Consent and non-fatal offences Flashcards
1
Q
General rule for consent
A
- AG’s Reference (No. 6 of 1980)
o Can consent to assault or battery but cannot consent to any higher levels of harm i.e ABH or GBH UNLESS it is a recognised exception
2
Q
Exceptions to consent - sports and organised games (4)
A
- Billinghurst
o Players are deemed to consent to force of a kind which could reasonably be expected.
o A useful distinction may be drawn between On/off ball incidents – can consent to on the ball incidents but not off the ball - Moss
o Punched another rugby player causing fracture to eye socket – charged s.20
o Rugby is not an excuse for thuggery – offence occurred off the ball - Barnes
o Intentional infliction of injury during sport is not protected by consent defence
o Have to look at type of force reasonably expected in that type of game - Brown
o Boxing is special
3
Q
Exception to consent - rough horseplay (4)
A
- Jones
o School children could validly consent to ‘rough and undisciplined play’, so long as there was no intention to cause injury
o Group of kids throwing someone into air and letting drop to ground. Child suffered broken arm and ruptured spleen. S.20 offence – can consent as long as no intention to cause injury - Aitkens
o Mistaken belief in consent of the victim would provide a defence
o RAF Officers set fire to each other when asleep as prank – could usually put out fire easily – victim resisted weakly, became engulfed in flames and suffered 35 burns – mistaken belief in consent - Richardson & Irwin
o Drunken students who decide to drop friend off balcony and suffered serious injuries. Held this was horseplay and drunken belief in victims consent to risk would provide them with a defence - R v P; R v A
o Bring victim to bridge and put him into river below and boy drowned. Known that he could not swim. Witnesses said that he was clearly not consenting and making it clear he could not swim. Not credible that D’s had genuine belief that V was consenting to horseplay
4
Q
Exception to consent - surgery, tattooing, piercing (3)
A
- Wilson
o Had used hot knife to brand initials on his wife’s buttocks with wife’s consent. Court said it was equivalent of tattooing and this was an exception in the law. It was Mrs Wilson who instigated branding and there was no aggressive intent on part of Mr Wilson. Branding was motivated by artistic desire not sexual – had a consent to the s.47 offence - Brown
o Tattooing recognised as an exception - R v BM
o D is tattoo artist who also does body modification. Three victims all consented to an ear removal, a nipple removal and another had their tongue forked. D is being charged of 3 counts of s.18. D tried to argue that they consented and that it was like tattooing/cosmetic surgery and so should be an exception.
o Decide that consent was not a defence in this case – body modification is not same as tattooing and is more like surgery except this is not for a medical reason and poses serious health risks. To modify the law to allow body modification would be for Parliament rather than the courts – idea of paternalism
5
Q
Infliction of ABH or greater for sexual gratification (7 cases and 1 statute)
A
- Donovan
o D meets with 17 year-old girl. Beats her on buttocks with cane. Had conversations about this and she consented. Consent could not be a defence in this case
o If the blows were likely or intended to cause bodily harm D was guilty whether V consented or not - Brown
o Sadomasochistic group consent to number of things and record it – had safe word to stop – were still charged with s.20 and s.47 as consent not a defence
o Dissenting – should criminal law even be applied here? - The state should interfere with the rights of an individual to live his life as he may choose no more than is necessary to ensure a proper balance between the special interests of the individual .. and the populace at large - Laskey, Jaggard & Brown v UK
o Appeal to ECtHR from Brown
o Right to privacy had been violated – EctHR said interference of Art 8 was justified as HofL entitled to think about potential risks
o Tried to argue this was a homophobic decision - Emmett
o Heterosexual couple - puts plastic bag over woman’s head whilst having sex – charged s.47
o Tried to argue consent defence – was rejected – risk of asphyxiation was death
o Court steps in whether homosexual or heterosexual - Boyea
o Victim’s consent is irrelevant if D’s actions were intended or likely to cause harm
o Likely did not mean recklessly – could be objectively assessed - Slingsby
