Consent Evaluation Flashcards
A01 common law tries to balance law and right to autonomy
Not statute lots of cases
Autonomy person freedom decides what’s best for society
Exceptions for when defence will be available for more serious injuries
Exceptions for when defence will be available for more serious injuries cases
Barnes
Brown
A03 Tries to balance law and right to autonomy For
Common law can be altered easily keeping in line with social changes
Principle important law should not interfere with personal freedom.
A03 Tries to balance law and right to autonomy But
Common law loads of rules which is complex
Lack certainty and predictability
Judges should not rule on policy
Keeping in line with social changes case
Gillick
Judges should not rule on policy case
Brown
A01 protects the vulnerable
Cannot use defence to murder
Terminally must take own life if wish to die
Child chastisement stops cruelty
A03 protects the vulnerable for
If AS allowed lead to surge in deaths
More recent cases offer flexibility unable to prosecute for assisted suicide.
Jury trials rarely convict for assisted suicide/euthanasia
A03 protects the vulnerable But
Illogical distinctions some sexual activity exempt but some allowed.
Remains a contentious topic
Courts have refused a change
Cannot use defence to murder case
Leach
Must take life if wish to die case
Pretty
Some sexual activity exempt case
Brown
Some sexual activity alllowed case
wilson
A01 Validity and capacity for consent
Person consenting must have legal capacity either by Gillick competence or aged 18 and over.
Consent invalid in statutory rape
Consent must be genuine and true
A03 validity and capacity for consent For
Principle respects rights of young people
Safeguards as can’t consent to situations that would be harmful
A03 validity and capacity for consent But
Vague as different for different people
Do young people really know what’s best for them
Statutory rape capacity to consent seems immaterial
Consent must be genuine case
Tabassum
A01 exceptions to case
Can be defence for low level non fatal offences
Sexual activity allowed short for vigorous and sado masochistic activity
Undisciplined play with no intention to injury
A03 exceptions for case For
Exception reflects principle of consent
Law protects potentially vulnerable people
Fits with autonomy principle
A03 exceptions for case But
Lord mustil said ‘should not interfere with rights of individual’
Decisions made by judges who are not best to judge on conducive to society
Inconsistent with SD intoxication rules
Sexual activity case
Brown
Undisciplined case
Jones
Inconsistent with SD intoxication rules case
Grady
Law commission report 1996 reforms
Extend range of situations consent could be used
D should be able to rely on V’s consent when infliction of harm not serious
Remove special expection for horseplay
What was law commission 2000 report confined to
Sexual offences
Law commission report 2000 reforms
Consent should be defined as ‘free and genuine agreement to the act in question’
Should be evidenced by words or conduct whether past or present.
Reconsideration of current exclusions and inclusions.
Other possible reforms
Extension of defence for all offences
Agreement to risk of serious harm
Which case could agreement to risk of serious harm be used in?
Brown
Which case would agreement to risk of serious harm fail in?
Richardson
What must injuries above battery have?
Must have a good reason.
Another element
Can be implied
Can be implied case
Pringle
