Meachen, R v

For offences under section 20 of the Offences against the Person Act 1861, the prosecution must prove that the defendant intended some bodily harm or foresaw and disregarded the risk of such harm. Consent does not remove that requirement.

For indecent assault under section 14(1) of the Sexual Offences Act 1956, the prosecution must prove absence of consent. Consensual sexual activity does not become criminal merely because serious injury occurs accidentally and without intention or foresight of injury. An objective risk of injury, or the fact that serious injury occurred, cannot alone justify a ruling that consent provides no defence.

The appellant was tried at Swansea Crown Court for rape, indecent assault, and causing grievous bodily harm under sections 18 and 20 of the Offences against the Person Act 1861. The prosecution alleged that, after administering GHB, he caused severe anal injuries to the complainant. His account was that the complainant consented to sexual activity and that injury resulted accidentally from her vigorous movements on his fingers.

After a ruling that consent could not be a defence, the appellant pleaded guilty to indecent assault and the section 20 offence. A jury then convicted him of the section 18 offence. The appeal asked whether the guilty pleas were unsafe because of the ruling, and whether the jury conviction remained safe.

1. The appeal was allowed in relation to counts 2 and 4, but dismissed in relation to count 3. The guilty pleas to indecent assault and inflicting grievous bodily harm contrary to section 20 were entered after an erroneous ruling of law. Those convictions, and the consequential orders on count 2, were quashed.

2. The judge had treated the occurrence, or objective likelihood, of serious injury as sufficient to exclude consent. That approach overlooked an essential element of section 20. The prosecution had to prove that the appellant intended some bodily harm, however slight, or subjectively foresaw that risk and proceeded regardless. The court applied the account of malice in Barnes [2004] EWCA Crim 3246 and distinguished Emmett [1999] EWCA Crim 1710, where the defendant was plainly aware of the serious dangers involved.

3. Consent is a defence to indecent assault. If sexual touching was consensual, and bodily injury resulted accidentally and unintentionally from the activity, criminality does not attach merely because the injury proved serious. Slingsby [1995] Crim. L.R. 571 and the analysis of Boyea [1992] Crim. L.R. 574 in Dica [2004] EWCA Crim 1103 supported that conclusion. On the assumed defence case, the appellant's intention or foresight and the accidental character of the injury were matters for the jury.

4. The section 18 conviction was safe. The jury were clearly directed to acquit unless sure both that the injuries were caused in the manner alleged by the prosecution and that the appellant intended really serious bodily injury. If those matters were proved, consent was no defence under Brown [1994] A.C. 212. The erroneous pleas on the other counts did not affect the distinct issues fairly left to the jury.

• Court of Appeal (Criminal Division): Allowed the conviction appeal on counts 2 and 4, but dismissed it on count 3.

• Court of Appeal (Criminal Division): The appellant's application for leave to appeal against sentence was refused by the single judge and the Full Court: [2003] EWCA Crim 2890.

• Crown Court at Swansea: The appellant pleaded guilty to indecent assault and the section 20 offence, and was convicted by a jury of causing grievous bodily harm with intent contrary to section 18 of the Offences against the Person Act 1861.