1B - Defences - Consent Flashcards
What offences is the defence of consent available to?
Non-fatal offences against the person
Which offences is consent never available for?
murder and s.18 OAPA 1861
Which offences are consent generally an offence for but there are exceptions?
s.20 OAPA 1861 and s.47 OAPA 1861
Which offence is consent always allowed for?
Battery
What is the definition of consent?
where the victim agrees to suffer an injury. It is a defence to some, less serious non-fatal offences
What does R v Donovan and R v Slingsby show?
consent is technically not a defence, as where the other person consents, there is no offence
What does R v Tabussum and R v Oluboja show?
Must be real consent, the fact that the V submits to D;s conduct through fear also means that the consent is not real
What does R v Dica and Konzani show?
Those consenting have to know all of the facts, this overruled R v Clarence. Also R v Golding
What is implied consent?
situations where courts imply consent to minor touchings which would otherwise be a battery
What is Wilson and Pringle show in relation to implied consent?
everyday situations like crowded room and bumping shoulders
What does R v Barnes demonstrate about contact sports and implied consent?
consent to tackle within a rugby game, but not off the pitch but the breach of rules of sport must be serious
What was thought that consent could be a defence to prior to AGs Ref No 6 1980
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
What does AG’s Ref No 6 1980 show in relation to consent to minor injuries?
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
What do R v Brown and R v Wilson show about what was in the public interest?
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
What can be said about mistaken belief in consent?
This is allowed if the D genuinely believed that the V is consenting
What was held in R v Jones and R v Aitken?
mistaken belief in consent was a defence
Why is it important to allow a defence of consent in some situations?
If there is no defence of consent then contact sports would be illegal
What does AG’s Ref No 6 1980 show in relation to the need for a defence of consent?
consent is not a defence to street fights there where exceptions where consent was a defence
Sport: there is no defence of consent in…
… ‘properly conducted games and sports’
Sport: what is the significance of ‘properly conducted’?
distinction between playing within rules and behaviour which is outside the rules
Sport: what does R v Barnes show?
set out matters which were to be considered in deciding whether an assault in the course of a match was criminal.
Sport: what factors were set out in R v Barnes?
- 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
Sport: what is a summary of the factors set out in R v Barnes?
only those who deliberately inflict injury or who go beyond the rules of the game should be liable under criminal law
Medical procedures: consent is allowed for ‘reasonable surgical interference’
where surgery is needed to save patients life or improve their condition then consent to operation is a defence to any charge of assault
Medical procedures: what happens if a medically capable adult refuses surgery and they operate?
it is a criminal act
Medical procedures: what happens if the patient is unconscious?
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
What are the public policy exceptions set out AGs Ref No 6 1980?
- properly conducted game or sport
- surgical intervention
- body adornement
- horseplay
- dangerous exhibitions
