KIDNAPPING BY DECEIT R v Cort [2003] 3 WLR 1300; [2004] 4 All ER 137 (CA)

Abstract

The nature of consent, and its ambit and operation as a criminal law defence, remains somewhat unclear (see De Wet De Wet en Swanepoel Strafreg 4ed (1985) 94). This is not surprising, given the fact that the assessment of whether consent is present is largely determined on the basis of public policy. Unlike other justification grounds which indicate that, all things considered, the conduct in question was the right thing to do (eg defence), consent “embodies a recognition that the autonomy of the other person (‘victim’) is involved, and that if that person agrees to the conduct there should be no offence” (Ashworth Principles of Criminal Law 3ed (1999)
331). Recognizing a defence of consent involves taking the individual will into account, in allowing individuals “to assume those consequences that they took into account when they adopted the decision; that is, in permitting them to incorporate these consequences into the course of their lives” (Nino The Ethics of Human Rights (1991) 180). It is clear that the law allows a person complete right of disposal over her property, but does not recognize her consent to the taking of her life by another. More difficult questions arise in relation to whether there can be consent to a violation of bodily integrity, particularly in the area of sport and
medical treatment (see Burchell Principles of Criminal Law 3ed (2005) 333-338). A particularly significant question, which is central to the discussion which follows, is when the apparent consent of the complainant can be excluded. Though it is settled law that consent induced by force or threats is not recognized for the purposes of the criminal law (Burchell 341), the position is not as clear with regard to whether consent induced by fraud will be excluded as a defence (Van Oosten and Labuschagne “Bedrieglike Voorstellings en Toestemming in die Strafreg” 1977 De Jure 80 81). This issue will be discussed below, in the light of the case of R v Cort.