Consent

Question 1

Collins v Wilcock

Answer 1

People are taken to impliedly consent to the physical contacts of ordinary life.

Bumping into someone by mistake…tapping on someone’s shoulder to get their attention

Prevents too many useless cases from going to court

Question 2

1. Consent must be VALID

Burrell v Harmer

Answer 2

• consent of the victim to the harm only valid if they understood the nature of the act and know exactly what they are consenting to. Must also have capacity to consent.

Question 3

Gillick vs west norfolk

Answer 3

• If girls were considered to be competent in that they understood and were capable of giving valid consent.

Gillick competence

Question 4

The mental capacity act 2007

Answer 4

Anyone who comes under this act cannot consent, their consent not valid

• can’t understand info about decision
• can’t retain info
• can’t use or weigh info to make decision
• can’t communicate decision

Question 5

2. Consent must be INFORMED

R v Dica

Answer 5

The V must be informed as to the identity of D and nature and quality of their act

Question 6

Fraud and Consent

R v Richardson

Answer 6

Fraud will only invalidate consent if the V is deceived as to the identity of the D or the nature and quality of their act.

(So gaining consent by fraud does not always make consent invalid.)

Question 7

3. General Rule: cannot consent to ABH to GBH injuries

A-G ref No 6 1981

Answer 7

A person cannot consent to fist fights resulting in ABH or greater harm

Question 8

Exceptions to rule 3 (surgery)

Answer 8

Doctors are protected by the defence on consent. Patient allowed to consent for this as its for their own benefit.

Question 9

Exception of rule 3 (tattoo)

Answer 9

Adults can consent to it (R v wilson)

Question 10

Exception to rule 3 (sports)

R v Billinghurst

Answer 10

Participants can consent to injuries during course of the game. However injury must stay within the rules of the game (Judges decide –> biased?)

Question 11

Exception to rule 3 (boxing)

Answer 11

Participants can consent, as long as it is held at a licensed place, with a trained referee, proper boxing ring and equipment and is managed efficiently

Question 12

Exception to rule 3 (horseplay)

R v Jones

Answer 12

If D had genuine belief that the V had consented then they should be allowed the defence (even if it was not actually stated)

Question 13

Sexual acts

R v Brown and others

Answer 13

Sexual acts that can result in injury can be consented however sadomasochistic acts that caus injury cannot rely on the defence

Question 14

Mistaken consent

R v morgan

Answer 14

If someone is mistaken as to the consent and they honestly believe it is real consent, the defence is allowed

Question 15

R v Wilson

Answer 15

Decision in R v brown (to not allow defence) was not followed for this case.

Eva: courts biased as this is a heterosexual couple and did not want to get involved as it should be “private” unlike in brown where it was homosexual

Question 16

Irrational distinction

Answer 16

In brown, the defence of consent to ABH and GBH caused by sexual activities was denied. In wilson consent was allowed as defence to ABH. One could argue that the only real difference was the sexual preferences of the parties, the decision was discriminatory.

Question 17

Euthanasia

Answer 17

Consent cannot be a defence for murder and some argue this is wrong, if it prolongs the suffering of terminally ill patients. Other countries have allowed consent to be a defence for euthanasia -> gives patients and their families the autonomy to live their life. Some may not see it as fair that the UK does not allow it. However, allowing it would mean people can abuse the defence of consent for murder, could lead to immoral deaths that that could be saved had they just gone for medical care (instead of asking for death)

Question 18

Laws on fraudulent consent is uncertain

Answer 18

Law in this area does not allow the defence to succeed if a D has lied about nature/quality of their act or identity.

Judges have shown inconsistencies when it comes to fraud used to gain consent.

Tabassum was not allowed the defence. However Richarson did (even tho she also hid her identity technically –> hid the fact she was struck off as a dentist).

Illogical and goes against meaning of fraud. Lack of certainty makes it difficult for Lawyers to advise their clients.