Consent Flashcards
What defence is consent?
Common law
What happened in Slingsby?
D and V took part in sexual activities. The signet ring D was wearing caused small internal cuts to V’s vagina which led to blood poisoning from which she died. V’s consent meant that there was no battery of any other offence as there was no unlawful act
How much of a defence does consent provide?
Complete defence
What happened in Slingsby?
D and V took part in “Vigorous” sexual activity. The signet ring D was wearing caused small internal cuts to V’s vagina which led to blood positioning and V dying. V consented to the act therefore D was not guilty as there was no unlawful act.
How does the defence of Consent work?
Having V’s consent prevents D incurring liability for what would otherwise be an offence as it negates the unlawfulness of the “force” used.
What does Pretty v Uk confirm ?
Consent is not a defence to murder
(The HL and the EctHR both refused to permit Mrs Petty to willingly did at the hands of her husband)
For consent to be valid what must the activity have ?
Social Utility
(The law approves of certain activities as it recognises that they have a “public benefit” and thus individuals should be able to consent to the contact that comes with the activity, even though the harm may be serious)
In some circumstances when is it not necessary to give implied consent?
-everyday jostles
Lord Goff confirmed this in his comments in Collins v Wilcock “most of the physical contacts of ordinary life are not acceptable because they are impliedly consented”
State the procedure of consent
Raised by D on the evidential burden and the prosecution (burden of proof) must show a lack of consent
What is the laws view on consent?
it must be “genuine consent”
it must be true and valid which is only possible if V fully understands the nature of the act and has the capacity to consent
What is the case that highlights that true consent means the V must not only fully understand the nature of the act but also the capacity?
Burrell
D was convicted of ABH after tattooing two boys aged 12 and 13. There was no valid consent as they did not have the capacity to consent legally.
What is the laws view in relation to fear and consent?
Where V submits to Ds conduct through fear, this does not mean they have consented
What case confirms that submitting due to fear is not consent?
Olugboja
(V had already been raped by D1, D2 then took victim into room and told her to remove her trousers, she complied. D2 tried to claim consented, CA rejected claim, stating that there is a difference between real consent and submission)
What is the laws view in regards to fraud and consent?
Does not necessarily negate consent. It only does so if it deceives V as to the “identity” of D or the “nature (what) and quality (why)
What happened in the case of Richardson?
Despite being suspended, D continued to treat patients and was convicted of ABH. The CA quashed her conviction and held that fraud only negates consent if V was deceived as to the “identity of the person” or the “nature and quality” . D was doing neither, instead just continuing her work
What happened in Newland?
D created an online persona and deceived a friend for 2 years about their identity. Charged with identity fraud.
What was significant about the case of Tabassum?
CA distinguished the precedent of Richardson by drawing a distinction between consent as to the “nature” of the consent as to its “quality”
D was examining women’s breast claiming it was for medical research. It was held that the women consented to the “nature” of the act (the touching) but were only consenting for medical purposes and thus had been deceived as to the “quality” of the act
What is the laws view on informed consent?
Valid consent requires V to be fully formed of what exactly they are consenting to.
What case supports the concept of informed consent?
Dica (D was diagnosed with HIV however failed to inform his sexual partners who had unprotected sex with him, the V’s had not consented to the risk of getting HIV.
What is the laws view on scope of consent?
-we can inflict whatever harm on our own bodies, however there are limits to someone’s consent to the infliction of harm at the hands of another
-However we can consent to a much higher risk of death if it is for the social utility and therefore justified. As the degree of potential harm is balanced against the value of the activity
What case came up with a “recognised exception list” where the social utility outweighs the risk of harm?
AG’s reference (No 6 of 1980)
“accept the legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference and dangerous exhibits etc”
What justifies the recognised exception of contact sports?
The entertainment value and popularity of the sport justifies V’s consent
What did the case Coney confirm?
Confirmed that any fights outside of official rules so called “prize fights” are not covered by this exception.
Ds were prosecuted following bare-knuckle fist fights.
What was confirmed in the New Zeland case of Lee?
Made the distinction between lawful boxing matches and street fighting as that “organised matches…. are properly matched by weight and skill level and the rules are designed to minimise the risk of GBH”
What is the difference between “on the ball” and “off the ball”?
On the ball= players consented to D doing what the rules of the sport permitted and therefore consent is available
Off the Ball= the deliberate use of unlawful force, therefore consent is unavailable
What happened in the case of Barnes?
