Consent Flashcards
What is the general rule of consent?
People are said to impliedly consent to the ‘jostle of everyday life’ - Collins v. Wilcock.
Can ABH and GBH be consented to?
No (unless under one of the exceptions).
What did Gillick v. West Norfolk HA establish?
A child is said to be competent to consent to treatment if they agree with the doctor’s proposals.
What does the Mental Capacity Act 2007 state?
A person is unable to consent if they cannot understand, weigh or retain the information or cannot communicate their decision.
List the exceptions where consenting to ABH and GBH is possible.
1) . Surgery
2) . Tattooing (extended to branding in R v. Wilson)
3) .Dangerous pursuits (Law Commissions report, ‘Consent and Offences Against the Person’ (1993))
4) . Boxing - provided it is played within the Queensbury Rules
5) . Sport - R v. Barnes - the level of the sport and any mens rea
6) . Horseplay - R v. Aitken
List the occasions when ABH and GBH cannot be consented to.
Bare-knuckle fighting - Attorney General’s Reference No. 6 of 1980.
Sexual acts of a sadomasochistic nature - R v. Brown and Others
When will fraudulently acquired consent prevent the defence?
If the nature of the act and the identity of the D. have been deceived as seen in R v. Tabassum. However, in R v. Richardson, the nature fo the act had not be fraudulently used.
Who is the burden on and what do they have to prove?
The prosecution to prove, beyond all reasonable doubt, the defence does not apply.
Give 2 advantages of consent.
1) . Consent must be valid as only those of an appropriate age and cognition can provide consent - however, there is a grey area as to when a child is ‘Gillick competent’ - though the Mental Capacity Act 2007 has worked to clarify the law regarding mental illness and consent - excellent parliamentary drafting as it was created by medics using medical parlance.
2) . Deception on the part of the D. will invalidate the consent - R v. Tabassum is justified as to allow consent would be to allow sexual assault - R v. Richardson deserves laudation as there was no deception as to the nature of the act - though decision to be classed as ‘trespass against the person’ has received criticism.
Give two disadvantages of the law of consent.
1) . The decisions made are from a particular age and social grade as judges are notoriously ethnocentric thus their decisions reflect these views - e.g. R v. Brown and others - criticised for demonstrating the anachronistic nature of judges - Lord Jauncey makes a viable suggestion to let Parliament legislate on the matter - using electoral mandate.
2) . Said to be ambivalent due to the hypocritical judgements in different cases e.g. Lord Templeman branding S+M as ‘unpredictably dangerous’ whereas in R v. Aitken - GBH by jet engine was acceptable - only adds to the uncertainty of the law and questions judges’ stances on homosexuality.