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A2 Law > Consent > Flashcards

Consent Flashcards

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1
Q

What type of defence is consent?

A

General defence
Most relevant in non-fatals
If successful, lead to acquittal

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2
Q

What can the defence of consent not be used for?

A

Euthanasia

Murder - cannot consent to death

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3
Q

What is a controversial case involving the right to consent to death in English criminal law?
Describe the case

A 
Pretty v DPP (2002)
Pretty and motor neurone disease
Wanted husband to assist her suicide
Took case to ECtHR: offence of assisting suicide = against her human rights (Art 2, 3, 9)
ECtHR dismissed her appeal on all counts
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4
Q

Pretty claimed that the offence of assisted suicide was against her HR, name 3…

A
  1. Art 2 - right to life (claimed should also cover right to end life)
  2. Art 3 - prohibition of torture (denying her the right to die amounted to torture)
  3. Art 9 - freedom of thought + conscience (she believed in assisted suicide, should be able to manifest her beliefs)
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5
Q

Can a person refuse to consent to their own medical treatment?

A

Yes

Blaue (1975), Jehova witness

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6
Q

Can people consent to harm?

A

Up to a certain degree injury, with certain limitations

Law accepts that individuals should be independent + free to decide what to do BUT = limits; public policy

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7
Q

What did Lord Lane state in AG’s Ref (No 6 of 1980) (1981)?

A

‘It is not in the public interest that people should try to cause each other bodily harm’

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8
Q

What must consent always be?

What case shows this?

A

Informed (real) consent
V has to understand what they = consenting to
Particularly relevant for children + people with mental disabilities
Burrell v Harmer (1967)

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9
Q

Burrell v Harmer (1967)

A

D tattooed 2 boys (12 + 13)
Arms became inflamed + painful
D convicted of ABH, tired to argue they consented
Divisional Ct held, no consent; didn’t understand nature of the act
Wouldn’t have understood the level of pain involved

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10
Q

What are the 2 where consent can be negated?

A

Consent obtained by fraud where the V is deceived as to:

  1. ID of the person (R v Richardson)
  2. Nature + quality of the D’s acts (R v Tabassum)
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11
Q

R v Richardson

A

Dentist suspended from practice but carried on treating her patients
Convicted of ABH
Prosecution argued, patients wouldn’t have consented had they known she wasn’t supposed to practice
CA allowed her appeal; they consented to treatment from HER, irrelevant that they might not have if they knew the truth

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12
Q

R v Tabassum

A

Examined breasts of several women, telling them = part of medical research
Actually doing it for own enjoyment
Argued they had consented
CA upheld convictions under Sexual Offences Act 2003
Women = only consenting for medical purposes, been deceived as to the ‘quality’ of the act

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13
Q

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

A

R v Dica (2004)
D knew = HIV +ve and had sex with 2 women who were unaware
V’s c
had consented to sex, but wouldn’t have done if knew risk of infection
Cts ruled that consenting sex didn’t automatically mean consent to any incidents risk of injury/ infection

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14
Q

What have the courts set limits on?

A

A person’s right to harm themselves

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15
Q

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

A

Between the seriousness of the harm consented to + the social usefulness, if any, of the activities involved

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16
Q

Can a person consent to assault + battery?

Why?

A

Yes, otherwise everyday life would be difficult (bumping into people in the street/ tube)

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17
Q

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

A

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

18
Q

When can more serious injuries (ABH upwards) be consented to?

A

If it falls into one of the accepted public policy exceptions recognised by the law

19
Q

Name 6 exceptions where a person can consent to more serious injuries

A
  1. Contact sports
  2. Surgery
  3. Horseplay
  4. Haircuts
  5. Tattooing/ branding
  6. Sexual activity (NOT S+M)
20
Q

How can someone consent to a risk of injury in contact sports?
Give an example + a case

A

When it occurs WITHIN the rules of the game
Licensed boxing under the Queensbury rues is allowed BUT bare-knuckle fighting isn’t
Confirmed in AG Ref (No 6 of 1980)

21
Q

R v Billinghurst (1978)

A

D punched an opponent in face in an off the ball incident in rugby match + fractured his jaw
Convicted s20 GBH
consent is only allowed in an on the ball incident or during the course of play

22
Q

What happened in R v Barnes (2004)?

