Consent

Question 1

How does the defence of consent work?

Answer 1

The defendant pleads a defence by stating the victim consented to the act.

Question 2

What 2 factors are needed to prove consent?

Answer 2

-Can V consent to the crime?
-Did V really consent to the crime?

Question 3

Can consent be used as a defence for common assault (assault and battery)?

Answer 3

R v Slingsby- consent can be used as a defence for common assault. For example, in cases of battery, the force applied will not be unlawful because the victim consented to it

Question 4

Can consent be used as a defence to murder?

Answer 4

Pretty v UK- consent can never be used in relation to murder (would still be murder or assisted suicide).

Question 5

Can V consent to s18 OAPA 1861 (wounding or GBH with intent)?

Answer 5

R v Leach- consent can never be used as a defence to a crime under s18.

Question 6

What is the general rule for if V can consent to s47 (ABH) or s20 (wounding or GBH)?

Answer 6

R v Brown and others- consent generally cannot be used as a defence to a s20 charge or s47.

Question 7

What are the exceptions to the general rule in s20 and s47?

Answer 7

-Properly conducted games and sports
-Rough horseplay
-Tattooing/branding
-Medical treatment

Question 8

How does the exception of properly conducted games and sports work?

Answer 8

Injuries given during the course of the game can be consented to and taking part in sports may give implied consent to any injuries expected in that sport. However, causing intentional injury or doing something that goes beyond the rules or spirit of the game may not have true consent.

Question 9

How does the exception of rough horseplay work?

Answer 9

Horseplay means messing around and can only work if D doesn’t intend any harm. The case of Aitken shows that even D’s drunken and mistaken belief in V’s consent can be a defence to horseplay.

Question 10

How does the exception of tattooing/branding work?

Answer 10

R v Wilson- ‘personal adornments’ can be consented to by V.

Question 11

How does the exception of medical treatment work?

Answer 11

Things like surgery are valid situations to commit a crime like wounding, provided V has given true consent to the medical activity and knows the risks involved.

Question 12

What is not the same as consent?

Answer 12

R v Olugboja- mere submission is not enough to amount to consent.

Question 13

What 3 things must be considered for if V actually consented?

Answer 13

-V must be capable of giving consent (competent)
-V’s consent must be true/ real/ genuine
-Consent can be implied in some circumstances

Question 14

What is the test to determine if V is capable of consenting?

Answer 14

R v Gillick- a person has capacity to consent if they are ‘Gillick competent’.

This means that V must have sufficient maturity, intelligence and understanding of the nature and consequences of what they are consenting to.

Question 15

When might consent not be real/ true?

Answer 15

-If V’s consent has been obtained though being lied to/ fraud

-If V’s consent is not informed and they don’t know all the risks or consequences of D’s act

Question 16

Which case shows that if D lies to V this will negate V’s consent?

Answer 16

R v Newland

Question 17

What is meant by implied consent?

Answer 17

Wilson v Pringle- ordinary jostlings of everyday life are not a battery. V has given implied consent to them. For example, contact sports, crowded trains, busy shopping streets.

Question 18

What is EVAL point no1?

Answer 18

-CANT BE USED IF Q IS ABT NFO SPECIFICALLY-

The case of Pretty shows that you cannot consent to murder. This extends to cases of assisted suicide like Tony Nicklinson.

This is problematic because people like Nicklinson, who described his life as a waking nightmare, are forced to suffer and have a low quality of life. If V ended their own life, this death would not be unlawful. So when V is incapable of taking their own life but gives genuine consent , it seems wrong to say that death is then unlawful.

However, it would be dangerous to allow consent here because it can create situations where people abuse and manipulate people to give consent and this would be incredibly problematic.

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Question 19

What is EVAL point no2?

Answer 19

There are many lawful exceptions that allow consent for s47 and s20.

This flexibility is good because it would be absurd for things like surgery (ie wounding) and physical sports to never be allowed under any circumstances, especially because they can result in social good.

However, working out when something is a lawful activity such as valid horseplay or within the spirit of a sport is not always clear and this leads to complexity and uncertainty within the law.

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Question 20

What is EVAL point no3?

Answer 20

Some cases have been distinguished very unclearly.

For instance, in R v Brown, sadomasochistic acts was not granted the defence because the practise was considered ‘cruel’. However in R v Wilson, branding your wife was seen as acceptable.

It seems hard to justify that branding someone is less cruel than the acts in Brown. In fact, none of the participants in Brown needed medical attention, whereas the wife in Wilson did, suggesting that the branding is more dangerous adding to the illogicality in the decision.

However, there was a clear distinction between the two cases, which was the relationship between the parties and the purpose of the act. In Wilson, the harm was just incidental to the branding and was conducted by a married couple. Whereas in R v Brown, the harm was the purpose of the act and it was conducted by people not in formal relationships.

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Question 21

What is EVAL point no4?

Answer 21

R v Aitken shows that D can have a drunken and mistaken belief about V’s consent, so there is no need for consent to be genuine in these cases.

It seems hard to justify the fact that there doesn’t need to be valid consent in just one case. In R v Aitken, the V suffered very serious injuries as a result of being set on fire, which no reasonable person would consent to. This therefore results in people being able to conduct dangerous acts that V wouldn’t consent to.

However, the jury need to be convinced that D genuinely believed there was consent and that D didn’t intend any harm and therefore this can limit the rule being exploited.

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Question 22

What is EVAL point no5?

Answer 22

The law of consent is largely based on policy rather than facts of individual cases.

On the one hand this creates certainty and ensures the public are generally protected against consenting to things that the courts consider dangerous, like murder.

However, this can lead to injustice in individual cases, especially where V truly was willing to engage in the activity, like in R v Brown.

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