Consent Flashcards

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1
Q

What is the general rule of consent?

A

People are said to impliedly consent to the ‘jostle of everyday life’ - Collins v. Wilcock.

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2
Q

Can ABH and GBH be consented to?

A

No (unless under one of the exceptions).

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3
Q

What did Gillick v. West Norfolk HA establish?

A

A child is said to be competent to consent to treatment if they agree with the doctor’s proposals.

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4
Q

What does the Mental Capacity Act 2007 state?

A

A person is unable to consent if they cannot understand, weigh or retain the information or cannot communicate their decision.

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5
Q

List the exceptions where consenting to ABH and GBH is possible.

A

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

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6
Q

List the occasions when ABH and GBH cannot be consented to.

A

Bare-knuckle fighting - Attorney General’s Reference No. 6 of 1980.
Sexual acts of a sadomasochistic nature - R v. Brown and Others

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7
Q

When will fraudulently acquired consent prevent the defence?

A

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.

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8
Q

Who is the burden on and what do they have to prove?

A

The prosecution to prove, beyond all reasonable doubt, the defence does not apply.

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9
Q

Give 2 advantages of consent.

A

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.

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10
Q

Give two disadvantages of the law of consent.

A

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.

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