CONSENT - GENERAL DEFENCE (paper 1)

Question 1

Introduction

Answer 1

• common law defence
• consent can be a defence or cancel out the decedents liability but will depend on the nature of the defence
• not available to all NFO’s, only in some limited situations

Question 2

Nature of consent - the way consent was given

Answer 2

• first thing to consider
• can be expressly given (said/written) or impliedly given (playing football - expected risk)
• must be given by people with capacity and be old enough
• will be valid/true if; its not given under duress, they understand the nature/quality of act, they are informed
• not valid if through fear/submission
• however, may still get the defence if they are mistaken about the consent

Question 3

What is consent available for?

Answer 3

• not available for those who intentionally kill, even will consent (euthanasia illegal)
• usually only available for defences as serious as assault and battery, wouldn’t make sense to be proecuting the hustle and bustle in everyday life
• some exceptions to consent not being a defence to s47 + s20: (1) properly conducted (2) lawful medical treatment (3) dangerous exhibitions (4) lawful chastisement of children
• surgery - if victim didn’t consent to medical treatment it could be an NFO
• consent never available for S18

Question 4

Things to consider with consent and sport

Answer 4

• (1) level of sport
• (2) nature of injury
• (3) outside play of the game?
• (4) state of mind of the defendant

Question 5

Not available for S47/S20

Answer 5

Sadomasochism - confirmed in HOL with R v brown and others (consenting male adults committing sadomasochism in private) not defence of consent
- prize fighting to agreeing to resolve differences with fighting - victims consent to fight will never be a defence - confirmed in AG’s reference No 6 of 1980

Question 6

R v Brown and others

Answer 6

• HOL in its judgement explained that the defence of consent is available to S47 and S20 offences where the harm was caused by piercing, tattooing or ritual (religious circumstance)

Question 7

DPP v Smith

Answer 7

• explained that consent is a defence to haircuts but there was an unreported case in 2018 where a hairdresser who shaved a 10 year olds head as a punishment was convicted of 247 offence

Question 8

R v Wilson (1996)

Answer 8

• H and W branding buttocks with hot knives and consent
• CA distinguished this case from the earlier HOL case of R v Brown and others and decided that the consent was available for a man charged with s47/s20 offence for branding wife with her consent

Question 9

R v Slingsby

Answer 9

• appeal court decided the defence was available for man charged with manslaughter for inadvertently lacerating the victim during vigorous sexual activities.
• not sadomasochism
• consent was available because the harm was in advert rather than it being pain for pleasure

Question 10

Jones and others and Aitken

Answer 10

• show courts are prepared to allow the defendant of consent for s47 and s20 offences where the defendant were engaged in horseplay when they committed the offence, provide it was not hostile
• not the case in DPP v Smith as there was evidence of hostility and bullying

Question 11

evaluation - decision to not allow consent to be available for the hustle and bustle of everyday life

Answer 11

• seems sensible and better for the public
• only criminalising those who are truly criminal
• however, what is the difference between a minor struggle and horseplay compared to an agreement to fight in horseplay?
• strange that consent is available for boxing matches where there is a Significant risk of injury + could be argued that competitors intend to inflict harm on each other, but not available for consensual fights?

Question 12

evaluation - defence available for those who were mistaken about the consent

Answer 12

• controversial
• can be argued that courts are trying not to criminalise rough, jokey horseplay and those who are not truly criminal
• however law favours the defendant free will and fails to protect young and vulnerable
• doesn’t support public policy

Question 13

evaluation - inclusion of lawful surgery

Answer 13

• sensible and protects medical profession, with sometimes have to act in a paternalistic way
• however will need to be considered whether the patient was fully informed and if they knew all the risks