal law, defence of consent is use for defeating an element of actus
reus of a crime and prove that action which has been incurred is a lawful act. However, there are
mainly four different kinds of consent are available such as; implied, expressed, informed and
unanimous. Basically, defence can use medical report of prosecutrix, messages, call records,
WhatsApp and rent contract in case of live-in-relationship. In legal bodies, there are some
specific criminal situation, an obvious criminal action may have been occurred but most
indispensable requirement of the crime is that victim needs to oppose to the incurred crime.
When this situation take place then defence available for respondent is that the victim actually
agreed for this particular act which will not considered as a crime 2. Interestingly, there are
various criminal activities for which consensus plays a major role as a defence specially which is
an outcome of bodily harm such as; assault and battery as in various cases, victims are agree to
performing certain action. One of the major example of this legal cum illegal act is a physical
contact which specially happens between love birds, live-in-relationship or youngsters are doing
this. Apart from this, physical contact in sports activities are also great example of defence
consent such as; contestants of sports are having their agreement to get engaged in physical
contact as well as probable bodily harm because it’s an important factor for attaining sporty
targets. Surprisingly, three major requirements need to be present for establishing defence
1 Gilbert, J., 2018. Contesting consent in sex education. Sex Education, 18(3), pp.268-279
2 Stewart, C.L., 2012. A defence of the requirement to seek consent to withhold and
withdraw futile treatments. Medical journal of Australia, 196(6), pp.406-408.
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consent in these kind of situations. Initially, person is need not to agree with the circumstances
which covers the probabilities of severe biological damage. Secondly, harm that has occurred
must be a realistically conceivable aspect of conduct and risk would sensibly have accepted.
Third, a person must receive some kind of advantages from the demeanour such that consent was
justified. Hence, these elements are really important which applied on only specific situations
and typically kind of athletic events such as; boxers, rugby players are agreed to battery which is
a consequence of their participation 3. On the other hand, defence of consent also applied on
crimes in which there is an absence of consent is a major element of illegal act. After that, crimes
related to rape and sexual assault both need that consent of victim must available.
Correspondingly, consensus also contravene some property crimes like; trespassing which must
be in an express way or implied but implied accord is very much difficult for establishing.
According to the case of R v Brown [1993] 1 AC 212, consent in bodily harm for
achieving sexual gratification is not an illegal act because defence can use the agreement of
another person as a justification who is enjoying the pleasure. In this scenario, House of Lords
gives a judgment that group of men who was involved in a consensual sadomasochistic sexual
activity were find guilty. They were declared as a murderer under Sections 20 and 47 of
Offences against the Person Act 1861 for their “unlawful and malicious wounding” and assault
occasioning actual physical injury”. However, key issue which is encountered by a court is that
whether the agreement was valid defence to assault in these situation to which House of Lords
answered in negative. This case is colloquially called as a spanner case whose name comes after
operation spanner 4.
According to the case of R v Wilson [1996] 2 Cr. App. R. 241, Alan Wilson was
accused under Section 47 of the offences against the person Act 1861 for physical attack. In this
case, Wilson stigmatizing his marks or tattoos into his wife’s bums with a burning knife.
Therefore, first major issue which has been incurred that whether R v Brown [1993] 97 Cr. App.
R. 44 is a consultant that agreement is not a defence to stabbing occasioning actual biological
harm to another person. After a conduct of criminal investigation, it has been identified that
3 Meadowcroft, J., 2014. Exchange, unanimity and consent: a defence of the public choice
account of power. Public Choice, 158(1-2), pp.85-100.
4 Deeks, A.S., 2013. Consent to the use of force and international law supremacy. Harv. Int'l
LJ, 54, p.1.
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consensual doings between a couple happens in the privacy of their own house. It means that,
consensual acts which has been taking place in personal house of an individual is not a serious or
extreme in nature because in this case defence of consent is considered as valid justification
against Section 47 of the Act.
In the case of R V Billinghurst [1978] Crim LR 553, B punched an opposing player in
rugby match while playing rugby on his face which resultant into fractured of chin. Therefore, B
was accused for causing a bodily injury under Section 20 of Offences Against the Person Act
1861. Main issue which incurred in this case is consent as prove was given by victim that on
some previous occasions he had punched and had himself beaten challengers during rugby
match. On the other hand, defence who is also an international player of rugby witness that,
punching is a rule in a modern game of rugby rather than an exception. Along with this, defence
states that according to the modern rule there is a consent of player on risk of some injury while
playing. Consequently, judge directed the juries that rugby is a game where physical contact is
very normal and significantly involve the use of force as well as players are supposed to agree on
force of type which might reasonably be expected to incurred while play 5.
According to the case of R v Jones (Terence) (1986) 83 Cr App R 375, there were six
accusers whose are petition a conviction under Section 20 of Offences against the Person Act
1861. In this case, every member had supplicated guilty for at least two counts of imposing
dangerous bodily injury which incurred from a situation in playground. Mainly, two complaints
have arisen such as; thrown into air and further landed on ground which causes a severe
biological harm. As a result, judge has dropped to give a direction to the juries for finding that
whether the boys were play a part in rough horseplay with intent to injured. Therefore, main
issue of this case is that whether the petitioners had consented to take part in rough or
undisciplined horseplay or there has been an intent to cause major injury. Hence, Section 20
requisite an intent or inattentive on the part of suspect in their actions which was found not to
exist. Furthermore, McCowan J alleged that consent to involved in a rough horseplay was
defence where there had no intention to cause serious harm. As a result, persuasion was rejected
and the appeal was permitted 6.
