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JISCBAILII_CASE_CRIME
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BAILII Citation Number: [1981] EWCA Crim 1 |
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Case No.: 3737/R/80 |
IN THE COURT OF APPEAL
CRIMINAL DIVISION
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Royal Courts of Justice, |
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7th May 1981 |
B e f o r e :
THE LORD CHIEF JUSTICE OF ENGLAND (Lord Lane)
MR. JUSTICE PHILLIPS
and
MR. JUSTICE DRAKE
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REFERENCE TO THE COURT OF APPEAL (CRIMINAL DIVISION) BY THE ATTORNEY GENERAL UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT, 1972 (No. 6 of 1980) |
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MR. R. ROUGIER, Q. C. and MR. R. INGLIS appeared on behalf of the Attorney General.
MR. A. GREEN appeared as Amicus Curiae.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
THE LORD CHIEF JUSTICE: This is a reference to the Court by the Attorney General under section 36 of the Criminal Justice Act 1972. The point of law upon which the Court is asked to give its opinion is as follows:
"Where two persons fight (otherwise than in the course of sport) in a public place can it be a defence for one of those persons to a charge of assault arising out of the fight that the other consented to fight."
The facts out of which the reference arises are these. The respondent, aged 18, and a youth aged 17, met in a public street and argued together. The respondent and the youth decided to settle the argument there and then by a fight. Before the fight the respondent removed his watch and handed it to a bystander for safe keeping and the youth removed his jacket. The respondent and the youth exchanged blows with their fists and the youth sustained a bleeding nose and bruises to his face caused by blows from the respondent.
Two issues arose at the trial: (1) self defence and (2) consent. The learned Judge directed the jury in part as follows:
"Secondly, if both parties consent to a fight then that fight may be lawful. In that respect I disagree with Mr. Inglis' description of the law. It may well be that a fight on the pavement is a breach of the peace or fighting in public or some other offence but it does not necessarily mean that both parties are guilty of an assault. So that if two people decide to fight it out with their fists then that is not necessarily an assault. If they use weapons or something of that nature, other considerations apply. So you have to consider those two matters in this case. Was Mr. X acting in self-defence? Was this a case of both parties agreeing to fight and using only reasonable force?"
Thus the jury were directed that the respondent would, or might, not be guilty of assault if the victim agreed to fight, and the respondent only used reasonable force. The respondent was acquitted.
At the hearing of the reference, Mr. Rougier Q. C. and Mr. Inglis appeared for the Attorney General. Mr. Rougier submitted that this direction was incorrect, that the answer to the point of law was "No", and that if an act (ordinarily constituting an assault) is unlawful per se, no amount of consent can render it lawful. Thus an act committed in public might, he submitted, be an assault, even though it would not be if committed in private, since if committed ix public it would be a breach of the peace and for that reason unlawful.
Mr. Allan Green appeared as amicus curiae, and drew the attention of the Court to the relevant authorities and text books. He pointed out that though the conclusions in the cases are reasonably consistent, the reasons for them are not.
For convenience we use the word "assault" as including "battery", and adopt the definition of Mr. Justice James in Fagan v. Commissioner of Metropolitan Police (1969) 1 Q B 439) at page 444, namely:
"the actual intended use of unlawful force to another person without his consent", to which we would respectfully add "or any other lawful excuse".
We think that it can be taken as a starting point that it is an essential element of an assault that the act is done contrary to the will and without the consent of the victim; and it is doubtless for this reason that the burden lies on the prosecution to negative consent. Ordinarily, then, if the victim consents, the assailant is not guilty.
But the cases show that the Courts will make an exception to this principle where the public interest requires: R. v. Coney (1881/82) 8 Q. B. D. 534 (the Prize Fight case). The eleven Judges were of opinion that a prize fight is illegal, that all persons aiding and abetting were guilty of assault, and that the consent of the actual fighters was irrelevant. Their reasons varied as follows: Mr. Justice Cave, that the blow was struck in anger and likely to do corporal hurt, as opposed to one struck in sport, not intended to cause bodily harm; Mr. Justice Mathew, the dangerous nature of the proceedings; Mr. Justice Stephen, what was done was injurious to the public, depending on the degree of force and the place used; Mr. Justice Hawkins, the likelihood of a breach of the peace, and the degree of force and injury; Chief Justice Coleridge, breach of the peace and protection of the public.
The judgment in R. v. Donovan (1934) 2 K. B. 498 (beating for the purposes of sexual gratification), the reasoning in which seems to be tautologous, proceeds upon a different basis, starting with the proposition that consent is irrelevant if the act complained of is "unlawful... in itself", which it will be if it involves the infliction of bodily harm.
Bearing in mind the various cases and the views of the text book writers cited to us, and starting with the proposition that ordinarily an act consented to will not constitute an assault, the question is: at what point does the public interest require the Court to hold otherwise?
In answering this question the diversity of view expressed in the previous decisions, such as the two cases cited, make some selection and a partly new approach necessary. Accordingly we have not followed the dicta which would make an act (even if consensual) an assault if it occurred in public, on the ground that it constituted a breach of the peace, and was therefore itself unlawful. These dicta reflect the conditions of the times when they were uttered, when there was little by way of an established police force and prise fights were a source of civil disturbance. Today with regular policing, conditions are different. Statutory offences, and indeed bye-laws, provide a sufficient sanction against true cases of public disorder, as do the common law offences of affray, etc. Nor have we followed the Scottish case of Smart v. H. M. Advocate (1975) Scots Law Times 65, holding the consent of the victim to be irrelevant on a charge of assault, guilt depending upon the "evil intent" of the accused, irrespective of the harm done.
The answer to this question, in our judgment, is that it is not is 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, in our judgment, 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.
Our answer to the point of law is No, but not (as the reference implies) because the fight occurred in a public place, but because, wherever it occurred, the participants would have been guilty of assault (subject to self-defence) if (as we understand was the case) they intended to and/or did cause actual bodily harm.
The point of law referred to us by the Attorney General has revealed itself as having been the subject of much interesting legal and philosophical debate, but it does not seem that the particular uncertainty enshrined in the reference has caused practical inconvenience in the administration of justice during the last few hundred years. We would not wish our judgment on the point to be the signal for unnecessary prosecutions.
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