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What is Implied Consent in UK law?

Falsely accused of rape Solicitors | Stuart Miller Solicitors

The notion of implied consent in UK law is a rather complex one. Several different situations – some criminal and some not – involve implied consent. If you are facing criminal charges, especially those related to sexual offences, you might have heard that implied consent could be the determining issue in your case. Regardless of your reason for needing to understand implied consent laws in the UK, this article will provide you with an answer. We look at the broad concept of implied consent in UK law, as well as specific legal instances in which it becomes relevant.

What is the meaning of implied consent?

At a fundamental level, implied consent is an agreement that has not been made explicitly by words or actions.

In the UK legal system, it generally means a person has given permission for something without actually saying so. For example, you may give implied consent if you do not actively object to certain activity when in the presence of another person. This scenario is often raised in the context of sexual activities, where some defendants try to argue that consent has been given if the sexual acts were not objected to.

The three most common contexts in which the notion of implied consent comes up in UK law are:

  • the defence of sexual criminal allegations at trial
  • the administration of emergency medical treatment, and
  • the protection of data confidentiality.

The bulk of this article will focus on implied consent in the context of sexual offences, as this is undoubtedly the most contentious area in the use of the implied consent principle in UK law. Before we do that, however, we want to outline the notion of implied consent in relation to emergency medical treatment and data confidentiality in case those situations apply to you.

Implied consent in the context of emergency medical treatment

Implied consent is very important when it comes to medical treatments, typically emergency ones. Usually, a person must explicitly give their permission to medical staff before they receive any type of medical treatment or examination (by signing a consent form at the hospital, for example). Implied consent, however, exists to cover those situations where a person is likely to want medical assistance, but cannot explicitly give their consent to it.

In a car accident, for example, a patient might not be able to explicitly agree to receiving medical treatment to save their life, but the absence of anything telling emergency personnel and doctors not to treat them (such as a ‘do not resuscitate’ medical bracelet) could be seen as implicit agreement to receive medical care or treatment.

In other words, even though no verbal agreement has been made, implied consent in the medical context allows emergency workers and doctors to act in the best interests of the patient.

Implied consent in the context of data confidentiality

Implied consent is also relevant in the context of data confidentiality. Under UK law, organisations are not allowed to share personal data with other organisations without explicit consent from the person whose data it is.

However, there are certain circumstances in which implied consent can be given. Basically, if someone does not explicitly tell an organisation that they do not want their data shared, then this could be seen as implied permission and thus the organisation is allowed to share the data with a third party.

Since the coming into force of the General Data Protection Regulation (GDPR) in the European Union, data privacy has become a more hotly-debated matter and it is questionable whether implied consent has a role to play in data privacy management in future.

Implied consent in criminal proceedings

In criminal proceedings in the UK, implied consent assumes a much different definition. In this context, it is not so much about what someone has said or done, but rather what they have failed to do (i.e., if they have failed to withhold their permission for an action that had occurred without their full knowledge or understanding).

This can be particularly relevant in cases of sexual assault or, more seriously, rape. If an alleged victim has not said yes or no to the sexual activity, or was unable to explicitly say yes or no (due to being too drunk after a night out, for example), the alleged perpetrator could try to use implied consent as a defence against criminal charges.

It also used to be the case that implied consent precluded charging a husband with the rape of his wife. This is because it was widely agreed that being married to someone implies consent to have sex with them. This notion is now rejected in English courts.

What is an example of implied consent?

An example of implied consent would be if someone was in a situation where they did not actually speak or act in a way that could be seen as giving permission, but where permission was nonetheless understood to exist from their lack of protest, denial, refusal, and so on. The alleged perpetrator would essentially claim that by not explicitly objecting, the alleged victim had effectively given their consent to what was happening.

In this respect, implied consent is presumed from the person:

  • not explicitly saying anything about what was going on
  • not objecting to what was happening or what was about to happen
  • not leaving the room or vicinity if they had the opportunity to do so
  • not asking clarifying questions about the situation to fully understand the circumstances or consequences of what was happening
  • not asking for help from other people at the scene if they felt threatened or did not understand what was happening

What is the difference between informed consent and implied consent?

Informed consent and implied consent sound similar, but there are some important distinctions to be made.

Informed consent is when a person has been given all relevant information about the activity in question, including potential risks, and then still agrees to go ahead with the activity. Implied consent, on the other hand, is when permission is assumed without an explicit or formal agreement being made. It can also be seen as a failure to say no (for example, if a person does not object or leave the premises when an activity starts).

In the UK, informed consent is seen as a more valid form of agreement than implied consent, and it is critical to understand the difference between the two in order to ensure that all parties involved in any kind of agreement or transaction are fully aware of what they are consenting to. It is also important to understand when implied consent can and cannot be assumed in any situation, as this will help to protect both you and the other people involved in any situations where consent could be misunderstood.

What is express consent?

Express consent is when a person explicitly communicates their agreement to something, either through spoken or written words. This could be in the form of a signed document, an email, a verbal statement, or any other kind of communication where there is no ambiguity about what has been agreed upon. In comparison to implied consent, express consent is seen as much more valid.

What is an example of express consent?

An example of express consent would be if a person was signing an agreement to join a gym and checked a box to agree to the terms and conditions. By signing the document, they are explicitly stating that they understand all of the terms involved and are willingly giving their permission for the activity or transaction in question.

In relation to potential sexual offences, express consent is received when a person freely gives their consent to the sexual activity. To be given freely, the person must be mentally capable of giving consent, as well as being of legal age to consent (16 years old in the UK).

Why is implied consent important?

Implied consent is important because it is essential to ensure that all parties involved in a transaction have fully understood what they are agreeing to.

Arguments around implied consent can also have serious implications for both defendants and victims in a criminal process.

Where to get more help in understanding implied consent in UK law?

Implied consent is a critical concept in UK law, yet it can be confusing for people to understand. This is why it is so vital to take the time to learn about all aspects of implied consent if you are facing a charge that has implied consent as a lynchpin element of the offence. If you have any questions about implied consent or need help understanding how it works in practice, reach out to a qualified and experienced solicitor who can guide you through the criminal process and help protect your rights. Get in touch with the team at Stuart Miller Solicitors today for a free, no obligation consultation.

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