Consent Flashcards
Where can you find the defence of consent for criminal damage?
s5(2)(a) Criminal Damage Act 1971
Where is the defence of consent found for theft?
s2(1)(b) Theft Act 1968
There are two elements to consent. What are they? Who has the burden of proof and what is the authority?
- Whether the victim consented;
- Whether the defendant believed the victim consented;
The burden of proof is on the prosecution to prove both elements (R v Donovan)
What is the general rule regarding consent for offences against the person? Which cases established and confirmed the rule?
Consent is only available as a defence to assault and battery (established in AG’s Ref (No 6 of 1980) and confirmed in R v Brown).
Which case extended the use of defence of consent to s47 ABH in certain circumstances? What are those circumstances?
Consent is available as a defence where actual bodily harm is caused provided the defendant intended only to commit battery with the consent of the victim and did not see the risk of inflicting actual bodily harm (R v Meachen).
What are the exceptions to the general rule that consent is not available for crimes over and above battery/assault? Give an authority for each.
- Medical treatment
- Sport (R v Barnes)
- Horseplay (R v Richardson and Irwin)
- Sexual gratification (R v Slingsby)
- Personal adornment (R v Wilson)
- Sexually transmitted diseases (R v Dica)
- Lawful correction of a child (R v H)
Despite all these rules and exceptions, which case said that the issue of consent has no hard and fast rules and each case must be considered on its own facts?
R v Meachen
Out of the following cases which were not convicted and why? R v Brown, R v Boyea, R v Emmett, R v Slingsby, R v Wilson.
R v Slingsby - there was no intention to cause harm;
R v Wilson - the girlfriend had directed her boyfriend to brand her buttock with a hot knife. Branding fit in with the exception of personal adornment.
How can the cases of R v Boyea and R v Slingsby be distinguished?
An objective test was used in Boyea ie was the defendant likely to have intended ABH. A subjective test was used in Slingsby.
Which case, Boyea or Slingsby, do academics consider to be wrongly decided? Why?
Boyea, because the requirements for recklessness in Savage v Parmenter were misunderstood.
What is the principle set down by R v Dica?
Consent may be used against a charge under s 20 OAPA for the risk of spreading HIV. It is not possible to use consent for the deliberate infliction of HIV.
According to the case of R v H, what must the court take into account when considering conviction of a parent for causing harm to a child?
The nature and context of the parent’s behaviour, its duration, the physical and mental consequences for the child and the reasons why the punishment was inflicted.
How was the defendant, who infected his wife with venereal disease knowingly, able to avoid conviction in R v Clarence?
The court held consent would only be vitiated if the wife was deceived as to the nature or quality of the act, or as to the identity of the perpetrator.
In which case did the trial judge attempt to overrule R v Clarence? What did the trial judge say?
In R v Richardson the trial judge ruled that deception as to the attributes (in this case that the dentist was not suspended from practice) would vitiate consent.
Which case overruled R v Clarence?
R v Dica
