Consent Eval

Question 1

D: Defence is required to protect us from harm

Answer 1

general rules of law of consent provide protection for those who may give consent but on the basis of deception or fraud, or through submission
R v Tabassum - woman gave consent for med exam but D not medically qualified so consent was not invalid
However there is sometimes a lack of clarity on when these exceptions apply which can lead to inconsistency and unfairness in the law

Question 2

P: Balance between personal privacy and public policy

Answer 2

Dev: Law needs to strike a balance between personal freedoms to allow us to consent to certain levels of harm whilst also acting in a way which shows social paternalism and mirrors social attitudes of right and wrong
Could also be conflict with HRA if personal freems to consent to actions are taken away without justification
Seen in R v Brown and R v wilson
However it is always going to be difficult for the law to balance freedoms of everyone

Question 3

P: Judges are deciding social, moral and public policy issues

Answer 3

Dev: Many of cases where consent has not been allowed on defence shows bias and prejudice from judges who base it on their own morality
Words such as “cult of violence” in R v Brown and “deviance” for transgender D in corbett v corbett show jdugement against actions of those involved in case
Unjust and undemocratic as judges not elected
However this is ultimately fault of parliament as rules not clear enough as judges have to make decisions in case they are faced with

Question 4

P: Inconsistent application

Answer 4

Dev: Most areas of law show some inconsistency between the rules used and way they are applied to cases
E.g. r v brown and r v wilson - different rules imposed for homosexual men and heterosexual couple
Also sporting situations when not clear whether on ball or off ball (r v barnes / billinghurst)
Circumcision can be consented to (Re J) but is it different to FGM
However each case decided on own merits