Consent AO3 Flashcards
Introduction - Consent and Euthanasia - AO1?
The defense of consent is available to battery and other minor offenses, it is not available to serious offenses such as murder and manslaughter.
Pretty - Held that no one can consent to their own death.
Introduction - Consent and Euthanasia - AO3?
It seems to constrain society as it enables a more abled person to commit suicide whilst a less able can’t, in turn some people argue this is discriminatory. It is legal in Holland and it is a lesser defense in Germany. There has been pressure on parliament to change this and the courts have not found anyone guilty of assisted suicide in the last few years, thus allowing individual freedom. The British medical journal has encouraged medical professionals to remain neutral so that parliament can discuss. However, it does protect individuals especially society.
Real and Implied consent - fair balance in society AO1?
Tabassum - The consent from the victim must be true (real) and not given through fear, mistake or submission, if not there is no consent.
Wilson v Pringle - Held that everyday situations where the courts imply consent to minor touching’s. “Ordinary jostling” in a busy street cannot amount to an offence.
Real and Implied consent - fair balance in society AO3?
This is an example of the courts restraining the individual to protect society, By enforcing real consent it means that justice will be served and more fair decisions will be served. The defense of consent can be implied, it does not have to be explicit.
This allows a freedom in society and does not constrain it. The courts have responded to the need of people to go about their daily business without the fear of committing an assault.
ABH - Serious Harm - Constraint on Society AO1?
AG’s Reference - Held that consent does not normally apply to an offence of S47 Offences Against the Person Act 1861, or over.
ABH - Serious Harm - Constraint on Society AO3?
The courts held that it is not in the public interest that people should deliberately cause each other harm without good reason. It is a constraint on society as the courts do not allow people to deliberately cause serious harm to others. However, the courts have recognized that there has to be certain individual freedoms and have therefore created exceptions to this such as sport and surgical interference.
Consent and Sport - Should the law interfere with Sport AO1?
Barnes - Held that consent exists for “properly conducted games and sport” The Courts held that when deciding whether the conduct was criminal they should consider. 1) Was the infliction of injury intentional, 2) Did the injury occur during normal play or was it “off the ball”, 3) Is the conduct within the rules of the game.
Consent and Sport - Should the law interfere with Sport AO3?
Critics have argued that the Courts interfering in sport constraints society as the law should not concern itself with sport. Also there is a problem for sports such as boxing which tries deliberately to inflict injury. However, the other side of the argument is, individuals do need protecting as the majority do not consent to suffer major harm in sport.
Consent and Surgical Interference - AO1?
Burrell v Harmer - Held that reasonable surgical interference e.g. tattooing, piercings, massages, injections - gives rise to consent. Consent given if saving life of a patient and assault has to happen in order for this to be done.
Consent and Surgical Interference - AO3?
This strikes a fair balance as doctors need to be able to operate without the fear of criminal actions when they are unable to obtain the patients consent. However, this could be a dangerous precedent to set for those operations that involve plastic surgery and go wrong.
Public Policy - AO1?
Brown - They held that consent could not be given to sado-masochistic acts, even if the people consented.
Wilson - Consensual behavior between couples which caused harm was not an offence, branding is a form of tattooing.
Jones - If the D honestly believed that consent had been given they may still successfully raise the defense of consent.
Public Policy - AO3?
Brown - Consent has been restrained by public interest. Critics have argued that the courts have been influenced by public interest and have not taken into account the freedoms of individuals.
However, the courts believe that the constrains on society are necessary. Some argue that Brown undermines undermines the fact that everyone is entitled to respect and enjoyment in family life however, Lord Lowry stated that this was not an absolute right and it is not in the public interest to allow cruel and degrading treatment. However, some believe that the treatment in Wilson was cruel and degrading, so the courts have been influenced by the public interest between homosexuals and heterosexuals. The Law Commission attempted to reform this area on consent by recommending that intentional causing of injury falling short of disabling injury should not be criminal. However, parliament rejected this recommendation.
