Attorney General's Reference (No. 6 of 1980)
| Jurisdiction | England & Wales |
| Court | Court of Appeal (Criminal Division) |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 07 May 1981 |
| Judgment citation (vLex) | [1981] EWCA Crim J0507-1 |
| Docket Number | No. 3737/R/80 |
| Date | 07 May 1981 |
[1981] EWCA Crim J0507-1
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Phillips
and
Mr. Justice Drake
No. 3737/R/80
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. R. ROUGIER, Q.C. and MR. R. INGLIS appeared on behalf of the Attorney General.
MR. A. GREEN appeared as Amicus Curiae.
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. xxx 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. Inglia 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 in 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...
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