Legal Case Brief
R v Donovan [1934] 2 KB 498
OFFENCES AGAINST THE PERSON – BODILY HARM – CONSENT
Facts
It was established at trial that the appellant, Mr Donovan, had ‘induced’ the victim to accompany him to his garage, wherein he had proceeded to beat her with a cane in ‘circumstances of indecency’. Mr Donovan argued that the victim had agreed to meet him in full understanding of his intentions, and had given every indication that she was consenting throughout. The trial judge directed the jury that ‘consent or no consent’ was the issue in cases of assault, and Mr Donovan was subsequently convicted of both indecent assault and common assault. An appeal was brought on the grounds that the jury had not been given adequate direction to decide the issue.
Issues
It was argued on appeal that the direction given at trial was defective in two respects. Firstly, it failed to establish that the burden of negativing consent fell to the prosecution, rather than the defence. Secondly, it failed to address whether, and in what circumstances, a person could legally consent to the infliction of actual bodily harm.
Decision/Outcome
Held that, in cases where a person acts with intention to inflict bodily harm, the consent of the victim cannot render otherwise unlawful conduct lawful. Moreover, in cases where there was a question as to whether the defendant intended to inflict such harm, the burden of negativing consent fell upon the prosecution. The Court confirmed that the phrase ‘bodily harm’ should be given its ordinary meaning, and includes
“….any hurt or injury calculated to interfere with the health or comfort of the prosecutor.”
– ([1934] 2 KB 498, per Swift J)
Such harm need not be permanent but it must not be “merely transient or trifling”
Updated 20 March 2026
This case brief accurately summarises the decision in R v Donovan [1934] 2 KB 498. The case remains good law as a foundational authority on the limits of consent to bodily harm. However, readers should be aware that the law in this area has developed substantially since 1934. Most significantly, the House of Lords in R v Brown [1994] 1 AC 212 confirmed and extended the principle that consent is no defence where actual bodily harm or worse is deliberately inflicted, save in recognised exceptions (such as surgery, tattooing, and contact sports). The Supreme Court revisited and refined aspects of the consent to harm framework in R v BM [2018] EWCA Crim 560 and, more recently, in R v Konzani and related decisions on informed consent. The definition of bodily harm quoted from Donovan was also considered and approved in R v Chan-Fook [1994] 1 WLR 689 and by the House of Lords in R v Ireland; R v Burstow [1998] AC 147. Readers relying on Donovan for assessment or research purposes should ensure they read it alongside this later case law, as it represents only the starting point of a much broader and more developed area of law.
