Consent to a Harmful Assault: The End of a Recognised Exception to the General Rule?

Abstract

Keywords

Actual bodily harm assault carving an initial letter on a buttock consent defence

D was standing outside a bar in Coventry town centre when he was approached by V, a female aged 17 at the time. Having asked D for some speed, they went to D's house where they engaged in consensual sexual activity. V then proceeded to use a Stanley blade which she had found on a windowsill to carve D's initial (the letter ‘M’) into her buttock. Unable to reach to finish the letter, V asked D to complete the task, which he did. Although not measured, a photograph of the carving showed the letter ‘M’ to be of a significant size. There was some bleeding from the wound such that it left an image imprinted in blood on the bed which V had sat on. Afterwards, V video called her friend to show her. The sexual activity and the carving had both been initiated by V.

In respect of this incident D was convicted of assault occasioning actual bodily harm against V, contrary to s.47 of the Offences Against the Person Act 1861. He was sentenced to 20 months’ imprisonment. Prior to the verdict the judge had ruled, and then directed the jury, that V's consent was not a defence to the charge. It was that ruling, and the consequent direction, which was the subject of D's appeal against conviction.

HELD: DISMISSING THE APPEAL, that the general rule is that consent is no defence to an assault involving the intentional occasioning of actual bodily harm, although it may be highly relevant to sentence. Whilst there are recognised exceptions to the general rule, such as ritual circumcision, tattooing, ear-piercing and violent sports such as boxing, for consent to amount to a defence it must be truly voluntary and not the result of coercion or duress. The person giving consent must have capacity to do so and the consent must be informed. Cutting the skin is a commonly encountered form of self-harm to which the young and the vulnerable are particularly prone. There are good reasons why people should not be permitted to do this to others and no good reason, outside the recognised exception of medical intervention, why they should be.

Commentary

Introduction

Assault occasioning actual bodily harm contrary to s.47 of the Offences Against the Person Act 1861 amounts to an aggravated form of the basic assault offence. In order to be guilty, the assault on V must cause them some form of harm which is ‘calculated to interfere with the health or comfort of the [victim]’, and which is more than ‘trivial or trifling’: see R v Miller [1954] 2 QB 282 at 285, and DPP v Smith [2006] EWHC 94 (Admin) at [16]. On the facts of Hobday, V had sustained a wound given that her skin was broken: see Moriarty v Brooks (1834) 6 C & P 684, and JJC (A Minor) v Eisenhower [1983] 3 All ER 230.

Consent

The legal rule which was central to the appeal in Hobday is that consent does not amount to a defence to a s.47 offence. It is not, however, an absolute rule. Various exceptions have been recognised by the courts over the years, as explained by Lord Templeman in R v Brown [1994] AC 212 as follows:

Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities. (at 231)

The post-Brown decision in R v Wilson [1997] QB 47 suggests that it is also lawful for a person to consent to being branded. Since it was argued on behalf of the appellant in Hobday that the trial judge had fallen into error in failing to follow Wilson, the earlier decision requires explanation.

In Wilson, D had branded his wife's buttocks with his initials using a hot knife. It had taken place at her instigation and after conversations in which D had indicated to his wife that he was unable to comply with her original request, which was to tattoo her. In delivering the judgment of the court, Russell LJ sought to distinguish the facts of Wilson from those in R v Donovan [1934] KB 498 and R v Brown, the well-known and much written about sadomasochism case. Thus, he stressed that D's wife had consented to, as well as instigated the branding, and that there had been no aggressive intent on D's part. In the court's judgment:

… far from wishing to cause injury to his wife, the appellant's desire was to assist her in what she regarded as the acquisition of a desirable piece of personal adornment, perhaps in this day and age no less understandable than the piercing of nostrils or even tongues for the purposes of inserting decorative jewellery. ([1997] QB 47 at 50B-C)

