• In the case of H v CPS 2010 EWHC 1374 Admin 2012 QB 257, it was found that teachers who were employed at schools for children with special needs, including behavioral problems, did not impliedly consent to the use of violence against them by pupils.

Facts of the Case

  • The appellant (H) appealed by way of case stated against a decision of a youth court to convict him of two counts of common assault carried out by one of his teachers. (C).
  • H suffered from ADHD and conduct disorder. On two occasions, H assaulted C. C reported this to the police and H was arrested. At trial, C gave evidence stating that he had not consented to being assaulted by virtue of his role as a teacher at a school for children with special needs.
  •  H was convicted. The court needed to determine whether a person who was employed to teach at a school for children with special needs, including behavioural problems, impliedly consented to the use of violence against them and, in those circumstances, whether the principle in R v Barnes (Mark) [2004] EWCA Crim 3246, [2005] 1 W.L.R 910 [2004] 12 WLUK 610  should be extended so as to cover teachers in schools that taught children with special educational needs.
  • H submitted that the position was analogous to cases of implied consent in the context of contact sports since any teacher at the school would have expected to have encountered minor violence and must, accordingly, be taken to have impliedly consented to that situation.

Issues in H v CPS 2010 EWHC 1374 Admin 2012 QB 257

  • Did the fact that the job may involve risk, imply consent of physical harm?

Held by High Court

  • Appeal dismissed.

Richards LJ

  • The doctrine of implied consent is a long recognised concept in sports; criminal prosecution in those instances was reserved to cases where the conduct complained of was grave.
  •  It was held that neither as a matter of new analysis nor legal policy could consent to assault be implied to a teacher at a school specialising in the education of children with special educational needs. There was little, if any, similarity to conduct in sports cases where there were comprehensive rules governing instances of inappropriate conduct and reciprocity as between players that assaults would not be tolerated. In any event, if the situation were treated as being analogous then there would be a case that dinner ladies, support staff and other students would also be taken to have impliedly consented, opening the floodgates to litigation. Accordingly, there was no good reason to deprive C of his right to complain to the police on the basis that he must be taken to have consented to the type of assault suffered.
  • “Considering the matter objectively, I cannot conceive how the threshold of criminality is not reached in the circumstances of this case. Teachers cannot reasonably be regarded as having consented to being assaulted, even if in this type of school the risk of assault cannot be excluded. More generally, I cannot see that the passage of time referred to in Lord Mustill’s discussion in Brown demands that legal policy recognise an exception in modern society for this type of case. In other words, I do not accept that consent should be implied in this situation, especially when, as with Mr Cochran, teachers will not consent to pupil assaults.” P.7, 20

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