Consent Flashcards
- The defence of consent may apply…
The defence of consent may apply, a full defence which can be used for non fatal offences against the person, but not to fatal offences.
Here [eg. the offence committed by D is…….which is a non fatal offence, so consent may apply].
- The general rule is that it is not…
The general rule is that it is not in the public interest that people should cause each other bodily harm.
- However there are exceptions when it is in the public interest to allow the defence of consent where bodily harm is caused…
However there are exceptions when it is in the public interest to allow the defence of consent where bodily harm is caused, (AGs Ref (No 6 of 1980)
Examples are 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 the injury takes place within the rules of the game,(Barnes)
Street Fighting is unlawful however, regardless of consent.
- In addition, there is implied consent to ordinary ‘jostlings’ of everyday life…
In addition, there is implied consent to ordinary ‘jostlings’ of everyday life where in theory a battery has taken place, (Wilson v Pringle), and to ‘rough horseplay’, meaning friendly violence, (Jones).
- Consent can be given to the risk of infection…
Consent can be given to the risk of infection when having sex, but not if there is an intention to spread the infection, (Dica).
- Consent is not a defence to…
Consent is not a defence to sado-masochistic sexual activities, (Brown, Emmett). However, consent could be a defence to such acts if considered to be ‘body adornment’ like tattoos and piercings, (Wilson), but not to procedures such as “tongue splitting”, (R v BM).
- Submission through…
Submission through fear is not consent, as in Olugboja.
Here…
NB – if it is decided that V cannot consent, do not continue to apply.
- The consent must be real, which means…
The consent must be real, which means the victim must have knowledge of the relevant facts and there must be no deception, (Tabassum, and in Dica).
A genuine mistaken belief…
A genuine mistaken belief that the victim is consenting can be a defence,** (Aitken).**
IF RELEVANT: Here [eg. although D was mistaken that V was consenting, it was a genuine mistaken belief because………………. and so the defence of consent may still apply].
- Children under 16…
Children under 16 must be held to be “Gillick-competent” to give effective consent.
IF RELEVANT: Here [eg. Although V was 15, he was able to fully understand the outcome of the procedure, and so D will have a defence.]
To Conclude…
To conclude, the defence of consent may apply, so D may be found not guilty.
