consent- general defences Flashcards
how does consent provide a defence to certain non-fatal offences against the person?
technicaly if a person consents there can’t be an offence as unlawful force isn’t applied (there’s no unlawful act)
R v Donovan
(1934)
sum: D caned a 17yr old girl for sexual gratification
sig: as she consented, actis not unlawful so CA quashed conviction
R v Slingsby
(1995)
sum: sexual activity, cut from signet ring caused blood poisining & death
sig: followed R v Donovan, as no unlawful act so can’t be manslaughter
for consent to be legally valid it must be what 3 things?
real
true
informed
Burrel v Harmer (1967)
- consent must be real
sum: D tattooed 2 underage boys who had consented
sig: boys consent was ineffective since the court was of the opinion they were unable to comprehend the nature of the act
Gillick v West Norfolk & Wisbeck area health authority (1986)
- consent must be real
sum: mother wanted to make it unlawful for a doctor to prescribe contraception to a child under 16yrs, without parental consent
sig: created the Gillick Competence test of, a minor will be able to consent to treatment if they demonstrate “sufficient understanding and intelligence to understand fully what is proposed”
R v Richardson (1998)
- consent must be true
sum: suspended dentist carried out work on patients who then said they wouldn’t have consented if they knew of her suspension
sig: patients had consented and there was no fraud to the identity of person performing treatment. Not ABH as they understood the nature of the act
R v Tabassam (2000)
- consent must be true
sum: women consented to have breast measurements taken for a study but doctor has no medical training or qualifcations
sig: cannot be through deicit, must have true knowledge of quality of the act
R v Olugboja (1982)
- consent must be true
sum: D said V consented to having herself raped by him after seeing her friend be
sig: fear doesn’t mean consent is real, it must be voluntarily given. No coercionn
R v Dica (2004)
- consent must be true & informed
sum: D had consensual sexual relations with 2 women, he didn’t tell them he was HIV+
sig: no consent as to risk of infection, consent must be informed. HIV is a communicable disease which can amount to serious harm.
explain what is meant by implied consent
everyday situations where it is impossible not to have contact
give 4 examples of situations of implied consent
- shaking hands
- friendly slap on the back
- linking arms
- normal jostling (bumped into on busy train, etc)
Wilson v Pringle (1987)
- implied consent (sig only)
sig: “because in a crowded world people must be considered to take upon themselves some risk of injury from the lawful acts of others”
Donnolley v Jackman
- implied consent
sum: tried to gain attention by tapping D on shoulder
sig: consent will applyas being implied
Collins v Wilcock
- implied consent
sum: furthered case of Donnolley v jackman, but consent was not given for grabbing arm
sig: implied consent existed where there was jostling in crowded places, handshakes, tapping to gain attention provided no more force than is reasonably necessary in the circumstances”
AG ref No6 of 1980
- the general principle to minor injuries
sum: 2 men settled agreement with a public street fight but both consented
sig: “not in the publiv interest people should try to cause, or should cause, each other bodily harm for no reconised good reason”
what did the AG ref no6 of 1980 establish about consent?
consent is not a defence for s47 OAPA
what are the 5 excpetions that apply to AG ref no6 of 1980 of consent not being a defence for s47 OAPA?
- surgery- medical intervention
- horse play
- sport
- tattoos & piercings- personal adorments
- lawful chatisement
implied consent and sport
- include factors to consider
when you participate you consent to the contact which is part of the sport. However, if the contact goes beyond what is allowed within the rules, then it is possible for an offence to be committed. Or if it is intentional inflicition of injury it will always be criminal
factors: age of player, amateur or professional, was it within the rules?, was the infliction of injury reckless?, was it normal play?
R v Barnes
-sports
sum: D (an amateur) made a late tackle on V in football causing V serious leg injruy
sig: D was amateur so didn’t know seriousness of late tackles, so consent was allowed as tackling was part of the game
R v Billinghurst
-sports
sum: rugby player punched another player during match as an unprovocked attack
sig: rules in rugby don’t include punching as intentional violence is not so wasn’t consented to
what is horseplay?
games or an act which is friendly violence that courts would accept consnet as defence even when injuries sustained are serious harm - D doesn’t have sufficient MR
what do courts require for using consent as a defence for horseplay?
honest belief of consent, even when not actually given
R v Jones and another
- horseplay
sum: schoolboys threw younger boys into air and dropped them causing. serious harm and they didn’t consent
sig: if appellants had a genuine belief in consent they should be allowed the defence. No requirement that the belief be reasonably held, provided it was genuine
R v Aiken
- horseplay
sum: RAF officers as a joke set fire to 2 officers in fire resistant clothing and then extinguished but for the 3rd one they sustained serious burns
sig: if officers had consented or appellantsbelieved that the officer had consented it was open for judge to find that no offence had been committed
lawful chastisement - implied consent
S58 childrens act gives what is reasonable punishment of a child (only for battery if it causes no harm)
AG ref no6 covers children due to their vulnerability
what did personal adornments show to cover?
shows position of law interfering with personal autonomy and freedom of individuals to do so as they chose, in private, by taking a moral viewpoint as in the public interest in a civilised society.
what are 2 examples of personal adornments?
piercings: consent by parents until 16
tattoos: 18+ consent
R v Brown
- personal adornment
sum: group of men used stinging nettles and piercings with fish hooks to genitals of eachother with consent in own home/private, no medical attention required
sig: ‘it is not in societys interest to prepetuate a cult of degragation and violence”, judges bias to homosexuality, ABH s47 & s20 malicious wounding
R v Wilson
- personal adornments
sum: A branched his wife with a hot knife in the buttocks at her request but she required medical attention
sig: judges allowed consent as they didn’t think courts should intervene in private life of individuals
R v Emmett
- personal adornments
sum: heterosexual married couple, high risk sexual activity resulting in medical attention for serious harm
sig: follwing R v Wilson, consent should apply but courts found serious harm couldn’t be consented if harm was more than “trivial and transient”
R (Pretty) v DPP
- consent cannot be used for murder
sum: Pretty has MND and wanted to give her husband permission to not be prosecuted for controlling her death
sig: DPP refused to give guarantee as it is against humans rights of a right to life. S2 suicide act of assisting suicide to another
Nicklinson v Ministry of justice
- consent cannot be used for murder
- significance only
“until parliament legislated otherwise, the courts are bound to follow the law” of S2 suicide act
Airdale NHS trust v Bland
- consent cannot be used for murder (euthanasia)
sum: major incident victim in vegetative state but brain stem active, requested declaration to stop life giving treatment
sig: there is no duty to treat as not in best interests of patient so an omission of treatment is not unlawful
R v Inglis
- consent cannot be used for murder (euthanasia)
sum: mother adminsitered lethal dose of heroin with intent to kill son as in vegitative state she thought was painful
sig: “until parliament decides otherwise, the law recognises a distinction between the withdrawal of treatment supporting life, which, subject to stringent conditions, may be unlawful and the active termination of life which is unlawful”
