Chapter 12: Non-fatal Offences - Consent Flashcards
What is the issue on consent to non-fatal offences?
What are the 3 requirements for lawful consent?
Consent would render infliction/apprehension to be lawful (CPS v Shabbir [2009])
- Section 76 - Consent must be freely given and not vitiated by fraud (deceived);
- Person concerned must have the legal capacity to give consent; (R v Kamki)
- Where the infliction of bodily harm is involved, the deed consented to must be one to which consent is legally recognised as a defence where harm is thereby caused
What are 2 types of consent?
What is there to note about it?
Absolute consent
- Matter of public policy will be decided by the courts (R v Brown)
- R v Brown - Lord Termpleman states that consent is divided into harm and no harm
- Harm - Section 47, 20, 18 OAPA
- No harm - Section 39 CJA (assault / battery)
Qualified consent
So if charged with actual harm / GBH - will be guilty
What is the general rule to consenting to physical harm?
General rule
- If they inflicted intentionally - no
- If they are inflicted unintentionally through an act - maybe yes
What are the 6 categories for consent to physcial harm?
- Sexually transmitted diseases
- Consensual fighting
- Games / sports
- Horseplay
- Discipline of children/young person
- Body adorment/modification
- Sexual gratification
Can one consent to an STD?
What is the case for this?
Introduction
- A person can consent to risk of contracting an STD, but the consent must be informed
- And the disease must not deliberately passed on
Case
- R v Mohadmmed Dica [2003]
- R v Konzani
R v Mohadmmed Dica [2003]
cosent to STD
Context
- Disapproved Clarence
Held
- COA held a person’s consent to intercourse must be informed in order to be a defence to common assault or Section 20
- The V must be aware the sexual partner was living with a venereal disease
- There is a duty of disclosure now
Takeaway
- For infliction of injury to be allowed & consented, the V must be aware/informed consent (in order to be a defence)
R v Konzani
consent to STD
Held
- COA held if there is clear that STD was present and D knew of the disease at the time of intercourse
- Consent to both intercourse and STD would be satisfied
Is consensual fighting a good defence? (2 cases)
Generally
- Not good defence
Case
- Coney - Prize fight was unlawful because it was becoming a breach of peace
- AG’s Reference (No.6 of 1980)
AG’s Reference (No.6 of 1980)
Consensual fighting
Facts
- D and V agreed to fist fight
- V suffers bleeding nose and bruised face
Held
- COA held the fights were actual bodily harm caused or intended are unlawful regardless of consent
- Lord Lane CJ: “Nothing which we have said is intended to cast doubt
Is consent to games/sports with physical harm a good defence?
(2 cases)
Introduction
- Boxing - lawful but they are not incidental violence - violence is ‘its entertainment’
Case
- Barnes (2004)
- Billingshurst (1978)
Barnes (2004)
consent to sports
Facts
- D convicted of inflicting GBH while playing amateur football for affecting a robust tackle which broke the V’s leg
Held
- Convicted
- Went beyond what a player ‘might reasonably be regarded as having accepted by taking part in the sport.’
- Conduct was ‘sufficiently grave’
Is consent to horseplay a good defence?
What are 3 cases for this?
Introduction
- Consent is a good defence to horseplay
- But consent has to be given to the play, not to the harm - R v Jones; R v Aitken
- Griffin (1869)
- Aitken (1992) - not guilty
- Jones and Others - guilty
Aitken (1992)
Horseplay
Facts
- Ex military soldiers were playing by exchanging a fly suit pouring and lighting a suit on fire
- D poured white spirit onto V’s fly suit and lit it
Held
- Not guilty
- Undisciplined mess games were lawful as long as there is no intention to cause any injury
Takeaway
- D could use consent as defence
- On grounds that he did not intend to cause injury
- He also genuinely believed V consented
Not guilty
Jones and Others
Horseplay
Facts
- Brothers were playing around
- Caused a broken arm and ruptured spleen
Held
- Injuries were not consented to, and can’t be consented to
Takeaway
- On grounds that the brother had consented to act
- Not to the injuries that arised
Note
- It is important to identify what the D consented to (act or accepted the risk?)
Is there consent when discplining a child / young person?
What is the case and provision that supports this?
Introduction
- Discipline has to be reasonable
- What amounts to “reasonable” depends on all circumstances of the case - R v Hopley
Case
- A v UK (Human Rights: Punishment of a Child) [1998]
Note
- Children Act 2004 - Only reasonable punishment would be assault or battery (Section 39 CJA - no harm)
A v UK (Human Rights: Punishment of a Child) [1998]
Discipline of child/young person
Facts
- UK court acquitted a stepfather of a young boy of the offence of Section 47 OAPA
Held
- ECHR held they made a wrong decision
Is consent to body adorment/modification a good defence?
What are 2 cases for this?
Introduction
- Surgery is a special category of lawful contact
- However, some surgical mutilations which cause harms can only be considered lawful if, individual autonomy outweighs the public interest in prohibiting infliction of deliberate harm
Note
- However, note that body dysmorphic disorder is not allowed to be consented by law
Cases
- R v Wilson [1996] - not guilty
- R v BM [2018] - guilty
R v Wilson [1996]
body adorment
Facts
- Husband branded his wife’s buttocks with a hot knife
- Mrs. Wilson consented
- Was only discovered when she went for medical examination
Held
- It was allowed since it was between a married couple
Note
- This would no longer be allowed under Section 71 of the Domestic Abuse Act 2021
not guilty
R v BM [2018]
bdoy adorment
Facts
- D removed the left ear of a person
- Removed a right nipple of another
- Carried out splitting of a tongue of another
- Charged with Section 18 OAPA
Held
- COA held unlawful that removal of the customer’s ear, another customers’ nipple and division of another customers’ tongue
- On grounds that there is no possible public benefit attached to these procedures
- Furthermore, procedure was not done with proper medical practice
Takeaway
Like Lord Templeman says that if anything charged with Section 47,20,18 would be unlawful
guilty
Can sexual gratification be consented to?
What are the 3 cases for this?
- R v Donovan (1934) -
- R v Brown (1993) - guilty
- R v Slingsby (1995) - not guilty
R v Brown (1993)
IMPORTANT
sexual gratification
Issue
- HOL had to consider legality of sado-masochistic sexual activity between consenting males
Fact
- Gay males engaging in BDSM
- Went too far
- There was no evidence of any participants that complained to police or neither seeking medical treatment
- Police found video recordings during investigation
Held
1. Held that such activities were unlawful and concluded that freedom of sexual expression was no ‘good enough reason’ to justify infliction of intentional injury
2. Lord Templeman emphasized on the inhumane passion of inflicting injury - it may lead to satisfaction derived from unconsented injuries
Takeaway
- Courts will ultimately decide whether there is absolute consent or not (matter of public policy)
R v Slingsby (1995)
sexual gratification
Facts
- After some extremely vigorous consensual sexual activity resulting in cuts to V’s rectum and vagina, the V died of septicaemia
- Accused was charged with constructive manslaughter which requires proof of an unlawful and dangerous act
Held
- Lawful consent
- Judge J withdrew the case from the jury as the activities were consensual, accidental and therefore lawful
- On grounds that there was no intentional purpose to inflict physical injury (merely an accident)
not guilty
What recent provision is there to note about consent to harm for sexual gratification?
Section 71 of the Domestic Abuse Act 2021 (only in houses)
- Changed consent to serious harm to sexual gratification (not longer a defence)
- So anything consented between husband and wife (used to be allowed) will no longer be allowed
Note
- Meaning R v Wilson would have been decided differently today
