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
Can consent to infliction of physical injury possible?
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
- Sports
- Horseplay
- Surgery
- 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 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)
Is consensual fighting lawful?
What are the 2 cases for this?
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)
Held - Lord Lane CJ
“Nothing which we have said is intended to cast doubt
Can sports with physical harm be consented to?
What are the 2 cases for this?
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.’
Can horseplay be consented to?
What are 3 cases for this?
- Griffin (1869)
- Aitken (1992)
- Jones and Others
Jones and Others
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?)
Can surgery be consented to?
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
What case talks about consent to surgery for body alteration?
R v BM [2018]
R v BM [2018]
surgery
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
Can sexual gratification be consented to?
What are the 3 cases for this?
- R v Donovan (1934)
- R v Brown (1993)
- c/f R v Slingsby (1995)
R v Brown (1993)
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
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
c/f 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)
