Consent Flashcards
Introduction
Someone accused of an offence may defend their actions by saying that they
had the complainant’s consent to do what they did.
In some cases the fact that the complainant consented to the act is a complete
defence. In offences against the person or property the general rule is that
acts are criminal only when they are done against the will of the person
affected or the owner of the property concerned.
If a person agrees to physical contact or consents to an appropriation of
property or is willing that his property be destroyed or damaged, there is no
offence of assault, theft or criminal damage. Halsbury’s Laws of England,
4th edition, para 23
Exceptions
Consent must be understood and given voluntarily.
‘Consent’ is a person’s conscious and voluntary agreement to something
desired or proposed by another
In R v Cox44 the Court found that consent must be “full, voluntary, free and
informed … freely and voluntarily given by a person in a position to form a
rational judgment.”
Further to this, the Court in R v Cook45 found that to be effective, consent
must be “real, genuine or true consent, and may be conveyed by words or
conduct or both”.
Criminality
If the act itself is criminal, it cannot be made lawful merely because the
person whom it will harm consents to it. No person can licence another to
commit a crime, and so in such cases it is not necessary for you to prove that
there was no consent.
Sections excluding consent as defence
A number of sections in the Crimes Act 1961 – in particular, those relating
to indecency – specifically exclude consent as a defence. A notable example
of these exceptions is consent to death (s63).
Assault
Many acts that are harmless and lawful in normal circumstances can become
unlawful if they are done without the consent of the person who will be
affected by them. For example, if you kiss someone with their consent it is
an innocent act of affection, but if you kiss someone without their consent it
can be seen as an assault. Consequently, defining assault can be complex.
The following are a set of guidelines to consent regarding assault.
Guidelines
- Everyone has a right to consent to a surgical operation.
- Everyone has a right to consent to the infliction of force not involving
bodily harm. - No one has a right to consent to their death or injury likely to cause
death. - No one has a right to consent to bodily harm in such a manner as to
amount to a breach of the peace, or in a prize fight or other exhibition
calculated to collect together disorderly persons. - It is uncertain to what extent any person has a right to consent to their
being put in danger of death or bodily harm by the act of another.
Burden of proof
In R v Nazif46 the Court reaffirmed that it is always up to the prosecution to
prove that someone did not consent but it appears that this onus only arises if
there is evidence from which consent can reasonably be inferred.
Summary
- Compulsion or duress is a defence when a person acts solely as a result
of threats. - The threats must operate on the person’s mind at the time of the offence
and he or she must genuinely believe them. - The threat must be immediate from a person present at the offence.
- Compulsion or duress is not a defence to specific offences listed in the
Crimes Act 1961. - An honest belief is a defence except when there is a statutory provision
to establish reasonable grounds. - Entrapment is rejected as a defence and instead the judge will rule on the
fairness or unfairness of the evidence. - Self-defence as a defence depends on the defendant’s subjective view of
the circumstances and the court’s view of whether the force was
reasonable. - An alibi defence requires written notice within 10 working days after an
defendant has been given notice under section 20. - An alibi requires evidence of both time and place.
- A defence of consent requires that the act that is consented to is
understood and that consent is given voluntarily. - Some sections of the Crimes Act 1961 specifically exclude consent as a
defence.
