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:

Implied Consent

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:

The person giving consent must comprehend the nature of the act to which they are consenting
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:

Gillick v West Norfolk and Wisbeck AHA [1986] AC 112 Case summary

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

The defence of consent does not apply to murder:

Pretty v UK (2346/02) 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:

A-G ref no 6 of 1980 [1981] QB 715 Case Summary

Excluded categories where consent will be valid include:

1. Properly conducted games and sports