Crown Prosecution Service v Shabbir & Ors

Consent is available as a defence to common assault only in limited circumstances. Where the evidence establishes a violent attack, a bare assertion by the defence that consent is in issue does not require the prosecution to call the victim or prove lack of consent by direct evidence. Lack of consent may be inferred from other evidence, including visual evidence.

An offence under section 4 of the Public Order Act 1986 is not barred merely because violence was actually used. Whether conduct was threatening, abusive or insulting, and the defendant’s intention, are questions of fact.

The defendants were charged at Luton Magistrates’ Court with common assault, contrary to section 39 of the Criminal Justice Act 1988, and an offence under section 4 of the Public Order Act 1986. The prosecution relied on CCTV and interview evidence, but called no live evidence from the complainant.

The magistrates found that the CCTV showed an appalling, prolonged and vicious attack, but acquitted on the basis that consent had not been disproved. They also acquitted on the public order charge, apparently treating actual violence as incapable of satisfying section 4. The prosecution appealed by case stated.

1. Appeal allowed. The magistrates were wrong to acquit the defendants of both offences in light of their findings.
2. Although consent may be a defence to common assault in particular and limited circumstances, the issue must arise on the evidence. A defence assertion cannot put consent in issue where the proved facts show a prolonged and vicious attack. The absence of consent may be inferred from evidence other than the victim’s testimony.
3. The authorities relied upon, R v Brown [2004] 1 AC 212 and R v Coney [1882] 8 QBD 534, concerned different issues and did not assist the defendants. The distinction between common assault and assault occasioning actual bodily harm was irrelevant on these facts.
4. Whether words or behaviour are threatening, abusive or insulting for the purposes of section 4 of the Public Order Act 1986, and whether the required intention existed, are questions of fact. Actual violence is not a bar to conviction. Section 4 is not confined to conduct occurring before violence is used.
5. The court criticised the unnecessary and legally spurious submissions and directed that its observations concerning the number of counsel and solicitors be drawn to the attention of the appropriate authorities.

• High Court (Administrative Court): Allowed the prosecution’s appeal by case stated.
• Luton Magistrates’ Court: Acquitted the defendants of common assault and the section 4 public order offence despite finding that the CCTV showed a prolonged and vicious attack.