Consent

Question 1

The defence of consent may apply,

Answer 1

a full defence which can be used for non fatal offences against the person, but not fatal offences.

Question 2

Here the offence committed by D is…

Answer 2

which is a non fatal offence, so consent may apply.

Question 3

the general rule is that it is

Answer 3

not in the public interest that people should cause each other bodily harm.

Question 4

However there are

Answer 4

exceptions when it is in the public interest to allow the defence of consent where bodily harm is caused, as set out in Attorney General’s Reference (No 6 of 1980).

Question 5

Examples are

Answer 5

reasonable surgical interference, male circumcision for religious purposes, lawful chastisement if reasonable, proportionate and not cruel under the Children Act 2004, and games and sports if properly conducted where injury takes place within the rules of the game, set out in Barnes. Street fighting is unlawful however, regardless of consent.

Question 6

In addition, there is

Answer 6

implied consent to ordinary ‘jostlings’ of everyday life where in theory a battery has taken place, set out in Wilson V Pringle, and to ‘rough horseplay’, meaning friendly violence, as in Jones.

Question 7

Consent can be given to the

Answer 7

risk of infection when having sex, but not if there is an intention to spread the infection, as in Dica.

Question 8

Consent however is not a defence to

Answer 8

sado-masochistic sexual activities, as in Brown, and in Emmett. However, consent could be a defence to such acts if considered to be ‘body adornment’ like tattoos and piercings, as in Wilson.

Question 9

Submission through fear is not

Answer 9

consent, as in Olugboja.

Question 10

Here D caused bodily harm to V, but

Answer 10

it may fall within the consent exception of games and sports properly conducted (not streetfighting) as the injury took place within the rules of…

Question 11

The consent must be

Answer 11

real, which means the victim must have knowledge of the relevant facts and there must be no deception, as in Tabassum, and in Dica.

Question 12

Here the consent of V was

Answer 12

real as he did have knowledge of the relevant facts because…

Question 13

A genuine mistaken belief that the

Answer 13

victim is consenting can be a defence, as in Aitken.

Question 14

Here although D was mistaken that V was consenting,

Answer 14

it was a genuine mistaken belief because… and so the defence of consent may still apply.

Question 15

To conclude,

Answer 15

the defence of consent may apply, so D may be found guilty.