HW Legal
Sometimes a prosecution requires the victim's consent. If they do not give it, the suspect's prosecution can neither be started nor continued.
As a general rule, the decision whether to start a prosecution for a criminal offence (or to continue one) rests with the state. There is a limited exception for the protection of private interests. The private interests of certain people are protected by what is known as the victim's right of disposition.
Where the victim is in a particular relationship to the offender (where they are a close person), and the specific offence appears in the list set out in the Code of Criminal Procedure (Section 163), the victim must be expressly asked, before the prosecution begins, whether they consent to it. If the relationship between the accused and the victim only comes to light after the prosecution has begun, the victim must be asked immediately afterwards.
If the victim does not respond straight away to the request from the law enforcement authority, they are given a period of up to 30 days to do so. If they do not respond within that period, they are presumed not to consent to the prosecution, which means it cannot be started or continued. After that, consent can no longer be given.
Consent that has been given can be withdrawn. Once it has been withdrawn, however, it cannot be given again.
Whose consent is required?
In general terms, the Code of Criminal Procedure provides that a person who, in relation to the victim, is "someone the victim would, as a witness, have the right to refuse to testify against" can only be prosecuted with the victim's consent. Put simply: consent is needed where the victim and the offender are close persons. Close persons here means a relative in the direct line, a sibling, an adopter, an adoptee, a spouse, a registered partner, or a cohabiting partner.
For the offence of rape under Section 185(1) and (2) of the Criminal Code, consent is required where the rape took place between spouses, registered partners, or cohabiting partners.
Which offences require consent, and which do not?
The Code of Criminal Procedure limits this to a list of particular offences. They include, for example, causing bodily harm, damaging someone else's property, and making dangerous threats, among others. The list does not, on the other hand, include offences such as grievous bodily harm, murder, or affray.
When is consent not needed, regardless of the relationship and the particular offence?
The rule that consent is required, for certain offences, from a victim who is a close person of the suspect is subject to the following exceptions:
- Consent is not required if the offence caused the victim's death. That makes sense, since they no longer have any way of giving it.
- Consent is not required from a victim who is unable to give it because their legal capacity is restricted in this respect.
- The victim's consent is not needed where the victim is under 15.
- Consent is likewise not needed where it is clear that it was withheld (or withdrawn) under distress brought on by threats, pressure, dependency, or subordination. So if the offender used threats to deter the victim from consenting to the prosecution, the prosecution can be started even without their consent.
Special cases
What is the latest point at which consent can be withdrawn? The victim can withdraw their consent by an express declaration at any time up until the appellate court retires for its final deliberation. So they can withdraw it during the investigation, during the trial, after the first-instance court has handed down its decision, and even during the appeal proceedings.
What if there is more than one victim? The consent of even a single victim is enough for the prosecution to go ahead. This can matter, for instance, with the offence of violating the freedom of the home, that is unlawfully entering someone's dwelling (which is one of the offences that require consent). Everyone who lawfully lives in the dwelling the offender entered counts as a victim, and it is enough for just one of them to consent.
How can consent be expressed? The case law makes clear that consent has to be definite and intelligible. It cannot be inferred implicitly, for example from the circumstances, from the victim's relationship to the offender, from witness testimony, and the like.
If a victim withholds consent, can they still bring a claim for damages later in the proceedings (where those proceedings are being conducted in respect of other victims)? Yes. This would be a situation where one victim (the accused's parent, say) withheld consent to the prosecution, but the proceedings go ahead in respect of other victims, whose consent was either not required or was given. The parent, as a victim, can then bring a claim for damages in those proceedings. The claim has to be brought no later than the start of the taking of evidence at the trial.