Whilst tattooing is not mentioned in this paragraph, it is notable that slightly later in the judgment, the court expressed itself to be unable to detect ‘any logical difference between what the appellant did and what he might have done in the way of tattooing’ (at 50E). Neither did it feel entitled ‘to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing’ (at 50E). In other words, therefore, the Court of Appeal equated branding with tattooing in terms of the pain or harm caused to the recipient, and in order to support its conclusion that since it was lawful to consent to being tattooed, a point confirmed by Lords Templeman, Jauncey and Slynn in R v Brown [1994] 1 AC 212 (at 231, 245 and 277, respectively), it followed that it was also lawful to consent to being branded in the circumstances of Wilson.

The Court of Appeal in Wilson also assessed D's behaviour in light of public policy and public interest considerations. In its judgment, it was not in the public interest that it should be labelled as ‘criminal’. Rather, it was the case that:

Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution. (at 50G)

Whilst at first glance this observation may be thought to give free licence to consenting couples to inflict actual bodily harm on one another without any fear of subsequent investigation or prosecution, the word ‘normally’ in Russell LJ's dictum ought not to be overlooked. Its presence signifies that in the context of the martial relationship, there may be some behaviours resulting in physical harm to which the law will not recognise consent as a defence. In the judgment of the Court of Appeal in Wilson, the present was a field where the law ought to develop:

… upon a case by case basis rather than upon general propositions to which, in the changing times in which we live, exceptions may arise from time to time not expressly covered by authority. (at 50H)

Wilson Distinguished

Whilst it may be thought that there are similarities between the facts in Wilson and those in Hobday, such as in relation to consent, the use of a knife and the area of the body affected, the trial judge distinguished the former case on the basis that V and D were not wife and husband or a couple in an equivalent relationship, but rather a young woman looking for drugs who had sex with an older man. It is significant, therefore, that in the judgment of the Court of Appeal in Hobday, ‘the proposition that conduct which would be criminal in other circumstances is not so where the alleged offender and the proposed victim are married to each other is not one which can be sustained as a rule of the criminal law’ ([2025] EWCA Crim 46 at [32]). Whereas in Wilson, a differently constituted Court of Appeal shared the trial judge's ‘disquiet’ that the proceedings had been brought in the first place, the present court was of the view that ‘nearly 30 years after Wilson’, there would ‘now be much less enthusiasm for deterring police investigations of possible criminal activity on the ground that the parties were in a domestic relationship with each other’ (at [33]).

In support of this observation Edis LJ drew attention to the ‘new offence of coercive and controlling behaviour’ (contrary to s.76 of the Serious Crime Act 2015), as well as to ‘modern approaches to domestic abuse’ which, he observed, would be ‘significantly undermined were the police to adopt the approach suggested by the court in Wilson’ (at [33]). Whilst it is debatable whether an offence which has been on the statute book for a decade can rightly be described as ‘new’, the veracity of the observation cannot be denied. Accordingly, the Court of Appeal in Hobday was of the view that the trial judge had been correct not to apply Wilson to the facts of the present case. It reached this conclusion for several reasons, including that in its judgment Wilson, ‘should be treated as a case where the court decided that, on its particular facts, the conduct of Mr Wilson should have been treated as closely analogous to tattooing’ (at [40]).