On the ball incident involving a tackle where V suffered a serious leg injury, CA quashed conviction
What happened in the case of Billinghurst?
Off the ball incident= consent not available
D punched V on Rugby field in a rugby match. D tries to argue that v consented, however trial judge convicted on the basis that the D had gone beyond to what V was consenting too.
What is the eyes law on dangerous exhibits and state an example
The field of entertainment allows for some harm however there are some clear limits
e.g Leach (V had arranged to be crucified and nailed to a wooden cross, D’s convicted of S.18 as not regarded as “socially beneficial”)
What is the laws view on surgery in regards to consent?
Surgeons incur no liability for recognised invasive surgical procedures as consent makes the contact lawful as the operations are necessary for the benefit of the patient, if same action performed by anyone else it would be a S.18. However if D has deceived V to what they are doing it is an offence
e.g Bramhall (doctor branding initials on the liver of patients, consent was negated by fraud as to the nature of the action)
e.g Paterson (doctor convicted of S.18 after exaggerating or faking cancer diagnoses to carry out unnecessary surgeries, V’s consent was negated by fraud as to the quality of the action)
What is horseplay defined as in Donovan?
“rough and undisciplined play where there is no anger and no intention to cause bodily harm”
What is the laws view on horseplay?
Courts appear to be remarkable tolerant, generally excepts that life may involve a mutal risk of deliberate physical contact and that the criminal law should distance itself
An honest belief that the other person is consenting even based on unreasonable grounds will often excuse behaviour
What happened in the case of Aitken and Others?
During celebrations, D’s poured spirit on other officers who were wearing fire resistant suits before igniting them. They had done this before, however V suffered serious burns. However, S.20 convictions quashed, due to considered horseplay
What happened in the case of R v P?
16 year old boy threw fellow pupil in river as a joke resulting in V’s death. Tried to argue practical joke however, there could have been no genuine belief that the victim was consenting as he was physically struggling, and others witnessed his lack of consent. = No horseplay
What is the laws view on chastisement?
Under common law reasonable force has always be allowed as long as it is for the purposes of correction not because of less on temper
However, S,58 Children Act 2004 significantly reduced the application of this and is only lawful if it amount to battery
What law restricted the use of chastisement for correction of children?
S.58 Children Act 2004
What occurred in A v UK?
The ECtHR found that beating a young boy with a garden cane by his stepfather contributed to inhuman or degrading treatment (article 3) and that the domestic laws failed to provide adequate protection. Stepfather relied on reasonable chastisement and found not guilty. ECtHR ordered the government to pay the boy £10,000 damages and his legal costs and the law was subsequently tightened
What is the laws view on tattooing, branding, scarification?
Consent is a defence providing D has capacity to consent
What happened in the case of Wilson?
D branded his initials on his wife’s buttocks, at her request. Consent was found as an adequate defence as considered akin to consenting to a tattoo.
What is the laws view on body modification and state an example?
McCarthy (Body modification artists pleaded to S.18 GBH after performing body modification including tongue splitting, V’s all have written consent. However, the court placed body modification as illegal, therefore no one legally has the capacity to consent to it)
What is the law regarding sexual activity?
Consent = valid defence however depends upon the degree of potential harm and the age of participants
Law allows for vigorous sexual activity as long as no intention to cause injury and that it was entirely consensual e.g Slingsby
What is the law on Sado-Masochism?
=regarded as beyond acceptable limits
the law does not tolerate the idea of deliberately inflicting injuries for the sexual gratification pf either party
confirmed in the case of Brown
(5 men took part in violent acts against each other for sexual pleasure , varies men charged S.47 and S.20. CA upheld convictions due to the concept that “participants have no way of foretelling the degree of bodily harm which will result from their encounter”
Consent= not available
What happened in Brown v Uk?
Tried to argue that went against right to respect for private and family life (article 8 (1)) however the courts applied (article 8(2)) that allows for justified inferences by the state if necessary in a democratic society for the protection of health and morals
What happened in the case of Wilson?
CA distinguished between Brown and Wilson, noting that in Wilson the physical torture had no aggressive intent and was more akin to the act of tattooing or piercing.
What was decided in the case of Emmet?
Consent was not valid defence because the degree of actual and potential harm was such “ as to make it a proper cause for the criminal law to intervene”
What act placed the ruling from Brown into statutory form?
S.71 Domestic Abuse Act 2021
(Confirms that a person is unable to consent to harm that results in ABH or other serious injury for the purposes of obtaining sexual gratification)
