Law students studying criminal law should pay attention to Attorney General’s Reference (No. 6 of 1980). This case examines the use of consent as a defence in cases of assault causing bodily harm, and its outcome significantly alters the understanding of consent in violent situations. It is a crucial study point for those interested in the boundaries of lawful and unlawful actions.

  • In the case of Attorney General’s Reference (No. 6 of 1980) [1981] Q.B. 715, it was held that the public interest requires that consent should not be a defence to a charge of assault occasioning actual bodily harm. Sport could be a viable defence, but violence in a public place amounted to a breach of the peace and was therefore unlawful.

Facts of the Case Attorney General’s Reference (No. 6 of 1980)

  • C, aged 18, and a youth, aged 17, met in a public street and entered into an argument.
  • C and the youth agreed to settle the argument there and then through a fight.
  • Before the fight C removed his watch and handed it to a bystander for safekeeping and the youth removed his jacket.
  • C and the youth exchanged blows with their fists, leading to the youth sustaining a bleeding nose and bruises to his faith.
  • C was indicted with assault occasioning actual bodily harm.
  • The judge directed the jury that if both parties consent to a fight, the fight may be lawful. The jury acquitted C.
  • The Court asked for a referral from the Attorney General to decide whether the judge’s direction was correct.

Issues

  • Was consenting to a fight a valid defence to charges of assault occasioning actual bodily harm under the Offences Against the Persons Act 1861?

Held by the Court of Appeal (Civil Division)

  • Finding for D (the Court), that the principle was that an assailant was not guilty of an assault if the victim consented to it. However, an exception existed where the public interest required it. It was not in the public interest for people to cause or try to cause each other actual bodily harm.
  • Whether the act occurred in private or in public was immaterial, for an assault occurred if actual bodily harm was intended or caused. Since assault was an unlawful act, consent was not a valid defence and the judge’s direction was incorrect.

The Attorney General

  • For convenience, ‘assault’ in this case is used as including ‘battery,’ and adopt the definition of Fagan v Commissioner of Metropolitan Police [1969]: ‘the actual intended use of unlawful force to another person without his consent’ or any other lawful excuse.
  • It is an essential element of an assault that the act is done contrary to the will and without the consent of the victim. For this reason, the burden lies on the prosecution to show negative consent. Ordinarily, if the victim consents, the assailant is not guilty.
  • But cases show that the courts will make an exception to this principle where the public interest requires. In Reg. v Coney (1882) 8 Q.B.D. 534, it was held that a prize fight is illegal, and all persons aiding and abetting were guilty of assault, and the consent of the actual fighters was irrelevant.
  • Rex v Donovan [1934] 2 K.B. 498 used different reasoning, with the proposition that consent is irrelevant if the act complained of is ‘unlawful…in itself.’ It will automatically be so if it involves the infliction of bodily harm.
  • The question, therefore, is whether the public interest requires that consent be irrelevant in the current case.
  • “The answer to this question, in our judgment, is that it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason. Minor struggles are another matter. So it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent. Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases” [719D].
  • The judge’s direction was incorrect. C is guilty of assault, not because the fight occurred in a public place, but because (wherever it occurred, the participants would have to be guilty of assault, subject to self-defence, as they intended and caused actual bodily harm.

Significance of the Case on the Development of the Law

Attorney General’s Reference (No. 6 of 1980) is highly significant in criminal law for several reasons:

  1. Clarifying Legal Boundaries of Consent: This case underscored that consent is not a valid defence for assault occasioning actual bodily harm, refining legal perspectives on what constitutes allowable bodily harm, even among consenting adults.
  2. Influence on Subsequent Case Law: The principles from this case were echoed in later cases such as R v Brown [1993], where the House of Lords held that consent is invalid for sadomasochistic activities causing harm, and R v Wilson [1996], which conversely allowed consent as a defence for branding a wife’s buttocks. These cases demonstrate the nuanced application of the principles outlined in Attorney General’s Reference (No. 6 of 1980).
  3. Educational and Practical Implications: The case is frequently cited in legal education and practice as a foundation for understanding the limits of consent in assault, significantly influencing how assault cases are argued and judged.

Exam Questions and Answers

Below, you will find answers to questions that are most commonly asked based on this case.

What legal precedents were considered in determining the limits of consent in this case?

In determining the limits of consent, the case drew from prior rulings like Donovan (1934), which established that consent is generally not valid for acts causing actual bodily harm. The principle was further developed in Coney (1882), which ruled against consent in prizefighting cases, emphasizing public policy against bodily harm.

How has the interpretation of this case influenced police protocols on handling consensual fights?

The interpretation set forth in Attorney General’s Reference (No. 6 of 1980) influenced police protocols by clarifying that consensual fights causing actual bodily harm cannot be dismissed merely on the basis of mutual consent. This has led police to adopt a more stringent approach to handling reports of brawls, even if participants initially consent, aligning with public policy against unregulated violence.

What are the ethical considerations in balancing consent with public interest in assault cases?

The ethical considerations involve weighing individual autonomy against societal interests in safety and order. Cases like Attorney General’s Reference (No. 6 of 1980) and R v Brown highlight the complexity of this balance, demonstrating the judiciary’s role in maintaining public morals and protecting individuals from serious harm, regardless of consent. These decisions underscore the ethical stance that some harmful actions cannot be legally condoned, protecting societal values over personal liberties in cases of severe violence.

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