Consent

Question 1

R v Olugboja

Answer 1

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.

Question 2

4 General principles to consider regarding consent:

1. Capacity to consent

Answer 2

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.

Question 3

Gillick v West Norfolk and Wisbech Health Authority

Answer 3

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.

Question 4

2. Informed consent

Answer 4

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.

Question 5

Dica

Answer 5

V not aware of D being HIV positive, so did not give consent.

Question 6

3. Genuine consent

Answer 6

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.

Question 7

Tabassum

Answer 7

Consent does not exist if V is consenting to something different to what is being done.

Question 8

R v McNally

Answer 8

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.

Question 9

Implied consent

Answer 9

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.

Question 10

Wilson v Pringle

Answer 10

Ordinary jostlings of everyday life will not count as batteries as V is assumed to give implied consent.

Question 11

Common assault

Answer 11

Consent CAN be used.

Slingsby - D acquitted on basis of V’s consent. The ‘unlawful’ force is missing from the battery.

Question 12

Murder

Answer 12

Can NEVER be used in relation.

Pretty v UK - Court refused to grant permission for assisted suicide.

Question 13

S18 OAPA 1861

Answer 13

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.

Question 14

S47 ABH

Answer 14

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

Question 15

S20 OAPA 1861

Answer 15

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

Question 16

Exceptions to general rule in S20 and S47

Answer 16

Following cases illustrate exceptions/ lawful activities where V’s consent CAN act as a defence for D in certain circumstances.

Question 17

Properly conducted games and sports

Answer 17

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

Question 18

Rough Horseplay

Answer 18

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.

Question 19

Aitken

Answer 19

Even D’s drunken and mistaken belief in V’s consent can be a defence in horseplay.

Question 20

Tattooing and Branding

Answer 20

Wilson - D acquitted as D were husband and wife.