Consent

Question 1

How is it limited as a defence and what can it be used for?

Answer 1

Limited use as a defence – argued it is not a defence as such.
Can be used in cases of assault, battery and sometimes ABH, where there is no serious injury caused.

Question 2

If consent is present then? Case law too.

Answer 2

If consent is present, there is no offence – R v Donovan [1934]

Question 3

Can it apply in situations which relate to unlawful act manslaughter? Case law.

Answer 3

Yes but if consent present, no offence.

R v Slingsby (1995).

Question 4

Statutory defence of consent in relation to Sexual Offences Act 2003 is?

Give case law.

Answer 4

Age of consent.

Law relating to statutory
rape – R v G

Question 5

Statutory defence of consent in relation to Sexual Offences Act 2003 is?

Give case law.

Answer 5

Age of consent.

Law relating to statutory
rape – R v G

Question 6

For the defence to be allowed the victim must know what it is they are? (informed consent)

Answer 6

Consenting to.

Question 7

R v Clarence (1888)

Answer 7

Consent to sexual activity also involved consent to any incidental risk of injury or illness that the victim may be unaware of.

Question 8

R v Dica [2004] confirmed what and what confirmed Dica?

Answer 8

R v Dica [2004] where the court confirmed the ruling in Clarence was wrong.
Dica was confirmed in R v Konzani [2005].

Question 9

The concept of true consent stretches to cases where consent is obtained fraudulently.

Consent will not be valid if the defendant lied about the nature and quality of their act.

Answer 9

R v Tabassum [2000]

Question 10

The fact that the victim submits to the defendant’s conduct through fear does not mean the consent is real. This element considers both express and implied consent.

Answer 10

R v Olugboja [1982]

Question 11

What did R v Olugboja [1982] say? Give case law. Relating to the areas around this case. Sport? Life?

Answer 11

Genuine implied consent allows consent as a defence in areas such as contact sports, as long as the contact is within the rules of the game.
Ordinary ‘jostling of life’ would also imply consent – Wilson v Pringle (1987)

Question 12

When do people not have the capacity to consent?

Answer 12

Mental health; or
Age.

Question 13

Certain offences under the Sexual Offences Act 2003 do not allow the defence of consent.
What are they?

Answer 13

S. 5 – statutory rape of a minor under the age of 13.
R v G [2008]

Question 14

What are the issues relating to capacity to consent to medical treatment?

Answer 14

Parents can give consent n behalf of a child or incompetent adult.

Question 15

What does the ruling in Re MB (Caesarean Section) [1997] say?

The two areas.

Answer 15

A person will lack capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent. Such an inability to make a decision will occur where a person is unable to:

Comprehend and retain information which is material to the decision, especially as to the likely consequences of having or not having medical treatment; and

Use the information and weigh it in the balance as part of the process of arriving to the decision.

Question 16

Can a child can give their own consent if they reach a sufficient understanding and intelligence to enable them to understand fully what is going on? Give case law.

Answer 16

Yes! Gillick v West Norfolk & Wisbeck Area Health Authority [1986]

Question 17

The courts will asses what regarding the harm?

Answer 17

Nature and degree of harm consented to.

Question 18

Will consent be allowed if the injuries are not serious?

Answer 18

Usually.

Question 19

When is consent injury only available, give a case.

Answer 19

Only available under S. 47 OAPA 1861 in limited situations.
Attorney-General’s Reference (No. 6 of 1980) [1981]

Question 20

What are the rules around public policy?

Answer 20

It is generally seen as being in the public interest to allow a defence of consent under these situations (will be discussed).

Question 21

What is the general rule on contact sports?

Answer 21

In contact sports there is a general acceptance that some form of injury may occur and therefore consent would be applicable in those circumstances.
If the actions go beyond what is allowed in the rules then it is possible for an offence to be committed.

Question 22

R v Barnes (2004) (sport)

Answer 22

The defendant made a late tackle on the victim during an amateur football match. The victim suffered a serious leg injury. The conviction was quashed as it was not classed as being ‘significantly grave.’

Question 23

When will a injury become criminal?

Answer 23

A criminal prosecution will be reserved for situations where the conduct was sufficiently grave to be properly categorised as criminal.
Depends on the type of sport played, the degree of force used, the risk involved and the defendant’s state of mind at the time of the incident.

Question 24

R v Moss (2000) (sport)

Answer 24

The defendant was playing rugby when he punched the opponent in the face, fracturing his eye socket. Held to be above and beyond what was acceptable within the rules of the sport.

Question 25

What is the rules on body adornment?

Answer 25

Tattooing and body piercing is seen as acceptable under public policy interests.
It is also accepted that a husband can adorn his wife as long as the wife consents and there is no aggressive intent.

Question 26

Give a case for body adornment.

Answer 26

R v Wilson (1996)

Question 27

What are the rules on horseplay?

Answer 27

The defence of consent has been allowed where serious injuries occur following what is described as ‘rough and undisciplined horseplay’ – others may call it bullying.

Question 28

Give a case for horseplay.

Answer 28

R v Jones (1986)

Question 29

What are the rules on mistaken belief in consent?

Answer 29

Where the defendant genuinely, but mistakenly, believes that the victim is consenting, then the defence of consent is available for assault.
Left to the jury to determine whether there is a mistaken belief as to the victim’s consent.

Question 30

Give a case for mistaken belief.

Answer 30

R v Aitken (1992)

Question 31

Drunken mistake may be a defence if proved? Give case law.

Answer 31

that the victim would have consented to the horseplay: R v Richardson and Irwin (1999)