Homicide: Consent and Horseplay
| Date | 01 October 2005 |
| Published date | 01 October 2005 |
| Author | Stefan Fafinski |
| DOI | 10.1350/jcla.2005.69.5.394 |
| Subject Matter | Court of Appeal |
Homicide: Consent and Horseplay
Rv A[2005] All ER (D) 38 (Jul)
The defendant, a co-defendant and the victim, all aged 16, were in the
same school year. After finishing their examinations, they went drink-
ing together and ended up at an area by a local bridge. The Crown’s case
was that the defendant and co-defendant picked up the victim, lifted
him over a railing by the bridge and dropped him into the river below.
Unfortunately the victim could not swim and drowned. The co-
defendant pleaded guilty to manslaughter and gave evidence for the
prosecution, ultimately being sentenced to an eight-month detention
and training order. The defendant claimed that his actions amounted to
no more than horseplay or a practical joke; he had not caused the victim
to fall and had merely put his leg onto the railing. As such, he asserted
that he genuinely believed that the victim was consenting to the horse-
play. However, evidence for the Crown suggested that the victim had
protested strongly and struggled to prevent being thrown into the river
by grabbing hold of the railing, but that the defendant had prised his
hands away.
In his summing-up, the judge at first instance directed the jury that
the prosecution had to prove five points:
1 the defendant had taken some part in causing the victim to fall;
2 in taking part, the defendant had deliberately applied force without
the victim’s consent;
3 the defendant had not held a genuine or mistaken belief, whether
reasonable or unreasonable, that the victim had consented;
4 the fall was not an accident; and
5 all sober and reasonable people would inevitably have realised that
the defendant’s conduct must have subjected the victim to some
harm, regardless of whether the defendant realised that or not.
The defendant was convicted of manslaughter and appealed inter alia
against conviction on the basis that the trial judge, in his summing up,
was wrong to withdraw from the jury’s consideration the question of
whether his conduct had been unlawful. He contended that failure to
ask the question ‘absent consent, do you regard this as truly criminal
conduct?’, the judge showed improper regard to the developments in
the law or the public policy approach advocated by Lord Mustill in his
dissenting judgment in R v Brown [1994] 1 AC 212.
H
ELD
,
DISMISSING THE APPEAL
,under the circumstances, it would not
have aided the jury for the judge to have posed the question raised by
the defendant, and that the summing-up had been entirely appropriate,
notwithstanding the fact that the unlawful act relied upon by the Crown
was common law battery. The term ‘horseplay’ covers widely varying
activities and consent may be highly material in negating what would
otherwise be unlawful conduct. Considering R v Brown; R vBarnes
[2004] EWCA Crim 3246, [2005] 1 WLR 910, the Court of Appeal did
not accept that the correct approach was to ask the holistic question
whether the category of conduct, in this case horseplay, should be lawful
The Journal of Criminal Law
394
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