Consent

Question 1

What type of defence is consent?

Answer 1

General defence most relevant to non-fatals, if successful it leads to an acquittal

Question 2

What can consent not be used as a defence for?

Answer 2

Murder - cannot consent to dying

Question 3

What is the leading case on the right to consent to death which is controversial in English criminal law?

Answer 3

Pretty v DPP 2002 - Diane Pretty, motor neurone disease wanted her husband to be able to assist her suicide, case went all the way to ECHR claiming that assisted suicide went against her human rights (Article 2 right for life, Article 3 prohibition of torture and Article 8 respect for family and private life) ECHR dismissed her appeal on all counts

Question 4

What can a person refuse to consent to?

Answer 4

Their own medical treatment, however a victim can consent to certain injury within limitations as the law accepts individuals should be independant and free to decide what their limits are

Question 5

What did Lord Lane state in Attorney-Generals Reference (No. 6 of 1980) 1981?

Answer 5

“It is not in the public interest that people should try and cause each other bodily harm”

Question 6

What must consent always be and what case shows this?

Answer 6

Informed consent (real), victim has to understand what they are consenting too
Burrell v Harmer 1967 - D tattooed two boys aged 12 and 13, arms became inflamed and painful and D convicted of ABH, tried to argue they had consented but COA said they would have not understood level of pain so consent here is not valid

Question 7

What 2 situations can consent be negated?

Answer 7

CONSENT OBTAINED BY FRAUD;
The identity of the person - R v Richardson 1998, dentist suspended from practise but carried on treating privately, she was convicted of ABH but argued they consented, COA said this is right as they did consent to treatment by HER
The nature and quality of D’s acts - R v Tabassum 2000, examined breasts of several woman as part of ‘medical research’ but in fact for own enjoyment. Upheld his conviction as women were only consenting for medical purposes

Question 8

What case shows the doctrine of informed consent has developed recently?

Answer 8

Rv Dica 2004 - D knew he was HIV positive and failed to tell woman, V had consented to sex but not to the risk of infection so was convicted of S.20 GBH
Court ruled that consenting to sex did not mean automatic consent to and incidental risk of injury/infection

Question 9

Where was the ruling followed from R v Dica 2004?

Answer 9

R v Konzani 2005 and Yaser 2008 where D pleaded guilty to GBH for recklessly transmitting hepatitis B

Question 10

What have the courts set limits on?

Answer 10

A persons right to harm themselves

Question 11

What do the courts try to balance with the defence of consent?

Answer 11

Seriousness of the harm consented too and the social usefulness, if any, of the activities involved

Question 12

What can a person consent too otherwise everyday life would be difficult?

Answer 12

Assault and battery - we all impliedly consent to jostling on the street, on the tube etc.

Question 13

What was said in Collins v Wilcock 1984 about consent in everyday life?

Answer 13

Most physical contacts of ordinary life are not actionable because they are impliedly consented to

Question 14

Why can the more serious injuries not be consented too?

Answer 14

As the situation falls into one of the accepted public policy exceptions recognised by the law

Question 15

What are some of the exceptions where one can consent to more serious injury?

Answer 15

Contact sports, surgery, horseplay, tattooing and branding, sexual activity (not sado-masochism) and haircuts

Question 16

When can a person consent to risk of injury within contact sports?

Answer 16

When the injury occurs within the rules of the game. ‘Bare-knuckle fighting is not allowed’ as confirmed i Attorney General’s Reference (no. 6 of 1980) 1981

Question 17

What happened in the case R v Billinghurst 1978?

Answer 17

D punched an opponent in the face in an off the ball incident in rugby match and fractured his jaw, convicted of S. 20 GBH
“Consent is only allowed in an on the ball incident or during the course of play”

Question 18

What happened in the case R v Barnes 2004?

Answer 18

D was convicted of S.20 GBH following a “late, unnecessary, reckless and high crashing tackle” but COA allowed his appeal as said prosecutions should only be brought against a player is conduct was “sufficiently grave to be properly categorised as criminal”
Contrasts with R v Moss 2000 as D could not use defence when he punched opponent in face, fractured eye socket - not part of the game

Question 19

What is wrong with the law on consent in horseplay nowadays?

Answer 19

Deliberate physical contact in school playground or elsewhere can be consented too, however this may be perceived as bullying as courts seem to have insisted on a lack of intention to cause injury in these circumstances

Question 20

What 2 cases are to do with horseplay and consent?

Answer 20

R v Jones and Others 1987 - threw boy in air by mates who ruptured spleen and broke his arm, defence accepted
R v Aitken and Others 1992 - RAF officers who set fire to V’s fire restraint suit in initiation ceremony, V was severely burned but convictions were quashed

Question 21

What is the leading case on consent being allowed in tattooing and branding?

Answer 21

R v Wilson 1997 - D branded wifes bottom with hot butter knife, conviction was quashed on grounds that she had consented and that this branding was similar to a tattoo

Question 22

Explain the case R v Slingsby 1995 to do with consent in sexual activity?

Answer 22

D had sex with V and accidentally scratched her with ring, suffered internal cuts and died of septicaemia, court held there was no assault as V consented, D was not convicted of unlawful act manslaughter

Question 23

What is the leading case on where the law draws the line when consenting to sexual activity?

Answer 23

R v Brown 1994 - 10 gay men engaging in acts of violence for sexual pleasure, everyone had consented and no-one complained to police, police discovered video tapes by accident and all were convicted of various offences under OAPA 1861, all appeals were rejected

Question 24

Why does the ruling in the case R v brown 1994 seem a good public policy?

Answer 24

As it does not allow for the defence to be used where it could be in violent relationships

Question 25

In the case R v Emmett 1999 the D was convicted, why?

Answer 25

Man convicted of ABH to his fiancee, he had suffocated her with plastic bag during sex causing internal bleeding and then poured lighter fluid on her breasts, even though she had consented he was convicted as it was deemed illegal for her to consent to such injury

Question 26

What does consent to surgery extend to?

Answer 26

Cosmetic surgery and sex-change operations where the results of the action can amount to wounding

Question 27

What is one of the evaluation points on consent and sexual activity?

Answer 27

It may be that the courts should not be responsible for policing sexual relations between consenting adults (as seen in Brown 1993 and Wilson 1996). There is speculation that there is some discrimination between homosexual and hetrosexual participants as there were different rulings in these cases

Question 28

What did dissenting judges Lord Mustill and Lord Slynn think a victim could consent to in sexual activity?

Answer 28

Could consent to ABH but not GBH as public policy considerations need to be taken into account

Question 29

What is a disadvantage of having consent of horseplay?

Answer 29

Might be seen as bullying, law is not consistent as there is a defence for horseplay resulting in serious injury but not in Brown and Emmett for sexual activity resulting in serious injury

Question 30

What is one of the main arguments to do with the defence of consent?

Answer 30

Arguments in favour of euthanasia and assisted suicide, cases like Pretty 2002 highlight how consent as a defence would be appropriate. In Purdy 2009 D asked if husband would be persecuted on return to UK when assisted suicide in another country, Director of Public Prosecution gave CPS some charging guidelines

Question 31

What problems are there with the defence of consent in sports?

Answer 31

It can be difficult to decide if it was inside or outside the game. Some sports (boxing) involve deliberate harm which is allowed and in other sports less than deliberate harm can amount to an offence - harsh?

Question 32

What is the 1 change the Law Commission proposed for consent in the “Consent in the Criminal Law” consultation paper in 1995?

Answer 32

That intentional or reckless causing of injury to another person short of the ‘serious disabling variety’ should not be criminal if the other person consented to it