R v Hobday
V, a young woman in her late teens, had instigated and consented to sexual activity with H, during which she began carving M into her buttock with a Stanley knife, which H finished. In interview H stated that V was the instigator of the marking and that the act was consensual.
The general principle is that, subject to well recognised exceptions such as tattooing, consent is no defence to a charge of actual bodily harm. The facts of this case were not as extreme as in the case of Brown and was factually distinguished from the case of R v Wilson [1997] Q.B. 47. In Wilson, they concluded that it was not in the public interest that consensual activity between husband and wife in the privacy of the matrimonial home be a matter for criminal investigation.
The judge concluded that there was no valid defence of consent available to H and directed the jury as to this.
H was convicted of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861.
H appealed on the grounds that the judge fell into error in concluding the judgement in Wilson was that consensual activity between spouses in private was not a subject for criminal investigation. H submitted that the concluding remark was that the proceedings served no useful purpose at considerable public expense. The nature and quality of the act in both this case and Wilson were so similar and the distinguishing of H’s case, on the basis that the appellant was not in a long-term and loving relationship with the victim, was flawed. The nature of the alleged assault in Wilson was a far more important consideration for the court than the relationship between the parties. It was wrong for the judge to direct the jury that consent was not a defence in all the circumstances of the case. The misdirection of law deprived H of his defence and made conviction an inevitability.
Held
Appeal dismissed. Conviction upheld.
The judge was right in not applying the decision in Wilson to the facts of this case and in not directing the jury that consent was a defence.
The decision in Wilson was hard to justify as an exception to the rule of Brown and therefore this case would be even harder to describe a further extension of the exception.
The cutting of skin of a young person with an unsterile Staley knife should not be lawful activity, even with consent. The cutting of skin is a commonly used form of self-harm which the young and vulnerable are particularly prone to. There are good reasons why people should not be permitted to do this to others and no good reason, outside the recognised Brown exception of medical intervention, why they should be.
Consent may not be a defence to a charge of assault but it may (on proper investigation) amount to a reason why a prosecution should not be brought in the public interest.
View the full case document here, with links to related legislation and similar cases.
