Criminal Law: Defences to the Non-Fatal Offences

Special Defences to the Non-Fatal Offences Against the Person


Consent as a Defence to Assault and Battery

Effective consent (whether express or implied) is a complete defence to a charge of assault or battery.

Some argue that the absence of effective consent is part of the actus reus of those offences, not a defence. For these notes, it will be treated as a defence.

There is also a defence if the defendant honestly believed that the victim consented. There is no need for that belief to be reasonable: DPP v Morgan [1976] AC 182; R v Kimber [1983] 3 All ER 316.

Implied Consent

Consent might be implied from the victim’s words or behaviour. It will also be implied where the victim engages in activities which carry an obvious and normal risk of touching. For example, touching is a natural result of moving through a crowd. People are also normally held to implicitly consent to being touched to get their attention: Wiffin v Kincard (1807) 2 Bos & PNR 471.

However, people are not taken to implicitly consent to the risk of actual violence or unreasonable touching simply because they accept they are taking the risk of that violence: H v CPS [2010] All ER (D) 56.

When is Consent Effective?

Consent is only a defence if it is effective. The following factors are relevant to establishing that the victim’s consent was effective:

The Victim’s Capacity
Children, capacity

The victim must be capable of giving valid consent, which might not be the case if the victim is young, unconscious, drunk or mentally ill. Children in particular must be ‘Gillick-competent’: Gillick v West Norfolk and Wisbeck AHA [1986] AC 112.

The Victim’s Knowledge
Knowledge, legal books

The victim’s consent is not valid unless they understand the broad nature and purpose of the act and the nature and seriousness of any risks involved: R v Konzani [2005] EWCA Crim 706.

Fraud and Deceit
Fraud, deceit, fraudster on phone

Historically, fraud or deceit would only negate the victim’s consent if it relates to the nature of the act or the defendant’s identity: R v Richardson [1988] 2 Cr App R 200. It is possible that broader frauds can now vitiate consent after the advent of the Sexual Offences Act 2003, as the Court of Appeal in R v Richardson [1999] QB 444 stated that the rules on when consent is vitiated should not differ depending on whether the assault is sexual or not.

Threat, violence, punching

The threat of physical violence, dismissal from employment or criminal prosecution are all examples of duress which will vitiate the victim’s consent to force: R v McCoy (1953) (2) SA 4 (AD). It is not clear whether the threat must be one a reasonable person would have succumbed to or how grave the threat must be.

Consent as a Defence to Offences Causing Harm

As a general rule, consent is not a defence to any offence which causes ABH or worse: R v Brown [1993] UKHL 19. The courts recognise some categories of activity as allowing the defence of consent even if it causes harm, however:

sport, football

People can validly consent to the risk of harm which arises out of the normal play of any widely accepted sport: R v Bradshaw (1878) Cox CC 83. This includes boxing and martial arts, where harm is intentional, but not unregulated fighting: R v Brown [1993] UKHL 19.

Medical Intervention
medicine, surgery, surgeon

Consent to medical and cosmetic surgery is a defence to any non-fatal offence against the person: R v Brown [1993] UKHL 19.

horseplay, children splashing

Consent is a defence to injuries caused by rough play if the defendant did not have intention to cause harm: R v Brown [1993] UKHL 19.

Body Modification
tattooing, tattoo

Hair-cutting, piercings and tattooing are all exempted forms of body-modification which consent can apply to. More niche forms of body-modification, such as tongue splitting, do not tend to fall within this exception: R v BM [2018] EWCA Crim 560.

Religious Flagellation
religion, faith, church

The right to engage in religious flagellation and circumcision was acknowledged in R v Brown [1993] UKHL 19.

Risking Harm
risk, extreme sport, rock climbing

Consent to take the risk of harm is valid: R v Slingsby [1995] Crim LR 570. This includes the risk of sexually transmitted disease if the victim is fully informed of the risk: R v Dica [2004] EWCA 1103.

