Introduction

In the case of Hobday v R. (Rev1) [2025] EWCA Crim 46, the appellant, Mr. Hobday, appealed against his conviction for assault occasioning actual bodily harm (ABH) under Section 47 of the Offences Against the Person Act 1861. The incident in question involved Mr. Hobday carving the initial "M" onto the buttock of a 17-year-old female victim, referred to as "V," during a consensual sexual encounter. The key legal issue revolved around whether consent could serve as a valid defense in cases of ABH, particularly in the context of body modification activities.

Summary of the Judgment

The Court of Appeal dismissed Mr. Hobday’s appeal, upholding his conviction. The court reaffirmed the principle that consent is not a valid defense to an assault occasioning ABH, especially when the consented activity involves actual bodily harm that is not encompassed within recognized exceptions like tattooing or branding. The judgment extensively analyzed precedent cases such as Brown, Wilson, and BM, ultimately concluding that Mr. Hobday’s actions did not fall within any existing exceptions that would allow consent to negate criminal liability.

Analysis

Precedents Cited

The judgment heavily relied on several key precedents:

• Brown [1994] AC 212: Established that consent is not a defense to ABH unless the activity falls within recognized exceptions such as tattooing or violent sports.
• Wilson [1997] Q.B. 47: Involved consensual branding between spouses, where consent was accepted as a defense due to the nature of the marital relationship and lack of aggressive intent.
• BM [2019] QB 1: Upheld convictions for extreme body modifications even with consent, emphasizing that new exceptions should not be created on a case-by-case basis.

The court analyzed these cases to determine the boundaries of consent as a defense, ultimately distinguishing Mr. Hobday’s case from Wilson by emphasizing the absence of a close analogy to existing exceptions.

Legal Reasoning

The court's reasoning can be broken down as follows:

• General Principle: Consent is generally not a defense to ABH.
• Recognized Exceptions: Activities like tattooing and branding are exceptions where consent may negate criminal liability.
• Application to Hobday’s Case: The carving of the initial "M" did not fall within these recognized exceptions. Unlike Wilson, where the relationship and lack of aggressive intent were significant, Mr. Hobday’s act involved a young, vulnerable individual and lacked the context that would make consent a valid defense.
• Policy Considerations: The court considered public policy, particularly the protection of vulnerable individuals, reinforcing that consent should not shield perpetrators in such contexts.

Impact

This judgment reinforces the strict stance on consent as a defense in ABH cases, especially when involving vulnerable individuals or activities that are not clearly defined within existing exceptions. It provides clarity that personal relationships or consensual body modifications do not inherently negate criminal responsibility. Future cases involving consensual harm will likely refer to this judgment to understand the limitations of consent as a defense.

Complex Concepts Simplified

Assault Occasioning Actual Bodily Harm (ABH)

Under Section 47 of the Offences Against the Person Act 1861, ABH refers to assault causing non-trivial injury to another person. It is more serious than common assault but less severe than grievous bodily harm (GBH).

Consent as a Defense

In criminal law, consent can sometimes negate criminal liability if the activity is within recognized lawful boundaries. However, for ABH, consent is generally not a valid defense unless the act falls within specific exceptions like tattooing.

Recognized Exceptions

These are specific activities that involve consent and result in bodily harm but are considered lawful. Examples include tattooing, branding, and certain violent sports. The law permits these activities despite the harm involved because they are socially accepted and regulated.

Conclusion

The Court of Appeal in Hobday v R. [2025] EWCA Crim 46 has reinforced the principle that consent does not serve as a defense to assault occasioning actual bodily harm outside of narrowly defined exceptions. By meticulously analyzing precedent cases and emphasizing the protection of vulnerable individuals, the court has clarified the boundaries within which consent may or may not negate criminal liability. This judgment serves as a significant reference point for future ABH cases, ensuring that the law maintains its protective stance against non-consensual and harmful activities.