A

D = convicted of s20 GBH
Made a ‘late, unnecessary, reckless, high crashing tackle’
CA allowed appeal; prosecutions should only be brought against players if conduct = ‘sufficiently grave to be properly categorised as criminal’
Lord Woolf: pps in sport impliedly consent to risk of harm but are relevant factor to take into account

23
Q

What did Lord Woolf say in the case of Barnes?

tackle case

A

Participants in sport impliedly consent to risk of harm BUT relevant factors to take into account might be:

  • type of sport
  • level being played at
  • nature of act
  • degree of force used
24
Q

What could be a problem with the aw regarding consent and horseplay?

A

Deliberate physical contact in the school playground + elsewhere can be consented to (mutual risk)
BUT rougher horseplay may be perceive as bullying, gives them a defence

25
Q

What are the 2 cases that involve horseplay?

A
  1. R v Jones and Others (1987), Schoolboys
  2. R v Aitken and Others (1992), RAF

Cts accepted defence of consent in both cases even though the belief in consent = mistaken

26
Q

R v Joens and Others (1987)

A

Some boys were injured after having been thrown in the air by their schoolmates
One had ruptured spleen + broke his arm

27
Q

R v Aitken and Others (1992)

A

Those involved = all RAF officers
Set fire to V’s fire resistant suit, ‘initiation ceremony’
V = severely burned
BUT convictions = quashed

28
Q

What case relates to consenting to tattooing and branding?

Describe the case

A

R v Wilson (1997)
D branded wife’s bottom with hot butter knife
Conviction = quashed one rounds she had consented
Held: branding = ‘bodily adornment’, similar to tattooing

29
Q

If an injury is accidentally inflicted during sexual activity between consenting adults, is it assault?

A

No, even if one of the parties dies

Shown in R v Slingsby (1995)

30
Q

R v Slinsby (1995)

Ring

A 
D + V had consenting intercourse
He accidentally scratched her with ring
V suffered internal cuts, died septicaemia
Ct held: no assault; V had consented
D = NG of unlawful act MS
31
Q

Do the courts accept consent when the injury is caused by S+M?
What case illustrates this?

A

NO!

R v Brown (1994)

32
Q

R v Brown (1994)

S+M

A

Group of gay men engaged in violent acts for sexual pleasure (10yr period)
Those involved consented, no-one complained to the police/ suffered permanent injury
Police discovered sexual activity by accident (tapes)
ALL charged offences under OAPA
ALL appeals rejected by CA + HL

33
Q

Does the ruling in Brown seem to be a good for public policy?

A

Yes - doesn’t allow the defence to be used for violent relationships
No - Private life

34
Q

Emmett (1999)

plastic bag

A

D convicted ABH to his fiancee
During sex, suffocated her with plastic bag (caused internal bleeding in eyes)
Poured lighter fluid onto breasts (Serious burns)
CA upheld conviction, deemed to be illegal for her to consent to such injuries

35
Q

What does consent to surgery extend to?

A 
All operations (otherwise = wounding)
From cosmetic surgery to sex change operations
36
Q

How might the ruling of Richardson (1995) have been different if the case of Dica (2004) had come first?

A

D would’ve been found guilty

37
Q

What are the criticisms of the law on consent relating to sexual activity?

A
  1. Should the Cts be responsible for policing sexual relations between consenting adults? (Brown + Wilson)
  2. Speculation of discrimination in the case of Brown (homosexual vs heterosexual rulings)
  3. Against HR, Article 8 (right to private life)
    ECtHR: = not; Art 8(2) - public authorities can interfere with right to protect health + morals
38
Q

What did dissenting Lord Mustill + Lord Slynn argue a V could consent to in sexual activity?

A

Consent to ABH but not GBH

Policy considerations need tp be taken into account

39
Q

What is a disadvantage of having consented to horseplay?

A

Might be seen as bullying
law = inconsistent; = defence for horseplay resulting in serious injury but not in Brown + Emmett, also resulted in serious injury

40
Q

What did the Director of Public Prosecutions say about cases involving euthanasia?

A

Kier Starmer
It will nearly always in the public interest to prosecute
Defence = therefore unavailable

41
Q

What are 2 problems with the defence of consent involving sport?

A
  1. Difficult to decide if what is inside/outside the rules of the game
  2. Inconsistency in application - some sports (boxing) deliberate harm is allowed, but in others = offence (harsh?)
42
Q

What is the 1 change that the Law Commission proposed in the ‘Consent in the Criminal Law’ consultation paper in 1995?

A

No radical changes proposed
Only that intentional/ reckless causing of injury to another person short of the ‘seriously disabling variety’ shouldn’t be criminal if the other person has consented to it

A2 Law (18 decks)

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