There had been a fight, not in the course of properly conducted sport.
Held: Where two people fight in those circumstances intending or causing actual bodily harm, it is no defence for a person charged that the other consented, whether the fight is held in public or in private. Lord Lane CJ explained that it was not in the public interest that people should cause each other actual bodily harm for no good reason: ‘We think 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 it lies on the prosecution to negative consent . . But the cases show that the courts will make an exception to this principle where the public interest requires . . Bearing in mind the various cases and the views of the textbook 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 that question the diversity of view expressed in the previous decisions such as [Coney and Donovan] 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 grounds that it constituted a breach of the peace, and was therefore itself unlawful. There dicta reflect the conditions of the times when they were uttered . .
The answer to the 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. . . 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 or 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 other cases.’
Judges:
Lord Lane CJ
Citations:
[1981] EWCA Crim 1, [1981] QB 715
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – BM, Regina v CACD 22-Mar-2018
The defendant appealed from a preliminary ruling that his body modification services were not in law capable of being consented to and therefore amounted to an assault.
Held: The appeal failed: ‘we can see no good reason why body modification . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 29 May 2022; Ref: scu.247939