Several judicial observations made in Wilson, which were referred to above, support the view that the Court of Appeal in that case treated branding and tattooing as being analogous. This is despite the fact that as Edis LJ pointed out in Hobday, tattooing ‘is the infiltration of ink into the surface of the skin’, and as such ‘does not involve branding’ (at [40]). It is also significant that in R v Brown [1994] AC 212 where, as noted previously, the House of Lords recognised some exceptions to the general rule that consent is not a defence to actual bodily harm, branding was not identified as an exception. Indeed, two of the counts in Brown actually related to assault by branding where wire heated with a blow lamp had been applied to parts of the body: see R v Brown [1992] QB 491 at 495. It might be understating the case, therefore, to suggest as Edis LJ did in Hobday that the decision in Wilson is ‘hard to justify as an application of the rule in Brown’ ([2025] EWCA Crim 46 at [40]). It certainly seems to be at odds with the later case of R v BM [2019] QB 1. Here, the Court of Appeal dismissed an appeal against a preparatory ruling in a trial for offences of wounding with intent to do grievous bodily harm contrary to s.18 of the 1861 Act where D, a registered tattooist and body piercer (under ss.13-16 of the Local Government (Miscellaneous Provisions) Act 1982), had carried out body modifications on customers consisting of the removal of an ear, nipple and the dividing of a tongue, each without anaesthetic. As was the case in Hobday, the trial judge in BM ruled that the consent of the customers was no defence to the charges, and the Court of Appeal later agreed that this had been the correct approach.

The decision in BM is significant, not least because it rejected the argument that D's behaviour ought to have been seen as a natural extension of tattooing and piercing. Moreover, as the then Lord Chief Justice, Lord Burnett, observed, the exceptions to the general rule that consent is not a defence to an assault ‘deliver no easily articulated principle by which any novel situation may be judged’ ([2019] QB 1 at [38]). Unlike the Court of Appeal in Wilson, the differently constituted Court of Appeal in BM expressly rejected the recognition of new exceptions on a case-by-case basis, ‘save perhaps where there is a close analogy with an existing exception to the general rule established in R v Brown’ (at [41]). Patently, body modification was not seen by the court in BM to have a close analogy to an existing exception, whereas branding was in Wilson.

In Hobday, the Court of Appeal was of the view that the approach in BM was to be preferred to that in Wilson since the law in this area ought not to develop on a case-by-case basis, involving value judgments laden with policy considerations which are more appropriately matters for Parliament, but rather by reference to a close analogy with an existing exception to the general rule. Since the present case bore no such close analogy, the Court of Appeal felt able to dismiss the appeal on the basis of the decisions in Brown and BM.

Conclusion

In R v Dica [2004] EWCA Crim 1103, Judge LJ commented in the present context that ‘the categories of activity regarded as lawful are not closed, and equally, they are not immutable’ (at [41]). For some, however, adopting a category-based approach has led to the development of the law in this area on the basis of reasoning which is both ‘arbitrary and piecemeal’: see Tolmie, ‘Consent to harmful assaults: the case for moving away from category-based decision making’ [2012] Crim LR 656 at 657 and 662. Whilst it might be argued that in Hobday insufficient weight was accorded to the personal autonomy of V, given that she instigated both the sexual activity between her and D as well as the cutting of her own skin, she appears to have been a vulnerable young adult who, according to evidence not placed before the jury, had recently also engaged in self-harm with a razor blade ([2025] EWCA Crim 46 at [22]). Moreover, there was a significant age discrepancy between V and D, who was described as being a ‘mature man’ (at [15]). V's circumstances were therefore rather different to those of D's wife in Wilson. Even in that case, however, there may have been a power imbalance which went unrecognised by the court. Thus, as Tolmie points out, the nature of D's act was ‘reminiscent of a kind of branding or mark of ownership, suggesting that this might have been a case that warranted further scrutiny into the dynamics of the relationship between the couple’ ([2012] Crim LR 656 at fn 58).

Whilst the Court of Appeal in Hobday did not go so far as to say that Wilson was wrongly decided, doubt has clearly been cast on whether the decision will be followed in the future. Indeed, it is evident from remarks made in Hobday that the Court of Appeal was of the view that any future exceptions to the general rule laid down in Brown ought to be a matter for Parliament, rather than judges sitting in the Court of Appeal (Criminal Division). It may have become the case, therefore, that contrary to what Judge LJ proclaimed in Dica, the categories of activity regarded as lawful in the present context are now closed, and that whilst existing categories remain mutable, they are unlikely to be widened in future if the matter continues to be left to the courts.

Footnotes

ORCID iD

Neil Parpworth