1B - Defences - Consent

Question 1

What offences is the defence of consent available to?

Answer 1

Non-fatal offences against the person

Question 2

Which offences is consent never available for?

Answer 2

murder and s.18 OAPA 1861

Question 3

Which offences are consent generally an offence for but there are exceptions?

Answer 3

s.20 OAPA 1861 and s.47 OAPA 1861

Question 4

Which offence is consent always allowed for?

Answer 4

Battery

Question 5

What is the definition of consent?

Answer 5

where the victim agrees to suffer an injury. It is a defence to some, less serious non-fatal offences

Question 6

What does R v Donovan and R v Slingsby show?

Answer 6

consent is technically not a defence, as where the other person consents, there is no offence

Question 7

What does R v Tabussum and R v Oluboja show?

Answer 7

Must be real consent, the fact that the V submits to D;s conduct through fear also means that the consent is not real

Question 8

What does R v Dica and Konzani show?

Answer 8

Those consenting have to know all of the facts, this overruled R v Clarence. Also R v Golding

Question 9

What is implied consent?

Answer 9

situations where courts imply consent to minor touchings which would otherwise be a battery

Question 10

What is Wilson and Pringle show in relation to implied consent?

Answer 10

everyday situations like crowded room and bumping shoulders

Question 11

What does R v Barnes demonstrate about contact sports and implied consent?

Answer 11

consent to tackle within a rugby game, but not off the pitch but the breach of rules of sport must be serious

Question 12

What was thought that consent could be a defence to prior to AGs Ref No 6 1980

Answer 12

There were debates on whether consent could be a defence to an offence under s.47 OAPA 1861. It used to be though consent could be a defence where the injuries were no serious

Question 13

What does AG’s Ref No 6 1980 show in relation to consent to minor injuries?

Answer 13

court held that consent could not be defence to such an action as it was not in the public interest - ‘it is not in the public interest that people should try to cause, or should cause, each other harm for no good’
It is now accepted that consent is a defence to a s.47 offence

Question 14

What do R v Brown and R v Wilson show about what was in the public interest?

Answer 14

In deciding what was in the public interest, courts have come to decisions that are difficult to reconcile. In R v Wilson they decided that it was not in the public interest that such consensual behaviour should be criminalised

Question 15

What can be said about mistaken belief in consent?

Answer 15

This is allowed if the D genuinely believed that the V is consenting

Question 16

What was held in R v Jones and R v Aitken?

Answer 16

mistaken belief in consent was a defence

Question 17

Why is it important to allow a defence of consent in some situations?

Answer 17

If there is no defence of consent then contact sports would be illegal

Question 18

What does AG’s Ref No 6 1980 show in relation to the need for a defence of consent?

Answer 18

consent is not a defence to street fights there where exceptions where consent was a defence

Question 19

Sport: there is no defence of consent in…

Answer 19

… ‘properly conducted games and sports’

Question 20

Sport: what is the significance of ‘properly conducted’?

Answer 20

distinction between playing within rules and behaviour which is outside the rules

Question 21

Sport: what does R v Barnes show?

Answer 21

set out matters which were to be considered in deciding whether an assault in the course of a match was criminal.

Question 22

Sport: what factors were set out in R v Barnes?

Answer 22

• intentional infliction of injury will always be criminal
• reckless infliction of injury- did the injury occur during actual play or in a moment of temper or over-excitement after the game?
• ‘off the ball’ injuries are more likely to be criminal
• fact that play within the rules and practice of the game and doesn’t go beyond them will be a firm indication that what has happened is not criminal

Question 23

Sport: what is a summary of the factors set out in R v Barnes?

Answer 23

only those who deliberately inflict injury or who go beyond the rules of the game should be liable under criminal law

Question 24

Medical procedures: consent is allowed for ‘reasonable surgical interference’

Answer 24

where surgery is needed to save patients life or improve their condition then consent to operation is a defence to any charge of assault

Question 25

Medical procedures: what happens if a medically capable adult refuses surgery and they operate?

Answer 25

it is a criminal act

Question 26

Medical procedures: what happens if the patient is unconscious?

Answer 26

they will seek consent from relatives and if family cannot be found where treatment is necessary and needs to be done fast, it can happen without consent

Question 27

What are the public policy exceptions set out AGs Ref No 6 1980?

Answer 27

1. properly conducted game or sport
2. surgical intervention
3. body adornement
4. horseplay
5. dangerous exhibitions