5 Archard, D., 2019. Sexual consent. Routledge
6 Labuschagne, P., 2018. " Violence" in sport and the violenti non fit iniuria defence: a
perspective on the death of the cricket player Phil Hughes. Potchefstroom Electronic Law
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As per the case of R v Aitken and others [1992] 1 WLR 1066, three defendants and a
man whose name is Gibson all were RAF officers has gone to attend a party due to the
completion of their formal flying training. Thus, during that event, every person is a joking mode
and tried to catch light on resistant suits of two companion officers. Furthermore, G states he
wants to leave the party as want to go to the bed but instantly one of the defendants dragged him
and set fire on his resistant suit. After that, speedy efforts of respondent to soak the flames causes
serious burn to G. Although, colleague of G didn’t do this with intention but still offenders have
faces a court martialled in military law and acquitted for inflicting bodily harm under Section 20
of Offences Against the Person Act 1861. On the other hand, appeal against conviction was
permissible in this case because Court-Martial Court of Appeal believed that the magistrate
supporter needs to direct the court to consider the major point of this case which is; G gave his
agreement as he was also eager to participant in all the activities or whether the complainants
may have assumed this as it occurred reasonably or not 7.
Collins V Wilcock [1984]3 All ER 374
Under this particular case, a police woman took hold of a women’s arm in order to stop
her walking off at the time when she was questioning her. However, the women scratched the
police women as well as were found charged with assaulting a government officer in the course
of her duty. It was analysed that the police woman’s actions were considered to a battery. In
fact, the defendant’s action was herby considered as self-defence. Thus, her certainty was
quashed. The court has found that it was related to implied consent, because there was jostling in
crowded areas, handshakes, tapping in order to gain attention that proves no any force was
applied than is reasonably essential in the given situation. Therefore, it was no consent provided
for the grabbing of arm.
R v Olugboja [1982] QB 320
This case intends to provide information regarding two girls, Jayne and Karen has been
offered a lift home out from a disco by Mr. lawal. However, they have accepted the offer, instead
of taking them home he took her to his home. The girl refused to go in and decided to walk-off.
Journal/Potchefstroomse Elektroniese Regsblad, 21(1).
7 Giddens, A., 2013. In defence of sociology: essays, interpretations and rejoinders. John
Wiley & Sons.
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Moreover, lawal then started to follow can picked up both the girls and raped her. He then picked
Karen up and takes them back to her home. The appellant put the light off and asked Jayne to
take-off her trousers. She was scared and started crying because of fear. The appellant continues
to have sexual intercourse, whereas Jayne cannot resist, struggle or scream. The appeal was
dismissed and the conviction was upheld. The court has found that there is no clear direction of
consent that gives ordinary meaning. They have analysed that there is difference between
consent and submission. Henceforth, it has followed a mere submission associated with the
consent.
Throughout the analysis of various case, it has been understood that offences which take
place in consent situation then it’s a matter of public policy where two members are involved
intentionally but harm occurs unintentionally. In fact, number of activities are taken place on
regular basis where person injured while enjoying their life then it doesn’t mean that he/she can
file case against other individual. Mainly, it’s a case of unprincipled approach which means that
every community is following some kind of life principles or societal norms while getting
involved in personal activities. Basically, there are some rules and regulation which is design by
society such as; respect to elder people, don’t use abusive language in front of any member
without any reason, consent for doing wrong activity is not a criminal activity and so on 8.
CONCLUSION
From the above report, it has been summarized that actus reus is not an illegal act
because its situation where there is a consent of both people but still there are numerous
circumstances where victim file a case against other person. Therefore, this project has shown
various case related to this situation such as; sexual gratification, harm during sports game,
injury while consent parties and many more. In fact, legal bodies are also supporting this
situation that a person will not found guilty if there is a case of defence consent as it creates a
situation of actus reus.
8 Craig, E., 2014. Capacity to consent to sexual risk. New Criminal Law Review: In International
and Interdisciplinary Journal, 17(1), pp.103-134.
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REFERENCES
Books and Journals:
 Gilbert, J., 2018. Contesting consent in sex education. Sex Education, 18(3), pp.268-279.
 Stewart, C.L., 2012. A defence of the requirement to seek consent to withhold and
withdraw futile treatments. Medical journal of Australia, 196(6), pp.406-408.
 Meadowcroft, J., 2014. Exchange, unanimity and consent: a defence of the public choice
account of power. Public Choice, 158(1-2), pp.85-100.
 Deeks, A.S., 2013. Consent to the use of force and international law supremacy. Harv.
Int'l LJ, 54, p.1.
 Archard, D., 2019. Sexual consent. Routledge.
 Labuschagne, P., 2018. " Violence" in sport and the violenti non fit iniuria defence: a
perspective on the death of the cricket player Phil Hughes. Potchefstroom Electronic Law
Journal/Potchefstroomse Elektroniese Regsblad, 21(1).
 Giddens, A., 2013. In defence of sociology: essays, interpretations and rejoinders. John
Wiley & Sons.
 Craig, E., 2014. Capacity to consent to sexual risk. New Criminal Law Review: In
International and Interdisciplinary Journal, 17(1), pp.103-134.
Bibliography
 R v Brown [1993] 1 AC 212
 R v Wilson [1996] 2 Cr. App. R. 241
 R V Billinghurst [1978] Crim LR 553
 R v Jones (Terence) (1986) 83 Cr App R 375
 R v Aitken and others [1992] 1 WLR 1066
 Collins V Wilcock [1984]3 All ER 374
 R v Olugboja [1982] QB 320
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