Attorney General's Reference (No. 6 of 1980)

Facts

Two men agreed to fight each other. During the fight, one inflicted injuries amounting to actual bodily harm on the other. The defendant was charged with assault occasioning actual bodily harm under section 47 of the Offences Against the Person Act 1861. The trial judge ruled that consent was a defence and directed an acquittal.

History

The trial judge directed an acquittal on the basis that the victim had consented to the fight. The Attorney General referred the point of law under section 36 of the Criminal Justice Act 1972.

Issue

Whether consent is a defence to a charge of assault occasioning actual bodily harm where the injury is inflicted during a consensual fight.

Held

The Court of Appeal answered the reference by holding that where two people fight and cause or intend actual bodily harm, the consent of the other is no defence to assault occasioning actual bodily harm, whether in public or private. The acquittal was not affected.

Ratio

• Consent is not a defence to assault occasioning actual bodily harm or more serious offences against the person, except in recognized exceptions such as properly conducted sports, medical surgery, tattooing, and body piercing.

The judgments

Key reasoning

• The court reasoned that public policy prohibits individuals from consenting to the infliction of actual bodily harm in a fight because such violence is contrary to the public interest.
• The court distinguished between common assault or battery, where consent may be a defence because the injury is transient or trifling, and offences involving actual bodily harm or above, where consent is invalid.
• The court identified recognized exceptions where consent operates as a defence: properly conducted sports, medical surgery, tattooing, ear piercing, and dangerous exhibitions.

Obiter

• Consent may be a defence to common assault and battery where no injury or only transient injury occurs.
• The list of exceptions is not exhaustive but is based on activities that are socially accepted or regulated.

Where it fits in the module

This case is central to Topic 3 (Non-Fatal Offences against the Person) as it defines the limits of consent as a defence to assault and battery. It is applied in Brown, where the House of Lords held that consent was no defence to sadomasochistic activity causing actual bodily harm, and contrasted with Wilson, where consent to branding by a spouse was accepted.

Criticisms

• The distinction between transient injury (common assault) and actual bodily harm is arbitrary.
• The list of exceptions appears ad hoc and based on social acceptance rather than principle.
• The decision criminalizes private consensual conduct between adults.
• The public interest rationale is vague and inconsistently applied.