o If it is not deliberate infliction of injury – neither victim nor defendant considered risk of infection or cuts when wearing a ring and performing act – it was an accident not a crime - Meachen
o It is necessary for the prosecution to show that the defendant intended to cause some bodily harm however slight or caused such harm recklessly in the sense that he foresaw the risk that some bodily harm, however slight, might result from what he was going to do and yet, ignoring the risk, he went on to commit the act which caused the harm - Section 71 Domestic Abuse Act 2021
o Consent to serious harm for sexual gratification is not a defence
6
Q
Consent induced by fraud (7 and 1 statute)
A
- Clarence
o only deceptions as to nature of the act or identity of the actor were regarded as sufficiently fundamental so as to vitiate (or negate) consent. - Richardson
o Dentist was suspended from practice but whilst suspended performed dental surgery on patients. Those patients said they would not have consented if they knew she was suspended. She was convicted with s47 offence. Appeals. CofA says there was not deception as to identity but rather deception as to attribute of defendant – they were still medically qualified dentist but just suspended - Tabassum
o D claims to be doing research for breast cancer. Asks number of women if he can measure their breasts to which they consented as thought it was for medical research. This was not the case. There was deception as to the nature of the act but not its quality - Melin
o D performed cosmetic surgery in number of women. Women suffered serious harm as a result. Had lied about medical training and qualifications. Women said if knew truth they would not have consented. Charged with s.20. Convicted and appeals that there was not fraud as to identity but just an attribute. Court said fact that he claimed to be medically qualified was intrinsically relevant to the woman’s consent and the fact he lied about this would mean the consent was invalid - Dica
o Non-disclosure of HIV
o Given the long term nature of the relationships, if the appellant concealed the truth about his condition from them, and therefore kept them in ignorance of it, there was no reason for them to think that they were running any risk of infection and they were not consenting to it – on this basis there would be no consent sufficient in law to provide the appellant with a defence to section 20. - R v B
o Non-disclosure of HIV
o The fact that a person had a sexually transmitted disease that was not identified to another person did not vitiate any consent that may have been given concerning sexual activity - Konzani
o D was not to be convicted if there was or might have been an informed consent by the sexual partner to the risk that he would transmit HIV. - S71(4) Domestic Abuse Act 2021
o Consent for purposes of sexual gratification is not a defence for ABH, GBH or wounding
o It covers where the serious harm consists of infection with a sexually transmitted disease and V consented to the sexual activity in the knowledge or belief that D had the sexually transmitted infection
7
Q
Possible reform for consent
A
- Law Commission Report No. 139 (1995)
o A person could consent to seriously disabling injury if it was caused during the course of proper medical treatment;
o Injuries caused in the course of a fight (unless it is a boxing match or a recognised sport) would be an offence;
o The consent of a person under 18 to injuries intentionally caused for sexual, religious or spiritual purposes would not be a valid consent
8
Q
Critical commentary for consent (3)
A
- Clement
o The law on exceptions to consent and expanding into body modification will remain ill-principled, inconsistent and illiberal until parliament intervenes - Giles
o Judgment in Brown reflected the view that paternalism triumphs over individual freedom
o There should be a compromise between complete freedom to act consensually and liability for all harms, minor or not, consensual or not – this should eb for Parliament to decide not the unelected, unrepresentative judiciary - Pope
o Brown brought about the codification of the rule in section 71
o Section 71 – consent to serious harm for sexual gratification is not a defence was necessary to respond to domestic abuse cases
o Although feminist and queer concerns of over-criminalisation, have concerns for homophobic implications of ‘normative sex’, they fail to consider prevalence of domestic abuse and violence in this defence
o Section 71 necessary to ensure that ‘rough sex’ narrative does not disguise domestic abuse
o Further reform is still necessary to target underlying causes of domestic abuse, rather than merely punishing perpetrators
