r_coneyQBD1882
References: (1882) 8 QBD 534
Coram: Cave J, Stephen J, Hawkins J, Lord Coleridge CJ, Lopes J, Huddleston B
Ratio: A public prize-fight was unlawful. Spectators were tried at Berkshire County Quarter Sessions with common assault. The Chairman of Quarter Sessions directed the jury to convict the spectators of common assault on the basis that having stayed to watch the fight, they encouraged it by their presence.
Held: Each protagonist was guilty of assaulting the other and a number of bystanders were held to have encouraged, and thus to have been guilty of aiding and abetting, the assaults of both. However, mere voluntary presence at a fight did not as a matter of law necessarily render those present guilty of assault. The court was not saying that the jury could not have convicted the spectators on the basis merely of their presence. The objection of the majority was that the case had been withdrawn from the consideration of the jury.
Cave J said: ‘The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely, nor intended to cause bodily harm, is not an assault, and that an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial.’
Hawkins J said: ‘The cases in which it has been held that persons may lawfully engage in friendly encounters not calculated to produce real injury to or to rouse angry passions in either, do not in the least militate against the view I have expressed; for such encounters are neither breaches of the peace nor are they calculated to be productive thereof, but if, under colour of a friendly encounter, the parties enter upon it with, or in the course of it form, the intention to conquer each other by violence calculated to produce mischief, regardless whether hurt may be occasioned or not, as, for instance, if two men, pretending to engage in an amicable spar with gloves, really have for their object the intention to beat each other until one of them be exhausted and subdued by force, and so engage in a conflict likely to end in a breach of the peace, each is liable to be prosecuted for assault.’ and
‘whatever may be the effect of a consent in a suit between party and party, it is not in the power of any man to give an effectual consent to that which amounts to, or has a direct tendency to create, a breach of the peace; so as to bar a criminal prosecution. In other words, though a man may by consent debar himself from his right to maintain a civil action, he cannot thereby defeat proceedings instituted by the Crown in the interests of the public for the maintenance of good order; . . . He may compromise his own civil rights, but he cannot compromise the public interests.’
Lord Coleridge CJ: ‘I conceive it to be established, beyond the power of any argument however ingenious to raise a doubt, that as the combatants in a duel cannot give consent to one another to take away life, so neither can the combatants in a prize-fight give consent to one another to commit that which the law has repeatedly held to be a breach of the peace. An individual cannot by such consent destroy the right of the Crown to protect the public and keep the peace.’
Stephen J said: ‘The principle as to consent seems to me to be this: When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults.
In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as, for instance, in cases of wrestling, single-stick, sparring with gloves, football, and the like; but in all cases the question whether consent does or does not take from the application of force to another its illegal character, is a question of degree depending upon circumstances.’
Lopes J said: ‘I understand the ruling of the Chairman to amount to this, that mere presence at a prize fight, unexplained, is conclusive proof of aiding and abetting, even if there had been no evidence that the person or persons so present encouraged or intended to encourage the fight by his or their presence. I cannot hold, as a proposition of law, that the mere looking on is ipso facto a participation in or encouragement of a prize fight. I think there must be more than that to justify conviction for an assault. If, for instance, it was proved that a person went to a prize fight knowing it was to take place, and remain there for some time looking on, I think that would be evidence from which a jury might infer that such person encouraged and intended to encourage the fight by his presence. In the present case the three prisoners were merely seen in the crowd, were not seen to do anything, and there was no evidence why or how they came there, or how long they stayed.’
Huddleston B commented on the direction of the Chairman of Quarter Sessions: ‘If he had told the jury that going to a prize fight to see the combatant strike each other, and be present when they did so, was evidence from which they might find that the defendants countenanced what was going on, and that therefore they might find them guilty, I should have been disposed to support that ruling. But that is not the effect of his summing up.’
This case is cited by:
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The appellants had been convicted of assault, after having engaged in consensual acts of sado-masochism in which they inflicted varying degreees of physical self harm. They had pleaded guilty after a ruling that the prosecution had not needed to . . - Cited – F v West Berkshire Health Authority HL ([1990] 2 AC 1, Bailii, [1991] UKHL 1)
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . . - Cited – Regina v Brown etc CACD (Gazette 15-Apr-92, [1992] QB 491, [1992] 2 All ER 552, [1992] 2 WLR 441)
The defendants appealed against their convictions for offences under the 1861 Act of assaults inflicting injury. They said that as sado-masochists, they had mutually consented to the assaults and that no offences had been commited, but pleaded gulty . . - Cited – Lane v Holloway CA ([1967] 3 All ER 129, [1968] 1 QB 379, Bailii)
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The defendant appealed against his conviction for murder. He had engaged in a street battle using guns. A bullet from an opponent killed an innocent passer by. The court was asked whether the principles of joint venture and transferred malice could . . - Cited – Gnango, Regina v SC ([2012] 2 All ER 129, [2012] 2 WLR 17, [2012] 1 Cr App R 18, [2012] 1 AC 827, Bailii, [2011] UKSC 59, SC Summary, SC, UKSC 2010/0165, Bailii Summary)
The prosecutor appealed against a successful appeal by the defendant against his conviction for murder. He and an opponent had engaged in a street battle using guns. His opponent had shot an innocent passer by. The court was now asked as to whether . . - Cited – Bauer and Others v The Director of Public Prosecutions Admn (Bailii, [2013] EWHC 634 (Admin), [2013] 1 WLR 3617)
The appellants had entered Fortnum and Masons to demonstrate against tax avoidance. They appealed against convitions for aggravated trespass.
Held: The statutory question posed by s.68 is whether the prosecution can prove that the trespasser . . - Cited – Jogee and Ruddock (Jamaica) v The Queen SC ([2016] 2 WLR 681, UKSC 2015/0015, SC, SC Summary, SC Video, Bailii, [2016] UKSC 8, [2016] WLR(D) 84, WLRD, [2016] UKPC 7)
The two defendants appealed against their convictions (one in Jamaica) for murder, under the law of joint enterprise. Each had been an accessory when their accomplice killed a victim with a knife. The judge in Jogee had directed the jury that he . .
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Leading Case
Last Update: 17 March 2019
Ref: 182285