Martin Hobday v R

For intentional assault occasioning actual bodily harm, consent is no defence unless the conduct falls within a recognised exception. New exceptions should not be created case by case, except perhaps where the conduct is closely analogous to an existing exception. A policy-laden expansion of the criminal law is generally for Parliament. A domestic relationship does not make otherwise criminal conduct lawful, although consent may bear on prosecution in the public interest and on sentence. Consensual cutting of a young person’s skin with an unsterile knife was not analogous to tattooing or another recognised exception.

The appellant was convicted at the Crown Court at Warwick on 6 March 2024 of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861, and was sentenced to 20 months’ imprisonment. The allegation concerned the appellant finishing the carving of his initial into the buttock of a 17-year-old woman whom he had recently met. The appellant relied on her consent. The trial judge ruled that consent was no defence, having considered R v Brown (Anthony) [1994] AC 212, R v Wilson [1997] QB 47, R v BM [2018] EWCA Crim 560 and section 71 of the Domestic Abuse Act 2021. The central issue was whether consent should have been left to the jury as a defence.

1. The appeal was dismissed. The charge was intentional assault occasioning actual bodily harm under section 47 of the Offences Against the Person Act 1861. The court confined its reasoning to that charge and did not decide how the rule applies where the defendant is reckless as to the occasioning of actual bodily harm or where the charge is wounding under section 20.
2. R v Brown (Anthony) [1994] AC 212 established that consent is no defence to intentional actual bodily harm unless the activity falls within a recognised exception. Consent must also be truly voluntary, informed and given by a person with capacity; the prosecution bears the burden of disproving legally effective consent. The court did not need to state that law comprehensively because the prosecution accepted that the consent here was legally valid.
3. R v Wilson [1997] QB 47 was treated as a decision confined to its particular facts, where branding a wife’s buttocks was regarded as closely analogous to tattooing. It did not establish that marriage or a domestic relationship can make otherwise criminal conduct lawful. The public-interest observations in Wilson were not sustainable as a general criminal-law rule, although a prosecutor must consider the public interest and consent remains relevant to sentencing.
4. R v BM [2018] EWCA Crim 560 was preferred to the case-by-case approach in Wilson. New exceptions should not be created by judicial extension, save perhaps where there is a close analogy with an existing exception. A policy-laden change to the criminal law is better addressed by Parliament. Section 71 of the Domestic Abuse Act 2021 substantially codified Brown but did not address the issue in this appeal.
5. The alleged cutting with an unsterile Stanley knife was not a close analogy with tattooing or another recognised exception. The court was therefore bound by Brown and BM to reject consent as a defence. In any event, if free to decide the matter, it would not have recognised consensual cutting of the skin as lawful, given the connection with self-harm and the vulnerability of young people. Nothing in the judgment approved the sentence or the sentencing approach in Wilson.

1. Court of Appeal (Criminal Division) — On 31 January 2025, the appeal against conviction was dismissed: [2025] EWCA Crim 46.
2. Crown Court at Warwick — On 6 March 2024, His Honour Judge Berlin convicted the appellant of assault occasioning actual bodily harm and sentenced him to 20 months’ imprisonment.