Defences Relating to Children

Lawful Chastisement of a Child

It is lawful for a parent to commit a battery or assault against a child to punish them. However, the punishment must not be done for gratification or out of anger, must not be done with unsuitable instruments, go beyond the child’s ‘powers of endurance’ or be calculated to endanger life or limb: R v Hopley (1860 2 F&F 202.

This is not a defence to acts which cause actual bodily harm or worse, however: Children Act 2004, s 58. The defence is also unavailable to school teachers. However, school teachers have a defence where they are seeking to avert physical injury or property damage: Education Act 1996, s 548.


Non-Fatal Offences Against the Person Quiz

Test yourself on the principles governing the non-sexual, non-fatal offences against the person.

1 / 19

Theresa is a primary school teacher, and smacks a student when she misbehaves. It does not leave any marks or cause any harm. Theresa is charged with battery. She argues that she was engaging in reasonable chastisement. Is this a defence to this offence?


2 / 19

Which of the following would be classed as actual bodily harm?

3 / 19

What two elements must the prosecution establish to convict a defendant of an offence under section 18 of the Offences Against the Person Act 1861?

4 / 19

Harold goes to Ricardo's house, and explains that he is showing men how to check for testicular cancer. Ricardo accepts a demonstration, and during this demonstration, Harold touches Ricardo's leg. In reality, Harold is merely trying to prank Ricardo. When Harold is charged with battery, he argues that Ricardo consented to the touching. Is Ricardo's consent a defence?


5 / 19

Which of the following four scenarios are exceptions to the rule that bodily harm cannot be consented to?

6 / 19

The defendant has committed assault and battery against the victim. He argues that the victim consented. The defence can show that he honestly believed the victim consented, but it is clear that his belief was not reasonable. Does he have a defence?


7 / 19

Psychiatric illness cannot constitute grievous bodily harm. True or false?


8 / 19

Which of the following three scenarios cannot constitute an assault?

9 / 19

What two elements must the prosecution prove to show assault?

10 / 19

Patrick teaches a form of high-speed, high intensity dancing. There is a known risk that dancers may be injured during these dances. During a dance, Yula accidentally kicks Patrick in the chest, causing a rib to break. She is charged with an offence under section 20 of the Offences Against the Person Act 1861. Can she rely on the defence of consent?


11 / 19

What two elements must the prosecution establish to convict a defendant of an offence under section 20 of the Offences Against the Person Act 1861?

12 / 19

Is consent normally a defence to an offence which causes bodily harm?

13 / 19

Theresa smacks her three-year-old daughter when she misbehaves. It leaves a bruise, and Theresa is charged with assault occasioning actual bodily harm. She argues that she was engaging in reasonable chastisement. Is this a defence to this offence?

14 / 19

When establishing the elements of assault occasioning actual bodily harm, the prosecution must prove that the defendant foresaw or intended actual bodily harm. True or false?


15 / 19

Celestine is a school nurse. Mark, a seventeen-year-old, is brought in with a suspected case of tonsillitis. Mark is sulking, so he refuses to let Celestine have a look inside his mouth. She threatens to 'belt him' if he does not comply. Mark knows that school staff have hit students before, so he reluctantly allows her to look in his mouth and touch the inside with tools. Celestine is charged with battery, and argues that she has the defence of consent because Mark allowed her to do what she did. Will this defence succeed?


16 / 19

What two elements must the prosecution prove to show battery?

17 / 19

Emmy stabs at Ricky with a blunt kitchen knife. The attack tears the top layer of Ricky's skin off and causes horrific bruising. Has Emmy wounded Ricky?


18 / 19

What is grievous bodily harm?

19 / 19

Caleb is a prison officer who works transferring violent and unstable prisoners between institutions. During one transfer, one of the prisoners, Dale, commits battery against Caleb. At trial, Dale argues that Caleb consented to the touching since he knew the risks involved in the job and took that risk. Will Dale's consent defence succeed?


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