1B Consent - defence to Non-fatals (complete)

Question 1

What are the 2 rules regarding consent?

Answer 1

1) The consent must be genuine (not forced) and it must be “informed” (the V has to understand the true nature of the situation).

Question 2

Ratio of Dica

Answer 2

CA said V’s had consented so he wasn’t liable for rape but had to consented to the risk of HIV because they didn’t know (not informed consent).

Question 3

Ratio of AG’s Reference no.6 of 1980

Answer 3

Lord Lane said “It is not in the public interest that people should try and cause or should cause each other actual bodily harm for no good reason…”

Question 4

Rule from AG’s Reference no.6 of 1980

Answer 4

Assault + battery + consent = no offence
ABH or GBH + consent = offence
ABH or GBH + consent + exception = no offence

Question 5

Ratio of Leach

Answer 5

Liable under s.18, not allowed to rely on V’s consent as a defence because it is serious harm.

Question 6

What are the recognised exceptions?

Answer 6

Under R v Brown and others, the recognised exceptions are:
(a) Contact sports
(b) Rough horseplay
(c) Tattooing
(d) Non-violent sexual relations
(e) Surgery
(f) Ear piercing
(g) Male circumcision

Question 7

(a) Contact sports

Answer 7

Boxing is covered under the ‘Marquis of Queensbury’ rules.
Bare knuckle prize fighting is illegal - Coney
Consent in sport only applies when the rules are followed (Billinghurst + Barnes)

Question 8

Ratio of Barnes (regarding contact sports)

Answer 8

In deciding whether the conduct justified criminal liability the court will look at all the circumstances of the case:
1) The type of sport
2) The level at which it is played
3) Nature of the conduct
4) Degree of the force used
5) Extent of the risk of the injury and D’s state of mind

Question 9

(b) Rough horseplay

Answer 9

Where children or adults engage in play which carries the risk of some injury.

Jones- defence was allowed as there was no intention to cause injury

Richardson and Irwin- Clarke LJ said that the question was not what another person would have foreseen but what D’s themselves would have foreseen had they been sober.

Question 10

(c) Tattooing

Answer 10

Only falls under the exception if there is informed consent.

Question 11

(d) Non violent sexual relations

Answer 11

R v Brown and others- defence of consent was rejected because you cannot consent to serious harm unless it comes under one of the recognised exceptions.

R v Wilson- The conduct fell under tattooing exception and it was not in the public interest to interfere between husband and wife consensual activity in the privacy of their marital home.

Question 12

(e) Surgery

Answer 12

Tabassum- any fraud nullifies consent.
Capacity to consent

Question 13

(e) Surgery- Gillick competence

Answer 13

Gillick v West Norfolk Area Health Authority- where the child is Gillick competent, consent from a parent may not be necessary but you cannot refuse treatment that is vital for your health (Re W 1992)

Question 14

Ratio of R v G 2003

Answer 14

Someone under 13 cannot consent to sexual activity