Consent Flashcards
R v Olugboja
Dunn LJ said: “The jury should be directed that consent, or the absence of it, is to be given its ordinary meaning if need be, by way of example , that there is a difference between consent and submission; every consent involves a submission, but by no means follows that a mere submission involves consent”
Fear and submission are not the same as consent.
4 General principles to consider regarding consent:
1. Capacity to consent
In order for any consent to be valid, the person giving consent must have the ability to do so.
Someone who is intoxicated or has mental problems cannot give consent.
Gillick v West Norfolk and Wisbech Health Authority
A person has a capacity to consent if they are Gillick - competent. This means that V must have sufficient intelligence and understanding of the nature and consequences of what they are consenting to.
- Informed consent
For consent to be valid, it must be informed. This means that V must know of all the risks and possible consequences from D’s act.
Dica
V not aware of D being HIV positive, so did not give consent.
- Genuine consent
For consent to be valid, it must be genuine consent i.e true/ real. This means V must be consenting to what D is actually doing.
Tabassum
Consent does not exist if V is consenting to something different to what is being done.
R v McNally
If D lies to V/ Deceives V about his/her identity - this will negate V’s consent.
V was consenting to sexual acts with a boy, not a girl.
Implied consent
In most cases, V will be giving express consent. However, there are some situation where the law allows for implied consent to be given.
There are instances of everyday touching to which the courts assume a person gives implied consent.
Wilson v Pringle
Ordinary jostlings of everyday life will not count as batteries as V is assumed to give implied consent.
Common assault
Consent CAN be used.
Slingsby - D acquitted on basis of V’s consent. The ‘unlawful’ force is missing from the battery.
Murder
Can NEVER be used in relation.
Pretty v UK - Court refused to grant permission for assisted suicide.
S18 OAPA 1861
Can NEVER be used in relation.
Leach - The crime was too serious and had no social benefit. V wasn’t allowed to consent to Ds crucifying him.
S47 ABH
Consent CANNOT GENERALLY be used.
Att. Gen’s reference (No 6 of 1980) - Generally, consent cannot be used for S47 as it is not in the public interest that people should try to cause others injury for no good reason.
Exceptions:
- Contact sports
- Surgical operations
- Someone being arrested/ lawful chastisement
- Dangerous exhibitons
S20 OAPA 1861
Consent CANNOT GENERALLY be used.
Brown and Others - Consent will not be a defence to crime under s20 as it is not in the public interest that people should try to cause others injury for no good reason.
Exceptions:
- Male circumcision
- Tattooing/ Branding
- Piercing
- Violent sports
Exceptions to general rule in S20 and S47
Following cases illustrate exceptions/ lawful activities where V’s consent CAN act as a defence for D in certain circumstances.
Properly conducted games and sports
Barnes - Criminal procedures should be reserved for those situations where the conduct was sufficiently grave properly to be categorised as criminal.
Court set out guidelines to help set out if conduct was criminal:
- Intention infliction of an injury: ALWAYS criminal
- Reckless infliction of injury: Depends
- ‘Off the ball’ injury: more likely to be criminal
- Injury incurred within rules and practice of the game: probably not criminal
Rough Horseplay
Jones and others - V’s consent (and D’s honest belief in that consent) to ‘rough and undisciplined play’ could provide a defence as long as there was no intention to cause injury.
Aitken
Even D’s drunken and mistaken belief in V’s consent can be a defence in horseplay.
Tattooing and Branding
Wilson - D acquitted as D were husband and wife.
