Defence: Consent Flashcards
What are the requirements for consent?
The V cannot consent to harm of ABH level or above, unless it falls within one of the exceptions
The consent must be real
The consent cannot be obtained fraudulently
The consent can be express or implied
Submission is not the same thing as consent
The V cannot consent to harm of ABH level or above, unless it falls within one of the exceptions - explain what this means
The victim cannot consent to harm, unless it falls into one of the exceptions
These exceptions fall into two categories:
Intentional Injury
Risk of Accidental Injury
The V cannot consent to harm of ABH level or above, unless it falls within one of the exceptions - Intentional Injury - cases with their exceptions (part 1)
Lawful aggressive contact sports - Coney
Reasonable surgery and medical treatment - Montgomery
Ritual Circumcision - Re: J (Circumcision)
Tattooing and piercing (as long as they are old enough to consent) - Burrell v Harmer 1967
The V cannot consent to harm of ABH level or above, unless it falls within one of the exceptions - Intentional Injury - cases with their exceptions (part 2)
No body modification - Re BM 2018
Branding - Wilson
But not sado-masochism - Brown and Others 1993
Sexual Activity - Emmett 1999
The V cannot consent to harm of ABH level or above, unless it falls within one of the exceptions - Risk of Accidental Injury - cases with their exceptions (part 1)
Properly conducted sports - has to be within the rules of the game - Johnson, Billinghurst, Barnes
Rough and undisciplined horseplay, even if there is an mistaken belief in consent - Jones 1986
Horseplay, as there was consent to it - Aitken
The V cannot consent to harm of ABH level or above, unless it falls within one of the exceptions - Risk of Accidental Injury - cases with their exceptions (part 2)
Reasonable and lawful chastisement of children - A v UK 1998 (Children Act 2004, s.58)
Sexual Activity - Slingsby 1995
Risk of STD/HIV transmission - Dica 2004
The consent must be real - what this means (for the V) with a case.
Means that the victim must:
a) Understand the nature and quality of the act they are consenting to,
AND
b) Not lack capacity to consent or be acting under consent
Was shown in the case of Tabassum.
The consent cannot be obtained fraudulently - different ways this can be fraud with the cases for each.
It may be fraud as to D’s identity - Elbekkay
Or fraud as to the nature and quality of the act they are consenting to - Williams
However not all fraud will deny the defence - Linekar
The consent can be express or implied - what this means with cases (remember _________ competence)
Express consent - V agrees either verbally or in writing to a procedure
Children under 16 can consent themselves to medical treatment once they are deemed Gillick competent - understands the implications.
Implied can be things like battery while walking down a busy street
Pringle - ‘ordinary jostlings of everyday life’
Where V is medically incapacitated, medical staff are legally allowed to proceed without consent as long as they are acting within the patient’s best interests
F v WBHA
Submission is not the same as consent - what this means and the case
If V has submitted to D’s actions and said nothing out of fear or repercussions if they did not submit, this is not the same thing as giving consent
Olugboja
